IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.12.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.41665 of 2006[T] (O.A.No.4325 of 2000) 1.M.Jegathambal 2.M.Mariammal 3.M.Pushpa 4.S.Indirani 5.A.Kamala 6.P.Elizabeth 7.V.Rukmani 8.C.Rani 9.E.Devarajulu 10.M.Rajasekaran 11.S.Venkatasubramani 12.K.Abdul Razack 13.A.Narendran 14.K.Gowri 15.S.Jeyaseeli 16.S.Arokiam Rajakili 17.R.Lalithabai 18.E.Thirunavukkarasu 19.S.Margret Mariammal 20.T.Suseela 21.V.E.Anbuselvan 22.S.G.Yamuna Bai ...Petitioners Vs 1.The Government of Tamilnadu, Rep. By Secretary to the Government, Education Department, Fort St.George, Chennai – 600 009. 2.The Government of Tamilnadu, Rep. By Secretary to the Government, Personnel and Administrative Reforms Department, Fort St.George, Chennai – 600 009. 3.The Director of Government Examinations, Chennai – 600 006. 4.The Secretary, Tamilnadu Public Service Commission, Chennai – 600 002. ...Respondents https://hcservices.ecourts.gov.in/hcservices/ Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records in Na.Ka.No.140161/C3/1/92 dated 14.3.2000 on the file of the third respondent issued in pursuant to the letter issued by the first respondent dated 2.2.2000 to declare the same as arbitrary and to quash the same and to direct the respondents to forthwith appoint and post the petitioners herein as Junior Assistants retrospectively from the date as fixed by the G.O.Ms.No.259 dated 27.4.1989 with all the incidental service benefits. For Petitioner : Mr.G.Elanchezhian For Respondents: Mr.R.Murali,G.A. For R1 to R3 Mr.M.Baskar for R4 O R D E R The petitioners, herein, were employed by the third respondent – Director of Government Examinations as and when there was extra requirement for collating the work of marks furnished by the valuers. 2. Similarly placed persons moved the Tribunal in O.A.No.6048 of 1992. Since the work of the Section Writers related to seasonal work and at peak time, extra hands are recruited, the Tribunal directed that 30% of the vacancies can be taken as a peak employment or 75 posts can be sanctioned for regularising the persons who are employed. The Tribunal further directed that the order should be implemented within three months. The order of the Tribunal dated 18.06.1993 was considered by the State Government and an order was passed in G.O.Ms.No.156 Education Science and Technology Department, dated 07.03.1994. The Government accepting the order of the Tribunal sanctioned the posts in the Department of Government Examinations and the Section Writers are to be absorbed as Record Clerks. In the very same order, it was also stated that improvement of the system in the Directorate of Government Examinations should be ensured so that, the department can do away with the appointment of Section Writers on daily wages. It was also stated that other Section Writers can be granted age exemption to appear in the Tamil Nadu Public Service Commission and their case can be considered. It is pursuant to the order, the petitioners were appointed as Record Clerks on regular basis. 3. However, it transpires that certain other Section Writers who are not regularised had written Limited Special Examination conducted by the TNPSC for getting absorbed as Junior Assistant. Since the petitioners were already absorbed as Record Clerks, they could not sit for the Examination. It also transpires that some of the Section Writers were also absorbed consequent upon their coming out successful in the Limited Special Examination conducted by the TNPSC and were appointed as regular Junior Assistants under the Tamil Nadu Ministerial cadre. https://hcservices.ecourts.gov.in/hcservices/ 4. The grievance of the petitioners was that such of those persons who were given the benefit of writing the TNPSC examinations getting absorbed as regular Junior Assistant, the petitioners merely because were given regular posts of Record Clerk could not have been denied the chance of becoming Junior Assistants and therefore, their cases should be directly considered for being appointed as Junior Assistants. They never bargained for appointment to the post of Record Clerk and had they been allowed to continue and write such examination, they would also become Junior Assistants. It was also stated that at the time of initial appointments, they were appointed as Lower Division Clerks and hence, by their absorption in the year 1994 they could not been absorbed against lower post. 5. This proposal of the existing Record Clerks received sympathy from the Department officials and they started corresponding with the Government, bringing to the notice of the Government that in the subsequent recruitment there cases can be considered. In fact, some of the petitioners also moved the Tribunal in O.A.No.1995 of 2004 and a direction was given to the Government to pass appropriate orders to regularize their case in the post of Junior Assistant. But the petitioners having got the regular posts of Record Clerks by the orders of the Tribunal which was accepted by the State and after serving in the post for 6 years once again moved the Tribunal in O.A.No.4325 of 2000 seeking to set aside the order dated 14.03.2000 issued by the third respondent which was issued pursuant to the order of the first respondent Government dated 02.02.2000 and after setting aside both orders sought for a direction to the respondent to appoint them as Junior Assistants with retrospective effect as fixed by the Government in G.O.Ms.259 dated 27.04.1989. 6. In the impugned order, which is challenged in the writ petition, the third respondent, Director of Government Examination merely requested the Government to upgrade 22 Record Clerks as Junior Assistants and pass appropriate orders. In the recommendation made by the third respondent to the first respondent, a reference was made to the Government letter dated 02.02.2000 Education Department, wherein the TNPSC announced the recruitment for the post of 47 Junior Assistants. 7. The petitioners were aggrieved by such a recommendation as they were not willing for any subsequent upgradation and wanted to be appointed from the dates of their initial appointments. They were also aggrieved by the Government order in G.O.Ms.No.259 P & AR Department dated 27.04.1989, wherein the State Government directed to conduct examination and to admit all the eligible candidates to such examination to be absorbed as regular Junior Assistant coming under the purview of TNPSC. 8. The Tribunal while ordering notice of motion on the OA directed the respondents to proceed with the selection process but directed that appointment order should not be issued in respect of 22 posts. https://hcservices.ecourts.gov.in/hcservices/ 9. When the petitioners found that the appointment orders were issued, they filed Contempt Application in 173 of 2001 to punish the respondents and notice was ordered in the said contempt application. The contention of the petitioners 22 posts referred to above in the order were the posts which were available at the time when the order was passed but the respondents had reserved 22 posts for which vacancy arose subsequently. The Tribunal held that the order does not make any distinction between the vacancy arose at that time and the vacancy arising subsequently. With these observations, the contempt petition was closed on 29.11.2001. 10. Subsequent to the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.41665 of 2006. 11. On behalf of the respondents, a counter affidavit was filed before the Tribunal together with supporting documents. In the counter affidavit dated 'Nil' it was contended that Directorate of Government Examinations' letter dated 14.03.2000 is neither a final order nor a proceedings issued by the Director of Government of Examinations. It is only a correspondence between the Director of Government Examinations and the Government. The petitioners' were absorbed as Record Clerks and their seniority was also fixed with reference to the date of regularisation in their services as Record Clerks and further promotion in the Department will be according to the existing Rules along with the other Record Clerks. In the appointment order, it was also mentioned that their appointments were purely temporary and they would be ousted from service without assigning any reasons. It was also stated that by G.O.Ms.No.2149 Education, Science and Technology Department, dated 14.11.1983, the petitioners were requested to express their willingness or otherwise to work as Section Writers in the Directorate of Government Examinations on daily wages at the rate of Rs.12/- per day. 12. It was further stated that the petitioners also gave their consent in writing to work as Section Writers on daily wages. It is based upon their willingness, they were allowed to work as Section Writers and the wages paid were subsequently revised and gradually increased to Rs.80/- per day. Even when such persons moved the Tribunal, the Tribunal held that the work of the Section Writers is essential to the Department but at the same time the entire work need not be retained for the entire year and hence suggested that 30% of the peak employment or 75 posts can be regularised. It is pursuant to the direction issued by the Tribunal, the Government issued the order absorbing the petitioners as Record Clerks. In this context, the letter of the TNPSC dated 05.01.2000 was also referred to wherein the TNPSC had stated that if these persons were appointed in the year 1994 as Junior Assistants, there would not have been any problem. But at the same time, the subsequent proposals cannot accommodate these candidates and the examinations held for Group IV was not made for these persons. It is also https://hcservices.ecourts.gov.in/hcservices/ claimed that the present claim made by the petitioners, if allowed, will have serious consequences on the Department and the administration. 13. The petitioners aggrieved by the counter have also filed a re-joinder dated 08.11.2010 together with some supporting documents. 14. Mr.G.Elanchezhian, learned counsel for the petitioners contended that though the petitioners were absorbed as Record Clerks, but their earlier appointment was Lower Division Clerks and the department was consistently recommending the case for absorption as Junior Assistants, which has not been done. The persons who are allowed to write Limited Special Examinations merely because of participating in the said examination got higher post of Junior Assistant and therefore, the petitioners cannot be discriminated in the matter of such appointment. 15. However, this Court is not inclined to consider the said submissions as they were not appointed in terms of Rules. An appointment has to be made only in terms of recruitment rules. It is not the case of the petitioner that they had written any special examination so as to qualify themselves for direct appointment to the post of Junior Assistants. On the other hand, their entry into the department was on adhoc basis and their appointment was not made by any appointing authority for the post of Junior Assistant and they were also not selected in the regular manner. Having agreed to work in ahhoc post and subsequently got absorbed into Government, thanks to the Tribunal for the orders and accepting the same in the year 1994, they cannot file a second round of litigation to improve their status. The petitioners have not made out any case and even the correspondence referred to by them has been considered by the Department only as a correspondence between the Department and from out of which petitioners cannot take any milieu. 16. In the light of the above, the writ petition stands dismissed. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ svki To 1.The Secretary to the Government, The Government of Tamilnadu, Education Department, Fort St.George, Chennai – 600 009. 2.The Secretary to the Government, The Government of Tamilnadu, Personnel and Administrative Reforms Department, Fort St.George, Chennai – 600 009. 3.The Director of Government Examinations, Chennai – 600 006. 4.The Secretary, Tamilnadu Public Service Commission, Chennai – 600 002. + 1 C.C. To Mr. G. Elanchezhiyan Advocate Sr.No.87344 + 1 C.C. To Government Pleader Sr.No.88010 W.P.No.41665 of 2006 (O.A.No.4325 of 2000) NSM[CO] KS 07/01/2011 https://hcservices.ecourts.gov.in/hcservices/