IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.09.2010 CORAM THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI W.P.No.14253 of 2010 & M.P.Nos.1, 2 & 3 of 2010 1.S.Preetha 2.A.Duraiswami ... Petitioners vs. 1.The Secretary, Chennai Port Trust, Chennai. ..Respondent Prayer : Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records in connection with the proceedings issued in impugned order bearing No.G1/7915/2005/GA dated 24.06.2010 passed by the respondent to quash the same and to consequently direct the respondent to consider the petitioners appointment, taking into account their applications in a just, fair and legal manner, in first preference to other candidates, and to select them, if the petitioners are otherwise qualified for the same. For Petitioners ... Mr.K.Bijai Sundar. For Respondent ... Mr.S.Veeraraghavan, AAG for Mr.V.Thillaiappan ORDER The writ petition is filed against order of the respondent dated 24.06.2010 to quash the same and to consequently direct the respondent to consider the petitioners for appointment as legal assistants in the legal department in the respondent port trust. 2. The brief facts leading to filing of this writ petition are as follows : The petitioners 1 & 2 were appointed as Assistant Superintendent and Junior Assistant respectively in the traffic department of the respondent port trust during 1985. Both the petitioners were during 2005 transferred as Superintendent and Assistant respectively to the legal section of the respondent administration and the petitioners have been working in such capacity in the legal section from April 2005. While so, the respondent issued circular dated 07.10.2006 calling for applications to fill up one post of legal assistant and in response to the same both the petitioners applied for the post and the petitioners along with two others from legal department and three others by name B.V.Giridharan, R.A.Ramesh Kumar and K.Damodaran from other department attended the interview on 07.11.2006. After the interview was over Thiru.B.V.Giridharan and R.A.Ramesh Kumar https://hcservices.ecourts.gov.in/hcservices/ were selected as legal assistants on regular and adhoc basis respectively which compelled the petitioners and two others by name Tr.M.Ravisankar and Sukumar to file WP.307/2006 to set aside the appointment of the two candidates. The writ petition was allowed on 8.12.2006 thereby the appointment of Giridharan and Rameshkumar was held to be invalid as it was not in accordance with the procedure prescribed. 3. The High court has while doing so, directed the respondent to consider the claim of the petitioner at the first instance for the appointment to the post having regard to the fact they are already employed in the secretary's department, if otherwise qualified. As against which the respondent and the appointees on regular and adhoc basis filed separate Writ Appeals in W.A.Nos.1218 and 1403 of 2008 and 392 of 2010 before the Hon'ble Division Bench of this court and the Hon'ble Division Bench by common order dated 22.04.2010 confirmed the findings of the learned single judge with regard to the illegal appointment of the appellants therein and dismissed all the Writ Appeals. In pursuance of the order of the Division Bench, Thiru.Giridaran and Rameshkumar were reverted back to Marine department on 24.06.2010. The respondent on the same day passed the order impugned herein, in and under which the petitioners are repatriated from legal secretary/general administration department to traffic department with immediate effect. The petitioners received the transfer orders without prejudice to their right to seek appropriate legal remedy and the petitioners have thereafter filed the present writ petition questioning the correctness and validity of the order, above referred to, mainly on the ground that by reason of the impugned order the petitioners are deprived of their opportunity for being considered for the appointment to the post of legal assistants and the impugned order is in defiance of the direction of this court made in the earlier writ petition as confirmed by the Hon'ble Division Bench in the writ appeal to consider the selection of the petitioners for the post if they are otherwise qualified at the first instance that too within the time specified in the order. 4. It is seriously argued by the learned counsel for the petitioners that in the event of the transfer order being given effect to and the petitioners being repatriated to the traffic department which is the parent department the writ petitioners are likely to lose their claim for being considered for the post of legal assistants and the impugned order is thus grossly vitiated by bias and malafide. 5. Per contra, the learned standing counsel for the Chennai Port Trust would attempt to defend the validity of the impugned order on the ground that transfer of the petitioners from secretary to traffic department is only routine transfer for administrative reasons and in compliance with the official instructions contained in the relevant circulars not to keep any of the employee beyond three years in a particular place. It is further contended by the learned standing counsel for the respondent that they are ready and willing to consider the claim of the petitioners at the appropriate time as and when the process of filling up of the post of legal assistant is taken up. https://hcservices.ecourts.gov.in/hcservices/ 6. I have considered the rival submissions made on both sides. 7. The facts that the petitioners 1 & 2 were originally appointed in traffic department and traffic department is for all practical purposes their parent department and the transfer of the petitioners from parent department to secretary's/general administration department was made after calling for willingness of the all staff from other departments and the petitioners after expressing their willingness were transferred to legal section are not denied. The circumstances under which the employees from other department are transferred to legal section and the condition subject to which the transfer is made are explained in the circular dated 30.09.2004 and the transfer order dated 19.03.2005 enclosed at pages 1 to 3 of the typed set of papers. The reading of the circular reveals that there was need to strengthen legal section with the staff with legal qualification with their willingness to work in the legal section on working arrangement and the petitioners herein are two of the staff in the traffic department who expressed their willingness to work in the legal department and they were transferred to the legal section along with their post, pay and seniority subject to certain conditions one among which is that this working arrangement is not a promotional avenue and they will be reverted to parent department at 24hrs notice. 8. As already referred to, the respondent called for applications from the staff of the port trust for filling up of one post in the category of legal assistant as per circular dated 07.10.2006. The method of selection for the post of legal assistant is annexed with the order dt.7.10.2006 enclosed at page 7 of the typed set of papers as per which the mode of appointment is by direct recruitment and by departmental promotion and the qualification prescribed is degree in law and three years experience in legal establishment and clause 4(b) of the selection method further says that preference will be given to port employee in secretary's department at the first instance and the staff from other departments come next in the priority under both sources of appointment. 9. The petitioners 1 and 2 applied for the post as legal department staff and the petitioners along with few others were called for interview and while the petitioners were awaiting either of their selection against one vacancy notified and in respect of which applications are called for, the respondent selected two staff from other department by names B.V.Giridharan and R.A.Rameshkumar and their selection as legal assistants was upon one existing vacancy and adhoc upon the post which is already abolished and is yet to be revived and the same compelled the petitioners along with two other unsuccessful candidates to file WP.No.49307/2006. Our High Court by order dt.09.09.2008 upheld the claim of the petitioners and allowed the writ petition thereby setting aside the selection of other two staff. The order of the learned single Judge is challenged by separate appeals by the two provisional appointees and by the department and all the writ appeals were by common order dated 22.04.2010 dismissed, thereby confirming the order of the learned single Judge. Both the orders https://hcservices.ecourts.gov.in/hcservices/ dated 09.09.2008 and 24.02.2010 are enclosed at pages 9 to 23 of the typed set of papers. The reading of the relevant portion of the orders will reveal that the learned single judge has held the selection of the other two staff as bad and invalid in law and set it aside mainly on the ground that the petitioners, who are on the secretary's department are not given priority which is in deviation from the prescribed selection process. The learned single Judge while doing so is pleased to observe that the claim of the petitioners for selection to the post be considered at the first instance mainly by considering the fact that they are employed in the secretary's department and to select them if they are otherwise qualified for the same, within six weeks from the date of receipt of the copy of the order. 10. The order passed by the learned single judge is confirmed in the writ appeal on the same ground that the selection made by bypassing the claim of the petitioners is erroneous. The Hon'ble Division Bench has while confirming the order of the learned single judge discussed in detail as to what is the mode of selection and how the qualified candidate in secretary's department are to be given priority and as to how there is a clear deviation in the selection norms in the matter of selection of candidates from other department for more than one post to which the applications are invited. The observations of the Hon'ble Division Bench which is relevant for deciding the issue in hand are made in paragraphs 14 to 18 and 28. It is very clearly observed by the Hon'ble Division Bench of our High Court, that the conjoint reading of recruitment rules would make it clear that priority should be given to those who are employed in secretary's department and then only the staff of other departments would be considered and the appellant Port Trust was not justified in deviating from the rule by calling and selecting the candidates from other department without first considering the candidates in the secretary's department and when the petitioners and two others who were in the secretary's department have been called for only in the event of their being not found fit for selection, the candidates from other department should have been considered for the selection. It is further specifically observed in paragraph 28 that the department has no satisfactory explanation as to why the department has deviated from the recruitment rule by not giving preference to the members of the secretary's department. 11. As rightly argued by the learned counsel for the petitioner both the learned single Judge and Hon'ble Division Bench have considered their claim for selection to the post of legal assistants only by considering the factum of their being employed in the secretary's department and the same reasoning weighed more in directing the respondent to consider them for appointment to the vacancy advertised for. 12. It is not in dispute that the neither the department nor other two candidates did choose to question the correctness of the order passed by the Hon'ble Division Bench confirming the order of learned single judge by way of further appeal to apex court. That being so the order of the learned single judge as confirmed by the Hon'ble Division Bench has now become final and binding on all the https://hcservices.ecourts.gov.in/hcservices/ parties concerned. In that event, the respondent department has no other option but to comply with the direction of the learned single judge which remains uninterefered with by the Hon'ble Division Bench to the effect that the claim of the writ petitioners for selection to the existing single vacancy in the post of legal assistant be considered within the time specified in the writ petition. 13. It is not in dispute that though the learned Single Judge and the Division Bench have disposed of the writ petition and writ appeal by orders dated 09.09.2008 and 24.02.2010 respectively and though the time specified to comply with the direction expired long back, the respondent has not taken any effort to fill up the vacancy from and among the petitioners 1 to 4 in the earlier writ petition two among who are the writ petitioners herein. But the respondent department, while in pursuance of the order made in the earlier writ proceedings sending back other two staff to marine department which is their parent department, has on the same day passed the impugned order transferring the petitioners herein to traffic department which is now challenged herein as tainted with malafide and arbitrariness. 14. In my considered view, the grounds based on which is the impugned order of transfer lacks merit and deserve no acceptance for the following reasons. The learned single Judge directed the respondent to consider the petitioners for their appointment as legal assistant only because of their posting in legal section. It cannot be disputed that only so long as the petitioners remain in legal section they are entitled to claim priority and in the event of their being transferred to other department out of legal section such right to claim priority will be lost. Any amount of explanation given on the side of the respondent that their claim will be considered at the time of selection will be of no assistance to them. The respondent department is also fully aware of the situation and despite the same the impugned order came to be passed transferring the petitioners to other department. The same is, as rightly argued by the learned counsel for the petitioners only to circumvent the observation of this court made in the earlier writ petition. The respondent has not only failed to take any efforts to comply with the direction issued in the earlier writ petition but also sought to give an explanation as if the selection process can be taken up only after obtaining approval from the concerned ministry and the same is in the process and is likely to incur reasonable delay. This court is not inclined to accept such contention raised on the side of the respondent. 15. It is note worthy to mention at this stage that the applications called for during 2006 is to fill up one post, whereas the appointment was made for two posts one of which was already abolished but not revived that too for the purpose of accommodating two persons from marine department. It is clearly discussed so by the Hon'ble Division Bench of our High Court while disposing of the writ appeals. As rightly pointed out by the learned counsel for the petitioners the permission or approval from the ministry concerned is required only for reviving of the post which was already abolished and for making recruitment in https://hcservices.ecourts.gov.in/hcservices/ accordance with the procedure for the post so revived. As far as the post for which the advertisement is called for, the selection process is in the mid way and what is set aside in the earlier writ petition is only the appointment of staff from other department and not the entire selection process. What is held to be against the selection procedure is the selection in respect of the post which was abolished and revived with further direction to make proper selection for filling up the post in the event of same being revived in accordance with the recruitment rules. 16. If that is so, the approval is required only in respect of the second post and not for the existing vacancy. Though it is repeatedly represented by the learned counsel for the respondent that the transfer is routine transfer and office instructions are in force not to retain any staff for more than three years in the same department and not withstanding their transfer to other department they will be duly considered to the post of legal assistant as and when the selection is made, this courts does not find any bonafide in the same. The action of the respondents in transferring the petitioners is as rightly argued by learned counsel for the petitioners, not only contrary to High Court direction but it is likely to deprive them of the benefit of the earlier order of our High Court. The perusal of the documents produced on the side of the respondent would further reveal that there are other employees who are allowed to continue in the same department for more than five years, as such the explanation sought to be offered for the transfer of the petitioners that too on the same day on which the other two staff whose selection was set aside by the High Court are reverted back to their parent department is certainly unfair, arbitrary, unreasonable, irregular, improper, malafide and with ulterior motive and to some extent discriminatory in nature and cannot be enforced against the petitioners. The respondent is bound to proceed with the earlier selection to the vacancy advertised for from the stage at which it is set aside by giving priority to the petitioners and other two petitioners in the earlier writ petition within the reasonable time and till the selection process is over the petitioners are to be necessarily retained in the legal section of the secretary's department and for the said purpose the impugned order of transfer is to be necessarily set aside. 17. Further, the facts made available herein reveal that the Impugned order of transfer and relieving order were passed on 24.06.2010 and the present writ petition was filed on 30.6.10 along with MP.1 of 2010 and impugned order of transfer was stayed by this court on 02.07.2010. In the mean while the petitioners after forwarding leave letters to their parent department went on medical leave. The petitioners attempts to rejoin duty in legal section in the secretary's department on the strength of interim order of stay was of no vain. The respondent was not ready to reinstate them in the legal section of the secretary's department and the petitioners are kept away from their work not due to any fault on their part. The facts that the petitioners did not join the traffic department and also applied for Medical Leave is also evident from the letter dated 06.07.2010 issued by the traffic department. The particulars contained in the same would reveal the that relieving order was https://hcservices.ecourts.gov.in/hcservices/ issued on 24.06.2010 and posting order dated 24.06.2010 was despatched on 25.06.2010 and the employee did not report for duty on 25.06.2010 but applied medical leave and the office of the parent department received leave letters on medical ground from 25.06.2010 onwards. 18. That being so, by virtue of interim stay order, the petitioners are deemed to be continuing in the legal section in secretary's department and the respondent is to be hence directed to treat the period of the petitioners absence from 25.06.2010 till date as on duty in legal section in secretary's department with further direction to complete the selection process within reasonable time as specified herein. 19. In the result, the impugned order dated 24.6.2010 passed by the respondent is hereby set aside and the respondent is consequently directed to complete the selection process for single vacancy already advertised in the circular dated 7.10.2006 as per the direction of this Court dated 09.09.2008 made in W.A.No.49307 of 2006 as confirmed in the order dated 22.04.2010 in W.A.Nos.1218 and 1403 of 2008 and 392 of 2010 from and among the four petitioners in W.P.No.49307 of 2006 within eight weeks from the date of receipt of the copy of this order. 20. The writ petition is ordered accordingly. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsh To The Secretary, Chennai Port Trust, Chennai. 2 ccs To Mr.K.Bijaisundar, Advocate, SR.68478 1 cc To Mr.V.Thilaippan, Advocate, SR.68407 WP.No.14253 of 2010 NSM(CO) sra 25/10/2010 https://hcservices.ecourts.gov.in/hcservices/