Madrasdated High Court · 2007

For Petitioners : Mr.R.Yashod Vardhan, Senior counsel, for Mr.K.Kannan.For Respondents : Mrs.Geetha, Govt. Advocate, for R1. Mr.R.Swaminathan, for R2 & R3 & for R4 to R8. ORDERThis Writ Petition has been filed under Article 226 of theConstitution of India seeking to issue a writ of Certiorarified Mandamuscalling for the records of the 3rd respondent relating to the communicationin proceedings Na.Ka.A1/1086/90 dated 12.3.1994 along with the senioritylist and quash the same and to issue Mandamus directing respondents 2 and3 to follow the seniority list prepared and published in proceedingsNa.Ka.A1/1086/90 dated 19.8.92.2.The writ petition has been filed to quash the impugned senioritylist by the writ petitioners who were appointed as Assistants by way ofdirect recruitment. Their grievance is that respondents 4 to 8 hereinwere not even qualified to be working as Assistants at a time when thepetitioners joined duty as Assistants by way of direct recruitment. Butby the impugned seniority list, respondents 4 to 8 were shown as seniorsto the writ petitioners and the impugned seniority list has also proposedtwo categories of Assistants namely, (1)persons who has been in serviceright from the beginning and (2)the persons who have been fully qualifiedand the impugned seniority list sought to follow a ratio of 1:1 among thetwo categories of persons for promotion to the post of next categorynamely, Superintendent.3.The facts are not in dispute. The 1st and 2nd petitioners joined thepost of Assistant by way of direct recruitment in the year 1983 andpetitioners 3 and 4 joined the post of Assistant by way of directrecruitment in the year 1985. They were all appointed by the newly formedTamil University, Thanjavur, which was established on 15.9.1981 and thestatute of the University came into effect on 28.5.83.4.Prior to coming into force of the Statute, i.e., before 28.5.1983,the University appointed 6 Junior Assistants and two Stenographers. Whenthe direct recruitment was made for the post of Assistants after theregulation came into effect, the University gave an option for the persons https://hcservices.ecourts.gov.in/hcservices/ who were appointed as Junior Assistants in the year 1982 to be aconditional temporary Assistant or Junior Assistant subject to thecondition that they should themselves get qualified within the specifiedtime and if they did not acquire the qualification within the time, theywould be reverted as Junior Assistants. The persons who opted for such aconditional appointment of temporary Assistant also gave their consent inwriting and agreed to abide by the said condition. 6 Junior Assistantswho were originally appointed in the year 1982 opted for the conditionalappointment as temporary Assistant. Out of them only two persons, namely(1) Thiru A.Kalaimani and (2) Tmt.V.Kosalai qualified themselves and theother persons who did not qualify themselves were reverted. The Syndicateapproved the resolution on 25.7.86 to revert the persons who did notfulfil the conditions.5.On 19.12.1986, the Syndicate of the University passed a resolutionrelaxing the qualifications of the 4 temporary Assistants who werereverted as they did not fulfil the conditions to enable them to becomeAssistants. Thus all the 6 Junior Assistants who were appointed in theyear 1982 were promoted as Assistants.6.Problems arose when the University wanted to prepare a senioritylist for the Assistants and therefore the 3rd respondent/Registrar of theuniversity asked the opinion of the 1st respondent-Government. The 1strespondent replied that full membership can be conferred only after therelaxation orders were issued and the direct recruits could take theirseniority on the date of joining. Thereafter the 3rd respondent publisheda seniority list of the Assistants dated 19.8.1992 in which the 1stpetitioner was ranked as No.1, the 2nd petitioner was ranked as No.2 andthe 3rd petitioner as No.10 and the 4th petitioner as No.7. The respondents4 to 8 herein were placed at No.14,15,16,13 and 17 respectively. Thus allthe petitioners were shown as seniors to respondents 4 to 8 herein. Onthe basis of the seniority list dated 19.8.92 petitioners 1 and 2 werecalled for an interview for the next post of Superintendents and they werealso selected along with other 3 persons based on merit and seniority.7.While so, the impugned seniority list was issued by the 3rdrespondent after giving a go-by to the seniority list published on19.8.1992. A number of objections were raised by the petitioners for theimpugned seniority list but they were all rejected by the 3rd respondent byrecommending two types of categories in the impugned seniority listnamely, one for the persons working since 1982 and another for the personswho are fully qualified for the post of Assistants. Challenging theseniority list dated 12.3.1994 the above writ petition has been filed bythe writ petitioners. https://hcservices.ecourts.gov.in/hcservices/

8.A counter affidavit has been filed by the 3rd respondent/Registrarof the University wherein it was stated that with a view to enable the 6Junior Assistants and 2 Stenographers who were appointed at the inceptionitself in the year 1982, the Syndicate passed a resolution dated4.7.1983, relaxing the conditions as to the qualifications of theunqualified persons for the post of Assistants subject to their acquiringthe requisite qualifications within a period of 3 years. It is admittedin the counter that only two of the persons so appointed had acquired therequisite qualifications within the stipulated period and others werereverted to the post of Junior Assistants. On 19.12.86, the Syndicatepassed a resolution to regularise the services of the temporary Assistantsfrom the date of the temporary appointments and the qualifications for theappointments for the post of Assistants were relaxed retrospectively. Itis further stated by the 3rd respondent that the seniority list publishedon 19.8.92 was not in order and the same was published by the thenRegistrar without the approval of the Syndicate. Therefore it was decidedto appoint a 4 member committee for the first time to draw a senioritylist on some rational basis. The Committee so appointed recommended aformula which was placed before the Syndicate on 9.9.93. After callingfor representations and objections from the persons concerned it wasplaced before the Syndicate on 4.2.94. The Syndicate appointed a sub-committee consisting of 3 Syndicate members to go into the various aspectsof representations and objections. The Sub-Committee considered thematter on 10.2.94 and the list so approved was published by the 3rdrespondent on 12.3.94. The Syndicate had also approved the action in thisregard on 29.3.94. In such circumstances, according to the 3rd respondent,the seniority list which was prepared on the basis of the recommendationsof the Committee cannot be described as illegal and arbitrary.9.The petitioners filed a reply affidavit to the counter filed by the3rd respondent reiterating their earlier contentions.10.Initially the writ petition was filed against the State Governmentand the University alone and thereafter respondents 4 to 8 were impleadedas per order dated 5.3.2002 in WPMP No.22496/1995. The 6th respondent hasfiled a counter affidavit on behalf of respondents 4 to 8. It is theircontention that their services were regularised with effect from 4.7.83 asper the decision of the Syndicate on 19.12.86. Thereafter, orders werepassed on 24.3.87 for pay fixation with effect from 4.7.83. They contendthat when the petitioners have not challenged their regularisation asAssistants with effect from 4.7.83, they could not challenge the impugnedseniority list. According to respondents 4 to 8, they were appointed as https://hcservices.ecourts.gov.in/hcservices/ Assistants with effect from 4.7.83, whereas the writ petitioners wereappointed as Assistants at a later point of time. Therefore the senioritylist dated 19.5.92 was rightly revoked and the new seniority list has beenproperly issued on the basis of the recommendations of the Committee.11.Heard Mr.R.Yashodvardan, the learned Senior counsel for the writpetitioners and the learned counsel for the University who also appearedon behalf of respondents 4 to 8 and Mrs.Geetha, learned GovernmentAdvocate for 1st respondent. I have also perused the documents filed andthe judgments referred to in support of their submissions.12.The learned Senior counsel for the writ petitioners submitted thata peculiar situation has been created by the misdeed of the University byissuing the impugned seniority list according to which, the persons whodid not even have the qualifications to be appointed as Assistants wereshown as seniors to the writ petitioners at a time when the writpetitioners who were fully qualified were directly appointed to the postof Assistants. The learned Senior counsel submitted that when theunqualified persons were temporarily promoted as Assistants withconditions, only 2 out of 6 complied with the conditions and the remaining4 persons did not do so. Therefore they were rightly reverted to the postof Junior Assistants. Thereafter the qualifications were relaxed and theservices of all the 6 persons were regularised with effect from 4.7.83,which itself is illegal and unknown to service jurisprudence. However thelearned Senior Counsel confined his submissions only to fixation ofseniority by contending that the seniority of 2 persons who complied withthe conditions should be fixed on the date when they obtained thenecessary qualifications and the seniority of others should be fixed fromthe date i.e., on 19.12.86 when decision was taken to regularise theirservices with effect from 4.7.83 in the post of Assistants after relaxingthe requisite qualifications. The learned Senior Counsel relied on thedecision of the Hon'ble Supreme court reported in AIR 1986 S.C.1859(Shitala Prasad v. State of U.P.) to submit that till the relaxation inthe requisite qualifications was granted, the unqualified persons couldnot be even considered as an Assistant and such persons cannot claimseniority over the writ petitioners who possessed the requisitequalifications on the day when they joined the duty itself. He relied onanother decision of the Supreme Court reported in AIR 2004 S.C. 3460(Sanjay K.Sinha-II v. State of Bihar) to submit that while appointmentscould be regularised, the regularised appointees could not steal a marchover the regularly appointed persons with full qualifications. Thelearned Senior counsel further relied on the decision of the Supreme Courtreported in JT 2006(6)SC 190 (K.Malaimuthu & Anr., v. Stat of Tamil Nadu & https://hcservices.ecourts.gov.in/hcservices/ Ors.) to urge that when a person is regularised with retrospective effect,the seniority should not be taken from the date of initial appointment andthe seniority is to be decided from the date on which his services wereregularised.13.Per contra, the learned counsel appearing for the University aswell as respondents 4 to 8 submitted that the act of the Syndicate on19.12.1986 was only to undo the injustice caused to respondents 4 to 8 andhaving not challenged the same, the writ petitioners could not challengethe seniority list now. The learned counsel further submitted that as thelist has been drawn on the basis of the recommendations of the expertcommittees, the same could not be easily interfered with.14.In reply, the learned Senior counsel submitted that they areaggrieved only against the fixation of the seniority as per the senioritylist which is impugned and relying on the decision of the Supreme courtreported in AIR 2004 S.C. 746(Pramod K.Pankaj v. State of Bihar) submittedthat when the objections raised after the final list was published, thesame could not be rejected as time barred.15.I have considered the rival submissions carefully with regard tofacts and citations. 16.The following facts are undisputed and in fact admitted by all theparties.17.The University was established on 15.9.1981 and the statute wasgiven the Governor's assent on 8.3.1982 and the same was published in thegazette on 9.3.1982. On 19.3.82, a list was drawn from the EmploymentExchange for appointing 6 Junior Assistants and 2 Stenographers and theywere appointed on 22.3.82. The statute of the University came into forceon 28.5.83.18.On 2.6.1983 selection for the post of Assistant by directrecruitment was made by the University and the 1st petitioner joined asAssistant on 22.9.83. The 2nd petitioner joined the very same post on9.11.83. It is also an admitted fact that petitioners 3 and 4 joined theservice as Assistant in April 1985.19.On 4.7.1983 the above said Junior Assistants were made asAssistants as per Syndicate decision on condition that they should acquirethe qualifications prescribed for the post of Assistant within 3 years or https://hcservices.ecourts.gov.in/hcservices/ else they would be reverted to the post of Junior Assistant. Only two ofthe Junior Assistants out of the 6 who were conditionally promoted on4.7.83 acquired the qualification and on 8.1.85 one of the two acquiredthe qualification and on 4.5.85 the second person acquired thequalification. Thereafter these two persons were regularised in the postof Assistant with effect from 4.7.83. On 31.7.86, the remaining 4 JuniorAssistants who were promoted conditionally on 4.7.83 were reverted to thepost of Junior Assistants by the Syndicate as they failed to acquire thequalifications within the 3 year period. But on 19.12.86 Syndicate passedresolution relaxing the qualification and regularised the services of 4persons who were reverted to the post of Junior Assistant on 31.7.86 witheffect from 4.7.83 in the post of Assistants. 20.By letter dated 29.1.1991 the Registrar of the Universityrequested the Secretary of the Education Department to advise theUniversity with regard to fixation of inter se seniority of the Assistantsappointed by direct recruitments, the Assistants who were conditionallypromoted, and who subsequently complied with the conditions and theAssistants for whom the qualification was relaxed. To this letter dated29.1.91, the Secretary, Education Department sent a reply stating thatfull membership can be conferred only after relaxation orders are issuedwith reference to merits of each case and therefore the Stenotypist wouldbecome eligible for seniority only after relaxation orders are issued.The Secretary further replied that there are direct recruits joined theservices as a full-fledged members and therefore they can take theseniority on the date of their joining. Thereafter the Universitypublished a seniority list on 19.8.92 in which the petitioners 1 to 4 wereshown in Sl.Nos.1,2,10 and 7 respectively. The respondents 4 to 8 hereinwere shown in Sl.No.14,15,16, 13 and 17 respectively. Thus all thepetitioners herein were shown as seniors to respondents 4 to 8 herein.21.It is the case of the University that the seniority list publishedon 19.8.1982 was published without properly considering the objections ofthe persons affected and the same was published without the approval ofthe Syndicate. Therefore a four-member group was set up on 24.12.92 andtheir recommendations were placed before the Syndicate on 9.9.93. On4.2.94 the Syndicate appointed a sub-committee to consider therecommendations and the objections received to arrive at a solution. On12.3.94 a new seniority list was published by the University on the basisof the recommendations of the sub-committee and this new list altered theseniority already fixed by the list dated 19.8.92. The new list has alsoprescribed a ratio of 1:1 between the qualified and unqualifiedcandidates. In the new list, which is impugned in the writ petition, https://hcservices.ecourts.gov.in/hcservices/ petitioners 1 to 4 were shown at Sl.Nos.3,4,11 and 7 respectively underthe heading fully qualified persons. The respondents 4 to 8 were shown asSl.Nos.1 to 5 under the heading candidates who have been serving rightfrom the beginning. 22.In the light of the above, the only question that arises forconsideration is whether the respondent-university has correctly fixed theinter se seniority of the persons working as Assistants in the impugnedlist by scrapping the earlier list dated 19.8.1992.23.The respondents 4 to 8 herein along with other two persons wereoriginally appointed to the post of Junior Assistants that too before theUniversity statute came into force. As per the University statute therewas no post of Junior Assistant and it is an admitted position that theseJunior Assistants did not have the qualification prescribed by theUniversity for the post of Assistant. The petitioners 1 and 2 wereappointed as Assistants by direct recruitment on the basis of the serviceregulations and it is an admitted position that they are all fullyqualified persons. The 1st petitioner joined as Assistant on 22.9.83, the2nd petitioner on 9.11.83 and they have been working in the capacity withthe requisite qualifications. Prior to their appointments by directrecruitment, on 4.7.83, the University conditionally promoted the 6 JuniorAssistants with a condition that they should acquire the requisitequalification within 3 years, failing which they will be reverted to thepost of Junior Assistants.24.Even though the Junior Assistants were conditionally promoted on4.7.83 itself, they worked on and from that date as Assistants withouthaving the requisite qualification, that too, not in a regular service.Whereas petitioners 1 and 2 were working as Assistants in a regularservice with the requisite qualifications on and from 22.9.83 and 9.11.83respectively. Therefore the services rendered by the petitioners are withthe requisite qualifications as per the statute of the University, whilethe services rendered by the 6 Junior Assistants, who were conditionallypromoted on 4.7.83, are without the requisite qualification and in factthey were not at all considered to be Assistants as per the universitystatute during that period. In such circumstances, it is unfair toconsider the unqualified persons as seniors to the persons who wereregularly appointed with the requisite qualifications as per the statuteof the University. 25.It is true that two of the Junior Assistants who were promotedtemporarily acquired the requisite qualifications in the year 1985 andtheir services were regularised with effect from 4.7.83. But it does not https://hcservices.ecourts.gov.in/hcservices/ mean that they can steal a march over the regularly appointed and fullyqualified Assistants. Further, with regard to the other persons, who wereconditionally appointed as Assistants, they were in fact reverted to thepost of Junior Assistants on 31.7.86 by the Syndicate as they did notcomply with the conditions of acquiring the requisite qualificationswithin a period of 3 years. They continued in the reverted post till19.12.86 on which date the Syndicate passed a resolution relaxing thequalifications and regularising them in the services of Assistant witheffect from 4.7.83. The respondents 4 to 7 herein were such of thosepersons who were conditionally promoted and thereafter reverted andfurther regularised as Assistants with effect from 4.7.83 by relaxing therequisite qualification. In such circumstances, it is also unfair totreat these people as seniors in the post of Assistants against thepersons who were regularly appointed to the post of Assistants as per thestatute much before respondents 4 to 7 were regularised.26.Therefore I find that the grievance of the writ petitioners asgenuine and well-founded and I am of the considered view that impugnedseniority did not fix the inter se seniority list properly as per thesettled principles of service jurisprudence.27.A perusal of the impugned seniority list would reveal that it hastwo categories of Assistants, namely (1)those who were in service beforethe University statute came into force, who did not have the requisitequalification and (2)those who are fully qualified persons. The writpetitioners 1 and 2 are shown as juniors to 2 of the Assistants who wereconditionally promoted as Assistants and who did not have the requisitequalifications during the relevant time. They acquired the qualificationmuch later, i.e., only in 1985, whereas the writ petitioners 1 and 2 weredirectly recruited to the post of Assistant in the year 1983 itself in duecompliance with the provisions of the statute. Therefore the fixation ofseniority of the Assistants in the category of fully qualified persons isnot correct and the same is to the detriment of the writ petitioners 1 and2.28.It is also not in dispute that the statute is silent with regardto fixation of inter-se seniority and that is why the then Registrarsought the advice of the Government/1st respondent by letter dated29.1.1991 by pointing out that on matters not specified in the servicestatute of the University, such rules governing the service of Tamil NaduGovernment shall apply unless otherwise decided by the Syndicate. On thebasis of the clarification given by the 1st respondent in his letter dated20.12.91, a seniority list was published on 19.8.92 duly showing thepetitioners as seniors to respondents 4 to 8 herein. https://hcservices.ecourts.gov.in/hcservices/

29.But the impugned seniority list now classified two categories ofAssistants and in the unqualified category, respondents 4 to 8 were placedin the first five positions. Further, a ratio of 1:1 is fixed betweenthese two categories which means the first petitioner was shown in Sl.No.3under the fully qualified category, for all practical purposes he would bein Sl.No.6 and the 2nd petitioner who was in Sl.No.4 in the qualifiedcategory would actually be in seniority No.8 for all practical purposes,resulting in some of the unqualified persons for whom the qualificationwas relaxed would get seniority over the fully qualified directlyrecruited persons. Therefore the impugned seniority list has beenpublished much to the detriment of the fully qualified and directlyrecruited persons which cannot be permitted under the servicejurisprudence. The endeavour and emphasis on the part of the Universityseems to be to consider sympathetically the persons who were appointedprior to the formation of the University as Junior Assistants at the costof directly recruited Assistants in terms of the statute of theUniversity. While the court cannot object to the sympatheticconsideration of the University shown to the Junior Assistants inregularising services in the promoted post of Assistant, the court cannot,certainly, permit injustice being caused to the regularly and directlyappointed Assistants on the basis of the statute of the University.30.In AIR 1986 S.C. 1859 (cited supra), the Hon'ble Supreme courtheld that till the exemption is granted, the person is not qualified to beappointed as he would be lacking in the basic qualification for beingappointed. Until exemption is granted, the person was not considered tobe as the person he was and the disqualification would be removed onlywhen the exemption is granted. Such persons could claim seniority overthe other persons who possessed the requisite qualifications and becameregularly and lawfully appointed to the post much prior to the unqualifiedpersons. The relevant portion reads as under:"7.Thus it is clear that the Board was not inclined togrant the exemption to the appellant and had insistedon the appellant securing the requisite qualificationby appearing in an examination, from an appropriateinstitution. The Board was disinclined to grant therequest till late 1962. When this is the factualposition, how can the appellant contend that the Boardmust be deemed to have granted the exemption from thedate of his application i.e., November 4, 1960? inthis factual backdrop it is futile to contend that theBoard had granted exemption with retrospective effect https://hcservices.ecourts.gov.in/hcservices/ or that the exemption must relate back to the date ofthe making of the application. Besides, the languageof S.16E of the Act does not admit of the constructioncanvassed on behalf of the appellant viz., that theBoard can grant exemption with retrospective effect.It is in terms provided that the exemption may begranted by the Board only after considering the reportof the Director having regard to the experience,education and other attainments of the person sought tobe appointed. It would be reasonable to construe thesection as enabling the Board to exercise the power togrant exemption prospectively after considering thereport and taking into account the relevantcircumstances which would by the very nature of thingsbe with prospective effect and not with retrospectiveeffect. To accede to the construction canvassed onbehalf of the appellant would be to hold that anyunqualified person can be appointed even without theminimum qualification subject to post facto exemptionbeing granted. Till the exemption is granted theperson is not qualified to be appointed. In otherwords he would be lacking in the basic qualificationfor being appointed. This deficiency cannot be madegood with retroactive exemption unless the provisionitself expressly or by necessary implicationcontemplates such a course of action. S.16-E does notsatisfy this test. Thus it would appear thatretrospective exemption could not have been granted andin point of fact was not granted in the present case.Even otherwise, it is not sufficient to show thatretrospective exemption could have been granted. Itmust also be shown that retrospective exemption was infact granted. In the present case the factualbackground clearly shows that the Board had notgranted retrospective exemption. In fact the Board wasnot inclined to grant the exemption at all and wasinsisting that the appellant should obtain therequisite qualification. And the Board finally made upits mind to grant exemption only on July23, 1963.Unless the view is taken that whenever exemption isgranted it must be treated as having been granted withretrospective effect, if there is such power, the https://hcservices.ecourts.gov.in/hcservices/ appellant cannot succeed. There is no warrant in lawor logic for taking such a view. The High court wastherefore properly justified in repelling thecontention urged on behalf of the appellant and indismissing the Writ Petition.8.There is also one more dimension of the matter.Though the appellant was working as a lecturer, it wasnot under any authority of law for there is noprovision which empower the college to allow anyunqualified person to teach or to appoint him as suchin anticipation of his disqualification being removedin future. Till the exemption was granted appellant wasnot even a teacher in the eye of law though he wasallowed to teach by the indulgence of the collegeauthorities. The disqualification was removed only onJuly 23, 1963 when the Board granted the exemption .How could he have claimed seniority vis-a-visrespondent Nos.5 and 6 who possessed the requisitequalification; and became regularly and lawfullyappointed teachers much prior thereto? 9.An employee must belong to the same streambefore he can claim seniority vis-a-vis others. Onewho belongs to the stream of lawfully and regularlyappointed employee does not have to contend with thosewho never belonged to that stream, they having beenappointed in an irregular manner. Those who have beenirregularly appointed belong to a different stream,andcannot claim seniority vis-a-vis those who have beenregularly and properly appointed, till theirappointments became regular or are regularized by theappointing authority as a result of which their streamjoins the regular stream. At that point of confluencewith the regular stream, from the point of time theyjoin the stream by virtue of the regularisation, theycan claim seniority vis-a-vis those who join the samestream later. The late comers to the regular streamcannot steal a march over the early arrivals in theregular queue. On principle the appellant cannottherefore succeed. What is more in matters ofseniority the Court does not exercise jurisdiction akin https://hcservices.ecourts.gov.in/hcservices/ to appellate jurisdiction against the determination bythe competent authority so long as the competentauthority has acted bona fide and acted on principlesof fairness and fairplay. In a matter where there isno rule or regulation governing the situation or wherethere is one, but is not violated, the Court will notoverturn the determination unless it would be unfairnot to do so. In any view of the matter the appellantwho did not even belong to the stream of regularly (hewas allowed to teach only in an irregular andunauthorized manner) and lawfully appointed lecturerscannot claim seniority against any one already in thestream before he joined the stream himself. The viewtaken by the High court is unexceptionable."31.In AIR 2004 SC 3460 (cited supra), the Hon'ble Supreme Court heldthat appointments made contrary to the rules do not confer benefit ofseniority on such appointees over and above the substantive appointees tothe service.32.In JT 2006(6) SC 190(cited supra) the Hon'ble Supreme court heldthat on the strength of the order giving retrospective effect to theregularisation of the promotees, they could not be placed in the senioritylist over and above the appointees who are appointed by directrecruitment, as until the appointment is regularised, the appointeescannot be said to be in service. The relevant portion reads as under:"24.On a consideration on the submissions made onbehalf of the respective parties and the decisionscited on their behalf, the consistent view appears tobe the one canvassed on behalf of the appellants, thedecisions cited by Mr.Rao have been rendered in thecontext of Rule 10(a)(i)(1) and the other relevantrules which are also applicable to the facts of theinstant case. Apart from the above, the law is wellestablished that initial appointment to a post withoutrecourse to the rules of recruitment is not anappointment to a service as contemplated under Rule 2(1) of the General Rules, notwithstanding the fact thatsuch appointee is called upon to perform duties of a https://hcservices.ecourts.gov.in/hcservices/ post borne on the cadre of such service. In fact,Rule 39(c) of the General Rules indicate that a persontemporarily promoted in terms of Rule 39(a) is requiredto be replaced as soon as possible by a member of theservice who is entitled to the promotion under therules. It stands to reason that a person who isappointed temporarily to discharge the functions in aparticular post without recourse to the recruitmentrules, cannot be said to be in service till such timeas his appointment is regularized. It, therefore,follows that it is only from the date on which hisservices are regularized that such appointee can counthis seniority in the cadre.25.In the instant case the authorities, on thestrength of the several Government Orders givingretrospective effect to the regularisation of thepromotees, have taken the date of initial appointmentof such promotees as the starting point of theirseniority. In our view, such a course of action waserroneous and contrary to the well establishedprinciples relating to determination of seniority. Inour view, the High court took an erroneous view in thematter in applying Rule 4 of the General Rules andholding that the period during which the promotees hadinitially discharged the duties of District Registrars,though appointed temporarily under Rule 10(a)(i)(1),was to be counted for determining their seniority. Thedecision of this court in the case of L.ChanderkishoreSingh (supra) relied on by Shri Venkataramani, did notinvolve the question of persons appointed outside theservice as a stop-gap arrangement. The fact situationof the said decision is different from the factsituation of the instant case which finds support fromthe decisions cited by Mr.Rao.26.We, therefore, set aside the order passed bythe High court and direct the concerned respondents toredetermine the seniority of the appellants in relationto the promotees after reckoning the starting point ofseniority of such promotees from the date on which https://hcservices.ecourts.gov.in/hcservices/ their services were regularised and not from the dateof their initial appointment under Rule 10(a)(i)(1) ofthe General Rules."33.In the light of the judgments of the apex court also the impugnedseniority list would not stand the scrutiny of law as it sought to giveseniority to unqualified persons who were conditionally and temporarilypromoted to the post of Assistants over and above the regularly anddirectly appointed Assistants.34.But the learned counsel for the University and the respondents 4to 8 seriously contended that having not challenged the orders of theUniversity, regularising the services of the Junior Assistants with effectfrom 4.7.83 and relaxing the necessary qualification for the unsuccessfulJunior Assistants, it is not open to the writ petitioners to challenge theseniority list, that too, at a belated stage. 35.I am unable to accept the contention of the learned counsel forthe respondents. It is conceded by the learned Senior counsel for thewrit petitioners that they are not challenging the regularisation nor therelaxation given to the unqualified persons and the writ petitioners areaggrieved only by the inter-se seniority fixed by the University in theimpugned seniority list. Further as soon as the seniority list waspublished on 12.3.94, the writ petitioners approached this court on13.7.94 and in such circumstances, it cannot be contended that the writpetitioners approached court at a belated stage.36.In AIR 2004 SC 746 (cited supra) the Hon'ble Supreme Court held asfollows:"27.Submission of Mr.Pandey to the effect that theappellants had filed objections after a final gradationlist was published on 22.12.1992 cannot be accepted.If a gradation list was published by an authorityrelying on or on the basis of criteria which wasillegal, the seniority list issued pursuant thereto orin furtherance thereof must necessarily fall."37.Therefore, I do not find any merits in the contentions of therespondents that the writ petitioners are trying to unsettle the settledmatters. https://hcservices.ecourts.gov.in/hcservices/

38.In the result, the impugned seniority list is vitiated and thesame is set aside. Consequently the seniority list published on 19.8.92is restored.39.It is made very clear that this seniority list published on19.8.92 must be the basis for determining the seniority for the Assistantsfor their further promotion in their service. Even if some of the personsmove to further categories, during the pendency of the writ petition,their seniority is to be decided on the basis of the seniority listpublished on 19.8.92 for all purposes.40.Therefore the writ petition is allowed as prayed for. No costs.W.M.P.No.18385/1994 is closed. sks Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.State of Tamilnadu rep., by Secretary to Government Education Department Fort St.George, Madras 600 009.2.The Vice-Chancellor Tamil University Thanjavur 53.The Registrar (Incharge) Tamil University Thanjavur 5+ One cc to mr. K. Kannan Advocate SR 36657 + One cc to Mr. R. Swaminathan, Advocate sR 36566MBS (co)sg 5/7/07Pre-delivery order,W.P.12170/94. 21.6.07