R.Vijayakumar v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 13.02.2008CORAMTHE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANW.P.No.2012/2008 & M.P.No.1/20081.R.Vijayakumar2.P.Kumar3.K.S.Ravichandran..PetitionersVersus1.The State of Tamil Nadu rep.by its Secretary Revenue Department, Fort St.George, Chennai 600 009.2.Special Commissioner and Commissioner of Revenue Administration Chepauk, Chennai-5.3.The District Collector Nagapattinam District, Nagapattinam.4.G. Thirumavalavan5. T.Alagarsamy..RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for a writ of mandamus directing the respondents toconsider the representation dated 28.12.2007 before drawal of anypanel of persons fit for promotion for the post of DeputyTahsildar as per the statutory rules and that of Rule 22[d] ofthe General Rule forthwith.For Petitioners: Mr.L.ChandrakumarFor RR 1 to 3: Mr.P.Muthukumar,GAFor R4: Mr.M.S.PalanisamyORDERThe petitioners pray for a mandamus not to draw up the panelof persons fit for promotion until the representation dated28.12.2007 has been considered. But, it appears that therespondents have replied to the petitioners' representationstating that it is not correct to state that the reservedcategories have been filled up contrary to Rule 22[d] of theTamilnadu State and Subordinate Services [General] Rules. https://hcservices.ecourts.gov.in/hcservices/

2.Detailed submissions were made on by both sides. It isnecessary that the same is dealt with. The issue relating todrawing of panel for promotion as Deputy Tahsildars came up forconsideration in WP.Nos.20267/2004 and 13613/2005 and by orderdated 09.03.2007, this court held as follows:-"17.From a reading of the above rule and the lawlaid down by the Supreme Court, it is clear thatif the reserved candidates are not available, itis settled law that unless de-reservation isdone, the vacancy will not be thrown open to thegeneral category. It is not incumbent upon theGovernment as soon as the vacancy arises that itmust be filled by recruiting the candidateseither by direct recruitment or promotion fromfeeder cadre or by transfer. So, as and whenrecruitment takes place, the cases of all thecandidates including reserved candidates must beconsidered according to Rules which would ariseonly when recruitment takes place. The decisionof the Supreme Court, relied on by thepetitioners, is directly answering the pointsraised in these writ petitions. It is held thatthe recruitment year means the year in which therecruitment takes place, but not each threesuccessive years in which the vacancy exists andit is to be considered for appointment orpromotion. Therefore, in view of the settledlegal proposition, the order of the firstrespondent is not correct and it is exfacieillegal and therefore, in my opinion, the firstrespondent has not applied his mind to properlyappreciate the rules and to give a correctreasoning before cancelling the order of thesecond respondent. Therefore, there is a soundreason to interfere with the order of the firstrespondent. The order of the first respondentsuffers from legal infirmities being not inaccordance with law and accordingly, the order ofthe first respondent is set aside and both thewrit petitions are allowed. No costs.Consequently, connected WPMPs and WAMPs areclosed."3.Thereafter, the fresh panel has been published. It is thepetitioner's case that the SC/ST vacancies have been carriedforward beyond the first recruitment year and three consecutiverecruitment years and this is contrary to Rule 22[d]. It is notin dispute that after the panel list was issued in the year 2002for the years 1997,1998 and 1999, no panels were drawn up till2007. Therefore, considering the carry forward vacancies for https://hcservices.ecourts.gov.in/hcservices/ SC/ST for the years 2000 to 2005 did not arise. The years 2000to 2005 were "NIL" panels and no recruitment was made in theseyears. This is accepted even by the learned counsel for thepetitioners. The following paragraphs from the counter areextracted since this gives statistics with regard to thepromotion of persons as Deputy Tahsildars:"2.With regard to the averments made in para 3 ofthe affidavit, it is submitted that the presentpetitioners and the persons said to have beenaffected are all juniors. There is no dispute inthis case with the petitioners. As such, thecarried forward vacancies of Scheduled Caste andScheduled Tribe were prepared according to theseniority list of the Assistants as on15.07.2007, which is the crucial date for thedrawal of Deputy Tahsildar list for the year2007. After the panel list was issued in theyears 2002, for the years 1997,1998 and 1999 nopanels were drawn up till 2007. So, the questionof carried forward vacancies of Scheduled Casteand Scheduled Tribe for the past years 2000 to2005 does not arise. As there were "NIL" panelsduring the years 2000 to 2005, no recruitment wasmade during the said years. Eleven carriedforward vacancies of Scheduled Caste and onecarried forward vacancy of Scheduled Tribecreated in the 1999 panel list were kept as backlog for the purpose of filling up in the nextpanel list according to the existing rules andregulations in force and in accordance with thejudgment of Hon'ble High Court of Judicature,Madras delivered on 09.03.2007 inWP.No.20267/2005.3.It is further submitted that the totalvacancies permitted for the panel year 2006 wassix as per Special Commissioner and Commissionerof Revenue Administration, Chennai's proceedingsNo.Rc.Ser.III[4]/106114/06 dated 19.1.2007.Following the General Rule 22[d] strictly, only50% of the total vacancies were filled withScheduled Caste. Three scheduled castecandidates were promoted, out of which two werepicked out from the back log. The remainingthree vacancies were allotted to others. Thebalance nine carried forward vacancies ofScheduled Caste were declared to be filled duringthe next recruitment year. https://hcservices.ecourts.gov.in/hcservices/

4.it is submitted that vide the Notificationof the District Collector, Nagapattinam,No.A1/37923/07 dated 23.08.2007, the followingsix persons have been promoted as DeputyTahsildars in this district.Sl.NoName of thecandidateCategoryCommunity1A.VeeramaniCarried ForwardVacancySC2I.SomanathanCarried ForwardVacancySC3K.VijayaDirectlyrecruitedAssistantOthers4G.D.MoorthyCommunalRotationOthers5P.VijayanCommunalRotationSC6K.Abdul KareemCommunalRotationOthers5.It is submitted that accordingly, out ofthe eighteen vacancies sanctioned for the post ofDeputy Tahsildars by the Special Commissioner andCommissioner of Revenue Administration, Chennai,vide the proceeding No.Ser.III [3]/79564/07 dated22.11.2007, six from the back log vacancies ofScheduled caste have been filled up in the paneldrawn for the year 2007. Rest of the back logvacancies of Scheduled Caste could not be filledup because of the non-availability of qualifiedcandidates on the crucial date of the panel.Balance of five [Three carried forward vacanciesof Scheduled Caste of the earlier years and Twounfilled communal rotation vacancies forScheduled caste of the current year] carriedforward vacancies of Scheduled Caste weredeclared to be filled up during the nextrecruitment year."4.In particular, it is necessary to note what rule 22[d]states with regard to the non-availability of required number ofcandidates for a particular selection order and how they shall betreated. Rule 22[d] of the General Rules reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Rule 22[d]:- If qualified and suitablecandidates belonging to any of the Backwardclasses including the Most Backward Classes anddenotified communities are not available forselection for appointment by recruitment, bytransfer or by promotion in the turns allotted tothem, the turns so allotted shall lapse and theselection for appointment for the vacancies shallbe made by the next turn in the order ofrotation.Provided that if qualified and suitablecandidates belonging to any of the scheduledcastes and scheduled tribes are not available forselection for appointment by recruitment bytransfer or by promotion in the turns allotted tothem in the cycle, the turns so allotted to themshall not lapse and the number of candidates tobe selected in that recruitment shall be reducedby the number of candidates belonging toScheduled casts and Scheduled tribes notavailable for selection against the turn allottedto them; the unfilled vacancies reserved for thescheduled castes and scheduled tribes to befilled by recruitment by transfer or by promotionshall be carried over to the four consecutiverecruitment years, namely, year of recruitmentplus three subsequent recruitment years. Theselection for appointment to the vacancies in thenext recruitment shall be made first for thecarried over turns and then the normal rotationshall be followed. If qualified and suitablecandidates belonging to any of the scheduledcastes and Scheduled tribes are not available forselection for appointment by recruitment bytransfer or by promotion even thereafter, thevacancies reserved for those categories shallfirst be dereserved by obtaining the orders ofthe Government before filling them by candidatesin the next turns in the order of rotation.Provided further that the normal number ofvacancies reserved for the candidates belongingto the Scheduled Castes and Scheduled Tribes andthe carried forward vacancies as specified in thefirst proviso shall not exceed fifty percent ofthe total number of vacancies for a particularrecruitment. If there be two vacancies only, oneof them shall be treated as a reserved vacancy.If there be one vacancy only, it shall be treatedas unreserved. The surplus of the fifty percent https://hcservices.ecourts.gov.in/hcservices/ shall be carried forward to the subsequentrecruitment subject, however, to the conditionthat the particular vacancies carried forward donot become time barred due to their continuedexistence for more than three years. Selectionfor appointment to the oldest carried forwardvacancies shall be made first.Provided also that in the case of selectionfor appointment by direct recruitment, witheffect on and from the 1st April 1989, there shallbe a ban on dereservation of vacancies reservedfor the candidates belonging to any of theScheduled castes and scheduled tribes, MostBackward Classes and denotified communities to beappointed by direct recruitment. But the aboveban on dereservation of vacancies shall not beapplicable to the vacancies reserved for theBackward classes [other than Most Backwardclasses and Denotified communities] and thereforeif qualified and suitable candidates belonging toany of the Backward classes [other than MostBackward Classes and Denotified communities] arenot available for appointment, the turn, soallotted to them shall lapse and the vacancyshall be filled by the next turn in the order ofrotation. If sufficient number of qualified andsuitable candidates belong to any of thescheduled castes and scheduled tribes, MostBackward classes and Denotified communities arenot available for selecton for appointment forthe vacancies reserved for them by directrecruitment in the first attempt of recruitment,then a second attempt shall be made for selectionof the candidates belonging to the respectivecommunities by direct recruitment in the samerecruitment year as early as possible before thenext direct recruitment for selection ofcandidates against such vacancies. If therequired number of candidates belonging to suchcommunities are not available even then, thevacancies for which selection could not be madeshall remain unfilled until the next recruitmentyear treating them as "backlog" vacancies. Inthe subsequent year, when direct recruitment ismade for the vacancies of that year [called thecurrent vacancies], the "backlog" vacancies shallalso be announced for direct recruitment,keeping the vacancies of the particularrecruitment year, namely, the current yearvacancies and the backlog vacancies as twodistinct groups as illustrated in schedule V to https://hcservices.ecourts.gov.in/hcservices/ this part. While in respect of vacancies for theyear of recruitment, the normal procedurerelating to the calculation of vacancies reservedfor the candidates belonging to such communitiesas well as instructions that not more than fiftypercent of the vacancies shall be reserved forschedule castes and scheduled tribes communitiesand physically handicapped shall apply, selectionfor appointment for all the backlog vacanciesreserved for such communities shall be made bythe candidates belonging to such communitieswithout any restriction as they belong todistinct group of backlog vacancies. Theselection for appointment in the next directrecruitment shall be made first for the backlogvacancies and then the normal rotation shall befollowed.Provided also that in exceptional cases forposts in Groups A and B for which suitablecandidates belonging to the scheduled casts,scheduled tribes, Most Backward classes ordenotified communities are not available againstthe respective reserved vacancies and the non-filling up of posts causes hardship for runningthe administration, exemption from the ban shallbe granted by the Government. The procedure forcarrying forward of such vacancies and forexemption from this ban under this rule shall beas specified in Schedule V to these rules." The third proviso shows that if vacancies remains unfilled theywill be treated as back log vacancy for the next recruitment yearand when the subsequent recruitment year comes up forconsideration the vacancies of that year will be treated ascurrent vacancy and the carried over vacancies will be treated asback log vacancies and every time, the selection for appointmentis made, first the back log vacancies will be filled up and thennormal rotation will be followed. It is also specificallymentioned in the proviso that if qualified and suitablecandidates belonging to the Scheduled Caste or Scheduled Tribeare not available either by appointment or by recruitment bytransfer of by promotion, the said vacancy shall not lapse andthey shall be carried forward. The question how the vacancyshall be carried forward and for how many years is dealt with in1994 SUPPLEMENTARY [2] SUPREME COURT CASES 490 [HARISH CHANDRARAM V. MUKH RAM AND OTHERS] wherein the Supreme Court statesclearly that the year when vacancy arises will not be therecruitment year. But the recruitment year is that year in whichthe recruitment takes place. Paragraphs 5 to 8 of the abovecited judgment reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "5.In view of the aforesaid resolutions, it isclear that the general candidates will not beconsidered for promotion to the post for SC, STor BC reserved candidates. The reservedcandidates even if they are not available, it issettled law that unless dereservation is done thevacancy will not be thrown open to the generalcategory. It is not incumbent upon theGovernment as soon as the vacancy arises that itmust be filled by recruiting the candidateseither by direct recruitment or promotion fromfeeder category or by transfer. So, as and whenrecruitment takes place the cases of all thecandidates including reserved candidates must beconsidered according to rules which would ariseonly when recruitment takes place. Take forinstance an hypothetical case. A and B areeligible for consideration and were considered in1980 for two vacancies and B was found suitableand was appointed to one vacancy in 1982. Onemore vacancy arose in 1983. In the year 1983, A,C and deceased were considered. A and D werepromoted in 1984. The recruitment years are 1982and 1984 and not 1980 when one vacancy existed or1983 when two vacancies existed. So each year isnot the year of recruitment. As and whenrecruitment takes place in a particular year, itwould be the year of recruitment.6.Take another illustration. Suppose PublicService Commission advertises for directrecruitment in the year 1980, but actuallyselects the candidates in 1984. whether 1980would be the recruitment year? Answer would beno. Second advertisement was made in 1985 andrecruitment was made in 1990. the secondrecruitment year is 1990 and not 1985. it isthus clear that the recruitment year is the yearin which recruitment takes place, but not eachthree successive years in which the vacancyexists. The same yardstick would apply to fillin the reserved vacancy. Dereservation will beconsidered only at the end of third recruitmentyear provided reserved candidates are notavailable, or considered at the recruitment andfound not fit for promotion or carried forwardfor three successive years. Then the mattershould be placed before the competent authorityfor consideration for dereservation of thereserved posts and a resolution or order shouldbe made dereserving the posts. Then those alone https://hcservices.ecourts.gov.in/hcservices/ reserved posts or vacancies will be thrown openfor recruitment by the general candidates.7.In view of the above legal position,though the vacancy had occurred in the year 1980but recruitment was made in the year 1987 bywhich time the appellant had already fulfilledthe qualifications and had become eligible forconsideration to vacancy No.2 in the roster whichwas admittedly reserved for SC candidate. ThePromotion Committee was right in considering thecase of the appellant for promotion as SeniorSelection Grade Head Typist since that post waskept reserved for the scheduled caste candidate.8.The stand of the High Court that the ruleof carry forward was for three successive yearsand since no one belonging to SC candidates waspromoted for three years the vacancy becomesavailable to general candidates is illegal.Accordingly the High Court has committed grievouserror of law in quashing the appointment of theappellant under annexure 10 placed before theHigh Court and it is restored."Therefore, if recruitment had not taken place between 2000 to2005 none of those years will be the years of recruitment.Therefore, as far as the recruitment year 1997 is concerned, thatyear will be taken into account and the three consecutiverecruitment years would be 1998, 1999 and 2006. Similarly forthe recruitment year 1998, it would be 1999, 2006 and 2007 and soon. The respondents have given a tabular column where they havestated how the carried forward vacancies have been utilised.This is reproduced as follows:-Sl.NoRecruitment year andfilled with carriedforward vacanciesNo.of carried forward vacanciesutilised and year119976199262199810199251997531999219972420062199725200761998419992Total Created CarriedForward Vacancies11945Balance yet to be utilised0003 https://hcservices.ecourts.gov.in/hcservices/

5.From this it is clear that the respondents have notcarried forward the vacancies that arose in 1997 for 2007 whichthey cannot do since the third consecutive recruitment year wouldcome to an end with 2006. Learned counsel submitted that thejudgment of the Supreme Court dealt with the appointment alone.If for promotion, the same consideration is placed, then a timemay come when all the vacancies will be filled up by the reservedcategory and nothing will be available for others. We cannotdeal with the question on the basis of some hypotheticalsituation that may arise. As on date, the respondents areentitled to carry over 50% of the carry forward vacancy and theyhave categorically stated out of 18 carry forward vacancies, onlysix vacancies have been filled up which does not exceed 50%.Recording this statement, the writ petition is closed. Nocosts.6.If the petitioners are aggrieved that a vacancy has beencarried forward beyond the three recruitment years as explainedby the Supreme Court, it is open to them to agitate the same. Ifthe petitioners are also aggrieved that there is overrepresentation of the reserved category, it is for the petitionerto seek an appropriate remedy. Consequently connectedmiscellaneous petition is closed.7.Learned counsel for the petitioners submit that thepetitioners want to file an appeal before the Appellate Authorityto record their objections to the panel. It is open to thepetitioners to do so and if and when the petitioners file suchan appeal, the respondents shall consider the same and passorders expeditiously.ApSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary State of Tamil Nadu Revenue Department,Fort St.George, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/

2.Special Commissioner and Commissioner of Revenue Administration Chepauk, Chennai-5.3.The District Collector Nagapattinam District, Nagapattinam.•One cc to Mr. L. Candrakumar, Advocate SR 9299/08•One cc to Mr. Govt Pleader SR 9294/08•One cc to Mr. M.S.Palaniswamy, Advocate SR 9252/08SA (co)sg 25/02/08WP.No.2012/2008