THE HONOURABLE MR v. Special Commissioner and Commissioner of Revenue Administration, Chennai-5.2.The District Collector, Nagapattinam District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.03.2007CORAM:THE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.Nos.20267/2004 & 13613/2005& WVMP Nos.1738/2004, 2605/2005, & W.P.M.P.Nos.24397/2004V.Punniakoti... Petitioner in WP.20267/2004C.Munusamy... Petitioner in WP.13613/2005Vs.1.Special Commissioner and Commissioner of Revenue Administration, Chennai-5.2.The District Collector, Nagapattinam District, Nagapattinam.3.Ravichandran, Assistant, Taluk Office, Nagapattinam..... Respondents 1 to 3 in WP.20267/2004 &respondents in WP.13613/20054.S.Nirmala5.R.Muthukumarasamy6.J.Vaidyanathan7.K.Gopalan8.N.Kannan(R4 to R8 impleaded as per order of the Courtdt.21.4.2005 by NKJ in WPMp.32763/2004) ... Respondents 4 to8 in WP.20267/2004Writ Petitions filed under Article 226 of the Constitution ofIndia, praying to issue a Writ of Certiorari to call for the recordsrelating to the order passed by the first respondent in proceedingsNo.Pani 3(3)/54903/2003 dated 16.6.2004 and quash the same https://hcservices.ecourts.gov.in/hcservices/ For petitioners in both WPs: Mr.T.SellapandianFor R.1 & R.2 in -do-: Mr.A.Edwin Prabhakar, G.A.(writs)For R.3 in -do-: No appearanceFor R4 to R8 in WP 20267: Mr.P.Rajendran COMMON ORDERThe above writ petitions have been filed praying to issue Writsof Certiorari to call for the records relating to the order passed bythe first respondent in No.Pani 3(3)/54903/2003 dated 16.06.2004 andquash the same insofar as the petitioners are concerned.2. The case of the petitioners is that they were appointed asJunior Assistants on 14.11.1984 and 15.10.1984 respectively and theywere promoted as Assistants on 04.12.1992. They acquired all therequisite qualifications for being promoted as Deputy Tahsildar, whichis the next avenue of promotion. While drawing panel every year forthe post of Deputy Tahsildar, there were no qualified hands in theScheduled Caste category and as a result of the same, the panel wasnot having adequate number of candidates from the Schedules Caste.Thus there are backlog vacancies every year. The Government of Indiadirected all the State Governments to fill up the backlog vacancieswithout allowing the Scheduled Caste vacancies to lapse. As per theabove direction, for the year, 1999, panel was drawn for promotion tothe post of Deputy Tahsildar and in that panel, the names of thepetitioners were included and promoted as Deputy Tahsildars.3. The further case of the petitioners is that as against theregular promotion, an appeal seems to have been filed by the thirdrespondent and 11 others and without giving notice, the firstrespondent by an order dated 16.06.2004, cancelled the panel drawn,without giving any opportunity to them and directed to draw panel forthe years 1997, 1998 and 1999. Aggrieved by the same, thepetitioners have filed the present writ petitions.4.The first respondent has filed counter and contended thatRules and Regulations laid down by the Government in Personnel andAdministrative Reforms Department from time to time with regard tothe approval of vacancies are followed by the first respondent; thatthe Nagapattinam District was bifurcated from the erstwhileThanjavur District on 18.10.1991 and Tiruvarur District wasbifurcated from Nagapattinam District with effect from 01.01.1997.Since the inception of the Nagapattinam District, the DeputyTahsildars lists for the years 1991 and 1992 have been drawn aftergetting the approval of vacancies by the first respondent as in thecase of all Revenue Districts in the State. The crucial date fordrawal of the Deputy Tahsildar list is 15th September every year. Asper the guidelines issued in G.O.Ms.No.368 Personnel and https://hcservices.ecourts.gov.in/hcservices/ Administrative Reforms Department dated 18.10.1993, the estimate ofvacancy was worked out and ultimately, as no vacancy arose in thecadre of Deputy Tahsildar, 'Nil' lists were drawn by the DistrictCollector, Nagapattinam as per the procedure in vogue for the years1993, 1994, 1995 and 1996. At that stage, the Senior RegionalManager, Tamil Nadu Civil Supplies Corporation Ltd., Nagapattinam, inhis letter dated 11.1.1996, had informed that 104 posts of DeputyTahsildars have been allotted to Revenue Unit and had requested todepute the staff for monopoly procurement operations of paddy of Samba'96 season. In order to meet out the exigency, with the concurrenceof the first respondent, the second respondent has given onlytemporary promotion to the 31 qualified persons as Deputy Tahsildarduring March 1996. As the seasonal posts of Deputy Tahsildar ondeputations to Tamil Nadu Civil Service Corporation Limited were forshort-term operations of procurement of paddy, these posts weredisbanded on 31.03.1996. All the 66 persons, who were given temporarypromotions as Deputy Tahsildars for about only 17 days from15.03.1996 were reverted as Assistant on 31.03.1996. 5. Some of the petitioners, who were temporarily promoted asDeputy Tahsildars during March 1996 and subsequently reverted asAssistants, following the disbandment of these posts filed O.A.Nos.651and 7575 of 1998 before the Tamil Nadu Administrative Tribunal. Inthe meantime, as per the instructions of the first respondent, listswere drawn with the persons fully qualified as on the crucial date ofthe respective panel years i.e. 15th September of the concerned year,following Rule 22(d) of the Tamil Nadu State and Subordinate ServiceRules dealing with rule of reservation and temporary promotions weregiven during the years 1997, 1998 and 1999. 6. Even though regular vacancies arose during the years 1997 to1999, owing to the pendency of the above mentioned O.As., no regularlists could be drawn by the second respondent and therefore, theycould not be published during these years and the large number ofDeputy Tahsildars, who were given temporary promotion for a very shortperiod due to the seasonal requirement of Tamil Nadu Civil SuppliesCorporation for procurement operations, could not be given "PoliceTraining" and "Magisterial Training" and hence, the DistrictAdministration was not in a position to give further promotion to theabovesaid persons. The first respondent therefore accordedpermission to publish the lists of Deputy Tahsildars for the years1997, 1998 and 1999 subject to result of the O.As. Accordingly,regular lists of Deputy Tahsildars for those years were drawn by thesecond respondent and published on 09.05.2002. 7. Rule 4 of the Tamil Nadu State and Subordinate ServicesRules, contemplates the preparation of a panel every year. In view ofthe above facts, the action of the second respondent in carrying overthe backlog vacancies of 11 SC candidates and 1 ST candidate left https://hcservices.ecourts.gov.in/hcservices/ unfilled during the year 1992 to the panel year 1997 and 1998 after alapse of four recruitment years is not correct. Once the errorcommitted by the second respondent comes to the notice of the firstrespondent, being the Appellate Authority, the first respondent has noother choice except to quash the panel drawn and issue directions tothe second respondent to draw the panel in accordance with settledprinciples of law. Hence, the lists of Deputy Tahsildars drawn forthe years 1997 to 1999 were rightly cancelled by the firstrespondent vide proceedings dated 16.06.2004. Aggrieved by the order,the petitioner is at liberty to seek remedy by preferring appealbefore the first respondent and not by filing writ petition and seeksto dismiss the writ petition.8. Respondents 4 to 8 have filed a counter affidavit along withthe vacate stay petition and submitted that under Rule 4 of the TamilNadu State and Subordinate Services General Rules, 'all the panelsprepared for a year and published in the Tamil Nadu Government Gazetteis valid for a period of one year from the date of approval by thecompetent authority. If the estimate of vacancy for any particularyear is nil, a "nil" list should also be published in the aforesaidmanner'. Since the estimates of vacancies for the years 1993 to 1996were nil, "nil" lists were published for the said years. Therefore,it is clear that the unfilled vacancies of the year 1992 cannot becarried forward to the year 1997. Therefore, the order passed by theSpecial Commissioner and Commissioner of Revenue Administration,Chennai, setting aside the panels drawn by the Collector, Nagapattinamfor the years 1997 to 1999 by carrying forward the vacancies of theyear 1992 is perfectly valid and in accordance with Rule 22(d) of theTamil Nadu State and Subordinate Services (General ) Rules and prayedfor dismissal of the writ petition.9. Heard Mr.T.Sellapandian, learned counsel appearing for thepetitioners, Mr.A.Edwin Prabhakar, learned Government Advocateappearing for Respondents 1 and 2 and Mr.P.Rajendran, learned counselappearing for the respondents 4 to 8.10. The learned counsel for the petitioner has contended that thevacancies for consecutive three years have to be taken into accountand they should be filled-up and only in case of non-availability ofsuitable reserved candidates, those vacancies could be de-reserved.The learned counsel further contended that before cancelling theorder, the first respondent has not followed the guidelines framed inG.O.Ms.No.368 Personnel and Administrative Reforms, dated 18.10.1993.11. On the other hand, the learned counsel for the respondentscontended that the procedure for preparation of the panel was vagueand 'nil' lists were published for the years 1993 to 1996 andtherefore, unfilled vacancies of the year 1992 cannot be carried https://hcservices.ecourts.gov.in/hcservices/ forward to the year 1997 and the action of the first respondent isperfectly valid and there is no reason to interfere with the actionof the first respondent.12. The learned Government Advocate also placed his submissionson the same lines that as cancellation is in accordance with therules, there is no infirmity in the order passed by the firstrespondent. 13. I have given careful consideration to the submissions madeby the learned counsel on either side.14. The crucial point for consideration in this case is as towhether the unfilled vacancies of the year 1992 can be carried forwardto the year 1997 and the order passed by the first respondent settingaside the panels issued by the Collector, Nagapattinam for the years1997 to 1999 by carrying forward the vacancies of the year 1992 isperfectly valid and in accordance with Rule 22(d) of the Tamil NaduState and Subordinate Services (General) Rules. 15. The provision of law, ruling the area i.e. Rule 22(d) of theTamil Nadu State and Subordinate Services (General) Rules, reads asfollows:"Rule 22(d): If qualified and suitable candidatesbelonging to any of the Backward Classes including theMost Backward Classes and Denotified Communities are notavailable for selection for appointment by recruitment,by transfer or by promotion in the turns allotted tothem, the turns so allotted shall lapse and theselection for appointment for the vacancies shall bemade by the next turn in the order of rotation.Provided that if qualified and suitable candidatesbelonging to any of the Scheduled Castes and ScheduledTribes are not available for selection for appointmentby recruitment by transfer or by promotion in the turnsallotted to them in the cycle, the turns so allotted tothem shall not lapse and the number of candidates to beselected in that recruitment shall be reduced by thenumber of candidates belonging to Schedule Castes andSchedule Tribes not available for selection against theturn allotted to them; the unfilled vacancies reservedfor the Schedule Castes and Schedule Tribes to be filledby recruitment by transfer or by promotion shall becarried over to the four consecutive recruitment years,namely, year of recruitment plus three subsequentrecruitment years. The selection for appointment to thevacancies in the next recruitment shall be made first https://hcservices.ecourts.gov.in/hcservices/ for the carried over turns and then the normal rotationshall be followed. If qualified and suitable candidatesbelonging to any of the Schedule Castes and ScheduleTribes are not available for selection for appointmentby recruitment by transfer or by promotion eventhereafter, the vacancies reserved for those categoriesshall first be dereserved by obtaining the orders ofthe Government before filling them by candidates in thenext turns in the order of rotation. Provided further that the normal number ofvacancies reserved for the candidates belonging to theSchedule Castes and Schedule Tribes and the carriedforward vacancies as specified in the first provisoshall not exceed fifty percent of the total number ofvacancies for a particular recruitment. If there be twovacancies only, one of them shall be treated as areserved vacancy. If there be one vacancy only, itshall be treated as unreserved. The surplus of thefifty percent shall be carried forward to the subsequentrecruitment subject, however, to the condition that theparticular vacancies carried forward do not become timebarred due to their continued existence for more thanthree years. Selection for appointment to the oldestcarried forward vacancies shall be made first.Provided also that in the case of selection forappointment by direct recruitment, with effect on andfrom the 1st April, 1989, there shall be a ban ondereservation of vacancies reserved for the candidatesbelonging to any of the Schedule Castes and ScheduleTribes, Most Backward Classes and DenotifiedCommunities to be appointed by direct recruitment. Butthe above ban on dereservation of vacancies shall notbe applicable to the vacancies reserved for the BackwardClasses (other than Most Backward classes and DenotifiedCommunities) and therefore if qualified and suitablecandidates belonging to any of the Backward Classes(other than Most Backward Classes and DenotifiedCommunities) are not available for appointment, theturn, so allotted 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 the Schedule Castesand Schedule Tribes, Most Backward Classes and De-notified Communities are not available for selectionfor appointment for the vacancies reserved for them bydirect recruitment in the first attempt of recruitment,then a second attempt shall be made for selection ofthe candidates belonging to the respective communities https://hcservices.ecourts.gov.in/hcservices/ by direct recruitment in the same recruitment year oras early as possible before the next direct recruitmentfor selection of candidates against such vacancies. Ifthe required number of candidates belonging to suchcommunities are not available even then, the vacanciesfor which selection could not be made shall remainunfilled until the next recruitment year treating themas "backlog" vacancies. In the subsequent year, whendirect recruitment is made for the vacancies of thatyear (called the current vacancies), the "backlog"vacancies shall also be announced for directrecruitment, keeping the vacancies of the particularrecruitment year, namely, the current year vacanciesand the "backlog" vacancies as two distinct groups asillustrated in Schedule V to this part. While inrespect of vacancies for the year of recruitment, thenormal procedure relating to the calculation ofvacancies reserved for the candidates belonging tosuch communities as well as the instructions that notmore than fifty percent of the vacancies shall bereserved for Schedule Castes and Scheduled Tribescommunities and physically handicapped shall apply,selection for appointment for all the "backlog"vacancies reserved for such communities shall be made bythe candidates belonging to such communities withoutany restriction as they belong to distinct group of"backlog" vacancies. The selection for appointment inthe next direct recruitment shall be made first for the"backlog" vacancies and then the normal rotation shallbe followed:Provided also that in exceptional cases for postsin Groups A and B for which suitable candidatesbelonging to the Scheduled Castes, Scheduled Tribes,Most Backward Classes or Denotified Communities are notavailable against the respective reserved vacancies andthe non-filling up of posts causes hardship for runningthe administration, exemption from the ban shall begranted by the Government. The procedure for carryingforward of such vacancies and for exemption from thisban under this rule shall be as specified in Schedule Vto these Rules"16. In support of his contentions, the learned counsel for thepetitioners relied on a decision of the Supreme Court reported in1994 supplementary (2) Supreme Court Cases 490 (HARISH CHANDRA RAM VS.MUKH RAM DEBEY AND OTHERS), wherein, it has been held as follows:"In view of the aforestated resolutions, it is clear thatthe general candidates will not be considered for https://hcservices.ecourts.gov.in/hcservices/ promotion to the post for SC, ST or BC reservedcandidates. The reserved candidates even if they arenot available, it is settled law that unless dereservation is done the vacancy will not be thrown opento the general category. It is not incumbent upon theGovernment as soon as the vacancy arises that it must befilled by recruiting the candidates either by directrecruitment or promotion from feeder cadre or bytransfer. So, as and when recruitment takes place thecases of all the candidates including reserved candidatesmust be considered according to rules which would ariseonly when recruitment takes place. Take for instance anhypothetical case. A and B are eligible forconsideration and were considered in 1980 for twovacancies and B was found suitable and was appointed toone vacancy in 1982. One more vacancy arose in 1983.In the year 1983, A, C and D were considered. A and Dwere promoted in 1984. The recruitment years are 1982and 1984, and not 1980 when one vacancy existed or 1983when two vacancies existed. So each year is not the yearof recruitment. As and when recruitment takes place in aparticular year, it would be the year of recruitment."17. From a reading of the above Rule and the law laid down by theSupreme Court, it is clear that if the reserved candidates are notavailable, it is settled law that unless de-reservation is done, thevacancy will not be thrown open to the general category. It is notincumbent upon the Government as soon as the vacancy arises that itmust be filled by recruiting the candidates either by directrecruitment or promotion from feeder cadre or by transfer. So, as andwhen recruitment takes place, the cases of all the candidatesincluding reserved candidates must be considered according to Ruleswhich would arise only when recruitment takes place. The decision ofthe Supreme Court, relied on by the petitioners, is directly answeringthe points raised in these writ petitions. It is held that therecruitment year means the year in which recruitment takes place, butnot each three successive years in which the vacancy exists and it isto be considered for appointment or promotion. Therefore, in view ofthe settled legal proposition, the order of the first respondent isnot correct and it is exfacie illegal and therefore, in my opinion,the first respondent has not applied his mind to properly appreciatethe rules and to give a correct reasoning before cancelling theorder of the second respondent. Therefore, there is a sound reason to https://hcservices.ecourts.gov.in/hcservices/ interfere with the order of the first respondent. The order of thefirst respondent suffers from legal infirmities being not inaccordance with law and accordingly, the order of the first respondentis set aside and both the writ petitions are allowed. No costs.Consequently, connected WVMPs and WAMPs are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarraaTo1.Special Commissioner and Commissioner of Revenue Administration, Chennai-5.2.The District Collector, Nagapattinam District, Nagapattinam.+2ccs to Mr.S.Mani, Advocate Sr 14805,14806+1cc to Mr.P.Rajendran, Advocate Sr 14866+2ccs to Govt. Pleader SR 15169,15170HPR (CO)km/27.3. W.P.Nos.20267/2004 & 13613/2005