High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.04.2009CORAMTHE HONOURABLE MR. JUSTICE M.JAICHANDRENWRIT PETITION No.21786 OF 20041. VE.Vairappan2. V.Selvarajan3. C.Subramanian4. C.Brahma Rajan5. K.Ravichandran6. M.Devakumar7. S.Balasubramanian8. M.Govindarajan9. C.S.Sundaram10.L.Palanivelu11.L.Antony Xavier12.A.Raman13.V.Ramanathan14.C.Jeyaselvan15.S.Arasappan16.S.Ilango17.S.Kalaivanan18.J.Nagarajan19.R.Gnanasekaran20.P.Arulselvan21.M.G.Jeyakumar22.R.Amirthalingam23.M.Karunanidhi24.M.Thirugnanasambandam25.A.Prabhakaran26.R.Sivasakthivel27.S.Ashok Kumar28.Panneerselvam .. Petitioners Vs.1. The State of Tamil Nadu reptd by its Secretary to Government Highways Department,Fort St.George, Chennai-600 0092. The Chief Engineer(General) Highways Department Chepauk, Chennai-600 005 https://hcservices.ecourts.gov.in/hcservices/

3. The Secretary Tamil Nadu Public Service Commission (TNPSC) Government Estate Chennai-600 002.. Respondents Writ petition filed under Article 226 of Constitution ofIndia praying for issue of a Writ of Certiorari as stated therein. For Petitioners : Mr.M.Venkatachalapathy Senior Counsel for Mr.N.Radhakrishnan For Respondents : Mr.S.Sivashanmugam,AGP-R1 & R2 Mr.A.Arul-R3 O R D E RThis writ petition has been filed by the petitioners praying fora writ of certiorarified mandamus, to quash G.O.Ms.No.528, PublicWorks(HK.2) Department, dated 30.6.1995, in so far as it fixes theseniority of the petitioners and to direct the respondents to refixtheir seniority from the date of their re-appointment in the years1987-1988 and to give them all benefits based on such refixation ofseniority.2. It has been stated that the petitioners are engineeringgraduates, who had registered their names in the concernedProfessional Employment Exchange. The Chief Engineer of the HighwaysDepartment had selected them to fill up the various vacancies in theHighways Department, calling for a list of candidates from theEmployment Exchange. As such, they had been working in the HighwaysDepartment from the year 1981 upto 1985, under 10(a)(i) of theGeneral Rules of Tamil Nadu State and Subordinate Rules (hereinafterreferred to as "the Rules"). However, their services were terminatedin the years 1985 and 1986, stating that there were no vacancies inthe said Department. Subsequently, they were re-appointed in theyears 1987-1988, in accordance with G.O.Ms.No.46,Transport dated7.1.1987, under 10(a)(i) of the Rules. 3. It has been further stated that the petitioners had beenmaking repeated representations to the authorities concerned,including the respondents, seeking regularisation of their servicesand for the fixation of their seniority. No orders have been passedon their representations. However, 15 Assistant Engineers, wererecruited by the Tamil Nadu Public Service Commission, for the PublicWorks Department of the Government of Tamil Nadu, during the year1989-1990, contrary to the norms of recruitment and in violation ofthe Tamil Nadu Highways Engineering Service Rules and they wereplaced in the list of seniority, just below those who had been https://hcservices.ecourts.gov.in/hcservices/ selected during the year 1982 and above the petitioners. By theimpugned Government Order, dated 30.6.1995, the petitioners wereregularly appointed in service, with effect from the respectivedates mentioned in Column 2 of the said Government Order. However,the Government had directed that the regularisation shall not conferany right on seniority and that they would be placed below thecandidates selected by the Public Service Commission, in the list ofSelection made in accordance with the approved list of the year 1992.Aggrieved by the fixation of their seniority below the candidatesselected by the Tamil Nadu Public Service Commission in the year1982, the petitioners had preferred the present writ petition beforethis Court, under Article 226 of Constitution of India.4. A counter affidavit has been filed on behalf of therespondents. It has been stated that the petitioners had beenappointed, temporarily, during the years 1981 to 1985, as AssistantEngineers, in the Highways Department. The appointments were madebased on the list of candidates sponsored by the Professional andExecutive Employment Exchange. These appointments were made only forthe purpose of implementing the `Self Sufficiency Scheme ' launchedby the Government. On completion of the Self Sufficiency Schemeworks, their services were terminated during the year 1986 and theywere all re-appointed on temporary basis again in the year 1987-1988.The petitioners could not be regularised in service as they were notselected by the Tamil Nadu Public Service Commission. However, theywere continued in service as temporary Assistant Engineers till theywere regularised in service, with retrospective effect, in accordancewith the Government Order, in G.O.Ms.No.528 Public Works(HK.2)Department, dated 30.6.1995, from the date of their appointments astemporary Assistant Engineers. However, the Tamil Nadu PublicService Commission had observed that the regularisation would notconfer any right in regard to their seniority and that they would beplaced below the candidates selected by the Public Service Commissionfor the year 1991-1992. Accordingly, orders were issued by theGovernment, in G.O.Ms.No.528, Public Works Department, dated30.6.1995, to place the names of the petitioners below the candidateswho were selected by the Public Service Commission for the year 1991-1992.5. The main contention of the learned counsel appearing for thepetitioners is that the first respondent, while regularising theservices of the petitioners from the date of their appointment inservice, had wrongly fixed their seniority by placing them below thecandidates selected by the Tamil Nadu Public Service Commission forthe year 1991-1992. In fact, their seniority should have been fixedfrom the date of their re-appointment in the year 1987-1988. It wasfurther contended that the State Government, while passing theimpugned Government Order, dated 30.6.1995, had not considered therecommendations made by the second and third respondents, on 1.3.2002and 23.4.2002, respectively. It has also been stated that the https://hcservices.ecourts.gov.in/hcservices/ impugned Government Order, dated 30.6.1995, fixing the seniority ofthe petitioners, is discriminatory in nature and therefore, it is inviolation of the principle enshrined in Article 14 of theConstitution of India. In cases of similarly placed persons like thatof the petitioners, while regularising their services, theirseniority had been fixed below the candidates selected by the TamilNadu Public Service Commission for the same year and taking intoconsideration the years in which the temporary candidates had beenappointed. While so, it is not open to the State Government to passthe impugned order fixing the seniority of the petitioners below thecandidates selected by the Tamil Nadu Public Service Commission forthe year 1991-1992, even though they had been regularised in servicefrom the years 1987-1988, when they were re-appointed in service, inaccordance with G.O.Ms.No.46, Transport, dated 7.1.1987.6. The learned counsel appearing on behalf of the petitioners hadrelied on the following decisions in support of his contentions:6.1. In Ajit Kumar Rath Vs. State of Orissa and others (1999(9)SCC 596), the Supreme Court had held that the promotion, having beenmade in accordance with the rules, the entire period of adhocservice, when the appellant was appointed on a regular basis on theconcurrence of the Public Service Commission, would have to becounted towards his seniority vis-a-vis the contesting respondentswho were direct recruits. The plea of the direct recruits that thepromotees had been unsuccessful in direct recruitment test andtherefore, they cannot be given seniority over direct recruits hadbeen rejected. 6.2.In Suraj Parkash Gupta and others Vs. State of J&K andothers (2000(7) SCC 561), the Supreme Court had held thatregularisation of the services of the adhoc or stopgap service ofpromotees continuing beyond the prescribed time-limit, withoutconsulting the Public Service Commission, can be regularised by ante-dating the probation, retrospectively and by retrospectiveappointment to the service from the date of availability of asubstantive vacancy within the promotees' and subject to theeligibility and suitability of the incumbent. In such circumstances,the seniority of the incumbent would count from the date of the saidavailability of a substantive vacancy.6.3.In Sushma Mutreja Vs. Union of India and others (2001(6) SCC428), the Supreme Court had held that a person joining a new cadre,although gets the lowest placement in that cadre, cannot be junior tothose who were not in the cadre on that date. 6.4.In P.N.Premachandran Vs. State of Kerala and others (2004(1)SCC 245), the Supreme Court had held that there was no irregularityin the matter of grant of promotion to the respondents, with effectfrom 1964 onwards. In view of the administrative lapse, the https://hcservices.ecourts.gov.in/hcservices/ Departmental Promotion Committee did not hold a sitting from 1964 to1980.6.5.In Ashok Kumar Shrivastava and others Vs. Ram Lal and others(2008(3) SCC 148), the Supreme Court had issued a direction to theconcerned respondents therein to treat the appointees, who had beenappointed on the basis of limited departmental examination, to havebeen substantively appointed at the time of the initial appointmentand to revise the seniority list accordingly. 7. At this stage of the hearing of the writ petition, the learnedcounsel appearing on behalf of the petitioners had submitted that itwould suffice, if the petitioners are permitted to make freshrepresentations to the first respondent, with regard to theirregularisation and the fixation of their seniority, as sought for inthe present writ petition and if the first respondent is directed toconsider the representations and pass appropriate orders thereon, onmerits, in view of the recommendations made by the second and thirdrespondents, dated 1.3.2002 and 23.4.2002, respectively, within aspecified period.8. The learned counsel appearing on behalf of the respondents hasno objection for this Court passing such an order.9. In view of the submissions made by the learned counselsappearing on behalf of the petitioners, as well as the respondents,it is made clear that it is open to the petitioners to makerepresentations to the first respondent, with regard to the reliefssought for in the writ petition, within a period of four weeks fromtoday and on receipt of such representations, the first respondent isdirected to pass appropriate orders thereon , on merits and inaccordance with law, after hearing those who may be adverselyaffected by such refixation of seniority, as prayed for by thepetitioners, if found necessary, and by taking into consideration,the recommendations made by the second and third respondents, on1.3.2002 and 23.4.2002, respectively, within a period of four monthsfrom the date of receipt of a copy of this order.In the result, this writ petition is disposed of with theabove directions. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrarsg https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government Highways Department, Fort St.George, Chennai-600 0092. The Chief Engineer(General) Highways Department Chepauk, Chennai-600 0053. The Secretary Tamil Nadu Public Service Commission (TNPSC) Government Estate Chennai-600 002+ 1 CC To Mr.C.Brahmarajan, Advocate SR NO.20170+ 1 CC to the Government Pleader SR NO.18670W.P.NO.21786 OF 2004KK {CO}TP/8.5.2009.