Cases relating to fixation of seniority - TNPSC

1 1 Cases relating to fixation of seniority : Parties : A. Visalakshi & Another Versus State of Tamil Nadu rep. By its Secretary to Government Home (Police XVI) Department & Others Court : High Court of Judicature at Madras Case No : OF 2007 Judges: THE HONOURABLE MR. JUSTICE T. RAJA Appearing Advocates : For the petitioners: P1, S. Vadivelu, Advocate, P2, R. Muthukumarasamy, senior counsel for R. Sekaran, Advocate. For the Respondents: R1 and R2, S. Gopinathan, R3, M. Bhaskar, R4 to 7, 9 to 11, 13 to 21, 23, 25 to 27, S. Ravi, Advocates. Date of Judgment : 02-09-2010 Head Note :- Constitution of India - Article 226 - General Rule of the Tamil Nadu State and Subordinate Services Rules -35(a), 10(a)(i), 10(a)(i)(1) ,23(a)(i), 35(a), 39(c), 39(a) and 35(a)(a) - two petitioners filed on file of Tamil Nadu Administrative Tribunal to quash the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings Writ petition filed High Court held State Government regularisation and seniority were already settled - settled position will not only unsettle the final but will also pave way for chaos - Writ Petitions dismissed.

2 Cases Referred: 1. STATE OF TAMIL NADU V. (AIR 1992 SC 1823) 2. V. SECRETARY, PUBLIC SERVICE DEPARTMENT 1977 (2) SCR 937 at 942 3. AND ANOTHER V. STATE OF TAMIL NADU AND OTHERS ( SC 2662) 4. STATE OF TAMIL NADU V. (AIR 1992 SC 1823) and V. (2009 (6) SCC 428) 5. V. STATE OF GUJARAT 6. DIRECT RECRUIT CLASS II ENGINEERING OFFICERS' ASSOCIATION V. STATE OF MAHARASHTRA AND OTHERS 1990 (2) SCC 715 7. 2009 (6) SCC 428 Judgment :- (Writ Petition came to be numbered under Article 226 of the Constitution of India by way of Transfer of from the file of the Tamil Nadu Administrative Tribunal with the prayer to quash the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings , dated in so far as it relates to the applicants herein as the said seniority list is contrary to General Rule 35 (a))

3 And is not based on the rank assigned to the applicants in the list of selected candidates for the post of Scientific Assistant Grade II by the Tamilnadu Public Service Commission and to direct the respondents 1 to 3 herein to revise the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings / dated based on the rank assigned to the applicants herein by the TamilNadu Public Service Commission in the competitive examination held in the year 1989 for Scientific Assistant Grade II and under General Rule 35(a) and consequently to include the name of the applicants in the 2 panel of Scientific Assistant Grade I issued by the Second Respondent in proceedings / dated and consequently promote the applicants herein as Scientific Assistant Grade I, based on the seniority list so revised.

4 1. The two petitioners and filed on the file of the Tamil Nadu Administrative Tribunal with the prayer to quash the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings dated in so far as it relates to the applicants herein as the said seniority list is contrary to General Rule 35 (a) and is not based on the rank assigned to the applicants in the list of selected candidates for the post of Scientific Assistant Grade II by the Tamilnadu Public Service Commission and to direct the respondents 1 to 3 herein to revise the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings / dated based on the rank assigned to the applicants herein by the TamilNadu Public Service Commission in the competitive examination held in the year 1989 for Scientific Assistant Grade II and under General Rule 35(a)

5 And consequently to include the name of the applicants in the panel of Scientific Assistant Grade I issued by the Second Respondent in proceedings / dated and consequently promote the applicants herein as Scientific Assistant Grade I, based on the seniority list so revised. 2. (i) The petitioners were temporarily appointed as Scientific Assistants Grade II on and respectively through the Employment Exchange under 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules. The said posts are coming under the purview of Tamil Nadu Public Service Commission (hereinafter referred to as "the TNPSC ") with effect from Whileso, the TNPSC through advertisement called for applications for 36 vacancies of Scientific Assistants Grade II in the Forensic Sciences Department.

6 In response to the notification, the petitioners applied for the post of Scientific Assistants Grade II. By a communication dated , the TNPSC informed the applicants that they were provisionally selected for appointment to the said post with rank and 5 respectively according to the rank list of selected candidates published by the TNPSC Bulletin dated Though 36 persons already working temporarily in the Forensic Science Department applied along with other persons from outside public for the 36 vacancies, the TNPSC selected only 14 candidates as fit for the post of Scientific Assistants Grade II. Rest of them were not selected. Out of the 14 candidates so selected, the petitioners ranks are in and 5 respectively.

7 Since the seniority of the petitioners should be determined on the basis of the rank obtained by the petitioners in the list of approved candidates drawn up by the TNPSC the ranking was not properly assigned in the impugned proceedings / dated Instead the petitioners' seniority have been fixed at and 32 respectively as temporary candidates ignoring the mandatory rules under General Rule 35(a). On the other hand, the persons who were not successful in the TNPSC examination have been made senior to the petitioners though the petitioners were the successful candidates. Being aggrieved by the impugned seniority list dated , a representation was made to the second respondent on for fixing the seniority based on the rank assigned by the TNPSC specifically indicating that both the petitioners should be placed in and 12 respectively in the impugned seniority list on the basis of the General rule 35(a).

8 (ii) Though both the petitioners along with other persons filed on an earlier occasion a common on the file of the Tamil Nadu Administrative Tribunal for regularisation of temporary services against the same respondents, in the said , the Tribunal by order dated directed that the appointments made prior to should be dealt with in the same manner as the appointment made prior to Subsequently, the said order of regularisation was implemented regularising from the date of their initial appointment. As the same has not been done, the Original Application came to be filed. On abolition of the Tribunal, the said Original Application has been transferred to this Court and renumbered as 3 3. (i) , learned senior counsel appearing for the second petitioner submitted that though the petitioners were provisionally appointed as Scientific Assistant Grade II on and respectively through employment exchange under 10(a)(i), subsequently the post of Scientific Assistants Grade II were brought within the purview of the TNPSC with effect from Therefore, the assignment of seniority should be in accordance with the law as contemplated by General Rule 35(a).

9 The seniority of the petitioners should be fixed on the basis of the rank given by the TNPSC . Therefore, the respondents 4 to 27 cannot claim seniority mainly on the ground that their temporary services were regularised under General rule 23(a)(i) with effect from the date of their joining. (ii) The learned senior counsel further contended that though the Tribunal in and 1728 of 1989 dated gave a direction that the appointments prior to should also be dealt with in the same manner as appointments made prior to and should be regularised on that basis, the said order passed by the Tribunal giving the direction for regularisation of services of all those who approached the Tribunal did not mention anything about the issue of seniority .

10 Though the first respondent pursuant to the order of the Tribunal regularised the services of the respondents 4 to 27 along with the petitioners in , Home (Police-XVI) Department dated stating that the Government directs that under Rule 23(a)(1) of the General Rules for the Tamil Nadu State and Subordinate Services, the services of the Scientific Assistant Grade II annexed to that order in the Tamil Nadu Forensic Subordinate Services be regularised with effect from the date noted against their names, the said order had never referred to seniority aspect and it only enabled the respondents 4 to 27 to draw the arrears of pay and increments and therefore, the petitioners cannot be denied the benefit of the General Rule 35(a). (iii) The learned senior counsel also contended that the effect of regularisation under General Rule 23(a) has been considered already by the Apex Court in STATE OF TAMIL NADU V.