Madras High Court
S.Saravanan vs The Principal Secretary And on 8 October, 2021
W.P.(MD)Nos.22537 to 22550 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)Nos.22537 to 22550 of 2017
and
W.M.P.(MD)Nos.18825 to 18852 of 2017
W.P.(MD)No.22537 of 2017:-
S.Saravanan ... Petitioner
vs.
1.The Principal Secretary and
Commissioner of Revenue Administration,
Ezhilagam, Chepuak, Chennai – 600 005.
2.The District Collector,
Ramanathapuram District,
Ramanathapuram – 623 503. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
for issuance of Writ of Mandamus, to direct the second respondent i.e., the
District Collector, Ramanathapuram, to draw the inter-se seniority list
between Directly Recruited Assistants and Graduate Promotees following the
cut-off date 15th May of every year. The revised inter-se seniority has to be
1/13
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W.P.(MD)Nos.22537 to 22550 of 2017
prepared after 08.04.2009 to till date between Directly Recruited Assistants
and Graduate Promotees following the ratio 1:2 i.e., one Direct Recruited
Assistant and two Promotee Graduate Assistants and the panel year concept
and following the crucial date 15th May for every year. The District Collector,
Ramanathapuram has to get the concurrence of the Principal Secretary and
Commissioner of Revenue Administration, Chennai, before publishing the
revised inter-se seniority list prepared on the basis of the orders of the
Honourable Supreme Court in Civil Appeal Nos.251-256 of 2015, dated
12.03.2019 and the amendment issued by the Government fixing the cut-off
date and communicated by the Principal Secretary and Commissioner of
Revenue Administration, Chennai, in his Letter No.Ser4(2)/16026/2017, dated
05.09.2020. The above said exercise shall be completed by the District
Collector, Ramanathapuram within the time frame that may be fixed by this
Court.
For Petitioner :Mr.S.Visvalingam
For Respondents :Mr.M.Linga Durai
Government Advocate
For Directly Recruited
Assistants :Mr.Mohamed Imran
for M/s.Ajmal Associates
*****
COMMON ORDER
All these Writ Petitions were originally filed for issuance of a Writ of
Certiorarified Mandamus, to quash the impugned order passed by the first
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W.P.(MD)Nos.22537 to 22550 of 2017
respondent, dated 29.10.2015, and the second respondent, dated 19.06.2015,
and to direct the respondents to revise the inter se seniority list based on the
specific provision under Rule 38(b)(ii) paragraph 9 Annexure-IX of Tamil
Nadu Ministerial Service Rules and the proceedings of the first respondent,
dated 19.06.2017, within a specified time stipulated by this Court.
2.Heard Mr.S.Visvalingam, learned Counsel for the petitioners,
Mr.M.Linga Durai, learned Counsel for the respondents and Mr.Mohamed
Imran, learned Counsel for Directly Recruited Assistants.
3.The prayer in these Writ Petitions was substituted by a common order
in all the Writ Petitions and the prayer in the Writ Petitions as amended, reads
as follows:
“for issuance of Writ of Certiorarified Mandamus, to direct the
second respondent i.e., the District Collector, Ramanathapuram, to
draw the inter-se seniority list between Directly Recruited Assistants
and Graduate Promotees following the cut-off date 15th May of every
year. The revised inter-se seniority has to be prepared after 08.04.2009
to till date between Directly Recruited Assistants and Graduate
Promotees following the ratio 1:2 i.e., one Direct Recruited Assistant
and two Promotee Graduate Assistants and the panel year concept and
following the crucial date 15th May for every year. The District
Collector, Ramanathapuram has to get the concurrence of the
Principal Secretary and Commissioner of Revenue Administration,
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W.P.(MD)Nos.22537 to 22550 of 2017
Chennai, before publishing the revised inter-se seniority list prepared
on the basis of the orders of the Honourable Supreme Court in Civil
Appeal Nos.251-256 of 2015, dated 12.03.2019 and the amendment
issued by the Government fixing the cut-off date and communicated by
the Principal Secretary and Commissioner of Revenue Administration,
Chennai, in his Letter No.Ser4(2)/16026/2017, dated 05.09.2020. The
above said exercise shall be completed by the District Collector,
Ramanathapuram within the time frame that may be fixed by this
Court.”
4.The petitioners in all the Writ Petitions were appointed as Junior
Assistant in the respondent department. It is not disputed that all the
petitioners were regularized in the cadre of Junior Assistant based on G.O.
(2D)No.242, Revenue Department, dated 15.05.2011. The grievance of the
petitioners is that the inter se seniority list of Promotee Assistants and Directly
Recruited Assistants published by the District Collector, Ramanathapuram, is
basically not correct. It is pointed out that while preparing the inter se
seniority list, the District Collector has not followed the specific provisions
made in Rule 38(b)(ii) read with Paragraph (9) Annexure-IX of the Tamil
Nadu Ministerial Service Rules.
5.During the pendency of the Writ Petitions, the Honourable Supreme
Court resolved certain issues by order, dated 12.03.2019, in Civil Appeal Nos.
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W.P.(MD)Nos.22537 to 22550 of 2017
251 to 256 of 2015 in the leading case of A.Rajagopalan vs The District
Collector, Thiruchirapalli District and others. The Honourable Supreme
Court in the operative portion of the order has held as follows:
“19. In the result, the impugned judgement of the High Court is
set aside and these appeals are allowed with the following
observations and directions:-
(i)Promotions of the Direct recruit Assistants effected between
07.02.1995 and 08.04.2009 and their seniority in their respective
positions as on date, shall not be disturbed;
(ii)The benefit extended to the graduate promotee Assistants by
placing them on par with Direct recruit Assistants is to be given effect
to prospectively from the date of judgment of this Court dated
08.04.2009 rendered in the case of M. Rathinaswami v. State of T.N.
reported in (2009) 5 SCC 625;
(iii)After 08.04.2009, the promotion to the post of Deputy
Tahsildar from its feeder category, i.e., Direct recruit Assistants and
Promotee graduate Assistants, shall be strictly in accordance with the
judgment of this Court referred above, i.e., treating Promotee graduate
Assistants on par with Direct recruit Assistants. Such promotion shall
be given effect to, without reference to any interim order(s) passed by
the High Court;
(iv)If any panels are prepared, and promotions are given, after
08.04.2009 for promoting the Assistants to the post of Deputy
Tahsildars in Tamil Nadu Revenue Subordinate Service contrary to the
judgment of this Court dated 08.04.2009, such panels and promotions
have to be revised so as to bring in conformity with the judgment of
this Court referred above;
(v)By virtue of the judgment of this Court dated 08.04.2009,
referred above, Promotee graduate Assistants are placed on par with
Direct recruit Assistants. So far as Promotee non-graduate Assistants
are concerned, the amended rule holds the field, which gives
preferential treatment to Direct recruit Assistants, over Promotee non-
graduate Assistants;
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W.P.(MD)Nos.22537 to 22550 of 2017
(vi)Promotee non-graduate Assistants, who are impleaded as
party respondents in these appeals, are not entitled to any directions in
their favour, as much as, all these appeals are preferred by Direct
recruit Assistants;
(vii)While implementing the above directions, if the seniority
and promotion, of the persons who are already retired or dead, is
affected in any manner, payments made on account of such seniority
and promotion earlier granted to them during the interregnum period,
i.e., from 08.04.2009 till this date shall not be recovered.
(viii)So far as Promotee non-graduate Assistants are concerned,
it is open for them to pursue with the Government for appropriate
amendment to the Rules, in which event we keep it open to Government
to consider such request on its own merits.”
6.It is also admitted that a Division Bench of this Court has followed
the judgment of the Honourable Supreme Court above referred to, in the case
of A.Senthil Kumar and others vs Government of Tamil Nadu represented
by its Principal Secretary and others in W.A.(MD)No.836 of 2018 and batch,
and held as follows:
“27.In the result, the Writ Appeal (MD)Nos.836, 892, 974 and
1683 of 2018 and W.P(MD)No.17169 of 2018 are disposed of as
follows:-
(a) the orders impugned in the writ petitions are set aside and
the matter is remitted back to the first respondent Government to make
necessary amendments to the relevant rules indicating the date of
preparing the seniority list by taking note of the observations and
findings rendered supra.
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W.P.(MD)Nos.22537 to 22550 of 2017
(b) the preparation of seniority list in this case should not go
either by calendar year or by fixing 15th March as the crucial date.
(c) such seniority list is to be prepared by giving a reasonable
gap between the date of preparation of such list and date of
preparation of panel for promotion.
(d) the inter se seniority of the direct recruit assistants shall be
fixed by strictly following the cyclical order referred to under Clause 9
of Annexure IX of the Tamil Nadu Ministerial Service Rules.
(e) the first respondent Government thus shall pass appropriate
orders making amendment to the rules as directed supra within a
period of two months from the date of receipt of a copy of this order.
(f) on the basis of the orders to be passed by the first respondent
Government amending the rules, the authority concerned shall prepare
the subject matter seniority list afresh accordingly within a period of
four weeks thereafter.
(g) the seniority list as well as panel for promotion to the next
higher post shall be prepared for every year without accumulating the
same for years together. No costs. Consequently, connected
Miscellaneous Petitions are closed.”
7.It is to be seen that the prayer in the Writ Petitions has now been
amended in view of the subsequent developments. However, the learned
Counsel for the petitioners in all the cases is unable to categorize the
petitioners. It is now admitted before this Court that only the Graduate
Promotees are entitled to the benefit of order passed by the Honourable
Supreme Court. The learned Counsel for the petitioners is not prepared to
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W.P.(MD)Nos.22537 to 22550 of 2017
disclose or file any affidavit furnishing sufficient informations, as to the
persons, namely, Graduate Promotees, who are entitled to the relief, as
directed by the Honourable Supreme Court.
8.It is also relevant to mention that the petitioners have not impleaded
the Directly Recruited Assistants, who are also interested. Since there are
several other candidates, the petitioners should have impleaded one of the
interested persons in a representative capacity resorting to Rule 2(A) of
Appendix V of Appellate Side Rules applicable to Writ proceedings.
9.The Honourable Supreme Court in the case of Suresh vs Yeotmal
District Central Cooperative Bank Limited reported in (2008) 12 SCC 558,
had an occasion to deal with the fate of writ proceedings in case necessary and
proper parties are not impleaded for an effective adjudication. The
Honourable Supreme Court reiterated in several judgments that if the
petitioners are not inclined to implead the necessary parties, the dismissal of
Writ Petitions on the ground of non joinder of necessary parties cannot be
avoided.
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W.P.(MD)Nos.22537 to 22550 of 2017
10.In this case, when the learned Counsel for the petitioners was duly
informed that these Writ Petitions are liable to be dismissed on the ground of
non joinder of necessary parties, the learned Counsel for the petitioners
submitted that there can be appropriate direction, which would protect the
interest of the petitioners as well as anyone, who are not made as parties in the
proceedings. The learned Counsel for the petitioners then submitted that
subject to the rights reserved for those people, who are not impleaded as
parties before this Court, this Court can very well consider the entitlement of
Graduate Promotees, as per the direction of the Honourable Supreme Court
referred to above. If the Writ Petitions are dismissed, it is likely to affect at
least a few of petitioners, who are entitled to get the relief in the light of the
judgment of the Honourable Supreme Court above referred to. It is also
represented that a rule has been introduced by the State Government pursuant
to the order passed by the Honourable Supreme Court.
11.Learned Counsel Mr.Mohamed Imran, raised an objection that there
are several Directly Recruited Assistants, who are likely to be affected, if any
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W.P.(MD)Nos.22537 to 22550 of 2017
order is passed by this Court and that therefore, they must be permitted to
implead themselves as parties. Even though the matter was already heard
earlier and today no steps have been taken by the learned Counsel for the
petitioners to file a petition to implead the Directly Recruited Assistants as
parties to the lis. Learned Counsel for the petitioners has expressed some
difficulties in identifying the persons, who are all Graduate Promotees. In
view of the reluctance shown by the learned Counsel for the petitioners, this
Court has only two options either to dismiss the Writ Petitions on the ground
of non joinder of necessary parties or to grant relief without affecting the
rights of anyone, whose interest also should be considered along with the
claim of petitioners.
12.In such circumstances, this Court is inclined to pass the following
order.
12.1.The petitioner/s in the above Writ Petitions, who are not Graduate
Promotees Assistants are not entitled to any relief. However, the benefit
extended to all the petitioners, who are Graduate Promotee Assistants are
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W.P.(MD)Nos.22537 to 22550 of 2017
entitled to get the benefit of order passed by the Honourable Supreme Court in
the case of A.Rajagopalan vs District Collector, Thiruchirapalli District and
others, in Civil Appeal Nos.251 to 256 of 2015, dated 12.03.2019.
12.2.Insofar as preparation of seniority list among Graduate Promotee
Assistants, who are entitled to the benefit of judgment of Honourable
Supreme Court above referred to, are concerned, the respondents are directed
to consider the inter se seniority of the Directly Recruited Assistants first
following the cyclical orders, as directed by the Honourable Division Bench
of this Court in W.A.(MD)No.839 of 2018 after hearing the Directly Recruited
Assistants before granting any relief to the Graduate Promotee Assistants, as
per this order. Since the Directly Recruited Assistants are not before this
Court, the respondents shall invite objections from the eligible Directly
Recruited Assistants, before granting any relief. The order passed by this
Court in these Writ Petitions does not prevent the respondents from passing
any order, which the Directly Recruited Assistants are entitled to, as per the
direction of Honourable Supreme Court or by this Court.
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W.P.(MD)Nos.22537 to 22550 of 2017
13.All the Writ Petitions are accordingly disposed of. However, there
shall be no order as to costs. Consequently, connected miscellaneous petitions
are closed.
Index : Yes / No 08.10.2021
Internet : Yes
cmr/tmg
To
1.The Principal Secretary and
Commissioner of Revenue Administration,
Ezhilagam, Chepuak, Chennai – 600 005.
2.The District Collector,
Ramanathapuram District,
Ramanathapuram – 623 503.
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W.P.(MD)Nos.22537 to 22550 of 2017
S.S.SUNDAR, J.
cmr/tmg
Common order made in
W.P.(MD)Nos.22537 to 22550 of 2017
08.10.2021
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