Madras High Court
B.Gurusamy vs The Director Of Treasuries And ... on 21 September, 2021
W.P.(MD) No.16639 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.09.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD) No.16639 of 2016
B.Gurusamy ... Petitioner
vs.
1.The Director of Treasuries and Accounts,
Panagal Building,
Saidapet, Chennai – 600 015.
2.The Director of Industries and Commerce,
SIDCO Building,
Thiru.Vi.Ka.Industrial Estate,
Guindy, Chennai – 600 032. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for records of the first
respondent ie., the Director of Treasuries and Accounts, Chennai relating to his
R.C.No.37409/A3/2016 dated 16.08.2016 and quash the same and consequently
to direct the Director of Treasuries and Accounts, Chennai to post the petitioner
as Assistant Accounts Officer for the year 2015-16 within a specified time frame
that may be fixed by this Court.
1/15
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W.P.(MD) No.16639 of 2016
For Petitioner : Mr.S.Visvalingam
For Respondents : Mr.M.Linga Durai
Government Advocate
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus to quash the impugned order passed by the first respondent, dated
16.08.2016, and to direct the first respondent to post the petitioner as Assistant
Accounts Officer for the year 2015-16 within a time stipulated by this Court.
2.Heard Mr.S.Visvalingam, learned Counsel appearing for the petitioner
and Mr.M.Linga Durai, learned Government Advocate appearing for the
respondents.
3.The petitioner serves in the respondent department as Commercial
Accountant in the Institute of Tool Engineering, Industries and Commerce
Department, Dindigul. The petitioner submitted that the Commissioner and
Director of Industries and Commerce called for proposals for preparation of panel
for appointment of Assistant Accounts Officer in Class IV of Treasuries and
Accounts State Service for the year 2015-16 by transfer among the persons
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W.P.(MD) No.16639 of 2016
holding the posts of Superintendent, Commercial Accountants and Auditors in the
Tamil Nadu Ministerial Service.
4.The petitioner joined in the feeder category, namely, Commercial
Accountant on 10.08.2009 by transfer from other department. It is the case of the
petitioner that as per the seniority list sent by the Commissioner and Director of
Industries and Commerce, Chennai, the petitioner's name was included in the
sixth position in the panel for the post of Assistant Accounts Officer for the year
2015-16. However, it is stated further that in the panel, as approved by the
Director of Industries and Commerce, the petitioner's name was left over. It is the
case of petitioner that his junior, by name, A.S.Raveendran, whose name was
found in serial number 7, as per the previous seniority list prepared by
Commissioner and Director of Industries and Commerce, was included in the
panel approved on 25.02.2016 by the first respondent.
5.It is the case of the petitioner that the seniority list, prepared by the
Commissioner and Director of Industries and Commerce, has been modified by
removing the name of the petitioner and including his junior A.S.Raveendran.
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W.P.(MD) No.16639 of 2016
Since the petitioner's junior has been serving as Assistant Accounts Officer, it is
contended that the impugned order rejecting the petitioner's representation is
arbitrary and illegal. It is also the case of the petitioner that the petitioner's junior,
by name, A.S.Raveendran, joined duty in the post of Commercial Accountant in
25.06.2009 and that the first respondent has decided seniority only by taking into
account the date of joining duty in the post of Commercial Accountant.
6.It is submitted by the learned Counsel appearing for the petitioner that the
seniority in the feeder category, namely, Commercial Accountant, has to be
considered only as per the approved panel for the post of Commercial
Accountant. Since, the petitioner's name was not included in the approved panel
for the post of Commercial Accountant, as per the proceedings, dated 16.06.2009,
it is stated that irrespective of the date of joining of the said A.S.Raveendran, the
petitioner should be considered as senior.
7.It is the further submission of the learned Counsel for the petitioner that
the date of joining in the promoted post depends upon the date on which the then
incumbent was relieved from the earlier post and that therefore, seniority should
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W.P.(MD) No.16639 of 2016
be considered based on the seniority in the approved panel and not based on the
date of joining in the promoted post. Since the first respondent in his impugned
letter, dated 16.08.2016, justified the promotion given to his junior
Thiru.A.S.Raveendran, on the basis of his date of joining in the feeder category, it
is contended that the decision of first respondent is fundamentally wrong. The
learned Counsel also argued that Rule 11 of Tamil Nadu State Treasuries and
Accounts Service Special Rules quoted by first respondent is irrelevant, as the
said rule meant for inter se seniority between the selected Accounts Officer of the
various departments and department of Treasuries and Accounts.
8.The first respondent has filed a detailed counter affidavit. After referring
to the sequence of events and the relevant rules under Tamil Nadu State
Treasuries and Accounts Services Special Rules, in paragraph 15 of the counter
affidavit, it is stated as follows:
“15.With regard to the averments made by the petitioner on the
grounds (E & F) of the affidavit, it is submitted that as per Rule 3(g) and
11 of the Tamil Nadu State Treasuries and Accounts Services Special
Rules, Five (5) candidates from the Department of Industries and
Commerce according to their seniority based on their date of joining in the
feeder category, including Thiru.A.S.Raveendran who has joined in the
post of Commercial Accountant on 25.06.2009 were considered and
included in the panel of Assistant Accounts Officers for the year
2015-2016. As per Rule 11 of Tamil Nadu State Treasuries and Accounts
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W.P.(MD) No.16639 of 2016
Services Special Rules the seniority of the personnel recommended from
other departments are assigned with reference to their category. On
verifying the Service Register and Proforma-A, the petitioner herein joined
as Commercial Accountant on 01.08.2009, whereas, Thiru.A.S.Raveednran
joined as Commercial Accountant on 25.06.2009. Hence, the petitioner
herein is junior to Thiru.A.S.Raveendran. In view of the above Rule
position, the plea of the petitioner has been rejected on 16.08.2016 vide in
the 1st respondent's letter No.37409/A3/2016. It is further submitted that
the contention made by the petitioner in this instant case is relevant to his
parent Department and the 1st respondent could not do anything in this
regard. Therefore, the act of the 1st respondent herein is in accordance
with law and as per the rule provisions.”
9.The post of Assistant Accounts Officer is the entry level post in the Tamil
Nadu State Treasuries and Accounts Services. The recruitment to that post is
governed by the rules called, “Tamil Nadu State Treasuries and Accounts Service
Special Rules”. The recruitment can also be by promotion by considering the
Superintendent/Special Treasury Officer in Treasuries and Accounts Department
and the holder of similar supervisory posts carrying pay not less than that of
Superintendent in other services. Hence, several other persons from other
departments are also considered to the post of Assistant Accounts Officer. When
a proposal was submitted to sponsor eligible candidates for preparation of panel
for appointment to the post of Assistant Accounts Officer for Class IV Treasuries
and Accounts State Service for the year 2015-16, the second respondent sent the
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W.P.(MD) No.16639 of 2016
list of qualified persons for consideration for the post of Assistant Accounts
Officer.
10.As per the Rule 3(g) of Tamil Nadu State Treasuries and Accounts
Services Special Rules, out of five vacancies, the first two vacancies shall be
reserved for the Superintendent belonging to the Treasuries and Accounts
Department and the remaining three vacancies shall be filled up from other
department employees holding similar supervisory post carrying equal scale of
pay. It is specifically stated by the respondents in the counter affidavit that the
Special Rules was retrospectively amended following the observation made by
the Tamil Nadu Administrative Tribunal and the Honourable Divisional Bench of
this Court in a judgment, dated 01.08.2006, made in W.P.Nos.35340 and 36083 of
2002.
11.It was pointed out in the counter affidavit that the department had eight
candidates for consideration in the panel of Assistant Accounts Officer for the
year 2015-16 by a letter of the second respondent, dated 22.09.2015. Since the
five candidates from the department of Industries and Commerce, according to
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W.P.(MD) No.16639 of 2016
their seniority, has been selected based on their date of joining, one
A.S.Raveendran, who joined in the post of Commercial Accountant on
25.06.2009 (prior to the joining of the petitioner in the feeder category), was
included in the panel. It is the specific case of the respondents in the counter
affidavit that no junior to the petitioner was included in the panel of Assistant
Accounts Officer in the year of 2015-16.
12.It is the case of the respondents that as per Rule 11 of Tamil Nadu State
Treasuries and Accounts Services Special Rules, the seniority of persons
recommended from other departments are assigning with reference to their
regular appointment in the feeder category, that is the date of joining in the feeder
category. It was, therefore, contended further that the selection for the
appointment to the post of Assistant Accounts Officer has been made in
accordance with the Rules.
13.Admittedly, the petitioner joined as Commercial Accountant on
10.08.2009, whereas, Mr.A.S.Raveendran, joined as Commercial Accountant on
25.06.2009. When the petitioner's name could not be considered in the panel of
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Assistant Accounts Officer for the year 2015-16, earlier the petitioner filed a Writ
Petition in W.P.(MD)No.11519 of 2016, to direct the first respondent to pass
appropriate orders on the petitioner's representation, dated 02.03.2016 for
inclusion of his name in the approved list of Assistant Accounts Officer for the
year of 2015-16. This Court disposed of the said Writ Petition with a direction to
the first respondent to pass appropriate orders on the petitioner's representation,
dated 02.03.2016. Thereafter, the order impugned in this Writ Petition has been
passed by the first respondent rejecting the petitioner's representation, dated
02.03.2016.
14.According to the first respondent, the representation of the petitioner
was rejected by applying the Rule 3(g) and 11 of Tamil Nadu State Treasuries and
Accounts Services Special Rules. Since five candidates from the department of
Industries and Commerce, according to their seniority, were arrived at and the
name of Thiru.A.S.Raveendran, who joined in the post of Commercial Accountant
(feeder category) on 25.06.2009, was rightly included in the panel.
15.The learned Counsel appearing for the petitioner submitted that the date
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W.P.(MD) No.16639 of 2016
of joining in the service is not relevant and that the seniority should be
determined with reference to the date of appointment. The learned Counsel also
relied upon Section 40 of Tamil Nadu Government Servants (Conditions of
Service) Act, 2016 (hereinafter referred to as “the Act”). Section 40 of the Act
reads as follows:
“40. (1) The seniority of a person in a service, class, category or
grade shall, unless he has been reduced to a lower rank as a punishment,
be determined in the order of his placement in the list prepared by the
recruitment agency or appointing authority, as the case may be, in
accordance with the rule of reservation and the order of rotation specified
in Schedule-V, where it applies. The date of commencement of his
probation shall be the date on which he joins duty irrespective of his
seniority.
(2) The seniority of a person in a service, class, category or grade
shall, where the normal method of recruitment to that service, class,
category or grade is by more than one method of recruitment, unless the
individual has been reduced to a lower rank as a punishment, be
determined with reference to the date on which he is appointed to the
services, class, category or grade: Provided that where the junior
appointed by a particular method of recruitment happens to be appointed
to a service, class, category or grade, earlier than the senior appointed by
the same method of recruitment, the senior shall be deemed Appointment
of full members. Appointment as full member, discharge and reappointment
of member who are not probationers or approved probationers. Penalty for
failure to pass prescribed test. Fixation of seniority. 32 to have been
appointed to the service, class, category or grade on the same day on
which the junior was so appointed: Provided further that the benefit of the
above proviso shall be available to the senior only for the purpose of fixing
inter-se-seniority: Provided also that where persons appointed by more
than one method of recruitment are appointed or deemed to have been
appointed to the service, class, category or grade on the same day, their
inter-se-seniority shall be decided with reference to their age.
(3) The transfer of a person from one class or category of a service
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to another class or category carrying the same scale of pay or pay band
shall not be treated as first appointment to the latter for purpose of
seniority and the seniority of a person so transferred shall be determined
with reference to the rank in the class or category from which he was
transferred; where any difficulty or doubt arises in applying this provision,
seniority shall be determined by the appointing authority.
(4) Where a member of any service, class, category or grade is
reduced to a lower service, class, category or grade he shall be placed at
the top of the latter unless the authority ordering such reduction directs
that he shall take rank in such lower service, class, category or grade, next
below any specified member thereof.
(5) The seniority of any person in a service or post of the merged
territory of Pudukkottai, who is absolutely in a service or post under the
Government of Tamil Nadu shall be determined as follows:— (i) If he is
absorbed in a post similar to that which he was formerly holding in the
service of the merged territory of Pudukkottai, his seniority shall be
determined by the date from which he was holding the former post
continuously. (ii) If he is absorbed in a post of a higher cadre carrying a
higher scale of pay than that which he was formerly holding in the service
of the merged territory of Pudukottai his seniority shall be determined by
the date on which he joined the post under the Government of Tamil Nadu.
(iii) If he is absorbed in a post other than those specified in clauses (i) and
(ii), which does not improve his cadre and scale of pay in the service of the
merged territory of Pudukottai, his seniority shall be determined on the
basis of merit.
(6) Application for the revision of seniority of a person in a service,
class, category or grade shall be submitted to the appointing authority
within a period of three years from the date of appointment to such service,
class, category or grade or within a period of three years from the date of
order fixing the seniority, as the case may be. Any application received
after the said period of three years shall be summarily rejected. This shall
not, however, be applicable to cases of rectifying orders, resulting from
mistake of facts.
16.Relying upon the said provision, it is contended that as per Section
40(2) of the Act, the seniority should be decided with reference to the date, on
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W.P.(MD) No.16639 of 2016
which the employee was appointed to the service and not from the date on which
he joined duty. It is not in dispute that the petitioner was transferred from other
department. If preference has to be given to the persons, who are serving in the
Accounts Department, there is no illegality in the present order rejecting the
representation of the petitioner. The petitioner has not challenged any Rule or
provisions of Tamil Nadu Government Servants (Conditions of Service) Act,
2016.
17.The petitioner having been appointed in August 2009 long after the
appointment of A.S.Raveednran, this Court is unable to accept the arguments of
the learned Counsel appearing for the petitioner. The petitioner is not one among
the group of A.S.Raveendran and the petitioner's case cannot be considered
comparing A.S.Raveendran. Section 40 of the Act has no application to the
present context. The general rule relating to the recruitment is expressed in
Section 40 of the Act. The seniority of a person in a service shall be determined
in the order of his placement in the list prepared by the recruitment agency or
appointing authority, as the case may be. When the normal method of recruitment
is made by more than one method of recruitment, the seniority of persons shall be
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W.P.(MD) No.16639 of 2016
determined with reference to the date on which the candidate is appointed to the
service, class or category or grade. Proviso to Section 40(2) of the Act also
explains the rules how seniority among the persons should be fixed, where a
junior is appointed by a particular method of recruitment.
18.As stated in the counter affidavit by the first respondent, the points
raised in the Writ Petition have no merits, having regard to the specific rules of
the Tamil Nadu State Treasuries and Accounts Services Special Rules. When the
petitioner herein joined as Commercial Accountant long after the date of joining
of Thiru.A.S.Raveendran, as Commercial Accountant, the plea of the petitioner
has to be rejected and hence, the impugned order rejecting the representation of
the petitioner is supported by the rules and reasons. This Court is unable to find
any irregularity in the impugned order.
19.Accordingly, the Writ Petition is dismissed. However, no order as to
costs.
Index : Yes / No 21.09.2021
Internet : Yes
tmg/cmr
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W.P.(MD) No.16639 of 2016
To
1.The Director of Treasuries and Accounts,
Panagal Building,
Saidapet, Chennai – 600 015.
2.The Director of Industries and Commerce,
SIDCO Building,
Thiru.Vi.Ka.Industrial Estate,
Guindy, Chennai – 600 032.
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.16639 of 2016
S.S.SUNDAR, J.
tmg/cmr
Order made in
W.P.(MD) No.16639 of 2016
21.09.2021
https://www.mhc.tn.gov.in/judis/
