Madras High Court
T.S.Selvaraj vs The Government Of Tamil Nadu on 19 April, 2023
W.P.No.8451 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.04.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.8451 of 2016
and
W.M.P.Nos.7520 & 7521 of 2016
1. T.S.Selvaraj
S/o.Subramani
2. N.Chandrasekaran
S/o.R.P.Narayanan
3. V.Azhagappan
S/o.A.Vaithilingam
4. K.Dinakaran
S/o.S.Kuppusamy
5. P.Parthiban
S/o.A.Poovalingam .... Petitioners
Vs
1. The Government of Tamil Nadu
Represented by its Secretary,
Department of Employment & Training,
Fort St. George, Chennai – 600 009.
2. The Director,
Directorate of Employment & Training,
Guindy, Chennai – 600 032.
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W.P.No.8451 of 2016
3. The Joint Director,
Directorate of Employment & Training,
Guindy, Chennai – 600 032.
4. R.Chinnakaruppan,
Assistant Training Officer,
Government I.T.I.,
Virudhunagar.
5. D.K.Sivakumar,
Assistant Training Officer,
Government I.T.I.,
Dharmapuri. .... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorarified Mandamus calling
for the records of the respondent-2 in connection with the proceedings
bearing Ref.Na.Ka.No.TP1/44072/2015, dated 29.02.2016 confirming
the proceedings of the second respondent bearing SEMU
No.TP1/44072/2015 dated 14.12.2015 and quash the same and direct the
2nd respondent herein to prepare the seniority list of Junior Training
Officer now called as Assistant Training Officer in accordance with the
rules and based on the date of regularization of the service of the
concerned officer.
For Petitioner : Mr.T.R.Sundaramurthy
For R1 to R3 : Mr.T.Chezhian
Additional Government Pleader
For R4 & R5 : Mr.L.Chandra Kumar
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W.P.No.8451 of 2016
ORDER
This Writ Petition has been filed for issuance of a Writ of
Certiorarified Mandamus calling for the records of the respondent-2 in
connection with the proceedings bearing Ref.Na.Ka.No.TP1/44072/2015,
dated 29.02.2016, confirming the proceedings of the second respondent
bearing SEMU No.TP1/44072/2015 dated 14.12.2015 and quash the
same and direct the 2nd respondent herein to prepare the seniority list of
Junior Training Officer, now called as Assistant Training Officer, in
accordance with the Rules and based on the date of regularization of the
service of the concerned officer.
2. The case of the petitioners is that they joined service of the
Directorate of Employment and Training on 04.02.1995, 06.02.1995,
07.02.1995, 10.02.1995 and 09.02.1995 by order of the appointment
issued on 31.01.1995 by the Employment Exchange under Rule10(a)(i)
of the General Rules framed under the Tamil Nadu State and Subordinate
Service Rules. The private respondents 4 and 5 were impleaded in the
representative capacity, who were also appointed on 31.01.1995 in the
same manner as Junior Training Officers. The service of the petitioners,
was regularised, as also the private respondents, with effect from the date
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W.P.No.8451 of 2016
of joining. Thereafter, a seniority list was published. On 14.12.2015,
the second respondent finalized the seniority list for the Assistant
Training Officer/Junior training Officer, wherein it is stated that the first
petitioner was regularised on 04.02.1995 and the private respondents
were regularised later.
3. The second respondent had prepared a seniority list on
14.12.2015, viz., the impugned seniority list and the same was issued to
the petitioners on 04.01.2016. Immediately, they gave their objections
to the seniority list as soon as the list was served on them viz., on
04.01.2016. By the order dated 29.02.2016 served on the petitioners on
02.03.2016, it is stated that the objections have been rejected and the
seniority list dated 14.12.2015 was confirmed and the respondents 1 to 3
are proposing to act upon the seniority list dated 29.02.2016 bearing
Ref.Proc.No.TP.1/44072/2015 by issuing promotion orders to the
petitioners' juniors. Therefore, the petitioners filed the present writ
petition as against the impugned seniority list to quash the same and to
prepare fresh list.
4. The learned counsel for the petitioners submitted that the
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W.P.No.8451 of 2016
private respondents were appointed on the same day by Employment
Exchange under Rule 10(a)(i) of the General Rules framed under the
Tamil Nadu State and Subordinate Service Rules. The petitioners as well
as the private respondents were regularised in service in terms of Rule
23(a)(i) of the Tamil Nadu State and Subordinate Service Rules and the
petitioners herein were regularised earlier to the respondents 4 and 5. In
the above circumstances, the petitioners are to be placed above 4th and 5th
respondents, instead they have been placed below the 4th and 5th
respondents.
5. As per the Rule 10(a)(i) of the Tamil Nadu State and
Subordinate Service Rules, service of the employee cannot be regulated
for the purpose of seniority and only it can be reckoned only after the
service has been regularised. The petitioners' service was regularised
earlier to the respondents 4 and 5. The petitioners 1 to 3 cannot be
treated in the same lines as that of as the private respondents and they
have to be placed above the respondents. Further no opportunity was
given to the petitioners before rejection of the said objections and the
same is in violation of Natural Justice. Therefore, the petitioners were
constrained to file this writ petition before this Court for setting aside the
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W.P.No.8451 of 2016
said impugned seniority list and to prepare a fresh list.
6. A counter affidavit has been filed by the respondents 2 and 3
stating that the post of Junior Training Officer is the feeder category for
promotion to the post of Training Officer. The petitioners and the
respondents 4 and 5 were enlisted in the order of seniority in the post of
Junior Training Officer in a panel for promotion to the post of Training
Officer in the second respondent's proceedings No.TP1/44072/2015
dated 14.12.2015 under Diploma Holder category. The petitioners'
appointment made by Rule 10(a)(i) may not be reckoned for the purpose
of seniority and hence they made a representation to the second
respondent and requested to revise their seniority in accordance with the
date of regularisation of service and re-issue the panel. As the claim of
the petitioners, was barred by the Rules, their objections were rejected
and the seniority list was confirmed.
7. The petitioners and the respondents 4 and 5 were directly
recruited to the post of Junior Training Officer in various trades during
the year 1995. The Joint Director (Craftsmen Training Scheme) is the
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W.P.No.8451 of 2016
appointing authority to the said posts. According to Category 3 under
Rule 2(a) of Section 7B of the Tamil Nadu Employment and Training
Subordinate Services Rules under the Tamil Nadu Services Manual
Volume III, the appointment criteria to the post of Junior Training
Officer, is extracted as below :
“ 2(a) Appointment : - Appointment to the several classes and
categories shall be as follows :
Category Method of Appointment
3. Junior Training Officer in (i) By promotion ; or
various trades including Drawing (ii) By Direct recruitment ; or
and Mathematics in the Industrial (iii) By recruitment by transfer
Training Institutes/Centres from any other class or category
of the same service ; or
(iv) Recruitment by transfer
from any other service
8. As per the said category, the qualifications fixed as per
Annexure [Referred to in Rule 5(b)] for direct recruitment to the post of
Junior Training Officer is “Craftsmen Training Diploma in the
appropriate trade issued by the Government of India and practical
experience for a period not less than 3 years in a recognized
Engineering concern”. The petitioners and the respondents 4 and 5 have
been recruited directly as Junior training Officer in the Department of
Employment and Training from the list of candidates sponsored by the
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Employment Exchanges under Rule 10(a)(i) of the General Rules framed
under the Tamil Nadu State and Subordinate Service Rules following the
Rules of Reservation (Roster System) in accordance with General Rule
22 during the year 1995. The date of issue of appointment orders and the
date of entry into service of the petitioners and the respondents 4 & 5 are
as follows :
S. Name Ref.No and date Trade Date of Sl.No in
No of appointment entry into the
order service as Seniority
JTO list
1 T.S.Selvaraj 66444/TP2/94 Fitter 04.02.1995 83
31.01.95
2 N.Chandrasekaran 66444/TP2/94 Drawing 06.02.1995 82
31.01.95
3 V.Azhagappan 66444/TP2/94 Machinist 08.02.1995 97
31.01.95
4 K.Dinakaran 66444/TP2/94 Allied 10.02.1995 86
31.01.95 Trade
5 P.Parthiban 66444/TP2/94 Fitter 09.02.1995 61
31.01.95
6 R.Chinnakaruppan 66444/TP2/94 Machinist 10.02.1995 19
31.01.95
7 D.K.Sivakumar 66444/TP2/94 Allied 06.02.1995 25
31.01.95 Trade
9. The petitioners and respondents 4 and 5 have been regularised
by the third respondent from their date of joining and probation was
declared as per the Rules in force. As per G.O.Ms.No.292, Labour and
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W.P.No.8451 of 2016
Employment Department, dated 13.12.2013, promotion to the post of
Training Officer in Industrial Training Institute/Centre has to be made in
the ratio of 1 : 1 between the Degree/Diploma Holders and Certificate
Holders with S.S.L.C and five years service as Assistant Training
Officers, provided, if no Degree/Diploma Holder or Certificate Holder is
available for promotion as per the terms in the cyclical order, the vacancy
shall be filled by a person having the qualifications mentioned in the next
turn in the cycle.
10. Accordingly, the second respondent initiated action for filling
up the post of vacant Training Officers by promotion and a seniority list
of Diploma Holders was prepared, enlisting the name of 136 officials
including the petitioners, 4th and 5th respondents in the Order
No.TP1/44072/2015, dated 14.12.2015. The main contention is that the
date of joining, date of completion of probation and the date of
regularisation of the petitioners and the respondents were not considered
for determination of seniority among the Diploma Holders recruited
directly in the year 1995 for the post of Junior Training Officers, the said
objections were duly examined and the same was rejected and the
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W.P.No.8451 of 2016
seniority list issued earlier was confirmed.
11. It is seen that Rule 10(a)(i)(1) of the said Rules provides for
making up of temporary appointment, when it is necessary in the public
interest to do so owing to an emergency which has arisen for filling up a
vacancy immediately. Such appointments are made in accordance with
the procedures prescribed under the relevant Rules. The petitioners and
the private respondents have been discharging their duties as Junior
Training Officer uninterruptedly from the date of their first appointment.
Their probation period was also completed as per Rule 23(a) of the Tamil
Nadu State and Subordinate Service Rules. Wherein, the appointing
authority may, in his discretion, allow such person to commence his
probation if any, from the date of his first temporary appointment or from
such subsequent date, as the appointing authority may determine,
provided the date so determined by the appointing authority to
commence probation, shall not be earlier than the date of commencement
of probation of the junior most person already in service. Though the
petitioners and the respondents were initially appointed under Rule
10(a)(i) subsequently by order dated 14.07.1997 they were regularised
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W.P.No.8451 of 2016
with effect from the date of joining.
12. Accordingly, if the person, who had been appointed thereto
either under General Rule 10(a) or 10(d) and included in the list of
approved candidates, the appointing authority may, in his discretion,
allow such person to commence his probation if any, from the date of his
first temporary appointment from such subsequent date, as the appointing
authority may determine. The mode of direct recruitment to the post of
Junior Training Officer is only by one method where the Diploma
Holders are sponsored by Employment Exchanges and appointment is
made after a selection process. Therefore, seniority in the post of Junior
Training Officer is fixed as per Rule 35(a) of Tamil Nadu State and
Subordinate Service Rules, which reads as follows :
“35(a) The seniority of a person in a service, class
or category or grade shall unless he has been reduced to
a lower rank as a punishment be determined by the rank
obtained by him in the list of approved candidates drawn
up by the Tamil Nadu Public Service Commission or
other Appointing Authority, as the case may be, subject to
the rule of reservation where it applies. The date of
commencement of his probation shall be the date on
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W.P.No.8451 of 2016
which he joins duty irrespective of his seniority”
13. Accordingly, the petitioners and respondents 4 and 5 were
appointed under Rule 10(a)(i) and they were enlisted for seniority as per
Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules. The
Government was requested to clarify the methodology to be adopted for
fixing the inter-se seniority of Diploma Holders, who were directly
recruited to the post of Junior Training Officer and Certificate Holders in
Letter No.44072/TP1/2015, dated 16.03.2016. The Government, by letter
dated 05.04.2016, had stated that the Labour and Employment (P2)
Department has clarified that the seniority among them has to be fixed as
per Rule 35(a) . The seniority list was prepared only as per Rule 35(a).
The claim of the petitioners is that their seniority has to be reckoned only
from the date on which services are regularised. In the Judgment
reported in AIR 1990 SC 1607, in a case of Direct Recruit Class II
Engineering Officers Association Vs. The State of Maharashtra, in
which the Hon'ble Supreme Court of India held that “if the appointment
is made after considering the claims of all eligible candidates and the
appointee continues in the post uninterruptedly till the regularisation of
his service in accordance with the rules made for regular substantive
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W.P.No.8451 of 2016
appointments, there is no reason to exclude the officiating service for
purpose of seniority”.
14. The respondents filed additional counter affidavit stating that
the Junior Training Officers are appointed based on two different
qualifications, viz., Diploma Holders and Certificate Holders. The
Diploma Holders are recruited only through direct recruitment by
following Roster system. As per the Roaster system only, the seniority
was fixed based on Rule 35(a) of Tamil Nadu State and Subordinate
Service Rules. The inter-se seniority is fixed between Diploma Holders
and Certificate Holders by fixing their seniority as per the date of
appointment. In the case of Diploma Holders, large number of Diploma
Holders were appointed on the same date and their seniority is fixed on
the basis of Roster system and inserted on the date of appointment in the
combined seniority list. The seniority of all the Junior Training Officers
is fixed and published, vide Joint Director (Craftsmen Training)
Proceedings No.4880/Tho.Nu.Pa.3/1999, dated 10.06.1999 with
Annexures 1 to 36. They were promoted to the post of Assistant
Training Officer by following the above seniority in Junior Training
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W.P.No.8451 of 2016
Officer post in the already existing Roster seniority. They have also
accepted the seniority and joined in the promoted place as per the order
without any objection.
15. As per G.O.(Ms) No.291 & 292, Labour and Employment
Department, dated 13.12.2013, 1:1 ratio is to be followed for promotion
to the post of Training Officer and accordingly, a separate seniority list
was prepared for Diploma Holders and Certificate Holders. The seniority
list of all trade Junior Training Officers were merged and split into
qualification by seniority i.e., Diploma Holders and Certificate Holders.
Likewise, a separate seniority list is prepared for Diploma Holders and
Certificate Holders respectively. The panel for promotion to Training
Officer post is prepared by allotting one vacancy to Diploma Holder and
one vacancy to Certificate Holders alternatively. As per the estimate of
vacancy approved by the appointing authority, the Diploma Holders and
Certificate Holders were substituted alternatively to prepare the Training
Officer panel and promotion.
16. As per G.O.(Ms) No.291 & 292, Labour and Employment
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W.P.No.8451 of 2016
Department, dated 13.12.2013, the available vacancies for Training
Officer promotion is divided into 50% each for Diploma Holders and
Certificate Holders. The Diploma Holders are appointed by direct
recruitment in the entry level. Based on the Roster system, for fixing
seniority for direct recruitment, Rule 35(a) is applicable. Since the
petitioners and the respondents are Diploma Holder and are recruited in
single method through Employment Exchange, Rule 35(aa) is not
applicable. For the direct recruitment, Roster system is followed and the
petitioner is in Sl.No.83 of the Roster. All the petitioners and
respondents 4 and 5 are Diploma holders and hence there is no violation
of seniority. Accordingly, the said seniority list was published only in
accordance with existing Rules and G.Os.
17. As per the said G.O.(Ms) Nos.291 and 292, dated 13.12.2013,
the implementation of the revised staffing pattern in the Industrial
Training Institutes/Industrial Training Centre of Tamil Nadu, fixing the
ratio between the Diploma/Degree Holders and Certificate Holders as
1:1:1, is as follows :
“Promotion in the ration of 1:1:1 as between
a) Degree/Diploma Holders ;
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W.P.No.8451 of 2016
b) Certificate holders with SSLC and five years
service as Assistant Training Officers ;
c) Certificate holders with ESLC or III Form, or
VIII Standard a d 10 years as Assistant Training Officers,
in the above cyclical order ;”
18. This was also amended vide G.O.Ms.No.292, Labour and
Employment Department, dated 13.12.2013, wherein the said Special
Rules, in Rule 2, in the Tabular Column under Sub-rule(a) under the
heading Class-I in Column (2) against the Category “(1) Training
Officers in the Industrial Training Institutes/Centres”. In Column (1)
thereof, for item (ii) and the entries relating thereto the following shall be
substituted, namely :-
“(ii) Promotion in the ration of 1:1 as between
(a) Degree/Diploma Holders ; and
(b) Certificate Holders with S.S.L.C and five
years service as Assistant Training
Officers;”
19. Accordingly, the seniority list has been prepared by following
the above said G.O.(Ms) No.291, and later as per amended G.O.(Ms)
No.292. As per Rule 35(a), the Roster rank and seniority have been fixed.
There is no error in following Rule 35(a) Roster rank and accordingly,
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W.P.No.8451 of 2016
the petitioners are placed below respondents 4 and 5. Thereafter, there
are two more selection lists released and the petitioners have also
accepted the same and they are serving in the said post. Hence, this
Court finds that there is no such error committed in fixing the seniority,
as only Roster system has been followed under Rule 35(a) and this Court
is not inclined to accept the case of the petitioners and does not want to
interfere with the settled proposition of seniority.
20. In the result, this Writ Petition stands dismissed.
Consequently, connected miscellaneous petitions are closed. No costs.
19.04.2023
Index : Yes/No
Neutral citation : Yes/No
Speaking/Non Speaking order
Lpp
To
1. The Government of Tamil Nadu
Represented by its Secretary,
Department of Employment & Training,
Fort St. George, Chennai – 600 009.
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W.P.No.8451 of 2016
2. The Director,
Directorate of Employment & Training,
Guindy, Chennai – 600 032.
3. The Joint Director,
Directorate of Employment & Training,
Guindy, Chennai – 600 032.
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W.P.No.8451 of 2016
V.BHAVANI SUBBAROYAN,J
Lpp
W.P.No.8451 of 2016
and
W.M.P.Nos.7520 & 7521 of 2016
19.04.2023
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