Madras High Court
Arthanari vs Vr Palanivelrajan on 23 September, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 30.07.2024
PRONOUNCED ON 23.09.2024
CORAM :
JUSTICE N.SESHASAYEE
and
JUSTICE P.VADAMALAI
W.A(MD)Nos.301, 352, 1198 and 1249 of 2020
W.A.(MD) No.301 of 2020:
1.Arthanari
2.K.Shanmugasundari
3.S.Sandanagopalan
4.S.S.Elangovan
5.Jayanthilal
6.K.Jeeva ...Appellants 1 to 6/Respondents 5, 9 to 13
Vs
1.VR Palanivelrajan
2.The State of Tamil Nadu
Rep., by its Additional Chief Secretary to Government,
Finance (Local Fund) Department,
Fort.St.George, chennai – 09.
3.The Director of Local Fund Audit,
Amma Complex,
1/40
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
4th Floor, Nanthanam,
Chennai 600 035.
4.Mr.R.Sankaran
5.S.Kalavathi
6.R.Thangapandian
7.P.Santhasorubarani
8.A.Kathiresan .... Respondents 2 to 8/
Respondents 1 to 4 and 6 to 8
PRAYER: Appeal filed under Clause 15 of Letters Patent against the order dated
30.01.2020 made in W.P.(MD) No.23740 of 2018 on the file of this Court.
For Appellants : Mr.T.Lajapathiroy
Senior Counsel
assisted by
Mr.T.Aswin Rajasimman
For R1 : Mr.V.Raghavachari
Senior Counsel
assisted by Mr.S.Louis
For R2 & R3 : Mr.R.Baskaran
Additional Advocate General
assisted by Mr.A.Baskaran
Additional Government Pleader
W.A.(MD) No.352 of 2020:
1.G.Sukhanya
2.E.Nagalakshmi
3.M.Pandiselvi
4.L.Balakumar
5.S.Krishnaveni
6.A.Jaya
2/40
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7.S.Selvi
8.K.Dhanapandian
9.B.Sivakumar
10.N.R.Nagarajan
11.S.Sankaranarayanan
12.S.Sasirekha
13.C.N.Janaki
14.R.Chitra
15.Vennila ... Appellants/
3rd Parties
Vs
1.VR Palanivelrajan ... 1st Respondent/Writ Petitioner
2.The State of Tamil Nadu
Rep., by its Additional Chief Secretary to Government,
Finance (Local Fund) Department,
Fort.St.George, Chennai – 09.
3.The Director of Local Fund Audit,
Combined Finance Department Office Complex,
4th Floor, Nanthanam,
Chennai-600 035. ... Respondents 2 & 3/
Respondents 1 & 2
PRAYER: Appeal filed under Clause 15 of Letters Patent against the order dated
30.01.2020 made in W.P.(MD) No.12649 of 2019 on the file of this Court.
For Appellants : Mr.S.Ramsundarvijayaraj
for M/s.Veera Associates
For R1 : Mr.V.Raghavachari
Senior Counsel
3/40
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assisted by Mr.S.Louis
For R2 & R3 : Mr.R.Baskaran, Additional Advocate General
Assisted by Mr.A.Baskaran
Additional Government Pleader
W.A.(MD) No.1198 of 2020:
1.The State of Tamil Nadu,
Rep., by its Additional Chief Secretary to Government,
Finance (Local Fund) Department,
St. George Fort, Chennai-600 009.
2.The Director of Local Fund Audit,
Amma Complex, 4th Floor,
Nanthanam, Chennai-600 035. ... Appellants/
Respondents
Vs
1.VR Palanivelrajan ... 1st Respondent/Writ Petitioner
2.R.Sankaran
3.S.Kalavathi
4.R.Arthanari
5.R.Thangapandian
6.P.Santhasorubarani
7.A.Kathiresan
8.K.Shanmugasundari
9.S.Sandanagopalan
10.S.S.Elangovan
11.D.Jayanthilal
12.K.Jeeva ... Respondents 2 to 12/
Respondents 3 to 13
PRAYER: Appeal filed under Clause 15 of Letters Patent against the order dated
4/40
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30.01.2020 made in W.P.(MD) No.23740 of 2018 on the file of this Court.
For Appellants : Mr.R.Baskaran, Additional Advocate General
Assisted by Mr.A.Baskaran
Additional Government Pleader
For R1 : Mr.V.Raghavachari, Senior Counsel
Assisted by Mr.S.Louis
For RR3 to 9 & 12 : No appearance
For RR2, 10 & 11 : Unserved
W.A.(MD) No.1240 of 2020:
1.The State of Tamil Nadu,
Rep., by its Additional Chief Secretary to Government,
Finance (Local Fund) Department,
St. George Fort, Chennai-600 009.
2.The Director of Local Fund Audit,
Amma Complex, 4th Floor,
Nanthanam, Chennai-600 035. ... Appellants/
Respondents
Vs
VR Palanivelrajan ... Respondent/Writ Petitioner
PRAYER: Appeal filed under Clause 15 of Letters Patent against the order dated
30.01.2020 made in W.P.(MD) No.12649 of 2019 on the file of this Court.
For Appellants : Mr.R.Baskaran
Additional Advocate General
Assisted by Mr.A.Baskaran
Additional Government Pleader
5/40
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For Respondent : Mr.V.Raghavachari
Senior Counsel
Assisted by Mr.S.Louis
COMMON JUDGMENT
(Judgment was delivered by N.SESHASAYEE, J.)
1. The challenge in this batch of four appeals is to a common order passed by the
learned Single Judge in W.P.(MD) No.23740 of 2018 and W.P.(MD) No.12649 of
2019, dated 30.01.2020, both of which are filed by the respondent Palanivelrajan.
Of the four, two appeals are preferred by the State and the other two appeals are
preferred by some of the private respondents as well as third parties who felt
aggrieved by the Order of the learned Single Judge.
2. The post of Assistant Inspectors of Local Fund Audit is the lowest rung in the
hierarchy and it is the feeder category for the next promotional post of Deputy
Inspector of Local Fund Audit, which in turn serves as the feeder category for
Inspector of Local Fund Audit and the ladder goes up. So far as appointment to
the post of Assistant Inspectors is concerned, as earlier stated, it is filled up by
two separate channel of appointment: (i) one is by Direct Recruitment (hereinafter
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would be referred to as the direct recruitees); and (ii) the other is through transfer
and promotion from among those who are below the cadre of the Assistant
Inspector of Local Fund Audit from the same Department or from the State
Trading Scheme Department (henceforth would be termed as the promotees).
And, the ratio of appointment by direct recruitment to the transfer-promotion is
4:1. The controversy here relates to the inter se seniority as between those who
are transferred and promoted to the post of Assistant Inspectors of Local Fund
Audit, and those who are directly appointed to the said post. And, this batch of
cases is one among in the series of cases which started in 2008. The facts unfold
as below:
a) According to the direct-recruitees, prior to 2001, the TNPSC did not notify
the vacancies to the post of Assistant Inspector, though there was an
aborted attempt for the year 1994-1995. As a result, the Director of Local
Fund Audit filled up the vacancies of Assistant Inspector which were
required to be filled up through direct recruitment by transfer and
promotion from junior cadre. According to the direct recruitees TNPSC
has notified the vacancies for the year 1996-1999, and commenced the
selection process and it culminated in the appointment of direct recruitees
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in 2001. In the meantime, appointment to the post of Assistant Inspector
was made by transfer from lower cadre temporarily.
b) Even though temporary filling up of vacancies was permitted under the
Service Rules, yet such temporary appointment cannot be counted for
promotion.
c) While so, a combined seniority list dated 18.12.2007 came to be published
without reference to 4:1 quota and it came to be challenged by the direct
recruitees in W.P.(MD) Nos.3823 of 2008 and 6508 of 2008.
d) During the pendency of these writ petitions, the Government issued G.O.
(Ms).No.261, Finance (Local Fund) Department, dated 24.06.2009 which
prescribed the procedure for regularisation of the promotees retrospectively
from 15.03.1994. Pursuant to G.O.261, the Director of Local Fund Audit
issued a consequential order regularising Assistant Inspectors in Sl.Nos.
109 to 280 retrospectively. This pendente lite developments resulted in an
amendment to the prayers in the writ petitions and accordingly G.O.261 too
was challenged. The issue before the Court was well captured by the
learned single Judge and it is worthy of reproduction of paragraph 3.3 to
3.7 of the order dated 26.02.2010 as below:
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“3.3.It is the complaint of the petitioners that due to the failure of
recruitment in the earlier years, the posts of Assistant Inspectors
have been filled up only by transfer of service or temporary
officiation from among the holder of posts of Junior Assistants or
Steno Typists or Typists in the Local Fund Audit Department and
State Trading Scheme Department without following the above said
ratio of 4:1. Even though under Rule 39(a)(i) of the General Rules
temporary promotions could be made, the seniority has to be fixed
only from the date from which such promotees are entitled to fitment
in accordance with quota and rota prescribed under the Special
Rules.
3.4. It is stated that as per G.O.Ms.No.1129, dated 18.12.1980 only
20% of the vacancies in each year could be reserved for recruitment
by transfer or promotion and if the number of candidates qualified
for transfer or promotion is more than the vacancies available, they
can be considered only in the next year and why ought not to be
considered for appointment in the vacancies reserved for direct
recruitment. While so, the third respondent has published the
impugned seniority list on 18.12.2007, fixing the seniority in the
post of Assistant Inspectors in gross violation of quota and rota
prescribed under the General and Special Rules.
3.5. It is stated that in the years 1991-1992, 1992-1993 and
1993-1994, when such mistake arose, the third respondent has
rectified the mistake and formulated the seniority list in compliance
of the Special Rules following the ratio. It is stated that under the
impugned list, the candidates recruited by promotion in the year
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1991-1994 are shown en masse as S.Nos.1 to 23 and candidates by
direct recruitment in the said year 1991-1994 are shown as S.Nos.
24 to 108 and after the revision of seniority as per the Rules, the
excess promotees are placed after the direct recruits for the year
1991-1994 at S.Nos.109 to 120.
3.6. The direct recruits selected in the recruitment year 1996-1999
were shown in the seniority list in one bunch as S.Nos.281 to 472
below the temporary promotees for the year 1994-1995, who are
placed at S.Nos.121-227, for the year 1996-1999, who are placed at
S.Nos.228 to 272, and for the year 1999-2000, who are placed at
S.Nos.273 to 280. If quota and rota is followed properly, the said
direct recruits placed in S.Nos.281 to 472 should have been given
higher seniority.
3.7. It is stated that the services of the temporary promotees were
not regularised till date as they are only officiating. It is also stated
that simply because in a year there was no direct recruitment, it
does not mean that the quota and rota rule should be broken.”
e) These petitions were disposed of by a common order of the learned single
Judge dated 26.02.2010, in which the learned single Judge had held:
(i) That those who were transferred and posted only temporarily to
the post of Assistant Inspectors cannot be regularised retrospectively,
as it is contrary to the dictum in Madalaimuthu Vs State of
Tamilnadu [AIR 2006 SC 2662] and proceeded to quash G.O.
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(Ms).No.261, dated 24.06.2009 and also set at naught the
regularisation given to the promotees named in Sl.Nos 109 to 280.
(ii) And, during the course of hearing, the Court was appraised of the
fact that parties who were aggrieved by fixation of inter se seniority
had preferred their representations, and the learned single Judge had
directed the parties to prefer fresh representations, and directed the
authorities to consider their claim of inter se seniority. And further
directed that till the Director of Local Fund Audit takes a decision on
the same, the seniority list dated 18.02.2007 should not be given
effect to.
f) Aggrieved by the aforesaid order of the learned Single Judge, some of the
promotees challenged the same in W.A.(MD)No.862 of 2010. And another
set of promotees have separately challenged G.O.(Ms) No.261, dated
24.06.2009 in W.P.(MD)No.11382 of 2011. The Division Bench before
which it was pending, chose to club it along with W.A.(MD)No.862 of
2010.
g) After taking into consideration the representations as contemplated in the
order of the learned Single Judge in W.P.(MD) Nos.3823 and 6508 of 2008,
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the Director of Local Fund Audit has issued a seniority list dated
17.12.2010. And since the direct recruits, whose grievance is now under
consideration, were placed below the temporary promotees, based on the
date of joining the service, they challenged the seniority list dated
17.12.2010 in W.P.(MD)No.9443 of 2011 and W.P.(MD)No.12483 of 2011.
The Division Bench which entertained W.A.(MD)No.862 of 2010, also
clubbed these two writ petitions with the appeal. Accordingly, the Division
Bench of this Court heard W.A.(MD)No.862 of 2010 along with W.P.
(MD)Nos.9443, 11382 and 12483 of 2011 and disposed of the same vide
common judgment dated 11.07.2013. In its judgment, the Division Bench
has observed that the directly recruited appointees to the post of Assistant
Inspector can claim seniority only from the date of their regular
appointment. In its judgment, the Division Bench has noted as follows:
“80. As stated earlier, in our considered view, the quota rule was
not followed till 1995 except for an one time appointment in the
year 1994. In the year 1994-1995, the estimated vacancy was not
even arrived at, but all the vacancies were filled up by promotion.
From 1996-2000, though there was estimated vacancy for every
year and the quota rule was fixed only to fill up the post by
promotion and the direct recruits were appointed as one time
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appointment, only in the year 2001 for the four year vacancy, there
is a clear break down in the quota rule. Moreover, the direct
recruits, who were appointed to fill up the vacancies between 1996
and 2000, cannot question the earlier promotion. Apparently, the
excess promotions above the quota was restored to only between
1991 and 1994 and thereafter, there was induction of direct recruits,
who have not objected to the seniority of the promotees placed
above them.
81. In so far as the appointment of 105+2 of promotees for the
vacancies 1994-1995 is concerned, there was a ban on recruitment,
but there is no indication whether the vacancies for direct
recruitment were carried over during the year 1996 to 2000.
82. Unless there is a strong indication that the above said vacancy
for direct recruits post is also spread over to the estimated
vacancies of the year 1996-2000, the direct recruits cannot claim
anything before 1996 over and above the promotees.
83. It is also well settled that a direct recruit can claim seniority
only from the date of his regular appointment. He cannot claim the
seniority from the date when he was not borne in the service.
84. It is also pertinent to note that all these promotees from 1991 to
1995 were in continuous service without any interruption.
Reopening the question of inter se seniority on the basis of non-
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enforcement of the rules from the very beginning may create
hardship. If at all, the direct recruits can claim seniority, it is only
in the estimate year 1996-2000 where 263 vacancies were estimated
and 210 vacancies were allotted to direct recruits and 53 were
allotted to promotees.
85. However, these promotees have joined their duty from
1996-2000, earlier to the direct recruit and they are also in
continuous service. In the case of A.Janardhana Vs. Union of India
reported in 1983-2-SCR-936, it is held that later direct recruit
cannot claim seniority from a date before his birth in the service or
when he was in school or college. In the case of A.N.Pathak Vs.
Secretary to the Government reported in 1987-Suppl. Scc-763, it is
held that slots cannot be kept reserved for direct recruits for
retrospective appointments. Though the vacancies for direct recruit
arose in the year 1996, their appointment in the year 2001 cannot
date back to 1996.
86. It is well settled that the Direct Recruit can claim seniority only
from the date of their regular appointment. Therefore, even
considering the case of 53 promotees, appointed during the period
1996-2000, they cannot be pushed down and the direct recruit
cannot claim a seniority earlier than their date of appointment.”
h) And eventually the Division Bench dismissed not only W.A.(MD)No.862
of 2010, but also all the writ petitions challenging the proceedings dated
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17.12.2010 fixing inter se seniority. In other words, the effect of this order
is not only the confirmation of the order of the learned Single Judge in W.P.
(MD)3823 and 6508 of 2008, but also appears to have approved the
subsequent proceedings fixing inter se seniority dated 17.12.2010. As
would be seen later, this has some significance in the context of this case.
i) Thereafter, the Government came out with G.O.(Ms).No.159, Finance
(Local Fund) Department, dated 10.05.2018 in which it accepted the
proposal of the Director of Local Fund Audit and approved the temporary
panel containing 33 Inspectors of Local Fund Audit for the post of
Assistant Director of Local Fund Audit. This came to be challenged by the
first respondent herein in W.P.(MD) No.11348 of 2018. A learned Single
Judge of this Court has disposed of the matter vide order dated 11.06.2018,
wherein he had inter alia required the writ petitioner to raise his objections
before the government with regard to the panel prepared by the
Government. The Court also directed the Government to invite objections
from those who were placed similarly along with the writ petitioner.
j) The Government invited objections and the writ petitioner also had
presented his objections in the manner directed by this Court in W.P.(MD)
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No.11348 of 2018.
k) After considering the objections, the Government came out with G.O.
(Ms).No.373, Finance (Local Fund) Department, dated 20.11.2018, by
which vacancies to the post of Assistant Director of Local Fund Audit for
2017- 2018 were filled without disturbing the seniority earlier drafted.
This Government Order became the subject matter of dispute in W.P.(MD)
No.23740 of 2018 by the respondent herein.
l) Thereafter, the Government came out with G.O.(Ms).No.160, Finance
(Local Fund) Department, dated 24.05.2019, wherein it accepted and
approved the promotion to the post of Assistant Director from the
temporary panel of 39 Inspectors, which was recommended by the Director
of Local Fund for the vacancies in 2018-2019. This was challenged by the
same writ petitioner in W.P.(MD) No.12649 of 2019. the grievance of the
respondent herein has been that despite the order of the learned Single
Judge in W.P.3823 and 6508 of 2008, the promotions were still given
without disturbing the seniority list that was wrongly prepared.
m) Vide a common order dated 30.01.2020, the learned Single Judge allowed
W.P.(MD) Nos.23740 of 2018 and 12649 of 2019. The line of reasoning of
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the learned Single Judge was that the Government has not considered the
objections of the writ petitioner, which find a place in the typed set of
papers filed by him in W.P.(MD) No.23740 of 2018.
It is this common order of the learned Single Judge, which has now become the
subject matter of these appeals.
Arguments
(a) Argument for the Appellants
3. Mr.R.Baskaran, the learned Additional Advocate General for the appellants in
W.A.(MD) Nos.1198 and 1240 of 2020, and Mr.T.Lajapathi Roy, learned counsel
and Mr.S.Ramsundarvijayraj, the learned counsel appearing for the appellants in
the other two appeals, made the following submissions:
(a) When the order passed in W.P.(MD) Nos.3823 and 6508 of 2008 was
challenged in W.A.No.862 of 2010, the challenge in essence was to the
order of the learned Single Judge setting aside G.O.(Ms) No.261, dated
24.06.2009, and the effect of the judgment of the Division Bench in W.A.
(MD)No.862 of 2010 is its confirmation. However, what flows out of the
order of the learned Single Judge is that it only required the authorities to
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consider the representations of those who are aggrieved and then to prepare
a seniority list. This seniority list was published on 17.12.2010.
(b) This seniority list became a point of challenge in W.P.(MD)Nos.9443 and
12483 of 2011 before the Division Bench and the Bench in its judgment
dated 11.07.2013 dismissed them. The effect of this dismissal has to be
understood as an affirmation of the correctness of the seniority list
prepared on 17.12.2010. Indeed the Division Bench even had
acknowledged that the vacancies which were notified between 1996 and
2000 might necessarily have to follow the quota rule of 4:1 as per the
Special Rules, yet proceeded to declare that those who had not even joined
in the service as on the date of arising of the vacancies cannot seek a claim
to the same.
(c) G.O.(Ms) No.159, Finance (Local Fund) Department, dated 10.05.2018
thereafter came to be published notifying 33 vacancies for the post of
Assistant Director for the year 2017-2018 with a proposal to promote 33
named Inspectors of Local Audit for the said post. When this came to be
challenged before the learned Single Judge in W.P.(MD) No.11348 of 2018,
the learned Single Judge has merely directed the respondents to allow the
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petitioner and those who were similarly placed to file their objections and
to pass final order upon considering those objections. And this resulted in
G.O.(Ms) No.373, Finance (Local Fund) Department, dated 20.11.2018 and
subsequent G.O.(Ms) No.160, dated 24.05.2019 for the year 2018-2019.
They came to be challenged before the learned Single Judge in W.P.(MD)
2370 of 2018 and 12649 of 2019, but the learned Single Judge has not
adequately appreciated the true import and effect of the order of the
Division Bench in W.A.No.862 of 2010 batch of cases.
(d) When once the seniority list dated 17.12.2010 has attained finality
consequent to the order passed by the Division Bench in W.A.(MD)No.862
of 2010 batch of cases, then G.O.(Ms) No.373, dated 20.11.2018 and G.O.
(Ms) No.160, dated 24.05.2019 are merely consequential orders
recommending promotion for filling up the vacancies of Assistant Director
for the year they cover and its foundation is the seniority list dated
17.12.2010. When the seniority list dated 17.12.2010 has become final, the
respondent does not have any locus to challenge G.O.(Ms) No.373, dated
20.11.2018 and G.O.(Ms) No.160, dated 24.05.2019 independently. In
other words, what he could not achieve directly, he cannot be permitted to
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be done indirectly.
(b) Argument for the Respondent
4. Arguing for the respondent in all these appeals, Mr.V.Ragavachari, the learned
Senior Counsel, submitted:
(a) The controversy involved in this case is not between those who are
appointed to the post of Assistant Inspector of Local Fund by transfer from
other department between 1995 and 2001 and the subsequently appointed
direct recruits in 2001, but between those who were appointed temporarily
under Rule 10(a)(i) of the Tamil Nadu State Subordinate Service Rules
between 1995 and 2001 and those who were posted by direct recruitment
in 2001;
(b) In law, those who are appointed temporarily under Rule 10(a)(i) should
cease to occupy the said post once regular appointments are made.
Accordingly, when the appointments were made by direct recruitment in
2001, those who were earlier appointed to the same post under 10(a)(i)
shall leave the space for the regularly appointed candidates. Reliance was
placed on the authorities in K.Madalaimuthu & anoyher Vs State of
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Tamil Nadu and others [AIR 2006 SC 2662]; P.Perumal Vs
A.V.Sureshbabu and Others [ (2007) 4 MLJ 160] and The Government of
Tamil Nadu and another Vs J.Ganesan and others [WA Nos.2537 and
2617 of 2019 dated 23.12.2020].
(c) It is in this backdrop, a combined seniority list came to be published on
18.12.2007, where an attempt was made to fix inter-se seniority not
between regularly appointed Assistant Inspectors by transfer and the direct
recruits, but between those who were temporarily appointed between 1995
and 2001 and those who were subsequently appointed by direct
recruitment. This seniority list was attempted to be given sanctity vide
G.O.(Ms).No.261, Finance (Local Fund) Department, dated 24.06.2009
and it came to be challenged in W.,P.(MD) Nos.3823 and 6508 of 2008.
The learned Single Judge in his order dated 26.02.2010 has found that
only 53 candidates who were posted to the post of Assistant Inspectors of
Local Fund rior to 2001 are qualified for regularisation before the direct-
recruitees assumed office and for fixation of inter-se seniority between
them and the direct recruitees of the year 2001, and as to the rest, he set
aside G.O.(Ms).No.261, Finance (Local Fund) Department, dated
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24.06.2009;
(d) When this order of the learned single Judge was challenged in WA (MD)
No. 862 of 2010 before the Division Bench, it passed an order staying the
operation of the order of the learned single Judge. It is during the
subsistence of this order, the joint Director of Local Fund Audit came out
with his proceedings dated 17.12.2010, wherein he published the inter-se
seniority list between those who held the post of Assistant Inspectors of
Local Fund prior to 2001 and the direct recruits of the year 2001. It was
made clear in this proceedings of the Director that this would be subject to
the outcome of W.A(MD) No.862 of 2010, and on 11.07.2013, the Division
Bench, after considering a lot on the subject finally, chose to dismiss the
said appeal, which imply that the Division Bench had given its stamp of
confirmation to the order of the learned Single Judge. This would now
mean that when once WA(MD) No.862 of 2010 was dismissed, necessarily,
anything done pursuant to the order of stay of operation of the order of the
learned Single Judge, more specifically, the proceedings of the Director of
Local Fund dated 17.12.2010 shall go. It might be that the respondents
might have preferred W.P(MD)No.9443 of 2011 and W.P.No.12483 of 2011
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challenging the very proceedings dated 17.12.2010 and might have lost it.
This however, may not be of any consequence since the proceedings dated
17.12.2010, at any rate, makes it clear that it was issued subject to the
outcome of the order in W.A(MD) 862 of 2010, and when the order passed
in W.A(MD) 862 of 2010 takes care of the sustainability of the proceedings
of the Director dated 17.12.2010, there is hardly any need for a separate
approval of the proceedings by the Court in W.P.(MD)No.9443 of 2011 and
W.P.(MD)No.12483 of 2011.
(e) It is in this backdrop, G.O.Ms.No.159 Finance (Local fund) Department
dated 10.05.2018 must be appreciated. Here names of 33 candidates were
temporarily short-listed for promotion, but it included at least 9 candidates
(S.No.25 to 33), who were temporarily promoted to the post of Assistant
Inspectors prior to 2001 and who will be hit by the order of the Single
Judge in W.P.(MD) Nos.3823 and 6508 of 2008 and confirmed in W.A.
(MD) 862 of 2010. It is hence in WP(MD) No.11348 of 2018, the learned
Single Judge vide his order dated 11.06.2018, pointedly directed the
respondents therein, rather the 2nd respondent to consider the objections
given of the petitioner before him (the present respondent) to G.O.Ms.No.
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159. Following this the respondents had indeed given a 24 page objections
narrating both the law and facts hereinabove described to in the final order.
(f) The Government in G.O.Ms.No.373 Finance (Local Fund) Department
dated 20.11.2018 came out with its proceedings for the year 2017-18,
which gives zero indications that all the aspects of objections raised by the
respondents have been considered. Indeed it did not disclose how a
temporary appointee to the post of Assistant Inspector under 10(a)(i) can be
placed above the direct recruits who were regularly appointed to the post.
It is in this backdrop, the Government came out with G.O.Ms.No.160 dated
24.05.2019 with the promoted list for the year 2018-19. This was also
subsequently challenged by the respondents in WP(MD) No.12649 of
2019, and after considering the entire factual scenario before her, the
learned Single Judge found that the objections raised by the respondents
were not considered objectively and quashed G.O.Ms.Nos.160 Finance
(Local Fund) Department, dated 24.05.2019 and G.O.Ms.No. 373 Finance
(Local Fund) Department, dated 20.11.2018
Summarizing his argument, the learned Senior Counsel submitted that while the
instructions to the Government have been candidly made by a learned Single
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Judge in WP(MD) Nos.3823 and 6508 of 2008 on 26.02.2010, which later came
to be proved by a Division Bench in W.A(MD) No.862 of 2010, the appellant is
keen not to get the instructions correctly. It may be relevant to mention that along
with G.O.Ms.No.159 Finance (Local Fund) Department, dated 10.05.2018, the
Director of Local Fund brought to light certain proceedings of the Directorate
dated 12.11.2014 as if it was made in compliance to the order passed in WA (MD)
No.862 of 2010. This proceedings was never brought to light at any time prior to
G.O.Ms.No.373 dated 20.11.2018. Therefore, this proceedings confirms the prior
seniority fixed vide proceedings dated 17.12.2010 when 17.12.2010 proceedings
itself lays its sanctity after the order in W.A(MD) No.862/2010. The same cannot
be legitimised by an expost facto proceedings which form the foundation for
G.O.Ms.No.373 dated 20.11.2018. If proceedings dated 17.12.2010 goes
necessarily the proceedings dated 12.11.2014 also goes, then, there is nothing to
legitimise the proceedings in G.O.Ms.No.373 dated 20.11.2018 and G.O.Ms.No.
160 dated 24.05.2019 and the learned single Judge has also quashed the
proceedings dated 12.11.2014 along with G.O.Ms.Nos.373 and 160.
Reply Arguments of the Appellants
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5. Replying the aforesaid arguments, the learned counsel for the appellants made
the following submissions:
(a) The challenge before the learned Single Judge in W.P(MD) Nos.3523 and
6508 of 2008 inter alia included the challenge to the temporary
regularisation order dated 20.07.2009, and the learned Single Judge in his
order has upheld the sustainability of challenge and directed that those
names which find a place between Sl.Nos.109 and 280 in the seniority list
dated 20.07.2009 would stand quashed. But in the seniority list dated
17.12.2010, these names were dropped. The appellants herein find a place
in S.No.63, 65, 68, 69 and 72 in the seniority list dated 20.07.2009, and it
was not disturbed by the learned Single Judge.
(b) In Paragraph 82 and 83 of the order of the Division Bench in W.A(MD)
No.862/2010, the Court has held that those who were appointed between
1995 and 2001 as promotees to the post of Assistant Inspector on transfer
are not described as temporary promotees under Rule 10(a)(i).
(c) The respondent, if it was aggrieved, should have challenged this part of the
order, and inasmuch as he has not challenged it, he is estopped from putting
forth a case contrary to the same.
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The Discussion
6.1 Rival contentions are carefully weighed for their respective merit. The
genesis of the controversy dates back to the times prior to 2001, and it all
commenced as an issue in fixation of inter se seniority between the directly
recruited Assistant Inspectors of Local Fund in 2001 and those who were
temporarily appointed to the said post prior to 2001 but were retrospectively
regularised. And, the direct-recruitees initiated it. And, despite a few litigations,
the issue apparently has not been settled yet.
6.2 The earliest of the litigations was when the direct-recruitees challenged the
proceedings fixing inter se seniority and the retrospective regularisation referred
to above in W.P(MD)Nos:3823 of 2008 and 6508 of 2008. As stated several
times earlier, the contentions of the direct-recruitees carried conviction with the
learned Single Judge and he held those names which figured in the seniority list
in the Sl.No:109 to 280 as bad, quashed G.O.261, dated 24.06.2009 which paved
way for retrospective regularisation and directed the authority to re-fix the
seniority after considering the representations which from all those whose
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
seniority would be affected thereby. This order later came to be confirmed in
W.A.(MD) No.862 of 2010.
6.3 There are two aspects that are noticeable from the above two orders and they
are: (a) that those who have been temporarily appointed to a post cannot claim
seniority over the regular appointees, even though regular appointees have
assumed office later in point of time; (b) that those who have been appointed to a
post later in point of time cannot claim seniority over those who were appointed
earlier. But the rider to (b) is that both the later and the subsequent appointments
must be regularly made. The issue raised by the direct recruitees in this case,
however, has been that those who were temporarily appointed were placed above
the subsequently appointed direct-recruitees, but in a regular post. This falls
within aspect (a) and not aspect (b).
7. This is the foundation from which every successive orders which came to be
passed in the subsequent writ petitions, drew strength for their sustenance. In
between, during the pendency of W.A.(MD) No.862 of 2010, the Director of
Local Fund had come out with his proceedings dated 18.12.2010 which was also
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separately challenged by the direct-recruitees in couple of writ-petitions in W.P.
(MD) Nos. 9443 of 2011 and 12483 of 2011, and they too were heard along with
the appeal, and they also came to be dismissed. The appellants in W.A.(MD)
Nos. 301 of 2020 & 352 of 2020 rely on the dismissal of these writ-petitions and
claim that in so doing the Division Bench has approved the seniority list dated
17.12.2010, whereas the respondent – the lone direct-recruitee (his club has
dwindled since the earlier proceedings) contend that the dismissal of W.A(MD)
No. 862 of 2010 approves that the retrospective regularisation of temporary
promotees and placing them above the direct-recruitees as attempted by the
Department was bad in law.
8. What was in challenge before the Division Bench was the correctness of the
decision of the learned Single Judge in W.P.(MD) Nos; 3823 and 6508 of 2008,
and what were in challenge in W.P.(MD) 9443 of 2011 and 12483 of 2011 was to
the proceedings dated 17.12.2010 which was made during the pendency of the
W.A (MD) 862 of 2010, and thanks to the order of stay of the operation of the
order of the learned Single Judge. Now, unless it is established that the
proceedings dated 17.12.2010 is consistent with the findings and directions of the
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
learned Single Judge, or to be more precise that of the Division Bench in W.A.
(MD) 862 of 2010 (since the order of the Single Judge will merge with the order
of the Division Bench), it cannot be said that the dismissal of W.P.(MD) 9443 of
2011 and 12483 of 2011 by the Division Bench will be of any consequence.
Indeed, if the order of the Division Bench is carefully read , the Court has only
discussed the issue raised in W.P (MD) Nos: 3823 of 2008 and 6508 of 2008, and
nothing about the correctness of the proceedings dated 18.12.2010.
9. In the context of the cause of action involved in the two writ petitions in W.P.
(MD) 23740 of 2018 and WP (MD) 12649 of 2019, all that was required of those
authorities whose proceedings were challenged therein was to demonstrate that
(a) no temporary appointees to the post of Assistant Inspector of Local Fund prior
to 2001 have even accidentally found a place while fixing the inter se seniority
between the promotees who were appointed to a regular post prior to 2001 and
the direct-recruitees who were appointed in 2001, and (b) that subsequent
promotions were made were based consistent with the seniority list so prepared.
Now, this court was informed that the Director of Local Fund Audit had issued a
proceedings dated 12.11.2014, but as rightly argued by the respondent this
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
proceedings has never seen to have been published. An absolute statement is
therefore required to be made: No proceedings, which was either challenged or
not challenged, but are inconsistent with the ratio of the order passed in W.A
(MD) 862 of 2010 cannot be sustained, and if it were to be held otherwise, then
this Court will have the painful experience of sanctifying those proceedings
which are made in defiance of the very order of this Court passed by an earlier
Division Bench in W.A.(MD) 862 of 2010.
10. What is that which bothers the respondent now? He says that proceedings
now under challenge were made after the disposal of the writ petition in W.P.
(MD) No.11348 of 2018 but in violation to the direction given by the learned
Single Judge to consider the representations of the respondent or those who are
similarly placed. And what was the nature of objection has the respondent raised?
His lengthy objection is only a reiteration of the entire factual and legal aspects
hereinabove narrated and that promotions were given to the temporary promotees
to the post of Assistant Inspectors prior to 2001 ahead of the direct recruitees in
violation of the order passed in W.A (MD) 862 of 2010.
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11.1 The controversy needs to be understood in the contextual perspective.
Between 1995 and 2001 vacancies fell in the post of Assistant Inspectors of Local
Fund Audit. And, these vacancies were required to be filled up both by direct
recruitment and by transfer from other lower cadre in the ratio of 4:1. If these
vacancies were duly filled up at the relevant time annually, then there would not
have arisen any problem. But vacancies through direct recruitment could be filled
up only through the TNPSC and it did not notify the vacancies to be filled by
direct recruitment. In between the existing vacancies were filled up without
waiting for the TNPSC to select appointees through direct recruitment, by
transfer from other cadres. However, they could only be filled up in the ratio of
4:1. As this was not possible, temporary appointments to the post of Assistant
Inspectors by transfer from other cadres were appeared to have been made to fill
up the vacancies earmarked for direct recruitment.
11.2 Those who were regularly appointed by transfer for the vacancy earmarked
for transfer-appointees, there could never be any issue. However, those who were
temporarily appointed could never be regularised from the date of their
appointment since that would literally amount to usurpation of the vacancies by
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the temporary appointees by transfer which is required to be filled up only
through direct recruitment. Strangely, the Government came up with G.O.
(Ms).No.261, Finance (Local Fund) Department, dated 24.06.2009 which
prescribed the procedure for regularisation of the promotees retrospectively from
15.03.1994 without differentiating the regular appointees and temporary
appointees by transfer. This G.O. came to be challenged in W.P.(MD) 3823 of
2008 and 6508 of 2008 and it was promptly struck down by P. Jothimani J. And,
this has been confirmed by the Division bench in W.A.(MD) 862 of 2010.
11.3 The effect of this Order is that those who had been temporarily appointed in
the vacancies intended for the direct recruits and were attempted to be regularised
retrospectively can never be placed above the direct recruits appointed in 2001.
To state it differently, those who were appointed to the post of Assistant
Inspectors by transfer in the slot intended for transfer-appointees between
1995-2000 will retain their seniority because those posts belonged to that channel
of appointment. But those who were appointed temporarily by transfer but in the
slots belonging to direct recruitment, have to give up their slots to the direct
recruitees once they were appointed to fill up those vacancies. And these direct
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
recruitees, who were appointed after the regular appointment by transfer between
1995 and 2001 cannot claim inter se seniority in the ratio of 4:1, because these
direct recruitees were not even born in that cadre when the regular appointment
by transfer was made to the slots that belonged to the channel of appointment by
transfer. But this will in no way be applicable or available to those who were
temporarily appointed by transfer as a stop-gap-arrangement.
12. Humility and fairness that ought to define any administrative action, if had
been allowed its space while passing the impugned proceedings in G.O.Ms. 373,
dated 20.11.2018 and G.O.Ms.160 dated 24.05.2019, the Government would have
explained how not a single temporary appointee to the post of Assistant
Inspectors prior to 2001 was promoted ahead of those who were regularly
appointed later. This was the soul of the order in W.P.(MD) 3823 of 2008 and
6508 of 2008 which as earlier said was merged with the order in W.A.(MD) 862
of 2010. It was not seen to have been done.
13. It therefore appears, somewhere, someone in the administrative hierarchy is
reluctant to abide by the directions in W.P.(MD) 3823 of 2008 and 6508 of 2008,
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
or hesitant to inform the Court that there is no such violation. The authorities
have created a situation for themselves, and they are now required to answer. As
it has not been done, there is little that this Court can now do than to confirm the
order of the learned Single Judge.
14. The learned Single Judge has set aside the G.O. Ms. 373 dated 20.11.2018
and G.O. Ms. 160 dated 24.05.2019, and if it is to be reversed by this Court, then
the appellants, more particularly the appellants in W.A (MD) Nos. 1198 and 1240
of 2020 should demonstrate not one temporary appointee to the post of Assistant
Inspector of Local Fund Audit by transfer from other cadres has been placed
above the direct recruitees of 2001. It is not so much about whether the G.O.s
under challenge actually para wise reply to the objection, but about due
compliance of the orders passed in W.P.(MD) Nos. 3823 of 2008 and 6508 of
2008 and confirmed in W.A.(MD) No. 862 of 2010.
15.1 This controversy has engaged this Court since 2008 in multiple proceedings,
and there is something that seems to go well. This Court cannot attach itself to a
solitary issue on an early basis either. And, if no lasting solution could be found
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
for fifteen years, there is either a fundamental flaw in the judicial approach to the
issue, or there is a far graver flaw in the attitude of the officials in fixing the
seniority as directed by this court in W.P.(MD) Nos. 3823 of 2008 and 6508 of
2008.
15.2 To strike a balance and to access the truth behind the controversy, this court
chooses to modify the order of the learned single Judge, and direct the appellants
in W.A (MD) Nos. 1198 and 1240 of 2020 to file a comprehensive report (unlike
the customary reports with evasive and sweeping statements which the officials
are habituated to file) which shall inter alia provide the following particulars:
a) Who were those who were temporarily appointed to the post of Assistant
Inspectors of Local Fund Audit before the direct-recruitees assumed charge
in 2001.
b) Who were the temporary appointees whose names were liable to be
dropped pursuant to the orders passed in W.P.(MD) Nos. 3823 of 2008 and
6508 of 2008 and confirmed in W.A.(MD) No. 862 of 2010.
c) Whether in the seniority list dated 17.12.2010, any of the temporary
appointees between 1995 and 2001 were placed above the direct recruits of
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the year 2001.
d) Was any provisional seniority list preceding the proceedings dated
12.11.2014 ever published and whether any objections were invited from
those who were aggrieved.
e) Whether such seniority list dated 12.11. 2014 was consistent with the
direction given by the Learned Single Judge of this Court in W.P.(MD)
Nos. 3823 of 2008 and 6508 of 2008 and confirmed in W.A(MD) No. 862
of 2010 .
f) Whether in the current Government Orders now under challenge any of the
temporary appointees by transfer between 1995 and 2001 were given
promotion ahead of the direct recruitees of the year 2001.
15.3 This Court further directs:
a) A copy of the report shall be filed before this Court within two months
from the date on which this Order is hosted in the official web-site.
b) A copy of the report shall be provided to the respondent.
c) No false statement, not even accidental errors will be tolerated.
d) Once the copy of the report is provided, the respondent is required to go
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through it to ascertain if it answers his grievances raised in his objections.
e) If the respondent finds that (i) any of the particulars provided in the report
to be filed is either wrong or false, and (ii) that the order of this court in
W.P.(MD) Nos. 3823 of 2008 and 6508 of 2008 is not duly complied with,
he is at liberty to file a statement pointing out to the same, and seek for re-
opening the case for further orders. Even an oral mentioning for re-
opening is sufficient.
15.4 No costs.
(N.S.S. J) (P.V.M., J.)
23.09.2024
Index : Yes / No
Neutral Citation : Yes / No
PM/CM/ABR
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
To
1.The Additional Chief Secretary to Government,
State of Tamil Nadu
Finance (Local Fund) Department,
Fort.St.George, chennai – 09.
2.The Director of Local Fund Audit,
Amma Complex,
4th Floor, Nanthanam,
Chennai 600 035
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W.A(MD)Nos.301, 352, 1198 & 1240 of 2020
N. SESHASAYEE, J.
and
P.VADAMALAI, J.
ABR/RR
Pre-delivery Judgment in
W.A.(MD) Nos.301, 352, 1198
and 1240 of 2020
23.09.2024
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