Madras High Court
A.Sankar vs The Secretary To Government on 19 February, 2025
2025:MHC:554
W.P.(MD) No.893 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
W.P.(MD) No.893 of 2019
1. A.Sankar
2. R.Manimaran ... Petitioners
Vs
1 The Secretary to Government,
Personnel & Administrative Reforms Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600 009.
2 The Director of Agriculture,
Chepauk,
Chennai-600 005.
3 The Joint Director Of Agriculture,
Office of Joint Director of Agriculture,
Collectorate Campus,
Karur-639 007.
4 The Joint Director Of Agriculture,
Office of Joint Director of Agriculture,
Multiple Complex Block-II,
Theni District. ... Respondents
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W.P.(MD) No.893 of 2019
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
praying for issuance of a writ of certiorarified mandamus, to call for the
records relating to the impugned order of the 2nd respondent in No.Appi.
1/188649/2004, dated 27.06.2007, and consequential impugned order of 2nd
respondent in Lr.No.MESI/159554/2017, dated 28.06.2018, quash the same
and consequently direct the respondents herein to follow the provisions of Sec.
40 (1) & (2) of the conditions of service to fix the seniority among the
compassionate appointees and direct recruits for the purpose of promotion.
For Petitioners : Mr.K.Appadurai
For Respondents : Mr.G.V.Vairam Santhosh,
Addl. Govt. Pleader.
ORDER
Under assail is the order impugned, dated 27.06.2007, passed by
the second respondent, and the consequential impugned order, dated
28.06.2018, passed by the second respondent.
2. The case of the petitioners is that they were appointed on
compassionate ground on 20.04.2000 and 21.07.2000 respectively, as Junior
Assistants. They completed probation; their services were regularised, and
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their seniority was fixed in October,2000, itself. The first petitioner was
promoted as Assistant on 13.10.2008 and the second petitioner was
promoted as Assistant on 17.04.2008. As per Section 40 (1) of the Tamil Nadu
Government Servants (Conditions of Service) Act,2016, in short, ''the Act'',
seniority of a person in service, class, category or grade can be reckoned from
the date of commencement of his or her probation, on which he or she joins
duty. As per Section 40 (2) of the Act, where the method of recruitment to
service is by more than one method, seniority is reckoned from the date of
appointment. While so, the second respondent passed the impugned order,
stating that persons, appointed on compassionate ground in a year through
out, will be placed in seniority list below the direct recruits, appointed through
Tamil Nadu Public Service Commission. The order impugned also states that
since the process of selection and appointment through the Recruitment
Board causes delay due to administrative reasons, the said system of seniority
is followed in the recent years. The said reasons, in so far as compassionate
appointments are made in the year 2000, are incorrect. As far as the
petitioners are concerned, they joined duty on 20.04.2000 and 21.07.2000
respectively in the post of Junior Assistant on compassionate ground, whereas
the direct recruits were selected subsequently through publication of results,
by assigning seniority. Therefore, the petitioners submitted a representation to
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the second respondent, requesting to revise their seniority. Hence, this Writ
Petition.
3. Learned counsel, appearing on behalf of the petitioners, would
submit that the impugned order is against law, arbitrary in nature, and
contrary to the provisions of Section 40 (1) and (2) of the Act. He would further
submit that as per the provisions of the Act, the date of commencement of
probation of an employee shall be the date on which he or she joins duty.
Hence, the criterion for fixing seniority is the date on which he or she joins
duty, commencing his/her probation. He would also submit that where the
method of recruitment to service, class, category or grade, is by more than
one method, unless the individual has been reduced to a lower rank as a
punishment, seniority shall be determined with reference to the date on which
he/she joins the service, class or grade. Therefore, fixing seniority of
compassionate appointees below the direct recruits is totally misconceived and
without following due process of law.
4. Per contra, learned Additional Government Pleader, appearing
for the respondents, would submit that the petitioners were declared to have
completed probation, considering their date of entry into Government service
and their seniority in the post of Junior Assistant-cum-Typist was assigned as
Sl.No.110/2000 and 129/2000 respectively, by proceedings of the second
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respondent, dated 27.06.2007. He would further submit that the impugned
order was passed, based on sub-section (2) of Section 40 of the Act, which
clearly provides that where the normal method of recruitment is by more than
one method, seniority shall be determined with reference to the date on which
the person is appointed to that service and, therefore, there is no violation of
statutory rules. The learned Additional Government Pleader would also submit
that considering the date of death of Government employee and receipt of
when application for compassionate appointment from the deceased family,
such application can only count for seniority for the purpose of employment
and it has nothing to do with seniority in respect of promotion.
According to him, the petitioners themselves accepted that the order of fixing
their seniority for the post of Junior Assistant-cum-Typist was released way
back in the year 2007 and they were made aware of their seniority in the year
2007 itself. The seniority of the petitioners and the similarly placed persons
would find place in the seniority list of the Junior Assistants-cum-Typists for
the year 1999-2000, immediately below the direct recruited candidates,
selected by the Tamil Nadu Public Service Commission, and such list was
rightly issued by the second respondent, based on the Tamil Nadu Public
Service Commission's seniority and also considering Rule 35 (a) and (aa) of
the Tamil Nadu State and Subordinate Service Rules, now sub-sections (1)
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and (2) of Section 40 of the Act. Therefore, fixation of seniority of the
petitioners was done, by following relevant rules and procedures. The learned
Additional Government Pleader also drew the attention of this Court to the
Counter Affidavit, filed by the respondents, in particular, paragraph 8, which
states as under :
''8. I submit that therefore, applying the said rule, the seniority
of the petitioners and similarly placed persons have been ordered,
considering their date of entry into Government service, and their
seniority in the post Junior Assistant cum Typist was assigned as
110/2000 and 129/2000, respectively as per the proceedings of the
Second Respondent No.APP.1/188649/2004, dated 27.06.2007.
Such order of the 2nd respondent was based on the Statutory rule 35
(aa) of the Tamil Nadu State and Subordinate Service Rules, now the
Sub-Section 2 of Section 40 of the Taml Nadu Government Servants
(Conditions of Service) Act,2016, which propounds, that where the
normal method of recruitment is by more than one method of
recruitment, seniority will be determined with reference to the date, he
is appointed to that service....''
5. The impugned order, dated 27.06.2007, states that by applying
Rule 35 (a) and (aa) of the Tamil Nadu State and Subordinate Service Rules,
now Sub-Section (1) and (2) of Section 40 of the Tamil Nadu Government
Servants (Conditions of Service) Act,2016, the seniority of the petitioners and
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similarly placed persons had been ordered, considering their date of entry into
Government service and their seniority in the post of Junior Assistant cum
Typist was assigned as in Sl.No.110/2000 and 129/2000 respectively.
Therefore, the order of the second respondent was based on the statutory Rule
35 (aa) of the Tamil Nadu State and Subordinate Service Rules, now Sub-
Section (2) of Section 40 of the Tamil Nadu Government Servants (Conditions
of Service) Act,2016.
6. At this juncture, it is relevant to extract Section 40 (2) of the
Tamil Nadu Government Servants (Conditions of Service) Act,2016, which
reads as under :
''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 to have been
appointed to the service, class, category or grade on the same day
on which the junior was so appointed:
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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.''
7. The above Section provides that where the normal method of
recruitment to the service is by more than one method of recruitment,
seniority of a person shall be determined with reference to the date on which
he or she is appointed to that service. Therefore, there is no violation of
statutory rules in fixing the seniority of the petitioners.
8. It is pertinent to mention that under direct recruitment by
Tamil Nadu Public Service Commission, seniority of the persons appointed to
Government service is outside the purview of the Tamil Nadu Public Service
Commission, whereas for the appointment under compassionate ground as in
the present case and similarly appointed persons in the post of Junior
Assistant cum Typist, seniority had been fixed by the second respondent by
the impugned order, in the year 2007 itself.
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9. At this juncture, it is relevant to cite a judgment of the Hon'ble
Supreme Court of India, in Vijay Kumar Kaul v. Union of India, (2012) 7 SCC
610, wherein it has been held as under :
''27....It becomes an obligation to take into consideration the balance of
justice or injustice in entertaining the petition or declining it on the ground of
delay and laches. It is a matter of great significance that at one point of time equity
that existed in favour of one melts into total insignificance and paves the path of
extinction with the passage of time.
It is also pertinent to mention that neither has it been pleaded
nor is it apparent from the material on record that the Respondent
was unable to approach the court-of-law in time on account of any
social or financial disability. Had such been the case, he ought to
have availed free legal aid and should have ventilated his grievances
in a timely manner.''
10. In the instant case, the petitioners themselves had accepted
the same that they were aware of the said order of fixing seniority in the post
of Junior Assistant cum Typist in the year 2007 itself. Now, after a lapse of
more than a decade, the petitioners submitted a representation, stating that
the seniority list ordered by the second respondent in the post of Junior
Assistant cum Typist is improper and incorrect, which cannot be accepted at
this later stage.
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11. For the above reasons, finding no merit, this Writ Petition is
dismissed. No costs. Consequently, the connected W.M.P.(MD) Nos.717 and
718 of 2019 are closed.
19.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
dixit
To:
1 The Secretary to Government,
Personnel & Administrative Reforms Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600 009.
2 The Director of Agriculture,
Chepauk,
Chennai-600 005.
3 The Joint Director Of Agriculture,
Office of Joint Director of Agriculture,
Collectorate Campus,
Karur-639 007.
4 The Joint Director Of Agriculture,
Office of Joint Director of Agriculture,
Multiple Complex Block-II,
Theni District.
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M.JOTHIRAMAN, J.
dixit
19.02.2025
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