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Judgment
Honourable Mr. Justice M.M. Sundresh
In view of the common issues raised in all the Writ Petitions challenging the same order impugned, they have been taken up together and a
common order is passed. As no relief is claimed by the learned counsels appearing for the petitioners against the Assistant Professor directly
selected and shown as 1 to 14 in the impugned list, the word ''respondents'' mentioned in this order will not make any reference to them by only
against other private respondents.
This is the second round of litigation pertaining to the Inter-Se-Seniority in the post of Assistant Professors between those who have been
directly appointed initially under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules on the one hand, and Tutors /
Demonstrates originally appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules and thereafter
upgraded/promoted as Assistant Professors after undergoing a special qualifying test and those Assistant Professors who have been absorbed in
pursuant to the taking over of the erstwhile Alagappa University on the other hand.
The Writ Petitions in W.P.Nos.14485, 14580 and 15364 of 2011 have been filed by the petitioners who have been appointed as Assistant
Professors under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules. The Writ Petition in W.P.No.14580 of 2011 has been
filed by the petitioners who are also appointed as Assistant Professors under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services
Rules but they challenged the impugned Inter-Se-Seniority list on the ground that Rule of Reservation will have to be followed once again among
the Assistant Professors who have been appointed earlier, while supporting the case of the respondents on the Inter-Se-Seniority. The Writ
Petition in W.P.No.19800 of 2011 has been filed by the petitioner being an appointee under the physically handicapped category and working as
a Principal at present, challenging the impugned order on the ground that he cannot be placed like that of others as he has been regularised with
retrospective effect which order has not been challenged. Even though the persons shown in the impugned seniority list from 1 to 14 have been
added as parties in these proceedings all the learned counsels fairly submitted that they are not challenging the said fixation of the Inter-Se-Seniority
list pertaining to them as they have been appointed, admittedly by following the due process of law in permanent vacancies through the Tamil Nadu
Public Service Commission.
The earlier fixation of Inter-Se-Seniority list was challenged before this Court. This Court in W.P.No.8495 of 2010, etc. dated 28.03.2011 has
passed the following order:
i) The Government is directed to consider the issue raised in these Writ Petitions and prepare Inter-se-Seniority List of Lecturers / Selection Grade
Lecturers / Readers on or before 31.05.2011 and only on the basis of the said seniority list, the Principal posts which are lying vacant have to be
filled up.
ii) As the above direction will settle the controversy once and for all, a direction is issued in W.P.No.8495 of 2010 to pass orders on the
representation of the petitioner dated 31.03.2010.
iii) Insofar as the prayer sought for in W.P.No.11176 of 2010 is concerned, the status-quo as on date is directed to be maintained till re-opening
of the colleges for the academic year 2011-2012.
iv) W.P.No.16272 of 2010 is disposed of with the above directions.
v) As the issue is now directed to be considered by the Government, it is made clear that this Court is not expressing any opinion on the merits of
the contentions raised by the learned counsel for the petitioners as well as the learned Senior Counsel and other learned Counsels appearing for the
private respondents and it is for the Government to decide the issue and pass appropriate orders and finalise the seniority list within the time
mentioned above."" In pursuant to the same, the order impugned has been passed which is the subject matter of these Writ Petitions.
Facts in brief:
In order to decide the disputes between the parties, the factual narration of the circumstances pertaining to the rules, regularisation and the
Government Orders covering the parties before this Court is necessarily required to be placed on record.
By the Government Order passed in G.O.Ms.No.2659, Education Department, dated 28.12.1977, after considering the request of the
Association of Tutors / Demonstrators, an order was passed that such of those Tutors / Demonstrators who have put in 5 or more years in service
as on 01.12.1977 who also possess post-graduate qualification would be straight away upgraded as Assistant Professors / Lecturers with effect
from 01.12.1977. A further representation was made by the Association of Tutors / Demonstrators, which paved way for another Government
Order passed in G.O.Ms.No.613, Education Department, dated 27.03.1978, modifying earlier order passed in G.O.Ms.No.2659, Education
Department, dated 28.12.1977. Accordingly in supersession of the earlier order passed, all the Post Graduate Tutors / Demonstrators, who have
completed 3 years of service as on 01.12.1977 were directed to be upgraded as Assistant Professors with effect from 01.12.1977. The
concession given in the Government Order was also made favourably to those Tutors / Demonstrators, who possess / acquire Post Graduate
qualifications and complete 3 years of service in their respective posts as and when they fulfil 3 years term. In the year 1978, Special Rules for the
Tamil Nadu Collegiate Education Service was made through a Government Order passed in G.O.Ms.No.1052, Education (Rules B1) dated
09.06.1978, Clause VII which deals with the post of Assistant Professor prescribing several modes. Accordingly, an appointment can be made as
an Assistant Professor either by direct recruitment or recruitment by transfer from among Tutors and Demonstrators in the Tamil Nadu Educational
Subordinate Service.
While dealing with the case of Tutors and Demonstrators who have been appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and
Subordinate Services Rules as well as the Assistant Professors, a Government Order was passed in G.O.Ms.No.118, Education (P-2) dated
23.01.1980. Accordingly, the Government has decided to conduct a special qualifying test organized by the Tamil Nadu Public Service
Commission for the purpose of regularisation of such temporary services in the Cadre of Assistant Professors, Tutors and Demonstrators in the
Collegiate Education Department. Therefore, the Government Orders clearly stipulates a special qualifying test only to those employees appointed
under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules.
The special qualifying test was conducted for the Tutors and Demonstrators who have been appointed on a temporary basis by 10(a)(i)(1) of
the Tamil Nadu State and Subordinate Services Rules. By the Tamil Nadu Public Service Commission Bulletin, dated 16.08.1981, the list of
selected candidates have been announced in the Cadre of Tutors / Demonstrators. Admittedly, this selection process is a in-house procedure by
way of an oral test. The private respondents herein starting from Nos.15 to 43 in the impugned promotional list have been selected in pursuant to
the special qualifying test. Thereafter, they have been appointed temporarily as Assistant Professors. Their appointment in the Cadre of Tutors /
Demonstrators were regularised by the Directorate of Collegiate Education, as per the proceedings dated 24.11.1982. A Government Order was
passed in G.O.Ms.No.1820, Department of Education, Science and Technology, dated 19.09.1983, which provides for a retrospective
regularisation of services of Tutors / Demonstrators and Assistant Professors from the date of the first temporary appointment. Clause 4 of the said
order states that for the purpose of an upgradation and promotion as Assistant Professor from Tutor / Demonstrator, the date of Tamil Nadu
Public Service Commission''s letter intimating the selection as Tutor / Demonstrator will be taken for reckoning the three years of service.
The above said facts would clearly indicate that the Tutors / Demonstrators formed a separate Cadre and the Assistant Professors formed
another Cadre. The post of Assistant Professor can be obtained by a Tutor / Demonstrator only on complying with the Government Orders by
way of special qualifying test and the required service. It is also not in dispute that the contesting parties, namely, the petitioners and the private
respondents have been appointed in their respective Cadres under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules
except those who were absorbed from the erstwhile Alagappa University. This position is very clear.
The Government Order passed in G.O.Ms.No.1465, Education Department, dated 20.12.1985, states that retrospective regularistion of
services of Tutors / Demonstrators and Assistant Professors from the date of first temporary appointment is made by taking into consideration of
the representation of the Association of teachers. As per the said order, it has been made clear that Tutors / Demonstrators and Assistant
Professors cannot claim promotion or upgradation (i.e.) from Tutor / Demonstrator to Assistant Professor and from Assistant Professor to
Professor on a later date in view of the retrospective regularisation. Therefore, the said Government Order has been passed by way of a
concession and also to prevent the beneficiaries from staking any claim against the regular appointee who has been appointed in accordance with
rules.
By the Government Order passed in G.O.Ms.No.1190, Education Department, dated 27.07.1987, the Government upgraded Tutors/
Demonstrators temporarily as Assistant Professors with effect from the date mentioned therein. In the said order also, it has been specifically stated
in so far as the question of regularisation of those persons in the service as Assistant Professors, the same has to be done in consultation with the
Tamil Nadu Public Service Commission. Taking note of the Government Order passed in G.O.Ms.No.1190, Education Department, dated
27.07.1987, another Government Order was passed in G.O.Ms.No.90, Education Department, dated 19.01.1989, which states that posts have
been created in the Cadre of Assistant Professors in order to fix those Tutors / Demonstrators who have been upgraded in pursuant to the special
qualifying test conducted in the year 1980 by the Tamil Nadu Public Service Commission. Accordingly, 37 posts have been created. Finally, the
Government in the Order passed in G.O.Ms.No.759, Education Department dated 11.08.1993 has regularised the services of Tutors /
Demonstrators who have been selected by the special qualifying test conducted by the Tamil Nadu Public Service Commission as Assistant
Professors / Lecturers. This decision has been made as a special case as the recruitment to the post of Lecturer has been excluded from the
purview of the Tamil Nadu Public Service Commission and entrusted to the ""Teachers Recruitment Board"" with effect from 22.09.1989.
Therefore, the said order was passed after noting that there was no provision to obtain the concurrence for the regularisation of the services of the
Lecturers who have been appointed on upgradation of the posts of Tutor / Demonstrator.
The facts narrated above would show that the private respondents who have been appointed temporarily under Rule 10(a)(i)(1) of the Tamil
Nadu State and Subordinate Services Rules were permitted to undergo a special qualifying test subject to the other conditions. Thereafter, they
were allowed to work as Assistant Professors and their services as in the said capacity were regularised with retrospective effect. This is the
admitted factual position. Thus, Tutors / Demonstrators have been appointed temporarily as Assistant Professors and their services were
regularised with retrospective effect in the said Cadre.
Now, we have to deal with the position of the Assistant Professors who have been appointed temporarily under Rule 10(a)(i)(1) of the Tamil
Nadu State and Subordinate Services Rules and thereafter regularised. These Assistant Professors have been appointed following the Rule of
Reservation. There appointment orders also would indicate the said position. Now they also made a representation like that of the temporary
appointments as Tutors / Demonstrators seeking to regularise their services. Accordingly, the Government Order was passed in
G.O.Ms.No.1840, Education Department, dated 16.12.1988. It is not in dispute that for these persons also who have been appointed earlier as
Assistant Professors temporarily under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules, the Government Orders have
been passed in G.O.Ms.No.802, Education Department, dated 06.06.1986 and G.O.Ms.No.1224, Education Department, dated 13.07.1988.
Therefore, irrespective of the fact as to whether the earlier Government Orders passed would cover the temporary appointments in the Cadre of
Assistant Professors or not, separate Government Orders referred above have been passed for them providing for the special qualifying test. It is
to be borne in mind that the special qualifying test is for the purpose of regularising them in the Cadre of Assistant Professors.
However, the Tamil Nadu Public Service Commission suggested that it would be a futile and time consuming exercise to suggest the temporary
appointments to undergo the special qualifying test and therefore, the said condition can be relaxed. The proposal of the Tamil Nadu Public
Service Commission was accepted by the Government as they would be placed below the candidates already selected by the Tamil Nadu Public
Service Commission. While fixing their seniority, these candidates will take their seniority below the last candidate selected by the Tamil Nadu
Public Service Commission for the year. Therefore, the Government Order makes it clear that when in a particular year a selection is made in
accordance with rules by the Tamil Nadu Public Service Commission for a permanent vacancy no preference can be made to a temporary
appointee under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules over such a candidate. However, the Government in the
said order has said that Rule of Reservation would be followed once again.
Thereafter, another Government Order was passed in G.O.Ms.No.336, Education Department, dated 08.03.1990 modifying the earlier
Government Order passed in G.O.Ms.No.1840, Education Department, dated 16.12.1988 holding that the seniority of persons will be fixed with
reference to their date of temporary appointment in the said posts without applying the Rule of Reservation. This position has been taken since the
Rule of Reservation has been followed already and an anomaly was created by which the person who has been appointed subsequently has been
placed over and above persons who have been appointed earlier even though the Rule of Reservation was followed at the time of every
appointment.
The Government also considered the retrospective regularisation and directed the Directorate of Collegiate Education to send the proposal for
the retrospective regularisation of those who have been regularised as per the earlier Government Order passed in G.O.Ms.No.1840, Education
Department, dated 16.12.1988. The same view has been reiterated by the subsequent Government Order passed in G.O.Ms.No.154, Education
Department, dated 12.02.1993, by which, the Government after taking into consideration of the earlier Government Orders passed in
G.O.Ms.No.1820, Department of Education, Science and Technology, dated 19.09.1983, G.O.Ms.No.1465, Education Department, dated
20.12.1985, and G.O.Ms.No.1840, Education Department, dated 16.12.1988 has passed orders granting retrospective regularisation of service
of Assistant Professors from the date of their temporary appointment. However, the retrospective regularisation granted by the Government has
been kept in abeyance, as representations have been made by some of the Assistant Professors who are regularised, claiming that the Government
Order passed in G.O.Ms.No.1840, Education Department, dated 16.12.1988 will have to be applied by following the Rule of Reservation once
again. Thereafter, this Court has passed the orders referred supra, directing the first respondent to reconsider the entire issue. In pursuant to which,
the orders have been passed by the Government followed by the consequential direction issued by the Directorate of Collegiate Education which
have been put into challenge before this Court.
Therefore, the grievance of the petitioners in W.P.No.14485, 14580 and 15364 of 2011 in sum and substance is that while regularising the
service of promotees from the Cadre of Tutors / Demonstrators in the Cadre of Assistant Professors and that of those who have been absorbed
from the Alagappa University and those temporary appointments who have been absorbed from the Alagappa University their case also will have
to be considered on the same line by taking into consideration of the services with retrospective effect from the date of their appointments decided
in the Government Orders passed in G.O.Ms.No.336, Education Department, dated 08.03.1990 and G.O.Ms.No.154, Education Department,
dated 12.02.1993. However, the petitioners request were rejected in the order impugned by making reliance upon the judgment of the Honourable
Apex Court holding that a temporary employee appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules cannot
count his initial appointment for the purpose of fixing his seniority. Challenging the same, the present Writ Petitions have been filed by them.
In pursuant to the enactment made, the undergraduate courses in the Alagappa College, Karaikudi, have been taken in its fold by the
Government. The Government also sanctioned the creation of posts temporarily for a period of one year. Thereafter, another Government Order
was passed in G.O.Ms.No.344, Education Department, dated 27.03.1989, by which, the teaching staff of Alagappa College, Karaikudi have
been absorbed. They have been absorbed by fixing their seniority with reference to the dates of their absorption in the Government services i.e.
01.05.1985. Therefore by the said Government Order, the seniority of the employees of the erstwhile Alagappa University has been fixed with
retrospective effect from the dates of their absorption i.e. 01.05.1985. These teachers have been placed above the petitioners and below the
private respondents who were initially appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules as Tutors /
Demonstrators and thereafter promoted / upgraded as Assistant Professors. These teachers also contend that the petitioners being temporary
appointees cannot seek to steal a march over them.
W.P.No.14580 of 2011
This Writ Petition has been filed by the Associate Professors who have been appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and
Subordinate Services Rules. According to them, the categorisation fixed as between the Associate Professors who have been appointed directly
and through promotion and on absorption is correct but the impugned order will have to be set aside for not following the Rule of Reservation. In
other words, it is their contention that the Government Order passed in G.O.Ms.No.1840, Education Department, dated 16.12.1988 will have to
be followed and the subsequent Government Orders will be of no consequence.
W.P. No. 19800 of 2011
This Writ Petition also pertains to a direct appointee in the Cadre of Assistant Professor. The petitioner herein has been appointed in the
category of physically handicapped person. The appointment order also states that he has been appointed in the said category as a special case.
By a subsequent Government Order passed in G.O.Ms.No.2172, Department of Education, Science and Technology, dated 17.11.1983, the said
appointment made earlier has been regularised from the date of initial temporary appointment which was made on 02.05.1981. However, the
petitioner was also placed below the others notwithstanding the fact that his services were regularised by a specific order with retrospective effect
which has not been put into challenge. In this connection, this Court will have to observe that none of the parties including the petitioners and
respondents in the other Writ Petitions have raised any serious objections to take into consideration of the case of the petitioner herein for the
purpose of fixing the seniority from the date of his initial appointment.
Submissions of the petitioners:
Shri. N.G.R. Prasad, Shri. J. Srinivasa Mohan, Ms. Vaigai, Ms.D.Nagasaila and Shri. R. Subramanian, learned counsels appearing for the
petitioners submitted that admittedly the petitioners were working although in a temporary capacity in the Cadre of Assistant Professors at the time
of entry of the private respondents who are promoted / upgraded from the Cadre of Tutors / Demonstrators. When such persons can be
appointed with retrospective effect, the petitioners cannot be treated differently, the action of the first respondent is totally arbitrary, unfair and
therefore violation of Article 14 of the Constitution of India. The first respondent has totally misconstrued the decision rendered by the Honourable
Apex Court in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, The respondents 1 and 2 will have to comply with the
Government Orders passed in G.O.Ms.No.336, Education Department, dated 18.03.1990 and G.O.Ms.No.154, Education Department, dated
12.02.1993. There is no bar under the rules for taking into consideration of the period of officiation done in a post prior to the regularisation. The
private respondents were not appointment by the Tamil Nadu Public Service Commission. A mere writing of an oral test by a subordinate Cadre
cannot be a basis for treating the petitioners differently. For the decision taken by the Government in not conducting the test, the petitioners cannot
be put at fault.
Rule 16 of the Tamil Nadu Public Service Commission Regulation, 1954, cannot be a bar for considering the case of the petitioners. The
relaxation mentioned in the Government Orders are pertaining to the age and other qualification.
In so far as the case of the respondents regularised from the erstwhile Alagappa University is concerned, when they were placed below as
against the promottee Assistant Professors they cannot seek to steal a march over the petitioners. Admittedly, when those respondents were
absorbed the petitioners were working as Assistant Professors and those respondents were also working on a temporary basis. When they were
regularised with retrospective effect, the petitioners cannot be treated differently.
In so far as the contentions raised in W.P.No.14580 of 2011 is concerned, the learned counsel submitted that the appointment orders would
indicate that the Rule of Reservation has been followed. There is no law which provides for the following of reservation twice over. What has been
challenged is a seniority list which has been passed by taking into consideration of the Rule of Reservation. The petitioners without challenging the
subsequent Government Orders cannot challenge the order impugned. There is nothing on record to suggest that Rule of Reservation has not been
followed and on the contrary the materials would amply prove that the same has been scrupulously adhered to.
In support of their contentions, the learned counsels would rely upon the following judgments:
G.P. Doval and Others Vs. Chief Secretary, Government of U.P. and Others, State of Tamil Nadu and another etc. Vs. E. Paripoornam and
others, G.S. Venkat Reddy and others etc. etc. Vs. Government of Andhra Pradesh and others, P.V.T. Phillip Vs. P. Narasimha Reddy and
Others, , M. Janardhan and Others Vs. State of A.P. and Others, , Shri L. Chandrakishore Singh Vs. State of Manipur and Others, Dr. Chandra
Prakash and Others vs. State of U.P. and Another [ (2002) 10 SCC 710 ] K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others,
M.P. Palanisamy and Others Vs. A. Krishnan and Others, , S. Sumnyan and Others Vs. Limi Niri and Others, Ajit Singh and Others Vs. The
State of Punjab and Others, , Bimlesh Tanwar Vs. State of Haryana and Others, State of U.P. and others Vs. Dr. R.K. Tondon and others, etc.,
State of Uttarakhand and Another Vs. Archana Shukla and Others [ 2011 (3) LLN 461 ] UOI and Ors. v. Satish Chandra Mathur, 2001 (10)
SCC 185 Union of India and Another Vs. Lalita S. Rao and Others etc. etc., R.K. Mobisana Singh vs. Kh. Themba Singh and Others [ (2008) 1
SCC 747 ] The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, Suraj Parkash Gupta
and Others Vs. State of Jammu & Kashmir Others,
Submissions of the respondents:
Per contra, the learned counsels appearing for the respondents would submit that the petitioners being appointed under Rule 10(a)(i)(1) of the
Tamil Nadu State and Subordinate Services Rules cannot seek as a right that they should be given the same preference as that of others. The
petitioners right would arise only from the date of the regularisation. Till the date of regularisation the petitioners did not have any right over the
post. Inasmuch as the appointments have been made by relaxing the rules, the Government Orders are not applicable to the petitioners. The Tutors
/ Demonstrators who have been promoted / upgraded stand in a different footing as they have been appointed and approved by the Tamil Nadu
Public Service Commission.
The Government Order passed in G.O.Ms.No.1840, Education Department, dated 16.12.1988 deals only for one year. As per the proviso
contained under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules, the petitioners did not have any right to insist that their
services would be regularised with retrospective effect. The petitioners have not gone through the process of selection. The ratio laid down by the
Honourable Apex Court in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, would apply in all force to the case on hand. The
effects of upgradation would start from the date of the order. The Government Orders passed in G.O.Ms.No.336, Education Department, dated
18.03.1990 and G.O.Ms.No.154, Education Department, dated 12.02.1993 are not applicable to the case of the private respondents as they are
pertaining to the temporary Assistant Professors directly appointed.
In support of the above said contentions, the learned senior counsels appearing for the respondents, Shri. C. Selvaraj and Shri. N.R.
Chandran, have made reliance upon the following judgments:
State of Tamil Nadu and another etc. Vs. E. Paripoornam and others, Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs.
Union of India (UOI) and Others, State of W.B. and Others Vs. Aghore Nath Dey and Others, J & K Public Service Commission, etc. vs. Dr.
Narinder Mohan and Others, etc. [1994 (1) ASLJ 218] State of U.P. and others Vs. U.P. State Law Officers Association and others, P. Srinivas
Vs. M. Radhakrishna Murthy and Others, , A. Umarani Vs. Registrar, Cooperative Societies and Others, , Secretary, Secretary, State of
Karnataka and Others Vs. Umadevi and Others, K. Malalaimuthu vs. State of Tamil Nadu & Others [(2006) 3 MLJ 161] P. Perumal Vs. A.V.
Sureshbabu, The State of Tamil Nadu and The Registrar, Tamil Nadu Administrative Tribunal, M.P. Palanisamy and Others Vs. A. Krishnan and
Others, P.S. Jagannathan vs. State of Tamil Nadu, rep. by its Sercretary to Government, Agriculture Department, Chennai and Another [ORDER
in W.A. No. 237 of 2010 DATED 12.07.2010] K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, M.P. Palanisamy and
Others Vs. A. Krishnan and Others, P. Perumal Vs. A.V. Sureshbabu, The State of Tamil Nadu and The Registrar, Tamil Nadu Administrative
Tribunal, Ch. Narayana Rao vs. Union of India and Others [ 2011 (2) LLN 349] R.K. Mobisana Singh vs. Kh. Themba Singh and Others
[(2008) 1 SCC 747] Amarjeet Singh and Others vs. Devi Ratan and Other [(2010) 1 MLJ 833] S. Sumnyan and Others Vs. Limi Niri and
Others,
Ms. Vaigai, would submit that the Writ Petition filed in W.P.No.14580 of 2011 will have to be allowed, since the Rule of Reservation has not
been followed. There is no uniform application of a running roster. As the appointments were made on an emergency basis, the roster system was
not followed. Therefore, the learned senior submitted that the Writ Petition will have to be allowed, by setting aside the Inter-Se-Seniority list, with
a direction to refix the same based upon the seniority among the Assistant Professors who have been appointed directly.
Shri. R. Subramanian, learned counsel appearing for the petitioner in W.P.No.19800 of 2011 would submit that the said Writ Petition will
have to be allowed, as the petitioner''s services have been regularised which has not been put into challenge. The petitioner has been appointed in a
separate category applicable for specially handicapped person. As the said order has become final and the petitioner having been working as the
Principal at present, the seniority cannot be drawn demoting him without following the procedure and the respondents are estopped from drawing
the seniority panel after the regularisation of the service of the petitioner with retrospective effect. Therefore, the Writ Petition will have to be
allowed.
W.P. Nos. 14485, 15159, 15364 and 19800 of 2011
Admittedly, the petitioners have been appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules and the
appointments were made temporarily, of course in a regular post, similar to the case of the private respondents who are shown as 15 to 43 in the
impugned seniority list. The only difference is that they have been appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate
Services Rules in the Cadre of Tutors / Demonstrators whereas the petitioners have been appointed in the Cadre of Assistant Professors. A
narration of the Government Orders referred earlier would show that the posts held by the private respondents except 1 to 14 in the impugned list
of Assistant Professor is a temporary post by way of upgradation. This position is very clear that both these posts are not inter changeable (Tutors
/ Demonstrators and Assistant Professors). That is the reason why the Government Orders have been passed earlier upgrading those Tutors /
Demonstrators who have put in sufficient years of service and thereafter directing the temporary appointees under Rule 10(a)(i)(1) of the Tamil
Nadu State and Subordinate Services Rules to undergo a special qualifying test. It is those respondents who were appointed as per Rule 10(a)(i)
(1) of the Tamil Nadu State and Subordinate Services Rules as Tutors / Demonstrators who were specifically directed to undergo the test. This is
an oral test conducted by the Tamil Nadu Public Service Commission. This test is conducted for the purpose of regularisation in the ""Cadre of
Tutors / Demonstrators"". They have been regularised by the orders of Government and the period of three years mentioned in the Government
Orders was to be reckoned from the date of the Tamil Nadu Public Service Commission intimating the selection.
The Government Order passed in G.O.Ms.No.1465, Education Department, dated 20.12.1985 also states that it is a concession. The
subsequent Government Order passed in G.O.Ms.No.759, Education Department dated 11.08.1993 which has been read in the Government
Order passed in G.O.Ms.No.23, Education, Science and Technology Department, dated 09.01.1995 leave no doubt in the mind of this Court that
the regularisation of the private respondents shown as 15 to 43 in the impugned list of their services in the post of Lecturers has been done as a
special case. It was done in view of the Government Order passed in G.O.Ms.No.1342, Education, dated 22.09.1989 that the recruitment to the
post of Lecturer has been exempted from the purview of Tamil Nadu Public Service Commission, as the same was shifted to ""Teachers
Recruitment Board"" from the said date. Therefore, there is no specific provision to obtain the concurrence for the regularisation of the service of
Lecturers who have been appointed or upgraded from the post of Tutors / Demonstrators. Hence, in view of the said clear position as seen from
the Government Order passed in G.O.Ms.No.759, Education Department dated 11.08.1993, this Court is of the considered view that the
petitioners cannot be treated differently to that of the private respondents shown in the impugned list as 15 to 43.
The contentions of the learned counsels appearing for the respondents that the respondents were made to undergo a special qualifying test and
therefore they should be treated differently cannot be countenanced. This was done only in the ""Cadre of Tutors / Demonstrators"" that too for the
purpose of regularisation alone. The said test was also done not by way of an open competition but by way of an in-house process. Therefore, the
test itself was a concession specifically given to those temporary employees under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate
Services Rules in the Cadre of Tutors / Demonstrators. Be that as it may, the question is, can such persons who have been regularised in their
Cadre be allowed to have seniority over the petitioners merely because they have been asked to officiate in the promotional post. The answer has
to be ""No"". Merely because the Tutors / Demonstrators have passed the test and allowed temporarily to continue as Assistant Professors they
cannot steal a march over the persons who have been already working although in a temporary capacity. It is not in dispute that the respondents
were promoted and upgraded from the post of Tutors / Demonstrators. An upgradation simplicitor is different from an upgradation / promotion.
Considering the said issue, the Honourable Apex Court in Bharat Sanchar Nigam Limited vs. R. Santhakumari Velusamy and Others [(2011) 9
SCC 510] has held as follows:
29....Clause (iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service.
Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees
in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability
for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees
whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to
promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection
criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation....
Therefore, this Court is of the view that the post of Assistant Professors being a promotional post involving a process of selection, tests undergone
in the subordinate post cannot be the basis for distinguishing the respondents as against the petitioners.
It is also seen that the Government Orders passed in G.O.Ms.No.1840, Education Department, dated 16.12.1988 and G.O.Ms.No.336,
Education Department, dated 18.03.1990, do not deal with any other classification. They only deal with the relaxation regarding the age and other
related issues. Therefore, the submission of the learned counsel for the respondents that the Government Orders refer to the appointment under
Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules cannot be accepted as in the said case there is no necessity for passing
the said Government Orders. Moreover, the respondents 1 and 2 are estopped from taking a different stand by passing the order impugned.
The Government Order passed in G.O.Ms.No.336, Education Department, dated 18.03.1990 has not been annulled or withdrawn. The said
Government Order and the subsequent Government Order passed in G.O.Ms.No.154, Education Department, dated 12.02.1993 are very much
in force. The Government Order passed in G.O.Ms.No.336, Education Department, dated 18.03.1990 has been kept in abeyance only on the
ground of dispute regarding the Rule of Reservation. In fact the Government in the counter filed in W.P.No.14580 of 2011 has made substantial
reliance upon the said Government Order while justifying the stand that it has followed the Rule of Reservation. Therefore, this Court is of the view
that the petitioners are entitled to get the relief as per the said Government Orders.
A perusal of the Government Orders passed in G.O.Ms.No.1840, Education Department, dated 16.12.1988 and G.O.Ms.No.336,
Education Department, dated 18.03.1990 would show that it is the Government which has decided to accept the recommendation of the Tamil
Nadu Public Service Commission in not having the special qualifying test to the petitioners. In fact the petitioners did not make any request for
dispensing with the same. The reason assigned by the Tamil Nadu Public Service Commission has been accepted by the Government that the said
process would be time consuming and a futile exercise. Therefore, when the Government itself feels that such exercise is futile and time consuming
it is estopped from contending that the private respondents are in a better position. Absolutely it is not fault of the petitioners. Whether the
petitioners undergo the oral qualifying test or not would not make any qualitative difference to their case. Merely because a process was adopted
by one set of employees in a particular Cadre and the same was given up by the employer concerned for the other set of employees in some other
different Cadre for the reason best known to it the same cannot be a ground to treat them differently. Applying the same ratio it cannot be said that
the private respondents 15 to 43 as shown in the impugned list are in fact selected by the Tamil Nadu Public Service Commission.
As discussed above, it is nothing but a process for regularisation in a subordinate Cadre. That is the reason why the Government Orders
stipulate further condition of three years. Therefore, when a person working in the Cadre of Tutor / Demonstrator gets himself elevated to the
Cadre of Assistant Professor but in a temporary capacity he cannot overcome another person who is already working in a said capacity. In other
words, both those persons are standing in a very same footing regarding their respective entry in a particular Cadre. As discussed above, there is
no Government Rule which prescribes for promotion to the post of Assistant Professor. The concurrence of the Tamil Nadu Public Service
Commission was also not required for such a promotion. Therefore, the classifications sought to be made by the learned counsels appearing for the
respondents cannot at all be accepted.
The learned counsels appearing for the respondents made substantial reliance upon the Rules, particularly Rule 16 of the Tamil Nadu Public
Service Commission Regulation, 1954 and Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules. This Court is of the view that
there is no necessity to go into those rules. We are dealing with the case between the petitioners who are under Rule 10(a)(i)(1) of the Tamil Nadu
State and Subordinate Services Rules appointees as Assistant Professors on one hand and those who were appointed under Rule 10(a)(i)(1) of
the Tamil Nadu State and Subordinate Services Rules as Tutors / Demonstrators and thereafter promoted on the other hand. In other words, we
are not dealing with the case of appointees under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules regularised
subsequently and thereafter seeking retrospective regularisation from the date of the initial entry and a direct recruitee in the same Cadre.
On the contrary, a combined reading of the regularisation and the rules would show that there is sufficient power for the Government to
consider the case of an employee to take into consideration of the past service particularly in a case where similarly placed persons have been
given the said benefit. As discussed above, the respondents are no where in a better position than the petitioners who have been appointed under
Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules as both are appointed in the same mode in their respective Cadres. It is
true that the petitioners cannot seek as a matter of fact that their services should be taken into account from the date of the initial appointment.
However, in a case where similarly placed persons and persons who have lesser rights than the petitioners have been given such a concession then
a duty is imposed upon the respondents 1 and 2 to see to it that justice will have to be rendered. They cannot adopt different yardstick to different
persons affecting their rights. Therefore, this Court is of the view that the Writ Petitions will have to be allowed.
Direct Recruitees vis-a-vis the absorbed candidates:
In so far as the absorbed teachers from the erstwhile Alagappa University is concerned, admittedly they have been placed below the other
private respondents who have been given appointments with retrospective effect. They have not challenged the promotional list by which the other
private respondents shown in the impugned list as 15 to 43 have been placed above them. Their posts were created temporarily and their
appointments were temporary. It is also not in dispute that at the time of their entry into the Government service, the petitioners were in fact
working as Assistant Professors. Therefore, when those persons have been given regularisation with retrospective effect, the petitioners cannot be
discriminated. Accordingly, this Court is of the view that the petitioners are entitled to be placed over and above those respondents who have been
regularised with retrospective effect from their absorption.
Element of Fairness:
The question for consideration is as to whether the order impugned passed by the first respondent depicts an element of fairness. This Court is
concerned with the order impugned as to whether the same is arbitrary and unreasonable or not. The discretion by an authority should be based
upon relevant materials. In other words an administrative discretion cannot be exercised for a mere asking but should be based upon equity and
good conscience. An act done, which is in negation of equality and irrational, by an administrative authority will have to be termed as arbitrary.
When such action is arbitrary, the same would be violative of Article 14 of the Constitution of India. Considering the element of fairness it has been
held by the Honourable Apex Court in Mrs. Asha Sharma Vs. Chandigarh Administration and Others, as follows:
Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no
rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and
transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in
line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of
determinative nature. The standard of fairness is also dependant upon certainty in State action, that is, the class of persons, subject to regulation by
the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness
and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to
situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided.
Therefore, applying the ratio laid down therein and in the light of the discussion made above, this Court is of the view that on the principle of
fairness, the order impugned cannot be sustained.
W.P. No. 14580 of 2011
It is seen from the appointment orders issued to various persons appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate
Services Rules in the Cadre of Assistant Professors, the Rule of Reservation has been followed at the very initial stage. The Government Order
passed in G.O.Ms.No.336, Education Department, dated 08.03.1990 also would indicate that Rule of Reservation have been duly followed. The
subsequent Government Order passed in G.O.Ms.No.154, Education Department, dated 12.02.1993 also would indicate that Rule of
Reservation has been followed. The documents filed by the petitioners would clearly demonstrate that Rule of Reservation has been followed by
adopting the communal roster. That is the reason why the Tamil Nadu Public Service Commission has not recommended for following the said
Rule of Reservation once over and again which would amount to double reservation. The said mistake committed by the Government while passing
the order in G.O.Ms.No.1840, Education Department, dated 16.12.1988 has been rectified in the subsequent order passed in G.O.Ms.No.336,
Education Department, dated 18.03.1990. If the contention of the learned senior Counsel Ms. Vaigai, is accepted then a person who has been
appointed subsequently as a junior will become a senior to the person appointed earlier in the very same Cadre when the appointment have been
made by following the communal rotation. There is nothing on record to suggest that the Rule of Reservation has not been followed and on the
contrary there is sufficient materials to hold that the same has been followed. Moreover, the petitioner has not challenged the Government Order
passed in G.O.Ms.No.336, Education Department, dated 18.03.1990. Therefore, the Writ Petition filed in W.P.No.14580 of 2011 seeking for
refixation of seniority based upon a Rule of Reservation is liable to be dismissed and accordingly, the same is dismissed.
Decisions referred:
Numerous decisions have been referred by the learned counsels appearing for both sides. Particularly the learned counsels appearing for the
petitioners made reliance upon the judgment rendered in G.P. Doval and Others Vs. Chief Secretary, Government of U.P. and Others, which has
been quoted with approval in S. Sumnyan and Others Vs. Limi Niri and Others, They also seek to distinguish the ratio laid down in K.
Madalaimuthu and Another Vs. State of Tamil Nadu and Others, which has been followed in M.P. Palanisamy and Others Vs. A. Krishnan and
Others, . On the contrary the learned counsels appearing for the respondents made substantial reliance upon the judgments to submit that a person
appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules cannot seek to count his period of officiation prior to
regularisation. The learned senior counsels have also made reliance upon the judgment of the Honourable Apex Court in State of Uttar Pradesh
and Another Vs. Dr. M.J. Siddiqui and Others, .
As discussed above, the judgments referred by both sides would show that a person appointed under Rule 10(a)(i)(1) of the Tamil Nadu State
and Subordinate Services Rules and subsequently regularised cannot seek as a matter of right that the service rendered by him in the capacity as a
temporary employee will have to be counted for the purpose of the seniority. There is no difficulty in appreciating the said position. However, the
decisions also would show that the services rendered in a temporary capacity can be taken into account by the authority in a given case. Therefore
while a matter of right it cannot be claimed by an employee that his services rendered as Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate
Services Rules, appointee should be reckoned for the purpose of seniority, equally the respondent cannot apply different yardstick to different
employees who are similarly placed or not in a better position. In other words, the respondents cannot say that for one group of persons who are
either placed like that of the petitioners or worse off, a retrospective regularisation can be given but the same cannot be extended to the petitioners.
There is no express bar for the respondents 1 and 2 from granting such a relief to the petitioners when fairness requires the same. In other words,
either the petitioners ought to have given the same benefits given to the private respondents or they ought not to have given such benefits
overlooking the case of the petitioners affecting them adversely. When a power is available with the authority the same has to be applied uniformly.
The respondents cannot apply the rules in favour of one group whose rights are subject to the rights of the other group.
As discussed above, the rules provide for such a power to be exercised by the respondents. The first respondent has clearly misconstrued the
ratio laid down by the Honourable Apex Court in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, . That was a case which
arose between direct recruitees who have been appointed by conducting examination by the Tamil Nadu Public Service Commission as against the
recruitees appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules. Therefore, the Honourable Apex Court was
pleased to hold that as against the persons who has come through the proper channel the persons who were selected without the due process
cannot seek seniority. The facts discussed above in this case are totally different. On the contrary, there is no bar for taking into consideration of
the continuous officiation of an employee in a temporary capacity in a given case. Therefore, this Court is of the view that the first respondent ought
to have exercised his discretion in favour of the petitioners while extending the said benefits to the respondents.
It is trite law that a judgment of a Court of law shall not be construed like a statute or an edict. A decision will have to be applied by taking into
consideration of the facts and circumstances of each case. Therefore, the decisions relied upon will have to be seen in the context of the factual
scenario. The petitioners do not seek any specific relief that the services rendered by them prior to the regularisation will have to be taken into
consideration for the purpose of Inter-Se-Seniority. Their specific grievance is that they cannot be discriminated as against the private respondents.
In other words, according to the petitioners, a different yardstick cannot be applied to the private respondents as against the petitioners who got a
better right than them. As discussed above, the facts would reveal that the petitioners are better placed having been working as Assistant
Professors prior to the entry of private respondents who have been arrayed as 15 onwards in the impugned list.
In this context now let us see the judgment relied upon by both sides in S. Sumnyan and Others Vs. Limi Niri and Others, where the
Honourable Apex Court after taking note of the judgment rendered in G.P. Doval and Others Vs. Chief Secretary, Government of U.P. and
Others, has held in the following terms:
We may here also appropriately refer to another decision of this Court in the case of G.P. Doval and Others Vs. Chief Secretary, Government
of U.P. and Others, wherein this Court held that regularization of the services of a person, whose initial appointment although not in accordance
with the prescribed procedure but later on approved by an authority having power and jurisdiction to do so would always relate back to the dates
of their initial appointment. Para 13 is reproduced hereinbelow:(SCC p.341)
13.... If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment
regular, it is obvious commonsense that in the absence of a contrary rule, the approval which means confirmation by the authority which had the
authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is
made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. That has not been
done in this case.
We may also usefully refer to the judgment of this Court in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State
of Maharashtra and others, which reads as follows: (SCC pp.744-45, para 47).
47.To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according
to the date of his confirmation.
The other aspect of the matter which is to be noted is that when the respondents were appointed to the service as Assistant Engineers on the
recommendation of the APPSC, the said appointment was on probation for a period of two years. Some of the appellants had successfully
completed their probation period on 20.07.1989, after their cases had been taken up for regularization by the APPSC. Therefore, when
considered from any angle there is no justification for denial of the benefit of seniority to the appellants from the date of their initial appointment
which is also in tune with the legal principles laid down by this Court as referred to hereinbefore and in that view of the matter the aforesaid
decision which is relied upon by the counsel appearing for the respondents is held to be not applicable to the facts and circumstances of the present
case.
In view of the aforesaid discussion, we set aside the orders passed by the Single Judge as well as by the Division Bench of the High Court.
Consequently, the Writ Petition filed by respondent no. 1 in the High Court would stand dismissed.
The Honourable Apex Court had also distinguished the decision rendered in K. Madalaimuthu and Another Vs. State of Tamil Nadu and
Others, Hence, this Court is of the view that the ratio laid down by the Honourable Apex Court is applicable to the case on hand.
In Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, while dealing with the regularisation of ad hoc promotees as
against the persons who have been working therein it has been held by the Honourable Apex Court in the following manner:
62 This principle is supported by ample authority. Procedural inaction towards promotees, it has been held, can be ""rectified"". This is explained in
the three Judge Bench case in State of W.B. and Others Vs. Aghore Nath Dey and Others, . In that Judgment propositions A and B laid down in
Direct Recruit Case were explained by Verma, J. (as he then was). It was pointed out that proposition A where it was held that the ad hoc service
would not count was one where the same was stop gap (i.e. and remained as such). In proposition B it was said that ad hoc service could count in
certain situations such as where there was only a ''procedural'' irregularity in making appointments according to Rules. In such a situation, the
irregularity can be subsequently ''rectified''. In such a case such ad hoc/stopgap or temporary service could be counted. Again in Syed Khalid Rizvi
''s case, it was held by Ramaswamy, J. speaking for the three Judge Bench that proposition A and B in Direct Recruit case had to be read with
para 13 therein. Similarly, in I.K. Sukhija and Others Vs. Union of India (UOI) and Others, Nanavati, J. explained propositions A and B by
reference to Aghore Nath Dey''s case referred to above.
Again, in respect of the same Rule 23(a) of the Andhra Pradesh Rules, this Court observed in State of Andhra Pradesh and another Vs. K.S.
Muralidhar and others, that there can be no objection under the said rule for retrospective regularisation.
Similar is the position in M. Janardhan and Others Vs. State of A.P. and Others, There adverting to Rule 37(e) of the A.P. Rules which also
permitted regular promotion from an ''anterior date'', (like Rule 23 here) it was held that the said retrospective promotions were rightly upheld by
the Tribunal.
Thus, there is overwhelming authority of this Court to hold that adhoc, stop gap service could be regularised from an anterior date after
consulting the Service Commission from the date of vacancy in promotee quota, after considering fitness, eligibility, suitability and ACRs.
Therefore, the adhoc/stop gap service rendered by promotees beyond six months and without the consent of the Public Service Commission as
per Regulation 4(d)(ii) cannot be treated as non-est. It can be regularised later after consulting the Commission in respect of posts in the promotion
quota and subject to eligibility and suitability based on ACRs. etc. Only the period rendered outside quota or the period rendered within quota
when the promotee was not eligible or found fit has to be excluded.
Therefore, the above said decisions would show that there is no bar for taking into consideration of the services rendered by an ad hoc employee
as against those similarly placed or others who have got inferior rights.
In Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. Union of India (UOI) and Others, the Honourable Apex Court
was pleased to hold that unless a promotee officer is appointed in accordance with the rule in a substantive vacancy it is not become of the service.
Therefore, the said judgment in fact supports the case of the petitioners as they are not promotees. Similarly in P. Srinivas Vs. M. Radhakrishna
Murthy and Others, the same ratio has been reiterated after taking into consideration of the decision made by the Constitutional Bench in The
Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, The ratio laid down by the Honourable
Apex Court would in fact disentitle the private respondents from counting their service in the promoted posts from the date of their entry as
temporary officers.
The decision rendered in P. Perumal Vs. A.V. Sureshbabu, The State of Tamil Nadu and The Registrar, Tamil Nadu Administrative Tribunal,
is also between the promotees and the direct recruitees.
As discussed above, in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, which was the basis of the order impugned, the
Honourable Apex Court was dealing with the case of Inter-Se-Seniority between the temporary appointee and those appointed on a regular basis
by following the selection process. Therefore, in that context by construing Rule 23(a) and Rule 10(a)(i)(1) of the Tamil Nadu State and
Subordinate Services Rules, 1955, the Honourable Apex Court has held that the promotees cannot seek as a matter of right to count their services
prior to regularisation.
Similarly, in M.P. Palanisamy and Others Vs. A. Krishnan and Others, the Honourable Apex Court was once again dealing with the ad hoc
appointees vis-a-vis candidate appointment after proper competitive examination. As discussed above, the said decision would be applicable only
to those persons who are already in service in accordance with law. In other words, the decision can be applied such of those officers i.e. Serial
No.1 to 14 in the impugned seniority list who have been appointed initially on a regular basis.
Reliance has also been placed by the learned counsels appearing for the respondents over the decision rendered in Ch. Narayana Rao vs.
Union of India and Others [2011 (2) LLN 349]. The facts involved in the said case are totally different. The respondents therein had passed the
special qualifying test as contemplated under the rules and thereafter his seniority has been fixed. Therefore, there is no difficulty in once again
reiterating the settled position of law as held by the constitutional Bench in The Direct Recruit Class-II Engineering Officers'' Association and
others Vs. State of Maharashtra and others, that an ad hoc appointee cannot claim seniority over the appointee who has been appointed in
accordance with rules. However, the factual situation in the case at hand is totally different. The private respondents, cannot claim that they have
been appointed in accordance with rules. Hence, this Court is of the view that the decision rendered by the Honourable Apex Court as relied upon
by the learned counsels appearing for the respondents would not enure to their benefits.
The Honourable Apex Court in Sk. Abdul Rashid and Others vs. State of Jammu and Kashmir and Others [(2008) 1 SCC 722] has held in
the following manner:
In State of Bihar and others Vs. Sri Akhouri Sachindra Nath and others, this Court held :(SCC p.342, para 12)
12.... It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely
affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of
their initial entry into the service.
However, in exercise of our discretionary jurisdiction under Article 142 of the Constitution of India, we direct that despite this order if any
monetary benefit has been conferred upon the private respondents, the same may not be recovered.
Therefore in the light of the pronouncements, this Court is of the view that the Writ Petitions are entitled to succeed.
In the result, the Writ Petitions filed in W.P.No.14485, 15159, 15364 of 2011 are allowed and consequently, the impugned orders are set
aside in so far as the Serial No.15 onwards in the impugned seniority list. While setting aside the orders impugned, the following directions are
issued:
(i) The first respondent is directed to redraw the seniority list by taking into consideration of the date of initial appointment of the petitioners and the
private respondents who are arrayed from Serial No.15 onwards in the impugned seniority list.
(iii) In so far as the persons shown in the impugned seniority list from 1 to 14 are concerned, their seniority list fixed is upheld as they are
admittedly direct recruitees appointed through proper process.
The Writ Petition filed in W.P.No.19800 of 2011 is allowed, with the directions to the respondents 1 and 2 to fix the seniority by taking into
consideration of date of initial appointment.
The Writ Petition filed in W.P.No.14580 of 2011 is hereby dismissed, as the respondents 1 and 2 have correctly followed the roster in
adopting the Rule of Reservation.
The first respondent is directed to complete the entire process of redrawing the list, within a period of eight weeks from the date of receipt of a
copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.