K.C.A.D. Gnanagiri and Others vs The State of Tamil Nadu and Others

P.K. Misra, J.—Heard the learned counsels appearing for the parties.

The facts giving rise to the present writ petition are as follows :-

Prior to 17.11.1984, the Assistant Public Prosecutors in the State were functioning in two separate units. The post of Assistant Public Prosecutors

in mofussil were governed by the Special Rules in Class XLIX of the Tamil Nadu General Service, whereas the Assistant Public Prosecutors in

Madras City were governed by Class XXXIV of the Tamil Nadu Government Service. The Government decided that both the Units should be

integrated and accordingly orders were issued in G.O.Ms.No,.2603 Home dated 17.11.1984 integrating the Assistant Public Prosecutors in

Madras City and in Mofussil as one unit and framed common Special Rules in Class XLIX. In the aforesaid G.O., the seniority was fixed with

reference to the date of appointment in the Category of Assistant Public Prosecutors Gr.II and accordingly the Government by letter

No.15560A/Courts VI/ 86-6 dated 4.8.1986 a Provisional Seniority List of Gr.I and Gr.II Assistant Public Prosecutors was published. At that

stage, the present respondents 3 & 4 challenged the above Provisional Seniority List in W.P.No.8394 of 1988. such writ petition was transferred

to the Tribunal and renumbered as T.A.No.326 of 1994. Similarly, W.P.No.3552 of 1985 was filed challenging such seniority list, which was

subsequently transferred and renumbered as T.A.No.325 of 1994.

The Tribunal on consideration of the relevant facts and circumstances, disposed of both the applications with the following directions :-

With the above observations, T.A.325/94 and T.A.326/94 are ordered as follows :-

The respondents are directed to prepare and publish the seniority list of All Assistant Public Prosecutors Grade-I and II for the State of Tamil

Nadu, taking into account the following directions:-

(i) The Assistant Public Prosecutor Grade-I (Metro) appointed before the issuance of G.O.Ms.No.2603, Home, dated 17.11.84 shall be placed

higher in seniority than Assistant Public Prosecutor-I in the Mofussil.

(ii) Assistant Public Prosecutor Grade-II (Metro) appointed before the issuance of G.O.Ms.No.2603, Home, dated 17.11.84 shall be placed

below Assistant Public Prosecutor-I in the Mofussil in seniority.

(iii) Assistant Public Prosecutor Grade-II (Metro) appointed before the issuance of G.O.Ms.No.2603, Home, dated 17.11.84 shall be placed

above Assistant Public Prosecutor-II in the Mofusill in seniority.

(iv) The seniority of Assistant Public Prosecutor Grade-I and Assistant Public Prosecutor Grade-I appointed after the issuance of

G.O.Ms.No.2603, Home, dated 17.11.84 shall be in accordance with the dates of their regular appointment in their respective posts. Time 4

months.

On the basis of the aforesaid directions of the Tribunal, the Government subsequently prepared a seniority list of Assistant Public Prosecutor

Grade-I and Assistant Public Prosecutor Grade-II.

The grievance of the present petitioners is that though such petitioners were beneficiaries of G.O.MS.No.2603 dated 17.11.1984, they had not

been impleaded as parties in the litigations before the Tribunal and by virtue of the subsequent order passed by the Government, their seniority in

the Graduation List has been adversely affected. It is their contention that since they were necessary parties and had not been impleaded, the

Transferred Applications should have been rejected by the Tribunal. It is further contended that since the Government had decided to merge two

units under G.O.Ms.No.2603 dated 17.11.1984, there was no necessity nor any justification for the Tribunal to give preference to the Assistant

Public Prosecutors appointed in the Metro.

The Tribunal has traced in detail the history relating to the two Units and has rightly observed that the experience at the bar required for

appointment as Assistant Public Prosecutor in the Mofussil was lower than the experience required for appointment as Assistant Public Prosecutor

in the city of Madras. The Tribunal also referred to the fact that before unification, the scale of pay payable to the Assistant Public Prosecutor in

the city of Madras was higher as compared to the scale of pay payable to the Assistant Public Prosecutor in the Mofussil. Keeping in view these

two important aspects, the Tribunal came to the conclusion that while unifying the two units, the seniority should not have been fixed on the basis of

appointment alone and the Assistant Public Prosecutors in Metro should have been given weightage or preference.

From the unchallenged materials, it is apparent that for the post of the Assistant Public Prosecutor Grade-I in Metro, one was required to have

experience as an Advocate for a period of 10 years, whereas for the Assistant Public Prosecutor Grade-I in Mofussil, the requisite experience was

5 years experience and similarly for the post of the Assistant Public Prosecutor Grade-II in Metro, the experience required was 5 years, whereas

for such Assistant Public Prosecutor Grade-II in Mofussil, experience required was two years. The Tribunal rightly came to the conclusion that

when both the categories were integrated, the aforesaid significant factor should not have been lost sight of. Keeping in view the aforesaid aspect

and also the fact that the Assistant Public Prosecutors in Chennai were receiving higher salary, the directions, which have already been extracted

were issued by the Tribunal with enough justification.

The contention of the learned counsel for the petitioners that the petitioners should have been impleaded as parties in the litigations before the

Tribunal even though attractive on the face of it, is not acceptable. Essentially, the policy of the Government in unifying the two units without giving

proper attention to the principle relating to weightage or seniority was the question before the Tribunal. The State Government which had issued

the G.O. was made as a respondent. The policy of the State Government was found defective, and therefore, a direction was given for rectifying

such defects in the manner indicated by the Tribunal. In such peculiar circumstances, the order of the Tribunal cannot be said to be illegal merely on

account of the fact that the present petitioners were not specifically impleaded.

Learned counsel for the petitioner has also contended that the G.O.Ms.No.2603 dated 17.11.1984 having not been specifically challenged, the

Tribunal should not have passed an order virtually modifying the G.O.. Even though there was no specific prayer for quashing the G.O., or

modifying the G.O., the anomalous situation created by the G.O., was the main subject matter before the Tribunal and the order of the Tribunal

cannot be said to be illegal or arbitrary, merely on the basis of such technical submission, particularly when the order passed by the Tribunal

appears to be very fair and reasonable, keeping in view the background and the historical perspective.

Learned counsel for the petitioners has further contended that the order of the Tribunal should have been brought to the knowledge of all the

persons and after giving them opportunity, the seniority list should have been prepared, more particularly when the previous provisional list has

been circulated. This grievance of the petitioners can be mitigated by giving opportunity to the petitioners or any other persons affected by the

subsequent seniority list to make suitable representation and if any such representation is made, the same should be considered keeping in view the

guidelines indicated in the directions given by the Tribunal.

As a result, while upholding the decision of the Tribunal, we make it clear that it would be open to the petitioners or any other aggrieved

persons to make representation regarding the seniority as published in Annexure-I to G.O.Ms.No.615 Home dated 26.5.1998 and in case such

representation would be received by the authorities, such representation may be considered in the light of the directions given by the Tribunal as

contained in paragraph 32 of the order.

Subject to the aforesaid observation, the writ petition is dismissed. No costs.