S. Prema and Others vs State of Tamil Nadu and Others

N. Paul Vasanthakumar, J.—Petitioners seek to set aside the letter of the second respondent dated 24.10.1997 in this writ petition.

The brief facts necessary for disposal of the writ petition as stated in the affidavit are that the petitioners are working as Typists and they have

acquired the qualification for further promotion to the post of Assistant. When the question of promotion to the post of Assistant came up for

consideration among the Junior Assistants and Typists, the Government passed orders fixing the ratio of 4:1 in G.O.Ms. No. 224 Personnel &

Administrative Reforms Department, dated 8.3.1984, that is 4 posts for Junior Assistants and one post for the Typists. As objections were raised

by the Typists for the said ratio, the Government stayed implementation of the said ratio. Some of the Typists filed writ petition before this Court

and challenged the ratio, which was subsequently transferred to the Tamil Nadu Administrative Tribunal in T.A. No. 1449 of 1989. The said

application was heard along with some other original applications filed subsequently, and the Tribunal by order dated 27.11.1992 set aside the

G.O.224 dated 8.3.1984, holding that the said ratio will affect the seniority already fixed by the Tamil Nadu Public Service Commission while

filling up the vacancies. Thereafter, the Government issued GO(D)No.504 Municipal Administration and Water Supply Department dated

11.9.1995. However, the Government by the impugned letter dated 24.10.1997, stated that 4:1 ratio will be followed for the vacancies arose

prior to 27.11.1992 and for the vacancies that arose after 27.11.1992, interse seniority may be fixed between the Junior Assistants and Typists .

The said letter of the Government dated 24.10.1997 is challenged in this writ petition as violative to Article 14 and 16 of the Constitution of India

and without any reasonable basis.

The learned Senior Counsel appearing for the petitioner submits that by virtue of the impugned Government Letter the respondents are trying to

nullify the order of the Tamil Nadu Administrative Tribunal dated 27.11.1992 and are trying to implement 4:1 ratio, which is held unreasonable,

arbitrary and violative of Articles 14 and 16 of the Constitution of India. The learned counsel further added that nowhere in the said order of the

Tribunal it is held that the order can be applied prospectively. On the contrary, the order of the Tribunal set aside the Government action in fixing

4:1 ratio in its entirety. Therefore, according to the learned Senior Counsel, there is no justification on the part of the Government to state that the

vacancies arose prior to 27.11.1992 will be filled up as per 4:1 ratio and the vacancies that arose after 27.11.1992 will be filed up on the basis of

interse seniority of Junior Assistants and Typists.

Some of the Junior Assistants, who got impleaded as respondents 4 to 7 supported the action of the Government and Mr. R.Muthukannu,

learned counsel appearing for them argued that by virtue of G.O. No. 224 dated 8.3.1984, the Junior Assistants have got a right to be considered

for promotion to the post of Assistant at the ratio of 4:1 and the order of the Tribunal can be applied only prospectively and that the action of the

first respondent Government is justified.

Mrs. AL.Gandhimathi, appearing for the impleaded 8th respondent submitted that the order of the Tribunal dated 27.11.1992 can be applied

only prospectively, otherwise the right accrued to the Junior Assistants will be affected and the Government Order having been set aside only on

27.11.1992, all the vacancies arose prior to the said date shall be filled up only by following G.O. No. 224 dated 8.3.1984.

I have considered the rival submissions of the learned Senior Counsel appearing for the petitioners, learned Government Advocate as well as the

learned counsels appearing for the impleaded respondents 4 to 8.

A perusal of the order of the Tribunal dated 27.11.1992,which has become final even according to the respondents, demonstrate that the

G.O.224 dated 8.3.1984 fixing 4:1 ratio was held erroneous, unsustainable and violative of Articles 14 and 16 of the Constitution of India. The

respondents/Junior Assistants claimed that the vacancies arose upto the date of order of the Tribunal, based on the said Government Order fixing

4:1 ratio will be a balancing action. The order of the Tribunal nowhere states that vacancies arose upto the quashing of the Government Order can

be filled up by following 4:1 ratio. In the absence of any such saving clause, it is not open to the respondents to contend that the Government

Order which was quashed, can be applied till the date of the order and from the date on which the Government order was quashed, the order of

the Tribunal can be implemented. It is an elementary principle of law that once the Government order is found illegal and set aside and unless the

Court saves the promotion already made, or in the absence of specific provision in the order that the same will operate only prospectively, no one

can contend that the order of the Tribunal dated 27.11.1992 can be applied only prospectively.

By quashing the Government Order, the Tribunal set aside the same, which means the Government Order was never in existence. Therefore the

direction of the first respondent that the vacancies arose upto 27.11.1992 can be filled up following 4:1 ratio and the vacancies arose after

27.11.1992 alone can be filled up considering the interse seniority of Junior Assistant/Typists, is unsustainable. The impugned government letter

was also stayed during pendency of O.A. No. 8945 of 1997 as early as on 10.11.1997 and therefore no prejudice would be caused to anyone

because, immediately after issuance of Government Order, on objections being raised, the Government itself stayed the operation of the

Government Order. Therefore, there is no basis in the contention of the impleaded parties that their rights will be affected if the order of the

Tribunal is implemented. As already stated, the Government Order fixing 4:1 ratio was never implemented and therefore the claim of the impleaded

respondents that their rights will be affected if the impugned letter is quashed is unsustainable and without any basis.

In view of the above conclusion, the impugned letter date 24.10.1997 is set aside and the writ petition is allowed. No costs.