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Judgment
This writ petition is by the State of Tamil Nadu challenging the order of the Tamil Nadu Administrative Tribunal (hereinafter referred to as ''the
tribunal''), whereby the tribunal allowed the original application filed by one Dr. A.R. Chakravarthy, claiming seniority over Dr. C.J. Vela and Dr.
V. Madhini. The mainstay of Dr. Chakravarthy is that he was appointed under Rule 10(a)(1) of the Tamil Nadu State and Subordinate Service
Rules (hereinafter referred to as the ''Rules'') on 1.11.1971 as Temporary Assistant Surgeon and thereafter he was selected by the Tamil Nadu
Public Service Commission on 5.3.1976 and ultimately a regular appointment order was issued on 22.12.1978 appointing him in service with
effect from 1.11.1971. It seems that by the impugned order G.O.(D) No.438, Health dated 22.6.1994, which was communicated to
Dr.Chakravarthy by an order dated 1.7.1994, the respondents 3 and 4 before the Tribunal were given promotion overlooking the seniority of the
petitioner therein, viz., Dr. Chakravarthy.
He therefore filed the original application before the Tribunal. This application was opposed by the Government suggesting that the seniority of
the petitioner was fixed according to the ranking given by the Public Service Commission when he was selected by the Service Commission and,
therefore, Dr. Chakravarthy was placed lower than the third and fourth respondents. The tribunal has refused to accept this explanation and
defence and found that identical question was considered by it in T.A.No.658 of 1989 by its judgment dated 28.2.1990, wherein the tribunal held
that the seniority would reckon from the date of original appointments particularly in case of the candidates who were later on confirmed and who
were granted the said seniority. The tribunal, therefore, refused to accept the defence and allowed the application. It is this order, which is in
challenge before us.
Mr.Rajasekaran, learned counsel appearing on behalf of the government very earnestly argues that a selection under Rule 10(a)(1) does not
grant any status on a government employee and his date of appointment would necessarily have to be reckoned from the date when he was
regularly appointed by the Tamil Nadu Public Service Commission. The gravamen of the contention of Mr. Rajasekaran is that the third and fourth
respondents before the tribunal were selected by the Tamil Nadu Public Service Commission earlier and therefore they had to be taken as seniors
as compared to Dr. Chakravarthy. The learned counsel has taken us through Rules 23(a), 35(a) and 10(a)(1)of the Tamil Nadu State and
Subordinate Service Rules. The learned counsel contends further that even if the state government had appointed Dr. Chakravarthy with effect
from 1.11.1971, that could be only for the purposes of fixation of pension and pay and not for the purpose of seniority.
As against this, the learned Senior Counsel Mr.Chandru points out that this Court in "" K. Madalaimuthu and Another Vs. State of Tamil Nadu
and Others, , has already clinched the issue. Learned Senior Counsel points out that the Government had lost in the earlier matter, where the
tribunal had taken a view that the seniority would have to be reckoned from the date when the government servant was appointed. Learned Senior
Counsel further argues that all that was done by Dr.Chakravarthy was to apply before the tribunal that this judgment was not being implemented in
his case by the state government. Learned Senior Counsel further points out that there is a specific power under Rule 23(a) to allow a government
servant appointed under 10(a)(1) to start the probation from the first date of his service even if he is appointed under Rule 10(a)(1). On that basis,
the learned counsel says that the government has actually allowed Dr.Chakravarthy to be appointed with effect from 1.11.1971. In that view, the
learned senior counsel says that Dr.Chakravarthy is senior to respondents 3 and 4 and the writ petition has no meaning.
In the first place, one wonders as to why the government had to file this writ petition particularly when it is a question of inter se seniority
between its employees. Again, this is not a question involving number of employees, but the concerned employees are only one on one side and
two on the other. Those two persons had also remained exparte before the tribunal and have not bothered to appear before us at all. We fail to
understand as to why the government should have taken the sides of one set of employees as against some others. But, we are not on that question
solely.
In the aforementioned decision, the Division Bench of this Court, to which one of us was a party (V.S. SIRPURKAR, J.), has very clearly read
and interpreted the scope of Rules 10(a)(1), 23(a) and 35(a). There, the question has been finalised that there lies enough discretion in the
appointing authority to allow a government servant to start his probation from the first date of his service even if he is appointed with the aid of Rule
10(a)(1). Precisely that has happened here. Ultimately, if the cases against the respondents are to be compared, it is obvious that Dr.Chakravarthy
was appointed on 1.11.1971, whereas both the respondents were appointed much later than that. Once the government itself had taken a position
that Dr.Chakravarthy could be allowed to start his probation with effect from 1.11.1971, one fails to understand as to how the Government could
turn back and say that those persons who were appointed after Dr.Chakravarthy would still be senior to him.
The contention that Dr.Chakravarthy was appointed with effect from 1.11.1971 only for the purpose of pay and pension has no basis as the
Government Pleader could not show any document to support the same. The order dated 22.12.1978 also does not suggest that. In short, the writ
petition has no merits at all and it is dismissed with exemplary costs of Rs.3,000/- (Rupees Three Thousand Only). Consequently, connected
W.M.P. No. 4358/2001 is also dismissed.