AI Structured Summary
Not yet generated for this judgment
Judgment
P.R. Shivakumar, J.—The petitioner is serving as Assistant in Thanjavur Medical College. Initially he was temporarily appointed under the
general rule 10(a)(1) of the Tamil Nadu Ministerial Service Rules on 22.5.1981 by the District Medical Officer, Thanjavur at Nagapattinam. After
being thus appointed temporarily, he was posted as Typist in the Office of the District Medical Officer, Thanjavur at Nagapattinam. Meanwhile
competitive examination for selection of Junior Assistants, Typists and Steno-Typists was conducted by the Tamil Nadu Public Service
Commission (in short TNPSC) in the year 1983. He got selected and as per the selection list and he was allotted to the Directorate of Medical
Services and Family Welfare and he was relieved from the office of the District Medical Officer, Thanjavur at Nagapattinam on 4.12.1984
afternoon with instructions to join duty as Typist in the office of the State Drugs Controller, Chennai. Consequently he joined duty as Typist in the
office of the State Drugs Controller, Chennai on 5.12.1984 forenoon. As per the rank he had secured in the TNPSC selection list, he was
assigned Sl.No. 801 in the seniority. Meanwhile, the Government passed an order in G.O. Ms. No. 996 P & AR (Placement) Department dated
22.9.2004 for the absorption of temporary Junior Assistants, Typists and Steno-Typists recruited through Employment Exchange. By the said
order, those who were in such temporary service as on 25.6.1984, were ordered to be regularized with effect from 25.6.1984 in the same
category and in the same department, in which they were working. However, since for regular appointment to such post, competitive examination
had been conducted by the TNPSC in 1983 itself, a problem arose regarding fixation of the seniority. Thus, the Government passed an order in
G.O. Ms. No. 548 Personnel & Administrative Reforms (Per. J) Department dated 19.6.1987 to the effect that the candidates appointed through
the Special Absorption in 1984 shall be ranked below the candidates selected by the TNPSC in the results of the competitive examination held in
November 1983 irrespective of the date of appointment of those candidates (TNPSC candidates). It also provides that the seniority of the special
absorption candidates shall be fixed with reference to the date of their first entry as temporary appointee in the departmental unit, in which he had
been absorbed irrespective of whether he has been subsequently discharged for want of vacancies or appointed again through the Employment
Exchange in the same departmental unit. It was also provided that in case his first appointment was in any other departmental unit and later on,
before such absorption he was discharged and again appointed temporarily in the unit in which he was appointed through the Special Absorption,
his date of entry into the said departmental unit alone shall be taken for the purpose of fixation of his rank in the seniority among the candidates
appointed through special absorption in 1984.
In accordance with the above said Government Order, S. No. 801 was assigned as the rank of the petitioner in the seniority list among the
Typists selected by the TNPSC through the competitive examination held in November 1983. For Junior Assistants and Typist to become eligible
for promotion as Assistants, they are required to pass the Account Test for Subordinate Officers Part I. Till 31.7.1993, the petitioner did not pass
the said Account Test for Subordinate Services. Meanwhile, with a view to enhance promotional opportunities of the Ministerial categories, certain
posts of Junior Assistants were upgraded to that of Assistants by G.O. Ms. No. 595 Finance (Pay Cell) Department dated 1.8.1992. In the said
Government Order, it was also ordered that the process of upgradation should be completed before 31.7.1993. Consequent to such upgradation,
the number of posts of Assistants for promotion from the feeder categories got increased. Promotions were made according to the seniority as on
31.7.1993. While doing so, those who had passed the Account Test for Subordinate Officers Part I alone got promotion and those who had not
passed the said Test, did not get promotion with a result that some of the seniors in the category of Junior Assistant/Typist, who had not passed the
Test, had to remain in the same position, whereas their juniors, who were next to them in the seniority, who had passed the above test, came to be
promoted as Assistants. In the same way, some of the juniors of the petitioner in the feeder category ""Typist"" were promoted, while the petitioner
remained in the same category ""Typist"", since he had not passed the qualifying test. Subsequent to the promotions made to fill up the upgraded
posts, the petitioner got qualified himself by passing the Account Test for Subordinate Officers Part I on 18.11.1993. Hence he was considered in
the next panel and was promoted as Assistant on 17.7.1995. As such he came to be ranked below those who had got promotion as Assistants
prior to his promotion in the seniority list of Assistants.
Claiming that simply because a date anterior to his passing of the Test was fixed as cut off date for promotion to the post of Assistants
(upgraded posts), he was denied promotion in 1993 and he had to wait for his promotion as Assistant till 17.7.1995 and that hence on his
promotion to the cadre of Assistant, his seniority should have been fixed above his juniors in the feeder category (Junior Assistant/Typist), even
though such juniors would have moved to the promotional posts (Assistant) much earlier to the date on which the petitioner was promoted as
Assistant, the petitioner submitted a representation to the respondent for re-fixing his seniority in the category of Assistants above his seniors in
such category, who were juniors to him in the feeder category. The said representation of the petitioner dated 31.7.2006 was considered and
rejected by the respondent in his proceedings in K. Dis. No. 64827/E2/seniority/06 dated 21.11.2006. The said order of the respondent is
impugned in this writ petition contending that the same is arbitrary, illegal and against the rules.
The arguments advanced by Mr. K. Venkatramani, learned senior counsel appearing for Mr. M. Muthappan, learned counsel on record for the
petitioner and by Mr. RM. Muthukumar, learned Government Advocate were heard. The writ petition, affidavit, impugned order, counter affidavit
and the documents produced in the form of typed set of papers were also perused and this Court paid its anxious consideration to the same.
When the consequence of the petitioner''s claim to avail the benefit of the special absorption scheme in preference to the TNPSC selection list
which would bring him further down in the seniority ladder were highlighted, the learned counsel for the petitioner submitted that the prayer of the
petitioner for alteration of the seniority in the feeder category (Typist) was not pressed and that he would confine his argument regarding his claim
of fixation of seniority in the cadre of Assistants.
Admittedly the petitioner had joined as temporary Typist in the office of the District Medical Officer, Thanjavur at Nagapattinam as a candidate
temporarily appointed on 1.6.1981 under Rule 10(a)(1) of Tamil Nadu Ministerial Service Rules, whereas one Lalitha Jesi Gnanam, who was
similarly inducted in temporary service under Rule 10(a)(1), joined the department on 18.12.1982. In case things had not changed and both of
them got appointed through special absorption in 1984, their regularisation would be with effect from their original entry in to service and as per the
Government Order, he would have been ranked above the said Lalitha Jesi Gnanam, since he joined as a temporary Typist on 1.6.1981, whereas
the said Lalitha Jesi Gnanam joined as temporary Typist on 18.12.1982. But a drastic change occurred in between by the fact that both the
petitioner and the said Laitha Jesi Gnanam appeared for the competitive examination conducted by the TNPSC in November 1983 and both of
them got selected. As per the merit list published by the TNPSC, Lalitha Jesi Gnanam secured a higher rank, whereas the petitioner secured a
lower rank. Therefore the seniority among the candidates selected as per the result of the competitive examination held in November 1983, he was
assigned the rank 801 in the seniority, whereas Lalitha Jesi Gnanam was assigned rank No. 784.
The petitioner contends that since the said Laitha Jesi Gnanam was a junior to the petitioner in the cadre of temporary Typist who came to be
appointed under the Special Absorption scheme of 1984 and both of them came to be absorbed/appointed under the said Absorption Scheme,
though both of them got selected in the competitive examination conducted by the Tamil Nadu Public Service Commission in November 1983, as
per G.O. Ms. No. 548, he is entitled to be placed above the said Lalitha and that hence his rank in the seniority should be re-fixed above that of
Lalitha Jesi Gnanam. The above said contention of the petitioner is totally unsustainable. First of all, the petitioner''s claim for fixation of his rank in
the seniority above the persons, who are assigned higher rank in the seniority in the selection list of TNPSC based on merit, namely the marks
secured by them, is not tenable.
It is quite illogical to contend that the person, who entered the service as temporary typist under general rule 10(a)(1) subsequent to the similar
entry of the petitioner cannot be assigned a higher rank in the seniority when both of them appeared for the competitive examination in November
1983 and the petitioner''s junior in the temporary service got a higher rank in the merit list prepared by the TNPSC. The petitioner cannot try to
ride on two horses at one and the same time. He can either claim the benefit of special absorption scheme 1984 as per G.O. Ms. No. 996 P &
AR (Placement) Department dated 22.9.2004 or his selection by the TNPSC in the competitive examination held in November 1983. If he claims
that his services came to be regularized with effect from the first entry into service as a temporary Typist as per the regularisation scheme, he has to
be assigned the rank in the seniority below the last man in the candidates selected by TNPSC in the competitive examination held in November
1983. If he opts to avail the benefit of the special absorption scheme for the purpose of fixation of his seniority, he is bound to lose his position in
the seniority and will be relegated further down in the seniority ladder. Such an option either to rely on the special absorption scheme or the service
commission selection was available individually to each person, who was in the temporary service and at the same time was selected by the
TNPSC. Because the persons appointed through the special absorption scheme were directed to be placed below the persons selected through
TNPSC in the competitive examination conducted in November 1983, the petitioner has chosen to accept the appointment order issued to him
based on the service commission selection.
It is to be noted that subsequent to the passing of the special absorption scheme alone, the petitioner was issued with an appointment order on
the basis of his selection by the Service Commission. Having got the benefit of Special Absorption Scheme, he could have very well declined the
appointment on the basis of selection by the Service Commission and continued in the post in which he was appointed as per the Special
Absorption Scheme. Had he done so, as pointed out supra, he would have lost his seniority to many of the candidates selected by the Service
Commission in the competitive examination held in November 1983, who were ranked below him as per the selection list. That is the reason why,
the petitioner chose to opt for accepting the appointment made on the basis of the selection made by the Service Commission. Having exercised
such an option, he cannot now contend that his rank in the service Commission list should be upgraded by fixing his rank above a similarly situated
person, who was his junior in the temporary post. If such a contention is accepted, then the ranks assigned to other meritorious candidates in the
selection list of TNPSC would be unreasonably interfered with. It is also not the case of the petitioner that those who were already in temporary
service and were appointed under the Special Absorption Scheme 1984 and at the same time selected by the TNPSC through the competitive
examination conducted in November 1983 should be placed above the other candidates selected by the TNPSC in the merit list. If such a
contention is accepted then the very purpose of conducting competitive examination for direct recruitment will also be defeated. The same will also
offend the equality clause found in Article 14 of the Constitution of India. That is the reason why the petitioner has not sought for such relief and on
the other hand, is content with seeking fixation of his rank above Lalita Jesi Gnanam, who was his junior in the temporary post, who got a higher
rank in the selection list of the TNPSC for the year 1983. Viewed from any angle, the contention of the petitioner that he should have been
assigned the rank above Lalitha Jesi Gnanam in the cadre of Typist is bound to be rejected as untenable.
It is the further contention of the petitioner that though the seniority fixed by the TNPSC as per the merit list cannot be successfully challenged,
since his juniors as per the seniority list came to be promoted earlier than the promotion given to him, he has got a valid grievance against the
promotion of his juniors overlooking him on the ground that by the cut off date for completion of the upgradation process he had not passed the
departmental test, namely Account Test for Subordinate Officers Part I, which was made a mandatory requirement for promotion to the cadre of
Assistant and hence he was promoted as Assistant in the subsequent year, his seniority in the cadre of ""Assistants"" should be fixed above his
juniors in the feeder category even though they could have been promoted to the cadre of ""Assistants"" prior to his promotion as assistant. The
petitioner has contended that he had not chosen to pass the Account Test for Subordinate Officers Part I in the hope that he would pass the said
test before he would reach the group of persons to be empanelled for promotion; that since all of a sudden some of the posts of Junior Assistants
came to be upgraded and the process of upgradation was directed to be completed fixing the cut off date, he could not get himself qualified for
promotion before the said cut off date by passing the Account Test for Subordinate Officers Part I and that in such circumstances under equity he
is entitled to fixation of his rank in the seniority in the promotional cadre above his juniors in the feeder category. The above said contention of the
petitioner also deserves discountenance.
The petitioner having been appointed as Typist in the year 1984 did not pass the above said account test for Subordinate Officers Part I till
18.11.1993. He cannot blame others for having not passed the said test, which is prescribed as an essential qualification for promotion to the
cadre of Assistants. In fact, the persons who were ranked below him passed the Account Test for Subordinate Officers Part I before the cut off
date for completion of the upgradation process, namely 31.7.1993. The upgradation orders were passed in G.O. Ms. No. 595 Finance (Pay Cell)
Department dated 1.8.1992. Even after the passing of the said GO fixing the cut off date for upgradation process as 31.7.1993, the petitioner did
not pass the account test for the Subordinate Officers Part I. Hence his name was omitted and his juniors who had passed the said test were
considered for promotion and accordingly his juniors got promoted. The petitioner get himself qualified only on 18.11.1993 by passing the account
test for Subordinate Officers Part I and thereafter, as per the seniority in the feeder category, he was included in the subsequent panel drawn for
promotion as Assistants and he was promoted as Assistant on 17.7.1995. As per the date of the promotion, seniority in the cadre of Assistants
was correctly fixed and the grievance aired by the petitioner in this regard does not hold any water and the same deserves rejection. For all the
reasons stated above, this Court comes to the conclusion that there is no merit in the writ petition and the same deserves to be dismissed.
In the result, the Writ Petition is dismissed. No costs.