C. Nagarajan v. The Secretry To Governent
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 08.12.2014 Pronounced on : 23.12.2014
CORAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR W.P.No.8116 of 2007 C.Nagarajan .. Petitioner -Vs1.The Secretary to Government Law Department Secretariat, Fort St. George Chennai - 600 009 2.The Secretary to Government Personnel and Administrative Reforms Department Secretariat, Fort St. George Chennai - 600 009 3.P.Anbucholan Under Secretary to Government Law Department, Secretariat Fort St. George, Chennai - 9 4.Mangalaraj Immanuvel Under Secretary to Government Law Department, Secretariat Fort St. George, Chennai - 9 5.V.Renuka Devi 6.P.Thamarai Selvi Under Secretary to Government Law Department, Secretariat Fort St. George, Chennai - 9 7.K.S.Kamalapoomathi Under Secretary to Government Law Department, Secretariat Fort St. George, Chennai - 9
8.L.K.Vetrivel Under Secretary to Government Law Department, Secretariat Fort St. George, Chennai - 9 9.K.Mohan Under Secretary to Government Law Department, Secretariat Fort St. George, Chennai - 9 .. Respondents Writ petition filed under article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records relating to G.O.Ms.No.199 Law[OP.III] Department dated 14.09.2005 issued by the first respondent and quash the same and direct the first respondent to prepare a year wise list based on correct estimate of vacancies as provided in Rule 4 of the General Rules and Subordinate Rules.
For Petitioner : Mr.G.Elanchezhiyan For Respondents : Mr.R.Ravichandran, Addl. Govt. Pleader for R1 & R2 Mr.L.Chandrakumar for R3, R4 and R6 to R9
O R D E R
This writ petition has been filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the records relating to G.O.Ms.No.199 Law (OP.III) Department dated 14.09.2005 issued by the first respondent and quash the same and to direct the first respondent to prepare a fresh year wise list based on correct estimate of vacancies in the post of Section Officers in the Law Department as provided in Rule 4 of the Tamil Nadu State and Subordinate Services Rules and General Rules.
2. The petitioner Nagarajan, who is a qualified law graduate having passed the law degree in 1994, appeared in the competitive examinations held for the year 1997-1998 for the Combined Subordinate Services Examination - I conducted by the Tamil Nadu Public Service Commission, got selected and was appointed as Assistant in the Law Department on 11.02.2000. Within a short span of time, namely on 31.08.2000, he was temporarily promoted under General Rule 39(a)(i) of the Tamil Nadu State and Subordinate Services Rules as Assistant Section Officer in the Law Department of State of Tamil Nadu. Subsequently, respondents 3 to 9 were recruited directly as Assistant Section Officers in the Law
Department on their being selected by the Tamil Nadu Public Service Commission through Combined Subordinate Services Examination-I. They joined the post as Assistant Section Officers between 07.09.2001 and 26.11.2001. Appointment to the post of Section Officers in the Law Department were to be made by recruitment by transfer from the post of Assistant Section Officers. Though the petitioner and his batch mates were temporarily promoted on 30.08.2000 as Assistant Section Officers, they had not even successfully completed the probation in the feeder category, namely the post of Assistant. As such, they were not regularized either in the post of Assistant or in the post of Assistant Section Officer till 27.02.2004. By an order in O.P.No.94 Law Department dated 27.02.
2004, their services in the post of Assistant came to be regularised with effect from 11.02.2000, namely the date on which he joined the service as Assistant in the Law Department. By an even dated proceedings OP No.95 Law Department, he was declared to have completed his probation on 17.03.2002. Subsequently by proceedings in OP No.9 Law Department dated 16.01.2005, his services in the promoted category, namely Assistant Section Officer were regularised with effect from 17.03.2002, effect from which date his satisfactory completion of probation in the feeder category was declared.
Due to pendency of a number of litigations regarding the inter se seniority between the directly recruited Assistant Section Officers and the promoted Assistant Section Officers, panel for appointment as Section Officers on transfer was not prepared for several years and a consolidated list of panel specifying the number of vacancies for each panel year and the qualified candidates for each panel year 1991 to 2004 and 2005 came to be prepared and published in the Government Order dated 14.09.2005 and the same is impugned in this writ petition.
3. Contending that the impugned Government Order contains wrong particulars, as it erroneously shows 'Nil' against the estimated vacancies as on 01.06.2001, 01.06.2002, 01.06.2003 and 01.06.2004, the petitioner submitted a representation dated 10.11.2005 praying for the preparation of correct estimation of vacancies and for inclusion of his name in the list for the year 2003-2004. As his representation did not evoke any favourable response, he has come forward with the present writ petition for the relief stated above.
4. The main contention of the petitioner is that the first respondent failed to prepare year-wise panels for appointment as Section Officers from Assistant Section Officers by way of recruitment by transfer; that though the petitioner got fully qualified to be appointed as Section Officer by recruitment by transfer much earlier than the private respondents, namely R3 to R9, the first respondent omitted to prepare the year-wise panel till the private respondents acquired qualification, with the intention of giving preference to the private respondents and that, as a result of the same, the impugned Government Order came to be passed preparing a consolidated list for the years 1990-1991 to
2004-2005. It is the further contention of the learned counsel for the petitioner that the petitioner had got qualified to be appointed as Section Officer by way of recruitment by transfer from the post of Assistant Section Officer on 17.03.2002 itself and that therefore, his name should have been included in the panel for the year 2002-2003 itself and that if proper year-wise lists had been prepared, he would have been included at least in the list for the year 2003-2004 and could get promotion (recruitment by transfer) as Section Officer much before the respondents 3 to 9 became eligible for such promotion/recruitment by transfer as Section Officers.
5. The contention of the petitioner is that the impugned Government Order contains erroneous particulars as to the number of estimated vacancies and the number of qualified persons for the panels as on 01.06.2001, 01.06.2002, 01.06.2003 and 01.06.2004, as the number of vacancies and the qualified persons were noted 'Nil' against those years in the impugned Government Order. According to him, the said particulars found in the impugned Government Order relating to the panels as on the above said dates were incorrect and erroneous, as it came to his knowledge from the information obtained by him under the Right to Information Act. The informations allegedly received under the Right to Information Act are communications dated 09.07.2012 and 25.03.
2013, which came to be obtained after a lapse of five years from the date of filing of the writ petition. The communication dated 09.07.2012 in reply to the application filed by one K.Anbarasan, Advocate is found at pages 11 to 13 in the additional typed set of papers.
2001-2002 : 1 2002-2003 : 9 2003-2004 : 0 2004-2005 : 0 2005-2006 : 8 ---- Total 18 ---- The persons qualified for appointment as Section Officers and the year in which they were qualified, have been furnished here under: 2001-2002 : 1. Mahesh Kumar
2. Chinna Nagoor
3. M.S.Ramesh 2002-2003 : 1. C.Nagarajan (Petitioner)
2. Julia Shanthi
3. M.Jawahar 2003-2004 : 1. S.Komala
2. K.Pon Arul Thilagavathi
2004-2005 : 1. A.Anbucholan
2. I.Mangalaraj Immanuvel
3. V.Renuka Devi
4. S.S.Maheswari
5. L.K.Vetrivel
6. P.Thamaraiselvi
7. K.S.Kamalagomathi
8. Mohan
9. is missing
10. R.Pandiarajan 2005-2006 : 1. P.Sumathi In the very same reply the dates on which the above said persons became qualified for appointment as Section Officers have been provided as under:
1.
P.Sumathi 13.01.1995 2.
K.Mahesh Kumar 13.01.1995 3.
C.Chinna Nagur 04.06.2000 4.
M.S.Ramesh 18.01.2001 5.
C.Nagarajan 17.03.2002 6.
B.Juliashanthi 14.05.2002 7.
M.Jawahar 15.02.2002 8.
S.Komala 22.11.2002 9.
K.Pon Arul Thilagavathy 22.11.2002 10.
P.Anbucholan 24.10.2003 11.
I.Mangala Raj Immanuel 28.11.2003 12.
V.Renukadevi 25.10.2003 13.
S.S.Maheswaran 09.02.2004 14.
L.K.Vetrivel 28.09.2003 15.
P.Thamarai Selvi 28.01.2004 16.
K.S.Kamalappoomathi 28.02.2004 17.
K.Mohan 25.12.2003 18.
R.Pandiarajan 29.04.2004
6. So far as the vacancy positions are concerned, there is no other document produced by the petitioner to show that the vacancy positions noted in the reply to question No.3 in the communication dated 09.07.2012 were not correct. However, according to the respondents, the said reply itself came to be prepared by the petitioner himself, who was then functioning as Under Secretary to the Government and that the said informations provided were not information furnished based on records; that they would constitute only an information of the Public Information Officer of the said department and that hence the petitioner was asked to state on what basis the informations were furnished and to produce the documents based on which the said reply came to be issued. Of course for such a communication dated 29.10.
Law Department and that since the communication related to the letter dated 09.07.2012 and he had gone to other establishment, if the entire file was given to him, he would be submitting a fullfledged explanation.
7. The letter of the Secretary to the Government, Law Department bearing letter No.1551/S/OP.III/2013-3 dated 29.10.2013, has been addressed to the petitioner. The address of the petitioner found in the said letter indicates that he had been sent on deputation as Law Officer to the Directorate of School Education. Under such circumstances, as contended by the learned Counsel for the petitioner, the official respondents could have produced the Ready Reckoner files relating to the year-wise vacancy position, but the official respondents 1 and 2 have not chosen to produce the same. Respondents 1 and 2 have chosen to file a counter affidavit sticking on to their stand regarding the vacancy position as stated in the impugned Government Order. However, the petitioner was able to produce a reply from the Public Information Officer dated 25.03.
2013 showing the year-wise vacancy position from 2001-2002 to 2005-2006. It seems the same was signed by the Under Secretary, Deputy Secretary, Additional Secretary and Secretary to Government, Personnel and Administration Reforms, Finance and Chief Secretary. In the annexure to the said reply, which contains a copy of the notes for the other committee, the following details of the vacancies are found:- Panel Year Nature of Vacancy Number of Vacancy By promotion of Tr.K.Ravikumar, S.O.
w.e.f. 27.11.2001 A.N., as Legal Advisor in the O/o the Chief Engineer (Genral), PWD, Ch-5
1. 2001-2002
2. 2002-2003 By promotion of 7 Section Officers as Under Secretaries in G.O.Ms.No.473, Law, dt.25.7.2002 By retirement of Tr.R.Rajaram, S.O.
on 31.12.2002 A.N. vide G.O.Ms.No.769 Law, dt.31.12.02.
By relief of Tr.K.R.Loganathan, S.O.
to take up appointment as Sr.P.A. to Minister (Law & I.T.) vide O.P.No.43, Law, dt.31.1.2003 By promotion of Tmt.Keranappuch Joseph, S.O. as Under Secretary w.e.f. 7.3.05 A.N. vide G.O.Ms.No.29, Law, dt.7.3.05
3. 2005-2006
Panel Year Nature of Vacancy Number of Vacancy By promotion of Tvl.R.Ramasamy, S.O.
and V.Karuppasamy, S.O. as Under Secretaries with effect from 11.07.2005 F.N. vide G.O.Ms.No.146, Law dated:11.07.2005 By promotion Tvl.Er.Mathivanan, K.R.Loganathan (on O.D. as Sr.P.A. to Minister for Law & IT) and M.Dharmaraj, S.Os as Under Secretaries with effect from 20.10.2005 vide G.O.Ms.No.229, Law dt.20.10.2005 By promotion of 3 Section officers, Tvl.D.Karunanidhi Mathew, L.Balan and S.Pauldurai as Under Secretataries with effect from 27.12.2005, vide G.O.Ms.No.267, Law dt.27.12.2005 Total actual vacancies as on date in the post of Section Officer in Law Dept.
In the absence of any other reliable document produced by the respondents, the said document relating to the details of vacancies shall be taken as a correct one.
8. According to the said chart, one vacancy arose for the year 2001-2002 and 9 vacancies arose for the year 2002-2003. No separate vacancy arose for the years 2003-2004 and 2004-2005 and 8 vacancies arose for the year 2005-2006. If these particulars are taken to be correct, then the issue raised in this writ petition can be resolved. Seniority and the date on which each one of the respondents 3 to 9 got qualified to be appointed as Section Officers by way of recruitment by transfer from the post of Assistant Section Officers shall also be relevant.
9. The petitioner and his batch-mates took charge as Assistants on being appointed as such between 07.02.2000 and 25.02.2000. They were declared to have satisfactorily completed their probation in the post of Assistants between 15.02.2002 and 17.03.2002. The writ petitioner's services in the post of Assistant in Law Department came to be regularised with effect from 11.02.2000 by virtue of O.P.No.94 Law Department dated 27.02.2004. He was declared to have successfully completed probation in the post of Assistant with effect from 17.03.2002 and such declaration was made in O.P.No.95 Law Department dated 27.02.2004. However, even before the declaration of their successful completion of probation in the post of Assistants, the petitioner and his batchmates were promoted as Assistant Section Officers on temporary
basis. Still by O.P.No.9 Law Department dated 06.01.2005, the writ petitioner's promotion as Assistant Section Officer was regularised with retrospective effect from 17.03.2002. Such a regularisation in the promoted category came to be made only on 06.01.2005 giving retrospective effect from 17.03.2002. It is quite obvious that before ever the petitioner's probation in the post of Assistant came to be declared, the directly recruited Assistant Section Officers except Pandiarajan, namely respondents 3 to 9, joined duty as Assistant Section Officers between 07.09.2001 and 26.11.2001. Pandiarajan alone, though selected in the very same batch, joined duty on 20.03.2002. As such respondents 3 to 9 became seniors to the writ petitioner in the cadre of Assistant Section Officers, whereas Pandiarajan alone became junior to the writ petitioner.
Accordingly, the inter se seniority between the promotees (writ petitioner and his batch-mates) and direct recruits, namely respondents 3 to 9 and Pandiarajan came to be fixed as per O.P.No.10 Law Department dated 06.01.2005. Fitmens in the seniority came to be made based on the respective dates on which each one of the respondents 3 to 9 and Pandiarajan joined the post of Assistant Section Officers and the respective dates with effect from which the writ petitioner and his batch-mates (promotees from the post of Assistants) were declared to have successfully completed their probation in the lower category, namely the post of Assistant.
The respondents 3 to 9/direct recruits took their seniority over the promotees in the cadre of Assistant Section Officers on the ground that the temporary promotion of the promotees was irregular against the Rules.
10. The writ petitioner joined as Assistant on 11.02.2000. His probation and the probation of his batch-mates in the cadre of Assistants were not declared till the issuance of O.P.No.95 dated 27.02.2004. A probationer shall become eligible for regular promotion to the higher category only after successful completion of the period of probation and a declaration to that effect has been made. The petitioner's promotion as Assistant Section Officer was sought to be regularised with retrospective effect from 17.03.2002 by a posterior office proceedings dated 06.01.2005. The writ petitioner would have become eligible for regular promotion as Assistant Section Officer only after declaration of successful completion of probation in the lower category, namely Assistant, which actually took place on 27.02.2004.
As rightly contended by the learned counsel for the private respondents (respondents 3 to 9), the retrospective regularisation of temporary services of the writ petitioner in the post of Assistant Section Officers with effect from 17.03.2002 was irregular, since he was promoted temporarily in violation of the rules. The writ petitioner could have validly claimed to be included in the panel for promotion as Assistant Section Officer only after his probation in the post of Assistant came to be declared which took place on 27.02.2004. Since no order extending his probation at the end of two years of his service in the post of Assistant and no declaration of completion of probation was also made by the end of six months.
per General Rule 27, he should be deemed to have successfully completed probation from the date of expiry of the said period of six months. The writ petitioner joined duty as Assistant on 11.02.2000. Two years period ended on 10.02.2002 A.N. His probation came to be declared only by O.P.No.95 Law Department dated 27.02.2004. Therefore he became eligible for inclusion in the panel for promotion as Assistant Section Officer only after 27.02.2004.
11. Even otherwise, if the date of deemed declaration of probation is taken into account, 11.08.2002 shall be the date on which he could have been deemed to have completed probation. The crucial date for the preparation of the panel for promotion as Assistant Section Officer from the post of Assistant is the first day of August of every year. Since the petitioner shall be deemed to have completed the period of probation on 11.08.2002, which was beyond the crucial date, he could not have been included in the panel for regular promotion as Assistant Section Officer in the panel for the year 2002-2003 and he would have become eligible for regular promotion as Assistant Section Officer only in the panel for the year 2003-2004. The crucial date for drawal of panel for promotion to the post of Assistant Section Officer is the first day of August of every year. Therefore, the writ petitioner could have been promoted as Assistant Section Officer on regular basis only after 01.08.2003.
12. Unlike the panel for promotion to the post of Assistant Section Officer, the crucial date for which is the first day of August of every year, the crucial date for the preparation of the panel for promotion/appointment by recruitment by way of transfer to the post of Section Officer shall be the first day of June of every year. Since the crucial date for preparation of panel for the post of Section Officer for the panel year fell on 01.06.2003 and the writ petitioner could have been promoted on regular basis as Assistant Section Officer only after 01.08.2003, he could not have been included in the panel for the post of Section Officer for the panel year 2003-2004. His name could have been included in the panel for the post of Section Officers for the year 2004-2005 only. The crucial date for preparation of the panel for the panel year 2004-2005 was 01.06.2004. By the said crucial date all the private respondents (respondents 3 to 9) and even Pandiarajan became fully qualified to be considered for inclusion in the panel for the post of Section Officers.
13. It is not in dispute that the respondents 3 to 9 and even Pandiarajan became eligible for inclusion in the panel for the post of Section Officers for the panel year 2004-2005. As pointed supra, even as per the deeming provision, the writ petitioner would have become eligible for promotion as Assistant Section Officer only after 01.08.2003 and he could not have been included in the panel of the Assistant Section Officers for appointment as Section Officers by way of recruitment by transfer for the panel year 20032004, since the crucial date (01.06.2003) for the preparation of
the panel expired much before the date on which he could have been regularly promoted as Assistant Section Officer. As such the writ petitioner became eligible for inclusion of his name in the panel for the post of Section Officers only in the panel for the year 2004-2005. Even if the particulars furnished by the petitioner in the typed set of papers dated 10.04.2013 (filed on 19.04.2013) regarding the vacancy position could be considered to be correct, the single vacancy that arose for the panel year 2001-2002 had to be filled up from among Mahesh Kumar, Chinna Nagur and M.S.Ramesh, who were admittedly seniors of the petitioner and his batch-mates and had been fully qualified to be appointed as Section Officers in the panel year 2001-2002 itself.
14. So far as the nine vacancies that arose for the panel year 2002-2003 are concerned, the particulars of qualified candidates found in Answer No.4 in Letter No.14193/RTI/2002 dated 09.07.2002 cannot be accepted to be correct, since the petitioner and two of his batch-mates, namely Julia Santhi and Jawahar became eligible for appointment as Assistant Section Officers only after 01.08.2003 as per the deemed declaration. As such they could not have been included in the panel for appointment as Section officers either for the panel year 2002-2003 or for the panel year 2003-2004, but they would have become eligible for inclusion in the panel for the year 2004-2005 only. By then their seniors, namely respondents 3 to 9 had also become eligible for inclusion in the panel for the post of Section officers. As on 01.06.
2004, the crucial date with reference to which the panel for the post of Section Officers should have been drawn for the panel year 2004-2005, all the respondents 3 to 9 had also become fully qualified. From the foregoing discussions it will be quite obvious that the petitioner as well as the respondents 3 to 9 became eligible for inclusion in the panel for appointment as Section Officers by way of recruitment by transfer from the post of Assistant Section Officers for the panel year 2004-2005. However, in the impugned Government Order dated 14.09.2005, the vacancy position for the panel year 2004-2005 has been shown to be 'Nil'. The same is found to be incorrect from letter No.8779/RTI/2013 dated 25.03.2013 issued in reply to the RTI application.
2001 - 2002 : 1 2002 - 2003 : 9 2003 - 2004 : Nil 2004 - 2005 : Nil 2005 - 2006 : 8 ------ ------
15. The vacancy position as indicated in the said letter is not disputed. The respondents also admit the correctness of the said vacancy position. As pointed out supra, the vacancies that
arose in the previous years should have been carried forward to the subsequent years. Accordingly, 10 vacancies (all carry-forward vacancies) could have been held to be existing for the panel year 2004-2005. The petitioner could have pleaded for his inclusion in the panel for the year 2004-2005. The writ petitioner was rightly placed above Pandurangan as per the seniority. He cannot claim seniority over respondents 3 to 9, who were seniors to him in the cadre of Assistant Section Officers and who got qualified for inclusion in the panel in the very same year in which the petitioner also got qualified.
16. The above said discussions will make it clear that the claim of the petitioner for inclusion of his name in the panel for section officers for the panel year 2003-2004 for which the cut off date was 01.06.2003 is quite untenable and unsustainable, since he got qualified to be included in the panel only subsequent to 01.06.2003. In the proceedings No.10/2005 dated 06.01.2005 fixation of inter se seniority among the Section Officers was correctly fixed placing the petitioner below the respondents 3 to 9. It is pertinent to note that as against the fixtaion of seniority in the cadre of Assistant Section officers, the petitioner along with two others filed writ petitions as W.P.Nos.21388 to 21390 of 2005 to quash the above said proceedings dated 06.01.2005 fixing inter se seniority between the respondents 3 to 5 herein and the writ petitioner and his batch mates. However, the said writ petitions were dismissed as withdrawn.
17. The panel drawn as per G.O.Ms.No.30 Law dated 07.02.2006 under which the petitioner as well as respondents 3 to 9 were included in the panel for the post of Section Officers for the year 2005-2006 was challenged in another writ petition W.P.No.8134/2007 by the writ petitioner. The same has also been dismissed as withdrawn. Neither the petitioner nor his batch-mates, nor the respondents 3 to 9 were included in the consolidated panel drawn for the years 1991-1992 to 2004-2005. All of them were included in the panel for the year 2005-2006.
As pointed out supra, the petitioner and the respondents 3 to 9 could have been included in the panel for the panel year 2004-2005, but no panel was prepared for the said year and the panel for the subsequent year, namely 2005-2006 alone came to be prepared in which name of the petitioner as well as respondents 3 to 9's names were found in accordance with their ranks in the seniority in the feeder category, namely ASO. Since no panel was prepared for the panel year 2004-2005 and in the panel prepared for the year 2005-2006 no junior to the petitioner and no one who got qualified subsequent to 01.06.2004 came to be included and given promotion in preference to the petitioner, it makes no difference whether the appointments to the post of Section Officers were made from the panel for the year 2004-2005 or 2005-2006.
The seniority has not at all been disturbed.
and also the writ petition challenging the preparation of the panel for the panel year 2005-2006, the petitioner cannot be heard to say that his name should have been included in the panel for the panel year 2003-2004. It shall be more academic to harp on the question whether the appropriate panel should be of the year 2004-2005 or 2005-2006. As pointed out supra, there shall be no difference in the position of the petitioner, either it be a panel year 2004-2005 or 2005-2006 in which his name has been included for appointment as Section Officers, since no one junior to him and no one who got qualified after 01.06.2004 was placed above him in the said panel.
18. For all the reasons stated above, this court comes to the conclusion that the petitioner's claim that his name should have been included in the panel for the post of Section Officers for the panel year 2003-2004 deserves to be rejected as totally untenable and there is no need to mould the relief and give a direction for inclusion of his name in the panel year 2004-2005, since the panel prepared for the panel year 2005-2006 does contain his name and no one junior to him and no one who got qualified after 01.06.2004 was placed above him in the panel, he cannot be said to be an aggrieved person by the same. There is no merits in the writ petition and the same deserves to be dismissed.
Accordingly, the writ petition is dismissed. However, there shall be no order as to cost.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar asr/ To 1.The Secretary to Government Law Department Secretariat, Fort St. George Chennai - 600 009 2.The Secretary to Government Personnel and Administrative Reforms Department Secretariat, Fort St. George Chennai - 600 009.
1 cc to Mr.G.Elanchezhiyan ,Advocate, SR.No.63844 2 cc to Government Pleader,Sr.No.63807 1 cc to Mr. L.Chandrakumar,Advocate, SR.No.63789 W.P.No.8116 of 2007 rsi(Co)pmk.13.1.2015