A. Bose, S/O.Alagarsamy, v. The Secretary To The Govt.,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.03.2020
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN A.Bose ... Petitioner -Vs1.The Secretary to the Government, Revenue Department, Fort St., George, Chennai-9.
2.Additional Director, Survey and Land Records, Chepauk, Chennai-5.
3.Assistant Director of Survey and Land Records, Master Plan Complex, Virudhunagar.
... Respondents Prayer: Writ Petition filed under Article 226 of Constitution of India praying for a Writ of Certiorarified Mandamus, calling for the records relating to the order, dated 08.03.2011 passed in letter No.42573/LS4/2010-2 on the file of the Secretary to the Government Revenue Department, Fort St., George, Chennai-9 the first respondent herein and confirming the order dated 22.02.2010 passed in R.C.N3/8788/09(LS) on the file of the Additional Director, Survey Land Records, Chepauk, Chennai-5 quash the same and consequently direct the respondents to prepare the seniority list of the petitioner in to the post of Senior Draftsman from the year 1993 and grant all the service benefits based on the seniority list. For Petitioner :
Mr.A.V.Arun for M/s.Ajmal Associates For Respondents :
Mr.C.Ramar Additional Government Pleader 1/8
ORDER
This Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the order, dated 08.03.2011 passed in letter No.42573/LS4/2010-2 on the file of the Secretary to the Government Revenue Department, Fort St., George, Chennai-9 the first respondent herein and confirming the order dated 22.02.2010 passed in R.C.N3/8788/09(LS) on the file of the Additional Director, Survey Land Records, Chepauk, Chennai-5 quash the same and consequently direct the respondents to prepare the seniority list of the petitioner in to the post of Senior Draughtsman from the year 1993 and grant all the service benefits based on the seniority list.
2. The case of the petitioner is that he was selected and appointed for the post of Surveyor-Cum- Draughtsman on 16.03.1983 on a consolidated pay in the District Land Survey and Land Records Department. Thereafter, from 01.07.1988 his services have been regularized and brought on time scale of pay as Draughtsman and his services have been regularized. The hierarchy of post is that the feeder category is Surveyor-cum-Draughtsman, the next promotion post is Land Records Draughtsman and further promotion post is Senior Draughtsman.
3. He obtained necessary qualification and also passed the departmental exams and qualified for the post of Land Records Draughtsman. He has been promoted as Land Record Draughtsman on 24.05.1990. There were many vacancies in the Virudhunagar District for the next promotion post of Senior Draughtsman during that period, he was temporarily promoted as Senior Draughtsman along with two other persons under Rule 39 A. As per the order of the third respondent, he assumed charge as Senior Draughtsman on 01.08.1991. From the date onwards he has been working as Senior Draughtsman till date. The seniority list for the year 1993 should have been drawn and published in the year 1993. At that time one Thiru.K.Seeniraj and two others, who were working as Draughtsman filed O.A.Nos.
1950, 1998 & 2004 of 1991 before the Tamil Nadu Administrative Tribunal challenging the order regularizing them as Draughtsman and seeking direction to regularize them as Surveyor and interim order was granted against the seniority list for the post of Draughtsman as well as Surveyor. The above said original application came to be dismissed as withdrawn on 08.11.2001, thereafter the third respondent by its proceedings dated 17.05.2002 prepared seniority list separately for surveyors and draughtsman. Further, in his proceedings, he has been promoted as Senior Draughtsman from the year 2002 under Rule 3 E of the Subordinate Service Rules and his name already been included in the seniority list. The petitioner's services in the post of Senior Draughtsman should be reckoned from seniority panel year 1993.
of Senior Draughtsman and what was stayed only granting promotion by drawing promotion by two panels separately for the post of surveyor and draughtsman. Under these circumstances, the seniority list has to be drawn from the year 1993 as per G.O.Ms.No.60, dated 09.02.2001 regularization in the post of Draughtsman was regularized retrospectively from 11.09.1990 without monetary benefit.
4. However, from the G.O.Ms.No.481, dated 28.10.2004, increments were granted from the date of appointment if the person has attained the required age. He has satisfied the age requirement on the date of posting as Draughtsman. However, increments were stopped from 2001. He was drawing the increments in the pay scale applicable to Senior Draughtsman from 1991 till 2000. The petitioner has given a representation along with two other Senior Draughtsman to the third respondent to regularize their services from the date when they qualified themselves to the post of Senior Draughtsman namely 1993. The third respondent rejected their representation. Thereafter, the petitioner has filed an appeal before the second respondent. The second respondent by an order dated 22.02.2010 rejected the appeal. He has preferred further appeal on 31.05.
2010 to the first respondent for the regularization of Services from the year 1993. The first respondent without considering the facts, simply stated that the petitioner's request for regularization from the year 1993 in the post of senior draughtsman could not be complied with, since there was a stay by the Court and thereafter, the seniority list was prepared by the third respondent in 2002. 5.The respondents have filed counter affidavit and stating that the petitioner was appointed in consolidated pay for the post of Surveyor-Draughtsman in the Survey and Land Records Department on 16.03.1983. At the end of the year 1982, the updating Registry Scheme Work was taken up in the Survey and Land Records Department, as a time bound programme of work.
Hence, for the timely completion of the work, the Government sanctioned additional staff in higher categories on time scale of pay and staff in basic level categories on consolidated pay. Such recruitments were made by giving them training the field and office processes of work, so as to employ them either in field or in office, according to the administrative need. The seniority of the consolidated pay personnel was fixed with reference to the 'Selection list' of the Selection Committee, as per rule 35(a) of the General Rules for the Tamil Nadu State and Subordinate Services. The Government in G.O.(Ms).No.910, Commercial Taxes and Religious Endowments Department, dated 10.08.1983, permitted the filling up of the vacancies temporarily by appointing the personnel on consolidated pay posts of SurveyorDraughtsman.
With a view to adopt uniform procedure in making such appointments by the Assistant Directors of Survey and Land Records, who are the appointing authorities for those posts-guidelines were issued by the Director of Survey and Settlement in his letter Nos.R.1K/20798/83 dated 09.10.1983 and then in 4K/40702/84 dated 14.09.1984.
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6. Based on the guidelines, the Assistant Directors of Survey and Land Records prepared the seniority lists of consolidated pay Surveyor-Draughtsman with reference to the 'Selection list' and issued orders of appointment. The petitioner was absorbed into the regular time-scale pay post of Draughtsman on 01.07.1988. Instructions were issued by the Director of Survey and Settlement to all the Assistant Directors of Survey and Land Records, in na.Ka.Na2/45858/95, dated 22.09.1995 for revising and regulating all the time scale of pay appointments made already, by following strict seniority among the personnel on consolidated pay. Based on the above instructions, all the Assistant Directors of Survey and Land Records pursued action accordingly.
7. Some individuals belonging to Virudhunagar District filed O.A.Nos.1950, 1998 and 2004 of 1991 before the Tamil Nadu Administrative Tribunal challenging the order regularizing them as Draughtsman and praying for a direction to appoint them as Surveyor. The Tribunal granted an interim order on 20.06.1991 restraining the respondents from preparing the seniority list of Surveyors/Draughtsman. The Assistant Director of Survey and Land Records, Virudhunagar vide his proceedings Rc.A2/6997/91(2) dated 29.07.1991 promoted the petitioner on administrative grounds to the post of Senior Draughtsman on temporary basis under Rule 39(a) of the State and Subordinate Services Rules, with a condition that he cannot claim priority in matters of promotion to the post of Senior Draftsman as he had not qualified the departmental tests prescribed for Senior Draughtsman category.
8. The third respondent was not in a position to issue panel or to grant temporary promotion as per the seniority list dated 08.07.1991 consequent on the orders of the Tamil Nadu Administrative Tribunal granting interim stay in O.A.No.1998 of 1991. In view of the above, the Director of Survey and Settlement in his letter Rc.J2/51987/92 dated 02.10.1992 instructed the Assistant Director of Survey and Land Records, Virudhunagar not to issue panel for Firka Surveyor and Land Records Draughtsman until final orders/stay vacation orders are passed in the above Original Applications.
9. The Tamil Nadu Administrative Tribunal while passing interim stay order in O.A.No.1998 of 1991 had specifically stated that the respondents are restrained from preparing the seniority list of Surveyors/Draughtsman. The Tribunal did not make any observation regarding granting promotion by two panels separately for the post of Surveyor and Draughtsman as contended by the petitioner. The appeal preferred by the petitioner was rejected by the first respondent on the ground that some individuals belonging to Virudhunagar District had filed O.A.Nos.1950, 1998 and 2004 of 1991 before the Tamil Nadu Administrative Tribunal and in view of the Tribunal granting interim stay orders on 20.06.1991 in 4/8
O.A.No.1998 of 1991, restraining the respondents from preparing the seniority list of surveyors/Draughtsman, the panels for all categories from the year 1993 and upto 2001 were not drawn by the third respondent. Pursuant to receipt of orders of withdrawal of the Original Application, the petitioner's name were included in the 2002 year panel of Senior Draughtsman. The impugned order of the first respondent is legal and prayed for dismissal of the writ petition.
10.Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents and perused the materials available on record.
11. From the records, it is seen that the petitioner was appointed in consolidated pay for the post of Surveyor-Draughtsman in the Survey and Land Records Department on 16.03.1983 in the Ramanathapuram District and in the year 1982 the Updating Registry Scheme Work was taken up in the Survey and Land Records Department, as a time bound programme of work. The Government sanctioned additional staff in higher categories on time scale of pay and staff in basic level categories on consolidated pay. "The seniority of the consolidated pay personnel was fixed with reference to the 'Selection list' of the Selection Committee, as per rule 35(a) of the General Rules for the Tamil Nadu State and Subordinate Services.
As several vacancies arose in the basic level categories and as the posts of Surveyor and Draughtsman on time scale of pay were brought under purview of the Tamil Nadu Public Service Commission, the Government in G.O(Ms)No.910, Commercial Taxes and Religious Endowments Department, dated 10.08.1983, permitted to fill up the vacancies temporarily by appointing the personnel on consolidated pay posts of Surveyor-Draughtsman. The Assistant Directors of Survey and Land Records-who are the appointing authorities for those posts-guidelines were issued by the Director of Survey and Settlement in his letter Nos.Rc.1K/20798/83 dated 09.10.1983 and in 4K/40702/84 dated 14.09.1984.
12. As per the said letter guidelines were issued. The petitioner was then absorbed into the regular time-scale of pay post of Draughtsman on 01.07.1988. Against that, one U.Anbalagan filed O.A.No.3819/91 before the Tamil Nadu Administrative Tribunal and the Tribunal issued orders on 07.02.1991 and 07.02.1992 respectively, to consider the claim of the applicants for appointment to time scale of pay posts, in keeping with the seniority assigned to them, uninfluenced by the wage cut suffered by them, as the wage cut has not been mentioned as an impediment in G.O.(Ms)No.910, Commercial Taxes and Religious Endowments Department, dated 10.08.1983. Review applications were filed for reconsideration of the above orders. One Thiru.K.Rajangam and three others filed O.A.No.199 of 1990 before the Tamil Nadu Administrative Tribunal against the procedure of following rule of reservation (i.e.,) 30% of Vacancies reserved for women. The Tamil Nadu Administrative Tribunal directed that the 5/8
temporary appointments to time scale of pay posts as ordered in G.O. (Ms)No.910, Commercial Taxes and Religious Endowments Department, dated 10.08.1983 be made strictly in accordance with the seniority among the personnel on consolidated pay. As the Review Application filed for reconsideration of the orders was dismissed.
13. Against that Special Leave Petition (CC.25347/94) was filed before the Hon'ble Supreme Court of India, New Delhi and the same was also dismissed. Instructions issued by the Director of Survey and Settlement to all the Assistant Directors of Survey and Land Records in Na.Ka.Na2/45858/95 dated 22.09.1995 for revising and regulating all the time scale of pay appointments made already by following strict seniority among the personnel on consolidated pay as the scheme work was a time bound work. The petitioner was also promoted as Land Records Draughtsman. Insofar as Virudhunagar District is concerned, the seniority list of field Surveyor and Draughtsman was published by the Assistant Director of Survey and Land Records, Virudhunagar. The third respondent in his proceedings Rc.A2/5226/91 (3) dated 08.07.1991. Challenging the order regularizing them as Draughtsman and praying for a direction to appoint them as Surveyor, some individual persons belonging to Virudhunagar District filed O.A.Nos.1950, 1998 and 2004 of 1991 before the Tamil Nadu Administrative Tribunal.
14. Based on the prayer of the applicant, the Tamil Nadu Administrative Tribunal passed an interim order on 20.06.1991 restraining the respondents from preparing the seniority list of Surveyors/Draughtsman. Even though the petitioner was appointed and promoted as Senior Draughtsman on temporary basis under Rule 39(a) of the State and Subordinate Service Rule with a condition that he cannot claim priority in matters of promotion to the post of Senior Draughtsman as he had not qualified the departmental tests prescribed for Senior Draughtsman category. In view of the interim stay granted by the Tamil Nadu Administrative Tribunal, the Director of Survey and Settlement in his letter Rc.J2/51987/92, dated 02.10.
1992 instructed the Assistant Director of Survey and Land Records, Virudhunagar not to issue panel for Firka Surveyor and Land Records Draughtsman until final orders or stay being vacated in the Original Application. Based on the said instructions, panel was dropped and the parties have withdrawn the Original Applications before the Tamil Nadu Administrative Tribunal. The Assistant Director of Survey and Land Records, Virudhunagar in his proceedings Rc.A2/9731/2001 (2) dated 17.05.2002 issued an order regulating the seniority list from the year 2002 and based on the seniority list, the petitioner's name was included in the year 2002 panel of Senior Draughtsman. The Tribunal did not make any observation regarding granting promotion by drawing two panels separately for the post of Surveyor and Draughtsman as contended by the petitioner.
in so far as Virudhunagar District was concerned were not published for all categories from 1993.
15. On going through the Government Order in G.O.(D)No.481, Income Tax Department, dated 23.10.2006 it is made clear that the regarding the said issuance of mandatory benefits, it was decided that the perons, who were given such amount without any regularization, the said amount can be recovered by them by issuing show cause notice. Hence, this petitioner also could not get any increment for the said period and the counsel for petitioner is pointed out that in the counter it has been admitted by the respondents that if the petitioner has approached the authority immediately after 2001, the same could have been sorted out at the earlier pont itself.
16. The petitioner seeking regularization from the year 1993 in the post of Senior Draughtsman, was rejected by the first respondent in his letter No.42573/SS4/2010-2, Revenue (SS-4) Department, dated 08.03.2001 stating that some individual persons belonging to Virdhunagar District had filed O.A.Nos.1950, 1998 and 2004 of 1991 before the Tamil Nadu Administrative Tribunal. Hence the respondents could not prepare the seniority list from the year 1993 to 2001 as there was a stay order. The petitioner and other similarly placed persons were not considered while preparing the penal, when they have not possessed the required qualifications.
Only in the year 1992 he has completed the required qualifications and therefore, in the next panel after 1993 his name could have been considered as there was a stay and the Original Applications were withdrawn in the year 2002 only and thereafter in the year 2002 panel for promotion was prepared and accordingly, the petitioners's name was included in the panel. The learned Additional Government Pleader pointed out that the petitioner was properly fixed in the seniority list in the year 2002 and the petitioner has not made out any case for interfering in the orders passed by the first respondent dated 22.02.2010.
17. In view of the above submission, it is left open to the petitioner to give representation to the concerned respondents and the same can be considered by the authorities in accordance with law.
18. Hence, in the light of the above statement in the counter that if the petitioner has appointed in the year 2001 itself, the same could have been considered. The petitioner is directed to submit a representation regarding his claim that he was eligible for promotion from 1993 and not considered by the respondent only due to pendency of legal proceedings, within a period of four weeks from the date of receipt of a copy of this order. If any such representation is received, the respondents are hereby directed to consider the same and pass appropriate orders on merits and in 7/8
accordance with law, within a period of eight weeks from the date of receipt of the representation.
19. In view of the above observations, the writ petition is disposed of. No costs.
Sd/- Assistant Registrar (AS) // True Copy // / /2020 Sub Assistant Registrar(CS) To 1.The Secretary to the Government, Revenue Department, Fort St., George, Chennai-9.
2.The Additional Director, Survey and Land Records, Chepauk, Chennai-5.
3.The Assistant Director of Survey and Land Records, Master Plan Complex, Virudhunagar.
+1cc to Mr.A.V.Arun, Advocate Sr.No.12709 +1cc to The Special Government Pleader SR.No.12276 AKM/19.05.2020/8P-6C/ 17.03.2020 8/8