these petitions.
W.P.No.26334 of 2006 has been preferred under
Article 226 of the Constitution of India praying for the issue of a writ of mandamus for a direction to the respondent to sanction the creation of a supernumerary post of Assistant Section Officer in the scale of pay of Rs.780-35-1025-40-1385 and subsequently refix at Rs.1640-2900 with effect from 7.10.88 F.N. till the need ceases so as to enable the applicant to be promoted as Assistant Section Officer with effect from 7.10.88 F.N. and to allow the applicant all consequential and attendant service and monetary benefits in the category of Assistant Section Officer subject to reversion and repromotion of his juniors Tvl.S.Sivasubramanian, S.Kalaiselvan and S.Nazir Hussain.
For Petitioners : Mr.K.V.Srinivasaraghavan in all the petitions For Respondent : Mr.Gurunathan, GA in all the petitions
- - - -
COMMON ORDER The petitioners in all these cases were employed as Assistant Section Officers, working in various departments under the Tamil Nadu Secretariat. They filed various O.As., seeking for a direction to the respondent to create a supernumerary post of Assistant Section Officer in the scale of pay of Rs.780-1385 and subsequently, revise at Rs.1640-2900 with retrospective effect from 07.10.1988 so that they can be promoted to the very same post with retrospective effect on par with Mr.S.Sivasubramanian, Mr.S.Kalaiselvan and Mr.S.Nazir Hussain.
2.On notice from the Tribunal, the respondent has filed a detailed common counter affidavit in respect of various O.As. In view of the abolition of the Tribunal, all the matters stood transferred to this court and were renumbered as various writ petitions, as noted above. The petitioners herein wrote the examination conducted by T.N.P.S.C. Group V for the posts of Assistants during the year 1985-86. In the selection, 126 candidates were selected by the T.N.P.S.C. and were allotted to Tamil Nadu Secretariat Services. They were appointed as Assistants in different departments both in one unit as well as in Finance Department. Out of these candidates, 37 were allotted and re-allotted to Finance Department with reference to the vacancies, which were made available. All these Assistants were promoted as regular Assistant Section Officers in the year 1991. However, one Mr.S.Nazir Hussain, who was reallotted to Finance Department from the Industries Department, which is coming under one Unit, got his promotion as Assistant Section Officer with effect from 07.10.1988, which is three years before the date of promotion of 1985 batch appointees.
3.Aggrieved by this promotion given to Mr.S.Nazir Hussain, two Assistants, namely Mr.S.Kalaiselvan and Mr.S.Sivasubramanian, who were appointed in the department under one Unit, filed O.A.No.166 of 1990 before the Tribunal to grant them promotion on par with Mr.S.Nazir Hussain in the Finance Department. The Tribunal, by judgment dated 16.4.1993, allowed the O.A. and granted the prayer sought for by the individuals. The respondent filed a review application being R.A.No.4/95. However, the Tribunal chose to dismiss the said R.A., thereby forcing the respondent State to issue G.O.Ms.No.338, P&AR Department, dated 8.11.1995 and to implement the order of the Tribunal. As soon as the said G.O. was issued, this batch of writ petitioners started to file O.As., seeking for a similar prayer with that of Mr.S.Kalaiselvan and Mr.S.Sivasubramanian. There were also several O.As. filed before the Tribunal before this batch in O.A.No.7749 of 1993 and batch cases. The Tribunal held that those applications were not maintainable as their cause of action arose in the year 1988 and their belated representations will not cure the defect. Even while passing an order in R.A.No.4 of 1995, the Tribunal observed as follows:
"All these applicants have come forward only after our orders in O.A.No.166/90 dated 16.4.93. They had not apparently represented at the time of their allotment or re-allotment to different departments or immediately after any person junior to them in terms of total service had been promoted in the Finance Department. Their claim is only on the basis that the judgment of this Tribunal is applicable to all persons because it lays down the basis of general application.
This is not a case in which the cause of action arises following the issue of our orders in O.A.166/90. That order decided the claim of the applicants therein which they had put forward in terms of the rules promptly as soon as the cause of action arose. They have come before the Tribunal on the rejection of their representation by the Government. The present applicants cannot claim to be in the same position as the applicants in O.A.166/90."
4.Subsequently, giving effect to the earlier order of the Tribunal, the Government issued Special Rules for the Tamil Nadu Secretariat services with retrospective effect from 5.6.1970 and an amendment was brought in by G.O.Ms.No.30, P&AR Department, dated 28.01.1994. In Rule 11A, it was stated as follows:
"Nothing contained in rule 11 shall adversely affect the persons in service in the Finance Department including the Planning and Development Department or the Law Department as the case may be, as on 28.1.1994 who were allotted or re-allotted, to the Finance Department including Planning and Development Department or the Law Department from the One Unit, on and from the 5th June 1970 and the persons in service in one unit as on 28.1.1994 shall have no claim for allotment or re-allotment to Finance Unit or Law Unit."
Therefore, the only question that arises for consideration in these writ petitions is whether the petitioners are entitled for any relief, as prayed for by them.
5.In the present case, the cause of action arose when Thiru S.Nazir Hussain got promotion out of turn in the year 1988. The petitioners, who were well aware of such development, did not choose to move the court on the basis of any parity. Secondly, even when Mr.S.Kalaiselvan and Mr.S.Sivasbramanian moved Tribunal during 1990 and got favourable orders, the petitioners did not file any such case before the Tribunal. Now that, the Special Rules have been amended and there is no scope for the petitioners to claim any parity even the Government was forced to implement the earlier orders of the Tribunal. In this context, it is necessary to refer the judgment of the Supreme Court in C.JACOB VS. DIRECTOR OF GEOLOGY & MINING & ANR. reported in 2008 AIR SCW 7233. In paragraphs 6 to 8 of the said judgment, it has been held as follows:
"6.Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
7.Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
8.When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of 'acknowledgment of a jural relationship' to give rise to a fresh cause of action."
It must also be stated that similarly placed persons have also lost their case before the Tribunal, as noted above. In the light of the same, all these writ petitions stand dismissed. However, there shall be no order as to costs.
vvk To The Secretary to Government, The Government of Tamil Nadu Personnel and Administrative Reforms Department, Fort St. George, Chennai 600 009