This writ petition has been filed by the petitioners praying for a writ of certiorarified mandamus, to quash G.O.Ms.No.528, Public Works(HK.2) Department, dated 30.6.1995, in so far as it fixes the seniority of the petitioners and to direct the respondents to refix their seniority from the date of their re-appointment in the years 1987-1988 and to give them all benefits based on such refixation of seniority.
2. It has been stated that the petitioners are engineering graduates, who had registered their names in the concerned Professional Employment Exchange. The Chief Engineer of the Highways Department had selected them to fill up the various vacancies in the Highways Department, calling for a list of candidates from the Employment Exchange. As such, they had been working in the Highways Department from the year 1981 upto 1985, under 10(a)(i) of the General Rules of Tamil Nadu State and Subordinate Rules (hereinafter referred to as "the Rules"). However, their services were terminated in the years 1985 and 1986, stating that there were no vacancies in the said Department. Subsequently, they were re-appointed in the years 1987-1988, in accordance with G.O.Ms.No.46,Transport dated 7.1.1987, under 10(a)(i) of the Rules.
3. It has been further stated that the petitioners had been making repeated representations to the authorities concerned, including the respondents, seeking regularisation of their services and for the fixation of their seniority. No orders have been passed on their representations. However, 15 Assistant Engineers, were recruited by the Tamil Nadu Public Service Commission, for the Public Works Department of the Government of Tamil Nadu, during the year 1989-1990, contrary to the norms of recruitment and in violation of the Tamil Nadu Highways Engineering Service Rules and they were placed in the list of seniority, just below those who had been selected during the year 1982 and above the petitioners. By the impugned Government Order, dated 30.6.1995, the petitioners were regularly appointed in service, with effect from the respective dates mentioned in Column 2 of the said Government Order. However, the Government had directed that the regularisation shall not confer any right on seniority and that they would be placed below the candidates selected by the Public Service Commission, in the list of Selection made in accordance with the approved list of the year 1992. Aggrieved by the fixation of their seniority below the candidates selected by the Tamil Nadu Public Service Commission in the year 1982, the petitioners had preferred the present writ petition before this Court, under
Article 226 of Constitution of India.
4. A counter affidavit has been filed on behalf of the respondents. It has been stated that the petitioners had been appointed, temporarily, during the years 1981 to 1985, as Assistant Engineers, in the Highways Department. The appointments were made based on the list of candidates sponsored by the Professional and Executive Employment Exchange. These appointments were made only for the purpose of implementing the `Self Sufficiency Scheme ' launched by the Government. On completion of the Self Sufficiency Scheme works, their services were terminated during the year 1986 and they were all re-appointed on temporary basis again in the year 1987-1988. The petitioners could not be regularised in service as they were not selected by the Tamil Nadu Public Service Commission. However, they were continued in service as temporary Assistant Engineers till they were regularised in service, with retrospective effect, in accordance with the Government Order, in G.O.Ms.No.528 Public Works(HK.2) Department, dated 30.6.1995, from the date of their appointments as temporary Assistant Engineers. However, the Tamil Nadu Public Service Commission had observed that the regularisation would not confer any right in regard to their seniority and that they would be placed below the candidates selected by the Public Service Commission for the year 1991-1992. Accordingly, orders were issued by the Government, in G.O.Ms.No.528, Public Works Department, dated 30.6.1995, to place the names of the petitioners below the candidates who were selected by the Public Service Commission for the year 1991-1992.
5. The main contention of the learned counsel appearing for the petitioners is that the first respondent, while regularising the services of the petitioners from the date of their appointment in service, had wrongly fixed their seniority by placing them below the candidates selected by the Tamil Nadu Public Service Commission for the year 1991-1992. In fact, their seniority should have been fixed from the date of their re-appointment in the year 1987-1988. It was further contended that the State Government, while passing the impugned Government Order, dated 30.6.1995, had not considered the recommendations made by the second and third respondents, on 1.3.2002 and 23.4.2002, respectively. It has also been stated that the impugned Government Order, dated 30.6.1995, fixing the seniority of the petitioners, is discriminatory in nature and therefore, it is in violation of the principle enshrined in
Article 14 of the Constitution of India. In cases of similarly placed persons like that of the petitioners, while regularising their services, their seniority had been fixed below the candidates selected by the Tamil Nadu Public Service Commission for the same year and taking into consideration the years in which the temporary candidates had been appointed. While so, it is not open to the State Government to pass the impugned order fixing the seniority of the petitioners below the candidates selected by the Tamil Nadu Public Service Commission for the year 1991-1992, even though they had been regularised in service from the years 1987-1988, when they were re-appointed in service, in accordance with G.O.Ms.No.46, Transport, dated 7.1.1987.
6. The learned counsel appearing on behalf of the petitioners had relied on the following decisions in support of his contentions:
6.1. In Ajit Kumar Rath Vs. State of Orissa and others (1999(9) SCC 596), the Supreme Court had held that the promotion, having been made in accordance with the rules, the entire period of adhoc service, when the appellant was appointed on a regular basis on the concurrence of the Public Service Commission, would have to be counted towards his seniority vis-a-vis the contesting respondents who were direct recruits. The plea of the direct recruits that the promotees had been unsuccessful in direct recruitment test and therefore, they cannot be given seniority over direct recruits had been rejected.
6.2. In Suraj Parkash Gupta and others Vs. State of J&K and others (2000(7) SCC 561), the Supreme Court had held that regularisation of the services of the adhoc or stopgap service of promotees continuing beyond the prescribed time-limit, without consulting the Public Service Commission, can be regularised by ante-dating the probation, retrospectively and by retrospective appointment to the service from the date of availability of a substantive vacancy within the promotees' and subject to the eligibility and suitability of the incumbent. In such circumstances, the seniority of the incumbent would count from the date of the said availability of a substantive vacancy.
6.3. In Sushma Mutreja Vs. Union of India and others (2001(6) SCC 428), the Supreme Court had held that a person joining a new cadre, although gets the lowest placement in that cadre, cannot be junior to those who were not in the cadre on that date.
6.4. In P.N.Premachandran Vs. State of Kerala and others (2004(1) SCC 245), the Supreme Court had held that there was no irregularity in the matter of grant of promotion to the respondents, with effect from 1964 onwards. In view of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980.
6.5. In Ashok Kumar Shrivastava and others Vs. Ram Lal and others (2008(3) SCC 148), the Supreme Court had issued a direction to the concerned respondents therein to treat the appointees, who had been appointed on the basis of limited departmental examination, to have been substantively appointed at the time of the initial appointment and to revise the seniority list accordingly.
7. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the petitioners had submitted that it would suffice, if the petitioners are permitted to make fresh representations to the first respondent, with regard to their regularisation and the fixation of their seniority, as sought for in the present writ petition and if the first respondent is directed to consider the representations and pass appropriate orders thereon, on merits, in view of the recommendations made by the second and third respondents, dated 1.3.2002 and 23.4.2002, respectively, within a specified period.
8. The learned counsel appearing on behalf of the respondents has no objection for this Court passing such an order.
9. In view of the submissions made by the learned counsels appearing on behalf of the petitioners, as well as the respondents, it is made clear that it is open to the petitioners to make representations to the first respondent, with regard to the reliefs sought for in the writ petition, within a period of four weeks from today and on receipt of such representations, the first respondent is directed to pass appropriate orders thereon , on merits and in accordance with law, after hearing those who may be adversely affected by such refixation of seniority, as prayed for by the petitioners, if found necessary, and by taking into consideration, the recommendations made by the second and third respondents, on 1.3.2002 and 23.4.2002, respectively, within a period of four months from the date of receipt of a copy of this order.
In the result, this writ petition is disposed of with the above directions. No costs.
27.04.2009 Index:Yes/No Internet:yes/No sg M.JAICHANDREN,J.
csh To
1. The Secretary to Government Highways Department, Fort St.George, Chennai-600 009
2. The Chief Engineer(General) Highways Department Chepauk, Chennai-600 005
3. The Secretary Tamil Nadu Public Service Commission (TNPSC) Government Estate Chennai-600 002 W.P.NO.21786 OF 2004.
27-04-2009