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2010 Supreme(Mad) 3887
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE T. RAJA
A. Visalakshi & Another
Versus
State of Tamil Nadu rep. By its Secretary to Government Home (Police XVI) Department & Others
W.P.NO.2111 OF 2007
Decided On : 02-09-2010
For the petitioners:P1, S. Vadivelu, Advocate, P2, R. Muthukumarasamy, senior counsel for R. Sekaran, Advocate.
For the Respondents:R1 and R2, S. Gopinathan, R3, M. Bhaskar, R4 to 7, 9 to 11, 13 to 21, 23, 25 to 27, S. Ravi, Advocates.
The regularisation of services under Rule 23(a)(i) does not confer seniority, and General Rule 35(a) applies to determine seniority even for appointments made outside the purview of the Tamil Nadu Public Service Commission.
Headnote:
Seniority - Scientific Assistant Grade II - General Rule 35(a) - Summary of Acts and Sections: General Rule 35(a), Tamil Nadu State and Subordinate Services Rules, Tamil Nadu Public Service Commission Regulations, 1954 - The court discussed the application of General Rule 35(a) in determining the seniority of Scientific Assistant Grade II and the regularisation of services under Rule 23(a)(i). The judgment also referenced the legal principles established in State of Tamil Nadu v. E.Pariipoornam (AIR 1992 SC 1823) and K.Madalaimuthu and Another v. State of Tamil Nadu and Others (A.I.R.2006 SC 2662) to interpret the effect of regularisation on seniority and the applicability of Rule 35(a) to appointments made outside the purview of the Tamil Nadu Public Service Commission.
Fact of the Case:
The petitioners sought to quash the seniority list of Scientific Assistant Grade II and revise it based on the rank assigned by the Tamil Nadu Public Service Commission. They argued that their seniority should be determined based on the TNPSC rank and that the regularisation of services under Rule 23(a)(i) should not confer seniority. The respondents contended that the petitioners' writ petition was barred by res judicata and that Rule 35(a) did not apply to appointments made outside the purview of the TNPSC.
Finding of the Court:
The court found that the posts of Scientific Assistant Grade II were outside the purview of the TNPSC until 09.12.1988 and that the regularisation of services had already determined the seniority of the petitioners and the respondents. The court held that the settled seniority should not be unsettled and dismissed the writ petition.
Issues: The issues involved the determination of seniority for Scientific Assistant Grade II, the applicability of General Rule 35(a) to appointments made outside the purview of the TNPSC, and the effect of regularisation under Rule 23(a)(i) on seniority.
Ratio Decidendi: The court held that the regularisation of services had already determined the seniority of the petitioners and the respondents, and the settled position should not be unsettled. The court also emphasized the applicability of General Rule 35(a) to appointments made outside the purview of the TNPSC.
Final Decision: The court dismissed the writ petition, concluding that the settled seniority of the petitioners and the respondents should not be unsettled and that the regularisation of services had already determined their seniority.
1. The two petitioners A.Visalakshi and D.Devaki filed O.A.No.7206/1999 on the file of the Tamil Nadu Administrative Tribunal with the prayer to quash the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings Proc.No.A4/18829/97 O.O.No.107/97 dated 20.4.98 in so far as it relates to the applicants herein as the said seniority list is contrary to General Rule 35 (a) and is not based on the rank assigned to the applicants in the list of selected candidates for the post of Scientific Assistant Grade II by the Tamilnadu Public Service Commission and to direct the respondents 1 to 3 herein to revise the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings Proc.No.A4/18829/97 / O.O.No.107/97 dated 20.4.98 based on the rank assigned to the applicants herein by the TamilNadu Public Service Commission in the competitive examination held in the year 1989 for Scientific Assistant Grade II and under General Rule 35(a) and consequently to include the name of the applicants in the panel of Scientific Assistant Grade I issued by the Second Respondent in proceedings Rc.No.A4/883/99 / O.O.5/99 dated 22.1.1999 and consequently promote the applicants herein as Scientific Assistant Grade I, based on the seniority list so revised.
2. (i) The petitioners were temporarily appointed as Scientific Assistants Grade II on 15.9.1988 and 25.3.1988 respectively through the Employment Exchange under 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules. The said posts are coming under the purview of Tamil Nadu Public Service Commission (hereinafter referred to as "the TNPSC") with effect from 03.10.1986. Whileso, the TNPSC through advertisement called for applications for 36 vacancies of Scientific Assistants Grade II in the Forensic Sciences Department. In response to the notification, the petitioners applied for the post of Scientific Assistants Grade II. By a communication dated 22.12.1995, the TNPSC informed the applicants that they were provisionally selected for appointment to the said post with rank No.1 and 5 respectively according to the rank list of selected candidates published by the TNPSC Bulletin dated 16.4.1998. Though 36 persons already working temporarily in the Forensic Science Department applied along with other persons from outside public for the 36 vacancies, the TNPSC selected only 14 candidates as fit for the post of Scientific Assistants Grade II. Rest of them were not selected. Out of the 14 candidates so selected, the petitioners ranks are in Sl.No.1 and 5 respectively. Since the seniority of the petitioners should be determined on the basis of the rank obtained by the petitioners in the list of approved candidates drawn up by the TNPSC the ranking was not properly assigned in the impugned proceedings No.Proc.No.A4/18829/97 / O.O.No.107/97 dated 20.4.1998. Instead the petitioners seniority have been fixed at Sl.Nos.35 and 32 respectively as temporary candidates ignoring the mandatory rules under General Rule 35(a). On the other hand, the persons who were not successful in the TNPSC examination have been made senior to the petitioners though the petitioners were the successful candidates. Being aggrieved by the impugned seniority list dated 20.4.1998, a representation was made to the second respondent on 19.5.1998 for fixing the seniority based on the rank assigned by the TNPSC specifically indicating that both the petitioners should be placed in Sl.Nos.9 and 12 respectively in the impugned seniority list on the basis of the General rule 35(a).
(ii) Though both the petitioners along with other persons filed on an earlier occasion a common O.A.No.1728/1989 on the file of the Tamil Nadu Administrative Tribunal for regularisation of temporary services against the same respondents, in the said O.A., the Tribunal by order dated 04.12.1991 directed that the appointments made prior to 09.12.1988 should be dealt with in the same manner
