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HIGH COURT OF JUDICATURE AT MADRAS
V. RAMASUBRAMANIAN & P.R. SHIVAKUMAR, JJ.
N. Santosh Kumar & Others - Petitioners
Versus
The Tamil Nadu Public Service Commission, rep. by its Secretary, Government & Others - Respondents
Writ Appeal Nos. 2705, 2730, 2731 of 2012, 2394 & 1033 of 2013 & M.P.Nos.1 of 2012 & 1 of 2013
Decided On : 31-03-2015
General Rules - Rule 35(f) – Constitution of India, 1950 - Article 16(1) – Condo nation of delay – Claim of compensation - Orders of rejection - Senior Counsel and learned Counsel appearing for appellants learned Additional Advocate General assisted by Additional Government Pleader for State counsel appearing for Tamil Nadu Public Service Commission learned Senior Counsel and learned Counsel appearing for contesting respondents - After a process of selection comprising of a written examination and oral interview Service Commission sent individual communications to selectees - While candidates selected for appointment to Public Works Department joined services by virtue of a separate order candidates selected for appointment in Highways Department joined services pursuant to approval of select list by Government Highways Department - After four years of selectees joining Highways Department Chief Engineer of Highways Department issued a proceeding enclosing a seniority list - Said list was made subject to final orders to be passed in a writ petition filed by one and others – Held, Another interesting argument was sought to be raised by one of senior counsel for contesting respondents - According to him State is entitled to make a provision for reservation in matters of promotion with consequential seniority to any class or classes of posts in terms of Clause (4-A) of Article 16 - Therefore according to him roster was intended to benefit reserved category candidates so that they gain promotion at an accelerated pace by virtue of being placed high in seniority - In any case point roster in Schedule-III contains provisions for all kinds of reservations such as vertical horizontal and internal in favor of Backward Classes Backward Class Muslims Most Backward Classes Scheduled Castes on preferential basis Scheduled Tribes Women destitute widows Ex-servicemen physically challenged and persons who studied in Tamil Medium - Therefore if point roster is converted into a seniority list some of these categories such as physically challenged persons who studied in Tamil Medium etc will also get seniority over and above more meritorious candidates belonging to other reserved categories within Constitutional Scheme – Unfortunately this issue has been completely overlooked both by Service Commission as well as by Government - It will be clear from above discussion that decision of respondents to treat point roster itself as seniority list on basis of decision of Supreme court was not correct in view of peculiarity of roster in State - That in any case decision rendered was declared as not a good law without specifically invoking doctrine of prospective overruling - That at any rate first ever seniority list was released by Engineer-in-Chief of Highways department which was subsequent to decision - That all other proceedings issued prior on which reliance is placed by respondents to attribute knowledge of seniority position to appellants herein did not speak about fixation of seniority specifically and hence first seniority list should be taken to have been issued and that therefore seniority of appellants other selectees under notification should be determined only with reference to rank assigned to them by Service Commission in terms of rule 35 (a) of General Rules and Subordinate Services and not as per roster – Therefore appellants are entitled to succeed - Writ appeals are allowed
V. Ramasubramanian, J.
1. The writ appeals arise out of the dismissal of a batch of writ petitions challenging the method of fixation of seniority among directly recruited Assistant Engineers in the Highways Department, on the ground of delay and laches.
2. We have heard Mr. N.R. Chandran and Mr. R. Muthukumarasamy, learned Senior Counsel and Mr. N. Subramaniyan, learned Counsel appearing for the appellants, Mr. S. Gomathinayagam, learned Additional Advocate General, assisted by Mr. R. Ravichandran, learned Additional Government Pleader for the State, Miss.C.N.G.Niraimathi, learned counsel appearing for the Tamil Nadu Public Service Commission Mr. K. Venkataramani and Mr. Vijay Narayan, learned Senior Counsel and Mr. N.G.R. Prasad, learned Counsel appearing for the contesting respondents.
3. On 10.07.1999, a Notification for direct recruitment Assistant Engineers in the Public Works Department and Highways Department, was issued by the Tamil Nadu Public Service Commission.
4. After a process of selection, comprising of a written examination and oral interview, the Service Commission sent individual communications to the selectees on 16.11.1999. While the candidates selected for appointment to the Public Works Department joined the services by virtue of a separate order, the candidates selected for appointment in the Highways Department joined the services, pursuant to the approval of the select list by the Government in G.O.Ms.No.104, Highways Department dated 19.6.2000.
5. After four years of the selectees joining the Highways Department, the Chief Engineer of the Highways Department issued a proceeding dated 29.4.2004, enclosing a seniority list. The said list was made subject to the final orders to be passed in a writ petition filed in W.P.No.41342 of 2012 filed by one S.Balakrishnan and others.
6. Immediately upon the release of the seniority list dated 29.4.2004, one Mr. R. Balakrishnan, who was selected for appointment as Assistant Engineer in the Highways department gave a representation on 16.6.2004, objecting to his placement in the seniority list. His objection was that he was a more meritorious candidate belonging to the Backward Classes and that by virtue of his higher ranking, he was allotted to the General Turn (open category) and kept against the 172nd roster point. But other persons belonging to the Backward Classes who were least meritorious were placed at a higher roster point and they were also given seniority over and above him, merely because they were placed against reserved vacancies.
7. The said representation of R.Balakrishnan was rejected by the Tamil Nadu Public Service Commission by an order dated 20.12.2004 on the short ground that the roster point by itself determined the seniority position of the candidates selected for appointment, in view of the decision of the Supreme Court in P.S.Ghalaut vs. State of Haryana [AIR 1996 SC 351].
8. After receipt of the said communication from the Tamil Nadu Public Service Commission, R.Balakrishnan and a few others filed a writ petition in W.P.No.34957 of 2006, challenging their placement in G.O.Ms.No.104, Highways Department, dated 19.6.2000 and the proceedings of the Chief Engineer dated 29.4.2004. Subsequently, few more individuals filed writ petitions in W.P.Nos.50067 of 2006, 29356 of 2007, 46868 of 2006 and 1447 of 2005.
9. The main issue raised by the writ petitioners was as to whether the 200 point roster given in Schedule III of the General Rules for Tamil Nadu State and Subordinate Services for reservation of vacancies, would be determinative of the seniority.
10. By a common order dated 18.10.2012, a learned Judge dismissed all the writ petitions on the sold ground that the petitioners were guilty of delay and laches. However, the learned Judge held on principle that the decision of the Supreme Court in P.S.Ghalaut, on the basis of which the responden
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