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2020 Supreme(Mad) 746
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. SURESH KUMAR, J.
R. Pirabala - Petitioner
Versus
The Government of Tamil Nadu, Rep. By its Principal Secretary, Revenue Department, Secretariat Chennai & Others - Respondents
W.P.(MD) Nos. 7150, 7894, 8377, 8383, 8389, 8394, 8396, 8445, 8467, 8473, 8473, 8481, 8485, 8489, 8492, 8494 and 8766 of 2020 W.M.P.(MD) Nos.6586, 6812, 7353 to 7355, 7785, 7786, 7790, 7791, 7794, 7795, 7801, 7802, 7803, 7805, 7826, 7827, 7851, 7853, 7857, 7858, 7865, 7866, 7868 to 7873, 7876, 7878, 8057 & 8058 of 2020
Decided On : 21-08-2020
For the Petitioners:AR.L. Sundaresan, Senior Counsel for M/s. AL. Gandhimathi, G. Prabhu Rajadurai, M. Ajmal Khan, Senior Counsel for M/s. Ajmal Associates, Veera Kathiravan, Senior counsel, C. Gangai Amaran, M. Saravanan, Advocates.
For the Respondents:K. Chellapandian, Additional Advocate General assisted by J. Padmavathi Devi, Special Government Pleader, C. Jeganathan, Advocate.
The rule of reservation, cyclical form of representation, and emergency provisions for temporary promotions in the context of promotion to the post of Deputy Tahsildar in the Tamil Nadu Revenue Subordinate Service.
Headnote:
WRIT PETITION - DEPUTY TAHSILDAR - PROMOTION - RESERVATION - CYCLICAL REPRESENTATION - TEMPORARY PROMOTION - EMERGENCY PROVISIONS - ACT AND RULES - INTERPRETATION - COURT ANALYSIS AND CONCLUSION - FINAL DECISION
Fact of the Case:
In various revenue districts, temporary promotions were given to the post of Deputy Tahsildar, either by invoking rule 39(a(i)) of the Tamil Nadu State and Subordinate Service Rules or analogous provisions of the Tamil Nadu Government Servants (Condition of Service) Act, 2016 (the Act) i.e., Section 47(1). These promotions were challenged by aggrieved persons on various grounds, including the non-application of the reservation policy and the non-adherence to the cyclical form of representation between promotee and direct recruited Assistants.
Finding of the Court:
1. The rule of reservation has to be applied to the post of Deputy Tahsildar in the Tamil Nadu Revenue Subordinate Service, as per the judgments of the Hon'ble Supreme Court and the orders of the State Government. 2. The cyclical form of representation, with a ratio of 2:1 between promotee and direct recruited Assistants, has to be strictly followed while preparing the seniority list for promotion to the post of Deputy Tahsildar, as per the Division Bench judgment in W.A.(MD) No.836/2018 etc. batch. 3. The temporary promotions given to the post of Deputy Tahsildar were made in order to meet contingencies, especially in the COVID-19 situation, and were made by invoking the emergency provisions of Section 47(1) of the Act and Rule 39(a(i)) of the Rules. 4. The temporary promotions are valid and can be given effect to, but they shall not confer any right on the beneficiaries and shall be replaced by regular promotions once the regular panel is prepared and regular promotees are given promotion.
Issues: 1. Whether the rule of reservation has to be applied to the post of Deputy Tahsildar in the Tamil Nadu Revenue Subordinate Service? 2. Whether the cyclical form of representation has to be followed while preparing the seniority list for promotion to the post of Deputy Tahsildar? 3. Whether the temporary promotions given to the post of Deputy Tahsildar were valid and justified?
Ratio Decidendi: 1. The rule of reservation has to be applied to the post of Deputy Tahsildar in the Tamil Nadu Revenue Subordinate Service, as per the judgments of the Hon'ble Supreme Court and the orders of the State Government. 2. The cyclical form of representation, with a ratio of 2:1 between promotee and direct recruited Assistants, has to be strictly followed while preparing the seniority list for promotion to the post of Deputy Tahsildar, as per the Division Bench judgment in W.A.(MD) No.836/2018 etc. batch. 3. The temporary promotions given to the post of Deputy Tahsildar were made in order to meet contingencies, especially in the COVID-19 situation, and were made by invoking the emergency provisions of Section 47(1) of the Act and Rule 39(a(i)) of the Rules. 4. The temporary promotions are valid and can be given effect to, but they shall not confer any right on the beneficiaries and shall be replaced by regular promotions once the regular panel is prepared and regular promotees are given promotion.
Final Decision: The writ petitions challenging the temporary promotions to the post of Deputy Tahsildar were disposed of with the following directions: 1. The temporary promotions given by the District Collectors in Dindigul and Pudukottai districts were declared valid and could be given effect to. 2. The subsequent orders keeping the temporary promotions in abeyance were quashed. 3. The temporary panel prepared by the Ramanathapuram District Collector was also declared valid as a temporary panel within the meaning of Section 47(1) of the Act and Rule 39(a(i)) of the Rules. 4. All temporary promotions were to be treated as temporary and no right would be accrued to the beneficiaries. 5. The conditions imposed in the promotion orders were to be strictly applicable and imposable against the promotees and beneficiaries. 6. The State Government was directed to make the necessary amendments to the rules, as directed by the Division Bench, within four weeks. 7. Failure to comply with the Division Bench's order would be construed as a wilful violation and could lead to contempt of court proceedings.
ORDER :
(Prayer: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records relating to the proceedings of the 3rd respondent in ref. Na.Ka.No. 6293/2017-1/A2 dated 05.03.2020 and Na.Ka.No.5293/2017-2/A2 dated 05.03.2020 and quash the same and restore the petitioners as Deputy Tahsildars with all attendant monetary and other benefits.)
These batch of Writ Petitions have been filed by the respective petitioners, who are either Revenue Assistants or Senior Revenue Inspectors or Deputy Tahsildars promoted so in three revenue districts, namely, Ramanathapuram, Dindigul and Pudukottai. In respect of each of the districts, one or two cases of this batch are taken up as lead case to narrate the facts. Accordingly, those lead writ petitions, where arguments were advanced by the learned Senior Counsel for the parties and replied by Mr. K. Chellapandian, learned Additional Advocate General assisted by Ms. J. Padmavathi Devi, learned Special Government Pleader, are taken up.
2. Since the issue raised in all these writ petitions in this batch are one and the same, these batch of cases, with the consent of the learned counsel for the parties, are taken up for joint hearing and accordingly, are being disposed of by this common order.
3. In order to appreciate the facts in general, which lead to filing of these batch cases, the following facts are required to be noticed in nutshell:
(a) The post of Deputy Tahsildar under the Tamil Nadu Revenue Subordinate Service is to be filled up by recruitment by transfer from the members of the Tamil Nadu Secretariat Service or from the members of the Tamil Nadu Ministerial Service employed in the Revenue Department cum Board of Revenue and such other departments like, Commissioner of Civil Supplies, Director of Survey and Settlement, Director of Harijan Welfare and Director of Backward Classes, Director of Rehabilitation etc.
(b) Mainly, the post of Deputy Tahsildar in the Tamil Nadu Revenue Subordinate Service is filled up by way of recruitment by transfer and the feeder category for such recruitment by transfer is either Revenue Assistants or Revenue Inspectors, who are either by direct recruitment or by promotion reached the stage of Revenue Assistants/Revenue Inspectors. Since the recruitment by transfer is only by way of promotion from the said feeder category, namely, Revenue Assistants/Revenue Inspectors, the entire posts of Deputy Tahsildar are filled up only through the said method.
(c) In this regard, there had been number of issues arose as to how to fix the inter-se seniority among the Assistants/Revenue Inspectors both directly appointed and promotees and in this regard, as to whether the rule of reservation to be applied or not in the post of Deputy Tahsildar, also had been an issue. Rule 6 of the Special Rules for Tamil Nadu Revenue Subordinate Service (hereinafter referred to as the 'Revenue Rules') provided for such reservation and in this regard, some amendment also had been taken place with the result the reservation issue seems to have been taken to the Court of law. Ultimately, the Hon'ble Supreme Court in Government of Tamil Nadu and others v. S. Balasubramanian and others reported in 1995 (6) SCC 642 has resolved the issue thereby the Rule 6 as amended has attained its finality thus the reservation policy has to be followed in case of appointment to the post of Deputy Tahsildar.
(d) Yet another issue also concerning the applicability of reservation policy to the post of Deputy Tahsildar had again engaged the law Courts, where, the issue was, whether the recruitment to post, which carry a higher pay and higher responsibility by way of transfer, would amount to promotion or not. In this context, it seems to have a contention that, since the post of Deputy Tahsildar is filled up only by way of promotion that cannot be treated as an initial appointment and accordingly, reservation cannot be made under Rule 22 of the
