Temporary promotees cannot claim seniority above directly appointed employees as per Section 47(5) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

JUDGMENT

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the record on the file of the 5th respondent in respect of the proceedings vide Na.Ka.No.K2/6021/2021 dated 30.12.2022 and quash the same as illegal, incompetent and ultravires.)

1. This writ petition has been filed challenging the proceedings in Na.Ka.No.K2/6021/2021 dated 30.12.2022 passed by the fifth respondent and quash the same as illegal, incompetent and ultravires.

2. The case of the writ petitioner is that he has been initially appointed as a Typist on 21.10.2014 at District Rural Development Agency, District Collectorate Office, Krishnagiri District. Thereafter, he has been temporarily promoted as Assistant on 15.11.2016. His service as Assistant has been brought into Regular Panel and as per Section 40(2) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, seniority has been fixed taking into account of the date of appointment as Assistant. The seniority list has been published by the fifth respondent vide proceedings dated 04.05.2018, 26.12.2018, 10.02.2021 & 25.02.2021. The petitioner''s service is also regularised, however, the fifth respondent has passed the impugned order vide Na.Ka.No.K2/6021/2021 dated 30.12.2022, refusing the seniority by holding that the temporary promotees'' seniority will be based on the regularisation. Challenging the same, this writ petition.

3. The learned counsel for the petitioner would submit that the petitioner was originally appointed as typist on 21.10.2014 and he was regularised on 06.11.2015. He is also given temporary promotion as Assistant. Though appropriate seniority has been fixed from taking note of the date of appointment i.e., on 15.11.2016, later, the fifth respondent has revised the seniority list by invoking provisions under Section 47(5) of the Act. Hence, it is not proper and according to him, the date of Seniority has to be met out as the initial appointment.

4. Heard Mr.M.Guruprasath, learned counsel for the petitioner and Mr.P.Baladhandayutham, learned Special Government Pleader and perused the materials placed on record.

5. On perusal of the entire materials, the fact that the petitioner was originally appointed as Typist on 21.10.2014 is not in dispute and he has been regularised on 06.11.2015 and temporarily promoted as Assistant on 15.11.2016. Though, initially, seniority list has been maintained on the date of appointment, the authorities later found that the temporary promotion will not entail the petitioner to claim seniority with direct employees. Accordingly, revised the seniority invoking the provisions under Section 47 Rule 5 of the Tamil Nadu Government Servants(Conditions of Service) Act, 2016. It is relevant to extract the provision hereunder:

"47. (1) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from lower category and there would be undue delay in making such promotion in accordance with the provisions of the Act, the appointing authority may temporarily promote a person, who possesses the qualifications prescribed for the post, otherwise than in accordance with the provisions of this Act.

(2) Where it is necessary to fill a short vacancy in a post borne on the cadre of a higher category in service or class by promotion from lower category and the appointment of the person who is entitled to such promotion under the provisions of the Act would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, the appointing authority may promote any other person who possesses the qualification, if any, prescribed for the higher category.

(3) A person temporarily promoted under sub-section (1) shall be replaced as soon as possible by the member of the service, who