M.P. Palanisamy & Ors vs A. Krishnan & Ors

"REPORTABLE" IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3582-84 OF 2009 (Arising out of SLP (Civil) Nos. 1128-1130 of 2005)

M.P. Palanisamy & Ors. .... Appellants

Versus

A. Krishnan & Ors. .... Respondents WITH

CIVIL APPEAL NOS. 3585-86 OF 2009 (Arising out of SLP (Civil) Nos. 7621-7622 of 2005)

M.P. Palanisamy & Ors. .... Appellants

Versus

Government of Tamil Nadu & Ors. .... Respondents

JUDGMENT

V.S. SIRPURKAR, J.

1. Leave granted in all the cases.

2. This judgment shall govern SLP (C) Nos. 1128-1130 of 2005 and

SLP (C) Nos. 7621-7622 of 2005. All the appellants herein challenge the

judgment of the Madras High Court whereby the Writ Petitions filed by

them were disposed of with the following direction:-

"As regards the first category of teachers, those appointed between 01.07.1978 to 28.04.1981, their seniority from will be reckoned from the date on which they acquire the required qualification, provided they do so within such time as extended by the Government and subject to the concurrence of Tamil Nadu Public Service Commission.

As regards the second category of teachers, those appointed after 28.04.1981 and selected by the Tamil 2

Nadu Public Service Commission their seniority will be fixed as per the Tamil Nadu Public Service Commission list.

As regards the third category of teachers, those appointed after 28.04.1981 and who have not been selected by the Tamil Nadu Public Service Commission and whose services have been regularized by GOMs No. 1813 dated 12.12.1988, their seniority will commence immediately after the last person in the list in the second category.

However, in the circumstances of the case, there will be no orders as to costs. Consequently, the connected miscellaneous petitions are closed."

3. This judgment disposed of Writ Petition Nos. 21163-64/2003,

21347/2003, 21640/2003, 21641/2003 and 29075-77/2003. One another

Writ Petition filed along with these was, however, ordered to be de-linked.

All these Writ Petitions involved the question of inter se seniority of the

higher secondary school teachers called Post Graduate Assistants

(hereinafter referred to as "P.G. Assistants" for short) who were appointed

from the year 1978.

4. The relevant G.O.Ms. No. 1813, Education Department dated

12.12.1988 was challenged in all these Writ Petitions in so far as it

pertained to the fixation of seniority as shown in clause (ii) therein for the

sake of clarity it will be better to quote the said G.O.Ms:

"The said posts of teachers have been excluded from the purview of the Tamil Nadu Public Service Commission with reference to the orders issued in the G.O. Ms. Nos. 139 and 1320, Education Department dated 17.8.1987. Recently a separate Teachers Recruitment Board has been constituted for recruitment 3

of teachers to the schools. In the circumstances, the Government direct that the services of the fully qualified P.G. Assistant in Academic subjects, Languages and Physical Directors who were appointed temporarily under the provisions of the Rule 10(a)(i) and who are in service till date shall be regularized from the date of their temporary appointment and subject to the following conditions:

(i) The candidates regularized by this order will get monetary benefits from the date of issue of this order.

(ii) They will be placed below the candidates selected by the Tamil Nadu Public Service Commission while ranking their seniority i.e. these candidates will take their seniority below the last candidate selected by the Tamil Nadu Public Commission for the year."

5. Ms. Nalini Chidambaram, learned Senior Counsel appearing on

behalf of the appellants along with Ms. Indu Malhotra and Shri M.N.

Krishnamani, learned Senior Counsel assailed the judgment mainly on the

question that the directions given by the High Court were in breach of the

basic principles of service jurisprudence to the effect that the persons

entering into the service first have to be conferred with the seniority from

the date of entering into the service, particularly, when the service is

regularized. In other words, the learned counsel urged that the seniority of

the petitioners must be reckoned form the date they entered into the

service even if they were regularized later on as compared to the others.

6. Before approaching this question it will be necessary to see in short

the uncontroverted facts.

4 7. The concerned teachers in these appeals can be classified in three

groups. The first group is of Post Graduate Assistants who were

appointed in between 01.07.1978 and 28.04.1981. Second group is of

those Post Graduate Assistants who were duly selected by the Tamil Nadu

Public Service Commission (hereinafter referred to as `TNPSC' for short)

and appointed in 1986. The third group is of the Post Graduate Assistants

appointed temporarily under Rule 10(a)(i)(1) of General Rules of TNPSC

{hereinafter referred to as "Rule 10(a)(i)(1)" for short} after 28.4.1981 and

regularized ultimately by order dated 21-22.12.1988 placing them below

the TNPSC candidates of group-II.

8. The learned counsel at the beginning of the debate reiterated that

the appellants have no quarrel with the seniority awarded to the first group.

However, their contest was with the second group of Post Graduate

Assistants who were selected by the TNPSC and appointed in the year

1986. The basic challenge is that such candidates in the third group who

were appointed prior to 1986 but were regularized in 1988 should be

offered the seniority over and above the Post Graduate Assistants

belonging to the second group on the basis of their having been

regularized in the year 1988. In short, the learned counsel argued that

unbroken and continuous service of the Post Graduate Assistants

belonging to third group from the date of their appointment though in the

ad hoc capacity should be recognized as such over and above those who 5

come in the service for the first time in 1986 by way their selection by

TNPSC and the subsequent appointments as a result thereof.

Short History

9. The Government of Tamil Nadu introduced 10+2 system w.e.f.

01.07.1978 in the sense that for passing the higher secondary examination

one was required to pass 10th standard examination popularly known as

Matriculation examination and thereafter had to pass 11th and 12th standard

examination. The 12th standard examination being called Higher

Secondary Examination conducted by the Board of Education. In that, the

pre-university course run by the colleges which the students could take

only after passing the Matriculation i.e. 10th standard examination was

detached from the colleges. About 800 matriculation schools were

upgraded as Higher Secondary Schools. This naturally resulted in the

unprecedented rise in the school students population requiring extra

teachers to teach those classes in schools. This became all the more

necessary as the decision to introduce 10+2 pattern was taken suddenly

while there were no statutory Rules and, therefore, the appointments were

made to the posts of Post Graduate Assistants from amongst those

teachers who were earlier called BT Assistants and in addition to that

possessed Master degrees. Some such teachers even did not have B.Ed

qualification.

6 10. After exhausting those teachers remaining posts came to be filled up

by calling the applications through Employment Exchanges. Ultimately,

these teachers who were who were so appointed were made permanent

with the help of special Rules which were framed in exercise of power

under Section 309 of the constitution of India vide G.O.Ms. No. 720,

Education Department dated 28.04.1981. This G.O.Ms. had prescribed

the qualification for the Post Graduate Assistant as Master degree with

B.Ed. In the special Rules one Rule 11 was introduced which were as

under:

"Rule 11: Savings-Notwithstanding anything contained in Rule 2 and 6 above, the service of these persons who are holding, on the date of issue of these Special Rules, the post of Head Masters and Head Mistresses in Academic subjects, teachers in Languages and Physical Directors and Physical Directresses in Higher Secondary School and who possess the qualifications prescribed for such category in the Annexe shall be regularized after obtaining the concurrence of the Tamil Nadu Public Service commission under the Tamil Nadu Service Commission Regulations, 1954 and in respect of those persons who do not possess the qualifications prescribed for such category in the Annexe and who are holding such posts on the date of issue of these Special Rules shall be regularized only after they acquire the said qualifications and after obtaining concurrence of Tamil Nadu Public Service Commission under the Tamil Nadu Public Service Commission Regulations,1954 provided they acquire the said qualifications within a period of five years from 1st July, 1978. If they fail to acquire the said qualifications within the specified period they shall be replaced by suitable qualified candidates."

7 11. Therefore, as per the above Rule those who already had the Master

degree and B.Ed. were directed to be regularized straightway. Such

others who did not have that qualification were given five years' time w.e.f.

01.07.1978 to acquire the qualification and on acquisition of the

qualifications, they were directed to be regularized only after getting

concurrence from TNPSC. There is no dispute that the contesting

respondents herein had acquired such qualifications before 30.06.1983

and their services were regularized.

12. The Government also temporarily appointed some teachers after

28.4.1981, who had the necessary qualifications under Rule 10(a)(i)(1).

This Rule provides for adhoc appointments. They were so appointed to

meet the emergent situation of shortfall created because of the application

of new pattern of 10+2. They were not selected by TNPSC. Their

appointments were prior to 1986.

13. At this stage the TNPSC started taking steps to fill up the 660 posts

of Post Graduate Assistants by holding examination and issued an

advertisement dated 5.6.1984. On 14.8.1984 G.O.M.S No.1049 was

issued informing that all the P.G. Assistants appointed after 28.4.1991

would have to take up the examination by TNPSC and without that such

teachers could not continue. However, representations were made by

these temporarily appointed teachers under Rule 10(a)(i)(1) through their

Associations. These representations were for the purposes of regularizing 8

the services of these Post Graduate Assistants who were appointed in ad

hoc manner under Rule 10(a)(i)(1) without taking the proposed

examination by TNPSC. This representation was sent to the Government

which ultimately forwarded it to TNPSC for its view. However, the

representation was negatived and ultimately the TNPSC held the

examination for filling up the posts of Post Graduate Assistants in the year

1985. Thereby the ad hocly appointed Post Graduates Assistants'

regularization was rejected. It was notified by the Government that those

candidates who were appointed as Post Graduate Assistants before

28.04.1981 need not apply for those posts as almost all the candidates

had qualified themselves within five years and only a few were left out.

(The Government ultimately extended the time by two years from 1983 to

1985 and from 1985 to 1987 for enabling these persons to acquire the

qualifications) Those who could not acquire these qualifications were

admittedly not included in the impugned panel. As has already been

stated above the appellants have no quarrel with this particular category of

teachers.

14. At this stage, a Writ Petition came to be filed before the High Court

by some third group teachers seeking injunction against holding of that

examination by the TNPSC and filling the posts thereby. However, even

that prayer for injunction was negatived by the High Court and ultimately

the TNPSC after holding the examination selected the second category of

the Post Graduate Assistants and appointed them on 8.8.1986 and 9

ultimately they became the members of the Service from that date. It is

relevant to mention here that at that time also the appellants had not

become members of the service since they were only ad hoc appointees

under Rule 10(a)(i)(1). It is also relevant to note that these appellants had

the option to compete in the said examination. Some who appeared in

TNPSC examination failed to qualify and the rest did not bother to take the

examination at all. They thereby shunned from competing against the

fresh candidate appearing in the TNPSC examination. However, the

concentrated efforts for regularizing of such candidates who were

appointed under Rule 10(a)(i)(1) in the ad hoc manner were continued by

their Association and as a result thereof they were ultimately regularized

by G.O.Ms. dated 12.12.1988 on a condition that they would not be entitled

for monetary benefits and would have to take their seniority below the last

candidate selected by TNPSC in the examination. They accepted this

conditional regularization without demur.

15. Before this G.O.Ms. No. 1813 dated 12.12.1988, two other G.O.Ms.

were issued, they being G.O. No. 1320 dated 17.8.1987 and G.O. No.

1671 dated 3.11.1988. We would, however, not be concerned with these

G.Os. in the present controversy. After the G.O.Ms. dated 12.12.1988 was

brought in, the third category of P.G. Assistants appointed under Rule

10(a)(i)(1) filed Original Application bearing O.A. No. 3760 of 1991 before

the Tamil Nadu Administrative Tribunal (hereinafter referred to as "the

Tribunal" for short). Very significantly, in this Original Application, the P.G. 10

Assistants appointed under Rule 10(a)(i)(1) did not challenge the second

condition regarding seniority imposed in G.O.Ms. No. 1813 to the effect

that they would be placed below the candidates selected by TNPSC, while

ranking their seniority. The said Original Application was allowed, thereby,

the past monetary benefits were granted to these P.G. Assistants. Thus,

these P.G. Assistants clearly accepted the second condition regarding

their seniority. Similarly, another Original Application bearing O.A. No.

3617 of 1994 came to be filed by some other P.G. Assistants, claiming

relief of regularization of their services from the date of their appointment

instead of their obtaining the qualification. However, the Tribunal did not

grant that relief and merely granted the relief regarding the increments,

selection grade etc. w.e.f. their initial appointment but not in respect of

seniority. A further Writ Petition came to be filed vide W.P. Nos. 2911 and

3041 of 1998, wherein, the High Court, by its judgment dated 24.3.1998,

modified the order of the Tribunal holding that the Rules should be relaxed

from their date of initial appointment, but they could not claim seniority over

the P.G. Assistants, who were appointed with the requisite qualification nor

could they claim any arrears prior to their obtaining the qualification. On

9.9.1999, a further G.O.Ms. No. 276 was issued on the basis of the High

Court judgment, whereby, it was ordered that the P.G. Assistants, who

were initially appointed without necessary qualification, shall be regularized

only from the date on which they obtained the qualification and their

seniority shall be reckoned from the date of their regularization. However, 11

as a concession, service rendered for the period prior to their

regularization was to be taken into consideration only for the purpose of

calculating the pension. Therefore, at least from 1988 till 1998, the things

remained as they were in respect of the seniority of the P.G. Assistants

appointed under Rule 10(a)(i)(1).

16. In between, there is one more development, i.e., TNPSC appointed

P.G. Assistants filed two Original Applications, they being O.A. No. 5205 of

1999 and 3638 of 2000, assailing the proceedings in Na. Ka. No.

39470/W1/2/98 dated 24.8.1998 of the Director of School Education,

whereby they claimed seniority over and above the P.G. Assistants

appointed under Rule 10(a)(i)(1). In their O.A., they had also claimed the

promotions after fixing up the seniority over and above P.G. Assistants

appointed under Rule 10(a)(i)(1). That Original Application was dismissed

by the Tribunal by its judgment dated 3.7.2002. On 9.4.2003, however, the

Director of School Education issued a communication being Na. Ka. No.

136188/W18/02, clarifying that if the P.G. Assistants were appointed in the

same year as that of the TNPSC selected P.G. Assistants, then the

TNPSC P.G. Assistants will rank senior to the non-TNPSC candidates.

But if different modes were adopted for recruitment in different years, the

TNPSC candidates of a later year, cannot rank senior to a candidate

recruited in the earlier year by a non-TNPSC mode. Further on 18.6.2003,

another letter came to be issued by Director of School Education, calling

for the list of candidates for preparation of Panel for the post of Head 12

Masters. In pursuance thereto, a list of P.G. Assistants appointed upto

31.5.1982 was issued. However, the Director of School Education

prepared a Panel of 393 candidates for the post of Higher Secondary Head

Masters, which did not include the names of the third category candidates,

i.e., the P.G. Assistants appointed under Rule 10(a)(i)(1). In this list, the

candidates, whose names appeared from S.Nos. 1-143 were admittedly

senior to these P.G. Assistants appointed under Rule 10(a)(i)(1) and their

seniority was and is not being disputed. However, according to the

present P.G. Assistants appointed under Rule 10(a)(i)(1), the candidates

whose names appeared from S.No. 143 onwards, were the P.G.

Assistants selected by TNPSC and appointed in 1986.

17. They claim that all those P.G. Assistants should be ranked junior to

the P.G. Assistants appointed under Rule 10(a)(i)(1), as these TNPSC

appointed P.G. Assistants had acquired qualification after their

appointments and further that though they were regularized w.e.f.

12.12.1988, their regularization should have been given effect to from the

date of their appointment. Hence, challenging this Panel, number of

Original Applications were filed before the Tribunal, they being O.A.

Nos.2155, 2255, 2262, 2315, 2370, 2396 & 2397 of 2003 by various P.G.

Assistants individually. Very significantly, their representative body,

however, was not a party to these original applications either in its capacity

as an applicant or as respondent. The Tribunal, by its order dated

18.7.2003, allowed the said O.As. It was held by the Tribunal that the 13

petitioners, who were initially appointed under Rule 10(a)(i)(1) in between

1981 and 1982 and had all the necessary qualification and whose services

were later on regularized on 12.12.1988, had to be placed over and above

the corresponding P.G. Assistants who were appointed earlier but without

necessary qualification and had acquired the qualification later and whose

services were regularized after the acquisition of qualification (in short,

group two P.G. Assistants here). The Tribunal also held that the ranking

given by the TNPSC and the placement of candidates in the seniority list

was not relevant to the issues, as the TNPSC candidates came in service

later on, as compared to the P.G. Assistants appointed under Rule

10(a)(i)(1). The Tribunal, therefore, directed the State Government and

the Director of School Education to revise the Panel for the post of Head

Masters from S.No. 143 onwards in such a way that the P.G. Assistants

appointed under Rule 10(a)(i)(1) are placed in the appropriate place in

accordance with their seniority, meaning, their date of appointment.

18. This judgment of the Tribunal was challenged by filing various Writ

Petitions in the High Court, those Writ Petitions being W.P. Nos. 21163,

21164, 21347, 21640, 21641, 19075 to 29077 of 2003 and 9719 of 2004.

Later on, the last mentioned Writ Petition was separated. The High Court

invited the counter affidavits from the respondents, more particularly, from

the State Government and its Authorities. By the impugned judgment, the

Writ Petitions filed by the TNPSC selected P.G. Assistants were allowed.

While disposing of the Writ Petitions and allowing them, the High Court has 14

given the directions which are contained in para 2 of this judgment. It is

this judgment, which has fallen for our consideration in the present case.

19. As has already been stated, the contention of the appellants is that

they had all the qualifications for holding the posts of Post Graduate

Assistants when they were appointed under Rule 10(a)(i)(1) and their

service was also without any breaks and they were ultimately regularized

in the year 1988. Therefore, though the act of the State Government in

regularizing them was correct, the provision that their seniority will be

below those who were selected by TNPSC in 1986, is not correct. Ms.

Nalini Chidambaram, Learned Senior Counsel appearing on behalf of the

appellants, alongwith Ms. Indu Malhotra and Mr. M.N. Krishnamani,

Learned Senior Counsel, firstly urged that when a candidate is appointed

under Rule 10(a)(i)(1) on ad-hoc basis and is subsequently regularized,

then ordinarily, his seniority has to be reckoned from the date when he was

first appointed, provided he has all the necessary qualifications for the job.

There can be no dispute with this proposition generally, however, it must

be borne in mind that though the appellants herein had the necessary

qualifications at the time of their initial appointment under Rule 10(a)(i)(1)

and though they were subsequently regularized also, the regularization

was conditional regularization, which was done way back in 1988. The

condition regarding the seniority was explicit in the said regularization,

which is clear from the mere reading of the G.O.Ms. No. 1813. It cannot

be forgotten that this regularization was all along accepted by the present 15

appellants. Once they chose to accept the regularization which was

conditional, then it would have to be borne in mind that they have accepted

the conditions also. It cannot be countenanced that only the favourable

part of the G.O.Ms. was accepted by them and the unfavourable part was

rejected. If they had to do it, they had to challenge the G.O.Ms.

immediately. They did not do it, instead they waited almost for six years,

when for the first time, they came out with an Original Application vide O.A.

No. 3617 of 1994. Again, when the matters were decided in the Writ

Petition Nos. 2911 and 3041 of 1998 on 24.3.1998 and the seniority

prayed for on the basis of initial appointment was refused to them, they

kept quiet, only to raise the same demand again in 2003 when the Panel

was prepared. The Panel is absolutely correct in the light of G.O.Ms. No.

1813. The appellants merely raised a lame plea that they did not

challenge the G.O.Ms. No. 1813, as they were expecting themselves to be

placed over and above the TNPSC selected candidates. Such could never

be the position in the wake of plain language of G.O.Ms. No. 1813. This is

one of the main reasons why the claim of the appellants has to be rejected.

The aspect of conditional regularization, therefore, had to be kept in mind.

20. The further sinister silence for about six years and thereafter, till

2003 inspite of adverse judgments, also goes against the appellants. The

Learned Senior Counsel for the appellants very heavily relied on the

change of the Government's stand. It was pointed out that the Department

had all along given the interpretation that the second condition in G.O.Ms. 16

No. 1813 applied only when the candidates appointed under Rule

10(a)(i)(1) and the TNPSC selected candidates came in the same year.

That may be so. However, the parties cannot be allowed to act on the

impressions, when the original text of the G.O.Ms. says otherwise. There

was nothing in the language of the G.O.Ms. No. 1813 that the second

condition would apply when the appointments of P.G. Assistants under

Rule 10(a)(i)(1) and the TNPSC selected P.G. Assistants would be in the

same year. That was wholly wrong. Even clarification by the Director of

School Education had given a wrong position. That error could be

perpetuated. In our opinion, it was rightly corrected later on when the

stand was taken that all these P.G. Assistants would be below the TNPSC

selected P.G. Assistants.

21. This stand is correct, as though the appellants were fully qualified

P.G. Assistants at the time of their initial appointment after 1981, the fact of

the matter is that they never faced any competition. They studiously and

conveniently desisted from taking the examination, though it was made

very clear to them that they would have to take the examination. It was

feebly argued before us by the Learned Senior Counsel for the appellants

that they had no opportunity for doing so, as the last date for the

examination had already passed. We do not understand as to what the

appellants were waiting for. There was a general advertisement issued

and there was no question of presuming that these P.G. Assistants would

in any manner be exempted from taking the examination of TNPSC without 17

whose selection, they could never enter the Government service. Under

the circumstances, it was for these P.G. Assistants to appear for the

examination and prove themselves. They had come in ad-hoc manner

and, therefore, they could not expect regularization straightaway. Under

these circumstances, they remained on the roll in their ad-hoc capacity

and, therefore, were not the members of the service. Rule 23(a)(i) of the

Tamil Nadu State and Subordinate Services Rules provides as under:-

"23(a)(i) Date of commencement of probation of persons first appointed temporarily:- If a person appointed temporarily either under sub- rule (a) or sub-rule (b) of the rule 10 to fill a vacancy in any service, class or category otherwise than in accordance with the rules governing appointment thereto, such vacancy being a vacancy which may be filled by direct recruitment, is subsequently appointed to the service, class or category in accordance with the rules, he shall commence his probation if any, in such category either from the date of his first temporary appointment or from such subsequent date, as the appointing authority may determine. If the post is one to which appointment may be made by transfer, and the person who had been appointed thereto either under General Rule 10(a) or 10(d) is subsequently recruited thereto by transfer and included in the list of approved candidates, the appointing authority may in his discretion, allow such person to commence his probation if any, from the date of his first temporary appointment or from such subsequent date, as the appointing authority may determine:

Provided that the date so determined by the appointing authority to commence probation in this clause, shall not be earlier than the date of commencement of probation of the junior most person already in service.

18

Provided further that on the date so determined by the appointing authority to commence probation in this clause, the person shall not only possess all the qualifications prescribed for appointment to the service, but also be fit for inclusion in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or the appointing authority, as the case may be.

One look at the first proviso shows that in case of an ad-hoc

employee, he cannot claim any seniority to the junior most person already

in service. The words "junior most person already in service" in the proviso

are extremely important. All the TNPSC P.G. Assistants were already in

service, when the question of regularization of the P.G. Assistants

appointed under Rule 10(a)(i)(1) came for consideration. Till then, the

Government had steadfastly refused the regularization and ultimately,

chose to regularize them only in 1988. Therefore, the stance of the

Government in providing the second condition was absolutely correct and

by mere subsequent regularization, that too without taking any examination

under TNPSC or undergoing any recruitment process and facing general

competition from the other candidates, the ad-hoc P.G. Assistants could

not be held seniors to those, who were already in service. If, therefore,

these ad-hoc P.G. Assistants claim a seniority over and above the TNPSC

selected candidates, who were admittedly already in service, it would be

ridiculous in the wake of a very clear language of G.O.Ms. No. 1813. It will

be further ridiculous as the said condition was accepted by all the P.G.

Assistants appointed under Rule 10(a)(i)(1) without a demur and as if this 19

is not sufficient, they did not challenge it at least for six long years and

thereafter, upto 2003. All this goes totally against the claim of the

appellants. We also cannot ignore the fact that some of the appellants did

appear for the TNPSC examinations and failed. It will now be

preposterous if those failed candidates who were later on regularized, are

placed over and above the successful candidates in TNPSC examination

and selection process which followed the said examination. This is

another reason why the claim of the appellants must fail.

22. Mr. C. Selvaraju, Learned Senior Counsel, appearing on behalf of

the contesting respondent, pointed out one more pertinent fact before us.

According to him, before the promotion Panel was prepared in 2003, there

was already a seniority list existing, wherein the first group of P.G.

Assistants were placed on top and below them, the second group of P.G.

Assistants selected by TNPSC were placed and it is only after them that

the appellant P.G. Assistants, who were appointed under Rule 10(a)(i)(1)

were shown. He pointed out that the said seniority list was never

challenged by the present appellants and they only claimed the benefit of

seniority, when the Panel for promotions was prepared for the first time in

2003. Thus, right from 1988, when they were regularized, they accepted

the second condition, obtained the regularization and thereafter, for the

first time, chose to challenge the seniority list indirectly in 1994 and

thereafter, directly in 2003. This, they could not do. The submission is

undoubtedly, sound.

20

23. We cannot, at this juncture, ignore the fact that the appellants in

their first attempt before the Tribunal, challenged only the first condition

regarding the appointment and chose not to challenge the second

condition. At that juncture, they had the full opportunity of challenging the

second condition also. They conveniently interpreted the G.O.Ms. No.

1813 in their favour, and in our opinion, wrongly, and ignored to challenge

the second condition. This is not permissible. They could not thereafter

turn back and challenge the second condition in the second or third round

of litigation. It is for this reason also, that the claim of the appellants must

fail.

24. Speaking on the interpretation of G.O.Ms. No. 1813, the Learned

Senior Counsel appearing on behalf of the appellants, led a great stress on

the language of second condition, more particularly, on the last 3 words,

they being "for the year". For the convenience sake, we will quote that

condition:-

"They will be placed below the candidates selected by the TN Public Service Commission while ranking their seniority, i.e., those candidates selected by the TNPSC for the year."

Relying on this, the Learned Senior Counsel contended that,

therefore, the appellants were quite justified in interpreting that the

seniority rule will apply only and only if the candidates appointed under

Rule 10(a)(i)(1) and the TNPSC selected candidates were appointed in the

same year. The Learned Senior Counsel took the argument further and 21

submitted that since the appointment of the TNPSC selected candidates

came only in the year 1986, only those candidates under Rule 10(a)(i)(1)

would be rendered junior who were appointed after 1986, but those, who

were appointed earlier, would have to be held to be senior to the TNPSC

selected candidates. We are not impressed by this, as we have already

pointed out that under Rule 23(a) (i) of the Tamil Nadu State and

Subordinate Services Rules, the persons who were in service, could not be

rendered junior by the regularization of the ad-hoc candidates at later

stage. This G.O.Ms. No. 1813, therefore, has to be interpreted in the light

of Rule 23(a)(i), which was a General Rule and applicable to all the

appointments. After all, when a clear reference was made to Rule

10(a)(i)(1), which was from the General Rules, there was no reason to

make any exception and not to read Rule 23(a)(i) of the General Rules.

For this reason, the argument must fail.

25. Mr. Senthil Jagadeesan, Learned Counsel appearing on behalf of

the respondents urged that the act of regularization of these P.G.

Assistants under Rule 10(a)(i)(1) itself was contradictory to the Service

Rules, inasmuch as it was in breach of Rule 2(c), 4, 5 and 11 of the Tamil

Nadu Higher Secondary Education Service Special Rules and that was

subject to challenge in Writ Petition No. 9719 of 2005. Since it is already a

pending matter before the High Court and since that Writ Petition is

already segregated from the group of Writ Petitions, we do not wish to offer

any comment on that issue. This is more particularly so, because as the 22

things stand today and at least insofar as the present controversy is

concerned, it relates only to the fact of seniority. The said contention is not

apposite to the present case.

26. Mr. C. Selvaraju, Learned Senior Counsel for the contesting

respondent invited our attention to the decision in case of State of Tamil

Nadu and Anr. Vs. E. Paripoornam & Ors. reported in 1992 Supp. (1)

SCC 420, which was the case pertaining to the seniority of the teachers,

who were appointed temporarily. Those were also the teachers appointed

under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services

Rules. Subsequently, they were regularized for the limited purpose of

increments. The order of regularization itself denied their previous service

for the purpose of determining the seniority. This Court came to the

conclusion that while determining the seniority, the Court could not count

that service for the purpose of seniority. In para 14, this Court observed:-

"14. Apart from that, Rule 10(a)(i)(1) provide for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments are made otherwise than in accordance with the procedure prescribed under the Rules. In the instant case, the respondents were appointed temporarily and otherwise than in accordance with the Rules. They were later selected along with others for direct recruitment by the Public Service Commission. they were not entitled to count their temporary service for seniority. In A.P.M. Mayankutty Vs. Secretary, Public Service Department, this Court observed that the services rendered by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of 23

seniority, as such appointment is a matter of stop-gap, emergency or fortuitous arrangement."

Earlier, in para 13, referring to Rule 35(a), according to which the

seniority is fixed, the Court proceeded to observe:-

13. ..............The service rendered in the temporary post is available either for earning increments or for commencement of probation. That would be clear from Rule 23(a). Consistent with the Rule 23(a), the Government in the order of regularization has directed that the incumbents are eligible for increments from the date of their regularization, as they are fully qualified to hold the post on that date. The increments already sanctioned to them during their service as temporary Junior Professors prior to regular appointment have been ratified by the said order. The High Court was plainly in error in ignoring the statutory rules and the terms and conditions of the order of regularization of services." (Emphasis supplied)

The emphasized portion, undoubtedly, presents out a clear position

that the language of the G.O.Ms., offering regularization, is of utmost

importance. Therefore, it is clear that that second condition will have to

stay as it is.

27. In a recent decision in K. Madalaimuthu and Anr. Vs. State of T.N.

& Ors. reported in 2006(6) SCC 558, this Court again reiterated the

principles of fixation of seniority in case of the persons, who were

temporarily appointed under Rule 10(a)(i)(1). This Court relied on the

decision in V. Srinivasa Reddy Vs. Govt. of A.P. reported in 1995 Supp. (1)

SCC 572, as also, State of T.N. Vs. E. Paripoornam reported in 1992

Supp. (1) SCC 420. Both these cases dealt with Rule 10(a)(i)(1). 24 Distinguishingly, relying upon the case law relied by the respondents, i.e.,

1999 (8) SCC 287 L. Chandrakishore Singh Vs. State of Manipur, this

Court came to the conclusion that the High Court had erred in holding that

the temporary appointees under Rule 10(a)(i)(1) were entitled to the

seniority right from the date of their first appointment and not from their

regularization. Though the controversy involved is slightly different, the general

principles would undoubtedly apply. We have seen the ruling cited on behalf of

the appellants in 2005 (7) SCC 627 Hindustan Petroleum Corn. Ltd. Vs.

Darius Shapur Chennai & Ors. We do not find this case to be relevant. It only

deals with the general principle that the statutory authority cannot be permitted to

support its order relying on or on the basis of statements made in the affidavit de-

hors the order or de-hors the record. We have already indicated that such is not

the state of affairs in the present case. The second decision relied upon by the

appellants is I.J. Divakar & Ors. Vs. Government of Andhra Pradesh and Anr.

reported in 1982(3) SCC 341, which suggests that the Government has the

power to cancel the recruitment even after TNPSC examination and regularize

the candidates appointed under Rule 10(a)(i)(1) for compelling necessity. That

may be so. However, the factual situation is entirely different. Such thing has

not happened nor is it anybody's demand.

28. Thus, the legal position is clear. In our opinion, the High Court was absolutely correct in allowing the Writ Petitions, as it did. We do not find any reason to interfere with the well reasoned judgment of the High Court. All the appeals fail and are dismissed. No order as to the costs.

......................................J. (Tarun Chatterjee)

......................................J. (V.S. Sirpurkar) 25

New Delhi;

May 15,2009