P. Arumugam and Others vs The Special Commissioner and Director of Survey and Settlement and Others

D. Murugesan, J.—The Writ Appeals raise the common issue over re-fixation of Seniority of the appellants, who are Surveyor-cum-

Draftsman.

The brief facts of the case of the respective parties which are relatively necessary for effective consideration of the issue involved are as follows:

The appellants and many others numbering 777 were called for an interview for the post of Surveyor-cum-Draughtsman. They were all sponsored

by their respective District Employment Exchanges. After interview, the appellants and others numbering in all 777 were taken as Surveyor-cum-

Draughtsman by the duly constituted three member selection committee headed by the District Revenue Officer on consolidated pay. After initial

training for a period of 3 months (i.e.) from 01.12.1982 to 28.02.1983. The respondents were appointed as Surveyor-cum-Draftsman on

23.03.2003. The appellants were also appointed on 23.03.1983 and they continued to be in service as Surveyor-cum-Draughtsman. Initially, the

seniority list of Surveyor-cum-Draughtsman was drawn on 05.11.1984 consisting of 776 persons belonging to different Districts. That seniority list

was on the basis of the ranking on merits given by the Selection Committee. The appellants were senior to the respondents 4 to 14 and they were

already promoted to the higher post based on the above seniority list dated 05.11.1984 and in fact, several others were already promoted to two-

three higher level posts.

In the mean time, one Rajangam and 3 others from Cuddalore filed O.A. No. 199 of 1990 challenging G.O.Ms. No. 910 C.T. & RE dated

10.08.1983 and the Tribunal by order dated 09.09.1991, had directed the authorities concerned that the appointment on temporary basis in the

time scale of pay in terms of the said Government Order may be made strictly in accordance with the seniority among the personnel on

consolidated pay on the basis of the date of appointment. The Assistant Director, after lapse of nearly 14 years, having misread the said order,

directed for revision of seniority on 15.10.1998. Challenging the revision of seniority, the appellants filed O.A.8874 of 1998 along with others.

Later on, the 1st respondent sent a letter dated 26.12.1998, accepting the claim of the appellants to prepare the seniority list on the basis of the

date of selection. Accordingly, the earlier seniority list dated 05.11.1984 was restored by order dated 25.03.1999 by the third respondent and the

appellants were not disturbed. The objections from the aggrieved persons were rejected by the third respondent. Hence, the revision of seniority

dated 05.11.1984 has become final. Thereafter, without any basis, once again the first respondent directed the third respondent to revise the

seniority on the basis of date of appointment by the proceedings dated 28.11.2005. The appellants along with others submitted their objections

dated 30.12.2005 through the third respondent. Meanwhile, V.G.Arumugam and 3 others filed W.P. No. 10179 to 10182 of 2006 and this Court

by order dated 12.04.2006 directed that any proceeding initiated pursuant to the impugned order thereunder shall be subject to the final orders in

those writ miscellaneous petitions which was communicated to the respondents. In order to circumvent the order of the Court, the third respondent

published the revised seniority list ante-dating the same, pending objections, without any notice to the appellants. Hence, the Writ Petitions mainly

challenging the proceedings in Na.Ka. No. A10/16490/2004 dated 10.04.2006 passed by the third respondent.

The learned single Judge by the impugned order held that a direction came to be issued by order dated 10.04.1996 in O.A. No. 1926 of 1996

which was preferred by the four persons including the respondents 11 and 12, in tune with the earlier orders of the Tribunal, dated 29.09.1992

made in O.A. No. 1330 and 2434 of 1990 and such orders became final and conclusive and ultimately a list drawn on 15.10.1998 has been

confirmed in the proceedings dated 28.11.2005 and reached the finality, the appellants cannot say on their part that the proceedings should be

revised on the list , dated 25.03.1999. The learned single Judge had ultimately dismissed the writ petitions finding no scope to interfere with the

impugned proceedings.

We have heard Mr. N.G.R.Prasad, learned Counsel appearing for the appellant and Mr. R.Thirugnanam, learned Special Government Pleader

for respondents 1 to 3 and Mr. G.Jeremiah, learned Counsel appearing for the respondents 6 and 14.

Mr. N.G.R.Prasad, learned Counsel appearing for the appellants would submit that originally the seniority list was drawn on 05.11.1984 and

the appellants were placed above the respondents and after several disputes decided by the tribunal, the seniority list was finalised on 15.10.1998

and after considering the objections, the list was finally determined on 25.03.1999 pursuant to the order dated 28.12.1998 passed by the first

respondent. The said order was put in issue in appeal by the respondents 4, 5, 6, 11 to 14 and the appeal was rejected by order dated

25.03.1999. The learned single Judge though made a mention in his order, he did not consider the vital aspect. In Bimlesh Tanwar Vs. State of

Haryana and Others, , the Apex Court laid down a proposition that a settled seniority position should not be unsettled that too after 22 years

which was not considered by the learned single Judge.

He would further submit that on challenging the impugned order dated 28.11.2005 in Na.Ka. No. 21357/2005(Ni.Aa) of the first respondent,

this Court by order dated 03.01.2008 in W.P. Nos. 10813 to 10818 of 2006 and W.P. No. 10179 of 2006 quashed the same and the same is

binding. Further, the appellants were selected by a duly constituted Selection Committee, their seniority were fixed by rightly on the basis of rank in

the selection list and as such the date of appointment is irrelevant and abrupt revision of seniority is in contravention of the Rule 35(a) of Tamil

Nadu State and Subordinate Service Rules. In support of his contention, he would place reliance upon the judgement reported in The Secretary to

Govt. Of Tamil Nadu, Transport Department, General, Madras 5 and Anr. v. K.Sriramachandran 1987 WLR 222 wherein it has been held that

the Government is bound to accept the ranking obtained ranking drawn by the Tamil Nadu Public Service Commission or other appointing

authority.

Further, in Suresh Chandra Jha Vs. State of Bihar and Others, , the Apex Court held that in the absence of any rule in operation, merit list, not

the fortuitous circumstance of date of joining, should decide the respective seniority.

Mr. G.Jeremiah, learned Counsel appearing for the respondents 6 and 14 would on the other hand contend that the fresh seniority list came to

be drawn on the basis of the date of joining of the candidates after completion of training following the order of the Tribunal made in O.A. Nos.

1330 and 2434 of 1990 dated 29.09.1992 and even thereafter, the tribunal in the order dated 10.04.1996 made in O.A. No. 1926 of 1996

followed its earlier order dated 29.09.1992 made in W.A. No. 1330 and 2434 of 1990. The above said orders of the Tribunal reached its finality

and revised list was also drawn up accordingly and the learned single Judge had rightly dismissed the writ petitions finding no merits.

The writ appeals raises a common issue, as to whether the seniority in respect of Surveyor-cum-Draughtsman should be fixed on the basis of

rank list of approved candidates drawn up by the Selection Committee or it shall be reckoned from the date of the appointment.

The rival contentions regarding the fixation of seniority position are on the basis of various orders of the Tribunal. It is the contention of the writ

appellants that in the seniority list drawn on the basis of their rank in the selection list was published on 05.11.1984 and the appellants were senior

to the respondents 4 to 14. However, the Tribunal in its order dated 09.09.1991 made in O.A. No. 190 of 1990, held, that the seniority should be

counted from the date of appointment. As the order of the Tribunal was not implemented, a representation was made and the Tribunal by order

dated 10.04.1996 made in O.A. No. 1926 of 1996 directed the respondent Department to consider the representation dated 07.02.1996. As the

said order was not obeyed, a contempt application in Cont. Appln. No. 142 of 1997 was filed, wherein on 10.08.1998, a direction was given to

the respondent Department to finalise the seniority list. Thereafter, it appears that the seniority list was revised on 15.10.1998, whereby the

appellants were shown as juniors to the respondents 1 to 14. questioning the said order, the appellants preferred an application in O.A. No. 8874

of 1998 before the Tribunal and the Tribunal in its order dated 26.12.1998 conceded the claim of the appellants to restore the seniority by the first

respondent and consequential order for restoration of seniority was also made on 25.03.1999. This revision of seniority was again questioned in

O.A. No. 9141 of 2000 before the Tribunal and thereafter, the first respondent by his subsequent order dated 28.11.2005 directed the third

respondent to revise the seniority from the date of appointment.

The said order dated 28.11.2005 was questioned before this Court in W.P. No. 10179 to 10188 of 2006, which were ultimately allowed by

order dated 03.01.2008 and the impugned order therein, dated 28.11.2005 for revision of seniority list was quashed. From the above facts, it is

clear that though there were various orders of the tribunal both in favour of the appellants and the respondents ultimately, this Court by Common

order dated 03.01.2008 made in W.P. Nos. 10813 to 10818 of 2006 quashed the order dated 28.11.2005 passed by the Commissioner and

Director of Survey and Settlement, Chepauk, Chenani-5 revising the first seniority list dated 05.11.1984 and the said order has become final.

Our attention is not drawn to any of the Rules contemplating that while drawing the seniority list, the date of appointment alone should be taken

into consideration. In the absence of such Rule and in the wake of Rule 35(a) of The Tamil Nadu State and Subordinate Services Rules, which are

made applicable to the Surveyor- cum- Draughtsman would alone apply. According to the said Rule, the seniority of a person in a service, class or

category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of

approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority, as the case may be, subject to the

rule of reservation where it applies. The appointments in question were made from among the candidates selected by the appointing authority.

Hence, in terms of the said rule and especially, in the absence of any other rule contrary to the above, the fixation of seniority on the basis of the

rank determined by the appointing authority is alone relevant.

In Suresh Chandra Jha Vs. State of Bihar and Others, , the Apex Court has held, that in the absence of any rule in operation, obviously the

ranking in the merit list shall be determining factor to decide the respective seniority.

In The Secretary to Government of Tamil Nadu, Transport Department, General, Madras and Anr. v. K.Sriramachandran 1987 WLR 222,

the Division Bench of this Court held, that the seniority of a person to be determined by the rank obtained by him in the List of approved

candidates drawn by the Tamil Nadu Public Service Commission or other appointing authority and the Government is bound to accept the ranking

by the Tamil Nadu Public Service Commission or other authority and cannot be interfered with the same.

In that view of the matter, the revised list of seniority dated 28.11.2005 is unsustainable. We may also point out that the very same seniority list

was questioned in a batch of writ petitions by some of the affected persons, those from Vellore District came to be allowed and the seniority list

was quashed and this fact was not brought to the notice of the learned single Judge at the time of hearing of the writ petitions under appeal and

therefore, the impugned common order in the writ petitions came to be passed on the basis of the various orders of the tribunal. Hence, in our

considered view, all the writ appeals should succeed. Accordingly, the Writ Appeals Nos. 607 to 614 of 2008 are allowed and the common order

dated 14.03.2008 made in W.P. Nos. 11481 to 11488 of 2006 are set aside. As the impugned order dated 28.11.2005 made under reference in

Na.Ka. No. 2/21357/2005 (Ni.Na.) by the first respondent directing the revision of seniority, has already been set aside by common order in

W.P. Nos. 10813 to 10818 of 2006 dated 03.01.2008, we are not passing any orders on the same, but however, the consequential order of

revision of seniority passed by the third respondent in Na.Ka. No. A10/16490/04 dated 10.04.2006 is quashed. No costs. Consequently,

connected miscellaneous petitions are closed.