R. Gunasekaran vs The Special Commissioner and Commissioner of Revenue Administration

T. Raja, J.—The petitioner was initially appointed as a Typist by the Tamil Nadu Public Service Commission on 09.11.94 and he was

posted in Villupuram District Revenue Unit. Subsequently, his services in the post of Typist were also regularised with effect from 09.11.94.

Thereafter, in the year 1995, the petitioner submitted his representation for transfer to the office of the Principal Commissioner and Commissioner

of Revenue Administration, Chennai. Accepting the request of the petitioner for transfer, the Joint Commissioner of the Revenue Administration,

Chennai, issued an order in Na.Ka.No.Y2/18326/95, dated 28.08.1995, appointing the petitioner as a Typist in the Revenue Administration

Department on Services Lent Basis, with a condition that the petitioner is not entitled for travelling allowance for his transfer, as the transfer was

made at his own request and also mentioned that the petitioner would loose his seniority.

In the meanwhile, in the year 1996, the Assistant Commissioner (Personnel) Revenue Administration Department, issued a memo in letter No.

Y2/18326/95, dated 11.12.1996, informing that the TNPSC has clarified that the transfer made from one unit to another unit without getting its

consent, would only be temporary and further, the seniority of such employee without consent of the TNPSC, would be reckoned with reference

to the date of consent given by the Commission. In view of that, the Assistant Commissioner called upon the petitioner to indicate whether he was

willing to continue in the Revenue Administration Department, subject to the said conditions. The petitioner also accepting the above said

conditions, given his willingness on 16.10.96. Thereafter, the District Collector, Villupuram, also issued an order dated 18.07.97, declaring the

completion of probation of the petitioner on 24.11.96. Since he was transferred from the Villupuram District Revenue Unit to the office of the

Principal Commissioner and Commissioner of Revenue Administration, Chennai, on 28.08.1995, his probation was declared with effect from

24.11.1996. Only thereafter, the TNPSC gave its consent on 24.03.98 for the permanent absorption of the petitioner in the office of the Principal

Commissioner and Commissioner of Revenue Administration. Subsequently, the Additional Commissioner of Revenue Administration issued

combined seniority list of Junior Assistants/Typists. But, unfortunately, the name of the petitioner was not shown in the said seniority list. Therefore,

the petitioner made his representation.

On considering the representation of the petitioner, the Special Commissioner and Commissioner of Revenue Administration sent their reply on

05.11.98, stating that the petitioner service had not been regularised in the Department of Revenue Administration and that he was working on

Services Lent Basis and thus, he had no locus standi to question the seniority list. Thereupon, the Joint Commissioner also fixed the seniority of the

petitioner at the bottom of the approved probationers in the category of Typists as on 24.03.98. The said date was the date on which the TNPSC

gave its concurrence for the permanent absorption of the petitioner in the Revenue Administration Unit. In view of the belated consent, the

petitioner incurred loss of seniority for about 2 1/2 years. Secondly, the department did not take immediate consent from the petitioner to become

permanent employee, though the consent was sought from the petitioner from 11.12.1996. The petitioner immediately gave his consent on

16.12.1996, but since the TNPSC has given his consent belatedly on 24.03.98, direction should be given to the respondent to accept the date of

joining in the department of revenue administration, as the relevant date for the purpose of fixing his seniority.

In his further submission, learned Counsel appearing for the petitioner submitted that in several other cases, the persons came from one

department to another department, gave their consent, accepting the date of consent to be given by the TNPSC. The TNPSC in all other cases,

has considered the date of joining of subsequent department as the relevant date. But only in the case of the petitioner, the TNPSC has given

belated consent without taking into account the date of joining the petitioner in the subsequent department. On that basis, it was further contended

that the petitioner was discriminated, hence, sought for grant of prayer as mentioned in the OA.

Per contra, learned Counsel appearing for the respondents submits that the case of the petitioner cannot be considered for three reasons. Firstly,

the petitioner has challenged the belated consent given by the TNPSC in the present writ petition. Therefore, the petitioner cannot be allowed to

say anything against the belated consent given by the TNPSC, which was given on 24.03.98. Secondly, the TNPSC also was not impleaded as

necessary party, while challenging the belated consent given by the TNPSC. Thirdly, the petitioner himself came on request transfer, accepting the

condition that he would be accepting the date of consent given by the TNPSC and once the petitioner had given his willingness to accept the

consent given by the TNPSC, the petitioner cannot be allowed to challenge the same. On that basis, prayed for dismissal of the present writ

petition.

Heard the learned Counsel appearing on either side and perused the materials available on record.

The only issue raised in the writ petition is whether the consent of the Tamil Nadu Public Service Commission has to be obtained for transfer of

an employee from one unit to another unit in the same department. The petitioner was appointed as a Typist in Villupuram District Revenue Unit on

09.11.1994 through proper selection made by the TNPSC. After his services were regularised with effect from 09.11.1994, in the post of typist,

in the year 1995, he made representation for transfer to the Office of Principal Commissioner and Commissioner of Revenue Administration,

Chennai. At the time of submitting his application, he was informed that the petitioner would loose his seniority and also he is not entitled for

travelling allowance for his transfer. Accepting the said conditions, the petitioner submitted his transfer application and subsequently, he was also

transferred to the Office of Principal Commissioner and Commissioner of Revenue Administration, Chennai. The petitioner also has given his

consent on 06.12.1996 by way of letter given to the respondent on 11.12.1996. Later on, the TNPSC gave its consent on 24.03.1998. Since

there has been a delay of 2\years for giving consent by the TNPSC, the grievance of the petitioner as mentioned earlier is that the date of joining in

the office of the Principal Commissioner and Commissioner of Revenue Administration, Chennai should be relevant for the purpose of fixing of the

seniority in the place where he was subsequently transferred. The said contention was sought to be fortified.

The learned Counsel for the petitioner refers to the Rule 20, Clause 3, which deals with grant of consent by the TNPSC and provides that if a

permanent employee is transferred from one department unit to an office of another department unit, consent of the Commission shall be made. On

that basis, the department also has given its consent. At the time of entertaining the petitioner''s requirement for his transfer from Villupuram unit to

Chennai unit, the department has clarified to the petitioner that the seniority would be counted only from the date of consent to be given by the

TNPSC, which was also accepted by the petitioner. Subsequently, the TNPSC has also given its consent on 24.03.1998. In that view of that

matter, the submission made by the learned Counsel for the petitioner that no consent of the TNPSC was required, since the petitioner would be

loosing his seniority in view of the delayed consent given by the Commission, cannot be accepted in view of Clause 3 of Rule 20 of the Tamil Nadu

Ministerial Service Rules, which is extracted as under:

20.Transfers of probationer and approved probationers:

(a) Notwithstanding anything contained in Rules 12 to 16 and 19, a probationer or an approved probationer may, in special cases and on grounds

of administrative necessity, be transferred with the mutual consent of the appointing authorities and the authorities nominated by the head of the

department for the purpose of allotment of candidates where there is more than one appointing authority, in the departmental unit concerned.

(i) from one office in a departmental unit to another office in the same departmental unit;

(ii) temporarily from an office in one departmental unit to an office in another departmental unit if both the offices belong to a department in which

full members are ordinarily subject to transfers from one departmental unit to another; and

(iii) permanently from an office in one departmental unit to an office in another departmental unit:

Provided further that the consent of the Commission may be deemed to have been accorded in the cases of transfer of Probationers and

Approved Probationers from one unit to another unit, necessitated consequent on the formation of new district.

A mere reading of Clause 1-3 of Rule 20, does not favour the argument of the learned Counsel for the petitioner, to say that no consent of

TNPSC is required, for the simple reason that the entire Rule of Clause A1-3 including the proviso, does not provide that no consent is required, if

a person is transferred from unit to another unit in the same department.

In that view of the matter, this Court does not agree with the contentions made by the petitioner. Further, this Court is also not able to answer

the prayer of the petitioner favourably, since the TNPSC has not been impleaded as one of the necessary parties. Therefore, behind the back of

TNPSC, this Court cannot answer the issue against the TNPSC and in favour of the petitioner. However, it is open to the petitioner to make

proper application to the Commission for appropriate relief in accordance with law, if so advised.

With the above observations, the writ petition is dismissed. No costs.