S. Saroja and Others vs State of Tamil Nadu and Others

W.P. Nos. 30871 and 30881 of 2012 have been filed seeking issue of a Writ of Mandamus directing the first and second respondents to

consider and regularise the services of the petitioners in the Tamil Nadu Judicial Subordinate Service by framing a scheme on the lines approved by

this Hon''ble Court in its judgment dated 10.6.2009 in W.P. No. 9710 of 2009 and grant all other attendant benefits thereto or in the alternative to

direct the respondents to consider and absorb the petitioners in the posts of Examiners, Readers and Senior Bailiff or any other suitable post and

till then not to terminate the services of the petitioners. The petitioners in the aforesaid writ petitions were temporary appointed as Junior

Assistant/Steno-Typist Gr. III/Typist in various Courts in the Districts of Salem and Tiruvannamalai respectively on different dates after their names

were sponsored by the concerned Employment Exchange, and they are working in the respective posts since 2011. It is stated by the petitioners

that advertisement has been issued by the Tamil Nadu Public Service Commission on 27.4.2012 inviting applications for direct recruitment to the

posts of Junior Assistant, Typist, Steno-Typist Gr. III in the Tamil Nadu Judicial Ministerial Service. It is further stated that if the posts are filled up

by the candidates, who are going to be selected by the Tamil Nadu Public Service Commission, the petitioners will be ousted from service. It is

stated that the recruitment to the posts of Examiners, Readers and Senior Bailiff, which are lying vacant, are not through Commission and as such

the petitioners can be absorbed permanently in those posts. It is further stated by the petitioners that similar absorption has been done pursuant to

the direction given by this Court in W.P. No. 9710 of 2009. In this regard, the petitioners have made a representation on 25.10.2012 to the third

respondent.

The petitioners in W.P. No. 30126 of 2012 have filed the writ petition seeking issue of a Writ of Mandamus directing the first and second

respondents to regularise the services of the petitioners in the Tamil Nadu Judicial Ministerial Service with all attendant benefits. It is the case of the

petitioners that they were appointed as Typist in the Tamil Nadu Judicial Ministerial Service on different dates after their names were sponsored by

the District Employment Office. They have been selected pursuant to the test and interview conducted by the District Judge, Nilgiris and they are

working in the said post since 2009 in various Courts in the District of Nilgiris. It is stated by the petitioners that they have been working

continuously, though orders have been issued under Rule 10(a)(1) of the Tamil Nadu Subordinate Service Rules. It is stated by the petitioners that

they were ousted from service before completion of one year to avoid payment of increment and again they were appointed by way of a fresh

order. The petitioners have also annexed appointment letters along with the typed set of papers. The petitioners submit that though they were

appointed on a temporary basis in terms of Rule 10(a)(1), the petitioners had legitimate expectation that their services would be regularised in

course of time by the Government. It is stated by the petitioners that advertisement has been issued by the Tamil Nadu Public Service Commission

on 27.4.2012 inviting applications for direct recruitment to the posts of Junior Assistant, Typist, Steno-Typist Gr. III in the Tamil Nadu Judicial

Ministerial Service. It is stated by the petitioners that if the posts are filled up by the candidates, who are going to be selected by the Tamil Nadu

Public Service Commission, the petitioners will be ousted from service. The petitioners have also given a representation to the third respondent

requesting for regularisation with consequently benefits based on the order passed by this Court in W.P. No. 9710 of 2009.

We have heard the learned counsel appearing for the parties.

In all these writ petitions, learned counsel appearing for the petitioners in the respective writ petitions with one voice contended that the

petitioners, who were appointed as Junior Assistant/Steno-Typist Gr. III/Typist in various Courts in the Districts of Salem and Tiruvannamalai and

Nilgiris respectively on different dates, may be absorbed in other posts like Reader, Examiner, etc., which are lying vacant in the said Courts and

they need not be ousted from service, considering the fact that they were sponsored through District Employment Exchange and are in employment

for the past two years.

Admittedly, the appointment of the petitioners are purely on temporary basis under Rule 10(a)(i) of the Rules and the services of the petitioners

are liable to be terminated at any time without assigning any reason. The apprehension of the petitioners is that the if the posts are filled up by the

candidates, who are going to be selected by the Tamil Nadu Public Service Commission, the petitioners will be ousted from service and they will

stand to lose in spite of putting in service of more than two years. Learned counsel also contended that in view of the decision taken by the first

respondent to hold Special Qualifying Examination to the temporary staff, the services of the petitioners should be protected, until they are

considered for absorption or regularisation.

In aid of the contention, learned counsel relied on the decision of this Court rendered in W.P. Nos. 9710 of 2009 and 10189 of 2009. The said

writ petitions were filed by the Judicial Temporary Employees Welfare Association and certain other individuals seeking issuance of a Writ of

Mandamus to direct the Government of Tamil Nadu and the Registrar General of the Madras High Court to regularise the services of the members

of the Association by framing a scheme and to absorb them in the posts of Examiner, Reader, Senior Bailiff, etc. The Division Bench of this Court

by order dated 10.6.2009 dispose of the writ petitions with certain directions.

At this juncture, it is relevant to point out that this Bench has earlier passed orders in W.P. No. 15191 of 2010 on 29.7.2010 rejecting the claim

of the petitioners which was more or less identical to that made in these writ petitions. The issue involved in the aforesaid writ petition was that the

petitioners were temporarily appointed as Junior Assistants in the Tamil Nadu Judicial Ministerial Service on different dates. A counter was filed by

the Service Commission stating that after accommodating the candidates selected by TNPSC, there are no vacancies. This Bench, after

considering the facts of the case and also the order passed in W.P. Nos. 9710 and 10189 of 2009 dated 10.6.2009, and W.P. No. 15191 of

2010, dismissed the writ petition holding that the petitioners were appointed on temporary basis under Rule 10(a)(i) of the Rules and such

appointment does not confer any right for future regular appointment, seniority, etc., and the appointment was liable to be terminated at any time

without assigning any reason. At this stage, we may quote the order dated 29.7.2010 in W.P. No. 15191 of 2010:--

The prayer in the writ petition is for issuance of a writ of certiorarified mandamus to quash the order passed by the third respondent dated

7.10.2009 and to direct the third respondent to appoint the petitioner in any one of the available vacant posts as that of Junior Assistant, Examiner,

Reader, Senior Bailiff etc. in Erode District in accordance with the petitioner''s inter se seniority among the persons ousted along with the petitioner

by order dated 24.7.2009 as per the observation of this Court in W.P. Nos. 9710 and 10189 of 2009, dated 10.6.2009.

The facts which are necessary for the disposal of the writ petition could be briefly stated as under:--

The petitioner registered his name with the District Employment Office at Erode on 28.12.1981 under the Ex-servicemen Category. As the

petitioner had served the Artillery of the Indian Army, the petitioner''s name was sponsored to the third respondent and he received a call letter to

attend the interview for being considered for appointment to the post of Junior Assistant in the office of the third respondent. Thereafter, the third

respondent by order dated 17.9.2007, appointed the petitioner as Temporary Junior Assistant in the Judicial Magistrate''s Court at Kangeyam.

The order of appointment contained four special conditions, of which, condition No. 3 would be relevant. For better appreciation, the said

condition is quoted hereinbelow:--

The appointment is made purely on temporary basis under Rule 10(a)(i) of Tamil Nadu State and Subordinate Service Rules without conferring

any right for future regular appointment, seniority, probation etc. Their temporary appointment will be terminated at any time without assigning any

reasons whatsoever.

Thus, it could be seen that the appointment of the petitioner was made purely on temporary basis under Rule 10(a)(i) of the Tamil Nadu State

and Subordinate Service Rules and that such appointment does not confer any right for future regular appointment. Based on such order of

appointment, the petitioner joined duty on 28.9.2007 and continued to be in employment till 31.7.2007 when he was ousted from service. Along

with the petitioner, other such temporary appointees were ousted on the ground that regular appointments had been made based on the selection

conducted by the Tamil Nadu Public Service Commission to the post of Junior Assistant.

It appears that the Judicial Temporary Employees'' Welfare Association and certain other individuals filed writ petitions before this Court being

W.P. Nos. 9710 and 10189 of 2009 praying for issuance of a writ of mandamus to direct the Government of Tamil Nadu and the Registrar

General, High Court, Madras to regularise the services of the members of the Association by framing a scheme and to absorb them in the posts of

Examiner, Reader, Senior Bailiff, etc. Those two writ petitions were heard by a Division Bench of this Court and the Division Bench by order,

dated 10.6.2009 disposed of the writ petitions issuing certain directions. The Division Bench while considering the case of temporary appointees

like the petitioner directed that if, after accommodating the candidates selected by the TNPSC, any vacancy is available, the candidates appointed

under Rule 10(a)(i) of the Rules can be retained keeping in view their respective inter se seniority and if they are found surplus, efforts could be

made by the concerned Principal District Judge to accommodate such persons in other posts such as Reader, Examiner and Copyist and even

after making such adjustment, if such temporary employees are found surplus, their names can be forwarded to other offices, such as, Revenue

Department and Excise Department etc. It was further observed that while holding special examination for candidates appointed on temporary

basis, the upper age limit prescribed by the Government could be relaxed. It is seen that the third respondent by proceedings dated 7.10.2009,

pursuant to the direction issued by the Division Bench, informed the petitioner and other candidates that there are no posts of Examiner, Reader

and Copyist available in the District to accommodate the ousted candidates in the District as directed and following the observations made by the

Division Bench in the order, dated 10.6.2009, the names of the temporary 10(a)(i) candidates of Junior Assistants and Typists, who were ousted

from service, were forwarded to the District Collector, Erode by the proceedings of the third respondent dated 24.8.2009. The petitioner and

other similarly placed persons were informed that the direction issued by the Division Bench has been complied with.

While that remained so, four candidates who were selected by the TNPSC challenged the proceedings of the Principal District Judge,

Coimbatore dated 1.7.2009 by filing W.P. No. 15362 of 2009 contending that the proceedings retaining the temporary appointees as Readers

and Examiners in different Courts of Coimbatore was not sustainable. A Division Bench of this Court by order dated 13.11.2009 allowed the writ

petition and set aside the order dated 1.7.2009 and directed the case to be reconsidered. With this factual background, the petitioner has filed the

present writ petition praying to quash the proceedings dated 7.10.2009.

The learned counsel for the petitioner would contend that the impugned memorandum dated 7.10.2009 is against the directions issued by the

Division Bench of this Court dated 10.6.2009 in W.P. Nos. 9710 and 10189 of 2009 and that there were several vacancies in the posts of Junior

Assistant, Examiner, Reader, etc. and the petitioner could have been appointed in the existing vacancy based on inter se seniority. In our view, the

prayer sought for in the writ petition itself is misconceived. In the impugned order, dated 7.10.2009, the third respondent has categorically stated

that the direction issued by the Division Bench in its order dated 10.6.2009 has been fully complied with and that at the time of ousting, no post of

Examiner, Reader and Copyist was available in the District to accommodate such ousted candidates in the District, as directed by the Division

Bench. Further, it was informed that the names of the candidates so ousted have been furnished to the District Collector, Erode on 24.8.2009.

In that view of the matter, the petitioner cannot have any grievance much less to challenge the order dated 7.10.2009, which itself is in

compliance with the order passed by the Division Bench. Further, it is to be noted that at the first instance when the petitioner was appointed as

Temporary Junior Assistant by proceedings dated 17.9.2007, it was clearly mentioned that the appointment is made purely on temporary basis

under Rule 10(a)(i) of the Rules and it shall not confer any right for future regular appointment, seniority etc. and the temporary appointment is

liable to be terminated at any time without assigning any reasons. The petitioner having consciously accepted the terms and conditions of

appointment, cannot now turndown and raise a plea, which in effect questions the very term of appointment on temporary basis. The Division

Bench while allowing W.P. No. 15362 of 2009 by order dated 13.11.2009, which was filed by the candidates selected by the TNPSC, which

related to persons selected by the District Court, Coimbatore, observed that no merit list was prepared for selection and appointment of

temporary Junior Assistant under Rule 10(a)(i) and there were no records placed to suggest that seniority was fixed by the office of the Principal

District Judge, Coimbatore or selection was made on communal rotation. Further, the Division Bench held that the office of the Principal District

Court, Coimbatore has not followed the guideline of seniority either on the basis of the date of registration of candidates with Employment

Exchange or on the basis of age, which is required to be followed in the normal course, if all appointments have been made on the same day and

even if persons have joined on the same date, the reappointment of the 10(a)(i) temporary Junior Assistants and exclusion of TNPSC selectees is

arbitrary and violative of Article 14 of the Constitution of India and against the order of the Division Bench passed in W.P. Nos. 9710 and 10189

of 2009.

For all the aforesaid reasons, we find no merit in the writ petition, which is accordingly dismissed. There will be no order as to costs.

The learned counsel appearing for the petitioner placed reliance on the decision of a Division Bench of this Court in M. Gnansekar and others

v. State of Tamilnadu, CDJ 2007 MHC 2815 and a Government Order in G.O. Ms. 61, Personnel and Administrative Reforms (P) Department,

dated 22.5.2009 and submitted that similar procedure of conducting a special competitive examination has to be adopted in the case of the

petitioners and their services should be regularised. In the case of M. Gnansekar and others, referred supra, the writ petitions were filed challenging

a Government Order in G.O. Ms. No. 155, dated 19.9.2006, wherein the State Government decided to conduct a special competitive

examination in Group-IV through the Tamil Nadu Public Service Commission (TNPSC), so as to absorb the temporary Assistants/Junior

Assistants in Secretariat and various departments in the District, who were recruited on contract basis in the Tamil Nadu Ministerial Service.

Another writ petition was filed a Public Interest Litigation by four unemployed graduates seeking to quash G.O. Ms. No. 155 and for a

consequential direction to the State Government to fill up all vacancies including the vacancy occupied by the temporary appointees by regular

appointment through TNPSC by conducting open competitive and giving equal opportunity to all qualified persons. The Division Bench after

considering the facts and circumstances of the case held that there is no infirmity in the Government Order in G.O. Ms. No. 155, dated 19.9.2006

and so far as the PIL, it was held that a PIL cannot be entertained in a service matters. It is seen from the Government Order in G.O. Ms. No. 61,

dated 22.5.2009 that after lifting of ban on direct recruitment, the State Government decided to temporarily fill up the vacant post of Typist and

Steno-Typist Grade III till such time regular candidates are recruited through TNPSC and accordingly, a Government Order in G.O. Ms. No.

147, dated 14.9.2006 was issued. Thereafter, by G.O. Ms. No. 205, dated 9.11.2006, rules of procedure was framed for filling up of the

vacancies in the post of Typist and Steno-Typist Grade III temporarily through employment exchange. By another Government order dated

29.1.2007, the Tamil Nadu Judicial Ministerial Service were exempted from the said mode of recruitment. Thereafter, the vacancies were filled up

by temporarily appointing persons in the post of Typist and Steno-Typist Grade-III. Subsequently, TNPSC published the results of the competitive

examination and as a result of which the services of the temporary Typist and Steno-Typist Grade-III were liable to be terminated. At that

juncture, it appears that the association of such temporary Typist and Steno-Typist approached the Government and the Government took a policy

decision and decided to request the TNPSC to conduct special competitive examination at Group-IV level for temporary Typist and Steno-Typist.

The learned counsel appearing for the petitioner would strenuously contend that a similar direction should be issued in these writ petitions to

direct the State Government to pass appropriate orders for conducting a special competitive examination for the purpose of regularising the

services of the petitioners.

We are unable to accept the contention raised by the learned counsel appearing for the petitioner for more than one reason. Firstly, all the

petitioners were full aware that their appointment is purely temporary and their services were liable to be ousted after the regular candidates were

selected and appointed by the TNPSC. Further in the decision of the Division Bench in W.P. Nos. 9710 and 10189 of 2009, which we have

referred to in the order dated 29.7.2010 in W.P. No. 15191 of 2010 (quoted above), it was observed that at the time when the temporary

appointments were made, no merit list was prepared for selection and appointment and there was no record placed to suggest that the seniority

was fixed by the concerned District Judge nor the selection was made following communal rotation. Further, it was observed that the concerned

District Court has not followed the guideline of seniority either on the basis of registration of the candidates with the employment exchange or on

the basis of age which is required to be followed in the normal course. In such circumstances, we are of the clear view that this Court cannot issue

any direction to either absorb the petitioners in any vacant post or to regularise their services in view of the earlier orders passed by this Court and

also taking note of the fact that all the petitioners were fully aware that their appointment was purely temporary and they were liable to be ousted

as and when select list is published by the TNPSC after conducting regular recruitment. Therefore, the decision and the Government Order relied

on by the learned counsel appearing for the petitioner does not in any manner advance their case.

Admittedly, the process of selection of candidates is over and the Tamil Nadu Public Service Commission is going to proceed with the

issuance of appointment letters. In our view, this Court cannot interfere at this stage, as any interference at this stage will amount to upsetting the

whole process of selection. Hence, we are not inclined to grant the relief as sought for by the petitioners. However, while filling up the vacant

posts, if any in future, if the petitioners apply for the said post, we direct that the respondents shall consider the case of the petitioners by giving

them age relaxation and preference during such selection process. With the above observation and direction, these writ petitions are dismissed. No

costs. Consequently, miscellaneous petitions are closed.