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Judgment
R. Subbiah, J.—This writ petition is filed to quash the Notification published by the 3rd respondent in Advertisement No. 151 in Tamil Daily
DINAKARAN, Salem Edition, dt. 31.01.2008 relating to the recruitment of the Assistant Engineer (Agriculture Engineer) as illegal and
unreasonable and to direct the respondents to fill up all the backlog vacancies allotted for the Scheduled Caste candidates in the 2nd respondent
department.
The case of the petitioner is that all the members in the petitioner Association belong to the Scheduled Caste community holding B.E. degree in
Engineering, who have registered their qualification in the Professional Employment Exchange. The State Agriculture Department had created the
Agriculture Engineering wing during the year 1956 and the recruitment was made among Civil and Mechanical Engineering graduates to carry out
the respective work and they were designated as Agricultural Engineers and Supervisors. From 1964, direct recruitment was made to the post of
Agriculture Engineer by the 3rd respondent-Tamil Nadu Public Service Commission, among the candidates possessing a degree in Engineering.
During the year 1970, the Government of Tamil Nadu in consultation with the Agriculture College viz., Tamil Nadu Agriculture University,
programmed to start a new degree in Engineering to carry out the Agriculture Engineering work and accordingly, the Agriculture College started
functioning from 1972 with the strength of 50 candidates and from the year 1977 onwards, all the B.E. Agriculture Engineering graduates were
recruited as Assistant Engineers in Agriculture Engineering Department continuously. In 1979, one special recruitment drive had been made for the
post of Assistant Engineer and thereafter, in the year 1982, another direct recruitment was made by the 3rd respondent.
It is the further case of the petitioner that the State Agriculture Engineering Department was bifurcated from the Agricultural Department and
was made a separate Department under one Chief Engineer (Agriculture Engineering) on 01.021981. The Service Rules of the Department have
been framed through G.O.Ms. No. 1987 Agri (AE-III) Department dated 28.08.1981 with effect from 01.02.1981 in which the qualification for
recruitment to the post of Assistant Engineer (Agricultural Engineering) was prescribed as B.E.(Agriculture) and two batches of Assistant Engineers
(Agricultural Engineering) were recruited through the 3rd respondent in 1983-84. In the first list of selection of 49 Assistant Engineers, 9 vacancies
under the quota for SC/ST candidates have not been filled up for want of candidates and also in the 2nd recruitment of 179 candidates, 9
vacancies under the quota for SC/ST candidates have not been filled up for want of vacancies and those vacancies ought to have been carried
forward for the subsequent selection. Thereafter, the post of Assistant Engineer (Agricultural Engineering) has been filled up by the Chief Engineer,
Agricultural Engineering-the 2nd respondent herein, through temporary recruitment under the emergency provisions. The process of temporary
appointment continued till 1988. In 1990, the Government issued an order through G.O.Ms. No. 444 Agri (AB III) Department dated
13.06.1990 regularising the temporary services of 157 candidates appointed on or before 31.12.1985 en masse without following the rule of
reservation. There were 8 vacancies under the quota for SC/ST which had not been filled up. Hence, the Government of Tamil Nadu also issued
another order in G.O.Ms. No. 511 dated 19.09.2005 regularising the services of 115 candidates appointed on or after 01.01.1986 pursuant to
the orders of the Tamil Nadu Administrative Tribunal. Even in the second list, the appointment as Assistant Engineer (Agricultural Engineering)
numbering 115 was also not in accordance with the communal rotation and not following the reservation mandate for SC/ST. This non-filling of the
backlog vacancies was highlighted through the representation to the Government i.e., the respondents 1 to 3, but there was no response. Thus,
from 1989 onwards, 35 vacancies have not been filled under the quota for SC/ST and as such, 48 candidates, who were the members of the
petitioner association, remain unemployed since then.
While so, the 3rd respondent has issued an advertisement in Advertisement No. 151 in Tamil daily DINAKARAN dated 31st January, 2008
proposing to fill up 36 posts of Assistant Engineers (Agriculture Engineering), out of which only 8 vacancies were earmarked for SC community (5
SC General and 3 SC women), which is illegal. Moreover, the 3rd respondent, without ascertaining the actual number of vacancies, has advertised
for filling up of only 36 vacancies out of which only 8 vacancies were earmarked for SC community. Unless the respondents fill up all the backlog
vacancies numbering about 53, the petitioner association will be put to irreparable loss and hardship and further their members have crossed the
age limit because of the ban on recruitment for the past 5 years. Hence, the present writ petition is filed for the relief as stated supra.
Resisting the case of the petitioner, the 3rd respondent filed a detailed counter affidavit stating that when the Commission''s Notification in
Advertisement No. 151 dated 31.01.2008 was issued, there was no backlog vacancy for SC/ST candidates. Therefore, the question of filling up
the backlog vacancy said to have been reserved for SC/ST candidates does not arise as on 31.01.2008.
The learned Counsel for the 3rd respondent contended that in the examination conducted by the 3rd respondent Commission for direct
recruitment to the post of Assistant Engineer (Agricultural Engineering) from the year 1978-79 to 1983-84 for 227 vacancies, the Commission had
selected only 179 candidates and the remaining 48 vacancies including 9 SC/ST vacancies, had not been selected due to insufficiency of
candidates. During November, 1989, the Government had instructed to defer the Notification for direct recruitment to the post of Assistant
Engineer (Agricultural Engineering, till a decision was taken regarding absorption of temporary Assistant Engineer (Agricultural Engineering) en
masse, on regular basis. Thereafter, on emergency grounds, the 2nd respondent made temporary appointments for the post of Assistant Engineer
(Agricultural Engineering) till 1988, without following the rule of reservation for appointments. Thereafter, the said temporary appointments of the
Assistant Engineers (Agricultural Engineering) appointed up to 31.12.1985 were regulairsed by the Government vide G.O.Ms. No. 444 dated
13.06.1990. The Government, thereafter, requested the 3rd respondent to conduct a Special Qualifying Examination for the regularisation of the
temporary Assistant Engineers (Agricultural Engineering) who were appointed on or after 01.01.1986. Aggrieved over the same, the temporary
Assistant Engineers (Agricultural Engineering) approached the Tamil Nadu Administrative Tribunal and the Tribunal, by its order dated
31.12.1994, ordered to regularise the services of the appointees who were appointed on or after 01.01.1986 without directing them to write the
said examination; by which the services of the remaining 115 temporary appointees were regularised by G.O.Ms. No. 511 dated 19.09.1995.
Thereafter, there was no recruitment of Assistant Engineer (Agricultural Engineering) till 31.01.2008, on which date the advertisement was
published.
In this regard, the learned Counsel for the 3rd respondent submitted that prior to 01.04.1989, as per the Tamil Nadu Services Manual,
Volume-I, if a qualified SC/ST candidate is not available for selection for appointment in the turn allotted for them in the cycle, the unfilled
vacancies reserved for SC/ST shall be carried over to the next recruitment. If any qualified SC/ST candidates are not available even then, the
carried over turns shall automatically lapse. Therefore, prior to 1989, the unfilled vacancies reserved for SC/ST could be carried over only to the
next year and not continuously and as such, the unfilled SC and ST vacancies of the year 1984 and 1989 got lapsed in the next year itself as per
the prevailing rules.
In this regard, the learned Counsel for the 3rd respondent invited the attention of this Court to pre-amended Rule 22 of Tamil Nadu State and
Subordinate Service Rules and contended that only after 01.04.1989 if the required number of candidates belonging to such communities are not
available, even then, the vacancies for which selection could not be made shall remain unfilled until the next recruitment year treating them as
backlog vacancies. But, after 01.04.1989, no recruitment was made till the Notification was issued and only in the year 2008 the Notification was
issued for the recruitment of Assistant Engineers (Agricultural Engineering). That apart, all the temporary appointees were absorbed by G.O.Ms.
No. 444 and 511. Therefore, the learned Counsel for the 3rd respondent contended that when the temporary candidates were absorbed by way
of said Government orders, the reservation was not made for SC/ST candidates. But the said G.Os. were not challenged by the petitioner at that
time. Therefore, as on date, there is no backlog vacancy. Hence, the question of filling up the backlog vacancies does not arise. Moreover, in
Explanation to Rule 22 it was provided that in exceptional cases for the posts in Groups A and B for which suitable candidates belonging to SC,
ST, Most Backward Class or Denotified Communities are not available, then the said respective reserved vacancies could be filled up by getting
exemption from the Government on the ban, for running a smooth administration. When that being the position, the Government cannot say that the
regularisation of temporary employees without following the reservation for SC/ST candidates, is illegal, that too, after a lapse of 14 years.
Schedule-V of the Tamil Nadu State and Subordinate Service Rules deals about the method of carrying forward of vacancies reserved for SC and
ST candidates by direct recruitment and clearly states that if the reserved vacancies are not filled up, it shall be carried forward as ''backlog''
vacancies and continued to be operated against the current vacancies from 1st April 1989. Moreover, the Supreme Court has fixed the total
percentage of reservation to the maximum of 50% in the case of Indira Sawhney v. Union of India 1996 Supp. (3) SCC 217 delivered on
16.11.1992. The Government of India, to overcome the ceiling limit of 50% in between the amended Eighty First Amendment, introduced Article
16(4B) on 09.06.2000. Therefore, from the date of judgment delivered in Indira Sawhney''s case till the said amendment, the maximum ceiling limit
for reservation was only 50%. In the instant case, by G.O.Ms. No. 511 dated 19.09.1995, all the services of the temporary employees were
regularised when the maximum ceiling limit of 50% reservation was existing. Therefore, on that score also, it could be inferred that no backlog
vacancies might have arisen while absorbing the temporary employees by G.O.Ms. No. 511 dated 19.09.1995. Looked at any angle, on the date
of Notification, there was absolutely no backlog vacancy because all the vacancies were filled up by way of recruitment in 1984 and 1989 and also
by way of absorption of temporary employees by G.O.Ms. No. 444 and 511.
Per contra, Mr. N.G.R. Prasad, the learned Counsel appearing for the petitioner contended that during the year 1984-85 and thereafter in the
year 1989, when the recruitment was made, the reserved posts for SC and ST were not filled up and subsequently, when the temporary
employees were absorbed by G.O.Ms. No. 444 and 511, the reservation for SC and ST was not followed. The reservation for SC and ST
candidates is a constitutional mandate. Therefore, the respondents cannot claim, by by-passing the constitutional mandate that the services of the
temporary employees were regularised. After G.O.Ms. No. 511 dated 19.09.1995, only on 31.01.2008, the Notification was issued for the
recruitment of the Assistant Engineer (Agricultural Engineering) as Sl. No. 6 in the Advertisement No. 151 by the 3rd respondent. At this juncture
only, the petitioner got an opportunity by filing the writ petition for a direction to fill up all the backlog vacancies allotted for SC candidates in the
2nd respondent department. Therefore, the non-challenging of the said G.Os. dated 13.06.1990 and 19.09.1995 at the relevant point of time
would not vitiate the prayer sought for in this writ petition.
Learned Counsel for the petitioner relied upon a judgment of this Court dated 14.01.2000 delivered in W.P. No. 16087 of 1999 in the case of
P.R. Subas Chandran v. State of Tamil Nadu, rep. by its Chief Secretary to Government and Anr. in support of his contention that the backlog
vacancies for SC and ST have to be filled up before going further recruitment. Learned Counsel for the petitioner has also relied upon another
judgment of this Court in W.P. (MD). Nos. 1997, 2102 and 2880 of 2006 rendered on 05.12.2006 in support of his contention that if the
backlog vacancies have not been filled up for quite a long time, the same has to be filled up before going into further recruitment. Further, by
inviting the attention of this Court to a chart prepared by the petitioner,the learned Counsel for the petitioner submitted that there are 83 backlog
vacancies as on the date of Notification. Further, by inviting the attention of this Court to G.O.Ms. No. 33, Adi Dravidar and Tribal Welfare
Department, dated 08.05.2000, the learned Counsel for the petitioner contended that the Government had decided to fill up the backlog vacancies
for SC and ST within a period of five years. Similarly, in G.O.Ms. No. 91, Adi Dravidar & Tribal Welfare Department, dated 28.11.2001, the
Government had decided to fill up the backlog vacancies by creating equal number of posts in the entry level under each department arising from
01.04.1989 within a period of five years, while earlier G.O.Ms. 333 covering all reserved candidates of SC/ST; but without taking into
consideration the said Government Orders, by giving a go-by to the Constitutional mandate, the respondents have filled up the posts. Therefore, as
on the date of Notification, 53 vacancies are there and they have to be filled up from the SC and ST candidates.
Heard the learned Counsel for the parties and perused the materials available on record.
The present writ petition is filed by the Dr. Ambedhkar Agriculture Engineers Association, whose members are from SC community. The
grievance of the Association is that the third respondent issued the impugned Notification in Advertisement No. 151 in Tamil Daily
DINAKARAN, Salem Edition, dated 31.01.2008 for the recruitment of Assistant Engineers (Agricultural Engineering); out of which only 8
vacancies were earmarked for Scheduled Caste Community (SC General-5 and SC Women-3) in Sl. No. 6 in the said Notification, without filling
up the backlog vacancy reserved for SC/ST candidates. Per contra, it is the contention of the 3rd respondent that as on date, absolutely there was
no backlog vacancy reserved for SC/ST candidates. Therefore, the question that has to be decided in this writ petition is, whether there is
availability of backlog vacancy for SC/ST candidates.
From the submissions made by the learned Counsel appearing on either side and on a perusal of the materials before this Court, it could be
understood that before 31.01.2008, the appointments for the post of Assistant Engineers (Agricultural Engineering) were made on four occasions,
namely, on two occasions by way of direct recruitment and on the other two occasions by way of absorbing the temporary employees on the
strength of the two G.Os. issued by the 1st respondent, namely G.O.Ms. No. 444 dated 13.06.1990 and G.O.Ms. No. 511 dated 19.09.1995.
In 1983-84, the 3rd respondent Commission had selected 179 candidates for 227 vacancies and the remaining 48 vacancies including 9 SC/ST
candidates have not been selected due to non-availability of candidates. Thereafter, in the year 1989, when the recruitment was made, the
Government had deferred the Notification for direct recruitment to the post of Assistant Engineer (Agricultural Engineering). In between 1984 and
1989, temporary Assistant Engineers (Agricultural Engineering) were appointed by the 2nd respondent on emergency basis. Therefore, the
Government has issued G.O.Ms. No. 444 dated 13.06.1990 for regularising the services of the temporary Assistant Engineers (Agricultural
Engineering) appointed up to 31.12.1985. On the strength of the said G.O., the temporary services of the 157 candidates were regularised. The
other temporary Assistant Engineers, whose services were not regularised by G.O.Ms. No. 444, approached the Tamil Nadu Administrative
Tribunal and the Tribunal, by its order dated 09.12.1994 ordered to regularise the services of the applicants who were appointed as Assistant
Engineers (Agricultural Engineering) temporarily on or after 01.01.1986, without directing them to write the special qualifying examination. Hence,
the Government has issued another G.O.Ms. No. 511 dated 19.09.1995, by which the remaining 115 candidates were absorbed and their
services were regularised. As per the pre-amended Rule, the reserved post shall be carried forward to the next year, if qualified SC and ST
candidates are not available and they are not available even for the next recruitment, the carried over turns shall automatically lapse. But,
subsequently, by G.O.Ms. No. 337 dated 08.10.1992, Rule 22 was amended. As per the amended Rule, if sufficient number of qualified SC/ST
candidates are not available for appointment for the vacancies, the vacancies for which selection could not be made shall remain unfilled until the
next recruitment year treating them as backlog vacancies. This amendment came into effect from 01.04.1989 and prior to 01.04.1989, the list of
backlog vacancies shall get lapsed by the next year. In other words, prior to 1989, the backlog vacancies cannot be carried forward indefinitely.
Admittedly, in the instant case, two direct recruitments were made before 1989. Therefore, the question of carrying forward the backlog vacancies
in the recruitment made in the years 1984 and 1989 does not arise. It is, no doubt, by G.O.Ms. No. 444 and 511, all the temporary employees
were absorbed and all the vacancies were filled up. Though these two G.Os. were issued after 01.04.1989, they were not challenged by the
petitioner at the relevant point of time. Having not challenged the said G.Os. at the relevant point of time, now the petitioner Association cannot
claim, after a lapse of 14 years, that the backlog vacancies meant for SC/ST candidates were not filled up. Though a submission was made by the
learned Counsel for the petitioner, by relying upon the judgments of this Court, that without fulfilling the backlog vacancy, direct recruitment cannot
be made, on perusing the materials available in the case, it shows that, as on date, there was no backlog vacancy reserved for SC/ST candidates
and all the posts were filled up as early as in the year 1985 itself. Further, as pointed out by the learned Counsel for the 3rd respondent, the
Explanation to Rule 22 would show that if the candidates for SC are not available against the reserved vacancy and the non-filling up of posts
causes hardship for running the administration, exemption can be given on the ban granted by the Government for filing up the posts. When that
being the position, I do not find any error in filling up the posts by absorbing the temporary employees by two G.Os. referred to above. Moreover,
as submitted by the learned Counsel for the 3rd respondent, when the temporary employees were absorbed finally by G.O.Ms. 511 dated
19.09.1995, there was a ceiling limit for the reserved posts upto the maximum of 50%, in view of the judgment rendered by the Hon''ble Supreme
Court in the case of Indira Sawhani''s case (cited supra).
With regard to the submission made by the learned Counsel for the petitioner by relying upon G.O.Ms. No. 33 dated 08.05.2000 and
G.O.Ms. No. 91 dated 28.11.2001 that though the Government has issued several orders regarding filling up of backlog vacancies arose from
01.04.1985 by creating equal number of posts in the entry levels within a period of five years, I am of the view that when the petitioner has not
questioned the G.O.Ms. No. 511 issued in the year 1995, now at the length of time, they cannot rely upon G.O.Ms. No. 33 and 91 in support of
their contention, particularly in the circumstances when G.O.Ms. No. 33 and 91 33 were issued only in the nature of general instructions.
It would be appropriate to refer to the judgment relied upon by the learned Counsel for the 3rd respondent in National Federation of S.B.I.
and Others, etc. Vs. Union of India and Others, regarding the issue involved in this case, wherein it has been held as follows:
(32) So far as prayer(b) in Writ Petition No. 896 of 1990 is concerned, we must say that it is not possible to accede to it. The prayer is to direct
the respondents in the writ petition to fill up the backlog of unfilled vacancies since 1978 by applying the carry-forward rule in all grades and scales
with consequential benefits. Firstly, none of the relevant Memorandums and orders referred to above provide for carry-forward rule. In the
absence of such a rule, each year has to be treated as the unit for applying the rule of reservation concession, as the case may be. In any event, so
far as the concession concerned herein is concerned, it can be applied and followed only when a selection takes place. In the absence of a rule to
that effect, the said concession cannot be given effect to retrospectively. Therese writ petitions were filed only in 1990 or thereafter. In such a case,
there can be no question of relating back the relief to 1978. So far as prayer (c) is concerned, it is equally beside the point in the light of what we
have decided herein, viz., that the special provision made in the matter of promotions with Class-I is not in the nature of reservation but a
concession. The only declaration and direct that can be granted in these matters is that the respondents shall apply, implement and follow the
concession contained in Para 2 of the Office Memorandum dated 26.03.1970 aforesaid in the matter of promotions in Class-I to be made
hereafter. Of course, so far as promotions to Class-II, III and IV and promotions from Class-II to the lowest rung or category in Class-I are
concerned, the orders in Office Memorandum dated 11.07.1968 shall be followed.
The said decision is squarely applicable to the case on hand. Therefore, in my considered opinion, the petitioner, having failed to challenge the
G.O. Nos. 444 and 511 at the relevant point of time, now cannot ask for filling up the backlog vacancies as if there was a backlog vacancy. Under
such circumstances, I am of the view that the petitioner Association is not entitled to get the relief sought for in the writ petition.
For the reasons stated above, the writ petition fails and, accordingly, it is dismissed. No costs. Consequently, connected M.P. is closed.