A VISALAKSHI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE two petitioners A.Visalakshi and D.Devaki filed O.A.No.7206/1999 on the file of the Tamil Nadu Administrative Tribunal with the prayer to quash the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings Proc.No.A4/18829/97 O.O.No.107/97 dated 20.4.98 in so far as it relates to the applicants herein as the said seniority list is contrary to General Rule 35 (a) and is not based on the rank assigned to the applicants in the list of selected candidates for the post of Scientific Assistant Grade II by the Tamilnadu Public Service Commission and to direct the respondents 1 to 3 herein to revise the seniority list of Scientific Assistant Grade II issued by the Second Respondent in proceedings Proc.No.A4/18829/97 / O.O.No.107/97 dated 20.4.98 based on the rank assigned to the applicants herein by the TamilNadu Public Service Commission in the competitive examination held in the year 1989 for Scientific Assistant Grade II and under General Rule 35(a) and consequently to include the name of the applicants in the panel of Scientific Assistant Grade I issued by the Second Respondent in proceedings Rc.No.A4/883/99 / O.O.5/99 dated 22.1.1999 and consequently promote the applicants herein as Scientific Assistant Grade I, based on the seniority list so revised.

(2.) (i) The petitioners were temporarily appointed as Scientific Assistants Grade II on 15.9.1988 and 25.3.1988 respectively through the Employment Exchange under 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules. The said posts are coming under the purview of Tamil Nadu Public Service Commission (hereinafter referred to as "the TNPSC") with effect from 03.10.1986. Whileso, the TNPSC through advertisement called for applications for 36 vacancies of Scientific Assistants Grade II in the Forensic Sciences Department. In response to the notification, the petitioners applied for the post of Scientific Assistants Grade II. By a communication dated 22.12.1995, the TNPSC informed the applicants that they were provisionally selected for appointment to the said post with rank No.1 and 5 respectively according to the rank list of selected candidates published by the TNPSC Bulletin dated 16.4.1998. Though 36 persons already working temporarily in the Forensic Science Department applied along with other persons from outside public for the 36 vacancies, the TNPSC selected only 14 candidates as fit for the post of Scientific Assistants Grade II. Rest of them were not selected. Out of the 14 candidates so selected, the petitioners ranks are in Sl.No.1 and 5 respectively. Since the seniority of the petitioners should be determined on the basis of the rank obtained by the petitioners in the list of approved candidates drawn up by the TNPSC the ranking was not properly assigned in the impugned proceedings No.Proc.No.A4/18829/97 / O.O.No.107/97 dated 20.4.1998. Instead the petitioners' seniority have been fixed at Sl.Nos.35 and 32 respectively as temporary candidates ignoring the mandatory rules under General Rule 35(a). On the other hand, the persons who were not successful in the TNPSC examination have been made senior to the petitioners though the petitioners were the successful candidates. Being aggrieved by the impugned seniority list dated 20.4.1998, a representation was made to the second respondent on 19.5.1998 for fixing the seniority based on the rank assigned by the TNPSC specifically indicating that both the petitioners should be placed in Sl.Nos.9 and 12 respectively in the impugned seniority list on the basis of the General rule 35(a). (ii) Though both the petitioners along with other persons filed on an earlier occasion a common O.A.No.1728/1989 on the file of the Tamil Nadu Administrative Tribunal for regularisation of temporary services against the same respondents, in the said O.A., the Tribunal by order dated 04.12.1991 directed that the appointments made prior to 09.12.1988 should be dealt with in the same manner as the appointment made prior to 03.10.1986. Subsequently, the said order of regularisation was implemented regularising from the date of their initial appointment. As the same has not been done, the Original Application came to be filed. On abolition of the Tribunal, the said Original Application has been transferred to this Court and renumbered as W.P.No.2111/2007.

(3.) (i) Per contra Mr.S.Ravi, learned counsel appearing for the respondents 4 to 27 interalia contended that the present writ petition filed by the petitioners is barred by the rule of res-judicata as per section 11 of the Civil Procedure Code since the writ petitioners were parties in the common O.A.Nos.1727 and 1728 of 1989 filed by both the petitioners and the respondents herein before the Tamil Nadu Administrative Tribunal seeking a common prayer on behalf of the petitioners and the respondents for regularisation of their services by quashing the TNPSC selection. When both the petitioners were parties to the decision given by the Tamil Nadu Administrative Tribunal and when the decision was also having the binding character of the judgment, the said decision is binding both the writ petitioners and the respondents, since the same was not modified or reversed by the Apex Court. (ii) Secondly, he urged that the contesting respondents were appointed between February 1987 and September 1988 whereas the petitioners according to their own pleadings were appointed on 08.3.1997. Therefore, the petitioners cannot claim seniority over the contesting respondents inasmuch as the seniority of a person in service shall be determined by the ranking obtained by him in the list of approved candidates by the TNPSC or other appointing authority as the case may be. Rule 35(a) would apply only to seniority among those selected by the TNPSC and will not apply to appointments made outside the purview of the TNPSC. Hence, he contended that the case of the petitioners that Rule 35(a) would apply to the facts of the present case is absolutely incorrect. (iii) The learned counsel questioned whether the post of Scientific Assistants Grade II comes under the purview of TNPSC till 09.12.1988 and whether Rule 35(a) of the General Rule can be applied the the facts of the present case. (iv) Mr.S.Ravi, further contended that the judgments of the Apex Court in STATE OF TAMIL NADU V. E.PARIPOORNAM (AIR 1992 SC 1823) and M.P.PALANISAMY V. A.KRISHNAN (2009 (6) SCC 428) cannot be applied to the present case when there was no conditional regularisation in the case of contesting respondents herein. He further contended that in the abovesaid judgments of the Apex Court the order of regularisation itself had a condition that the TNPSC candidates will be ranked senior, but when no such condition was given by the Tribunal in the order dated 04.12.1991 passed in O.A.Nos.1727 and 1728 of 1989 the abovesaid judgments are not applicable to the case on hand. The writ petitioners after issuance of the notification by the TNPSC seeking to fill up the post of Scientific Assistant Grade II apprehending that the outsiders would be appointed by ousting the petitioners and the respondents having approached the Tribunal seeking quashment of the notification issued by the TNPSC and after getting an order of regularisation, having enjoyed the benefit of regularisation pursuant to the Tribunal's decision, including the enjoyment of pay fixation and promotion as Grade I Scientific Assistants, taking into account the impugned seniority list, they cannot be allowed to take opposite stand at this distance of time. (v) Lastly, the learned counsel contended that by taking into account the date of entry into service by the petitioners for the simple reason that they were qualified in the TNPSC for the same post subsequently after getting the status of direct recruitment, they cannot claim seniority from the date when they were not borne in the service. This principle is well settled in N.K.CHAUHAN V. STATE OF GUJARAT.