H NAGARAJAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) HEARD learned counsel appearing for the parties.

(2.) W.P.Nos.3822 and 3823 of 2006 have been filed by the Government against the orders of the Tribunal in O.A.Nos.5691/93 and 3317/92. The said two original applications have been filed by the respondent No.1 in each of the writ petitions. These two respondents/applicants, namely Prem Kumar and T.A.Kannappa, prayed for setting aside the order dated 14.8.1991, as per which the Director General of Police has refused to grant them seniority above the appointees under Special Absorption Rules and the TNPSC candidate. The case of the contesting respondents/applicants is that they were appointed as Junior Assistant on 25.11.1985 and 5.8.1985 respectively on compassionate grounds. Their appointments were made under Rule 48 of the General Rules and they have become full members of the Tamil Nadu Ministerial Service. These applicants were appointed as Junior Assistant and given postings in the Police Department. Between 1981 and 1983, a ban had been imposed by the Government for selection of Junior Assistant and other ministerial staff by the Service Commission. In view of absence of selection by the Service Commission, the existing vacancies were filled up by resorting to emergency appointment under Rule 10(a)(i). Such persons who have been appointed as Junior Assistant, Steno-typist and Typist under Rule 10(a)(i) continued to work even after 1984. Since there was a ban on recruitment by the Tamil Nadu Public Service Commission and since these people had worked for nearly four years, the Government wanted to regularize their appointment and after getting concurrence of the Tamil Nadu Public Service Commission, they were all directed to take special qualifying examination to be conducted by the Tamil Nadu Public Service Commission. Accordingly all those temporary candidates appeared subsequently and were selected by the Tamil Nadu Public Service Commission and continued to be in service beyond 1984. So far as the absorption of these temporary persons in regular streams is concerned, the Government passed Special Absorption Rules 1987 which provided for their absorption, their regularization and also fixation of their seniority. Another set of candidates got postings, who having been selected by the Service Commission in the selection held in the year 1983. Even though selection was made in the year 1983 by the Tamil Nadu Public Service Commission, postings were given to these persons between 1985 and 1987. Such appointees, who have been given regular postings prior to Kannappa and Prem Kumar, have been placed in the proper seniority above them and there is no controversy. The applicants were appointed on compassionate grounds and they got postings in the month of August and November, 1985. So, the controversy regarding seniority is three categories of persons, Special Absorption Rules candidates, who have been appointed under Rule 10(a)(i) prior to 1984 but who were regularized under Special Absorption Rules, 1987, and Tamil Nadu Public Service Commission candidates selected in the Selection held in 1983 but appointed after the applicants (T.A. Kannappa and Prem Kumar), who were appointed on compassionate grounds. These two applicants in O.A.No.5691 of 1993 and O.A.No.3317 of 1992 claim that their seniority should be reckoned from the date of the initial appointment, and persons selected through Public Service Commission but appointed after their appointment, should not be treated as senior to them. Their contention has been accepted by the Tribunal which is being challenged by the State Government.

(3.) AS between Commission candidates and candidates appointed on compassionate grounds, it is only G.O.Ms.No.951 P & AR (Per.B) dated 14.9.1984 which deals with their inter-se-seniority. Though this G.O. nowhere makes any reference to candidates appointed under Absorption rules which the government ought to have done by applying the rule of harmonious construction; once candidates appointed under Absorption Rules are to be treated as juniors to Commission candidates of 1983, and when the said G.O. directs that the candidates appointed on compassionate grounds are to be fitted according to the dates of regularisation of their service among the candidates appointed by the Commission in that year, it has to be held that the compassionate candidates are to be ranked on a par with the Commission candidates for the purpose of seniority." 7. Ultimately, the learned Single Judge gave specific direction contained in paragraph 9, which is extracted hereunder: "To work out the interse seniority for the concerned year, the procedure to be followed is as follows:- 1. All those who have taken up appointments in the concerned year through Commission have to be listed according to the dates on which they joined duty i.e., when they discharged the duty in the post for the first time. 2. Another list of all those who have been appointed on compassionate grounds in that year with their respective dates of regularisation of service to be prepared. 3. Taking each name in the Commission candidates list, he or she will have to be fitted in the list of candidates appointed on compassionate grounds, immediately below the preceding date on which the candidate appointed on compassionate grounds had been regularised. 4. In such of those cases where on the same day, the service is to be computed, then the candidate appointed on compassionate grounds will be placed above the Commission candidate."