Dr.D.Jothibass v. The State of Tamil Nadu

Order of Rotation Place of posting

¶13The role of Tamil Nadu Public Service Commission comes to an end the moment they submit the rank list to the concerned Department. Thereafter, it is the concerned department which prepares the seniority list and publishes the same and seek for objections and proceeds further with the promotions. This Court is not able to understand as to why the 2nd respondent passed an order rejecting the claim made by the petitioners. It was the 3rd respondent, who was expected to consider the claim made by the petitioners and pass appropriate orders. That has not happened in the present case. As rightly contended by the learned Senior counsel appearing on behalf of the petitioners, the reason assigned by the 2nd respondent while rejecting the claim made by the petitioners is totally illegal and unsustainable. The judgment referred in the impugned order has already been over-ruled and the rule referred in the impugned order has already been held to be unconstitutional.

¶14The proceedings of the 3rd respondent dated

18.01.2001, is not a seniority list that was published by the 3rd respondent. The proceedings shows that the service of 174 candidates was regularized.

¶15The 3rd respondent ought to have considered the representations made by the petitioners and passed appropriate orders in line with the rules and the judgments that have been referred supra. However, till date, no orders have been passed on the representations made by the petitioners and only list has been published by the 3rd respondent containing the names of the persons in the seniority list of the Veterinary Assistant Surgeons as on 01.07.2019. The grievance of the petitioners is that their names are not found in the seniority list.

¶16In the light of the above discussion, the impugned order of the 2nd respondent dated

09.11.2019 in each of the writ petition is hereby quashed. The writ petitions are disposed of with the following directions:-

(a) The 3rd respondent is directed to publish the seniority list of the candidates, who were appointed as Veterinary Assistant Surgeons in the year 1991-1992 and proceed further to promote them in the vacancies available in the post of Assistant Director, Animal Husbandry Service. This process shall be completed within a period of four weeks from the date of receipt of copy of this order.

(b) The 3rd respondent is directed to publish the separate seniority list of Veterinary Assistant Surgeons, who were appointed in the year 1997-98 and call for objections and finalize the seniority list, strictly in accordance with the rules and the judgments of the Hon'ble Supreme Court and the Division Bench of this Court that has been referred supra. This process shall be completed within a period of six weeks from the date of receipt of copy of this order and

(c) The 3rd respondent shall thereafter proceed to give promotions to the post of Assistant Director, Animal Husbandry Service, in the remaining vacancies in accordance with the finalized seniority list. This process shall be completed within a period of four weeks after the finalization of the seniority list of the candidates belonging to the 1997-1998 batch. No costs. Consequently, all connected miscellaneous petitions are closed" This Court specifically and categorically held that the respondents 4 to 11 as well as the petitioners herein were selected through written examination and also the interview conducted by the third respondent. Further it does not really indicate that the same was prepared in the order of seniority. The seniority of a person should be fixed only with reference to the rank obtained by him in the list of candidates drawn by the third respondent.

¶16Though the learned Senior Counsel appearing for the petitioners had relied upon the judgment of the Hon'ble Supreme Court of India reported in (1995) 5 SCC 625 in the case of P.S.Ghalaut Vs. State of Haryana, it was over ruled by the Hon'ble Supreme Court of India in the case of Bimlesh Tanwar Vs. State of Haryana & ors reported in

(2003) 5 SCC 604. Based on the Bimlesh Tanwar case, the Hon'ble Division Bench of this Court in the case of N.Santosh Kumar Vs. Tamil Nadu Public Service Commission, reported in 2015 SCC Online Mad 362, while interpreting Rule 35(a) of the General Rules for Tamil Nadu State and Subordinate Services, held that the seniority of a person should be determined only with reference to the rank obtained by him in the list of candidates drawn up by the Public Service Commission.

¶17The respondents 4 to 6 were fitted in the general turn by virtue of their high score in the written examination as well as the interview conducted by the third respondent and they have placed at the bottom of the seniority list. The persons who had secured lower marks than the respondents 4 to 6 have been placed above to them. Therefore, the entire seniority list is erroneous and the respondents 1 to 3 without considering the same mechanically rejected the objections raised by the respondents 4 to 6. Therefore, this Court issued the above directions in the batch of writ petitions.

¶18The learned Senior Counsel appearing for the petitioners and 7th respondent in W.P.No.4835 of 2022 & 12th respondent in W.P.No.25824 of 2022, vehemently contended that this Court categorically observed in the order passed in the review application that the seniority as finalized in the post of Veterinary Assistant Surgeon in the year 2001, 2009, 2015 and 2019 would not be disturbed and the seniority position is protected. Therefore, there cannot be any revision of seniority in the post of Veterinary Assistant Surgeon at the instance of objections submitted after 20 years from the date of appointment. It is in violation of statutory provisions such as Rule 35(f) of the General Rules for Tamil Nadu State and Subordinate Service.

¶19As stated supra, the fifth respondent already raised objections immediately after regularization of his service in the year 2005 itself. The second respondent in its proceedings dated 25.11.2005, erroneously denied the claim of the fifth respondent. It is relevant to extract the Rule 35(f) of the General Rules for Tamil Nadu State and Subordinate Services as follows :- " Application for the revision of seniority of a person in a service, class, category or grade shall be submitted to the Appointing Authority within a period of three years from the date of appointment to such service, class, category or grade or within a period of three years from the date of the order fixing the seniority, as the case may be. Any application received after the said period of three years shall be summarily rejected. This shall not, however, be applicable to cases of rectifying orders, resulting from mistake of facts" Therefore, the said Rule shall not be applied in case of rectifying orders resulting from mistake of facts.

¶20In the case on hand, as stated supra, the respondents 4 to 6 were fitted against the general turn quota, instead of backlog vacancies in MBC quota. Whereas the candidates who had secured lesser than the respondents 4 to 6 were fitted under the backlog vacancies in MBC quota. Therefore, the prescription of the period of limitation is not applicable to the case of rectifying orders, resulting from mistake of facts. In fact, the objections raised by the respondents 4 to 6 were rejected on the ground of latches applying the Rule 35(f) of the General Rules for Tamil Nadu State and Subordinate Services. Therefore, the petitioners cannot hold the prescription contained in Rule 35(f) of the General Rules as against the respondents 4 to 6. Hence, they cannot make legal innovations for defeating the claim of the respondents 4 to 6.

¶21Even assuming that the second respondent had already finalized the seniority list in the post of Veterinary Assistant Surgeon in the year 2009, 2015 and 2019, the respondents 4 to 6 had already raised objections immediately after their regularization and successful completion of their probation period. Further, even according to the second respondent, the list published in the year 2009, 2015 and 2019 are Assistant Director promotional panel list and they are not seniority list. Further the proceeding of the second respondent dated 18.01.2001 is not a seniority list and it was published to show that the services of 174 candidates were regularized.

¶22As directed by this Court in the batch of writ petitions and in order to comply the same, the third respondent fixed revised seniority list for the year 1997-98 Veterinary Assistant Surgeon appointees for the purpose of promotion of Assistant Director strictly based on merits. The revised merit seniority list was received by the first respondent on

20.12.2021 and the same was communicated to all concerned Veterinary Assistant Surgeon by the communication dated 24.12.2021 by the second respondent.

¶23Accordingly, the candidates who had secured lower marks will automatically get the lower rank in the revised seniority list and the revised seniority list strictly based on the marks obtained by the individual in the written examination and the interview conducted by the third respondent for the post of Veterinary Assistant Surgeon in the year 1997-98. The list was also forwarded to the first respondent for approval.

¶24The Hon'ble Supreme Court of India in the case of Bimlesh Tanwar Vs. State of Haryana & ors reported in (2003) 5 SCC 604, held as follows :- "40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law." Thus it is clear that the seniority list of the selected candidates would only be based on the merit rank published by the third respondent and not at the roster point.

¶25The Hon'ble Division Bench of this Court following the judgment of the Bimlesh Tanwar case, passed order in the case of N.Santosh Kumar Vs. Tamil Nadu Public Service Commission, reported in 2015 SCC Online Mad 362. Therefore, the seniority list published to the post of Assistant Director dated 20.12.2021 inconsonance with the order passed by the Hon'ble Supreme Court of India as well as the Hon'ble Division Bench of this Court in the case of N.Santhosh Kumar.

¶26That apart, the petitioners had raised objections after the period of eight months from the date of publication of the seniority list. Therefore, the intention of the petitioners is very clear that only to stall the entire process of promotion to the post of Assistant Director. Therefore, this Court finds no infirmity or illegality in the order passed by the second respondent dated 06.09.2022 and the writ petition is devoid of merits and liable to be dismissed.

¶27Accordingly, the Writ Petition stands dismissed. The respondents 1 & 2 are directed to proceed with the promotion to the post of Assistant Director of Animal Husbandry as per the seniority list dated

20.12.2021 forthwith. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs. W.P.No.4835 of 2022 :-

¶28This writ petition has been filed challenging the seniority list dated 20.12.2021 and consequential proceeding of the Joint Director (Administration) Commissioner of Animal Husbandry, Chennai dated

29.12.2021, insofar as the fixation of seniority of candidates appointed in the backlog category.

¶29On perusal of records revealed that the petitioner did not even raise any objections on the seniority list to the post of Assistant Director and straight away challenged the seniority list dated 20.12.2021. In view of the above discussions and the order passed in W.P.No.25824 of 2022, this writ petition is devoid of merits and liable to be dismissed.

¶30Accordingly, the Writ Petition stands dismissed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.

20.02.2024 Internet: Yes Index : Yes/No Speaking/Non Speaking order

Note :- Issue order copy on or before 22.02.2024 rts To

¶1The Principal Secretary to Government, State of Tamil Nadu, Animal Husbandry, Dairying, Fisheries Department, Fort St. George, Secretariat, Chennai – 600 009.

¶2The Secretary to Government, State of Tamil Nadu, Animal Husbandry, Dairying, Fisheries, and Fishermen Welfare (AH-7) Department, Secretariat, Chennai – 9.

¶3The Joint Secretary to Government, State of Tamil Nadu, Animal Husbandry, Dairying, Fisheries, and Fishermen Welfare (AH-7) Department, Secretariat, Chennai – 9.

¶4The Commissioner, Directorate of Animal Husbandry and Veterinary Services, 571, Anna Salai, Nandanam, Chennai – 600 035.

¶5The Secretary, Tamil Nadu Public Service Commission, VOC Nagar, Park Town, Chennai – 600 003.

¶6Joint Director (Administration) O/o. Commissioner of Animal Husbandry and Veterinary Services, Chennai – 600 035. W.P.Nos.4ca5o&o25c24oofo2022 G.K.ILANTHIRAIYAN.oJ, rts COMMONoORDERoIN W.P.Nos.4835o&o25824oofo2022 andoW.M.P.Nos.4965,o4966, 24891,o24892,o24894oofo2022

20.02.2024 Pageo40oofo40

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 23.01.2024 PRONOUNCED ON : 20.02.2024 CORAM: THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN and W.M.P.Nos.4965, 4966, 24891, 24892, 24894 of 2022 W.P.No.4835 of 2022 :- Dr.D.Jothibass Veterinary Assistant Surgeon, Veterinary Poly Clinic, Hosur, Kirshnagiri District. ...Petitioner -Vs- 1. The State of Tamil Nadu, Rep. by its Secretary to Government, Animal Husbandry, Dairying, Fisheries, and Fishermen Welfare (AH-7) Department, Secretariat, Chennai – 9. 2. The State of Tamil Nadu, Rep. by its Joint Secretary to Government, Animal Husbandry, Dairying, Fisheries, and Fishermen Welfare (AH-7) Department, Secretariat, Chennai – 9. 3. The Commissioner, O/o. Commissioner of Animal Husbandry and Veterinary Services, Chennai – 600 035. 4. The Secretary, Tamil Nadu Public Service Commission, VOC Nagar, Park Town, Chennai – 600 003. 5. Joint Director (Administration) O/o. Commissioner of Animal Husbandry and Veterinary Services, Chennai – 600 035. 6. Dr.N.Srikumar, Veterinary Assistant Surgeon, Veterinary Poly Clinic, Saidapet, Kanchipuram District. 7. Dr.K.Saravanan, Veterinary Assistant Surgeon, V.D., Papparpatti, Dharmapuri District. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the second respondent in his proceedings in Letter No.19885/AH7/2019-17 dated 20.12.2021 and the consequential impugned proceedings passed by the fifth respondent in e/f/vz;/52073/rp3/2021 dated 29.12.2021 (Served to the petitioner on 21.02.2022) and quash the same as illegal insofar as fixation of seniority of the candidates appointed under backlog category and consequentially to direct the respondents to refix the seniority of the Veterinary Assistant Surgeons for the year 1997-1998 strictly in accordance with the merits of the candidates and confer all other consequential monetary and service benefits within the period that may be stipulated by this Court. For Petitioner : Mr.L.Calvin Jones For M/s.Ajmal Associates For Respondents For R1 to R3 & R5 : Mr.Haja Nazrudeen Additional Advocate General Assisted by Mr.Bindhran Additional Government Pleader and Mr.P.Haribabu, Government Advocate For R4 : Mrs.C.N.G.Niraimathi For R6 : Dr.R.Maheswari For R7 : Mr.G.Sankaran, Senior Counsel For Mr.S.Nedunchezhiyan W.P.No.25824 of 2022 :- 1. Dr.M.Balamurugan, Veterinary Assistant Surgeon, Veterinary Dispensary, Jalagandapuram, Mettur Taluk, Salem District. 2. Dr.M.Sundaramoorthy Veterinary Assistant Surgeon, Veterinary Dispensary, Keeranur – 623 704, Ramanathapuram District. ...Petitioners -Vs- 1. The State of Tamil Nadu, Rep. by its Principal Secretary to Government, Animal Husbandry, Dairying, Fisheries Department, Fort St. George, Secretariat, Chennai – 600 009. 2. The Commissioner, Directorate of Animal Husbandry and Veterinary Services, 571, Anna Salai, Nandanam, Chennai – 600 035. 3. The Secretary, Tamil Nadu Public Service Commission, Park Town, Chennai – 600 003. 4. Dr.N.Srikumar, Veterinary Assistant Surgeon, Veterinary Poly Clinic, Government of Tamil Nadu, Chennai – 600 035. 5. Dr.N.Pahalavan, Veterinary Assistant Surgeon, Veterinary Dispensary, Government of Tamil Nadu, Vellakovil and Post, Dharapuram Divn., Tirupur – 638 111 6. Dr.K.Ravi, Veterinary Assistant Surgeon, Veterinary Dispensary, Gudimangalam – 642 201. (R4 to R6 impleaded vide order dated 14.06.2023 made in W.M.P.No.26915 of 2022 in W.P.No.25824 of 2022) 7. Dr. C.Thirumurugan, Veterinary Assistant Surgeon, Veterinary Dispensary, Mallanikinaru, Virudhunagar District. 8. Dr.A.Krishnasamy, Veterinary Assistant Surgeon, Veterinary Dispensary, Earvadi, Thirunelveli District. 9. Dr.K.Thirunavukarasu, Veterinary Assistant Surgeon, Veterinary Dispensary, Vilapakkam, Ranipet District. 10. Dr.A.L.S.Senthur Selvam, Veterinary Assistant Surgeon, Veterinary Dispensary, Sevalaperipandi, Thirunelvel