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CASE NO.: Appeal (civil)  2791-2793 of 2002

PETITIONER: K. MADALAIMUTHU &  ANR.

RESPONDENT: STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT: 04/07/2006

BENCH: Dr.AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T

ALTAMAS KABIR, J.

       These three appeals arise from the common  judgment and order dated 24.12.2001 passed by the  Division Bench of the Madras  High Court in Writ Petition  Nos. 16806/98, 1548/99  and  1549/99.  One K.  Madalaimuthu was the petitioner in the first two writ  petitions, while one A. Arumuga Nainar was the  petitioner in the third writ petition.  Both of them  had  similar interests and the reliefs  prayed  for were also  similar  and were thus disposed of by the common  judgment referred to above.  Since these appeals arise  out of a common judgment and order passed by the   Madras High Court, they have been clubbed together,  heard together and are being disposed of by this common  judgment.         The appellants belong to the Tamil Nadu  Registration Services and are said to be working as  Assistant  Inspector General of Registration.   Their  services  are governed by the Tamil  Nadu State and  Subordinate Services Rules, 1955 (hereinafter referred to  as "the General Rules")  and  by the Tamil Nadu  Registration Services Rules, 1969 (hereinafter called ’the   Special Rules").  In  1969, the Special Rules provided for  two classes  of officers.  Class I comprised the Inspector  General (Registration).  Class II provided for two  categories, namely, Inspector of Registration Officers, and  District Registrars.  Subsequently, the categorization was  modified and the District Registrars were placed in the   third category.  The method of recruitment of District  Registrars is either by direct recruitment or recruitment  by transfer from Tamil Nadu Registration Subordinaste  Subordinate Service.  According to the appellants, the  recruitment for the post of District Registrar comes under  the purview of the Tamil Nadu Public Service  Commission and the Special Rules had originally  provided that substantive  vacancies of District  Registrars were to be filled  or reserved to be filled  by  direct recruitment and by recruitment  by transfer from  the Madras Registration Subordinate Service  in the  proportion of 1:5, provided that the number of  substantive  vacancies filled or reserved to be filled by  direct recruitment was not to exceed  three at a given  time.    It is the further case of  the appellants that  the  Special Rules were amended on 26th April, 1972, whereby  the proportion  of 1:5 was omitted and it was substituted

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by the condition that  substantive vacancies of District  Registrars were to be filled or reserved to be filled by  direct recruitment and by recruitment by transfer from  the Tamil Nadu Registration Subordinate Service in such  manner that there would be at least three directly  recruited District Registrars in position at any given time  and this would be exclusive of directly recruited District  Registrars occupying higher posts in the  department  or  outside.  It was also stipulated that if in any particular  year, a direct recruit  was to be appointed, he was to be  given the first vacancy.         In 1981, 1982  and 1984, the Government prepared  a  temporary list of officers  who were fit for appointment  by transfer to the post of District Registrar, pending  finalization of the regular list in consultation with the  Tamil Nadu Public Service Commission.  It is the case of  the appellants that the said temporary list for the year  1981 consisted of 34 Sub-Registrars   and the lists for  the years 1982 and 1983 consisted of 36 and 25 Sub-  Registrars, respectively.   Subsequently, temporary  appointments were made under Rule 10 (a) (i) (1) of the  General Rules which reads  as follows:-

"10 (a) (i) (1):  Where it is  necessary in the public interest  owing to an emergency which has arisen to fill  immediately a vacancy in a post borne on the  cadre of a service, class or category and there  would be undue delay in making such  appointment in accordance with these rules and  the Special Rules, the appointing authority  may  temporarily appoint a person, who possess the  qualifications prescribed for the post otherwise  than in accordance with the said rules.

Provided that no appointment by direct  recruitment under this clause shall be made of  any person other than the one sponsored by the  Tamil Nadu Public Service Commission from its  regular or reserve list of successful candidates  to any of  the posts within the purview of the  Tamil Nadu Public Service Commission."       

        Subsequently, the State Government after  considering the proposal of the Inspector General of  Registration and the observations of the Tamil  Nadu  Public Service Commission passed various  orders   regularizing the  services of those candidates from the  Tamil Nadu Registration Subordinate Service who had  been temporarily appointed to function as Deputy  Registrars under Rule  10 (a) (i) (1) of the General  Rules.   Consequently, by virtue of  the State Government’s   orders the services of the said officers who had been  recruited by transfer to the post of District Registrars for  the years 1986-87, 1987-88 and 1988-89 were   regularized. As indicated hereinbefore, the appellants were  directly recruited  as District Registrars in the Tamil  Nadu  Registration Service by G.O. dated 24th Oveober,  1989  and while Sri A. Arumuga Nainar joined his duties    on 9th November,1989, Sri K. Madalaimuthu joined his   duties     on  22nd November, 1989.  Both successfully   completed their probation period but since A. Arumuga  Nainar had joined his duties earlier, he was senior to Sri

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K. Malalaimuthu  in the cadre. Having regard to the Special Rules regarding  recruitment to the post of substantive  vacancies of  District Registrars   in the proportion  of 1:5, which stood  modified on 26th April, 1972 so that at any given time  there would be at least three directly recruited District  Registrars, the appellants claimed that their seniority  should be counted from the year 1986 when the  first set  of transferee officers were sought to be regularized.  The  said claim was  turned down  by the Government on the  ground that in terms of Rule 2 (1)  of the Tamil Nadu  State and Subordinate Services Rules, a person is said to  be appointed to a service only when he discharges for the  first time the duties of a  post borne on the cadre  of such  service and  commences probation or training prescribed  for  members thereof.  It was also indicated that inter se   seniority in the post  of District Registrars where there  was more than one method of recruitment, would  have  to be fixed under Rule 35 (aa) of the Tamil Nadu State  and Subordinate Services Rules read with Rule 2(1).   The  obvious inference was that the seniority of the appellants  could not be fixed in the year 1986 as they had not  entered service at that point of time.  Subsequently,  the  names of the appellants were included in the seniority  list  but placed below  the persons who were promotee  District Registrars. Aggrieved by the preparation of the seniority list, the  appellants herein and one K. Durairajan filed O.A.Nos.  779/1995, 1067/1995, 1068/1995, 7429/1996 and  1181/1997 before the Tamil Nadu  Administration Tribunal  (for short ’the Tribunal’) for a direction upon the respondents  to fix their inter se seniority for the year 1986 in a manner so  that they were placed above the promotees for the said year in  the inter se seniority list.  By its detailed order, the learned  Tribunal dismissed the applications filed  by the appellants  herein upon holding that if their claim was to be accepted,  their seniority will have to date back to  a period  when they  had not even commenced discharging their duties of District  Registrars which would run counter to the provisions of Rule  2(1)  of the Tamil Nadu State and Subordinate  Services Rules.   The Tribunal  accepted the case made out on behalf of the   promotees  who had been appointed temporarily under Rule  10 (a) (1) on different dates  and also took note of the fact that   probation of the said promotees had been declared in respect  of the regular panel of District Registrars for the years 1985- 86, 1986-87 and 1987-88.  Inasmuch as  the appellants  had  been appointed only in 1989, the Tribunal  was of the view  that the claims of the  appellants herein was without merit. Being aggrieved by the decision of the Tribunal, the first  appellant herein filed Writ Petitions Nos. 16806/1998 and  1548/1999.  Mr. K. Durairajan who had filed  O.A.No.1181/1997  did not  challenge the common order  passed by the Tribunal.  Reiterating their submissions made  before the Tribunal, the appellants herein urged before the  High Court that the common order dated 10th August, 1998,  passed by the Tribunal should be quashed and a direction  should be given to the State Government to prepare the inter  se seniority   list between the promotees and the direct  recruits in the cadre of District Registrars by following the  quota as per Rule 25 of the Tamil  Nadu Registration Service  Rules and to grant the appellants consequential  seniority/promotion over all the promotees from 1981 onwards  together with all service benefits. After discussing the Special Rules governing the Tamil  Nadu Registration Service which had originally made provision

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for recruitment by direct recruits and promotees in the  proportion  of 1:5, the High Court took note  of the  Government Order dated 26th April, 1972 whereby such ratio  was amended and it was provided  that substantive vacancies  of District Registrars were to be filled by direct recruitment or  recruitment by transfer from the Tamil Nadu Registration  Subordinate Service in such a manner that   there would be at  least three directly recruited District Registrars in position at  any given time.  The High Court observed that this  amendment virtually took away the  quota  available to the  direct recruits and  merely made a provision  that  at any  given time there should be at least three directly-recruited  District Registrars in  position.    The High Court took note of  the concession given to the directly-recruited District  Registrars to the effect that in a  particular year a direct  recruit was to be given the first vacancy over and above the  promotees. After discussing the relevant rules relating to the  appointment of District Registrars in terms  of the Tamil Nadu  State and Subordinate Service and the Special Rules, the High  Court came to a finding that Rule 23-a of the General Rules  were relevant regarding the filling up of the vacancies by direct  recruitment. In order to understand the reasoning of the High Court,  the provisions of Rule 23-a are set out hereinbelow:-

"Rule 23 (a) -  If a person appointed  temporarily either under sub-rule (a) or sub  rule (d) of the Rule 10 to fill a vacancy  otherwise than in accordance with the rules  governing appointment thereto, such vacancy  being a  vacancy which may be filled by direct  recruitment, is subsequently appointed to the  service, class or category in accordance  with  the rules,  he shall commence his probation if  any, in such category either from the date of  his first temporary appointment or from such  subsequent date, as the appointing authority  may determine.  If  the post is one to which  appointment may be made by transfer, and the  person who had been appointed thereto either   under General Rule 10 (a) or 10 (d) is   subsequently recruited  thereto by transfer  and  included in the list of approved     candidates, the appointing authority may, in  his discretion, allow such person to commence  his probation if any, from the date of his first  temporary appointment or from such   subsequent  date, as the appointing authority  may determine:

Provided that the date so determined by the  appointing authority to commence probation in  this clause, shall not be earlier than the date  of commencement of probation of  the junior  most person already in service."  

       According to the High Court, though initially the  appointment of the promotee District Registrars was said to  have been made under  Rule 10 (a) (i) (1) of the General Rules,  since they had been subsequently recruited by transfer and  included in the list of direct candidates, the appointing  authority had the discretion either to allow them to commence  their probation from the date of their first temporary  appointment or from such subsequent date as the appointing

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authority chose to determine.  The High Court held in the  instant case that when the appointing authority had not  determined any subsequent date for the commencement of the  probation by the promotee  District Registrars, it would mean  that they would deemed to have been allowed to commence  their probation from the date of their first temporary  appointment.  In other words, the moment they commenced  their probation were said to be appointed to the service.         Negating the submissions made on behalf f the  appellants herein that since the initial temporary   appointments of the promotees had not been made according  to the rules, their seniority could not be reckoned from the  date of their initial appointment under Rule 10 (a) (i) (1) of the  aforesaid  rules  and placing reliance on Rule 4 (a) of the  aforesaid rules, the High  Court  distinguished the various  decisions  cited on behalf   of the appellants herein to bolster  their case that appointment in accordance with the rules is a  condition precedent in counting seniority.  The High Court  held that the appointment of the  promotees had been made in  accordance with the Rules and in particular Explanation II to  Rule 4 and that having regard to the above, the said decisions  would  have no application to the facts of the case.  On the  contrary, the High Court was of the view that the  appointments of  the promotees, though temporary and ad  hoc, were not by way of any stop-gap arrangement  and the  decision of this Court in the case of I.K. Sukjhija & Ors. vs.  Union of India reported in 1977 (6) SCC 406   was relied upon  in support of the view that when promotions  are made  on ad  hoc basis against clear vacancies, the seniority  will be  counted from the date of the initial  appointment and not from  the date of confirmation.         On the basis of its aforesaid reasoning, the  High Court  chose not to interfere with the common order passed  by the  Tribunal and dismissed the writ applications filed by the  appellants herein.         As indicated hereinbefore, these appeals have been  preferred against the said judgment and order of the High  Court of Judicature of Madras.         Appearing in support of the appeals, Mr. L. Nageshwara  Rao, learned senior  advocate, firstly submitted that the High  Court had erred in applying Rule 4 of the Tamil Nadu State  and Subordinate Services  Rules to the facts of the instant   case,  inasmuch as, the appointment orders of the promotees  themselves indicate that they had been appointed temporarily  under Rule 10 (a) (i) (1) of the Tamil Nadu State and  Subordinate  Services Rules.  For the sake of convenience   Rule 4  of the aforesaid Rules is set out hereinbelow:-

       "Rule 4 (a) -  All first  appointments to a  service or class or category or grade thereof,  State of Subordinate, whether by direct  recruitment or by recruitment by transfer or by  promotion, shall be made by the appointing  authority from a  list of approved candidates.   Such list shall be prepared in the prescribed  manner by the appointing authority or any  other authority empowered in the Special  Rules in that behalf and shall be published in  the Tamil  Nadu Government Gazette in  respect of appointments to State Services and   in the Notice Board in the office of the  appointing authority in respect of  appointments to Subordinate Services.  The  list shall also be communicated to all persons  concerned by Registered Post whose names are

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found in such list whose names have not been  included in the list, where the candidates in  such list are arranged in their order of  preference, appointments to the service shall   be made in such order:

Explanation II: "In respect of appointment to  the post, which are under the purview of the  Tamil Nadu Public Service Commission,  temporary list may be drawn and published as  aforesaid with  reference to the qualification on  the date fixed for the regular lists to meet out  the exigencies of service and to avoid,  administrative delay.  Once a qualified  candidate is included in the temporary list  with reference to the qualification on the  crucial date fixed for regular list his rights for  temporary appointment should be protected   and he should not be overlooked in preference  to a person, who was not included in the  temporary list as he was not qualified  on the  crucial date  but subsequently qualified.  The  temporary  list shall  be adopted for giving  temporary appointments till the regular list is  approved and regular appointments are made  with reference to the regular list."               

       Mr.Rao urged  that  none of the conditions indicated in  Rule 4 regarding  preparation and publication of the list of  approved candidates  had been complied with and, and on the  other hand,  the orders of promotion and posting of  the  promotees were admittedly made under Rule 10 (a) (i) (1) of the  General Rules which specifically indicates that  such  appointments were made  otherwise than  in accordance with  the Rules.  The further case of the appellants was that since  the initial appointment of the promotees had been made  otherwise  than in accordance with the rules, they would not  be entitled to the benefit of  their service rendered by them  prior to the regularization of their  appointment for counting  their seniority and that their seniority will have to be reckoned  from the date on which  they were regularized.  In support of  such proposition, reliance was placed on the decision of this  Court  in the case of V. Sreenivasa Reddy and Ors. vs.  Government of Andhra Pradesh and Ors. 1995 Supp. (1) SCC   572 , wherein this Court was called upon to consider the  dispute involving inter se  seniority between  persons  temporarily appointed as Assistant Executive Engineers   dehors     the rules, to fill emergent vacancies as against direct  recruits.   It was held that since the appointment of the  concerned appellants were  under Rule  10 (a) (i) (1), they were  not made part  on the basis of  selection by the Public  Service  Commission and, therefore, their appointments were made  otherwise than  in accordance with the  Special Rules.  They  cannot, therefore, be members of  the service till they were  appointed to the service in accordance with the Special Rules.   It was also held that a direct recruitee takes his seniority from  the date on which he starts discharging the duty of the post  borne on the cadre while a temporary appointee appointed    dehors the rules or on ad hoc basis or to a fortuitous vacancy  gets seniority  from the date of regular appointment.   Considering further the effect of Rule 4, 23 (a) and 33(a) of the  Rules and Rule 5 of the  sub-rules, this Court  went to  hold  that a Public  Service Commission candidate gets his seniority  from the date on which he starts discharging his duties on the  post  borne on the cadre and his seniority shall be determined

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with effect from  that date while in respect of temporary  appointees under Rule 10 (a( (i) (1) who are subsequently  appointed in accordance with  the Rules, the temporary  service rendered  prior to their appointment would not be  counted  towards their seniority. Reliance  was also placed to another decision of this  Court  in the case of State of Tamil Nadu and Ors. vs. E.  Paripoornam and Ors., 1992 Supp (1) SC 420, wherein also   the provisions of Rule 10 (a) (i) (1) of the Tamil Nadu State and  Subordinate  Services Rules were under consideration in  respect of  Junior Professors who were later appointed on a   regular basis on the basis  of an approved list prepared by the  Public Service Commission.  Even though the order or  regularization of the  services of such temporary appointees  were intended to be regularized with effect from the dates of  their original appointments on a temporary basis, this Court  held that they would not be entitled to count their temporary  service for the purpose of seniority and that the services  rendered by the appointees under Rule  10 (a) (i) (1) could not  be considered for the purpose of seniority  as such  appointment was  a stop-gap arrangement, emergency or  fortuitous arrangement. A later decision of this Court in the case of Sanjay K.  Sinha-II and Ors. vs.  State of Bihar and Ors., (2004) 10 SCC  734 was referred to by Mr. Rao regarding  promotions against  non-existing posts  and its effect on inter se seniority  with  direct recruits.  This  Court held that appointments made  contrary to rules were merely fortuitous and did not confer  any benefit of seniority on appointees over and above the  regular/substantive appointees to the service. Several other decisions in which the aforesaid principle  had been reiterated were relied upon by Mr. Nageshwara Rao,  but reference to the same  could only amount to multiplication  of the   decisions cited.  It was contended by Mr. Rao that  seniority in a cadre could only  be in respect of substantial  posts and not in respect of temporary posts made otherwise   than in accordance with the rules.    Mr. Rao urged that the High Court  had, in fact, taken a  view which was contrary to the law as laid down by this Court  and, could not, therefore, be sustained. Mr.R.Venkataramani, learned senior advocate, who  appeared for the respondents sought to justify the order  passed by the High Court and contended that unless there  was  a contrary rule, service rendered on probation or in an  officiating capacity could not be ignored for determination of  seniority  as was held by this Court in L. Chandrakishore  Singh vs. State of Manipur and Ors., (1999) 8 SCC 287.   In  the said matter, a further observation was made that grant or  approval to an appointment made  without following the  prescribed procedure  implies  confirmation and relates back  to the date on which appointment was made.  In other words,  the entire period of service in such case counts for seniority. On a consideration on the submissions made on behalf of  the respective parties and the decisions cited on their behalf,  the consistent view appears to be the one canvassed  on behalf  of the appellants, the decisions cited by Mr. Rao  have been  rendered in the context of Rule 10 (a) (i) (1)  and the other  relevant rules which are also applicable to the facts of the  instant case.   The law is well established that initial  appointment to a post without recourse to the rules of   recruitment, an appointment to a service as contemplated  under Rule 2 (1) of the General Rules,  notwithstanding the  fact that such appointee is called upon to perform   duties  of  a post borne on the cadre of such service.  In fact, Rule 39 (c)  of the General Rules indicate that a person temporary

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promoted in terms of Rule 39 (a)  is required to be replaced as  soon as possible  by a member of the service who is entitled to  the promotion under the rules.  It stands to reason that a  person who is appointed temporarily to discharge the  functions in a particular post without recourse to the  recruitment rules, cannot be said to be in service till such time  his appointment is regularized.  Therefore, it is only from the  date on which his services are regularized that such appointee  can claim  seniority over those appointees subsequently. In the instant case the authorities, on the strength of  the   several Government Orders giving retrospective effect to the  regularization of the promotees,  have  taken  the date of initial  appointment of such promotees  as the starting point of their  seniority.   In our view, such a course of action was erroneous  and contrary to the well established principles relating to   determination of seniority.  In our view, the High Court  appears to have taken an erroneous  view in the matter in  holding that the period during which the promotees had  initially discharged the duties of District Registrars, though  appointed under Rule 10 (a) (i) (1) were to be counted for  determining  their seniority. We, therefore, set aside the order passed by the High  court and direct the concerned respondents to re-determine  seniority of the appellants in relation to the promotees after  reckoning the starting point of seniority of such promotees  from the date of regularization of  their services. The appeals, therefore, succeed and are disposed of with  the aforesaid directions.  There will be no order as to costs.