1

“REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  3582-84          OF 2009 (Arising out of SLP (Civil) Nos. 1128-1130 of 2005)

M.P. Palanisamy & Ors.       …. Appellants  

Versus

A. Krishnan & Ors.       …. Respondents  WITH

CIVIL APPEAL NOS.   3585-86      OF 2009 (Arising out of SLP (Civil) Nos. 7621-7622 of 2005)

M.P. Palanisamy & Ors.       …. Appellants  

Versus

Government of Tamil Nadu & Ors.       …. Respondents  

JUDGMENT

V.S. SIRPURKAR, J. 1. Leave granted in all the cases.

2. This judgment shall govern SLP (C) Nos. 1128-1130 of 2005 and  

SLP (C) Nos. 7621-7622 of 2005.  All the appellants herein challenge the  

judgment of the Madras High Court whereby the Writ Petitions filed by  

them were disposed of with the following direction:-

“As  regards  the  first  category  of  teachers,  those  appointed  between  01.07.1978  to  28.04.1981,  their  seniority from will be reckoned from the date on which  they acquire the required qualification, provided they do  so within such time as extended by the Government and  subject to the concurrence of Tamil Nadu Public Service  Commission.

As  regards  the  second  category  of  teachers,  those  appointed after  28.04.1981 and selected by the Tamil

2

Nadu Public Service Commission their seniority will  be  fixed as per the Tamil Nadu Public Service Commission  list.

As  regards  the  third  category  of  teachers,  those  appointed  after  28.04.1981  and  who  have  not  been  selected by the Tamil Nadu Public Service Commission  and whose  services  have been regularized  by  GOMs  No.  1813  dated  12.12.1988,  their  seniority  will  commence immediately after the last person in the list in  the second category.

However, in the circumstances of the case, there will be  no  orders  as  to  costs.   Consequently,  the  connected  miscellaneous petitions are closed.”

3. This  judgment  disposed  of  Writ  Petition  Nos.  21163-64/2003,  

21347/2003, 21640/2003, 21641/2003 and 29075-77/2003.  One another  

Writ Petition filed along with these was, however, ordered to be de-linked.  

All  these Writ Petitions involved the question of  inter se seniority of the  

higher  secondary  school  teachers  called  Post  Graduate  Assistants  

(hereinafter referred to as “P.G. Assistants” for short) who were appointed  

from the year 1978.

4. The  relevant  G.O.Ms.  No.  1813,  Education  Department  dated  

12.12.1988  was  challenged  in  all  these  Writ  Petitions  in  so  far  as  it  

pertained to the fixation of seniority as shown in clause (ii) therein for the  

sake of clarity it will be better to quote the said G.O.Ms:

“The said posts of  teachers have been excluded from  the  purview  of  the  Tamil  Nadu  Public  Service  Commission with reference to the orders issued in the  G.O.  Ms.  Nos.  139  and  1320,  Education  Department  dated  17.8.1987.   Recently  a  separate  Teachers  Recruitment Board has been constituted for recruitment

3

of teachers to the schools.  In the circumstances, the  Government direct that the services of the fully qualified  P.G.  Assistant  in  Academic  subjects,  Languages  and  Physical  Directors  who  were  appointed  temporarily  under the provisions of the Rule 10(a)(i) and who are in  service  till  date  shall  be  regularized  from the  date  of  their temporary appointment and subject to the following  conditions:

(i) The candidates regularized by this order will  get monetary benefits from the date of issue  of this order.

(ii) They will  be placed below the candidates  selected by the Tamil Nadu Public Service  Commission while ranking their seniority i.e.  these  candidates  will  take  their  seniority  below  the  last  candidate  selected  by  the  Tamil  Nadu  Public  Commission  for  the  year.”

5. Ms.  Nalini  Chidambaram,  learned  Senior  Counsel  appearing  on  

behalf  of  the  appellants  along  with  Ms.  Indu  Malhotra  and  Shri  M.N.  

Krishnamani, learned Senior Counsel assailed the judgment mainly on the  

question that the directions given by the High Court were in breach of the  

basic  principles  of  service  jurisprudence  to  the  effect  that  the  persons  

entering into the service first have to be conferred with the seniority from  

the  date  of  entering  into  the  service,  particularly,  when  the  service  is  

regularized. In other words, the learned counsel urged that the seniority of  

the  petitioners  must  be  reckoned  form  the  date  they  entered  into  the  

service even if they were regularized later on as compared to the others.

6. Before approaching this question it will be necessary to see in short  

the uncontroverted facts.

4

7. The concerned teachers in these appeals can be classified in three  

groups.   The  first  group  is  of  Post  Graduate  Assistants  who  were  

appointed in between 01.07.1978 and 28.04.1981.   Second group is of  

those Post Graduate Assistants who were duly selected by the Tamil Nadu  

Public Service Commission (hereinafter referred to as ‘TNPSC’ for short)  

and appointed in 1986.  The third group is of the Post Graduate Assistants  

appointed temporarily under  Rule 10(a)(i)(1) of General Rules of TNPSC  

{hereinafter referred to as “Rule 10(a)(i)(1)” for short} after 28.4.1981 and  

regularized ultimately by order dated 21-22.12.1988 placing them below  

the TNPSC candidates of group-II.   

8. The learned counsel at the beginning of the debate reiterated that  

the appellants have no quarrel with the seniority awarded to the first group.  

However,  their  contest  was  with  the  second  group  of  Post  Graduate  

Assistants who were selected by the TNPSC and appointed in the year  

1986.  The basic challenge is that such candidates in the third group who  

were  appointed  prior  to  1986  but  were  regularized  in  1988  should  be  

offered  the  seniority  over  and  above  the  Post  Graduate  Assistants  

belonging  to  the  second  group  on  the  basis  of  their  having  been  

regularized in the year  1988.  In short,  the learned counsel  argued that  

unbroken  and  continuous  service  of  the  Post  Graduate  Assistants  

belonging to third group from the date of their appointment though in the  

ad hoc capacity should be recognized as such over and above those who

5

come in the service for  the first  time in 1986 by way their  selection by  

TNPSC and the subsequent appointments as a result thereof.

Short History

9. The  Government  of  Tamil  Nadu  introduced  10+2  system  w.e.f.  

01.07.1978 in the sense that for passing the higher secondary examination  

one was required to pass 10th standard examination popularly known as  

Matriculation examination and thereafter had to pass 11th and 12th standard  

examination.   The  12th standard  examination  being  called  Higher  

Secondary Examination conducted by the Board of Education.  In that, the  

pre-university course run by the colleges which the students could take  

only  after  passing  the  Matriculation  i.e.  10th standard  examination  was  

detached  from  the  colleges.   About  800  matriculation  schools  were  

upgraded  as  Higher  Secondary  Schools.  This  naturally  resulted  in  the  

unprecedented  rise  in  the  school  students  population  requiring  extra  

teachers to teach those classes in schools.   This became all  the more  

necessary as the decision to introduce 10+2 pattern was taken suddenly  

while there were no statutory Rules and, therefore, the appointments were  

made  to  the  posts  of  Post  Graduate  Assistants  from  amongst  those  

teachers  who  were  earlier  called  BT  Assistants  and in  addition  to  that  

possessed Master degrees.  Some such teachers even did not have B.Ed  

qualification.

6

10. After exhausting those teachers remaining posts came to be filled up  

by calling the applications through Employment  Exchanges.   Ultimately,  

these teachers who were who were so appointed were made permanent  

with  the help of  special  Rules which were framed in exercise of  power  

under  Section  309  of  the  constitution  of  India  vide  G.O.Ms.  No.  720,  

Education Department  dated 28.04.1981.   This G.O.Ms.  had prescribed  

the qualification for the Post Graduate Assistant as Master degree with  

B.Ed.  In the special Rules one Rule 11 was introduced which were as  

under:

“Rule 11: Savings-Notwithstanding  anything  contained in Rule 2 and 6 above, the service of these  persons who are holding, on the date of issue of these  Special  Rules,  the  post  of  Head  Masters  and  Head  Mistresses  in  Academic  subjects,  teachers  in  Languages  and  Physical  Directors  and  Physical  Directresses  in  Higher  Secondary  School  and  who  possess the qualifications prescribed for such category  in  the Annexe shall  be regularized after  obtaining the  concurrence  of  the  Tamil  Nadu  Public  Service  commission under the Tamil Nadu Service Commission  Regulations, 1954 and in respect of those persons who  do  not  possess  the  qualifications  prescribed  for  such  category in the Annexe and who are holding such posts  on  the  date  of  issue  of  these Special  Rules  shall  be  regularized only after they acquire the said qualifications  and after  obtaining concurrence of  Tamil  Nadu Public  Service  Commission  under  the  Tamil  Nadu  Public  Service  Commission  Regulations,1954  provided  they  acquire  the  said  qualifications  within  a  period  of  five  years from  1st July, 1978.  If they fail to acquire the said  qualifications  within  the specified  period they shall  be  replaced by suitable qualified candidates.”

7

11. Therefore, as per the above Rule those who already had the Master  

degree  and  B.Ed.  were  directed  to  be  regularized  straightway.   Such  

others who did not have that qualification were given five years’ time w.e.f.  

01.07.1978  to  acquire  the  qualification  and  on  acquisition  of  the  

qualifications,  they  were  directed  to  be  regularized  only  after  getting  

concurrence  from  TNPSC.   There  is  no  dispute  that  the  contesting  

respondents  herein  had  acquired  such qualifications  before  30.06.1983  

and their services were regularized.

12. The  Government  also  temporarily  appointed  some teachers  after  

28.4.1981,  who  had the necessary qualifications under Rule 10(a)(i)(1).  

This Rule provides for adhoc appointments.  They were so appointed to  

meet the emergent situation of shortfall created because of the application  

of  new  pattern  of  10+2.   They  were  not  selected  by  TNPSC.   Their  

appointments were prior to 1986.   

13. At this stage the TNPSC started taking steps to fill up the 660 posts  

of  Post  Graduate  Assistants  by  holding  examination  and  issued  an  

advertisement  dated  5.6.1984.   On  14.8.1984  G.O.M.S  No.1049  was  

issued  informing  that  all  the  P.G.  Assistants  appointed  after  28.4.1991  

would have to take up the examination by TNPSC and without that such  

teachers  could  not  continue.   However,  representations  were  made  by  

these temporarily appointed teachers under Rule 10(a)(i)(1) through their  

Associations.  These representations were for the purposes of regularizing

8

the services of these Post Graduate Assistants who were appointed in ad  

hoc manner  under  Rule  10(a)(i)(1)  without  taking  the  proposed  

examination by TNPSC.  This representation was sent to the Government  

which  ultimately  forwarded  it  to  TNPSC  for  its  view.   However,  the  

representation  was  negatived  and  ultimately  the  TNPSC  held  the  

examination for filling up the posts of Post Graduate Assistants in the year  

1985.   Thereby  the  ad  hocly appointed  Post  Graduates  Assistants’  

regularization was rejected.  It was notified by the Government that those  

candidates  who  were  appointed  as  Post  Graduate  Assistants  before  

28.04.1981 need not apply for those posts as almost all  the candidates  

had qualified themselves within five years and only a few were left out.  

(The Government ultimately extended the time by two years from 1983 to  

1985 and from 1985 to 1987 for enabling these persons to acquire the  

qualifications)   Those  who  could  not  acquire  these  qualifications  were  

admittedly  not  included  in  the  impugned  panel.   As  has  already  been  

stated above the appellants have no quarrel with this particular category of  

teachers.  

14. At this stage, a Writ Petition came to be filed before the High Court  

by some third group teachers seeking injunction against holding of that  

examination by the TNPSC and filling the posts thereby.  However, even  

that prayer for injunction was negatived by the High Court and ultimately  

the TNPSC after holding the examination selected the second category of  

the  Post  Graduate  Assistants  and  appointed  them  on  8.8.1986  and

9

ultimately they became the members of the Service from that date.  It is  

relevant  to  mention  here  that  at  that  time  also  the  appellants  had  not  

become members of the service since they were only  ad hoc appointees  

under Rule 10(a)(i)(1).  It is also relevant to note that these appellants had  

the option to compete in the said examination.  Some who appeared in  

TNPSC examination failed to qualify and the rest did not bother to take the  

examination  at  all.   They thereby shunned from competing  against  the  

fresh  candidate  appearing  in  the  TNPSC  examination.   However,  the  

concentrated  efforts  for  regularizing  of  such  candidates  who  were  

appointed under Rule 10(a)(i)(1) in the ad hoc manner were continued by  

their Association and as a result thereof they were ultimately regularized  

by G.O.Ms. dated 12.12.1988 on a condition that they would not be entitled  

for monetary benefits and would have to take their seniority below the last  

candidate  selected by TNPSC in  the examination.   They accepted  this  

conditional regularization without demur.

15. Before this G.O.Ms. No. 1813 dated 12.12.1988, two other G.O.Ms.  

were  issued,  they being G.O. No.  1320 dated 17.8.1987 and G.O. No.  

1671 dated 3.11.1988.  We would, however, not be concerned with these  

G.Os. in the present controversy.  After the G.O.Ms. dated 12.12.1988 was  

brought  in,  the  third  category  of  P.G.  Assistants  appointed under  Rule  

10(a)(i)(1) filed Original Application bearing O.A. No. 3760 of 1991 before  

the  Tamil  Nadu  Administrative  Tribunal  (hereinafter  referred  to  as  “the  

Tribunal” for short).  Very significantly, in this Original Application, the P.G.

10

Assistants appointed under Rule 10(a)(i)(1) did not challenge the second  

condition regarding seniority imposed in G.O.Ms. No. 1813 to the effect  

that they would be placed below the candidates selected by TNPSC, while  

ranking their seniority.  The said Original Application was allowed, thereby,  

the past monetary benefits were granted to these P.G. Assistants.  Thus,  

these  P.G.  Assistants  clearly  accepted  the  second  condition  regarding  

their  seniority.   Similarly,  another  Original  Application  bearing  O.A.  No.  

3617 of 1994 came to be filed by some other P.G. Assistants, claiming  

relief of regularization of their services from the date of their appointment  

instead of their obtaining the qualification.  However, the Tribunal did not  

grant that relief  and merely granted the relief  regarding the increments,  

selection grade etc.  w.e.f.  their  initial  appointment  but  not in respect of  

seniority.  A further Writ Petition came to be filed vide W.P. Nos. 2911 and  

3041 of 1998, wherein, the High Court, by its judgment dated 24.3.1998,  

modified the order of the Tribunal holding that the Rules should be relaxed  

from their date of initial appointment, but they could not claim seniority over  

the P.G. Assistants, who were appointed with the requisite qualification nor  

could they claim any arrears prior to their obtaining the qualification.  On  

9.9.1999, a further G.O.Ms. No. 276 was issued on the basis of the High  

Court  judgment,  whereby,  it  was  ordered that  the P.G.  Assistants,  who  

were initially appointed without necessary qualification, shall be regularized  

only  from  the  date  on  which  they  obtained  the  qualification  and  their  

seniority shall be reckoned from the date of their regularization.  However,

11

as  a  concession,  service  rendered  for  the  period  prior  to  their  

regularization was to be taken into consideration only for the purpose of  

calculating the pension.  Therefore, at least from 1988 till 1998, the things  

remained as they were in respect of the seniority of the P.G. Assistants  

appointed under Rule 10(a)(i)(1).

16. In between, there is one more development, i.e., TNPSC appointed  

P.G. Assistants filed two Original Applications, they being O.A. No. 5205 of  

1999  and  3638  of  2000,  assailing  the  proceedings  in  Na.  Ka.  No.  

39470/W1/2/98  dated  24.8.1998  of  the  Director  of  School  Education,  

whereby  they  claimed  seniority  over  and  above  the  P.G.  Assistants  

appointed under Rule 10(a)(i)(1).  In their O.A., they had also claimed the  

promotions after  fixing up the seniority  over and above P.G. Assistants  

appointed under Rule 10(a)(i)(1).  That Original Application was dismissed  

by the Tribunal by its judgment dated 3.7.2002.  On 9.4.2003, however, the  

Director of School Education issued a communication being Na. Ka. No.  

136188/W18/02, clarifying that if the P.G. Assistants were appointed in the  

same  year  as  that  of  the  TNPSC  selected  P.G.  Assistants,  then  the  

TNPSC P.G.  Assistants  will  rank senior  to the non-TNPSC candidates.  

But if different modes were adopted for recruitment in different years, the  

TNPSC  candidates  of  a  later  year,  cannot  rank  senior  to  a  candidate  

recruited in the earlier year by a non-TNPSC mode.  Further on 18.6.2003,  

another letter came to be issued by Director of School Education, calling  

for  the list  of  candidates for  preparation of  Panel  for  the post  of  Head

12

Masters.  In pursuance thereto, a list of P.G. Assistants appointed upto  

31.5.1982  was  issued.   However,  the  Director  of  School  Education  

prepared a Panel of 393 candidates for the post of Higher Secondary Head  

Masters, which did not include the names of the third category candidates,  

i.e., the P.G. Assistants appointed under Rule 10(a)(i)(1).  In this list, the  

candidates, whose names appeared from S.Nos. 1-143 were admittedly  

senior to these P.G. Assistants appointed under Rule 10(a)(i)(1) and their  

seniority  was  and  is  not  being  disputed.   However,  according  to  the  

present P.G. Assistants appointed under Rule 10(a)(i)(1), the candidates  

whose  names  appeared  from  S.No.  143  onwards,  were  the  P.G.  

Assistants selected by TNPSC and appointed in 1986.   

17. They claim that all those P.G. Assistants should be ranked junior to  

the  P.G.  Assistants  appointed  under  Rule  10(a)(i)(1),  as  these TNPSC  

appointed  P.G.  Assistants  had  acquired  qualification  after  their  

appointments  and  further  that  though  they  were  regularized  w.e.f.  

12.12.1988, their regularization should have been given effect to from the  

date  of  their  appointment.   Hence,  challenging  this  Panel,  number  of  

Original  Applications  were  filed  before  the  Tribunal,  they  being  O.A.  

Nos.2155, 2255, 2262, 2315, 2370, 2396 & 2397 of 2003 by various P.G.  

Assistants  individually.   Very  significantly,  their  representative  body,  

however, was not a party to these original applications either in its capacity  

as  an  applicant  or  as  respondent.   The  Tribunal,  by  its  order  dated  

18.7.2003, allowed the said O.As.  It  was held by the Tribunal that the

13

petitioners, who were initially appointed under Rule 10(a)(i)(1) in between  

1981 and 1982 and had all the necessary qualification and whose services  

were later on regularized on 12.12.1988, had to be placed over and above  

the corresponding P.G. Assistants who were appointed earlier but without  

necessary qualification and had acquired the qualification later and whose  

services  were  regularized after  the acquisition  of  qualification (in  short,  

group two P.G. Assistants here).  The Tribunal also held that the ranking  

given by the TNPSC and the placement of candidates in the seniority list  

was not relevant to the issues, as the TNPSC candidates came in service  

later  on,  as  compared  to  the  P.G.  Assistants  appointed  under  Rule  

10(a)(i)(1).   The Tribunal,  therefore,  directed the State Government and  

the Director of School Education to revise the Panel for the post of Head  

Masters from S.No. 143 onwards in such a way that the P.G. Assistants  

appointed  under  Rule  10(a)(i)(1)  are placed in the appropriate  place in  

accordance with their seniority, meaning, their date of appointment.

18. This judgment of the Tribunal was challenged by filing various Writ  

Petitions in the High Court, those Writ Petitions being W.P. Nos. 21163,  

21164, 21347, 21640, 21641, 19075 to 29077 of 2003 and 9719 of 2004.  

Later on, the last mentioned Writ Petition was separated.  The High Court  

invited the counter affidavits from the respondents, more particularly, from  

the State Government and its Authorities.  By the impugned judgment, the  

Writ Petitions filed by the TNPSC selected P.G. Assistants were allowed.  

While disposing of the Writ Petitions and allowing them, the High Court has

14

given the directions which are contained in para 2 of this judgment.  It is  

this judgment, which has fallen for our consideration in the present case.

19. As has already been stated, the contention of the appellants is that  

they  had  all  the  qualifications  for  holding  the  posts  of  Post  Graduate  

Assistants  when  they  were  appointed  under  Rule  10(a)(i)(1)  and  their  

service was also without any breaks and they were ultimately regularized  

in the year 1988.   Therefore, though the act of the State Government in  

regularizing  them was  correct,  the  provision  that  their  seniority  will  be  

below those who were selected by TNPSC in 1986, is not correct.  Ms.  

Nalini Chidambaram, Learned Senior Counsel appearing on behalf of the  

appellants,  alongwith  Ms.  Indu  Malhotra  and  Mr.  M.N.  Krishnamani,  

Learned Senior Counsel, firstly urged that when a candidate is appointed  

under Rule 10(a)(i)(1) on ad-hoc basis and is subsequently regularized,  

then ordinarily, his seniority has to be reckoned from the date when he was  

first appointed, provided he has all the necessary qualifications for the job.  

There can be no dispute with this proposition generally, however, it must  

be borne in  mind that  though the appellants  herein  had the necessary  

qualifications at the time of their initial appointment under Rule 10(a)(i)(1)  

and though they were  subsequently  regularized  also,  the regularization  

was conditional regularization, which was done way back in 1988.  The  

condition  regarding  the  seniority  was  explicit  in  the  said  regularization,  

which is clear from the mere reading of the G.O.Ms. No. 1813.  It cannot  

be forgotten that this regularization was all along accepted by the present

15

appellants.   Once  they  chose  to  accept  the  regularization  which  was  

conditional, then it would have to be borne in mind that they have accepted  

the conditions also.  It cannot be countenanced that only the favourable  

part of the G.O.Ms. was accepted by them and the unfavourable part was  

rejected.   If  they  had  to  do  it,  they  had  to  challenge  the  G.O.Ms.  

immediately.  They did not do it, instead they waited almost for six years,  

when for the first time, they came out with an Original Application vide O.A.  

No.  3617 of  1994.   Again,  when the matters  were  decided in  the Writ  

Petition  Nos.  2911  and  3041  of  1998  on  24.3.1998  and  the  seniority  

prayed for on the basis of initial appointment was refused to them, they  

kept quiet, only to raise the same demand again in 2003 when the Panel  

was prepared.  The Panel is absolutely correct in the light of G.O.Ms. No.  

1813.   The  appellants  merely  raised  a  lame  plea  that  they  did  not  

challenge the G.O.Ms. No. 1813, as they were expecting themselves to be  

placed over and above the TNPSC selected candidates.  Such could never  

be the position in the wake of plain language of G.O.Ms. No. 1813.  This is  

one of the main reasons why the claim of the appellants has to be rejected.  

The aspect of conditional regularization, therefore, had to be kept in mind.   

20. The further  sinister  silence for  about  six  years  and thereafter,  till  

2003 inspite of adverse judgments, also goes against the appellants.  The  

Learned  Senior  Counsel  for  the  appellants  very  heavily  relied  on  the  

change of the Government’s stand.  It was pointed out that the Department  

had all along given the interpretation that the second condition in G.O.Ms.

16

No.  1813  applied  only  when  the  candidates  appointed  under  Rule  

10(a)(i)(1) and the TNPSC selected candidates came in the same year.  

That may be so.  However, the parties cannot be allowed to act on the  

impressions, when the original text of the G.O.Ms. says otherwise.  There  

was  nothing in  the language of  the G.O.Ms.  No.  1813 that  the second  

condition would  apply  when the appointments  of  P.G.  Assistants  under  

Rule 10(a)(i)(1) and the TNPSC selected P.G. Assistants would be in the  

same year.  That was wholly wrong.  Even clarification by the Director of  

School  Education  had  given  a  wrong  position.   That  error  could  be  

perpetuated.   In our opinion, it  was rightly corrected later on when the  

stand was taken that all these P.G. Assistants would be below the TNPSC  

selected P.G. Assistants.

21. This stand is correct, as though the appellants were fully qualified  

P.G. Assistants at the time of their initial appointment after 1981, the fact of  

the matter is that they never faced any competition.  They studiously and  

conveniently  desisted from taking the examination,  though it  was  made  

very clear to them that they would have to take the examination.  It was  

feebly argued before us by the Learned Senior Counsel for the appellants  

that  they  had  no  opportunity  for  doing  so,  as  the  last  date  for  the  

examination had already passed.  We do not understand as to what the  

appellants were waiting for.  There was a general advertisement issued  

and there was no question of presuming that these P.G. Assistants would  

in any manner be exempted from taking the examination of TNPSC without

17

whose selection, they could never enter the Government service.  Under  

the  circumstances,  it  was  for  these  P.G.  Assistants  to  appear  for  the  

examination and prove themselves.   They had come in ad-hoc manner  

and, therefore, they could not expect regularization straightaway.  Under  

these circumstances, they remained on the roll  in their  ad-hoc capacity  

and, therefore, were not the members of the service.  Rule 23(a)(i) of the  

Tamil Nadu State and Subordinate Services Rules  provides as under:-

“23(a)(i) Date  of  commencement  of  probation  of  persons  first  appointed  temporarily:-  If  a  person  appointed  temporarily  either  under  sub- rule  (a)  or  sub-rule  (b)  of  the  rule  10  to  fill  a  vacancy  in  any  service,  class  or  category  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.

18

Provided  further  that  on  the  date  so  determined  by  the  appointing  authority  to  commence  probation  in  this  clause,  the  person  shall  not  only  possess  all  the  qualifications  prescribed  for  appointment  to  the  service,  but  also  be  fit  for  inclusion  in  the  list  of  approved  candidates drawn  up by the Tamil  Nadu Public  Service Commission or the appointing authority,  as the case may be.

One  look  at  the  first  proviso  shows  that  in  case  of  an  ad-hoc  

employee, he cannot claim any seniority to the junior most person already  

in service.  The words “junior most person already in service” in the proviso  

are extremely important.  All the TNPSC P.G. Assistants were already in  

service,  when  the  question  of  regularization  of  the  P.G.  Assistants  

appointed  under  Rule  10(a)(i)(1)  came for  consideration.   Till  then,  the  

Government  had  steadfastly  refused  the  regularization  and  ultimately,  

chose  to  regularize  them  only  in  1988.   Therefore,  the  stance  of  the  

Government in providing the second condition was absolutely correct and  

by mere subsequent regularization, that too without taking any examination  

under TNPSC or undergoing any recruitment process and facing general  

competition from the other candidates, the ad-hoc P.G. Assistants could  

not be held seniors to those, who were already in service.  If, therefore,  

these ad-hoc P.G. Assistants claim a seniority over and above the TNPSC  

selected candidates, who were admittedly already in service, it would be  

ridiculous in the wake of a very clear language of G.O.Ms. No. 1813.  It will  

be further ridiculous as the said condition was accepted by all  the P.G.  

Assistants appointed under Rule 10(a)(i)(1) without a demur and as if this

19

is not sufficient, they did not challenge it at least for six long years and  

thereafter,  upto  2003.   All  this  goes  totally  against  the  claim  of  the  

appellants.  We also cannot ignore the fact that some of the appellants did  

appear  for  the  TNPSC  examinations  and  failed.   It  will  now  be  

preposterous if those failed candidates who were later on regularized, are  

placed over and above the successful candidates in TNPSC examination  

and  selection  process  which  followed  the  said  examination.   This  is  

another reason why the claim of the appellants must fail.

22. Mr. C. Selvaraju, Learned Senior Counsel, appearing on behalf of  

the contesting respondent, pointed out one more pertinent fact before us.  

According to him, before the promotion Panel was prepared in 2003, there  

was  already  a  seniority  list  existing,  wherein  the  first  group  of  P.G.  

Assistants were placed on top and below them, the second group of P.G.  

Assistants selected by TNPSC were placed and it is only after them that  

the appellant P.G. Assistants, who were appointed under Rule 10(a)(i)(1)  

were  shown.   He  pointed  out  that  the  said  seniority  list  was  never  

challenged by the present appellants and they only claimed the benefit of  

seniority, when the Panel for promotions was prepared for the first time in  

2003.  Thus, right from 1988, when they were regularized, they accepted  

the second condition,  obtained the regularization and thereafter,  for the  

first  time,  chose  to  challenge  the  seniority  list  indirectly  in  1994  and  

thereafter, directly in 2003.  This, they could not do.  The submission is  

undoubtedly, sound.

20

23. We cannot,  at  this  juncture,  ignore the fact  that the appellants in  

their  first attempt before the Tribunal,  challenged only the first condition  

regarding  the  appointment  and  chose  not  to  challenge  the  second  

condition.  At that juncture, they had the full opportunity of challenging the  

second condition  also.   They  conveniently  interpreted  the  G.O.Ms.  No.  

1813 in their favour, and in our opinion, wrongly, and ignored to challenge  

the second condition.  This is not permissible.  They could not thereafter  

turn back and challenge the second condition in the second or third round  

of litigation.  It is for this reason also, that the claim of the appellants must  

fail.   

24. Speaking on the interpretation of  G.O.Ms. No. 1813, the Learned  

Senior Counsel appearing on behalf of the appellants, led a great stress on  

the language of second condition, more particularly, on the last 3 words,  

they being “for the year”.  For the convenience sake, we will  quote that  

condition:-

“They will be placed below the candidates selected by the TN  Public Service Commission while ranking their seniority, i.e.,  those candidates selected by the TNPSC for the year.”  

Relying  on  this,  the  Learned  Senior  Counsel  contended  that,  

therefore,  the  appellants  were  quite  justified  in  interpreting  that  the  

seniority rule will  apply only and only if  the candidates appointed under  

Rule 10(a)(i)(1) and the TNPSC selected candidates were appointed in the  

same year.  The Learned Senior Counsel took the argument further and

21

submitted that since the appointment of the TNPSC selected candidates  

came only in the year 1986, only those candidates under Rule 10(a)(i)(1)  

would be rendered junior who were appointed after 1986, but those, who  

were appointed earlier, would have to be held to be senior to the TNPSC  

selected candidates.  We are not impressed by this, as we have already  

pointed  out  that  under  Rule  23(a)  (i)  of  the  Tamil  Nadu  State  and  

Subordinate Services Rules, the persons who were in service, could not be  

rendered  junior  by  the  regularization  of  the  ad-hoc  candidates  at  later  

stage.  This G.O.Ms. No. 1813, therefore, has to be interpreted in the light  

of  Rule  23(a)(i),  which  was  a  General  Rule  and  applicable  to  all  the  

appointments.   After  all,  when  a  clear  reference  was  made  to  Rule  

10(a)(i)(1),  which was from the General  Rules, there was no reason to  

make any exception and not to read Rule 23(a)(i) of the General Rules.  

For this reason, the argument must fail.

25. Mr. Senthil  Jagadeesan, Learned Counsel  appearing on behalf  of  

the  respondents  urged  that  the  act  of  regularization  of  these  P.G.  

Assistants  under  Rule 10(a)(i)(1)  itself  was  contradictory  to the Service  

Rules, inasmuch as it was in breach of Rule 2(c), 4, 5 and 11 of the Tamil  

Nadu Higher  Secondary  Education Service Special  Rules and that  was  

subject to challenge in Writ Petition No. 9719 of 2005.  Since it is already a  

pending  matter  before  the  High  Court  and  since  that  Writ  Petition  is  

already segregated from the group of Writ Petitions, we do not wish to offer  

any comment on that issue.  This is more particularly so, because as the

22

things  stand  today  and  at  least  insofar  as  the  present  controversy  is  

concerned, it relates only to the fact of seniority.  The said contention is not  

apposite to the present case.

26. Mr.  C.  Selvaraju,  Learned  Senior  Counsel  for  the  contesting  

respondent invited our attention to the decision in case of State of Tamil  

Nadu and Anr. Vs. E. Paripoornam & Ors.  reported in 1992 Supp. (1)   

SCC 420, which was the case pertaining to the seniority of the teachers,  

who were appointed temporarily.  Those were also the teachers appointed  

under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services  

Rules.   Subsequently,  they  were  regularized for  the limited  purpose of  

increments.  The order of regularization itself denied their previous service  

for  the  purpose  of  determining  the  seniority.   This  Court  came to  the  

conclusion that while determining the seniority, the Court could not count  

that service for the purpose of seniority.  In para 14, this Court observed:-

“14. Apart from that, Rule 10(a)(i)(1) provide for making of  temporary  appointments  when  it  is  necessary  in  the  public interest to do so owing to an emergency which  has  arisen  for  filling  a  vacancy  immediately.   Such  appointments are made otherwise than in accordance  with the procedure prescribed under the Rules.  In the  instant  case,  the  respondents  were  appointed  temporarily and otherwise than in accordance with the  Rules.  They were later selected along with others for  direct  recruitment  by  the  Public  Service  Commission.  they were not entitled to count their temporary service  for  seniority.   In  A.P.M.  Mayankutty  Vs.  Secretary,  Public Service Department, this Court observed that the  services  rendered  by  the  applicants  under  Rule  10(a)(i)(1)  cannot  be  considered  for  the  purpose  of

23

seniority, as such appointment is a matter of stop-gap,  emergency or fortuitous arrangement.”

Earlier, in para 13, referring to Rule 35(a), according to which the  

seniority is fixed, the Court proceeded to observe:-

13. …………..The service rendered in the temporary post is  available  either  for  earning  increments  or  for  commencement of probation.  That would be clear from  Rule  23(a).   Consistent  with  the  Rule  23(a),  the  Government in the order of regularization has directed  that the incumbents are eligible for increments from the  date of their regularization, as they are fully qualified to  hold  the  post  on  that  date.   The  increments  already  sanctioned to  them during their  service as  temporary  Junior  Professors  prior  to  regular  appointment  have  been ratified by the said order.   The High Court was  plainly  in error  in  ignoring the statutory rules and the  terms and conditions of  the order  of  regularization  of  services.” (Emphasis supplied)

The emphasized portion, undoubtedly, presents out a clear position  

that  the  language  of  the  G.O.Ms.,  offering  regularization,  is  of  utmost  

importance.  Therefore, it is clear that that second condition will have to  

stay as it is.

27. In a recent decision in K. Madalaimuthu and Anr. Vs. State of T.N.  

&  Ors.  reported  in 2006(6)  SCC  558,  this  Court  again  reiterated  the  

principles  of  fixation  of  seniority  in  case  of  the  persons,  who  were  

temporarily  appointed  under  Rule  10(a)(i)(1).   This  Court  relied  on  the  

decision in V. Srinivasa Reddy Vs. Govt. of A.P. reported in 1995 Supp. (1)  

SCC 572,  as also,  State of T.N.  Vs. E. Paripoornam  reported in  1992  

Supp.  (1)  SCC  420.   Both  these  cases  dealt  with  Rule  10(a)(i)(1).

24

Distinguishingly, relying upon the case law relied by the respondents, i.e.,  

1999 (8)  SCC 287 L.  Chandrakishore Singh Vs.  State of  Manipur,  this  

Court came to the conclusion that the High Court had erred in holding that  

the  temporary  appointees  under  Rule  10(a)(i)(1)  were  entitled  to  the  

seniority  right  from  the  date  of  their  first  appointment  and  not  from  their  

regularization.  Though the controversy involved is slightly different, the general  

principles would undoubtedly apply.  We have seen the ruling cited on behalf of  

the  appellants  in  2005  (7)  SCC  627  Hindustan  Petroleum  Corn.  Ltd.  Vs.  

Darius Shapur Chennai & Ors.  We do not find this case to be relevant.  It only  

deals with the general principle that the statutory authority cannot be permitted to  

support its order relying on or on the basis of statements made in the affidavit de-

hors the order or de-hors the record.  We have already indicated that such is not  

the state of affairs in the present case.  The second decision relied upon by the  

appellants is I.J. Divakar & Ors. Vs. Government of Andhra Pradesh and Anr.   

reported  in 1982(3)  SCC 341,  which  suggests  that  the  Government  has  the  

power to cancel the recruitment even after TNPSC examination and regularize  

the candidates appointed under Rule 10(a)(i)(1) for compelling necessity.  That  

may be so.  However, the factual situation is entirely different.  Such thing has  

not happened nor is it anybody’s demand.

28. Thus,  the  legal  position  is  clear.   In  our  opinion,  the  High  Court  was  

absolutely correct in allowing the Writ Petitions, as it did.  We do not find any  

reason to interfere with the well reasoned judgment of the High Court.  All the  

appeals fail and are dismissed.  No order as to the costs.

………………………………..J. (Tarun Chatterjee)

………………………………..J.              (V.S. Sirpurkar)

25

New Delhi; May 15,2009