http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: STATE OF TAMIL NADU & ORS. R. NAMBURAJAN & ORS.

       Vs.

RESPONDENT: S. THANGAVEL & ORS. STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       29/11/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT: WITH         CIVIL APPEAL ON. 16640,16641 & 16639 OF 1996      (Arising out of SPL (C) Nos. 9056-57 & 11070 of 1992)                          O R D E R      Ca @ SPL (C) NOS. 18886-87/91 & 9056-57/92 Leave granted.      We have heard learned counsel on both sides.      Tamil  Nadu   Administrative  Tribunal   at  Madras  by purported judgment  and, made on June 11, 1991 in T. A. Nos. 123 and  127 of  1989, has held that under Rule 4 (a) of the Tamil  Nadu   State  and   Subordjnate  Service   Rules   on preparation of  the panel  either with  the names  or  ’nil’ annual list,  the Government  exhausted their  power to make another  list   in  the  same  year  for  promotion  of  the subordinate officers  to the  higher post  in the  State  or Subordinate service.  The said  view is in question in these appeals.      The admitted  is that  due to bifurcation of new firkas and upgradation  of Sub-Taluks  into Taluks  23 vacancies of Assistants had  arisen in  Pudukottai District.  The crucial date foe  preparation of  the panel  is as prescribed by the appropriate rules.  It is not in dispute in these cases that the crucial  date is  March 15,  1979. As on the date, there were no  vacancies  existing  or  anticipated  in  the  said District.  But   due  to   bifurcation  of  the  firkas  and upgradation of  the  sub-Taluks  into  Taluks,  as    stated earlier, 23  new posts  were created  by the  Government for filling up the same. list had been drawn and appointments to the said post of Assistants came to be made. The respondents filed the  OAs in  the Tribunal  challenging  the  power  to prepare the list. The Tribunal had held that in the light of Rule 4(a) of the Rules, the Government is devoid of power to make  any   supplementary  list.  The  list  once  made,  is construed to  be annual  list and by operation of provisions thereof, the  Government is  left with  no power to make any also relied upon the instruction issued by the Government in their G.O. Ms. No.1227 dated December 10, 1981.      Shri  T.   Harish  Kumar,   learned  counsel   for  the appellants, contends  that Rule 4(a) would apply in the case where normal  exigencies of  service would  operate in which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

event the  Government of the competent officer would be in a position to  asses the  existing vacancies  of the vacancies likely to  arise or  temporary vacancies likely to arise but in view  of the creation of the new posts in the year due to bifurcation of  the firkas and upgradation of the sub-taluks into taluks  the said  Rule cannot  be strictly  interpreted denuding the  Government of the power to make appointment by promotion. The  view taken by the Tribunal is not correct in law. Shri K. Ram Kumar, learned counsel for the respondents, on the  other hand, has contended that the Rule is operative whether for  the existing  vacancies or  for the anticipated vacancies including  the new vacancies likely to aries. Rule 39 of  the Rules  gives power to make temporary appointments and in  ensuing year  they can be promoted on regular basis. The Government  having issued  the instructions  is G.O. Ms. No.1227/81  cannot  make  any  appointment  by  preparing  a supplementary list  which is  not warranted  or contemplated under Rule 4(a) of the Rules.      In view  of the  respective contentions,  the  question that arises  for consideration is: whether the view taken by the Tribunal  is correct  in law? We have come across number of judgments  of various  Administrative  Tribunals  in  the country treating  their orders  to be "a judgment and order" obviously under  Section 2(9), CPC. The view seems to be not correct in  law grounds  of a  decree or order. Section 2(8) defines "Judge"  to mean  the presiding  officer of  a civil court, An  officers, therefore,  is appointed to preside and to administer the law in a court of justice and clothed with judicial authority.  Judgment is  the decision of a court of justice upon  the respective right and claims of the parties to an  action in  a suit  submitted to it for determination. The word  "Judgment" denotes  the reasons  which  the  court gives for  its decision.  The members of the Tribunal cannot be considered  to be  Judges and  their statement  cannot be treated to  be a  decree; it  may be construed to be only an order for the purpose of decision arrived at by the Tribunal under  the   Administrative  Tribunal   Act.   Under   these circumstances, we must hold that the Tribunal’s order cannot be treated  to be  a judgment  or decree  but they should be only an order.      In this  case, Rule 4(a) of the Rules contemplates that all first  appointments to a service or class or category or grade  thereof  State  or  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. The list shall  be published  in the case of Gazetted Officer in the State  Gazette and in the case of Subordinate officer on the notice  board of  the  respective  office.  It  is  also contemplated to  communicate such  a  list  to  all  persons obviously to put them on notice that such a list was made so that, if  they  feel  aggrieved,  they  may  take  necessary corrective measures according to low.      The provision  contemplate that  the list  of  approved candidates for  appointment by  promotion and by recruitment by transfer  to all  the categories of posts in the State of Subordinate services  shall be prepared annually against the estmiated number  of vacancies  expected to arise during the course of  a  year.  The  estimate  of  vacancies  shall  be prepared taking  into account  the total number of permanent post in  a  category;  the  number  of  temporary  posts  in existence, the anticipated sanction of new posts in the next year,  the   recruitment  post   of  leave   reserves;   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

anticipated vacancies  due to retirement and promotion, etc. in the  course of  the year. It would, thus, be seen that in normal circumstances,  a list  shall be annually prepared in the prescribed  manner taking  into  account  the  vacancies existing or  anticipated as  on the  prescribed date  due to contingencies enumerated  therein. That  does not  mean  the government is denuded of its power to make the list when new situation had  arisen Undoubtedly,  in  this  case,  on  the prescribed date  there were  on exigencies and, therefore, a list could not be prepared. But due to creation of new posts on account of administrative exigencies, namely, bifurcation of the firkas and upgradation of the sub-taluks into taluks, new  posts   were  created.  Consequently,  new  posts  were required to  be filled  up. As  a result,  the  authorities, instead of  making temporary promotions under Rule 39 of the Rules, filled them up on regular basis from all the eligible candidates. Under  those circumstances,  the preparation  of the list cannot be said to be unwarranted due to aforestated exigencies. The  G.O. Ms. No.1227/1981 has no application to these facts.  Under these  circumstances, the  view taken by the Tribunal is not correct.      The appeals  are accordingly  allowed. The order of the Tribunal is set aside.      CA @ SLP (C) NO.11070/92 Leave granted.      This appeal  by special leave arises from the orders of the Tamil  Nadu Administrative  Tribunal at  Madras, made on March 19, 1992 in T.A. No.268 of 1990.      The admitted  position  is  that  the  respondent,  for promotion as  a Deputy Tehsildar, was to qualify and in fact qualified as  on September 15, 1982. A list was prepared two days before  the due  date and  the was  made ineligible  on account of  the preparation made in advance of the due date. Respondent had  then filed  O.A. It  was  contended  by  the appellant that  since annual  list was  already prepared  on September 13,  1982 on  which date, he was not qualified, he is not eligible to be included in the list. It was negatived by the  tribunal and  it was directed to include his name in the list. The view of the Tribunal is perfectly correct, the list was  prepared two  days prior  to the  due date, Since, admittedly, the respondent was qualified as on the due date, namely, September  15, 1982, he is entitled to be empanelled in the  list for  promotion, after due consideration, as per rules. Therfore,  the direction  given by  the  Tribunal  to include his name in the list is not vitiated by any error of law warranting interference.      The appeal  is accordingly  dismissed in  view  of  the aforestated facts. No costs.