Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
01. 10.2013 CORAM: THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN Writ Petition No.15089 of 2009 & M.P.Nos.1 of 2009 and 1 of 2012 A.Babu .. Petitioner Vs. The Principal Chief Conservator of Forests & Head of Force-I 'Panagal buildings' 1, Zenith Road Saidapet, Chennai 15 .. Respondent Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus calling for the records of respondent in connection with the impugned order passed by him in Ref.No.AP1/49381/08 dated 11.6.09 and quash the same insofar as the petitioner is concerned and direct the respondent to fix the seniority of the petitioner in the category of Forester from the date of his initial appointment in the 'Cinchona Department (4) from 4.9.1985 and further promote him as Forest Ranger and grant him all consequential service and monetary benefits. For Petitioner : Mr.V.Chockalingam For Respondent : Mr.Hidayathulla Khan, G.A.(Forest) ORDER
The petitioner was appointed as an Agricultural Assistant through Tamil Nadu Public Service Commission on 4.9.1985 in Cinchona Department.
2. The posts of Assistant Superintendent, Agricultural Assistant, Research Assistant and Field Assistant in Cinchona Department belong to one cadre with the same scale of pay.
3. The Government issued G.O.Ms.No.221, Environment and Forest Department dated 3.4.1990, winding up the Cinchona Department. It is stated in the said G.O that the Forest Department would be the parent Department for the staff of erstwhile Cinchona Department with effect from 1.4.1990. The staff of Cinchona Department were sent on deputation to Tamil Nadu Tea Plantation Corporation Limited (for short ".TANTEA".).
4. Tamil Nadu Cinchona Department Staff Association filed an Original Application No.4487 of 1993 before the Tamil Nadu Administrative Tribunal seeking to send them to the parent Department, namely the Forest Department. The Tribunal allowed the O.A.No.4487 of 1993 on 18.91995 and directed the Government to repatriate the members to the parent Department, namely, the Forest Department and to give them appropriate posting in the Department. It was further directed to complete the aforesaid exercise within a period of 6 months.
5. The aforesaid order passed by the Tribunal was complied with by the Government by issuing G.O.Ms.No.275, Environment and Forest Department dated 6.11.1996. The four categories of employees, namely Assistant Superintendent, Agricultural Assistant, Research Assistant and Field Assistant in Cinchona Department were absorbed in the Forest Department as Foresters. Totally, 14 Foresters including the petitioner were absorbed in the Forest Department, pursuant to G.O.Ms.No.275 referred to above.
6. Tamil Nadu Forest Department issued an annual seniority list of Tamil Nadu Forest Subordinate Service for the post of Forester as on 1.1.2007. In the said list, the petitioner's name is shown at Serial No.593 and his date of joining is shown as 4.9.1985.
7. According to the petitioner, if the date '4.9.1985' is taken as his date of joining, he should have been placed in between Serial Number 242 and Serial Number 243 as one Mr.Ganapathi is shown at Serial No.242, whose date of appointment is 23rd August 1985 and Mr.C.Govindasamy is shown at Serial No.243, whose date of appointment is 6.12.1985.
8. Further, along with the petitioner, one other person Mr.Kalaivanan was also absorbed as Forester on 10.8.1987 in the Forest Department and the said Kalaivanan was working as Research Assistant in Cinchona Department. Admittedly, Kalaivaan is junior to the petitioner. Neither Kalaivanan nor the petitioner was included in the panel for promotion to the post of Forest Ranger for the year 2009-2010. Their request to include their name in the panel for promotion by counting their service as Forester from the date of initial appointment in Cinchona Department was rejected by the Principal Chief Conservator of Forests by the impugned order dated 11.6.2009. The petitioner has filed this Writ Petition to quash the aforesaid order dated 11.6.2009 and for a direction to the respondent to fix the seniority of the petitioner in the category of Forester from the date of his initial appointment in the 'Cinchona Department i.e., from 4.9.1985 and promote him as Forest Ranger and grant him all consequential service and monetary benefits.
9. The respondent filed a counter affidavit refuting the allegations. It is stated that the petitioner cannot make a claim to count his service as Forester from the date of his initial appointment on 4.9.1985 in Cinchona Department.
10. Heard both sides.
11. The learned counsel for the petitioner has relied on Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules. He submitted that as per Rule 35(b), his service as Forester should be counted from 4.9.1985, the date of initial appointment in the Cinchona Department. According to him, the Cinchona Department was closed by the Government and Forest Department is the parent Department for the staff in the erstwhile Cinchona Department for all purpose. The persons holding the posts of Assistant Superintendent, Agricultural Assistant, Research Assistant and Field Assistant in Cinchona Department were appointed as Foresters in the Forest Department pursuant to G.O.Ms.No.275 Environment and Forest Department dated 6.11.1996 and the order of the Tamil Nadu Administrative Tribunal dated 18.9.1995 in O.A.no.4487 of 1993.
12. In the circumstances, the petitioner's earlier service rendered in Cinchona Department as Agricultural Assistant should also be counted for the purpose of fixation of seniority in the post of Forester.
13. The learned counsel for the petitioner also submitted that in the case of Mr.Kalaivanan, he was included in the panel for promotion to the post of Forest Ranger for the year 2009-2010 though he was also not included earlier as in the case of the petitioner. Pursuant to the order of this Court dated 8.4.2010 in W.P.(MD) No.4736 of 2010, he was included in the panel for the year 2009-2010 and was promoted. But the petitioner's name was included in the panel of Forester fit for promotion to the post of Forest Ranger for the panel year 2010-2011 only. According to him, he should have been included in the panel for the year 2009-2010 by counting his service from 4.9.1985.
14. But the learned Government Advocate (Forest) has sought to dismiss the Writ Petition reiterating the averments made in the counter affidavit.
15. I have considered the submissions made by the learned counsel on either side.
16. The impugned order dated 11.6.2009 is extracted hereunder: ".The Cinchona Department was amalgamated with the Forest Department in G.O.Ms.No.221 Environment and Forest Department dated 3.4.1990 in pursuance of the orders issued in G.O.Ms.No.275 Environment and Forest (FR8 Department dated 6.11.1996 the staff members of Cinchona Department were absorbed and issued postings for the 14 Nos.of Forester and 61 Nos.of Forest Guards considering the equal category in Forest Department. Thiru A.Babu and V.Kalaivanan were also absorbed and issued posting as Foresters in the Forest Department and they are working in Forest Department in the references cited, the above individuals have submitted their representation to fix the seniority in the category of Forester according to the date of their initial appointment joining in the Cinchona Department. There is no provision in Government rules to fix their seniority who absorbed in Forest Department in the category of Forester from the date of their original/initial appointment in Cinchona Department. Hence the above said individuals (Foresters) is requested to inform the rule under which their request claim can be considered.".
17. The impugned order is a common order relating to two persons, namely the petitioner and Kalaivanan. Asfar as Kalaivanan is concerned, his grievance is redressed.
18. It is not in dispute that Kalaivanan joined service in Cinchona Department as Research Assistant on 12.2.1987, whereas the petitioner joined service in Cinchona Department as Agricultural Assistant on 4.9.1985. It is also not in dispute that both Research Assistant and Agricultural Assistant belong to one cadre and both were in the same scale of pay. The service rendered by Kalaivanan as Research Assistant in Cinchona Department is counted and his name was also included in the panel of Forester fit for promotion to the post of Forest Ranger for the year 2009-2010.
19. In my view, the same treatment shall be given to the petitioner also. Otherwise, it will be arbitrary and violative of Articles 14 and 16 of the Constitution of India. Further more, as rightly contended by the learned counsel for the petitioner, when the Cinchona Department was wound up, the Forest Department is declared as the parent department for the staff served in the erstwhile Cinchona Department for all purposes. The seniority shall be fixed by taking into account the service rendered in Cinchona Department as per Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules.
20. Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules is extracted hereunder: ".35(b) The transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purpose of seniority and the seniority of a person so transferred all be determined with reference to the rank in the class or category from which he was transferred; where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority.".
21. Mr.Kalaivanan approached this Court by filing Writ Petition No.4736 of 2010 and this Court passed an order dated 8.4.2010 in the said Writ Petition to consider his claim for promotion to the post of Forest Ranger for the panel of the year 2009-2010. Thereafter, the Principal Chief Conservator of Forests issued proceedings dated 26.5.2010, including the name of Kalaivanan in the panel of Forester fit for promotion to the post of Forest Ranger for the year 2009-2010.
22. In the circumstances, I am of the view that the impugned order dated 11.6.2009 is liable to be quashed. Accordingly, the impugned order is quashed. The respondent shall fix the seniority of the petitioner in the cadre of Forester for promotion to the post of Forest Ranger from the date of his initial appointment from 4.9.1985. It is also directed that the petitioner shall be promoted from the date on which his immediate junior was promoted by taking into account the service rendered in Cinchona Department from 4.9.1985 and including his name in the panel of Forester fit for promotion to the post of Forest Ranger for the year 2009-2010 at an appropriate place and the promotion shall also be effected with all monetary benefits. The respondent is directed to complete the aforesaid exercise within a period of twelve weeks from the date of receipt of a copy of this order.
23. The Writ Petition is allowed in the above terms. No costs. The connected Miscellaneous Petitions are closed. 01.10.2013 Index:Yes Internet:Yes ajr (Note: Issue the order copy on 11.10.2010) To The Principal Chief Conservator of Forests & Head of Force-I 'Panagal buildings' 1, Zenith Road Saidapet, Chennai 15 D.HARIPARANTHAMAN, J.
ajr W.P.No.15089 of 2009 01.10.2013