State of Tamil Nadu and Another Etc. Vs. E. Paripoornam and Others - Court Judgment

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service - promotion -rule 10 of tamil nadu state and subordinate service rules, 1955 - list of approved candidates prepared by public service commission in order of merit and accepted by government should be basis for determining their inter se seniority - services rendered in temporary post available either for earning increments or for commencement of probation - services rendered by applicants under rule 10 cannot be considered for purpose of seniority as such - regularisation was for limited purpose - order of high court erred in ignoring statutory rules and terms and conditions of order of regularisation of services. - orderk. jagannatha shetty, j.1. in these appeals by special leave, the legality of the judgment of the madras high court dated 7 july 1987 quashing the promotions made to the cadre of professors in law colleges in the state of tamil nadu has been called into question. 2. the appeals arise in the following circumstances: during the period from 1971 to 1982 the government appointed temporary junior professors in different law colleges in the state. the appointments were made under rule 10(a)(i)(l) of the tamil nadu state and subordinate services rules, 1955 (viz. the preliminary and the general rules) (hereinafter called 'the rules'). in 1979 the state public service commission invited applications for regular appointment of junior professors. the temporary junior professors and others applied for the posts. the public service commission selected 25 candidates out of whom 21 were already working as temporary junior professors. the selected candidates were arranged in the list called 'approved list' in the order of merit. the list was prepared by the public service commission on 16 august 1983. it was approved by the government on 9 december 1983. on 27 june 1985 the state government made an order regularising the services of those 21 junior professors. their services were regularised with effect from the dates of original appointments as temporary junior professors. 3. on 10 september 1986 some of the junior professors were promoted and appointed as professors in the law colleges. that promotion was challenged before the madras high court on the ground that the claim of the seniors has been overlooked. it was urged before the high court that once the temporary services have been regularised retrospectively with effect from the date of entry in the service, the seniority should be reckoned by giving the benefit of regularised service notwithstanding the ranking in the approved list prepared by the public service commission. the high court accepted that plea and quashed the promotion of professors and directed the government to make a proper order of promotion in the light of the views expressed in the judgment. 4. the correctness of the judgment of the high court has been assailed in these appeals. we must first outline the necessary statutory provisions bearing on the question raised. 5. section 10(a)(i)(1) provides as follows: 10. temporary appointments: (a)(i)(l) 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, otherwise than in accordance with the said rules. rule 22 so far as relevant reads: reservation of appointments-where the special rules lay down that the principle of reservation of appointments shall apply to any service, class or category, selection for appointment thereto shall, with effect on and from the 7th june 1971, in cases such selection is made by the commission, and 8th november 1971, in other cases, be made on the following basis-(a) the unit of selection for appointment, for the purpose of this rule, shall be one hundred, of which eighteen shall be reserved for the scheduled castes and the scheduled tribes and thirty-one shall be reserved for the backward classes and the remaining fifty-one shall be filled on the basis of merit. (b) the claims of members of the scheduled castes and the scheduled tribes and the backward classes shall also be considered for the fifty-one appointments, which shall be filled on the basis of merit; and where a candidate belonging to a scheduled caste, scheduled tribe or backward class is selected on the basis of merit, the number of posts reserved for the scheduled castes and the scheduled tribes or for the backward classes, as the case may be, shall not in any way be affected. xxxxx xxxxx xxxxxrule 23, so far as material, is as follows: 23(a)(i) date of commencement of probation of persons first appointment temporarily-if a person appointed temporarily either under sub-rule (a) or sub-rule (d) of 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. xxxxx xxxxx xxxxxprovided that on the date so determined, the person possesses all the qualifications prescribed for appointment to the service, class or category, as the case may be. (ii) a person who commences probation under clause (i) shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of his probation. where commencement of probation is ordered from a date earlier than the date of the order and if this has not been enabled by relaxation of any rule, he shall draw increments, including arrears, in the time-scale of pay applicable to him from such earlier date. the appointing authority shall include a provision to this effect while issuing orders in all such cases.rule 35 omitting immaterial words, is in these terms: 35(a) the seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the t.n.p.s.c. or other appointing authority, as the case may be, subject to the rule of reservation where it applies. the date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority. 6. it is under these rules the public service commission invited applications for selecting candidates for direct recruitment to the cadre of assistant professors in law. the public service commission prepared the list of selected candidates by following the reservation provided under rule 22. the list was approved by the state government. rule 35(a) states that seniority of a person be determined by the rank obtained by him in the list of approved candidates drawn by the public service commission subject to rule of reservation where it applies. 7. the contention urged for the respondents, is that since their temporary service as junior professors were regularised, the regularised service should count for the purpose of determining their seniority and not the rankings in the select list approved by the government. we find little substance in it. the order of regularisation is in these terms:

Judgment:
ORDER

K. Jagannatha Shetty, J.

1. In these appeals by special leave, the legality of the judgment of the Madras High Court dated 7 July 1987 quashing the promotions made to the cadre of professors in law colleges in the State of Tamil Nadu has been called into question.

2. The appeals arise in the following circumstances: During the period from 1971 to 1982 the Government appointed temporary junior professors in different law colleges in the State. The appointments were made under Rule 10(a)(i)(l) of the Tamil Nadu State and Subordinate Services Rules, 1955 (Viz. The Preliminary and The General Rules) (hereinafter called 'the Rules'). In 1979 the State Public Service Commission invited applications for regular appointment of junior professOrs. The temporary junior professors and others applied for the posts. The Public Service Commission selected 25 candidates out of whom 21 were already working as temporary junior professOrs. The selected candidates were arranged in the list called 'approved list' in the order of merit. The list was prepared by the Public Service Commission on 16 August 1983. It was approved by the Government on 9 December 1983. On 27 June 1985 the State Government made an order regularising the services of those 21 junior professOrs. Their services were regularised with effect from the dates of original appointments as temporary junior professOrs.

3. On 10 September 1986 some of the junior professors were promoted and appointed as professors in the law colleges. That promotion was challenged before the Madras High Court on the ground that the claim of the seniors has been overlooked. It was urged before the High Court that once the temporary services have been regularised retrospectively with effect from the date of entry in the service, the seniority should be reckoned by giving the benefit of regularised service notwithstanding the ranking in the approved list prepared by the Public Service Commission. The High Court accepted that plea and quashed the promotion of professors and directed the Government to make a proper order of promotion in the light of the views expressed in the judgment.

4. The correctness of the judgment of the High Court has been assailed in these appeals. We must first outline the necessary statutory provisions bearing on the question raised.

5. Section 10(a)(i)(1) provides as follows:

10. Temporary appointments:

(a)(i)(l) 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, otherwise than in accordance with the said rules.

Rule 22 so far as relevant reads:

Reservation of Appointments-Where the Special Rules lay down that the principle of reservation of appointments shall apply to any service, class or category, selection for appointment thereto shall, with effect on and from the 7th June 1971, in cases such selection is made by the Commission, and 8th November 1971, in other cases, be made on the following basis-

(a) The unit of selection for appointment, for the purpose of this rule, shall be one hundred, of which eighteen shall be reserved for the Scheduled Castes and the Scheduled Tribes and thirty-one shall be reserved for the Backward Classes and the remaining fifty-one shall be filled on the basis of merit.

(b) The claims of members of the Scheduled Castes and the Scheduled Tribes and the Backward Classes shall also be considered for the fifty-one appointments, which shall be filled on the basis of merit; and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or Backward Class is selected on the basis of merit, the number of posts reserved for the Scheduled Castes and the Scheduled Tribes or for the Backward Classes, as the case may be, shall not in any way be affected.

xxxxx xxxxx xxxxxRule 23, so far as material, is as follows:

23(a)(i) Date of commencement of probation of persons first appointment temporarily-If a person appointed temporarily either under Sub-rule (a) or Sub-rule (d) of 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.

xxxxx xxxxx xxxxxProvided that on the date so determined, the person possesses all the qualifications prescribed for appointment to the service, class or category, as the case may be.

(ii) A person who commences probation under clause (i) shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of his probation. Where commencement of probation is ordered from a date earlier than the date of the order and if this has not been enabled by relaxation of any rule, he shall draw increments, including arrears, in the time-scale of pay applicable to him from such earlier date. The appointing authority shall include a provision to this effect while issuing orders in all such cases.

Rule 35 omitting immaterial Words, is in these terms:

35(a) The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the T.N.P.S.C. or other appointing authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.

6. It is under these Rules the Public Service Commission invited applications for selecting candidates for direct recruitment to the cadre of Assistant Professors in Law. The Public Service Commission prepared the list of selected candidates by following the reservation provided under Rule 22. The list was approved by the State Government. Rule 35(a) states that seniority of a person be determined by the rank obtained by him in the list of approved candidates drawn by the Public Service Commission subject to rule of reservation where it applies.

7. The contention urged for the respondents, is that since their temporary service as junior professors were regularised, the regularised service should count for the purpose of determining their seniority and not the rankings in the select list approved by the Government. We find little substance in it. The order of regularisation is in these terms: