Holding

The conditional regularisation under G.O.Ms. No. 1813 placed the ad‑hoc Post‑Graduate Assistants below the TNPSC‑selected candidates, so their claim to seniority over those candidates must be rejected.

Issues considered

Whether seniority of ad‑hoc Post‑Graduate Assistants regularised under G.O.Ms. No. 1813 should be reckoned from their initial appointment or from the date of regularisation.
Whether the conditional seniority clause in G.O.Ms. No. 1813 is binding on the appointees.
Whether the High Court’s direction granting seniority to the appellants is legally sustainable.
Interpretation of Rule 23(a)(i) of the Tamil Nadu State and Subordinate Services Rules concerning temporary appointments.
Whether the appellants could later challenge the second condition of G.O.Ms. No. 1813 after accepting the regularisation.

Legislation cited

Constitution of Indias. Section 309
Tamil Nadu Public Service Commission Regulations, 1954
Tamil Nadu State and Subordinate Services Ruless. Rule 10(a)(i)(1), s. Rule 23(a)(i)

Subjects

seniorityservice lawconditional regularisationtemporary appointmentRule 23(a)(i)Rule 10(a)(i)(1)TNPSCpost‑graduate assistantshigh court judgmentwrit petition

Judgment

[2009] 9 S.C.R. 490 ,......
,
+.-

A M.P. PALANISAMY & ORS.
v.
A. KRISHNAN & ORS.
(Civil Appeal Nos. 3582-84 of 2009)
MAY 15, 2009
B
[TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.] ....
-+
.,,..
SERVICE LAW:

c Seniority - Teachers - Post Graduate Assistants - Inter-
seniority between candidates selected by Service
Commission and candidates appointed temporarily and
regularized later or those who acquired the required_
qualification subsequently - Determination of - The High
D Court allowing the Writ Petitions filed by the Service
-~

Commission selected candidates - On appeal, Held: High ~-
Court was absolutely right in allowing the writ petitions of the
Service Commission selected candidates - No reason to
interfere with the well reasoned judgment of High Court -
Tamil Nadu State and Subordinate Service Rules, Rule
E
23(a)(i) - General Rules of TNPSC - Rule 10(a)(i)(1).

The inter se seniority of Post Graduate Assistants ~

between the teachers appointed between 1.7.1978 and .-*
28.4.1981, teachers who had acquired the required
F qualification subsequently, the candidates selected by
the Service Commission and those appointed ad hoc
after 28.4.1981, not selected by the Service Commission
but were regularized, is in issue in the appeals. The
judgment of the High Court allowing the claim of the
G Service Commission selected candidates, is impugned in .;.,
the appeals.

Dismissing the appeals, the Court

H 490
..... M.P. PALANISAMY & ORS. v. A KRISHNAN & ORS. 491
(
-1,.

HELD: 1. Though the appellants had the necessary A
qualifications at the time of their initial appointment under
,Rule 10(a)(i)(1) of the General Rules of TNPSC and
though they were subsequently regularized also, the
regularization was conditional regularization, which was
done way back in 1988. The condition regarding the B
> ' seniority was explicit in the said regularization, which is
- i
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 appellants. Once they chose to
accept the regularization which was conditional, then it c
--1 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.0.Ms. immediately. They -
... D
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 E
... kept quiet, only to raise the same demand again in 2003
"'i
;, 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 piea that they did not challenge the
G.O.Ms. No. 1813, as they were expecting themselves to F
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 appellant$ has to be
rejected. The aspect of conditional regularization, G
therefore, had to be kept in mind. [Para 19] [506-C-H; 507-
A-BJ
2. It was pointed out that the Department had all
along given the interpretation that the second condition H
492 SUPREME COURT REPORTS [2009] 9 S.C.R.
j-
...
I

A in G.O.Ms. No. 1813 ~pplied· 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
B otherwise. There was nothing in the language of the
G.O.Ms. No. 1813 thatI 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
c clarification by the Director of School Education had
given a wrong position. That error could be perpetuated.
It was rightly corrected later on when the stand was taken
that all these P.G. As~istants would be below the TNPSC
selected P.G. Assistants. [Para 20] [507-C-F]
~
D 3.1. Though the appellants were fully qualified P.G. ,-k
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 exarhination, though it was made very
E clear to them that they would have to take the
examination. 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 whose selection, they
F could never enter tt;M! 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 :tr
G
capacity and, therefore, were not the members of the
service. [Para 21] [Sb7-F-H; 508-A-C]

3;2. One look at the first proviso to Rule 23(a)(i) of the
Tamil Nadu State and Subordinate Service Rules shows
H
1
,
• M.P. PALANISAMY & ORS. v. A KRISHNAN & ORS. 493

that in case of an ad-hoc employee, he cannot claim any A
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 B
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 c
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. 0
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 E
Rule 1O(a)(i)(1) without a demur and as if this is not
sufficient, they did not challenge it at least for six long
years and thereafter, upto 2003. All this goes totally
against the claiin of the appellants. One cannot ignore the
fact that some of the appellants did appear for the TNPSC F
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 G
why the claim of the appellants must fail. [Para 21] [508-
C; 509-E-H; 510-A-C]
4. One cannot, at this juncture, ignore the fact that the
appellants in their first attempt before the Tribunal, H
494 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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
B favour, wrongly, and ignored to challenge the second
condition. This is not permissible. They could not
thereafter turn back arid 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.
c [Para 23] [510-G.,.H; 511-A]
5.1. As already pointed out that under Rule 23(a) (i)
of the Tamil Nadu State and Subordinate Services Rules,
the persons who were iin service, could not be rendered
junior by the regularization of the ad-hoc candidates at
D 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),
I '
which was from the General Rules, -there was no reason
E to make any exception ~nd
I
not to read Rule 23(a)(i) of the
General Rµles. [Para 24] [511-F-H]

5.2. The High Court was absolutely correct in
).
allowing the Writ Petitions, as it did. There is no reason
F to interfere with the well reasoned judgment of the High
Court. [Para 28] [514-G-H]

Staie of Tamil Nadu .and Anr. Vs. E. Paripoomam & Ors.
1992 Supp. (1) SCC 420 and K. Madalaimuthu and Anr. Vs:
State of T.N. & Ors. 2006(6) sec 558, relied on.
G
Hindustan Petroleum Corn. Ltd. Vs. Darius Shapur
Chennai & Ors. 2005 (7) SCC 627 and l.J. Divakar & Ors.
Vs. Government of Andhra Pradesh and Anr. 1982(3) SCC
341, distinguished.
H
' M.P. PALANISAMY & ORS. v. A KRISHNAN & ORS. 495
'
\
V. Srinivasa Reddy Vs. Govt. of A.P. 1995 Supp. (1) A
SCC 572; State of T.N. Vs. E. Paripoomam 1992 Supp. (1)
SCC 420 and L. Chandrakishore Singh Vs. State of Manipur,
1999 (8) sec 287' referred to.

Case Law Reference:
B
;. 1992 Supp. (1) sec 420 relied on Para 26
-~
2006(6) sec 558 relied on Para 27

2005 (7) sec s21 distinguished Para 27
c
1982(3) sec 341 distinguished Para 27

1995 Supp. (1) SCC 572 referred to Para 27

1999 (8) sec 287 referred to Para 27
~
CIVIL AP PELLATE JURISDICTION : Civil Appeal Nos . D
... 3582-84 of 2009.

From the Judgment & Order dated 24.11.2004 of the High
Court of Judicature at Madras in W.P. Nos. 21347, 29076 and
29077 of 2003. E
/

WITH
-->
C.A. Nos. 3585-86 of 2009
....,.... '(
Nalini Chidambaran (NP) lndu Malhotra (NP), M.N.
F
Krishnamani, Sunieta Ojha, Vikas Mehta, K.V. Mohan, K.V.
Balakrishnan for the Appellants.

C. Selvaraju, R. Viduthalai, Mary Mitzy, Deepak Jain, Gopal
Singh Chauhan, Shiv Prakash Pandey, Promila, Indira, S.
t Thanajayan, Senthil Jagadeesan and T. Raja for the G
,,,. Respondents.

The Judgment of the Court was delivered by

V.S. SIRPURKAR, J. 1. Leave granted in all the cases.
H
496 SUPREME COURT REPORTS [2009] 9 S.C.R.
-r
A 2. This judgment shaU 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:-
B
"As regards the first category of teachers, those appointed
between 01.07.1978 tq 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
c concurrence of Tamil Nadu Public Service Commission.

As regards the secdnd category of teachers, those
~
appointed after 28.04 . 1981 and selected by the Tamil
Nadu Public Service Commission their seniority will be
0 fixed as per the Tamil Nadu Public Service Commission ·~

list. )

As regards the third cat~gory of teachers, those appointed
after 28.04.1981 and who have not been selected by the
Tamil Nadu Public Service Commission and whose
E 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
j.
.,
F
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,
G 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.
H
M.P. PALANISAMY & ORS. v. A. KRISHNAN & ORS. 497
[V.S. SIRPURKAR, J.]

4. The relevant G.O.Ms. No. 1813, Education Department A
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:
B
i "The said posts of teachers have been excluded from the
4- puNiew of the Tamil Nadu Public SeNice 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 of teachers to the schools. In the
c
circumstances, the Government direct that the seNices 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 seNice till date shall be regularized from the D
date of their temporar; appointment and subject to the
following conditions:

(i) The candidates regularized by this order will
get monetary benefits from the date of issue E
of this order.
~
(ii) They will be placed below the candidates
. -1(
selected by the Tamil Nadu Public SeNice
Commission while ranking their seniority i.e.
these candidates will take their seniority F
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. lndu G
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 seNice jurisprudence to the effect that the persons entering
into the seNice first have to be conferred with the seniority from
H
•
)

498 SUPREME COURT REPORTS , [2009] 9 S.C.R.
r-

A 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.
B
6. Before approaching this question it will be necessary ...
to see in short the uncontroverted facts. +
7. The concerned teachers in these appeals can b~
classified in three groups. The first group is of Post Grad4at~
c Assistants who were appointed in between 01.07.1978 ~nd
28.04.1981. Second group is of those Post Graduate /

Assistants who were duly selected by th§ T9mil Nadu P!JP!i~ ~
Service Commission (hereinafter referred to as 'TNPSC' for
short) and appointed in 19$6. Thl3 third group is of the Post ~

D Graduate Assista.nts app9int~d t~mpqrarily µnc:fer Rvle ~
10(a)(i)(1) of General Rules of TNPSr. {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.
'
~
E 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 j
~~cond group of Post Gradu~te Assistants who were selected '•"-
t:iy the TNPSC and appointed in the year 1986. The basic
F 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 $econd group on the basis of their
having been regularized in the year 1988. In short, the learned
l
G counsel,argued that unbro~en 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 come in the
service for the first time in 1986 by way their selection by
H TNPSC and the subsequent appointments as a result thereof.
M.P. PALANISAMY & ORS. v. A. KRISHNAN & ORS. 499
[V.S. SIRPURKAR, J.]
Short History A

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 Matricuiation examination and
B
thereafter had to pass 11th and 12th standard examination. The
I 1~Jh 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. 1Oth standard
examination was detached from the colleges. About 800 c
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 D
,\._ while there were no statutwy 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 E
qualification.
... 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
F
· 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 8.Ed. In the special Rules one Rule 11 was G
introduced which were as under:

"Rule 11: Savings-Notwithstanding anything contained in
Rule 2 and 6 above, the service of these persons who are
h_olding, on the date of issue of these Special Rules, the H
500 SUPREME COURT REPORTS [2009) 9 S.C.R.
..,._. '>

A 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 qllalifications prescribed for such
category in the Annexe shall be regularized after obtaining
B the concurrence of the Tam.I 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 --J.
category in the Annexe and who are holding such posts
c on the date of issue of these Special. Rules shall be '\
regularized only after they acquire the said qualifications t:::
and after obtaining concurrence of Tamil Nadu Public
Service Commission under the Tamil Nadu Public Service
Commission Regulations; 1954 provided they acquire the c• '
said qualifications within a period of five years from 1st
D
July, 1978. If they fail to acquire the said qualifications " ....
within the specified period they shall be replaced by ),
suitable qualified candidates."

11. Therefore, as per the above Rule those who already
E 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 f
F 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
G under Rule 1O(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.
H
"".:'
.... ' ~
M.P. PALANISAMY & ORS. v. A. KRISHNAN & ORS . 501
[V.S. SIRPURKAR, J.]
13. At this stage the TNPSC started taking steps to fill up A
",;
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 woul9 have to take
up the examination by TNPSC and without that such teachers B
---f ; could not continue. However, representations were'made by ·
-\- these temporarily appointed teachers under Rule 1O(a)(i)(1)
-I
through their Associations. These representations were for the
I
( purposes of regularizing the services of these Post Graduate
,;
Assistants who were appointed in ad hoc manner under Rule c
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 D
~. 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
E
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
-'r
·;1.
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 F
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 G
.... ' 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 H
502 .
SUPREME.COURT REPORTS
... .. ,,.,
[2009] 9 S.C.R. .,.
..,.... ,
A ultimately they became the members of the Service from that ;,
date. It is relevant to mention here that at that time a!so 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
B 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
c 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 u:ltimately 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 th~
D '(

examination. They accepted this conditional regularization
),
without demur.

15. Before this G.O.Ms. No. 1813 dated 12.12.1988, two
other G.0.Ms. were issued, they being G.O. No. 1320 dated
E 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 I- ~
in, the third category of P.G. Assistants appointed under Rule
-f
10(a)(i)(1) filed Original Application bearing O.A. No. 3760 of «)

F 1991 before the Tamil Nadu Administrative Tribunal (hereinafter
referred to as "the Tribunal" for short). Very significantly, in this
Original Application, the P.G. Assistants appointed under Rule
1O(a)(i)(1) did not challenge the second condition regarding
seniority imposed in G.0.Ms. No. 1813 to the effect that they
G would be placed below the candidates selected by TNPSC,
while ranking their seniority. The said Orjginal 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
H
M.P. PALANISAMY & ORS. v. A. KRISHNAN & ORS. 503
[V.S. SIRPURKAR, J.]
of 1994 came to be filed by some other P.G. Assistants, A
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 8
.> 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
c
claim any arrears prior to their obtaining the qualification. On
9.9.1999, a further G.0.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 D
~.
they obtained the qualification and their seniority shall be
reckoned from the date of their regularization. However, 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 E
1988 till 1998, the things remained as they were in respect of
-f the seniority of the P.G. Assistants appointed under Rule
~ 10(a)(i)(1).

16. In between, there is one more development, i.e., F
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,
.y whereby they claimed seniority over and above the P.G.
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
1O(a)(i)(1 ). That Original Application was dismissed by the
Tribunal by its judgment dated 3.7.2002. On 9.4.2003, however,
H
~

504 SUPREME COURT REPORTS [2009] 9 S.C.R.
r
A 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
B 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- -1-
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
c 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 "I

D P.G. Assistants appointed under Rule 10(a)(i)(1). In this list, the
J
candidates, whose names appeared from S.Nos. 1-143 were
admittedly senior to these P.G. Assistants appointed under
Rule 1O(a)(i)(1) and their seniority was and is not being
disputed. However, according to the present P.G. Assistants
E 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
F 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 ·'f ·
G
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
H
.......

M.P. PALANISAMY & ORS. v. A. KRISHNAN & ORS. 505
[V.S. SIRPURKAR, J.]
~

respondent. The Tribunal, by its order dated 18.7.2003, allowed A
the said O.As. It was held by the Tribunal that the 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. B
, Assistants who were appointed earlier but without necessary
~·
qualification and had acquired the qualification later and whose
, f 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 c
candidates in the seniority list was not relevant to the issues,
-I as the TNPSC candidates came in service later on, as
compared to the P.G. Assistants appointed under Rule
1O(a)(i)(1 ). The Tribunal, therefore, directed the State
,, Government and the Director of School Education to revise the
D
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 E
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, F
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 given the directions
which are contained in para 2 of this judgment. It is this G
t· 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 H
506 SUPREME COURT REPORTS [2009) 9 S.C.R.
...,..
A 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
B not correct. Ms. Nalini Chidambaram, Learned Senior Counsel
appearing on behalf of the appellants, alongwith Ms. lndu
Malhotra and Mr. M.N. Krishnamani, Learned Senior Counsel,
.
1-
firstly urged that when a candidate is appointed under Rule
10(a)(i)(1) on ad-hoc basis and is subsequently regularized, .+
c then ordinarily, his seniority has to be reckoned from lhe 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
D
though they were subsequently regularized also, the ""
).-
regularization was conditional regularization, which was done
way back in 1988. The cqndition regarding the seniority was
explicit in the said regularization, which is clear from the mere
reading of the G.0.Ms. No. 1813. It cannot be forgotten that this
E
regularization was all along accepted by the present 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 -r-
that only the favourable part of the G.O.Ms. was accepted by
F 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
G 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
H appellants merely raised a lame plea that they did not challenge
M.P. PALANISAMY & ORS. v. A. KRISHNAN & ORS. 507
~ [V.S. SIRPURKAR, J.]
the G.O.Ms. No. 1813, as they were expecting themselves to A
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. B
.. 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
c
all along given the interpretation that the second condition in
G.O.Ms. No. 1813 applied only when the candidates appointed
under Rule 10(a)(i)(1) and the TNPSC selected candidates
I> came in the same year. That may be so. However, the parties
cannot be allowed to act on the impressions, when the original D
'* 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 E
by the Director of School Education had given a wrong position.
'I 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. F
~

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
-v G
desisted from taking the examination, though it was made ve·ry
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 H
508 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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
whose selection, they could never enter the Government service.
Under the circumstJnces, it was for these P.G. Assistants to
B 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
c 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
D 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 va9ancy which may be filled by direct
E recruitment, is subsequently appointed to the
service, class or category in accordance with
the rules, he shall commence his probation 1~

if any, in such category either from the date
of his first temporary appointment or from
+
F such subsequent date, as the appointing
authority may determine. If !he 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
G 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
H
M.P. PALANISAMY & ORS. v. A. KRISHNAN & ORS. 509
[V.S. SIRPURKAR, J.]
~
such subsequent date, as Hie appointing A
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
B
date of commencement of probation of the
.., junior most person already in service .
~
Provided further that on the date so
determined by the appointing authority to
commence probation in this clause, the c
person shall not only possess all the
qualifications prescribed for appointment to
1
the service, but also be fit for inclusion in the
list of approved candidates drawn up by the
,. Tamil Nadu Public Service Commission or D
~ 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
E
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 1O(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 F
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
- f the other candidates, the ad-hoc P.G. Assistants could not be G
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.0.Ms. No. 1813. It will be further ridiculous as H
510 SUPREME COURT REPORTS (2009] 9 S.C.R.

A the said condition was accepted by all the P.G. Assistants·
appointed under Rule 1O(a)(i)(1) without a demur and as if this
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
B 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
c 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
D Panel was prepared in 20d3, 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
E 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 t
F 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.

23. We cannot, at this juncture, ignore the fact that the
G appellants in their first attempt before the Tribunal, challenged
l ·-
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.0.Ms. No. 1813 in their favour,
H and in our opinion, wrongly, and ignored to challenge the second
M.P. PALANISAMY & ORS. v. A. KRISHNAN & ORS. 511
,
~

[V.S. SIRPURKAR, J.]
~
A

..
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,
8
the Learned Senior Counsel appearing on behalf of the
-4...., 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:-
c
"They will be placed below the candidates s~lected by the
TN Public Service Commission while rankin~ their
1.,. seniority, i.e., those candidates selected by the TNPSC for
the year."
,,. D
Relying on this, the Learned Senior Counsel contended
·11
that, therefore, the appellants Vl~re 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 submitted that E
since the appointment of the TNPSC selected candidates came
.., only in the year 1986, only those candidates under Rule
i 10(a)(i)(1) would be rendered junior who were appointed afteJ
' 1986, but those, who were appointed earlier, would have to be
held to be senior to the TNPSC selected candidates. We are F
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
- -f
at later stage. This G.O.Ms. No. 1813, therefore, has to be G
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 H
512 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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
-
8
of Rule 2(c), 4, 5 and 11 of the Tamil Nadu Higher Secondary
Education Service Special Rules and that was su.bject 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,
C we do not wish to offer any comment on that issue. This is more
particularly so, because as the 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.
D
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. Paripoomam &
Ors. reported in 1~92 Supp. (1) sec 420, which was the case
E 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
F denied their previous service for the purpose of determining the
seniority. This Court came to the conclusion that while 1

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
G 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
H the Rules. In the instant case, the respondents were
~ M.P. PALANISAMY & ORS. v. A KRISHNAN & ORS. 513
[VS. SIRPURKAR, J.]
"'"'
appointed temporarily and otherwise than in A
!!!II" 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 AP .M. Mayankutty Vs. Secretary, Public Service B
-- -~
Department, this Court observed that the services
rendered by the applicants under Rule 1O(a)(i)(1)
cannot be considered for the purpose of seniority,
as such appointment is a matter of stop-gap,
emergency or fortuitous arrangement." c

-- Earlier, in para 13, referring to Rule 35(a), according to
which the seniority is fixed, the Court proceeded to o.bserve:-

.. 13 . .............. The service rendered in the temporary
post is available either for earning increments or for D
~
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 E
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
F
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 G
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
H
514 SUPREME COURT REPORTS [2009] 9 S.C.R.

A again reiterated the principles of fixi;ttion 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
B Supp. (1) SCC 420. Both these cases dealt with Rule
10(a)(i)(1). Distinguishingly, relying upon the case law relied by
_,_
the respondents, i.e., 1999 (8) SCC 287 L. Chandrakfshore
Singh Vs. State of Manipur, this Court came to the conclusion
that the High Court had erred in holding that the temporary
c i:lppointee~ 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
D (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 princ:ple 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
E 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 /.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
F 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.

G 28. Thus, the legal position is clear. In our opinion, the High t _
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.

H G.N. Appeals dismissed.