WA/3508/2023 of The Superintending Engineer Vs J.Babu on 2 September 2026

JUDGMENT

(Krishnaswamy Govindarajan,J.) This Writ Appeal is filed against the order dated 17.10.2023 passed by the learned Single Judge in W.P.No.26940 of 2021.

2. The respondent herein filed W.P.No.26940 of 2021 praying for issuance of a writ of certiorarified mandamus to quash the order made in Letter No.Ni2/2291/2021 dated 12.11.2021 and to direct the first respondent to grant fitment benefit vide G.O.Ms.No.340, Finance (Pay Cell) Department, dated 26.08.2010.

3. The respondent was initially appointed as Junior Assistant in the year 2003 by the District Collector, Chennai, on consolidated pay of Rs.4000/- per month. He appeared in the Special Competitive Examination for Group IV posts conducted by the Tamil Nadu Public Service Commission in the year 2007 for 4103 vacancies. Though certificate verification was called for on 17.07.2008, the respondent submitted his community certificate only on 04.09.2008 and 16.09.2008. Ultimately, he was selected only in Phase II of the said Special Competitive Examination vide TNPSC Letter No.7282/PSD-D1/2009 dated

22.12.2009 and was allotted to the Public Works Department. Pursuant to the same, appointment order was issued on 13.01.2010 and he joined duty on 22.01.2010.

4. The respondent claimed that he is entitled to fitment benefit under G.O.Ms.No.340, Finance (Pay Cell) Department, dated 26.08.2010. The said G.O. provides for fixation of pay with 1.86% weightage to those incumbents who were appointed on consolidated pay in 2003 and were recruited through TNPSC in the same batch prior to 01.06.2009 but joined on or after 01.06.2009 due to administrative reasons.

5. Before the Writ Court, the respondents have filed counter. The relevant paragraphs are extracted hereunder:

5. With regard to the averments stated in paragraphs 5 to 7 of the affidavit, it is submitted that consequent to the selection of the petitioner in the Special competitive Examination conducted by the TNPSC in the year 2007, the fact of further process and correspondence between the TNPSC and the petitioner were in between the petitioner and the TNPSC and there was no scope for respondent's Department for looking into the above aspects. Hence, once the petitioner joined as Junior Assistant in the respondents' Department, the fixation of pay was made in accordance with the time scale of pay as applicable to the Junior Assistant in the Tamil Nadu Ministerial Service. The petitioner has briefed about the history of his selection by the TNPSC, calling for production of certificates for verification and the order of preference of department in the event of selection for the post. Hence, it may be assessed from the letter dated: 17.07.2008 of the TNPSC as stated by the petitioner in paragraph 5 of the affidavit that the selection was not made by TNPSC till then which is clear from the sentence employed to this effect as admitted by the petitioner himself about the Letter dated 17.07.2008 of the TNPSC. It is also admitted by the petitioner that he had sent the community certificate to TNPSC on 16.09.2008. The date event even as per the petitioner that the TNPSC did not make any commitment with regard to the petitioner's selection. He was only asked to submit the certificates for verification which were sent by him on 04.09.2008 and 16.09.2008 after more than one year. It has been fairly admitted by the petitioner that the TNPSC only informed the petitioner that further communication in this regard would be sent to him shortly which will all prove that no selection was made by the TNPSC. However, as stated supra, the correspondence between the petitioner and the TNPSC were mutual and the department of the respondents were not aware of them, nor it is found necessary and the further process in any selection to any post through the TNPSC will have to be taken only after allotment of the individual to the particular department for issue of appointment order etc., Hence, the petitioner had only participated in the Special Competitive Examination for Group IV posts in the year 2007 and cannot be construed as if had been selected for the post as averred by the petitioner. It may be seen that there was delay in submission of the required certificates to the TNPSC by the petitioner which he had not explained and hence could not be held as 'administrative delay' and is purely due to negligence of the petitioner alone in prompt submission of the certificates’’.

6. The case of the appellants is that the respondent was not selected in the batch prior to 01.06.2009. He was selected in Phase II selection after 01.06.2009. The Government has also clarified the same in Letter No.3421/NidhiKa.Ka-2/2019 dated 29.08.2019 issued to all Heads of Departments, stating that fitment with 1.86% weightage is not applicable to those who were selected by TNPSC after 01.06.2009 in Phase II and Phase III of the 2007 competitive examination. The respondent made a representation on

18.12.2019 and filed W.P.No.19432 of 2019. This Court directed the department to consider the same. Accordingly, the department rejected the claim vide order dated 12.11.2021. The said order was challenged in W.P.No.26940 of 2021.

7. The learned Single Judge, by order dated 17.10.2023, allowed the writ petition, holding that certificate verification was completed as early as on 16.09.2008 and therefore the delay is attributable to administrative reasons and the benefit of G.O.Ms.No.340 cannot be denied.

8. We have heard the counsel for the appellants and the respondent and perused the records.

9. The only question that arises for consideration is whether the respondent is entitled to the benefit of G.O.Ms.No.340 dated 26.08.2010.

10. Admittedly, the respondent participated in the Special Competitive Examination in 2007. The correspondence between the TNPSC and the respondent regarding submission of certificates from July 2008 onwards would not mean that selection was made. As admitted by the respondent himself, he sent the certificates only on 16.09.2008. No selection was made by TNPSC till then. The selection was made only on 22.12.2009 that too in Phase II.

11. G.O.Ms.No.340 dated 26.08.2010 is a special concession applicable only to those who were selected in the same batch prior to 01.06.2009 and whose joining was delayed due to administrative reasons. The respondent's selection itself is after 01.06.2009, i.e., on 22.12.2009 and that too in Phase II. Therefore, he does not fall under the ambit of the said G.O. The Government clarification dated 29.08.2019 also makes it clear that those selected after 01.06.2009 in Phase II and Phase III are not eligible.

12. The learned Single Judge failed to consider that the respondent suppressed the fact that his selection was in Batch II / Phase II and not in Batch I. The documents produced by the department clearly show that the delay is not an administrative delay but due to the respondent's own delay in submitting certificates and because his selection was in a later phase. In similar circumstances, the Hon'ble Division Bench in W.A.No.838 of 2026 dated 08.06.2026 has allowed the Writ Appeal holding that Phase II candidates are not entitled to G.O.Ms.No.340 benefit. The relevant paragraphs are extracted hereunder: ‘’16. Rule 2(1) of the Tamil Nadu State and Subordinate Service Rules, which were in force during the relevant point of time in respect of the appointments of the respondents, defines that “A person is said to be “appointed to a service” when in accordance with these rules or in accordance with the rules applicable at the time, as the case may be, he discharges, for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.

17. Even in the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, Section 3(b) defines “appointed to a service" means when a person appointed in accordance with this Act or in accordance with the rules applicable at the time, as the case may be, discharges, for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.

18. Therefore, mere selection or publication of a selection list would not confer any right on the candidates’’.

13. It is a well settled principle of law that mere participation in a selection process or the inclusion of a candidate’s name in a primary verification list does not confer any indefeasible or vested right to appointment. Even the successful candidates in a selection process do not acquire an indefeasible right to be appointed to a post. Therefore, the respondent cannot claim parity with candidates who were selected and appointed in Phase-I prior to 01.06.2009. Furthermore, the fixation of a cut-off date for conferring financial benefits and fitment weightage falls within the exclusive domain of executive policy. Financial cut-off dates framed by the Government cannot be interfered with by Courts under Article 226 of the Constitution of India unless it is proven to be wholly arbitrary. The respondent having been selected in Phase-II falls outside the express coverage of G.O. Ms. No.340. Moreover, the delay in processing the respondent's selection cannot be termed as an administrative delay on the part of the department. The respondent submitted his required community certificates only in September 2008. The delay on the part of the respondent cannot be taken advantage of by him, and he cannot subsequently turn around and attribute the allotment in Phase-II to administrative inertia.

14. In view of the above, the order of the learned Single Judge cannot be sustained. In the result, this Writ Appeal is allowed; The order dated 17.10.2023 made in W.P.No.26940 of 2021 is set aside. The order in Letter No.Ni2/2291/2021 dated 12.11.2021, passed by the first appellant is restored. The connected Miscellaneous Petition is closed. No costs. (S.M.S.,J.) (K.G.R.,J.) 09-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No rli

S.M.SUBRAMANIAM, J. AND KRISHNASWAMY GOVINDARAJAN, J. rli WA No. 3508 of 2023 09-09-2026