Madras High Court
M.V. Jayalakshmi vs The Commissioner Of Collegiate ... on 11 July, 2002
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The short question that arises for consideration in this writ petition is as to how the seniority in the matter of promotion from the post of Office Assistant to the post of Record Clerk in the private college could be determined?
2. The petitioner and the fourth respondent were appointed in the third respondent college as Office Assistants on 26.3.90. The date of birth of the petitioner is 15.5.67 and that of the fourth respondent is 12.5.69. However, while promotions were made in the year 1994, the fourth respondent was promoted on the ground that she was shown over and above the petitioner in the order of seniority. The grievance of the petitioner is that the petitioner having born on 15.5.67 and senior in age to the fourth respondent ought to have been promoted.
3. Heard the learned counsel for petitioner and the respective learned counsel for respondents.
4. The third respondent college is amenable to the provisions of the Tamil Nadu Private Colleges (Regulation) Act and the Rules made there under. As per rule 11(4) of the Tamil Nadu Private Colleges (Regulation) Rules, promotion to the higher posts in the matter of non-teaching staff shall be made on the basis of seniority only. However, the said rule does not indicate as to how the interse-seniority is to be determined when two persons are appointed on the same date. It is not in dispute that in the absence of any provision under the rules, the Tamil Nadu State and Subordinate Service Rules are applicable to the third respondent college. Sub rule (aa) of rule 35 of the above rules reads thus:-
"The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is not solely by direct recruitment or by recruitment by transfer, or by promotion, but by direct recruitment, by recruitment by transfer and by promotion, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the service, class, category or grade."
Provided that where the junior appointed by a particular method of recruitment happens to be appointed to a service, class, category of grade, earlier than the senior appointed by the same method of recruitment the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing interse-seniority:
Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category, or grade on the same day, their interse-seniority shall be decided with reference to their age."
As per the last proviso, the interse-seniority shall be decided with reference to age in the case of persons appointed on the same day. Admittedly, both the petitioner and the fourth respondent were appointed on the same day viz., on 26.3.90. As per the above rule, the petitioner who was born on 15.5.67, much prior to the fourth respondent who was born on 12.5.69, ought to have been promoted to the post of Record Clerk. The submission of the learned counsel for third respondent is that a panel was drawn as early as in the year 1990 while the appointments were made to the post of Office Assistant and in the said panel, the petitioner was shown in serial no.3 and the fourth respondent was shown in serial no.2. The said panel was not challenged by the petitioner. As per rule 35-F of the above rules, any application for revision of seniority shall be made only within a period of three years. In the absence of challenge to the above seniority list, the petitioner cannot now challenge the consequential promotion made on the basis of the seniority list. The said submission of the learned counsel for third respondent is totally unacceptable. It is not the case of either the fourth respondent or the third respondent management that the seniority list was published in the year 1990 and objections were called for from the petitioner. If only the objections were called for and in the event there was no objection, the said provisional seniority list will become final. In the absence of such communication from the third respondent to the petitioner, the petitioner cannot be expected to submit her objection to the seniority list. Factually, I also find that there was in fact no seniority list drawn. The argument as to the seniority list made is only on the basis of the appointment orders. What is to be considered for interse-seniority between the petitioner and the fourth respondent is only on the basis of sub rule (aa) of rule 35 of the rules. When the petitioner is entitled to be considered for promotion to the post of Record Clerk on the basis of her age, the promotion of the fourth respondent is opposed to the above rule. In that view of the matter, the petitioner is entitled to succeed in the writ petition.
5. In view of the above finding, there will be a direction to the third respondent to consider the claim of the petitioner for promotion to the post of Record Clerk duly taking into consideration of sub rule (aa) of rule 35 of the Tamil Nadu State and Subordinate Service Rules and pass orders promoting her to the said post within a period of one month from the date of receipt of copy of this order. Such promotion made by the third respondent shall be duly approved by the respondents 1 and 2 also. However, this D. Murugesan, J.
order will not entitle the third respondent management to recover any salary that has been paid to the fourth respondent by virtue of her promotion to the post of Record Clerk. The writ petition is allowed to the extent indicated above. No costs. Consequently, W.M.P.No.7436 of 1995 is closed.