Madras High Court
R.Jothimani vs The Director on 14 August, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/08/2013 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.13377 of 2013 R.Jothimani .. Petitioner vs 1.The Director, Directorate of Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai-15. 2.The District Collector, Madurai District, Madurai. 3.A.Mariathangammal .. Respondents Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified mandamus to call for the records of the first respondent in his proceedings No.Se.Mu.Ka.49341/2010/C3 dated 19.07.2013 and quash the same in so far as rejecting the claim of the petitioner to promote him as Deputy Block Development Officer and consequently promote the petitioner as Deputy Block Development Officer from 15.05.2008 by providing applicable monetary benefits and back wages. !For Petitioner ... Ms.Radhi Sathish ^For Respondents ... Ms.S.Bharathi, Govt.Advocate for R1 and R2 :ORDER
The petitioner has retired from service voluntarily on 31.12.2012. Being aggrieved by the order dated 19.07.2013, passed by the Director of Rural Development and Panchayat Raj, Chennai, the first respondent herein, he has sought for a writ of certiorarified mandamus to quash the same and consequently prayed for a direction to the respondents to promote him as Deputy Block Development Officer from 15.05.2008 and pay all monetary benefits.
2.It is the case of the petitioner that a seniority panel for promotion to the post of Extension Officer / Deputy Block Development Officer from the cadre of Assistant, as on 01.01.2008 was published by the District Collector, Madurai District, on 25.02.2010, wherein the name of the petitioner figured at Sl.No.28. According to the petitioner, the name of the petitioner ought to have been placed above Mrs.A.Mariathangammal, who was included at Sl.No.20. Therefore, objecting to the placement in the seniority panel, the petitioner has made a representation dated 08.03.2010 to the District Collector, Madurai District, the second respondent herein, and sought for modification of the seniority to fix his name at Sl.No.21. However, vide order dated 19.05.2010, the District Collector, Madurai District, rejected his request. An appeal dated 16.06.2010, was preferred to the Director of Rural Development and Panchayat Raj, Chennai, the first respondent herein. Since the appeal was not disposed of in time, the petitioner was constrained to file a writ petition in W.P.(MD)No.16189 of 2012 for early disposal of the appeal and vide order dated 14.12.2012, a direction was given to dispose of the appeal. As the order made in the above said writ petition was not complied with, in time, a contempt petition in Cont.P.(MD)No.720 of 2013, was filed, pursuant to which the impugned order has been passed.
3.Assailing the correctness of the impugned order, Ms.Radhi Sathish, learned counsel for the petitioner submitted that when the petitioner was fully eligible for promotion to the post of Deputy Block Development Officer, as early as on 15.05.2008, and when Mrs.A.Mariathangammal, junior, has been promoted to the said post, the respondents 1 and 2 ought to have revised the seniority list and included the name of the petitioner at Sl.No.21 instead of Sl.No.28 and consequently, ordered promotion of the petitioner as Deputy Block Development Officer.
4.Learned counsel for the petitioner further submitted that though the petitioner submitted a letter dated 18.06.2008 relinquishing promotion, the same has been accepted by the District Collector, Madurai District, only on 20.08.2008. According to her, promotion ought to have been given for the petitioner, taking note of the eligibility as on 15.05.2008.
5.Heard the learned counsel for the petitioner and perused the materials available on record.
6.A perusal of the impugned order shows that the petitioner has been appointed as Junior Assistant in Rural Development and Panchayat Raj Department, on 20.09.1990. After passing the departmental tests on 15.05.1993, the Government have issued orders in G.O.No.104, Social Welfare and Nutritious Meal Department, dated 12.06.2003, declaring probation. Vide proceedings in Na.Ka.No.134/2010-2/ Oo.Va.2 dated 19.05.2010 of the District Collector, Madurai District, the petitioner has been placed at Sl.No.28 below one B.Seethalakshmi. While considering the representation for revision of seniority, the District Collector, Madurai District, vide his order dated 19.07.2013, has stated that the petitioner, after completion of probation in the post of Junior Assistant on 15.05.1993, was promoted temporarily to the post of Assistant on 04.02.1999, whereas, B.Seethalakshmi, who was appointed on 18.09.1990, as Junior Assistant, had completed her probation and was treated as Approved Probationer on 10.02.1994 and included in the panel for promotion to the post of Assistant, and accordingly, promoted as Extension Officer on 15.05.2008.
7.As per the supporting affidavit, the petitioner was promoted as Assistant on 04.12.1999. Though, Mariathangammal, who had completed the probation in the post of Junior Assistant on 10.02.1994, and also came to be promoted as Assistant on 01.08.1996, no materials have been placed before this Court to show that promotion of the said Mariathangammal has been challenged, nor there are materials to show that the petitioner had objected to the seniority list of the Assistants, at the relevant time. Therefore, on the basis of the date of appointment of the petitioner, and Mariathangammal, the third respondent herein, in the post of Assistant, seniority list has been drawn for the higher post. When the seniority panel for promotion to the post of Extension Officer / Deputy Block Development Officer in the cadre of Assistant as on 01.01.2008 was finalised on 25.02.2010, the name of the petitioner has been placed at Sl.No.28. What is stated to be revised in 2010, by the writ petitioner, is seniority in the post of Assistant. Admittedly, Mariathangammal has been included in the panel and was also promoted as Assistant on 01.08.1996 and thereafter promoted as Extension Officer on 15.05.2008, whereas, the petitioner has been promoted as Assistant only on 04.02.1999, ie. three years later than Mariathangammal.
8.It is trite law that if an individual has not been considered for promotion or not placed in the seniority, at the appropriate place, a request for revision of seniority in the said post, ought to have been made within a reasonable time. What is reasonable time in the matter of revision of seniority, is specified in Tamil Nadu State and Subordinate Rules. As per the said Rules, request for revision of seniority has to be made within three years from the date of inclusion in the list. From the materials available on record, it could be deduced that the petitioner has not challenged his placement, in the seniority list of eligible candidates to be promoted to the post of Assistants in the year 1996. Mariathangammal, who had been declared as Approved Probationer on 10.02.1994 in the post of Junior Assistant, has been included in the panel of Assistants, and now by an Appeal dated 16.06.2010, the petitioner seeks to revise the seniority list in the post of Assistants and consequently to higher posts. Revision of seniority cannot be made at a belated stage. Courts have consistently held that seniority once settled in a post cannot be permitted to be unsettled after a long lapse of time. Reference can be made to the following decisions.
9.In S.Subramanian vs. The Joint Registrar of Co-operative Societies, Sivagangai Region, Madurai Road, Sivagangai, reported in 2007 (1) CTC 296 = 2007 (1) LLN 410, a Division Bench of this Court, considered a question of revision of seniority after a long time. After adverting to the pleadings, at paragraph 10 of the judgment, the Division Bench has held as follows:-
"....... When such seniority is fixed and the appellant having failed to question the same, till an order was issued, he cannot question the settled seniority after a long period."
The Hon'ble Division Bench has further held that "it is well settled that in the matter of seniority and promotion, the settled position cannot be unsettled, after a lapse of long period. Once we come to the conclusion, the claim for seniority cannot be entertained after a lapse of 10 years. In that view of the matter, we are not inclined to go into the other questions."
10.In B.S. Yadav vs. State of Haryana, reported in 1980 (Supp) SCC 524, the Supreme Court considered the retrospective operation of the rule, which affected the seniority. While considering the said issue, that was the matter pertaining to Judicial Service and while addressing the retrospective effect of the rule, the Supreme Court, at paragraph 78, has observed as follows:-
"We do hope that the State Government will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the rules will not be tinkered with too often. It should also be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn-out litigation between the promotees and direct appointees. That breeds indiscipline and draws the High Court into the arena, which is to be deprecated."
11.In Bimlesh Tanwar vs. State of Haryana, reported in 2003 (5) SCC 604, the Supreme Court has observed that seniority is not a fundamental right. It is merely a civil right. Inter se seniority of the candidates who are appointed on the same day would be dependent on the rules governing the same. In the absence of rules governing seniority an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the court may have to evolve a fair and just principle which could be applied in the facts and circumstances of the case.
12.In H.S. Vankani v. State of Gujarat, reported in (2010) 4 SCC 301, taking note of the legal principles reiterated by the Apex Court in Union of India v. S.K. Goel, reported in 2007 (14) SCC 641 = 2009 (1) SCC (L&S) 873, T.R. Kapoor v. State of Haryana, reported in 1989 (4) SCC 71 = 1989 SCC (L&S) 636 and Bimlesh Tanwar vs. State of Haryana, reported in 2003 (5) SCC 604, at paragraphs 38, and 39, the Supreme Court has held as follows:-
38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-
seniority, etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and government, driving the parties to acute penury. It is well known that the salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money-making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further, it also consumes a lot of judicial time from the lowest court to the highest resulting in constant bitterness among the parties at the cost of sound administration affecting public interest.
39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action.
13.On the aspect of consideration of the petitioner to the post of Extension Officer / Deputy Block Development Officer, as on the date of eligibility, this Court is of the view that such directions cannot be issued. It is one thing to state that the petitioner had become qualified and eligible to be promoted to a higher post, but such a direction can be ordered, only when the individual reaches his / her turn for promotion to the higher post, depending upon the vacancy position and seniority in the feeder category post. Mere inclusion of an individual in the seniority list, would not confer any right to seek for promotion. Though the learned counsel for the petitioner submitted that the letter dated 18.06.2008 submitted for relinquishing promotion has been accepted by the District Collector, Madurai District, only on 20.08.2008 and that the respondents ought to have promoted the petitioner, reckoning the date of eligibility as 15.05.2008, this Court is not inclined to accept the said submission for the reasons stated supra.
14.In the light of the facts and circumstances of the case, this Court is of the view that there is no manifest illegality in rejecting the request of the petitioner, thus confirming the decision of the District Collector, Madurai District, regarding revision of seniority.
15.The writ petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
KM To
1.The Director, Directorate of Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai-15.
2.The District Collector, Madurai District, Madurai.