Madras High Court
S. Selvanathan vs The Government Of Puducherry on 13 October, 2014
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri, K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.10.2014 CORAM: The Honourable Mr.Justice SATISH K. AGNIHOTRI AND The Honourable Mr.Justice K.K.SASIDHARAN W.P.No.2684 of 2013 & M.P.Nos.1 to 3 of 2013 1. S. Selvanathan 2. A. Balasubramnian 3. T. Manivannan 4. M. Dasarathan 5. E. Datchinamurthy 6. T. Selvam 7. R. Muthukrishnan 8. L. Sandiramurthy 9. R. Palanivel 10. K. Rajan 11. R. Jayabalan ..Petitioners versus 1. The Government of Puducherry Rep.by its Chief Secretary Home Department Chief Secretariat Building Puducherry. 2. The Director General of Police Duima Street Puducherry-605 501. 3. C. Gangadharan 4. U. Jagadeesan 5. P. Babu 6. S. Vengadesan 7. V. Natarajan 8. L. Palani 9. P. Vijayakumar 10. D. Saravanan 11. K. Kathiravan 12. C. Panneerselvam 13. P. Thirumurugan 14. S. Mathibalan 15. Muthukumaran 16. J. Jebi 17. The Registrar Central Administrative Tribunal High Court Campus Chennai-600 104. ..Respondents Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the connected records relating to the order in O.A.No.407 of 2010 dated 27 November 2012 passed by the Central Administrative Tribunal, Chennai Bench and quash the same. For Petitioners : Mr.M. Gnanasekar For Respondents : Mr.Syed Mustaffa Government Pleader (Pondy.) for RR1 and 2 Mr. P.V.S. Giridhar Rao for M/s. Giridhar & Sai Associates for R.3 Ms. Kavitha Deenadayalan for RR 4,8,10,14 & 16 Mr.Kathik Mukundan for RR 5 to 7, 11,12 and 15 RR9 and 13 - No appearance ------------- O R D E R
This writ petition is directed against the order dated 27 November 2012 in O.A.No.470 of 2010, whereby and whereunder the Central Administrative Tribunal was pleased to direct the Government of Union Territory of Pondicherry to redo the exercise of preparation of seniority once again and to grant seniority to respondents 3 to 16 from the year 1999.
2. The petitioners were not parties to the original application. Since the order passed by the Central Administrative Tribunal would unsettle their seniority, the petitioners have come up with this writ petition.
3. Respondents 3 to 16 initially served as Home Guards in the Union Territory of Pondicherry. The Government of Pondicherry issued an order in G.O.Ms.No.34, Home Department dated 4 August 1997 wherein it was stated that for implementation of the promotion scheme for Police Constables (Drivers) and Head Constables (Drivers) in the police department, both the categories of posts were amalgamated into a single category of posts viz., Drivers (Police Department). In view of the said Government Order, the Police Constable (Drivers) and Head Constable (Drivers) became eligible to get their pay as Drivers (Police Department), re-fixed with effect from 1 August 1993. The Government have also issued another order in G.O.Ms.No.24 dated 21 August 1998 notifying the Rules in the name and style "The Government of Pondicherry, Home Department, Group C post of Driver Grade III, Grade II, Grade I (Police Department) Recruitment Rules 1998".
4. The Director General of Police initiated recruitment process for appointment to the post of Driver (Police Department), Grade III-Group C. The respondents 3 to 16 participated in the recruitment process. They were provisionally selected on 6 October 1999 and thereafter appointment orders were issued vide proceedings dated 8 October 1999. The respondents 3 to 16 were placed on probation in the said post for two years with effect from 21 October 1999. They have completed probation during the year 2001. The Director General of Police vide proceedings dated 18 February 2003 issued orders certifying satisfactory completion of probation.
5. The Government of Pondicherry published the seniority list of Grade III Drivers vide proceedings dated 10 August 2001. The Government in the annexure to the seniority list indicated that the names of 15 Drivers were not included on account of the pendency of Original applications before the Central Administrative Tribunal. Thereafter another seniority list was published on 24 April 2008. The said tentative list of seniority was circulated among the Drivers calling for their objections. The applicants/respondents 3 to 16 have not submitted objection to the tentative seniority list. The Government thereafter approved the seniority list by proceedings dated 25 March 2010.
6. The respondents 3 to 16 filed Original Application before the Central Administrative Tribunal on the ground that the Government have not followed the ratio of 3:1 between Police Constables and Home Guards each time when vacancies were filled up in the post of Drivers (Police Department) Grade III. According to respondents 3 to 16, the first 48 vacancies were filled up exclusively from Police Constables on 5 November 1998 and 23 September 1999 in the post of Drivers (Police Department) Grade III and on 22 October 1999 15 posts were filled up exclusively from Home Guards. It was contended that on account of the failure to follow the ratio of 3:1 they were placed below Police Constables and as such the seniority list requires revision.
7. The Superintendent of Police (HQRS), Pondicherry filed a counter affidavit on behalf of the Director General of Police, the second respondent in the writ petition. The second respondent contended that the Government have framed Recruitment Rules for appointment to the post of Driver (Police Department) Grade III and it was notified in G.O.Ms.No.24 dated 21 August 1998. The method of recruitment for the post of Driver was by transfer of Police Constable/Absorption of Home Guards possessing the educational and other qualifications in the ratio 3:1, failing which by direct recruitment. The second respondent further contended that the seniority list was originally published on 10 August 2001. Thereafter revised tentative seniority list was published on 24 April 2008 calling for objections from concerned officials. The Police Department received eleven objections. The respondents 3 to 16 did not file objections to the tentative seniority list. The Government published the final seniority list of Drivers on 26 March 2010. In short, the second respondent contended that seniority was correctly drawn in accordance with Rules.
8. The petitioners were not made parties to the Original Application in spite of the fact that any order passed in the Original Application would affect their seniority.
9. The Central Administrative Tribunal without looking into the counter affidavit filed by the second respondent set aside the seniority list dated 26 March 2010 and directed the police department to redo the exercise within a period of three months. The said order is challenged in this writ petition by the affected parties.
10. We have heard the learned counsel for the petitioners and the learned counsel for the respondents including the learned Government Pleader, Pondicherry.
11. The respondents 3 to 16/applicants in the Original Application were initially appointed as Home Guards. While they were functioning as Home Guards the Government issued an order in G.O.Ms.No.24 dated 21 August 1998 notifying the Recruitment Rules for appointment to the post of Driver (Police Department) Grade III. As per the Recruitment Rules the post of Driver would be filled up by transfer of Police Constable/Absorption of Home Guards possessing the educational and other qualifications in the ratio of 3:1. The respondents 3 to 16 were provisionally selected by the second respondent as Drivers (Police Department) Grade III by absorption from Home Guards. Appointment Orders were given vide proceedings dated 8 October 1999 on the file of Inspector General of Police. The Government declared their probation on 18 February 2003.
12. The respondents 3 to 16 filed Original Application before the Central Administrative Tribunal primarily on the ground that the Government have not strictly followed the ratio of 3:1 while making appointments to the post of Drivers (Police Department) Grade III. According to respondents 3 to 16, the first 48 vacancies were filled up exclusively from Police Constables on 5 November 1998 and 23 September 1999. Thereafter 15 posts were filled up from Home Guards. It the grievance of the respondents 3 to 16 that in case ratio of 3:1 was followed, they would have been appointed much earlier. Resultantly their names would have been placed above the writ petitioners. The respondents 3 to 16 challenged the seniority list dated 26 March 2010 primarily on the ground that the petitioners were placed above them solely on account of their earlier recruitment without following the ratio of 3:1 as indicated in the Government Order in G.O.Ms.No.24 dated 21 August 1998.
13. The Government of Pondicherry through the Director General of Police pleaded before the Central Administrative Tribunal that they have followed the ratio of 3:1 and the seniority was correctly fixed. The Government have also indicated that they have followed the Rules regarding seniority and promotion in Central Government Service Rules while preparing the tentative and final seniority lists.
14. The respondents 3 to 16 wanted the seniority to be re-fixed by ear marking certain posts for Home Guards in the ratio of 3:1 and thereafter to give retrospective effect to their date of promotion. The respondents 3 to 16 have not challenged their appointment orders. The appointment orders issued to the concerned respondents very clearly indicate the date of their appointments.
15. The respondents 3 to 16 have no case that the Government have not issued the tentative seniority list. They have not filed objection to the tentative seniority list. The reply affidavit filed by the Government indicates the factual and legal position. The Central Administrative Tribunal adopted a novel procedure by setting aside the seniority list without reference to the reply affidavit filed by the Government. The Tribunal appears to have taken note of the submission made by the learned counsel appearing on behalf of Government of Pondicherry and allowed the Original Application. The petitioners have taken up a specific contention in their affidavit filed in the writ petition that the learned Government Pleader was not correct in making a concession and the Tribunal also erred in passing an order on that basis.
16. The Tribunal entertained the Original Application and passed an order adverse to the interest of the petitioners without even looking into the material fact that those who would be affected by the order were not made parties. Seniority has got its own weight in the field of service jurisprudence. Seniority cannot be unsettled long after and that too without notice to the affected parties.
17. The Supreme Court in H.S. Vankani v. State of Gujarat, (2010) 4 SCC 301 underlined the importance of seniority and cautioned that it would not be a lawful exercise to unsettle the seniority long after:
" 38. Seniority is a civil right which has an important and vital role to play in ones 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 ones 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 ones 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."
18. The Supreme Court in Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610, observed that the claim for seniority has to be putforth within a reasonable period. The Supreme Court said:
"It is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy."
19. The Supreme Court in D.P. Das v. Union of India, (2011) 8 SCC 115, indicated the method of fixing seniority.
"18. The law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules. In the absence of a provision ordinarily the length of service is taken into account. The Supreme Court in M.B. Joshi v. Sathish Kumar (1979) 1 SCC 477 has laid down that it is the well-settled principle of service jurisprudence that in the absence of any specific rule the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of the service and not on any other fortuitous circumstances."
20. The Tribunal in paragraphs 4 and 5 of the order placed reliance on the submission made by the counsel who represented the Government of Pondicherry to grant seniority to the respondents 3 to 16 from the year 1999. The submission made by the learned Government Pleader across the Bar cannot be a reason to set aside the seniority list and allow the original application, not withstanding the reply affidavit filed on behalf of the department. We strongly disapprove the procedure adopted by the Tribunal in the matter of disposal of the Original Application on the basis of oral submission and without reference to records. The Tribunal should have analysed the case in the light of the contentions taken by respondents 3 to 16 and the defence taken by the police department. Unfortunately no such exercise was made by the Tribunal. The Tribunal adopted a process of summary of disposal of the matter without reference to the pleadings. We are therefore not in a position to agree with the views expressed by the Tribunal.
21. The respondents 3 to 16 are not entitled to seniority solely on the ground that their appointments should have been made long back. In case the Government have not followed the ratio of 3:1, the respondents 3 to 16 should have challenged the said action then and there. The appointment orders issued to respondents 3 to 16 indicate the actual date of their appointment. The respondents 3 to 16 were also aware of the date of their substantial appointment and the declaration of their probation. Since appointment orders of the petitioners and respondents 3 to 16 are not before this Court, we are not in a position to ascertain their actual seniority position. Therefore, we are of the view that the order passed by the Tribunal should be sustained only in so far as its direction to re-do the seniority list is concerned.
22. The respondents 1 and 2 are directed to consider the question of fixation of seniority afresh with notice to the petitioners and respondents 3 to 16. While considering the question afresh, respondents 1 and 2 should not be carried away by the observation made by the Tribunal in its order which is impugned in this writ petition and more particularly the concession given by the learned counsel appearing on behalf of the Government of Pondicherry. The respondents 1 and 2 are directed to consider the issue of seniority strictly in accordance with "Seniority and Promotion in Central Government Rules" indicated in paragraph 6 of the counter affidavit filed by the Superintendent of Police (HQ), Pondicherry in O.A.No.407 of 2010.
23. The order passed by the Central Administrative Tribunal in O.A.No.407 of 2010 is modified to the extent indicated above.
24. The writ petition is allowed in part as indicated above. Consequently the connected MPs are closed. No costs.
[S.K.A.,J] [K.K.S., J.]
13.10.2014
Index: Yes/no
Internet: Yes/no
Tr/
SATISH K. AGNIHOTRI, J
and
K.K.SASIDHARAN, J
Tr
To
1. The Government of Puducherry
Rep.by its Chief Secretary
Home Department
Chief Secretariat Building
Puducherry.
2. The Director General of Police
Duima Street
Puducherry-605 501.
3. The Registrar
Central Administrative Tribunal
High Court Campus
Chennai-600 104.
W.P. No.2684 of 2013
13.10.2014