Madras High Court
V.Chitra vs Director on 5 April, 2013
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 20.06.2019
Delivered on: 10.07.2019
CORAM
THE HONOURABLE MR. JUSTICE V.PARTHIBAN
WP.No.12421 of 2017 and
W.M.P.No.13176 & 13177 of 2017
V.Chitra ...Petitioner
Vs.
1. Director,
Elementary Education,
DPI Campus, Nungambakkam,
Chennai-600 006.
2. District Elementary Educational Officer,
Nagapattinam District,
Nagapattinam.
3. Assistant Elementary Educational Officer,
Sirkali Union, Sirkali,
Nagapattinam Dist.
4. Additional Assistant Elementary Educational Officer,
Sirkali Union, Sirkali,
Nagapattinam Dist.
5. A.Selvaran
6. T.Ravichandran
7. S.Juliet
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8. K.Rathipriya
9. S.Kalavathi
10. P.Gowriammal
11. U.Latha
12. R.Vijayalakshmi
13. G.S.Shanthi
14. S.Chitra
15. P.Malathi
16. V.Shanthi ...Respondents
PRAYER: Writ petition filed under Article 226 of the
Constitution of India praying for issuance of Writ of
Certiorarified Mandamus, to call for the records pertaining to
the seniority list of the Secondary Grade Teachers for the year
2017 published by the 3rd and 4th respondents as on
01.01.2017, quash the same as being illegal, arbitrary and
mala fide and consequently direct the 3rd and 4th respondents
to place the petitioner above 5th respondent in the seniority list
and to promote her as Head Master in the Panchayat Union
Elementary School/Government Elementary School in 3rd and
4th respondents Union with all other attendant and
consequential benefits.
For Petitioner : Mr.N.G.R.Prasad, SC for
M/s.Row & Reddy
For Respondents : Mr.K.Karthikeyan, GA for
R1 to R4
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ORDER
This Writ Petition has been filed by the petitioner, praying to issue Certiorarified Mandamus, to call for the records pertaining to the seniority list of the Secondary Grade Teachers for the year 2017 published by the 3rd and 4th respondents as on 01.01.2017, quash the same as being illegal, arbitrary and mala fide and consequently direct 3rd and 4th respondents to place the petitioner above 5th respondent in the seniority list and to promote her as Head Master in the Panchayat Union Elementary School/Government Elementary School in 3rd and 4th respondents Union with all other attendant and consequential benefits.
2. The petitioner joined the Municipal School at Myladuthurai on 18.01.1989 as a Secondary Grade Teacher. She completed her probation on 17.01.1991. On 18.01.1999, on her personal request, the petitioner was transferred from the Municipal School at Myladuthurai to Thiruvali Middle School, Sirkali Union. At the time of transfer in 1999, the http://www.judis.nic.in 4 petitioner had forgone her seniority. She was placed immediately below those Secondary Grade Teachers who completed the probation in the said Union. At that point of time, according to the petitioner, a seniority list was maintained properly. In the seniority list published in the year 2010, according to the petitioners, the respondents 13 to 16 were placed above the petitioner without following the principle that the petitioner cannot be placed below the unapproved probationers. While so, in the seniority list as on 1.1.2013, the petitioner was placed below the private respondents 5 to 16. According to the petitioner, no notice was served on her before the seniority list came to be revised to her disadvantage. According to the petitioner, the private respondents have not completed their probation at the time when the petitioner joined Sirkali union on 18.01.1999. According to the petitioner, respondents 13 to 16 were appointed in some other Union and transferred to this Union before completion of their probation and therefore, they have been placed below the petitioner who had completed her http://www.judis.nic.in 5 probation in erstwhile Union at Myladuthurai on 17.01.1991 itself.
3. In reply to one of the representations of the petitioner, 2nd respondent vide communication dated 5.4.2013, has informed the petitioner that she had been rightly placed below all the private respondents. In the circumstances, the petitioner is before this Court, challenging the seniority list of Secondary Grade Teachers as on 1.1.2017 published by the 3rd and 4th respondents and with consequential direction as sought for above.
4. Shri N.G.R.Prasad, learned senior counsel for the petitioner would submit that as per relevant instructions issued by the Director of Elementary Education, Chennai, the approved probationers in the same Union should be placed first and the approved probationers of the other Unions who come on unit to unit transfer, should be placed below that of the approved probationers in the same unit. He would submit that the probationers of other Unions who come on Unit to Unit transfer should be placed after the names of the http://www.judis.nic.in 6 probationers in the same Union. He would submit that as far as the petitioner is concerned, her probation was declared in erstwhile Union on 17.01.1991 itself and she joined Sirkalai Union on 18.01.1999 as approved probationer. Therefore, she has to be placed at the bottom of the seniority list after the approved probationers in Sirkali Union, whereas, the official respondents have assigned the seniority to the respondents 5 to 16 over and above the petitioner though their probation was declared subsequent to joining of the petitioner in Sirkali Union. The loss of seniority would arise only in respect of placing at the bottom of the approved probationers of that Union and not below unapproved probationers. Therefore, the assignment of the seniority of the petitioner below the private respondents per se is illegal, arbitrary, unjust and liable to be interfered with.
5. On notice, Mr.K.Karthikeyan, learned Government Advocate entered appearance on behalf of respondents 1 to 4 and a counter affidavit has been filed on their behalf.
6. In the counter affidavit, the facts regarding the http://www.judis.nic.in 7 declaration of probation of the petitioner and her transfer to Sirkali Union, etc., are not disputed. The point of resistance to the petitioner's claim as averred by the official respondents in this Writ Petition is that the petitioner being a transferee from a different Union and posted in Sirkali Union only on 18.01.1999, cannot seal a march over other private respondents who are either working in the same Union or came on transfer much before the petitioner. In the counter affidavit, a detailed tabular column has been incorporated in para 7, showing the date of regularization, date of completion of probation and date of joining Sirkali Union and their seniority position, etc., which is extracted as under:
Respon Name Date of Date of Date of joining Seniority
-dent regularization completion in Sirkali Union No. of probation 5 A.Selvaraj 28.07.1997 27.07.1999 28.07.1997 7 6 T.Ravindran 28.07.1997 27.07.1999 28.07.1997 8 7 S.Juliet 28.07.1997 27.07.1999 28.07.1997 9 8 K.Rathipriya 28.07.1997 04.08.1999 28.07.1997 10 9 S.Kalavathi 01.08.1997 29.09.1999 01.08.1997 11 10 P.Gowriammal 01.08.1997 29.09.1999 01.08.1997 12 11 U.Latha 01.08.1997 31.07.1999 01.08.1997 13 12 R.Vijayalakshmi 21.11.1997 13.12.1999 10.07.1998 14 http://www.judis.nic.in 8 Respon Name Date of Date of Date of joining Seniority
-dent regularization completion in Sirkali Union No. of probation 13 G.S.Shanthi 15.10.1996 14.10.1998 14.07.1998 15 14 S.Chitra 30.07.1997 09.09.1999 15.07.1998 16 15 B.Malathi 15.10.1996 14.10.1998 17.07.1998 17 16 V.Shanthi 09.10.1996 08.10.1998 21.07.1998 18 Peti- V.Chitra 18.01.1989 17.01.1991 18.01.1999 19 tioner
7. Mr.K.Karthikeyan, learned Government Advocate appearing for the official respondents would submit that the seniority as fixed by the authorities is quite in order on the basis of the relevant instructions and the same need not be interfered with at all.
8. In fact, the learned Senior counsel Shri N.G.R.Prasad would rely upon three decisions, of which, two rendered by a Division Bench and one by a learned single Judge of this Court in support of his contention, that the seniority has to be fixed on the basis of instructions, namely, that placement of the bottom of seniority can be only after the approved probationer and not after unapproved probationer even in different Union. The decisions are mentioned as follows:
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a) Judgment in W.A.Nos.236, 437 and 276 of 2006, dated 9.3.2007 passed by a Division of this Court wherein, the learned Senior counsel would draw the attention of this Court to paragraph 23 which is extracted as under:
“23. Under such circumstances, the present impugned order is not in consonance with clause 6 of the proceedings of the Director of Primary Education, Chennai dated 12.12.1995, wherein it was contemplated that as the posts other than Secondary Grade Teachers are filled up through promotions, transfers from one union to another union are allowed only for the post of Secondary Grade Teachers. The seniority of such teachers coming on transfer, if he/she is an approved probationer, he/she will be placed below the approved probationer working in that union (on the date of joining on transfer) and if he/she has not completed his/her probation, he/she will be placed below the teachers who have not completed probation in the transferred union. This is based on Government letter No.38102/S2/95 dated http://www.judis.nic.in 10 14.10.1995. Moreover, as seen from the impugned order, the interest of the writ petitioner is very much protected by not reverting her from the post of Headmistress to that of Secondary grade Teacher by virtue of the revision of seniority. On the other hand, the appellants were deprived of monetary benefits on the basis of the revised seniority and they are entitled to have the revised seniority list of the year 2005 in the post of Elementary School Headmaster. Therefore, no prejudice is caused to the writ petitioner.”
b) Judgment in W.A.No.39 of 2015, dated 1.11.2016, wherein, this Court's attention was drawn up to paragraph 8 which is extracted as under:
“8. On an anxious consideration of the contentions put before this court, we are of the view that the learned Single Judge, having considered the grievance of the respondents 1 to 11 herein/writ petitioners, allowed the writ petitions by referring to G.O.Ms.No.209 School Education Department, dated 08.05.1997 by http://www.judis.nic.in 11 observing as under:-
"9. It is seen from G.O.Ms.No.209 School Education dated 08.05.1997 that when Teachers were transferred from one Unit to another Unit, they would be placed as juniormost in the transferred place. The said Government Order does not say whether they would be considered as juniormost in the transferred place without reference to the probation completed by them. But, the said aspect has been clarified by the proceedings of the respondents, which are enclosed in the typed set of papers filed by the petitioners, wherein, it has been made clear that when a person is transferred from Panchayat Union School to Corporation School and has completed probation, he would be placed as juniormost person below the approved probationer and if he has not completed probation, he would be placed as a juniormost person below the petitioner. The aforesaid position has been made clear in respect of the order http://www.judis.nic.in 12 passed to one Mrs.S.Rojamani, Mrs.R.Leelavathy and Mrs.M.Parimala and all those persons were transferred from Panchayat Union to the Corporation Schools. Therefore, even though the petitioners are to be placed as juniormost after transfer, having regard to G.O.Ms.No.209, they can be placed as juniormost below the approved probationers and not below the probationers as the petitioners have already completed probation.”
c) This Court's order dated 4.4.2018 passed in W.P.No.28423 of 2011, wherein a similar issue has been dealt with and the decision was rendered according to the contentions raised by the learned Senior counsel for the petitioner. A similar claim is urged before this Court by the learned Senior counsel for the petitioner. Therefore, the learned Senior counsel would submit that under no circumstances, the petitioner can be placed below the unapproved probationers.
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9. From the tabular statement extracted above, it is clearly established that except respondents 13, 15 and 16, all other private respondents' probation was declared only after the date of joining at Sirkali by the petitioner on 18.01.1999, whereas the probation of the respondents 13, 15 and 16 was declared in 1998 before joining of the petitioner and therefore, it cannot be gain said that these three respondents cannot be shown below the petitioner and therefore they have been rightly shown as seniors to the petitioner. But as far as the other respondents 5 to 12 and 14 are concerned, their probation was declared much after the joining of the petitioner at Sirkali on 18.1.1999. Therefore, it does not stand to logic that they can be placed above the petitioner whose probation was declared as early as in 1991. Already the petitioner had lost her considerable seniority on being transferred on request to Sirkali union and further she cannot be made to lose further seniority by placing her name even below the unapproved probationers of Sirkali union. In fact, the instructions issued by the Government are very clear that the http://www.judis.nic.in 14 seniority of the persons from one unit to other unit can be at the bottom of the approved probationers of the transferred unit and not below the unapproved probationers. Hence, the seniority of respondents 5 to 12 and 14 over and above the petitioner, cannot be countenanced both in law and on facts. Although Mr.N.G.R.Prasad argued that the petitioner ought to have been placed even above the respondents 3, 15 and 16, this Court is unable to accept the submission for the reason that these three respondents had joined the Sirkali union much earlier to the petitioner and their probation was declared in 1998 itself. On the date when the petitioner joined the Sirkali union on 18.1.1999, these respondents were already declared and approved probationers. Therefore, by no stretch of legal standard, the petitioner can claim seniority over and above these three respondents. But as far as the other private respondents are concerned, they cannot be placed above the petitioner and certainly, such placing cannot be approved by this Court as the same being unreasonable, arbitrary and cannot stand the test of judicial scrutiny. http://www.judis.nic.in 15 Although an attempt was made by the learned Senior counsel that even placing of respondents 13, 15 and 16 above the petitioner is wrong and incorrect since they also came from different union, but the fact of the matter is that their probation in the transferred unit was declared earlier to the petitioner's joining in Sirkali union, i.e. 18.1.1999 and therefore, the petitioner cannot have much better right than these respondents, particularly, on the date of declaration of probation of these three respondents, the petitioner had not even joined Sirkali union.
10. The learned Government Advocate, in fact, had strong objection in regard to the present Writ Petition, challenging the seniority list published on 1.1.2017 as according to him, earlier seniority list in which the petitioner was shown as junior in 2013 was not put to challenge by the petitioner and therefore, on this ground alone, the writ petition is liable to be dismissed for latches. Although there is some force in the contention put forth by the learned http://www.judis.nic.in 16 Government Advocate appearing for the official respondents, yet the contention showing the petitioner being junior to respondents 5 to 12 and 14 creates a continuous heart burn and the cause of action can also said to be recurring and continuous, the plea of latches need not be applied in the present case as no prejudice would be caused to the parties even the seniority list is revised before any promotion to be made by the administration. Therefore, the said contention is rejected.
11. For the above reasons, the seniority list of the Secondary Grade Teachers for the year 2017 published by the respondents 3 and 4, dated 01.01.2017 is hereby set aside. The respondents 1 to 4 are directed to refix the petitioner's seniority over and above the respondents 5 to 12 and 14 in the cadre of Secondary Grade Teachers and on such refixation, pay all the consequential attendant benefits as admissible to the petitioner. The direction of this Court shall be complied with by the competent authority, within a period http://www.judis.nic.in 17 of four weeks from the date of receipt of a copy of this order. No costs.
12. With the above direction, the Writ Petition stands allowed. No costs. Consequently, connected WMP is closed.
Suk 10.07.2019
To
1. Director,
Elementary Education,
DPI Campus, Nungambakkam,
Chennai-600 006.
2. District Elementary Educational Officer, Nagapattinam District, Nagapattinam.
3. Assistant Elementary Educational Officer, Sirkali Union, Sirkali, Nagapattinam Dist.
4. Additional Assistant Elementary Educational Officer, Sirkali Union, Sirkali, Nagapattinam Dist.
http://www.judis.nic.in 18 V.PARTHIBAN, J.
suk order in WP.No.12421 of 2017 10.07.2019 http://www.judis.nic.in