Madras High Court
A.Ramaiah vs The Director on 30 January, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.01.2017
Reserved on 09.09.2016
Pronounced on 30.01.2017
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
WP(MD)No.2176 of 2009
A.Ramaiah .. Petitioner
Vs.
1.The Director,
Tamil Nadu Fire and Rescue Department,
Chennai-8.
2.The Deputy Director (Southern Division),
Tamil Nadu Fire and Rescue Department,
Madurai-1.
3.The District Fire Officer,
Tamil Nadu Fire and Rescue Department,
Theni District.
4.R.Venkatesan ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus calling for the impugned panel of
the Fireman fit for promotion to the post of leading Fireman issued by the
2nd respondent in his proceedings Na.Ka.No.2716/B/2008 dated 06.03.2009 and
quash the same as illegal in so far as 4th respondent is concerned and
consequently to direct the 2nd respondent to consider the petitioner for
promotion to the post of leading Fireman including his name in the said panel
in the place of the 4th respondent.
!For Petitioner : Mr.H.Mohamed Imran
for Ajmal Associates
For Respondents : Mr.K.Guru (for R1 to R3)
Additional Government Pleader
No Appearance (for R4)
:ORDER
The writ petitioner has filed the writ petition for a Writ of Certiorarified Mandamus calling for the impugned panel of the Fireman fit for promotion to the post of leading Fireman issued by the 2nd respondent in his proceedings Na.Ka.No.2716/B/2008 dated 06.03.2009 and quash the same as illegal in so far as 4th respondent is concerned and consequently to direct the 2nd respondent to consider the petitioner for promotion to the post of leading Fireman including his name in the said panel in the place of the 4th respondent.
2.The case of the petitioner is that he is working as Fireman in the Fire and Rescue Services, Periyakulam. Basically, the petitioner is an Ex- Service Man and he was appointed as Fireman in the recruitment made through District Employment Office on 15.02.1991. Now he is aged about 58 years at the time of filing this writ petition in the year 2009 and his original date of birth was 05.06.1951. He has also stated that the 4th respondent by namely R.Venkatesan was appointed as Fireman on the same date i.e. 15.02.1991. But, as per the practice followed the Department of Fire and Rescue Services, this petitioner was given Serial No.2774 and the 4th respondent has given Serial No.2462 on the basis of the height.
3.The petitioner also come forward by saying that as per the service entry and the age criteria, this petitioner has retired on 30.06.2009 on superannuation. The post of Fireman is the Feeder category for appointment to the post of leading Fireman and Fireman driver by promotion and hence he has opted to the post of Fireman driver. Therefore, in the Theni Division, there are Four vacancies in the cadre of leading Fireman as on 28.02.2009. In the said circumstances, the panel of Fireman fit for promotion to the post of leading Fireman was drawn by the 3rd respondent. In the said panel, the 4th respondent was included in Serial No.5 with recommendation for appointment to the post of leading Fireman by promotion. This petitioner has qualified prescribed for the appointment to the post of leading Fireman and he was also senior by age, his name was not included in the panel for the reasons best known to the 3rd respondent. However, this petitioner?s name was included in the panel of Fireman fit for the promotion to the post of Fireman driver, as Serial No.16 with the comments that he has not been recommended for promotion on account of his relinquishment to the post of Fireman driver. But the petitioner states that he has only relinquished for the post of Fireman driver and opted for promotion to the post of leading Fireman. Therefore, the petitioner is the senior most Fireman by age in the 3rd respondent Fire Division eligible to be considered for the promotion to the post of leading Fireman. Therefore, it appears that the 3rd respondent in order to favour the 4th respondent herein included his name in Serial No.5 of the impugned panel on the basis of Serial No.2462 assigned to the 4th respondent herein. Therefore, narrating the above facts, this petitioner has sent a representation dated 09.03.2009 requesting them to intervene in the matter and consider for him for promotion to the post of leading Fireman on the basis of seniority. But, no action has been taken.
4.The writ petitioner also come forward by saying that in the meantime, the 3rd respondent while responding the petitioner?s earlier representation dated 09.03.2009 informed to this petitioner that the letter dated 26.06.2008 that his request for promotion would be considered after the disposal of the writ petition pending before this Court in WP(MD)No.10775 of 2007. He has also stated that it was not aware of the pendency of the said writ petition nor about the person who filed the writ petition and the relief sought for in the said writ petition. Therefore, he has advised to state that in case of appointment of more than one person on the same date the seniority shall be calculated taking into account of the age of the candidates. Though the writ petitioner and 4th respondent were appointed on one and the same date i.e. on 15.02.1991 and therefore, the petitioner is senior most person as per the age and in the said circumstances, this petitioner should be placed senior to the 4th respondent for all practical purpose including seniority and promotion. However, the 3rd respondent on extraneous reasons placed the 4th respondent in the petitioner?s place thereby depriving the writ petitioner?s right of seniority and consequential promotion. Therefore, this petitioner has challenging the impugned panel in proceedings Na.Ka.No.2716/B/2008 dated 16.03.2009 on various grounds.
5.The writ petitioner raised the grounds stating that the impugned panel of Fireman fit for promotion to the post of leading Fireman in so far as the 4th respondent is concerned is illegal and is not in conformity with Rule 35(A)(aa) of the Tamil Nadu State and Subordinate Service Rules.
6.The Rule 35(A)(aa) of the Tamil Nadu State and Subordinate Service Rules as follows:
?35(a) The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.
*(aa) 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 by more than one method of recruitment, 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 services, class, category or grade;
Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or 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 inter-se-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 inter-se-seniority shall be decided with reference to their age.
*Substituted in G.O.Ms.No.523, P & AR, dt. 4-6-82, w.e.f.13-7-78.
7.As per the above Rule, the interse seniority of the persons appointed to the same category on the same date shall be decided with reference to their age in accordance with Rule 35(A)(aa) of the Tamil Nadu State and Subordinate Service Rules and as such inclusion of the 4th respondent in panel superseding the seniority of the petitioner, depriving the seniority of the petitioner and his consequential promotion and thus violative of Article 14 and 16 of the Constitution of India.
8.The writ petitioner also come forward by saying that on the date of panel, there was no disciplinary proceedings either pending or initiated or the petitioner suffered any punishment so as to deny him promotion. Therefore, by quoting the above Rules and also violation of Article 14 and 16 of the Constitution of India, the writ petitioner has sought for that the quashing of the panel dated 16.03.2009 in respect of the 4th respondent and consequential direction to the 2nd respondent to consider the petitioner for promotion of the post of leading Fireman in the said panel.
9.A counter affidavit has been filed by the 2nd respondent, on behalf of the respondents 1 and 2. The 2nd respondent in his counter has denied the entire allegations made in the affidavit.
10.The 2nd respondent has stated that as per the G.O.Ms.No.806, P&AR (per-p) Department dated 13.07.1978 as amended in G.O.Ms.No.523, P&AR (per-p) Department dated 04.06.1982, the inter seniority shall be decided with reference to their age only when the person so appointed to the service, class category or grade by more than one method of recruitment. The 2nd respondent also states that right from the formation of Tamil Nadu Fire Services now re-designated as Tamil Nadu Fire and Rescue Services the selection of candidates for the category of Fireman is made only by direct Recruitment (i.e.) only one method to recruitment is followed and not by more than one method of recruitment of fireman on compassionate ground came into being only after 2002-2003. Persons appointed on compassionate grounds will not be combined with the Direct recruitment of Fireman. Hence, the petitioner?s contention that he is senior to the 4th respondent by virtue of his age and that he should be called for to appear before the promotion board is not at all correct.
11.The 2nd respondent also states that as per the G.O.Ms.No.34, P&AR dated 30.01.2008 fireman who were qualified to be considered were alone called for as against 04 vacancies (200% of the actual No. of estimated vacancies) by the 3rd respondent. Since the 4th respondent holds 5th position in the Divisional seniority list drawn up by the 3rd respondent as he was called for to appear before the promotion board by the 3rd respondent which was conducted on 23.03.2009. Since the petitioner holds 16th position in the Divisional Seniority List he was not called for.
12.The 2nd respondent also states that mere calling for candidates to appear before the promotion board will not confer any right for inclusion of the names in the promotion panel. Even, if the petitioner had been called for to appear for the promotion board, inclusion of the names of fireman in the promotion panel, are purely on the basis of merit and not on the basis of seniority.
13.The 2nd respondent also come forward by saying that the writ petitioner has given a representation on 09.03.2009 and on 23.03.2009 just before the commencement of the board to the 2nd respondent. The reply was given to him in Na.Ka.No.2079/B08, dated 24.03.2009 by the 2nd respondent through the 3rd respondent stating that he has interpreted the contents of G.O.Ms.No.806, P&AR (per-p) dated 13.07.1978 in his favour and he is not eligible to claim his right under the pretext of age alone and similar type of case is pending in this Court preferred by one Thiru.Ramasamy of Muthukulthhur Fire Station and the same is pending and the petitioner should wait till the Judgment of the above writ petition.
14.The 2nd respondent also states that in respect of the Tamil Nadu State and Subordinate Service Rules 35(A)(aa) says that the seniority of the person shall be determined with reference to the date on which he is appointed to the services class category or grade. The petitioner states that the petitioner and 4th respondent were appointed on the same date i.e. 15.02.1991. As per the inter seniority list 4th respondent comes in seniority No.4. The petitioner comes in the seniority No.16. But the above said Rules does not mention about the age seniority and it says only about the date of appointment. Hence, the claim of the writ petitioner is not correct. Therefore, the 2nd respondent sought for the dismissal of the writ petition.
15.There was no representation on behalf of the 4th respondent.
16.Heard Mr.H.Mohamed Imran, learned counsel for M/s.Ajmal Associates, learned counsel appearing for the petitioner and Mr.K.Guru, leaned Special Government Pleader, appearing for the respondents 1 to 3.
17.The case of the petitioner is that he was an Ex-Service man and he was appointed in the post through the employment exchange. Both the petitioner and 4th respondent were appointed on the same date i.e. 15.02.1991. But, at the time of the joining, the petitioner has given S.No.2774 and the 4th respondent has given S.No.2462 on the basis of the height only.
18.The petitioner also states that when the third respondent issued the impugned panel in the 2nd respondent proceedings dated 16.03.2009, this petitioner was shown in the S.No.16 whereas the 4th respondent shown in S.No.5 that the recommendation of appointment for the post of leading Fireman by giving promotion, but the respondents 1, 2 and 3 were stated that due to the relinquishment to the post of Fireman driver, this petitioner was not considered in the post of leading Fireman. The writ petitioner stated that he has only relinquished for the post of Fireman driver and opted for promotion to the post of leading Fireman. Therefore, as per the age, the petitioner is a senior most Fireman joined to the 4th respondent, hence the first name should be put in the Serial Number before the 4th respondent seniority.
19.Though, the 2nd respondent stated that as per the G.O.Ms.No.806, P&AR (per-p) dated 13.07.1978 as amended in G.O.Ms.No.523, P&AR (per-p) Department dated 04.06.1982, the inter seniority shall be decided with reference to their age only when the person so appointed to the service, class, category or grade by more than one method of recruitment. Therefore, this petitioner is not eligible for the promotion. The 2nd respondent also states that the another writ petition is the same subject in WP(MD)No.10775 of 2007 is pending before this Court and directed the petitioner should wait till the disposal of the writ petition.
20.During the course of arguments, the writ petitioner has produced the copy of the order in WP(MD)No.10775 of 2007, which was disposed on 11.02.2013 by this Court in which, this Court has passed the orders as follows:
?6.As the issue involved in this Writ Petition is covered by a Judgment of a Full Bench of this Court in Deputy Inspector General of Police Vs. V.Rani reported in 2011 (4) MLJ 1, the case of the petitioner requires to be considered in the light of the decision of the Full Bench.
7.Accordingly, the Writ Petition is disposed of with a direction to the petitioner to submit a fresh representation along with a copy of this order to the second respondent, who shall consider the same and pass appropriate orders on merits and in accordance with law for fixing the seniority of the petitioner at the appropriate place by taking into consideration the observations made in the decision of the Full Bench, referred to above. Such decision shall be taken by the second respondent within a period of three months from the date of receipt of representation from the petitioner. No costs. Consequently, connected Miscellaneous Petitions are closed.?
21.Since the 2nd respondent in his communication, as per the impugned order dated 23.03.2009, the 2nd respondent stated that similar type of case is pending in this Court in WP(MD)No.10775 of 2007 filed by one Thiru.Ramasamy of Muthukulathur. Therefore, now the said writ petition has been disposed with a direction to the writ petitioner Mr.Ramasamy to submit a fresh representation to the 2nd respondent and on receipt of the said representation, the 2nd respondent should pass appropriate orders on merits and in accordance with law for fixing the seniority of the petitioner at the appropriate place by taking into consideration the observations made in the decision of the Full Bench, referred to above. Therefore, in the question of pendency of the writ petition does not arise in this case.
22.The writ petitioner also produced a G.O.Ms.No.806, P&AR (per-p) dated 13.07.1978 in which as per the Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendments to the General Rule 35 in Volume-I of the Tamil Nadu Service Manual, 1977 and the same is as follows:
?Amendment In the said Rules, in rule 35, after sub-rule (a) the following sub- rule shall be inserted, namely ?(aa) 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 or 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.?
(By order of the Governor) (See also G.O.Ms.No.523 C.V.R.Panickar, P&A.R. Dt 4-6-82) Second Secretary to Government.?
23.He has also produced one another seniority list in respect of the seniority in which it was stated if the date of joining of more than one person on the same day, the seniority shall be decided with reference to their age. (G.O.Ms.No.806-P&A.R. (Per.P) date 13.07.78).
24.As per the orders of the Full Bench of this Court in Deputy Inspector General of Police v. V.Rani reported in 2011 (4) MLJ 1, the petitioner?s case has to be considered and the said Judgment is squarely applicable to the writ petitioner?s case also.
25.Therefore, considering all the above, I am of the view that though the writ petitioner has filed the above writ petition for quashing the panel list in respect of the 4th respondent alone. Therefore, as per the (G.O.Ms.No.806-P&A.R. (Per.P) date 13.07.78) under the Rule 35(A)(aa) of Tamil Nadu Subordinate Service Rules, this petitioner should have put in the seniority list above 4th respondent and that should be considered by the 2nd respondent with proper manner. Accordingly, the writ petition should be disposed of with a direction to the 2nd respondent to consider the petitioner representation dated 09.03.2009 within a period of two weeks from the date of receipt of a copy of this order, on merits and in accordance with law for fixing the seniority of the petitioner at the appropriate place by taking into consideration of the order of the Full Bench of this Court and the G.O.Ms.No.806 and the Rule 35(A)(aa) of Tamil Nadu Subordinate Service Rules.
26.In the result:
(a)the writ petition is disposed of with a direction to the 2nd respondent to consider the petitioner?s representation dated 09.03.2009 by giving personal opportunity to the petitioner by considering the G.O.Ms.No.806 and the Rule 35(A)(aa) of the Tamil Nadu Subordinate Service Rules for including the name in the panel for the post of Fireman and promote the petitioner with the consequential benefits.
(b)the said exercise shall be done within a period of two months from the date of receipt of a copy of this order.
27.Accordingly, this writ petition is disposed of. No costs.
To
1.The Director, Tamil Nadu Fire and Rescue Department, Chennai-8.
2.The Deputy Director (Southern Division), Tamil Nadu Fire and Rescue Department, Madurai-1.
3.The District Fire Officer, Tamil Nadu Fire and Rescue Department, Theni District. .