Madras High Court
K.S.Mohan vs The Registrar on 7 November, 2016
Author: S.Manikumar
Bench: S.Manikumar, N.Authinathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.11.2016 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE N.AUTHINATHAN Writ Petition No.17181 of 2009 M.P.No.1 of 2009 K.S.Mohan .... Petitioner vs. 1.The Registrar Central Administrative Tribunal Chennai Bench High Court Campus Chennai - 600 104. 2.The Director of Postal Services, Union of India, O/o. Principal Chief Postmaster General Tamil Nadu Circle Chennai - 600 002. 3.The Superintendent RMS 'M' Division Ethiraj Salai Chennai - 600 008. 4.The Sub-Record Officer RMS 'M' Division Arakonam. 5.V.Palani .... Respondents WRIT Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records in O.A.No.1127 of 2002 dated 21.07.2009 on the file of first respondent herein and quash the same as illegal and direct the second and third respondent to permit the petitioner to continue work as Class IV Employee at Sub Record Office, Katpadi. For Petitioner : Mr.R.Sankarasubbu For Respondents 2 to 4 : Mr.A.Kumaraguru, CGSC For 5th Respondent : Mr.S.Ramasamy Rajarajan ORDER
(order of this Court was delivered by S.MANIKUMAR, J) Challenge in this writ petition is to an order, dated 21.07.2002 made in O.A.No.1127 of 2002, by which, the Central Administrative Tribunal, Madras Bench, has quashed the appointment of the writ petitioner in Group 'D' post. The Tribunal has issued further directions.
2. Short facts leading to the writ petition are as follows:
Mr.V.Palani, the fifth respondent was appointed in the year 1990 as ED Mailman, on compassionate grounds, consequent on the death of his father, Shri M.Venkatesan, while in service. He was posted as ED Mailman at Sub Record Office, Katpadi. A duly constituted Departmental Promotion Committee, constituted by the Superintendent, RMS 'M' Division, Chennai - 600 008, the third respondent herein, selected the fifth respondent and promoted him as Group 'D', on ad-hoc basis and posted at Arakkonam Sub Record Office, by an order, dated 12.1.2001. While he continued in the said post, the Sub-Record Officer, RMS 'M' Division, Arakonam, 4th respondent herein, vide order, dated 07.08.2001, terminated the service of the fifth respondent. Being aggrieved by the same, the fifth respondent made a representation, dated 03.01.2002, to the Director of Postal Services, Chennai, 2nd respondent herein, on the grounds that his juniors were holding the post of Group 'D', without any cancellation. As there was no response, he filed O.A.1127 of 2002, to quash the termination order, dated 07.08.2001 and the order, promoting the writ petitioner in Group 'D' cadre. Consequently, he sought for a direction to restore the promotional order, dated 12.01.2001, issued to him, leaving the others therein, and to give all consequential benefits.
3. The official respondents 2 to 4 have filed a reply statement and admitted the fact that the fifth respondent was found eligible and therefore, selected by the Departmental Promotion Committee (DPC). They further submitted that as on the date of DPC, vacancies available were four and as such, DPC has selected four candidates for appointment as Group 'D', viz., (1) K.S.Mohan (petitioner herein), (2) M.Chinnamma, (3) L.Yamunabai, (4) V.Palani (fifth respondent herein).
4. Before the Tribunal, respondents 2 to 4 have submitted that as per Annexure R-1, dated 7.12.2000, of the Directorate, posts are to be filled up, by direct recruitment only, and that too not more than 25% of the total vacancies, arising in a year in any cadre. Hence, among the four candidates selected by the DPC, only one candidate, Mr.K.S.Mohan, petitioner herein, was offered regular appointment as Group 'D' and allotted to SRO, Jolarpettai to make good the short fall in OBC category, irrespective of his seniority position. It was further submitted that the fifth respondent, the juniormost, among the four selected candidates, was also given ad hoc posting, which was subsequently terminated, vide order, dated 07.08.2001.
5. Before the Tribunal, the respondents 2 to 4 have further submitted that offering employment against a post on ad hoc basis, would not confer any right to the fifth respondent to claim regular posting, in the cadre. He was selected to Group 'D' post in the DPC and as there was a ban in filling up of the direct recruitment vacancies, vide letter, dated 7.12.2000, the fifth respondent was given only officiating arrangement, against the regular vacancy in Group 'D', but the same could not be filled up, as per the Directorate's letter, according to which, only 25% of direct recruitment vacancies arising in a year, was accorded permission and only one candidate, K.S.Mohan, petitioner herein, was given regular appointment to make good the short fall in OBC category and other candidates were given only officiating arrangement, which was revised as ad hoc posting, vide Memo, dated 16.2.2001. Since ad hoc appointment of the fifth respondent and three other candidates was considered to be not necessary, their services were terminated on 07.08.2001.
6. Before the Tribunal, respondents 2 to 4 have further contended that no person, junior to the fifth respondent was allowed to continue in Group 'D' post. He was not appointed on a regular basis and that the same can be considered only as temporary, till he completes the prescribed probationary period satisfactorily. Therefore, they contended that the termination of the fifth respondent, cannot be contended as illegal, as it was only a stop gap arrangement to man the vacancy and therefore, no show cause notice is required to cancel the appointment made on ad hoc basis.
7. During the hearing of the Original Application, on the selection of the petitioner, a contention had been made that he is junior to the writ petitioner and therefore, his selection is not justified. On the other hand, learned counsel for the respondents 2 to 4 have submitted that though the DPC cleared all the four persons, since there was a ban on recruitment and that the Directorate has given permission only to fill up 25% of the direct recruitees, arising in a year, they could not accommodate all the four persons, except the petitioner. After considering the submissions, vide order, dated 29.08.2003, the Tribunal allowed the Original Application No.1127 of 2002, with the following observation, "Therefore, admittedly, K.S. Mohan who has been selected is junior most among the 4 selected candidates. Seniority is one of the criteria to be considered for such selection. We are of the view that the said K.S. Mohan cannot be placed as No.1 in the list. In the absence of any material to show that the roster point should be followed in this case and the OBC candidate should be preferred in supersession of others in the list. Therefore we are of the view that the entire process in selecting the junior most person to the said post is not in conformity with the rules and regulations and therefore it has been faulted and only to be set aside.
We therefore set aside the impugned selection process held by the DPC dated 11.1.2001 and also directed the respondents to convene a fresh DPC and consider the applicant's eligibility since the entire selection process has been set aside. The exercise shall be completed as expeditiously as possible, in any case within a period of four months from the date of receipt of a copy of the order."
8. Being aggrieved by the same, respondents 2 to 4 have preferred Writ Petition No.29353 of 2004, before this Court, to set aside the order of the Tribunal, on the ground that the necessary party, i.e., Shri K.S.Mohan, the petitioner herein, whose selection has been questioned has not been impleaded as a party respondent in the said Original Application. Accepting the said contention, this Court allowed the said Writ Petition, by holding that the Tribunal was not justified in allowing the O.A., without giving any opportunity of hearing to the writ petitioner and therefore, remanded the matter to the Tribunal, for fresh disposal, in accordance with law.
9. Thereafter, the Tribunal has impleaded the writ petitioner, as a party respondent in the Original Application No.1127 of 2002. The petitioner herein has filed a counter, before the Tribunal, contending inter alia that he was appointed as ED Mailman, during 1983, whereas, the fifth respondent was appointed only during 1990 and therefore, he contended that the fifth respondent is junior to him. Though he was placed lower in the seniority list, his selection to Group 'D' post is based on OBC quota, earmarked for the said category and therefore, the claim of the fifth respondent that he is senior to the petitioner is untenable. Hence, he prayed to dismiss the Original Application.
10. Considering the facts and circumstances of the case, vide order, dated 21.07.2009, the Tribunal disposed of the Original Application, as follows:
"10. As set out earlier, the Tribunal while allowing the application on earlier occasion came to a conclusion that the applicant (5th respondent herein) is the senior most person compared to Shri.K.S.Mohan (petitioner herein), even though he was the junior most among the selected candidates to the post of Group 'D'. A finding has also been rendered that the selection should be based on seniority as well as on merit. It is also brought to our knowledge that the Division Bench of the High Court in W.P.No.8008 of 2007, dated 11.2.2008 (Chief Postmaster General, Tamil Nadu Circle, Chennai and others v. D. Rajasekaran and others) has held that the post of Group 'D' should be filled up on the basis of seniority only. That apart, the official respondents have admitted that the applicant (5th respondent herein) is senior to Shri.K.S.Mohan (petitioner herein). In the absence of any substantial material to show that the roster system has to be followed to fill up the short fall vacancies and the subsequent decision of the Division Bench of the High Court clearly proceeds to the effect that the vacancies should be filled up based on seniority, we are of the opinion that the selection of Shri.K.S.Mohan (petitioner herein) to Group 'D' over looking the claim of the applicant (5th respondent herein) is not in accordance with law. Ever though, the applicant (5th respondent herein) was later on promoted on regular basis in the year 2008, that will not take away his right of appointment during 2001 which is the subject matter of the dispute in the O.A.
11. In view of the fact that the applicant (5th respondent herein) has been subsequently appointed in the Group 'D' post on regular basis from the year 2005 onwards, we are of the opinion that it is not necessary to convene any fresh DPC.
12. In the above circumstances, the application is disposed of as follows:
"(a) The impugned order wherein the impleaded respondent, Shri.K.S.Mohan (petitioner herein) was selected and appointed in the Group 'D' post on the basis of the DPC meeting held on 11.1.2001 is quashed.
(b) The applicant (5th respondent herein) is deemed to have been selected in the Group 'D' post from the date on which the above said Shri K.S.Mohan (petitioner herein) was appointed on regular basis and he is entitled for all the benefits arising therefrom by treating him as if he is in continuous service. However, it is made clear that the applicant(5th respondent herein) is not entitled to the pay scale of the Group 'D' post for the period actually he has not worked.
(c) The official respondents are at liberty to fit in Shri K.S.Mohan (petitioner herein) in any subsequent vacancy that arose in Group 'D' post and in the event it should be construed that the above said Shri K.S.Mohan (petitioner herein) was promoted in the said post only from the said date onwards when the subsequent vacancy arose.
(d) There will be no order as to costs."
11. Being aggrieved by the same, Shri.K.S.Mohan has filed the present writ petition, for a Certiorarified Mandamus, to quash the order made in O.A.No.1127 of 2002, dated 21.07.2009 on the file of Central Administrative Tribunal, Madras Bench and to direct the respondents 2 and 3 to permit the petitioner to continue work as Class IV Employee at Sub Record Office, Katpadi.
12. Taking this Court through the order, dated 23.09.1983, issued by the Sub-Record Officer, RMS "M" Division, Gandhi Nagar, Vellore, Mr.R.Sankarasubbu, learned counsel for the writ petitioner submitted that the appointment of the petitioner, as ED Mailman, was made on 23.09.1983 and that therefore, he is senior to the 5th respondent herein. He further submitted that the appointment of the petitioner, as Group 'D' post, was on 11.01.2001, whereas, the appointment of the fifth respondent to the said post, was on 12.01.2001. It is also his submission that the writ petitioner joined Group 'D' post on 15.01.2001, whereas, the fifth respondent joined the said post on 17.02.2001. He drew the attention of this Court to the fact that on 02.02.2005, services of the writ petitioner in Group 'D' post, have been confirmed and whereas, services of the fifth respondent were not confirmed then.
13. On the above comparison of the dates of appointment to the posts of ED Mailman and Group 'D', Mr.R.Sankarasubbu, learned counsel for the writ petitioner submitted that the writ petitioner is senior to the fifth respondent and therefore, the Tribunal ought not to have quashed the appointment of the writ petitioner in Group 'D' post. Inviting the attention of this Court to a decision of the Hon'ble Apex Court in Direct Recruit Class II Engineering Officer's Association v. State of Maharashtra reported in 1990 (2) SCC 715, he submitted that seniority has to be reckoned from the date of initial appointment.
14. On the basis of the counter affidavit, filed by the official respondents 2 to 4, Mr.A.Kumaraguru, learned Central Government Standing Counsel appearing for respondents 2 to 4 submitted that the writ petitioner was appointed as ED Mailman on 23.09.1983, only on adhoc basis, for three hours per day, which was purely temporary and the services rendered in such capacity, cannot be reckoned, for the purpose of seniority. He further submitted that vide order, dated 12.05.1987, adhoc appointment of the writ petitioner was cancelled and thereafter, on 30.04.1990, he was appointed as ED Mail Attendant, at Katpadi. Whereas, the fifth respondent, Mr.V.Palani, was appointed as ED Mail Attendant on 06.02.1990, with effect from 07.02.1990.
15. Inviting the attention of this Court to the true copy of the seniority list of the ED officials, as on 01.02.1999, learned counsel for respondents 2 to 4 submitted that the seniority list of ED officials, mentioning the date of appointment of Mr.K.S.Mohan, writ petitioner, ie., on 30.04.1990, as ED Official and that of Mr.V.Palani, fifth respondent, on 07.02.1990, has been duly acknowledged by both of them, by affixing their signatures and further submitted that having acknowledged the seniority list, it is not open to the writ petitioner to contend that he is senior to the fifth respondent.
16. Learned counsel for respondents 2 to 4 further submitted that earlier, during the course of hearing of the instant writ petition, when argument was made by the official respondents, on the basis of the true copy of the seniority list that the fifth respondent as senior, this Court directed them to produce the original seniority list and that the same has been done. According to him, in the absence of any challenge to the seniority list, as on 01.02.1999, duly acknowledged, it is not open to the writ petitioner, to assail the same, in this writ petition and that too, at this length of time. He further submitted that as per the order of this Court in W.P.No.8008 of 2007, dated 11.2.2008 (Chief Postmaster General, Tamil Nadu Circle, Chennai and others v. D. Rajasekaran and others), appointment to the post of Group 'D' has to be made purely, on the basis of seniority, dehors communal reservation. He therefore submitted that the impugned order of the Central Administrative Tribunal, does not call for any interference.
17. Mr.S.Ramasamy Rajarajan, learned counsel appearing for the fifth respondent made submissions to sustain the order of the Tribunal.
18. Heard the learned counsel appearing for the parties and perused the materials available on record.
19. Judicial pronouncement of this Court in W.P.No.8008 of 2007, dated 11.2.2008 (Chief Postmaster General, Tamil Nadu Circle, Chennai and others v. D. Rajasekaran and others), that appointment for the post of Group 'D', has to be made purely, on the basis of seniority, dehors the communal reservation, has not been challenged or disputed by the writ petitioner. Before the Central Administrative Tribunal, Madras Bench, contention of respondents 2 to 4 is that Mr.K.S.Mohan, the petitioner therein, was the juniormost, among the four candidates, selected and given adhoc posting.
20. The Tribunal has also observed that the seniority is the criteria to be considered for selection to the post of Group 'D'. It is also its finding that selection of the juniormost person to a post, is not in conformity with the rules and regulations, and therefore, in his order, dated 29.08.2003, the Tribunal has observed that the selection of the writ petitioner has to be set aside. But when the official respondents 2 to 4 have preferred W.P.No.29353 of 2004, this Court, vide order, dated 20.06.2008, by observing that the selection of the writ petitioner, Mr.K.S.Mohan, was set aside by the Tribunal, without providing him an opportunity of hearing, remitted the matter back to the Tribunal, for fresh disposal, in accordance with law.
21. The main contention of the writ petitioner is that he is senior to the fifth respondent and therefore, promotion ordered, on the basis of the seniority, ought not to have been interfered with. Per contra, it is the contention of the 5th respondent that he is senior to the writ petitioner, in the post of ED Mailman. In this context, this Court deems it fit to consider the orders of appointment of the contesting parties, viz., the writ petitioner and the fifth respondent.
22. On 23.09.1983, the writ petitioner has been appointed as ED Mailman, on adhoc basis, subject to termination, at any time and the quantum of working hours was three hours per day. Subsequently, on 12.05.1987, the above appointment of the writ petitioner, Mr.K.S.Mohan, has been cancelled. Thereafter, on 30.04.1990, the writ petitioner has been appointed as ED Mail Attendant in the Office of the Sub Record Officer, "M" Division, Katpadi, with effect from the said date.
23. From the above details, it could deduced that the appointment of Mr.K.S.Mohan, writ petitioner, in the post of ED Mailman, was purely temporary and on adhoc basis and that the quantum of working hours was only three hours per day. Lateron, the said services have been cancelled on 12.05.1987 and that between 12.05.1987 and 30.04.1990, he was out of the services, for nearly three years. Thereafter, when he was appointed as ED Mail Attendant, on 30.04.1990, Mr.K.S.Mohan, writ petitioner, has also accepted the terms that the appointment was in the nature of contract, liable to be terminated, by notice in writing. Whereas, the appointment of Mr.V.Palani, made on 06.02.1990, as ED Mail Attendant at Katpadi, is with effect from 07.02.1990.
24. On the aspect of seniority, we have also perused the original files, pertaining to the seniority of the contesting parties, viz., writ petitioner and the fifth respondent, in the post of ED Mail Attendant. We have also noticed that when the seniority list of ED officials, as on 01.02.1999, was prepared, the authorities have placed the same before the contesting parties, viz., writ petitioner as well as fifth respondent and both of them have acknowledged the seniority list, by affixing their signatures, in the same date, 12.02.1999.
25. Paragraph 13 of the judgment in Direct Recruit Class II Engineering Officer's Association v. State of Maharashtra reported in 1990 (2) SCC 715, relied on by the learned counsel for the petitioner, is extracted hereunder:
"13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan case was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We were taken through the judgment bythe learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments, including those in Baleshwar Dass v. State of U.P. [1980 (4) SCC 226] and Delhi Water Supply and Sewage Disposal Committee v. R.K.Kashyap [1989 Supp (1) SCC 194], with which we are in agreement. In Narender Chadha v. Union of India [1986 (2) SCC 157], the officers were promoted although without following the procedure prescribed under the rules, but they continously worked for long periods of nearly 15-20 years, on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service."
26. On the facts and circumstances of the case, it could be seen that though the writ petitioner was appointed as ED Mailman, on adhoc basis, on 23.09.1983, in the vacancy caused due to the promotion of an incumbent, Mr.S.Raju, the said appointment was purely on temporary basis and that the quantum of working hours was three years per day. Subsequently, vide order, dated 12.05.1987, the adhoc appointment has been cancelled.
27. Appointment of the writ petitioner, made on adhoc basis, with the quantum of working hours for three hours per day and his subsequent cancellation on 12.05.1987, will not confer him any right to to claim seniority, over the fifth respondent. That apart, the said adhoc appointment, has been cancelled in 1987 and after three years gap, he has been appointed as ED Mail Attendant, on 30.04.1990. Either, the service rendered in the post of ED Mail Attendant, between 23.09.1983 and 12.05.1987, be taken for fixing seniority or the gap between 12.05.1987 and 29.04.1990, when he was reappointed as ED Mail Attendant, be condoned, for reckoning seniority. In Direct Recruit Class II Engineering Officer's Association's case (cited supra), relied on by the learned counsel for the petitioner, there is a continuity of long number of years of service. On the facts and circumstances of the present case, we are of the view that the judgment is not applicable.
28. As stated supra, the fifth respondent has been appointed as ED Mail Attendant on 06.02.1990, with effect from 07.02.1990. Whereas, the writ petitioner has been appointed as ED Mail Attendant, on 30.04.1990. Admittedly, the seniority list as on 01.02.1999, duly acknowledged by both the contesting parties, viz., the writ petitioner and the fifth respondent on 12.02.1999, has not been challenged by the writ petitioner and thus, attained finality in the year 1999 itself. We have perused the original records, pertaining to the seniority list, produced by Mr.A.Kumaraguru, learned Central Government Standing Counsel.
29. Though it is the contention that the writ petitioner was appointed to the post of Group 'D' on 11.01.2001, much earlier to the appointment of the fifth respondent on 12.01.2001 and by virtue of the subsequent order, dated 02.02.2005, declaring the satisfactory completion of his probationary period, earlier in point of time, the writ petitioner is senior to the fifth respondent, this Court is not inclined to accept the contentions, for the reasons that the Hon'ble Division Bench of this Court in W.P.No.8008 of 2007, dated 11.2.2008 (Chief Postmaster General, Tamil Nadu Circle, Chennai and others v. D. Rajasekaran and others), has categorically held that promotion and appointment to Group 'D' post, has to be considered purely on the basis of the seniority and that the order made in O.A.No.1127 of 2002, dated 29.08.2003, was set aside by this Court, only for violation of the principles of natural justice, in not giving an opportunity to the writ petitioner and on re-consideration of the entire materials, moreso, the inter-se seniority of the contesting parties, viz., the writ petitioner and the fifth respondent, vide order, dated 21.07.2009, the Tribunal has categorically found that the writ petitioner is junior to the fifth respondent and not entitled for appointment for Group 'D' post. Confirmation of satisfactory completion of probation has been done, during the pendency of the litigation, and therefore, that would not confer him a right to contend that he is senior to the fifth respondent in the post of ED Mailman and thus, can march over the fifth respondent.
30. It is also to be noticed that earlier, during the course of hearing in O.A.No.1127 of 2002, filed to quash the termination order, dated 07.08.2001 of the fifth respondent, in Group 'D' post and when he sought for a direction to restore him to the said post, it was the specific stand of the official respondents that though the writ petitioner was the juniormost, among the four selected candidates, he was given adhoc posting to make good the shortfall in OBC category.
31. Service records produced by the official respondents categorically prove that the fifth respondent is senior to the writ petitioner in the post of ED Mail Attendant and that as per the decision of this Court in W.P.No.8008 of 2007, dated 11.2.2008 (Chief Postmaster General, Tamil Nadu Circle, Chennai and others v. D. Rajasekaran and others), seniority in the post of ED Mail Attendant has to be considered for promotion and appointment to Group 'D' posts, in postal department.
32. In the light of the indisputed ranking in the seniority list, though Mr.R.Sankarasubbu, learned counsel for the writ petitioner submitted that the writ petitioner, Mr.K.S.Mohan, is senior to the fifth respondent and therefore, his selection ought not to have been set aside, by the Tribunal, this Court is not inclined to accept the said contention. There are no merits in the instant writ petition, warranting interference, with the order of the Central Administrative Tribunal in O.A.No.1127 of 2002, dated 21.07.2009.
S.MANIKUMAR, J.
AND N.AUTHINATHAN, J.
skm
33. In the result, the Writ Petition is dismissed. Order of the Central Administrative Tribunal, dated 21.07.2009, in O.A.No.1127 of 2002, is directed to be implemented in letter and spirit, within two months, from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also closed.
(S.M.K., J.) (N.A.N., J.) 07.11.2016 Internet : Yes Index : Yes skm To The Registrar Central Administrative Tribunal Chennai Bench, High Court Campus Chennai - 600 104.
W.P.No.17181 of 2009http://www.judis.nic.in