Madras High Court
The District Elementary Educational ... vs M.Kamala on 16 December, 2015
Bench: V.Ramasubramanian, N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.12.2015
CORAM
THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
Writ Appeal (MD) No.35 of 2013
& M.P(MD)Nos.1 of 2013 & 1 of 2014
& Writ Appeal (MD) No.1295 of 2013 & M.P(MD)No.4 of 2013
W.A (MD) No.35 of 2013:-
1.The District Elementary Educational Officer,
Pudukkottai.
2.The Additional Assistant Elementary
Educational Officer,
Pudukkottai. ...Appellants/Respondents
Vs.
1.M.Kamala ..Respondent/Petitioner
2.M.Jayaseeli,
Headmistress,
Municipal Elementary School,
Sandaipettai,
Pudukottai.
3.M.Ranjani Devi
Tamil Pandit,
Municipal Middle School,
Machuvadi,
Pudukottai.
4.T.Shanthi,
Headmistress,
Municipal Elementary School,
Sandaipettai,
Pudukottai.
5. G.Muthu Chithra,
Tamil Pandit,
Municipal Middle School,
Melaiyeedu, Pudukottai Town,
Pudukottai. ... Respondents/Respondents
Petition filed under Clause 15 of Letters Patent praying to set aside
the order dated 20.09.2012 passed by the learned Judge in W.P(MD)No.7122 of
2011.
W.A (MD) No.1295 of 2013:-
1.M.Jayaseeli,
Headmistress,
Municipal Elementary School,
Sandaipettai,
Pudukottai.
2.T.Shanthi,
Headmistress,
Municipal Elementary School,
Sandaipettai,
Pudukottai.
3. G.Muthu Chithra,
Tamil Pandit,
Municipal Middle School,
Melaiyeedu, Pudukottai Town,
Pudukottai. ... Appellants/
Respondents 3,5 & 6
-vs-
1.M.Kamala ..Respondent/Petitioner
2.The District Elementary Educational Officer,
Pudukkottai.
3.The Additional Assistant Elementary
Educational Officer,
Pudukkottai.
4.M.Ranjani Devi
Tamil Pandit,
Municipal Middle School,
Machuvadi,
Pudukottai. ... Respondents/
Respondents 1,2 & 4
Petition filed under Clause 15 of Letters Patent praying to set aside
the order dated 20.09.2012 passed by the learned Judge in W.P(MD)No.7122 of
2011.
!For Appellants
in W.A(MD)No. :Mr.VR.Shanmuganathan
35 of 2013 Spl.Govt.Pleader.
^For Respondents :Mr.A.Velan for R1
For Caveator :Mr.D.Anbarasan
For Appellants
in W.A(MD)No. :Mr.V.Panneer Selvam
1295 of 2013
For Respondents :Mr.A.Velan for R1
:Mr.VR.Shanmuganathan
Spl.Govt.Pleader for 2 & 3
:COMMON JUDGMENT
(Judgment of the Court was delivered by V.RAMASUBRAMANIAN,J) Both these Writ Appeals, one by the State and another by private parties, are directed against the order passed by the learned Judge, allowing the writ petition filed by the first respondent in these writ appeals and directing the State to restore her seniority and also grant promotion to the post of Middle School Headmistress.
2. Heard Mr.VR.Shanmuganathan, learned Special Government Pleader appearing for the State and Mr.V.Panneer Selvam, learned Counsel appearing for the appellants in other writ appeal and Mr.A.Velan, learned Counsel appearing for the first respondent/ writ petitioner.
3. The first respondent/writ petitioner was appointed as Secondary Grade Teacher on 16.08.1983, in the Elementary School at Annavasal Panchayat Union. On 05.12.1990, she was transferred on her request to Municipal Middle School, Machuvadi at Pudukkottai.
4. At the time when the first respondent/ writ petitioner was transferred to Pudukkottai Town Panchayat, the appellants in W.A(MD)No.1295 of 2013 had already been appointed as Secondary Grade Teacher and were not given promotion. They successfully completed the period of probation after writ petitioner joined duty on 05.12.1990.
5. However, the first respondent/writ petitioner was placed as junior to the appellants in W.A(MD)No.1295 of 2013.
6.After 16 years of transfer, the first respondent/writ petitioner found that in the list prepared as on 01.01.2006, of persons eligible for promotion to the post of Graduate Assistant, she was placed as junior to those appellants. Therefore, the writ petitioner claimed to have made a representation and also approached this Court.
7.In the meantime, the first appellant in W.A.(MD)No.1295 of 2013 was promoted as Elementary School Headmistress on 29.06.2006. The second appellant was promoted as B.T. Assistant on 18.09.2006 and she also gained further higher promotion to the post of Middle School Headmistress on 02.06.2006. The third appellant in W.A.(MD)No.1295 of 2013 was promoted as B.T. Assistant on 14.11.2007.
8. It is only thereafter that the writ petitioner was promoted as Tamil Pandit as on 02.06.2008.
9. The representation of the writ petitioner/first respondent was rejected by an order dated 23.05.2011. Challenging the said order and also claiming promotion to the post of Middle School Headmistress, the first respondent came up with a writ petition in W.P(MD)No.7122 of 2011. It was allowed by the learned Judge on the ground that a mistake in the placement of seniority can always be rectified and that if the writ petitioner was entitled to seniority as per law, the wrong fixation of seniority cannot deprive the writ petitioner's valuable rights.
10.Aggrieved by the said order of the learned Judge, three private respondents in the writ petition as well as the State have come up with both these appeals.
11.The point for consideration is as to whether a person who came to Court after such a long gap of time questioning the fixation of seniority could have been granted the relief or not.?
12. Admittedly, the writ petitioner went on request transfer to Pudukkottai Panchayat in 1990. Once a person gets a transfer on own request to another unit she has to forfeit the seniority that she gained in the previous station. But he or she can certainly take seniority below the last approved probationer of that Union. Therefore, on the first principle of law, the learned Judge was right.
13.But, unfortunately, the long delay and laches on the part of the writ petitioner in approaching the Court after more than 20 years could not have been overlooked. Though the writ petitioner has stated that from 1990 she was not aware of the wrong fixation of seniority, she came to know that she was placed below the other persons at least as on 01.01.2006. Moreover, the writ petitioner appears to have been promoted on 02.01.2008 to the post of Tamil Pandit and she did not ask for re-fixation of seniority in the promoted post. On the contrary, she sought promotion to the next higher post.
14.Rule 35(f) of the General Rules for Tamil Nadu State and Subordinate Services is a clear bar for making any representation as against the wrong fixation of seniority after the expiry of three years. This Rule itself was introduced for the purpose of preserving settled things.
15. The Honourable Supreme Court has repeatedly held that the Court cannot unsettle settled things and cannot unscramble a scrambled egg. Therefore, the order of the learned Judge overlooking Section 35(f) cannot be sustained.
16. The learned Counsel appearing for the respondents relied upon the decision of the Honourable Division Bench of this Court in A.Mani -vs- Director of Elementary Education and Others /Manu/TN/7788/2007, for the proposition that the period of limitation fixed under Rule 35(f) will not be applicable to cases where a mistake is committed in fixing the seniority. But, we do not think that it is the correct interpretation of Rule 35(f). Rule 35(f) reads as follows:-
" 35(f)Application for the revision of seniority of a person in a service, class, category or grade shall be submitted to the appointing authority within a period of three years from the date of appointment to such service, class, category or grade or within a period of three years from the date of order fixing the seniority, as the case may be. Any application received after the said period of three years shall be summarily rejected. This shall not, however, be applicable to cases of rectifying orders, resulting from mistake of facts".
17. There are two types of expressions used in Rule 35(f). The first expression used in the Rule is "Revision of Seniority". The second expression used in the Rule is "cases of rectifying orders, resulting from mistake of fact". The observations contained in paragraph '19' of the decision of the Honourable Division Bench of this Court in A.Mani -vs- Director of Elementary Education and Others goes completely contrary to the expression in Rule 35. Therefore, with great respect, we have to point out that the statement of law in paragraph '19' of the decision in A.Mani -vs- Director of Elementary Education and Others is not in accordance with the language of the rule.
18. In view of the above, the writ appeals are allowed and the order of the learned single Judge is set aside. No costs. Consequently, connected Miscellaneous petitions are closed.
TO
1.The District Elementary Educational Officer, Pudukkottai.
2.The Additional Assistant Elementary Educational Officer, Pudukkottai. .