Madras High Court
N.Govindarajan vs The Tamil Nadu Civil Supplies ... on 3 September, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/09/2010 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN W.P.(MD)No.8235 of 2006 W.P.(MD)No.8400 of 2006 W.P.(MD)No.8429 of 2006 W.P.(MD)No.8725 of 2006 W.P.(MD)No.8726 of 2006 W.P.(MD)No.8727 of 2006 W.P.(MD)No.9675 of 2006 & W.P.(MD)No.10072 of 2006 and M.P.(MD)Nos.1,1,1,1,1,2,2,2,2,2,3 & 4 of 2006, 1,1,1,1,1 & 2 of 2007 In W.P.No.8235 & 8400 of 2006 N.Govindarajan ... Petitioner in W.P.8235/06 R.Ramachandran ... Petitioner in W.P.8400/06 Vs. The Tamil Nadu Civil Supplies Corporation Ltd., 42, Thambusamy Road, Kilpauk, Chennai rep. by its Chairman and Managing Director ... Respondent Prayer in W.P.(MD)No..8235 & 8400 of 2006 Writ Petitions have been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records of the respondent in PROC No.AE7/118307/05, dated 25.08.2006 and quash the same and direct the respondent to permit the petitioner to work as Assistant Manager with the respondent. In W.P.(MD)No.8429 of 2006: M.Panneerselvam ... Petitioner vs. 1.The Tamil Nadu Civil Supplies Corporation Ltd., 12, Thambusamy Road, Kilpauk, Chennai-10 rep. by its Chairman and Managing Director. 2.A.Anthony Muthuraj, (A.M. Retired) 3.S.Ganapathy, Godown Superintendent, TNCSC Godown, Batalagundu, Dindigul District. 4.P.Devadoss, Assistant Manager, TNCSC Ltd., Bodi Road, Theni. 5.A.Chellamuthu, Assistant Manager, TNCSC Ltd., Anna Nagar, Madurai-20. 6.C.Raj, Assistant Manager, TNSC Ltd., AnnaNagar, Madurai-20. 7.T.S.Prakash Babu, Superintendent, TNSCS Ltd., Anna Nagar, Madurai-20. ... Respondents [R2 to R7 impleaded as per order dated 30.10.2008 in MP(MD)1/2008 in WP(MD)8725,8726,8727,8429, 9675 and 10072 of 2006] Prayer in W.P.(MD)No.8429 of 2006 Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, calling for the records of the respondent PROC No.AE.7/118307/05, dated 25.08.2006 and quash the same and direct the respondent to permit the petitioner continue to work as an Assistant Manager. In W.P.(MD)Nos.8725 to 8527, 9675 & 10072 of 2006: V.Rajendran ... Petitioner in W.P.8725/2006 K.Pandi ... Petitioner in W.P.8726/2006 S.Arasappan ... Petitioner in W.P.8727/2006 K.Boominathan ... Petitioner in W.P.9675/2006 R.Jeyabalan ... Petitioner in W.P.10072/2006 vs 1.The Tamil Nadu Civil Supplies Corporation Ltd., 42, Thambusamy Road, Kilpauk, Chennai rep. by its Chairman and Managing Director. 2.A.Anthony Muthuraj, (A.M. Retired) 3.S.Ganapathy, Godown Superintendent, TNCSC Godown, Batalagundu, Dindigul District. 4.P.Devadoss, Assistant Manager, TNCSC Ltd., Bodi Road, Theni. 5.A.Chellamuthu, Assistant Manager, TNCSC Ltd., Anna Nagar, Madurai-20. 6.C.Raj, Assistant Manager, TNSC Ltd., AnnaNagar, Madurai-20. 7.T.S.Prakash Babu, Superintendent, TNSCS Ltd., Anna Nagar, Madurai-20. [R2 to R7 impleaded as per order dated 30.10.2008 in MP(MD)1/2008 in WP(MD)8725,8726,8727,8429, 9675 and 10072 of 2006] ... Respondents in all W.Ps. Prayer in W.P.(MD)No.8725 of 2006 Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus,calling for the records of the respondent in PROC No.AE7/118307/05, dated 25.08.2006 and quash the same and direct the respondent herein to permit the petitioners to work as Superintendent in his allotted rank No.416B in the panel of 1985 vide Proceeding No.E7/158047/2000, dated 24.10.2002. Prayer in W.P.(MD)No.8726 of 2006 Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus,calling for the records of the respondent in PROC No.AE7/118307/05, dated 25.08.2006 and quash the same and direct the respondent herein to permit the petitioners to work as Superintendent in his allotted rank No.416H in the panel of 1985 vide Proceeding No.E7/158047/2000, dated 24.10.2002. Prayer in W.P.(MD)No.8727 of 2006 Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus,calling for the records of the respondent in PROC No.AE7/118307/05, dated 25.08.2006 and quash the same and direct the respondent herein to permit the petitioners to work as Superintendent in his allotted rank No.416H in the panel of 1985 vide Proceeding No.E7/158047/2000, dated 24.10.2002. Prayer in W.P.(MD)No.9675 of 2006 Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records of the 1st respondent in Rc.No.AE7/56835/05, dated 23.05.2006 and quash the same in so far as it is ordered to be withheld from the terminal benefits of the petitioner and direct immediate settlement of the same. Prayer in W.P.(MD)No.10072 of 2006 Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records of the 1st respondent in Rc.No.AE7/118307/05, dated 23.05.2006 and quash the same. !For Petitioner in all W.Ps. ... Mr.T.S.R.Venketramana ^For Respondents in all W.Ps. ... Mrs.P.Jessi Jeeva Priya :COMMON ORDER
Heard both sides.
2.The petitioners in all the writ petitions were appointed as Bill Clerk/Helper in the respondents Corporation on various dates in the year as stated below:
01.N.Govindarajan - W.P.No.8235 of 2006 - 03.01.1975
02.R.Ramachandran - W.P.No.8400 of 2009 - 05.02.1975
03.M.Panner Selvam - W.P.No.8429 of 2006 - 09.01.1975
04.V.Rajendran - W.P.No.8725 of 2006 - 30.11.1974
05.K.Pandi - W.P.No.8726 of 2006 - 03.01.1975
06.A.Arasappan - W.P.No.8727 of 2006 - 29.11.1974
07.K.Boominathan - W.P.No.9725 of 2006 - 03.01.1975
08.R.Jeyabalan - W.P.No.10072 of 2006 - 07.02.1975
3.As per the Service Rules of the respondent, an employee should serve for a period of two years for being considered for promotion to Junior Assistant and the petitioners were promoted to the post of Junior Assistant in the year 1978. Whereas some of the juniors to the petitioners in the cadre of Bill Clerk were given promotion in the year 1975 itself and while preparing the list of Junior Assistant, those persons were placed above the petitioners in rank by the proceedings of the Regional Manager of the respondent Corporation, Ramnad Region, by his proceedings, dated 26.06.1978. This order was challenged by the petitioners and the others in W.P.No.6173, 26175 of 1985, on the file of this Court and this Court, by order, dated 09.03.1983 and clarification order, dated 14.10.1983 directed the respondents to reconsider the eligible seniority of those persons, who were given promotion to the post of Junior Assistant in the year 1975 itself. Accordingly, the Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, Ramnad Region, prepared a seniority list, by his proceedings, dated 24.02.1984 and placed the petitioners in all these writ petitions, above the four persons including M.Tajudeen, who were given promotion to Junior Assistant in the year 1975. This order was challenged by the aggrieved persons by filing appeal before the respondents and the respondents, by his order, dated 30.01.1985 set aside the seniority list prepared by the Senior Regional Manager of Ramanad Region and directed the Senior Regional Manager, Ramanathapuram to fix the seniority as per the direction given in the judgment made in W.P.Nos.6173 to 6175 of 1981 after following usual course. Thereafter, the Senior Regional Manager, Ramanathapuram, by his proceedings, dated 25.06.1985 prepared a provisional seniority list of Junior Assistant and once-again placed the petitioners herein below the above said four persons. This order was challenged by two of the petitioners viz., K.Boominathan and N.Govindaraj and another, R.Srinivasan in W.P.Nos.6714 to 6716 of 1985 and this Court dismissed those writ petitions giving liberty to the petitioners to challenge the final seniority list as and when prepared, holding that the seniority list prepared by the Senior Regional Manager, Ramnad, is only provisional. The petitioners and others also challenged the proceedings of the Senior Regional Manager, dated 25.06.1985 in W.P.No.8709 of 1985 and this Honourable Court allowed the writ petition and set aside the seniority list, dated 25.06.1985 prepared by the Senior Regional Manager. Therefore, by reason of the setting aside of all the proceedings of the Senior Regional Manager, Ramnad Region, the earlier order of the Managing Director, dated 30.01.1985 came into operation and as per that, the Senior Regional Manager has to reconsider the seniority list prepared by him. Thereafter, the Senior Regional Manager, by his proceedings, dated 11.09.1999 placed the petitioners above the said persons. That list was challenged by one A.M. Nagalingam, Superintendent and instructions were issued by the Head Office, directing the Senior Regional Manager to have a re-look in the seniority list in the light of the judgment rendered in W.P.N.8709 of 1985 and also on merit of the case. Later, the Regional Manager, Ramnad Region, by his proceedings, dated 13.11.2000 considered all these aspects and prepared a final seniority list for the cadre of Assistants by giving the petitioners, their due place after taking into account their joining date in the year 1978. This order was also considered by the Managing Director and Chairman of the respondent, by his proceedings, dated 24.10.2002 and confirmed their promotion to the post of Junior Assistant in the year 1978 and the Assistant in the respective years and Superintendent. Aggrieved by the proceedings of the Regional Manager, five employees belonging to the Tamil Nadu Civil Supplies Corporation, Anna Staff Union filed W.P.No.46617 of 2002 challenging the order of the respondent, dated 24.10.2002 and in that writ petition, in W.P.M.P.No.67759 of 2002, an order was passed that any promotion made shall be subject to the result of the main writ petition and W.P.No.46617 of 2002 is still pending before the Principal Bench. Thereafter, respondent prepared a list of Superintendent, for including in the panel of Assistant Manager for the year 2005, by his proceedings, dated 21.11.2005 and included the petitioners in the panel of Assistant Manager making it clear that their inclusion is subject to the result of the W.P.No.46617 of 2002. Thereafter, presumably on the basis of the some petitions from persons, a show cause was issued by the respondents, dated 22.01.2006 stating that the petitioners are not entitled to be included in the panel of Assistant Manager and they were given promotion to the Post of Assistant wrongly by the proceedings of the Regional Manager, dated 13.11.2000 and directed the petitioner to show cause why their seniority be revised. The petitioners submitted explanation stating that the proceedings, dated 13.11.2000 cannot be re-opened and it has became final and he has to be promoted to the Assistant Manager by taking into consideration of that date of joining service as Bill Clerk and therefore, their promotion to the post of Assistant cannot be questioned. The respondent without considering the points raised by the petitioners in their explanation passed the impugned order, dated 25.08.2006 reverted them to the post of Superintendent with immediate effect and that order is challenged in the writ petitions, except W.P.(MD)No.9675 of 2006 and 10072 of 2006.
4.In the W.P.(MD)No.9675 of 2006 and W.P.(MD)No.10072 of 2006, the petitioners challenged the order of recovery passed by the first respondent, dated 23.05.2006, 25.08.2006 and 31.08.2006 ordering recovery consequent to the reversion of the petitioners from the post of Assistant Manager and in those two writ petitions, the main issue is the same as that of the issues in other writ petitions.
5.The respondents filed a counter justifying the order passed by the first respondent, dated 25.08.2006 on the ground that the petitioners were wrongly given promotion as Junior Assistant on par with M.Tajudeen and therefore, the corresponding promotion given to the petitioners to the post of Assistant, Superintendent and Assistant Manager are against the Rules and therefore, considering all these aspects, the first respondent issued show cause notice and after calling for explanation, passed the impugned orders and therefore, there is no need to interfere with the orders passed by the 1st respondent.
6.The learned counsel appearing for the petitioners, Mr.T.S.R.Venketramana, submitted that issuance of show cause notice, dated 22.05.2006 itself amounts to contempt of Court as this Court has passed an order in W.P.MP.No.67759 of 2002 in W.P.No.46617 of 2002, dated 13.09.2003 that any promotion made based on the seniority list is subject to the result of the main writ petition and in the above W.P.No.46617 of 2002, the order of the first respondent, dated 24.10.2002 was challenged and till the disposal of the writ petition, they should not have interfered with the seniority as ordered by the first respondent and hence, the issuance of show cause notice amounts to contempt of Court. Further, the orders, which are impugned in these writ petitions, demoting the petitioners to Superintendent is wholly illegal.
7.He further submitted that the first respondent without properly appreciating the service regulations of various orders passed by this Court in W.P.No.8709 of 1985 and W.P.No.6173 to 6715 of 1981, erroneously presumed that the petitioners are not entitled to be given retrospective promotion on par with M.Tajudeen on the ground that M.Tajudeen must be treated as "Direct Recruitment"
as per Rule 5-B and the petitioners could not have been promoted to the post of Junior Assistant, as they have not passed the required examination and the basis on which the impugned order was passed is erroneous and this court has categorically held in W.P.No.8709 of 1995 that the seniority list should be prepared on the basis of the date of joining and admittedly, the petitioners joined duty much earlier to M.Tajudeen and M.Tajudeen was given promotion erroneously and to justify the erroneous promotion given to M.Tajudeen and realising the mistake that the petitioners ought to have been given promotion earlier to M.Tajudeen, orders were passed granting promotion to the petitioners on par with M.Tajudeen and the orders passed by the Senior Regional Manager, dated 13.01.2000 as well as the final order passed on 24.10.2002 are in accordance with the Rules and those orders cannot be interfered with and set aside by the first respondent.
8.The learned counsel appearing for the petitioners Mr.T.S.R.Venketramana, further submitted that the order, dated 24.10.2002 was passed by the first respondent and the impugned order was also passed by the first respondent and the person, who passed these two orders are different and if this trend is allowed, there cannot any consistency and whenever new person is appointed as Managing Director of the first respondent, he will pass the order different from the order passed by his predecessor and that will result in chaos and such activities should not be encouraged.
9.On the other hand, the learned counsel appearing for the respondents, Mrs.P.Jessi Jeeva Priya, submitted that it has been made clear in the show cause notice as well as in the impugned orders that promotion given to the petitioners on par with M.Tajudeen was erroneous. Therefore, subsequent notional promotion given to the petitioners also are not valid and therefore, the impugned orders passed are in accordance with Rules and they do not call for any interference.
10.I have given my anxious consideration to the submission made by both the counsels.
11.To appreciate the contention of both the parties, certain admitted facts are to be stated. The table given below, which will give an idea about the facts, which are to be discussed in this order.
Particulars of N.Govind R.Rama- M.Panner V.Rajen K.Pandi S.Arasa K.Boomi R.Jeya M.Taju- designation/ araj PUC chandran Selvam dran PUC PUC ppan nathan Balan deen Name of Test WP No. PUC PUC W.P.No. W.P.No. B.A. PUC PUC PUC 8235/06 W.P.No. W.P.No. 8725/06 8726/06 W.P.No. W.P.No. W.P.No. 8400/06 8429/06 8727/06 9725/06 10072/06 Bill Clerk 3.01.75 5.2.75 9.1.75 30.11.74 3.1.75 29.11.74 3.1.75 7.2.75 7.2.75 Junior Asst. 11.5.75 11.5.78 11.5.78 15.3.78 13.3.78 1.3.78 1.3.78 12.5.78 24.10.75 J.A. On par with Tajudeen 24.10.75 24.10.75 24.10.75 24.10.75 24.10.75 24.10.75 24.10.75 24.10.75 24.10.75 Notional date DOM Test Nov.78 Nov.78 Nov.78 May-79 Nov.80 Nov.78 May79 Nov.78 Nov.78 Account Test May-80 May-80 May-80 Nov.82 May-81 May-80 May-80 May-80 May-80 Part-I/CBK Assistant 24.2.84 04.06.86 23.2.84 23.2.84 2.4.82 12.3.82 1.4.82 4.6.84 6.9.80 On par with 6.9.80 6.9.80 6.9.80 6.9.80 6.9.80 6.9.80 6.9.80 6.9.80 6.9.80 Tajudeen Notional date Super- 20.12.91 20.12.91 20.12.91 20.12.91 18.1.89 18.1.89 18.1.89 20.12.91 1.10.85 intendant On par with 01.10.85 1.10.85 1.10.85 1.10.85 1.10.85 1.10.85 1.10.85 1.10.85 1.10.85 Tajudeen National date C.Raju S.Ganapathy A.Sella T.S.Prakash A.Anthoni P.Dev Muthu Babu Muthuraj dass Date of Joined in Madurai Region 14.02.77 25.01.77 14.02.77 24.03.77 2.2.77 2.2.77 Date of Joined in Ramnad Region 24.11.77 24.11.77 24.11.77 1.9.78 21.11.77 1.9.78 They are all working as Mill Technical Asst. Ousted. on sympathetic grounds they were re-appointed in Madurai Region Transferred to Composite Remand Region as An approved Probationer)
12.It is admitted that the writ petitioners were initially appointed as Bill Clerk and they were appointed earlier to M.Tajudeen, Natarajan and Ramasamy. Though, M.Tajudeen was appointed on 07.02.1975 as Bill Clerk, he was given promotion as Junior Assistant on 24.01.1975 and it is the contention of the respondents that M.Tajudeen was not given promotion as Junior Assistant and by applying Rule 5-B of the Service Rules, he was deemed to have been appointed directly as Junior Assistant and therefore, his date of appointment as Junior Assistant cannot be taken into consideration for considering the case of the petitioners.
13.It is admitted that on 26.06.1978 a seniority list was prepared by the Senior Regional Manager, Ramnad Region, whereby M.Tajudeen, Natarajan and Ramasamy were placed above the petitioners, and that was challenged in W.P.(MD)Nos.6173 to 6175 of 1981 by various group of persons and this Court passed an order, dated 09.03.1983 as follows:- "After considerable arguments, all that the learned counsel for the petitioners wants is that the eligibility for seniority of respondents 2 and 3 may be reconsidered. Learned counsel for the respondents has no objection for such reconsideration. In view of this, the writ petitions will stand ordered in the above terms."
Therefore, from the above order with the consent of parties, the seniority of M.Tajudeen, V.Ramasamy and R.Natarajan were directed to be reconsidered by this Court and accordingly, the Senior Regional Manager, Ramnad, by his proceedings, dated 22.02.1984 prepared a final seniority list of the Bill Clerk and Junior Assistant as stated in annexure A and B respectively and as per the seniority list prepared by the Senior Regional Manager, Ramnad Region, the petitioners were placed above M.Tajueen on the basis of their initial date of appointment, which is earlier to M.Tajudeen.
14.R.Rajendran and 13 others objected the seniority list prepared by the Senior Regional Manager, Ramnad Region, dated 24.02.1984 and applied to the first respondent and the first respondent, by order, dated 30.01.1985 set aside the seniority list prepared by the Senior Regional Manager, Ramnad, justifying the posting of M.Tajudeen as Junior Assistant on 24.10.2005 stating that he was treated as "Direct Recruitment", considering the merit of the case, as per Rule 5-B and on that basis, the Board of Directors, set aside the order of the Managing Director, dated 24.04.1978 and directed the Senior Regional Manager to prepare the seniority list. As expected, the Senior Regional Manager, having understood the mind of the Chairman-cum-Managing Director, prepared the seniority list placing M.Tajudeen, Ramasamy and Natarajan above the petitioners, by proceedings, dated 25.06.1985. It was stated in that order that the provisional seniority list was prepared for the post of Junior Assistant and this order was challenged by the petitioner in W.P.(MD)Nos.9725 and 8235 of 2006 and others, by name, Boominathan, Srinivasan and N.Govindarajan in W.P.Nos.6714, 3715 and 6716 of 1985, on the file of this Court and this Court dismissed the writ petitions, reserving liberty to the petitioners to challenge the final seniority list as and when prepared holding that the impugned order of Senior Regional Manager, Ramnad Region, is only a provisional order.
15.One S.Krishnamoorthy and 15 others filed W.P.No.8709 of 1985 and that writ petition was allowed and this Court has held that the date of joining in Ramanad Region has to be taken for fixing the seniority and therefore, the seniority should not be revised after transfers and the 1st respondent has adopted a different stand for fixing the seniority from the date of their joining in the new station, which is not valid and set aside the order of seniority order prepared by the Managing Director. Thereafter, the Chairman and Managing Director, the first respondent herein, by his proceedings, dated 04.03.1998 informing the Senior Regional Manager, Ramnad Region that the Corporation has valid grounds to prefer writ appeal against the order passed in W.P.No.8709 of 1985 and also set aside the seniority list published, dated 25.06.1985 by the Senior Regional Manager, Ramnad Region and further stated that the request of K.Bhoominathan and others, the name of the petitioners in these writ petitions, deserves consideration. The Managing Director also directed the Senior Regional Manager, to re-examine the above issue with reference to Court judgment and re-fixed the seniority, in the light of the judgment rendered in W.P.No.8709 of 1985. Accordingly, the Senior Regional Manager, Ramnad Region, prepared a seniority list, by his proceedings, dated 11.09.1999 considering all these aspects and placed the petitioners above M.Tajudeen. The seniority list prepared by the Senior Regional Manager, Ramnad, was also approved by the first respondent, by his proceedings, dated 24.10.2002. In that order, dated 24.10.2002, it has been specifically held by the first respondent as follows:-
"The appellant, Thiru.K.Boominathan and 10 others were already included in the panel of Superintendent for the year 1989 and 1990 as furnished below:-
===================================== S.No. Name of the Individual Year which Sl.No. of included the panel ===================================== 01.K.Boominathan 1989 58 02.S.Subbrayalu " 60 03.V.Paramasivam " 49 04.S.Arasappan " 50 05.R.Srinivasan 1999 6 06.K.Pandi 1989 71 07.N.Govindaraj 1990 42 08.V.Rajendran '' 41 09.R.Jayapalan " 93 10.M.Pannerselvam " 43 11.R.Ramachandran " 92 ====================================== They are working as Superintendents now [except Sl.No.5 Thiru.R.Srinivsan, Assistant, Virudhunagar]. The requests of the appellants deserve consideration. Hence, it is hereby ordered to include the names of the appellants 1 to 11 in the panel of Superintendent for the year 1985 and their seniority in the cadre of Superintendents is ordered to be revised on par with their immediate junior Thiru.M.Thajdeen (i.e.) Sl.No.417 in the seniority list of Superintendents in the H.O.NotificationE7/125375/88-1, dated 18.11.88 and their ranking may be re- fixed as follows:-
======================================
Sl.No. Name Seniority in Year of Panel for Ranking
the Carde of supdt.in which Sl.No. in
Assistant included the penal
of Suptd.
=======================================
01.S.Arasappan 5 1985 instead of 1989 416A
02.V.Rajendran 6 1985 instead of 1990 416B
03.R.Srinivasan 7 1985 instead of 1999 416C
04.V.Paramasivam 8 1985 instead of 1989 416D
05.K.Boominathan 10 1985 instead of 1989 416E
06.S.Subbarayalu 11 1985 instead of 1989 416F
07.N.Govindaraj 13 1985 instead of 1990 416G
08.K.Pandi 14 1985 instead of 1989 416H
09.M.Pannerselvam 15 1985 instead of 1990 416I
10.R.Ramachandran 16 1985 instead of 1990 416J
11.R.Jayapalan 17 1985 instead of 1990 416K
=======================================
In respect of Sl.No.3, orders promoting the postings will be issued separately.
Therefore, by the order of the first respondent, the petitioners were included in the panel for promotion to the post of Superintendent in 1985 instated of 1989. This order, dated 24.10.2002 was challenged by Ponnusamy and 4 others in W.P.No.46617 of 2002 before the Principal Bench and in that writ petition, an order was passed in W.P.M.P.No.67759 of 2002 that any promotion made based on the seniority list will be subject to the result of the main writ petition. This order was passed in the above W.P.No.46617 of 2002 on 13.09.2003. Thereafter, by proceedings, dated 21.11.2005, the petitioners, who worked as Superintendent were considered for further promotion to the post of Assistant Manager along with others and the first respondent, by his proceedings, dated 21.11.2005 included the petitioners and others in the panel list of Assistant Manager and the petitioners worked as Assistant Manager and this order of promotion given to the petitioners as Assistant Manager subject to the result of the W.P.No.46617 of 2002 was sought to be reversed by the first respondent allegedly on the petition of some other 8 persons and a show cause notice was issued to the petitioners why they should not be demoted to the post of Superintendent as there were given promotion wrongly and the petitioners in reply stating that the issuance of show cause notice amounts to contempt of Court as they were given promotion subject to the result of the W.P.No.46617 of 2002 and during the pendency of that writ petition, their seniority should not be disturbed.
16.Nevertheless, the first respondent passed the impugned order in respect of six writ petitioners, except K.Boominathan and R.Jayapalan Petitioners in W.P.No.9725 of 2006 and W.P.No.10072 of 2006 stating that they were wrongly included in the panel for the post of Assistant Manager in the year 1980 and they are eligible to be included only in the year 1981 for the panel for promotion to the post of Assistant and they were wrongly given notional promotion on 06.09.1980 on par with M.Tajudeen and therefore, subsequent promotion was also given on par with M.Tajudeen, which is illegal.
17.In respect of W.P.(MD)Nos.9675 and 10072 of 2006 based on the reversion of the petitioners to Superintendent post, the petitioners, in two writ petitions, were directed to repay the earnings by them as Assistant and ordered recovery and hence, the two writ petitioners in the above writ petitions challenges the order of recovery.
18.From the narration of facts as stated above, we will have to see whether the stand of the first respondent now taken that the petitioners should not have been given notional promotion with M.Tajudeen for the post of Assistant from 06.09.1980 and therefore, subsequent promotions also are not properly given or not.
19.As stated supra, admittedly all the petitioners and M.Tajudeen entered into service of the first respondent's Corporation as Bill Clerk and M.Tajudeen was junior in service to the petitioners and he was given promotion to the post of Junior Assistant on 24.10.1975 and it is the case of the respondents that the petitioners are not eligible to be promoted to the post of Junior Assistant along with M.Tajudeen as they have not completed two years of service as per the service regulations and as per Rule 5-B, M.Tajudeen must be deemed to have been appointed as Junior Assistant on merits. Admittedly, the petitioners and M.Tajudeen are having similar qualification viz., P.U.C and the petitioner in W.P.(MD)No.8727 of 2006 is having B.A qualification. As per the proceedings of the first respondent, dated 09.08.1978, Junior Assistants entering in service on or before 01.09.1978 will be considered for promotion to the post of Assistant only if they passed the "Commercial Book Keeping" test of Local Fund Audit Dept. conducted by the Tamil Nadu Public Service Commission. Therefore, the passing of the test is applicable only to those persons, who enteed into service on or after 01.09.1978. All the petitioners joined service in the year 1975 and therefore, their promotion to Assistant cannot be depending on their qualification in the Account Test.
20.Further, as per Rule 5-B, if a candidate with qualification prescribed for "Direct Recruitment" to a particular post is available holding another lower post in the Corporation including of clerical card of promotion, the Appointing Authority may at his discretion can consider his candidature if found fit for promotion whether Direct or ex-cadre of such higher post before seeking Direct Recruitment. This clause was taken advantage by the first respondent to contend that M.Tajudeen was given posting as Junior Assistant and he must be treated as Junior Assistant as per Rule 5-B .
21.The argument of the learned counsel appearing for the 1st respondent is liable to be rejected on two grounds. In W.P.No.8709 of 1985, this Court has considered Rule 5-B and held that seniority must be fixed as per date of joining. Further, Rule 5-B was introduced only in the year 1977 and M.Tajudeen was given posting as Junior Assistant even on 24.10.1975. Therefore, the contention of the respondents that M.Tajudeen was given promotion as "Direct Recruitment" as per Rule 5-B cannot be accepted and it is also against the judgment rendered in the W.P.No.8709 of 1985. Therefore, after having given promotion wrongly to M.Tajudeen, without giving promotion to the petitioners, who are seniors to him, after giving promotion, the first respondent must have realised that if promotions were not given to the petitioners on par with M.Tajudeen, problem may arise and therefore, these petitioners were also given notional promotion on par with M.Tajudeen as Junior Assistant from 24.07.1997, though they were actually given promotion to the post of Junior Assistant only in the year 1978.
22.Further, as seen from the tabular column stated in the earlier part of the judgment, the petitioners except the petitioners in W.P.(MD)Nos.8725, 9725 and 8726 of 2006 passed the DOM test in 1978 and the other three writ petitioners, pass in the test in the year 1979 and 80 and also passed the Account Test in the year 1980, 1981 and 1982. Therefore, when they were promoted as Assistants on various dates stated above, they were qualified to the post of Assistant and as per the proceedings, dated 09.08.1978 passed the Account Test cannot be a criteria to give promotion as Assistant as it was applicable only to persons, who joined the service after 1978. Therefore, realising the mistake that M.Tajudeen was given promotion to the post of Assistant from 06.09.1980 and was given promotion as Superintendent on 1.10.1985, the petitioners were given promotion to the post of Superintendent in the year 1990 and 1991 and they were also given retrospective promotions on par with M.Tajudeen on 01.10.1985. These aspects were taken into consideration by the first respondent and after considering the orders passed in W.P.No.8709 of 1985, the first respondent directed the Senior Regional Manager to revise the seniority as per the judgment made in W.P.No.8705 of 1985, by his proceedings, dated 04.03.1998 and accordingly, the Senior Regional Manager, by his proceedings, dated 11.09.1999 came to the conclusion that the request of the petitioners deserve consideration and placed them above M.Tajudeen and Pandian and prepared the details of seniority list. This list was approved by the then Managing Director-cum-Chairman, by his proceedings, dated 24.10.2002 and the said proceeding is challenged in W.P.46617 of 2002. According to me, the seniority panel prepared by the Regional Manager, by his proceedings, dated 11.09.1999 is perfectly in order that would also be approved by the then Chairman-cum-Managing Director and that order is also in accordance with rules.
Nevertheless, 4 persons challenged that order in W.P.No.46617 of 2002 and that writ petition is pending before the Principal Bench and in W.P.MP.No.67759 of 2002, this Court has passed an order that any promotion given to any person is subject to the result of main writ petition. Therefore, as rightly pointed out by the learned counsel appearing for the petitioners, when this Court has seized of the matter, the first respondent ought not to have issued the show cause notice and as rightly pointed out by him, it amount to contempt of Court. The first respondent having realised that promotions were given subject to the result of the Writ Petition No.4617 of 2002 as the courage to stay in the impugned order that there is no impediment to revise the seniority as the petitioners were given seniority on wrong basis and passed the impugned orders.
23.The tenor of the order passed by the first respondent in stating even though the order passed in W.P.No.46617 of 2002 that any promotion is subject to the result of the writ petition, the first respondent has got power, right and jurisdiction to revise the seniority on the basis of the promotions. On the other hand, promotions were wrongly given to the petitioners is nothing but wilful disobedience of order of this Court and is to be contemned.
24.Further in W.P.No.46617 of 2002, the seniority list approved by the then Managing Director was challenged and if the successor to that post was not agreed with the earlier order passed by the predecessor, he would have argued before the Court in W.P.No.46617 of 2002 and he should not have passed the impugned order issuing show cause notice. According to me, M.Tajudeen was promoted to the post of Junior Assistant on 24.10.1975 wrong without giving promotion to the petitioners, the petitioners were given promotion on par with M.Tajudeen and it is also in accordance the order passed in W.P.(MD)No.8705 of 1985 and the then Managing Director of the first respondent Corporation also accepted the same, by his proceedings, dated 04.03.1998 and directed the Regional Manager to prepare the seniority list. Further, if the order passed by the predecessor is set aside by the successor, there will be no end and such an attitude should not be encouraged and must be deprecated. When an order is passed by the Competent Authority that cannot be revised by the successor especially when that order is challenged before this Court. Further, finality can be given to the orders passed by the authorities and if the successor can revise the earlier order morale of the employee will be affected and that will only lead to sycophancy and favouritism. Hence, the order of the then Managing Director of the 1st respondent passed on 24.10.2002 approving the seniority of the petitioners above M.Tajudeen is valid and the impugned order passed by the first respondent is illegal and is liable to be quashed and it is quashed.
25.W.P.(MD)No.9675 and 10072 of 2006, on the basis of the reversion of the petitioners, their salary was sought to be recovered along with other recoveries. According to me, even assuming that the petitioners, in those two writ petitions, are not entitled to be promoted to the post of Assistant Manager, having allowed them to work as Assistant Manager, their salary cannot be recovered. Further, as held supra, they are rightly promoted to the post of Assistant Manager and therefore, their salary cannot be recovered. Therefore, the recovery ordered in W.P.9675 of 2006 to an extent of Rs.47247/- and in W.P.(MD)No.10072 of 2006 to an extent of Rs.43860/- is set aside.
26.In the result, the Writ Petition(MD) Nos. 9675 and 10072 of 2006 are partly allowed in the manner indicated above and all other writ petitions are allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.
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