Madras High Court
G.Devendran vs The District Collector on 5 March, 2018
Author: V.Parthiban
Bench: V.Parthiban
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 05.3.2018 CORAM THE HONOURABLE THIRU JUSTICE V. PARTHIBAN W.P.No.4964 of 2012 G.Devendran .. Petitioner versus 1. The District Collector, Collectorate, Ariyalur, Ariyalur District. 2. The Block Development Officer (V.P.), Sendurai Panchayat Union, Sendurai, Ariyalur District. 3. The President, Keelamaligai Village Panchayat, Sendurai Panchayat Union, Ariyalur District. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorarified Mandamus, to call for the records of the 1st respondent in his proceedings Na.Ka.No.V.PL.VA 2/399/2012 dated 23.02.2012 which was served on the petitioner on 26.02.2012, quash the same and consequently direct the 3rd respondent to permit the petitioner to join duty in the 3rd respondent panchayat. For Petitioner : Ms. S.Harinyi For Respondents: Mr.T.M.Pappiah, Spl.G.P.-R1 Mr.N.Srinivasan-R2 & R3 ORDER
The petitioner has approached this Court, seeking the following relief:
"To issue Writ of Certiorarified Mandamus, to call for the records of the 1st respondent in his proceedings Na.Ka.No.V.PL.VA 2/399/2012 dated 23.02.2012 which was served on the petitioner on 26.02.2012, quash the same and consequently direct the 3rd respondent to permit the petitioner to join duty in the 3rd respondent panchayat.
2. The petitioner was appointed as a Full Time Panchayat Assistant in the 3rd respondent village panchayat on 15.10.1997. While the petitioner was working as Panchayat Assistant, he was placed under suspension on 16.12.2010. A charge memo was also issued on 16.12.2010 along with the suspension order, charging the petitioner for certain acts of misconduct in respect of financial irregularities allegedly committed by him while discharging his duties as Village Panchayat Assistant. An explanation was offered by the petitioner denying the charges. On the basis of the explanation, further order was passed by the first respondent on 29.06.2011 revoking the suspension order. Thereafter, the petitioner was permitted to join duty. The petitioner was transferred in the meanwhile to Sirukadumber village Panchayat from the 3d respondent panchayat. He served in the said Pachayat from 29.06.2011 till 07.08.2011. Thereafter the petitioner was once again placed under suspension vide order dated 16.08.2011 and served with a charge memo dated 8.8.2011. The petitioner once again offered his explanation to the charge memorandum and no further action was taken. Once again another charge memorandum was issued for the same acts of misconduct on 31.8.2011 containing six Articles of charges. An explanation was offered to this charge memorandum by the petitioner. In the meanwhile, the petitioner challenged the suspension order dated 8.8.2011 before this Court in WP No.27347 of 2011. However the said Writ Petition was disposed of by this Court on 25.11.2011 with certain observations regarding grant of subsistence allowance to the petitioner.
3. Thereafter by proceedings dated 23.2.2012, the first respondent dismissed the petitioner from service by holding that the charges framed against him stand established. The said order passed by the first respondent is put to challenge in the present Writ Petition.
4. Upon notice, Mr.T.M.Pappiah, learned Special Government Pleader and Mr.N.Srinivasan, learned counsel entered appearance for respondent No.1 and respondent Nos.2 and 3. Respective counter affidavits have been filed on behalf of the respondents, denying the averments contained in the affidavit filed in support of the writ petition.
5. The learned counsel appearing for the petitioner would submit that the impugned order of dismissal from service suffers from vice of illegality per se as no procedure was followed in conducting any kind of enquiry before dismissing the petitioner from service vide impugned order. The first respondent happens to be the second appellate authority under the relevant service rules and therefore, he had usurped the power of the original authority, namely, 3rd respondent and passed the order. She would point out that the impugned order itself does not disclose that there was any enquiry conducted into the charges in terms of established principles of natural justice and also in terms of service regulations applicable to the post of Panchayat Assistant. She would therefore, submit that the impugned order dismissing the petitioner from service has to go lock, stock and barrel as under no circumstances, such order can be sustained in law.
6. In support of her contentions, the learned counsel for the petitioner would rely on a decision passed by this Court in W.P.(MD) No.8602 of 2006 dated 22.4.2010, wherein a similar issue came up for consideration before the learned Judge of this Court. The learned Judge dealt with similar contentions raised on behalf of the petitioner therein in respect of same panchayat and held that the District Collector, first respondent therein, cannot usurp the power of the original authority and pass orders. Moreover, the learned Judge in that case also found that there was no notice or enqiry conducted before the order of removal from service was passed. In the said circumstances, the learned Judge has quash the impugned proceedings and directed reinstatement of the petitioner therein and however granted liberty to the authorities to take action in terms of the procedure contemplated under the relevant regulations.
7. The learned Judge in extenso, has extracted the relevant provisions of the Panchayat Act and had come to the conclusion in favour of the petitioner therein. The contentions of the petitioner therein and the counter contentions of the respondents as well as the finding of the learned Judge are reproduced herein below in order to apply the said ratio with the facts of the present case, as the learned Judge dealt with identical situation as contended by the learned counsel for the petitioner.
"4. Mr.M.Ramadhas, learned counsel appearing for the petitioner submitted that the impugned order is liable to be quashed as the first respondent is not competent to pass the said order as he is the second appellate authority. According to the counsel, the original authority is the Panchayat President and the first appellate authority is the Block Development Officer and the second appellate authority is the Inspector of Panchayats cum District Collector. When that is the position, by passing the impugned order, the first respondent denied the two appellate remedies which are legally available to the petitioner. Secondly, he contend that no Show Cause Notice was issued or enquiry was conducted before removing the petitioner from the 3rd respondent panchayat and therefore, he would contend that the removal is in violation of principles of natural justice. He relied upon two judgments of this Court passed by learned Single Judges in W.P.(MD) No.9288 of 2008 passed in K.R.Muthupandi Vs. the District Collector, Sivagangai District, Sivagangai and another on 24.11.2008 and in A.Gnanmani v. the District Collector, Collector Office, Tirunelveli District & 2 others reported in 2010 Writ L.R. 209.
5. In the former case, His Lordship Justice S.Nagamuthu in similar circumstances quashed the impugned order on the ground that the right of appeal to the individual is lost as the appellate authority itself passed the impugned order. In the second case, the learned Single Judge held that the competent authority is entitled to pass any order and the appellate authority cannot take over the power of the original authority.
6.Mr.M.Rajarajan, learned Government Advocate submitted that when the original authority has got powers to take any action, the appellate authority is also clothed with the same powers and therefore, there cannot be any illegality on the part of the first respondent in passing the impugned order.
7. Mr.S.Balamurugan, representing Mr.S.Thirunavuk karasu, learned counsel for the 3rd respondent submitted that the Executive Authority viz., the 3rd respondent is empowered to take action against the erring Clerk, who is working under the Executive Authority. Moreover, he submitted that the first respondent only confirmed the removal of the petitioner from the 3rd respondent Panchayat. Therefore, he supported the order passed by the 1st respondent.
8.Heard respective counsel and perused the records. "Inspector" has been defined in Section 2(16). The powers of the Village Panchayat President is given under Section 83 and 84 of the Tamil Nadu Panchayats Act, 1994. Those three sections can be usefully referred as follows:
"2(16) 'Inspector' means any officer not below the rank of a collector appointed by the Government to exercise or perform any of the powers or duties of the Inspector under this Act;"
"83. Executive authority of village panchayat. - The Government may, by notification, appoint any person, who shall, subject to such rules as may be prescribed, exercise the powers and perform the functions of the executive authority of a village panchayat.
84. Functions of executive authority. - The executive authority shall, -
(a) carry into effect the resolutions of the village panchayat:
Provided that where the executive authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that, if carried out, it is likely to endanger human life or health or the public safety, the executive authority shall refer the matter to the Government for orders and their decision shall be final;
(b) control all the officers and servants of the village panchayat;
(c) discharge all the duties specifically imposed and exercise all the powers conferred on the executive authority and subject to all restrictions and conditions imposed, by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfillment of the purposes thereof."
As per Section 83, G.O.(Ms) No.225 Rural Development (C.I) Department dated 15.10.1996 was issued by the Government, by which the President of the Village Panchayat was appointed as the Executive Authority to exercise the powers and perform the functions of the Executive Authority of that Village Panchayat. As per Section 84(b), the Executive Authority (Village President) will have control over all the officers and servants of the village panchayat.
9. Section 106 of Tamil Nadu Panchayats Act, 1994 deals with the Powers to punish officers and servants, which is extracted as follows:
"106. Power to punish officers and servants. - Subject to such control as may be prescribed, the executive authority, the commissioner or the secretary may censure, fine withhold increments or promotions from, or reduce to a lower rank in the seniority list, or to a lower post or time scale or to a lower stage in a time-scale, suspend, remove or dismiss any officer or servant in the service of village panchayat or panchayat union council or the district panchayat, as the case may be, for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct."
From the above section, it is very clear that the President of the Village Panchayat has power to control over the officers and servants and also is empowered to take action including powers to dismiss from the service of village panchayat.
10. By virtue of clause 'n' of G.O. Ms No.230 Rural Development (E5) Department dated 15.10.1996, the Village Panchayat President has got power to appoint, to take action and to remove the officer/servant from the panchayat. If the power is to be exercised under Section 106 of the Act, G.O.(Ms) No.175 Rural Development and Panchayats (E5) Department dated 05.12.2006 is to be followed.
Clauses V & VI of the aforesaid G.O. read as follows:
"v fpuhk Cuhl;rpapd; eph;thfj;jpy;, Cuhl;rp cjtpahsh; Jiwapd; tpjpKiwfis kPwy;, xGA;fPdk;, ftdf; Fiwt[ jFjpapd;ik, flik jtWjy;, jtwhd eltof;iffs; Bghd;wtw;wpy; Nlgl;lhy; me;j Cuhl;rp cjtpahsiu fz;ldk;, mguhjk;, Cjpa cah;t[ my;yJ gzp cah;it epWj;jp itj;jy; my;yJ Kg;g[g; gl;oaypy; juk; nwf;Fjy;, my;yJ fPH;epiyg;gzpaplj;jpy; itj;jy; my;yJ fhyKiw Cjpaj;jpy; fPH;epiyapy; itj;jy;, jw;fhypf gzpePf;fk; bra;jy;, gzpapypUe;J ePf;Fjy; my;yJ gzptpyf;fk; bra;ayhk;. nUg;gpDk; mjw;F Kd;ghf me;j Cuhl;rp cjtpahsiu Beuo tprhuizf;F miHg;gJ cl;gl mth;jdJ tpsf;fj;ij mspf;f mtUf;F Bghjpa tha;g;g[ mspf;fg;gl;oUf;f Btz;Lk;. vi Bky;KiwaPL - Cuhl;rpapd; Kot[f;F vjpuhd Bky; KiwaPl;il Cuhl;rpj ;jiythpd; Miz fpilf;fg;bgw;w 30 jpdA;fSf;Fs; tl;lhu tsh;r;rp mYtyh; (Cuhl;rp) nlk; gjpt[ bra;J bfhs;syhk;. BkYk; tl;lhu tsh;r;rp mYtyh; (Cuhl;rp)-d;; Kot[ kPjhd nuz;lhtJ Bky;KiwaPl;il tl;lhu tsh;r;rp mYtyh; (Cuhl;rp)-d; Miz fpilf;fg; bgw;w 60 jpdA;fSf;Fs; khtl;;l Ml;rpj; jiythplk; gjpt[ bra;J bfhs;syhk;"
As per clause V of G.O.(Ms) No.175 Rural Development and Panchayts (E5) Department dated 05.12.2006, the delinquent officer/servant is required to be given a notice and offered an opportunity to defend his case. Even in the absence of the aforesaid G.O., it is fundamental that a person should be heard before his right is infringed in compliance of principles of natural justice.
11. As per clause (vi) of the aforesaid Government Order, the affected officer/ servant is entitled to file appeal within 30 days from the date of receipt of a copy of the order of the Executive Officer to the Block Development Officer and a further appeal to the Inspector of Panchayats cum District Collector within 60 days from the date of receipt of a copy of the order of the Block Development Officer.
12. It is seen in this case, the petitioner was removed by virtue of a resolution dated 26.06.2006 from the post of Panchayat Clerk. It is not in dispute that no notice was given to the petitioner and no enquiry was conducted before removal of the petitioner from the said post by the 3rd respondent Village Panchayat President by virtue of panchayat resolution dated 26.06.2006. The Hon'ble Supreme Court held in Divisional Superintendent, Eastern Railways, Dinapur and others vs. L.N.Kashri and others reported in AIR 1974 SC 1889 a party should be heard before any adverse order is passed against him. In another case, the Hon'ble Supreme Court in Agit Kumar Kar vs. State of West Bengal and others reported in 2009(2) SCJ 454 held that violation of principles of natural justice renders the act a nullity. Therefore, the said resolution is liable to be quashed for non compliance of principle of natural justice and for violation of G.O.(Ms) No.175 Rural Development and Panchayats (E5) Department dated 05.12.2006.
"13. & 14. ..... ..... .....
15.In this case, the Inspector is the District Collector. As rightly pointed out by the learned counsel appearing for the petitioner that the first respondent Inspector of Panchayats cum District Collector is the second appellate authority as per clause (vi) of G.O.(Ms) No.175 Rural Development and Panchayats (E5) Department dated 05.12.2006, against the order passed by the Executive Authority cum Village Panchayat President. Moreover, under Section 201 and 202 of the Tamil nadu Panchayats Act, 1994, the Inspector of Panchayats have got control over the Panchayat and also to suspend or cancel the resolution passed by the Panchayat. Section 201 and 202 of the said act is reproduced as follows:
"201. Powers of officers for purpose of control. - The Inspector or any officer or person whom the Government or the Inspector, may empower in this behalf may -
(a) direct the village panchayat or panchayat union council or the district panchayat to make provision for and to execute or provide any public work or amenity, or service of the description referred to in sections 110, 112 and 163;
(b) call for any record, register or other document in the possession, or under the control, of any panchayat or executive authority, or commissioner or secretary;
(c) require any panchayat or executive authority or commissioner or the secretary to furnish any return, plan, estimate, statement, account or statistics;
(d) require any panchayat or executive authority or commissioner or the secretary to furnish any information or report on any matter connected with such panchayat;
(e) require any panchayat or executive authority or the commissioner or the secretary to obtain his previous sanction before giving up a claim or closing down any institution which is a source of income;
(f) record in writing for the consideration of any panchayat or executive authority or commissioner or the secretary, any observations in regard to its or his proceedings or duties.
202. Power to suspend or cancel resolution, etc. under the Act. - The Inspector may, by order in writing -
(i) suspend or cancel any resolution passed, order issued, or licence or permission granted, or
(ii) prohibit the doing of any act which is about to be done or is being done, in pursuance or under colour of this Act, if in his opinion, -
(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised, or
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other law or an abuse of such powers or is considered by the inspector to be otherwise undesirable, or
(c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray:
Provided that nothing in this sub-section shall enable the Inspector to set aside any election which has been held.
(2) The Inspector shall, before taking action on any of the grounds referred to in clauses (a) and (b) of sub-section (1), give the authority or person concerned an opportunity for explanation.
(3) The power conferred on the Inspector under clause (c) of sub-section (1) may be exercised by the collector in accordance with the provisions of that clause."
As per the above provisions, the District Collector is competent to have control over the panchayat and he is given power to take any action including the power to cancel the suspension and cancel the resolution passed by the panchayat. When that is the position, the Inspector of Panchayats cum District Collector cannot assume the power of the Executive Authority namely the original authority and pass orders as if he is an original authority. By virtue of usurping the powers of the Executive Authority, the first respondent has committed a serious error. Secondly, through the impugned order, the first respondent denied the right of appeals which are legally available to the petitioner. In this Court's view, such an action cannot be countenanced and liable to be set aside.
16. The very purpose of providing appeal, revision etc., is to enable the aggrieved party to get relief atleast in one forum or other. By virtue of this impugned order, the first respondent prevented the petitioner from approaching the appellate authority. Therefore, the impugned order is set aside. 17.As the order passed by the first respondent as well as the resolution passed by the 3rd respondent are quashed, the 3rd respondent is directed to take the petitioner immediately for employment within one week from the date of receipt of a copy of this order. As far as the petitioner's claim for salary is concerned, it would be considered by the 3rd respondent appropriately. However, it is made clear that this order will not preclude the third respondent village panchayat from making any enquiry and take action against the petitioner after following the procedures, considering the nature of the allegations made against the petitioner. The Writ Petition is ordered in the above terms. Consequently,connected M.P.(MD) No.1 of 2006 is closed. No costs."
8. In the instant case, the impugned order does not disclose any enquiry being conducted into the charges and had merely stated that the petitioner was given opportunity of hearing and statement has been obtained from him. Such procedure is an utter violation of the established principles of natural justice and therefore, the impugned action has to be discountenanced in law as being illegal and unsustainable.
9. Although individual affidavits have been filed in respect of all three respondents and there was denial of the averments contained in the affidavit filed in support of the writ petition. However, no specific stand has been disclosed in none of the counter affidavits as to the factual and legal points raised on behalf of the petitioners. In any event, the respondents cannot offer any valid explanation as to how the first respondent who was the second appellate authority, usurp the power of the original authority, namely, 3rd respondent and pass the impugned order. Moreover, as regards non-conducting of the enquiry, except bald denial, no specific averment has been made in the counter affidavits as to why enquiry was not conducted in the matter before taking adverse action against the petitioner. Therefore, this Court is constrained to hold that the imugned orders passed in proceedings No.Na.Ka.No.V.PL.VA 2/399/2012 dated 23.02.2012 cannot be sustained in law and therefore, the same is hereby quashed.
10. It is needless to mention that the issues raised in the present Writ Petition are squarely covered by the order passed by the learned Judge of this Court in the aforesaid Writ Petition in W.P.(MD) No.8602 of 2006 dated 22.4.2010. In view of the quashment of the impugned order, the petitioner shall be reinstated in service forthwith with all attendant benefits to which, he is entitled to on notional basis. It is made clear that the petitioner is not entitled to arrears of pay on such reinstatement on the principal 'no work no pay'. The authorities, however, are not precluded from proceeding against the petitioner by following proper procedure as laid down by the relevant Rules and Regulations and follow the established principles of natural justice.
11. The Writ Petition is allowed on the above terms. No costs.
suk 19.03.2018 Index: Yes/No Internet: Yes/No To
The petitioners are all employees of the first respondent Corporation. They originally joined as Helpers on various dates. Respondents 4 to 26 herein joined as Helpers like the petitioners herein. There were two channels of promotion for the post of Helper which is described as under:
All the petitioers had opted for Commercial Telephone Operators, whreas the respondents opted as Wireman channel. On the basis of available vacancies, in the channel opted by the petitioners, they were promoted as Commercial Assistants before the respondents are promoted as Wiremen. Therefore, the petitioners became admittedly seniors to respondents 4 to 26 in the promoted post. On 9.4.1996, the respondent Corporation by Board proceedings No.106 introduced single channel of promotion to the next promotion post as Line Inspector/Commercial Inspector. The promotion was to be effected on the basis of date of promotion ... to all the employees as Commercial Assistants/Wiremen as the case may be in view of the introduction of the single channel of promotion. But the petitiner became eligible for promotion in the line of the Line Inspector .... Inspector earlier to respondents 4 to 26 in view of the admitted position that the petitioners were promoted ahead of the private respondents as Commercial Assistants/Telephone Operators. While so, the Board proceedings No.106 which sought to introduce to system of technical channel is challenged in W.P.No.... and this Court on 18.10.1996, this Court stayed the implementation of the said Board proceedings pending disposal of the Writ Petition. In view of the interim order granted by this Court, the Corporation, as a temporary measure, decided to follow earlier two channel system which were in vogue before introduction of Board proceedings 106 dated 9.4.1996. For the said purpose, the Corporation has issued BP on 19.1.1998 in B.P.No.2 restoring two channel method of promotion only as an intrim measure and it was made clear that the said B.P.No.2 was subject to the outcome of the Writ petition in WP No.1515 of 1996. In effect, any promotion made by two channel system vide B.PNo.2 was subject to the outcome of the said Writ Petition.
Based on re-introduction of two chennel promotion vide B.PNo.2 respondents were given promotion as Line Inspector by order dated .. and in the order of promotion which was specifically mentioned that the promotion was subject to the result of the writ petiton pending before this Court in W.P.No.1515 of 1996. In fact, in the promotion order, it was specifically mentioned that such promotion, the employees are not confirmed on any preferential claim for seniority etc., and they will be referred back to the original post at any time without assigning any reasons. In the meanwhile, some Line Inspectors filed W.P.No.... challenging the subsequent B.P;No.1 which reiterated two channel system. On 30.4.1998, this Court also granted stay of said B.P.No.2. During pendency of the said WP, the said B.P.No.2 was withdrawn by the Corporation and on the basis of the deveoopment, the Writ Petiton No.6464 of 1998 came to be closed on 4.9.2002. Subsequently, it appears that even the other writ petition which challenged the single channel system i.e. W.P.No.1515 of 1996 also came to be closed. The net effect of the dismissal of the writ petitons was that the sigle channel system had come into vogue and the promotions of all those Wiremen as Line Inspectors under two channegl system had to be reviewed wince admittedly such promotions were effected on a temporary basis subject to the outcome of the wir petiton No.....
While matters stood thus, the dismissal of the writ petition by ths Court was not ...... to the knowledge of the writ petitioners as according to the petitoners, even after the disposal of the writ petition, when promotions were granted to the private respondents, the Corporation had incorporated in the ... that their promotion would subject to the result of the writ petition. Therefore, the petitioners were all alone under the impression that the writ petiton was pending final consideration before this Court. This fact was highlighted by the petitioneres by stating that even as late as 13.6.2007, when private respondents were further promoted as Foreman Grade I, the promotion was made subject to outcome of writ petiton in W.PlNo.... since these petitioners were not parties to the said writ petiton, they were not aware of the fact that the said writ petiton was dismissed as early as on 22.9.2004. Further for the first time, when the promotion channel dated 29.7.2010 was published for promotion to the post of Sp...in the promotion list.. there was no mentioned about the word "subject to WP 15154 of 1996: Thereafter, on enquiry, the petitioners came to understand that the writ petiton was disposed of as early as in the year 2004. Threfore, they requested the authorities concerned for redrawing the seniority list based on B.P.No... providing for single channel system of promotion and effect promotions on that basis. Since no action was forthcoming in regard to representation dated 4.12.2010, the petitioners are before this Court, seeking to issue Writ of Mandamus, to recasst the seniority of both the petitoners and the respondents 2 to 26 herein, in the post of Wireman and commercial Assistants-cum Telephone Operator based on single channel system and grant all subsequent promotion on tht basis.
Upon notice, ... entered appearance and filed a detailed counter affidavit. In the counter affidavit, the facts are broadly admitted. Serious objections raised on behalf of the Corporation are that th epetitioners were aware of the seniority list published in thepromoted basis and in the absence of seniority, the present writ petition seeking to issue Writ of Mandamus is not maintainable. During the course of one of hearings, relevant seniority list has been produced as between the petitoneres and the private respondens and an attempt was made on behalf of the Corporation to impress upon this Court to show that the private respondents were promoted as Line Inspector and further promotion of the Fo.... ahead of the writ petitioners and therefore, the writ petitioners cannot have any legitimate grievance in assignment of inter se seniority. In order to circumvent the legal objections raised on behalf of the Corporation, the petitioneres have not challenged the seniority list, a petiton was filed seeking to raise additional grounds amending to challenge the seniority list dated ... The said amendment petition was allowed the prayer was also amended accordingly.
Shri .... learned counsel appearing for the petitoiners would submit that all the promotions which took place during the pendency of litigation to this Court were subject to the outcome of the writ petition in WP ... only by way of interim measure such promotions took place and once such writ petition having been dismissed in 2004, the Corporation ought to have reviewed the entire promotions and ought to have refixed the seniority on the basis of single channel system of promotion. It the Corporation had undertaken such exercise at appropriate time, it could not have resulted in undue favour being granted to private respondents 4 to 26 herein and resulting in negation of petitioners' right to be promoted ahead the private respondents 4 to 26 in terms of BP 106 dated 9.4.1996. The stand taken by the Corporation that no matter the introduction of single channel system, the seniority assigned to respondents 4 to 26 cannot be disturbed is per se prepostorous and cannot be countenanced both on law and on facts.
On behalf of the private respondents 4 to 26, though learned counsels names appeared in the cause list, however there was no representation on behalf of the private respondents in none of the hearing and they remained absent throughout.
Shri .. learned counsel appearing for the petitioners would submit that the private respondents are unlikely affected by recasting the seniority of thepetitioners herein since many of them have got due promotion and retired from service. Therefore, they are most disinclined to make any appearance before this Court as they ceased to be stake holders in the litigation. As regards the official respondents are concerned, though seveal reasons have been cited in the counter affidavit as well as in the additional counter affidavit, none of the averments contained in both the affidavits addressed the core issues which arose for consideration before this Court. This Court finds that most of the averments contained in the counter affidavit as well as in the additional counter affidavit are extraneous in nature and not addressing the points in issue before this Court. Admittedly, after the disposal of WP ... in 2004, it was imperative on the part of the Corporation to introduce the single system of channel of promotion on the basis of BP 106 dated 9.4.1996 and the entire promotion effected during the pendenc of the litigation ought to have reviewed and resettled. Such exercise had not been done by the Corporation for whatever reasons which were not properly explained before this Court. On the other hand, the Corporation has proceeded with two channel system of promotion while following the seniority which was fixed on that basis and continued to promote the private respondents as Foreman Grade I and Special Grade Formen without resorting back to single channel system of promotion. Such action on the part of the Corporation was contrary to its own proceedings dated 9.4.1996 (BP 106). Although this Court initially expressed its apprehension about the delay of the petitoiners approaching this Court in 2011, while the Writ Petition in WP 1515 of 1996 was disposed as early as in the year 2004, theapprehension expressed by this Court sought to be alloyed by the learned counsel for the petiioners stating that even as late as 2007, when promotions were effected in respect of private respondents 2 to 26 to the post of Foremen Grade I, the administration continued to menion in the promotion order that their promotion wouild be subject to the result of WP 1515 of 1996. Since the petitioners were not parties to the said WP, they were not aware of the dismissal of the said WP. However, for the first time, when promotion order was issued to the private respondents in 2010, when thepetitioners found in the promotion order issued, there was no mention of pendencyof WP ... though ultimately came to know about the dismissal of the Writ Petitiion. Thereafter reprsentation was submitted immediately and in the absence of any action on the representation, the petitioners had chosen to approach .... for mandamus prayer and subsequently challenged the seniority list.
This Court is satisfied with the explanation submitted by the learned counsel for the petitoners in regard to delay in approaching this Court.
Be that as it may, a single ... most important fact for consideration before this Court is whether the Corporation ought to have followed single channel system of promotin as per its BP 106 dated 9.4.1996 or to follow two chanel system of promotion as conveyed in BP No.2 dated 19.1.1998.?
Admittedly, BP No.2 came to be withdrawn by the Corporation itself by BP 27 dated 26.2.... and on the basis of which, one another WP was filed, challenging BP No.2, which came to be closed. Once the BP No.2 had been withdrawn by the Corporation itself, needless to mention that the entire seniority had to be recast on the basis of single channel system of promotion and further promotion to be effected on such seniority. Moreover, it is admitted case that the promotion effected in favour of the private respondents were done on temporarily basis subject to the outcome of the WP .... As rightly contended by the learned counsel for the petitoners, .... clause was incorporated in all the promotion orders that the promotion would be subject to the result of WP ... Once the Writ Petition came to be dismissed and BP 106 dated 9.4.1996 came to be restored, the natural corolloary of such happening would be the restoration of status quo ante and as rightly contended by the learned counsel for the petitioners that the entire seniority has to be recast and the promotions which were effected all these years had to be reviewed. This Court is conscious of the fact that such exercise after lapse of several years woiuld unsettle the settled matters, however, is of the considered view that by any such exercise .... is unlikely to affect the private respondents since they had already been granted their due promotion and many of them retired and they are also shown or exhibited an iota of interest in defending their position before this Court as they do not have any stake in the litigation as on date. In the said circumstances, this Court has to see whether the right of the petitioners can be tinkered with merely because of the passage of time and the pendency of litigation before this Court.
Admittedly, the right of the petitioners flow from the BP 106 dated 9.4.1996 and once the said BP had been restored by subsequent development as indicated above, the right of the petiitoners .. to be resotored as otherwise, the restoration of the said BP would have no meaning to these petitioners. In the circumstances, the seniority list as enclosed in the present WP which was prepared on the basis of two channel system of promotion cannot be sustained in law as the same is contrary to BP 106 dated ..... Correspondingly the promotion denied to these petitioners ahead of the respondents 4 to 26without following the single channel system of promotion, cannot also be countenanced in law.
Therefore, for all the reasons stated above, the impugned seniority list ..... is set aside. The Official respondents are directed to recast the seniority of the writ petitioners on the basis of BP 106 dated ... and effect promotions of next higher post of Foreman Grade I .... etc. On the basis of such revised seniority list and grant all consequential benefits. The said direction shall be complied with by the official respondents within a period of 12 weeks from the date of receipt of copy of this order. It is made clear that on being promoted to the higher post on the basis of recast of seniority list, thepetitoners are not entitled to actual differential wages on the basis that they have not shouldered higher responsibility in the prooted post. However, they are entitled to notiional fixation of pay and other benefits.
W.M.P.Nos.29914 & 36910 of 2016 in W.P.NO.16082 of 2016 V.PARTHIBAN, J.
The above Writ Miscellaneous Petitions have been filed, seeking to vacate the interim stay granted by this Court on 28.04.2016 in W.M.P.No.13885 of 2016 in the above Writ Petition.
The parties are described as arrayed in the Writ Petition. These vacate stay petitions are filed on behalf both the respondents 1 to 3 as well as the private respondent No.4 herein.
The writ petitioner has filed the above writ petition, seeking to challenge the promotion granted to the 4th respondent to the post of P.G.Assistant (Physics). The 4th respondent had questioned the locus standi of the writ petitioner in maintaining the writ petition on the ground that the writ petitioner is working as PG Assistannt (Maths) in the same school where the 4th respondent is working as PG Assistant (Physics). The promotion granted to the post of PG Assistant is admittedly on the basis of subject wise seniority. The petitioner being PG Assistant (Maths) cannot have any grievance against the 4th respondent who is promoted as PG Assistant (Physics). Without disclosing this fact, the writ petitioner has managed to obtain interim stay against the approval of the promotion of the 4th respondent and in view of the same, the promotion granted to the 4th respondent as PG Assistant (Physics) could not be effected.
The 4th respondent was initially appointed as PG Assistant in the 3rd respondent school on 26.3.2009. He was qualified as M.Sc. (Physics) and when a vacancy arose in the post of PG Assistant (Physics), being the only eligible candidate in the school and in the interest of the institution, he was granted to the post of PG Assistant (Physics) on 16.3.2009. The said prootion was also approved by the second respondent authority, whereas, the petitioner was appointed as B.T.Asssitant on 26.3.2007 and was given promotion to the post of PG Assistant (Maths) on 1.6.2000. After nearly six years of the promotion of the 4th respondent, the petitioner approached this Court in W.P.No..... against thepromotion of the 4th respondent as PG Assistant on the ground that even before declaration of probation in the cadre of B.T.Assistant, he was granted promotion as PG Assistant. The said Writ Petition was disposed of with a direction to consider his representation. In pursuant to the direction, the first respondent passed an order dated ... cancelling the prootion of the 4th respondent on the ground that the 4th respondent had not completed probation period in the post of B.T.Assistant and he was entitled to be promoted only on 26.3.2010 on completion of two years probation as B.T.Assistant. Thereafter, the 4th respondent came to be promoted as PG Assistant ... as per the letter dated .... and an approval was granted for the said promotion of the 4th respondent as PG Assistant (Physics) by proceedings dated .... These proceedings granting approval to the promotion of the 4th respondent with effect from 26.3.20... is once again put to challenge in the present writ petition.
Heard the learned counsel appearing for the writ petitioner as well as the official respondents and the 4th respondent. It is admitted fact that the promotion to the post of PG Assistant is made on the basis of subject wise seniority. Admittedly, the writ petitioner is promoted to the post of P.G.Assistant (Maths) whereas, the 4th respondent is promoted to the post of P.G.Assistant (Physics). According to the rules, the teachers are eligible to be promoted as P.G.Assistants on completion of two years of service in the post of B.T.Assistant and the 4th respondent being the only eligible candidate available in respect of Physics subject, came to be appointed as P.G.Assistant (Physics) with effect from 26.3.2010. While so, this Court does not see how the writ petitioner was aggrieved by such promotion of the 4th respondent since he belongs to a different subject, namely, Mathematics. Earlier, the writ petitioner succeeded in getting innocuous direction from this Court, stating that the 4th respondent did not even complete his probation period of two years in the cadre of B.T.Assistant and on the basis of direction issued by this Court, earlier promotion given to the 4th respondent came to be cancelled. However, after the second respondent was given promotion and the same was approved by the competent authority vide proceedings dated 11.4.2016, granting promotion to the 4th respondent with effect from ... i.e. on completion of two years of probationery period in the post of B.T.Assistant, this Court does not see any further grievance the petitioner could possibly have in challenging the promotion of the 4th respondent.
From the facts narrated above, it is clear that the present litigation is not ... by any genuine consideration of protecting the interest of the institution, but it is obviously for extraneous consideration in order to settle personal grudge against the 4th respondent.
This Court is compelled to come to such conclusiion in view of the basic admitted fact that the writ petitioner have employed as PG Assistant (Maths) cannot possibly have any grouse or grievance against the promotion of the 4th respondent as P.G.Assistant in Physics subject. The entire litigation appears to be lacking bona fides and without disclosing the proper materials, the petitioner has obtained interim order of stay, .... the promotion of the 4th respondent as P.G.Assistant in Physics. Therefore, this Court does not see justification to continue the interim order passed in WMP .... dated 29.4.2016.
Accordingly, the present Writ Miscellaneous Petitions filed on behalf of the officials respondents 1 to 3 and private respondent No.4, are allowed and the interim stay granted by this Court on ...... stands vacated. Since this Court primarily is of the view that the petitioner has no locus standi to maintain the writ petition in regard to the issue raised in the Writ Petition as against the 4th respondent and the facts as narrated above, have not been disputed by the officials, this Court does not see any further arise consideration in the writ petition. Therefore, the Writ Petition lacks merit and substance and accordingly, the Writ Petiton is dismissed.
suk 05.03.2018
V.PARTHIBAN, J.
suk
W.P.No.11886 of 2010
5.3.2018