Madras High Court
Jaya vs The Secretary To Government on 1 April, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2014
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
Writ Petition No.9717 of 2007
1.Jaya
2.S.Ranganayagi
3.Chandramurthy
4.Vasu
5.Rajasekar
6.Gopinath ... Petitioners
vs.
1.The Secretary to Government,
Home (Police II) Department,
Fort St. George, Chennai 600 009.
2.The Director of Vigilance and Anti Corruption,
Chennai -28.
3.The Joint Director of Vigilance and Anti Corruption,
Chennai 600 028.
4.E.Elizabeth Shibaline ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India, for issuance of a writ of Certiorarified Mandamus, to call for the records of the second respondent in connection with the impugned orders passed by him in RC.No.A1/13226/2006 dated 14.9.2006 and Rc.No.A1/13226/2006 dated 19.10.2006 and quash the same and further direct the respondents 2 and 3 to place the name of the fourth respondent in the bottom of the seniority list of the Assistants (Administration Branch) of the Directorate of Vigilance and Anti Corruption.
For Petitioners : Mr.K.Venkataramani, SC for Mr.M.Muthappan
For Respondents : Mr.S.Navaneethan, AGP -R1 to R3
No representation -R4
O R D E R
The issue raised herein is against the restoration of the seniority of the fourth respondent herein.
2.Few facts, which are relevant for consideration herein are as follows:
The petitioners herein and the fourth respondent were, at one point of time, acting as Special Assistants, which is feeder category to the next promotional post i.e., Superintendent. It is not in dispute that the fourth respondent while working as Special Assistant, was senior to the petitioners herein. While so, the fourth respondent, by letter dated 17.4.2006, opted for reversion and requested the respondents 2 and 3 to revert her back as Assistant and to post her in Administration Branch. The fourth respondent, in the same letter dated 17.4.2006 relinquished her right for promotion to the post of Superintendent. In consideration of her request, she was reverted back as Assistant and posted in Administrative Branch by order dated 25.5.2006. In the reversion order, she was directed to specifically report as to whether her reversion to Administrative Branch as Assistant and relinquishment of the seniority for the promotion of Superintendent in Administrative Branch as requested in her representation dated 17.4.2006 is a permanent one or temporary one. The fourth respondent, by reply letter dated 30.5.2006 intimated that her revision to the Administration Branch is permanent one. Insofar as promotion to the post of Superintendent is concerned, it is stated in her reply that her original seniority in the post of Assistant may be retained for subsequent promotion in the category of Superintendent and other higher posts. Thereafter, she continued in the post of Assistant in the Administrative Branch. In view of such reply sent by the fourth respondent, the petitioners made a representation dated 31.5.2006 to the second respondent, Director of Vigilance and Anti Corruption, Chennai-28 stating that in the event of the fourth respondent being retained in the same seniority, it is likely to affect their seniority. The petitioners have in the same representation dated 31.5.2006 requested to place the fourth respondent in the bottom of the seniority list of Assistants, Director of Vigilance and Anti Corruption, Administrative branch and they also sent reminder dated 1.6.2006 in this regard. However, the representation of the petitioners dated 31.5.2006 was rejected by the proceedings of the second respondent dated 14.9.2006 stating that their request for placing the name of the fourth respondent on her reversion to Administrative branch as Assistant in the bottom of the seniority list of Assistant of Directorate Vigilance and Anti Corruption, cannot be considered as per the provisions of Tamil Nadu State and Subordinate Service Rules 9(c) and 9(d)(ii). The second respondent vide proceedings dated 19.10.2006 called upon the petitioners to inform the exact Rules under which the name of the fourth respondent is sought to be placed at the bottom of the seniority list of Assistants. Aggrieved against the same, the petitioners have come forward with the present writ petition for quashing the orders passed by the second respondent dated 14.9.2006 and 19.10.2006 and for directing the respondents 2 and 3 to place the name of the fourth respondent in the bottom of the seniority list of the Assistants (Administrative Branch) of the Directorate of Vigilance and Anti Corruption.
3.Heard the learned Senior counsel for the petitioners and the learned Additional Government Pleader for the respondents 1 to 3. Though the party concerned has been arrayed as fourth respondent herein and notice has been duly served on her, she did not choose to come and contest the writ petition. However, her right to retain her original seniority and her right for further promotional post, are being contested by the learned Additional Government Pleader representing the official respondents.
4.According to the learned senior counsel for the petitioners, the relinquishment of promotion to the post of Superintendent, while opting for reversion by the fourth respondent is permanent in nature. It is also his further contention that whether the relinquishment is permanent or temporary one, the claim of the right or privilege relinquished will be with reference to the state of affairs that exist on the date of expiry of period of relinquishment and without restoration of original seniority. Whereas, the learned Additional Government Pleader would seriously argue that the relinquishment is given up, while seeking permanent reversion to the Administrative Branch as Assistant by the fourth respondent. While the petitioners in support of their claim, relied on Rules 47(1) and 47(2) of the Tamil Nadu Ministerial Services Rules, the learned Additional Government Pleader for the respondents would rely on Rules 9(c) and 9(d)(ii) of the Tamil Nadu State and Subordinate Services Rules that relinquishment is already given up and the same thus in no way affects the seniority of the fourth respondent in her original post.
5.For better appreciation, Rule 47 of the Tamil Nadu Ministerial Service Rules and Rules 9(c) and 9(d)(ii) of the Tamil Nadu State and Subordinate Services Rules are extracted hereunder:
47.Relinquishment of rights by members:
(1)Any person may in writing, relinquish any right or privilege to which he may be entitled under these rules or the Special Rules if, in the opinion of the appointing authority, such relinquishment is not opposed to public interest; and nothing contained in these rules or the Special Rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished.
(2)Relinquishment of a right or privilege for a temporary period shall be accepted if it is made for a period of not less than three years subject to the condition that after the expiry of the said period, the claim of the right or privilege relinquished will be with reference to the state of affairs that exist on the date of expiry of period of relinquishment and without restoration of original seniority. If relinquishment of right or privileges is made permanently and is accepted, subsequent claim of the relinquished rights or privileges shall not be entertained. 9.Members absent from duty:- The absence of a member of a service from duty in such service, whether on leave or on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not if he is otherwise fit, render him ineligible in his turn _
(a).....
(b).....
(c)for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate, as the case may be, in the same manner as if he had not been absent. He shall be entitled to all the privileges in respect of appointment, seniority, promotion and appointment as full member which he would have enjoyed, but for his absence subject to his completing satisfactorily the period of probation on his return.
(d)for appointment to any substantive or officiating vacancy in another service, if according to the rules governing appointment to such other service-
(i)....
(ii)the normal method of recruitment to such other service is by transfer from the service of which he is a member of any class or category thereof.
(Provided that a member of a service who has been appointed to another service outside his regular line shall not be permitted to hold membership in the second service beyond five years, if he is to be considered for promotion or for appointment by recruitment by transfer to a higher post in his regular line even though he is otherwise qualified under the rules for such promotion or appointment, unless he puts in a fresh service for a minimum period of one year in his post, in the former service on reversion from the second service. The reading of both the provisions would disclose that while Rules 9(c) and 9(d)(ii) apply in general, Rule 47 applies in the cases where the right of relinquishment is exercised. When there is specific rule regarding relinquishment, the same overrides the general rule as such, Rules 9(c) and 9(d)(ii) are inapplicable to the facts of the present case.
6.Even otherwise, the cursory glance at the letter dated 17.4.2006, would make it clear that the fourth respondent is unwilling to continue in the higher post involving more responsibility and the relinquishment exercised by her shall be treated as permanent one and her case cannot be, in view of such right of relinquishment, considered without reference to relinquishment or independent of right of relinquishment exercised by her. Insofar as relinquishment of right of promotion by the member is concerned, the same is specifically dealt with in Rules 47(1) and 47(2). Once the right of relinquishment is exercised and is accepted, there is no option to her to withdraw the same according to whims and fancies. When the request for reversion and relinquishment to the post of Superintendent contains in the one and the same representation, the acceptance of one amounts to acceptance of other and once it is accepted, the person concerned has no right to seek to restoration of seniority and her claim of the relinquished right or privilege shall not be entertained by the department concerned. If that is so, her claim for retaining the original seniority in the post of Special Assistant for being considered for promotion to the post of Superintendent shall not be retained endlessly for the sake of that individual, thereby overlooking the seniority of her juniors, who are by virtue of relinquishment, likely to be benefited.
7.Viewing from any angle, the impugned order rejecting the request of the petitioners to place the fourth respondent in the bottom of the seniority list of Assistants, is per se arbitrary and contrary to relevant Rules and is against constitutional right available to the petitioners and is in violation of the principles of natural justice and is hence liable to be quashed.
8.In the result, the writ petition is allowed by quashing the impugned orders passed by the second respondent. The respondent concerned is directed to place the fourth respondent in the bottom of seniority list of the Assistants within the Administrative Branch of Vigilance and Anti Corruption in accordance with the existing state of affairs as on the date of reversion. No costs.
Rk 01.04.2014
Index:Yes/No
Internet:Yes/No
To
1.The Secretary to Government,
Home (Police II) Department,
Fort St. George, Chennai 600 009.
2.The Director of Vigilance and Anti Corruption,
Chennai -28.
3.The Joint Director of Vigilance and Anti Corruption,
Chennai 600 028.
K.B.K.VASUKI, J.
rk
Writ Petition No.9717 of 2007
01.04.2014