Madras High Court
Alameluammal vs The Director Of Elementary Education on 21 June, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21/06/2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.(MD)No.7971 of 2007
Alameluammal ... Petitioner
Vs.
1.The Director of Elementary Education,
College Road,
Chennai.
2.The District Elementary Educational Officer,
Office of D.E.E.O.,
Madurai.
3.The Assistant Elementary Educational Officer,
Officer of A.E.E.O.,
Chellampatti - 625 566.
4.Saraswathi
5.Thilagavathy
6.Puspha ... Respondents
Prayer
Writ Petition is filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned seniority list dated 01.01.1998, 01.01.2007 and
the promotion granted in favour of the fourth respondent to the post of Middle
School Headmistress dated 21.07.2007 by the second respondent in
Na.Ka.No.2901/A5/07 and quash the same in so far as revising and placing the
fourth respondent as senior to the petitioner in the seniority list for
Secondary Grade Teacher in Chellampatty Union and consequently direct the
respondents 1 to 3 to treat the petitioner as having been promoted on 09.09.1998
as Primary School Headmistress and accordingly place the petitioner as senior in
the interse seniority list drawn for promotion to the post of Middle School
Headmistress over and above the respondents 4 and 5 and grant all the
consequential benefits including retrospective promotion to the post of Middle
School Headmistress, revision of pay scale, arrears of salary and all monetary
benefits and backwages.
!For Petitioner ... Mr.N.Dilip Kumar
^For RR 1 to 3 ... Mr.D.Muruganandam
Additional Government Pleader
For R - 4 ... Mr.A.Thirumurthy
For RR 5 & 6 ... No appearance
********
:ORDER
On 13.07.1988, the petitioner was appointed as a Secondary Grade Teacher in Sedapatti Panchayat Union in Madurai District. The petitioner sought transfer to Chellampatti Union on request. Accordingly, she was transferred to Chellampatti Union on 25.06.1992. Before she joined in Chellampatti Union, the fourth respondent came to Chellampatti Union from some other union on 11.09.1991. Likewise, the fifth respondent came to Chellampatti Union on 01.10.1992. The petitioner has not claimed any relief against the sixth respondent, during the course of argument on the ground that the sixth respondent is senior to her.
2. It is not in dispute that when the petitioner came to Chellampatti Union on 25.06.1992, she was a regular employee as her probation was successfully declared on 12.07.1990 with effect from 13.07.1988. But the fourth respondent was on probation, when she came to Chellampatti Union on 11.09.1991 i.e. though the fourth respondent came to Chellampatti Union earlier to the petitioner, she has to be considered as junior, as she was only on probation. On 15.10.1994, she was regularised with effect from 01.09.1992 on successful completion of probation.
3. Since the fifth respondent joined Chellampatti Union only on 01.10.1992, after the petitioner joined on 25.06.1992, she should be treated as junior to the petitioner in Chellampatti Panchayat Union.
4. The promotion to the post of Secondary Grade Teacher is Elementary School Headmistress. Though the petitioner is senior, as stated above, the fourth respondent was promoted as Elementary School Headmistress on 09.09.1998. The petitioner as well as the fifth respondent got promotion to the post of Elementary School Headmistress on 22.06.1999. The fourth respondent got further promotion as Middle School Headmistress by an order dated 21.07.2007. Since the fourth respondent was promoted on 09.09.1998, prior to the promotion of the petitioner as Elementary School Headmistress, the fourth respondent was promoted as Middle School Headmistress in July 2007. Till date, the petitioner has not been promoted to the post of Middle School Headmistress.
5. When the fourth respondent was promoted as Middle School Headmistress in 2007, the petitioner has filed this writ petition questioning the combined seniority list dated 01.01.2007 of B.T.Assistant, Tamil Pandits and Elementary School Headmistress, as the fourth respondent is shown at Serial No.4, while the petitioner is shown at Serial No.6 and the fifth respondent at Serial No.5. The petitioner has also questioned the promotion given to the fourth respondent by an order dated 21.07.2007 as Middle School Headmistress and the fourth respondent joined duty on 24.07.2007 as Middle School Headmistress.
6. The petitioner pleaded that she was not aware of the seniority details till the impugned seniority list dated 01.01.2007 was published.
7. The fourth respondent filed counter-affidavit refuting the allegations made by the petitioner. The fourth respondent pleaded that the seniority list dated 01.01.2007 is based on her promotion to the post of Elementary School Headmistress on 09.09.1998 and therefore, she was correctly shown as senior to the petitioner, as the petitioner was promoted as Elementary School Headmistress only on 22.06.1999. Without questioning the promotion of the fourth respondent as Elementary School Headmistress in 1998, the petitioner could not maintain her writ petition. It is also stated that the writ petition suffers from serious laches, as the petitioner has approached this Court after 10 years.
8. While so, this Court directed the Additional Government Pleader to produce the entire records on 06.01.2011. Pursuant to the direction issued by this Court, the Additional Government Pleader produced entire files. Thereafter, the petitioner filed petitions praying for (i) permission to file additional affidavit, (ii) to raise additional grounds in the main writ petition, (iii) to permit the petitioner to amend the prayer questioning the seniority list dated 01.01.1998 for the post of Secondary Grade Teacher in Chellampatty Union and the promotion given to the fourth respondent on 09.09.1998 as Elementary School Headmistress, questioning the combined seniority list dated 01.01.2007 and the order dated 21.07.2007, promoting the fourth respondent as Middle School Headmistress and (iv) to dispense with the production of the impugned seniority list dated 01.01.1998.
9. All those applications were allowed by this Court.
10. In the additional affidavit it is stated that the service details were culled out from the records produced by the Department and a synopsis is filed. It is also stated that the seniority list of Secondary Grade teachers of Chellampatty Union was not circulated to the teachers including the petitioner and therefore, the petitioner was not aware of the actual position. In these circumstances, she was not able to question the impugned seniority list dated 01.01.1998 of Secondary Grade teachers of Chellampatty Union, based on which the fourth respondent was promoted to the post of Elementary School Headmistress on 09.09.1998.
11. The second respondent filed a counter affidavit and the other official respondents did not file counter affidavit. As stated above, the fourth respondent filed a counter affidavit and the fifth and sixth respondents did not enter appearance and also did not file any counter affidavit.
12. In the counter affidavit of the second respondent, it is stated that pursuant to the directions issued by the first respondent in the proceedings dated 03.05.2004, the seniority list is furnished to teachers and their objections are sought.
13. Heard Mr.N.Dilip Kumar, learned counsel appearing for the petitioner, Mr.D.Muruganandam, learned Additional Government Pleader appearing for the respondents 1 to 3 and Mr.A.Thirumuthry, learned counsel appearing for the fourth respondent.
14. The learned Additional Government Pleader has produced the entire files relating to the impugned order.
15. The second respondent is the competent authority to issue seniority list of Secondary Grade teachers of Chellampatti Union. But the second respondent did not issue the seniority list. On the other hand, the third respondent prepared the seniority list from 1993 to 1998, barring for the year 1996. For all those years from 1993 to 1998, the seniority lists were not circulated to the teachers. Though the first respondent issued a proceedings in Na.Ka.No.47962/ED1/99, dated 19.11.1999, directing the third respondent to prepare and send the seniority list to the second respondent before 24th January of the year and the second respondent should look into the same and approve before 31st January of the year and thereafter, the third respondent should furnish the seniority list to the teachers seeking their objections, if any and thereafter, the third respondent should send the objections, if any to the second respondent on or before 15th February of the year and finally, the second respondent should pass orders before last date of February of the year, finalising the seniority list, this was not followed by the respondents 2 and 3.
16. I have perused the records produced by the learned Additional Government Pleader and this procedure was not followed by the respondents 2 and
3. As the petitioner and party respondents joined in Chellampatti Panchayat Union during 1991-92, the relevant years relating to the finalisation of seniority list is 1993 to 1998, as the fourth respondent was promoted as Elementary School Headmistress in 1998. Barring 1996, the seniority lists were prepared and signed by the third respondent and the same were not approved by the second respondent. Moreover, the seniority list was not circulated to teachers and their objections were not sought by the third respondent. Though seniority list of the year 1996 was signed by the second respondent, the same was also not communicated to the teachers, as seen from the records.
17. It seems not only in the Chellampatti Village Panchayat but also in the other Unions in the entire state, the teachers were not furnished with the draft seniority list and their objections were not called for. Furthermore, the seniority list was prepared by the Assistant Elementary Educational Officer and not sent for approval to the District Elementary Educational Officer. Therefore, the first respondent issued a proceedings in Na.Ka.No.5939/ED1/2001, dated 15.11.2001 issuing guidelines directing the Assistant Elementary Educational Officer and District Elementary Officer to follow strictly the same in the preparation of the seniority list. Paragraph No.23 of the said proceeding relevant for the case is extracted hereunder:-
""23. xt;bthU Mz;Lk; 1/1 Bjjpapy; cs;sthW midj;J tif Mrphpah;fSf;fhd Kd;Dhpikg; gl;oay; jahhpj;J, mjid midj;J Mrphpah;fSf;Fk; Rw;Wf;F mDg;gp mth;fspd; xg;g[jy; bgw;W mk;Kd;Dhpikg;gl;oaypy; Kuz;ghL cs;sjhf Bky;KiwaPL mwpag;gl;lhy; mjid tpjpfspd;go ghprPyid bra;J jf;f Miz tHA;fpagpd; mt;thizapd;go Kd;Dhpik gl;oaypy; khw;wk; bra;ag;glBtz;oapUe;jhy;, khw;wk; bra;ag;gl;L rhp bra;jgpd; mt;thz;L Bjhuhakhf Vw;gLk; fhypg; gzpaplA;fis xt;bthU gjtpapYk; fzpj;J gpd; mf;fhypg; gzpapl vz;zpf;iff;F 2 klA;F jFjptha;e;jth;fis me;j me;j gjtpf;F me;je;j Kd;Dhpikg; gl;oaypy; nUe;J Bgdy; (panel) jahhpf;fg;glBtz;Lk;. mt;thW jahhpf;fg;gl;l Bgdypy; cs;sth;fSf;F kl;Lk; Bgdiy Rw;Wf;F mDg;gp xg;g[jy; bgw;W Bfhg;gpy; itf;fg;glBtz;Lk;. Bgdypy; FiwghLfs; cs;sjhf Bky;KiwaPL bgwg;gl;lhy; mjid tpjpfspd;go Ma;t[ bra;J jf;f Miz gpwg;gpf;fg;glBtz;Lk;, mt;thizapd;go Bgdypy; jpUj;jA;fs; Bkw;bfhs;s Btz;oapUe;jhy; mj;jpUj;jA;fis bra;aBtz;Lk;. nt;thW Bgdy; nWjpahf;fg;gl;L mjid Vw;W epakd mYtyh; xg;g[jy; mspj;Jtpl;lhy; mg;Bgdy; epakd mYtyh; xg;g[jy; mspj;j BjjpapypUe;J xU tUlk; eilKiwapy; nUf;Fk; mg;Bgdy;gojhd gjtp cah;t[fs; tHA;fg;glBtz;Lk;. mg;Bgdy;, xg;gspj;j ehspypUe;J xU tUlk; Koe;j gpd; fhyhtjpahfptpLk;.
2.Bkw;TwpathW gyKiw mwpt[iu, tHA;fg;gl;Lk; Kd;Dhpikg;gl;oay; kw;Wk; Bgdy; jahh; bra;tjpy; xBu rPuhd eilKiw khtl;lA;fspy; ny;iy vd;gJk; gy khtl;lA;fspy; Kd;Dhpikg; gl;oay;fis khtl;lj; bjhlf;f fy;tp mYtyh; Vw;gspj;J mjid midj;J Mrphpah;fSf;Fk; Rw;Wf;F mDg;gg;gLtjpy;iy vd;gJ naf;Fehpd; ftdj;jpw;F bfhz;Ltug;gl;Ls;sJ. vdBt khepyk; KGtJk; xBu rPuhd eilKiw gpd;gw;w fPH;fz;l eilKiwfs; "tFj;J jug;gLfpd;wd.
3. Kd;Dhpikg;gl;oay; kw;Wk; Bgdy; vd;gJ epakd mYtyh; vd;w Kiwapy; khtl;lj; bjhlf;ff; fy;tp mYtyuhy; jahhpf;fg;glBtz;Lk;. xt;bthU Mz;Lk; 01.01 Bjjpapy; xt;bthU gjtpf;Fk; jFjptha;e;j Mrphpah;fspd; Kd;Dhpikg;gl;oay; jahh; bra;ag;glBtz;Lk;. nUg;gpDk;, Kd;Dhpik vd;gJ me;j me;j xd;wpa mstpBy guhkhpf;fg;gLtjhy;, midj;J xd;wpaA;fSf;F khtl;lj; bjhlf;ff; fy;tp mYtyuhy; Kd;Dhpikg;gl;oay; jahh; bra;tJ vspjhf ny;yhj epiyapy; cjtpj; bjhlf;ff; fy;tp mYtyh; Kd;Dhpikg; gl;oaiy fPH;f;fz;lthW tpjpfspd;go rhpahf jahh;bra;J khtl;lj; bjhlf;ff; fy;tp mYtyh;fSf;F xt;bthU Mz;Lk; 31.1 f;Fs; mDg;gpitf;fBtz;Lk;, xt;bthU Mz;Lk; 1.1 Bjjpapy; fPH;f;fz;lthW Kd;Dhpikg;gl;oay;fs; jahhpf;fg;glBtz;Lk;.
.....................................................
4.Bkw;Twg;gl;lthW xt;bthU Mz;Lk; 01/01 Bjjpapy; 22 Kd;Dhpikg;gl;oay;fis xd;wpa mstpy; cjtpj; bjhlf;ff; fy;tp mYtyh;/TLjy; cjtpj; bjhlf;ff;fy;tp mYtyh; Tl;lhf tpjpfspd;go rhpahf jahh;bra;J ifbahg;gkpl;L nUefy;fspy; 31.1 f;Fs; rk;ge;jg;gl;;l khtl;lj; bjhlf;ff; fy;tp mYtyUf;F mDg;gpitf;fBtz;Lk;.
5. rk;ge;jg;gl;l khtl;lj; bjhlf;ff; fy;tp mYtyh; mjid tphpthf Th;e;jha;t[ bra;J 15.02.2001 f;Fs; Vw;gspj;J cjtpj; bjhlf;f fy;tp mYtyh; Kyk; midj;J Mrphpah;fSf;Fk; Rw;Wf;F mDg;gBtz;Lk;. efy; xd;W cjtpj; bjhlf;ff; fy;tp mYtyh;/TLjy; cjtpj; bjhlf;ff; fy;tp mYtyh; jfty; gyifapy; xl;lBtz;Lk;. mg;gl;oay;fspy; VBjDk; Kuz;ghL cs;sjhf Bky;KiwaPL bgwg;gl;lhy; mjid cld; tpjpfspd;go Ma;t[ bra;J rhpahf nUg;gpd; Vw;Bwh my;yJ epuhfhpj;Bjh Miz tHA;f Btz;Lk; mt;thW Miz tHA;fpagpd; mjw;Bfw;g Kd;Dhpikg;gl;oay;fspy; jpUj;jk; Bkw;bfhs;sg;gl Btz;oapUe;jhy; jpUj;jk; bra;ag;glBtz;Lk;. ng;gzp 28/2 f;Fs; Kof;fg;glBtz;Lk;.
6. gpd;dh; me;j Mz;oy; fhypahf cs;s kw;Wk; fhyp Vw;gLk; gzpaplA;fis fz;lwpe;J mtw;wpd; vz;zpf;iff;Bfw;g, 2 klA;F egh;fs; mlA;fpa me;je;j gjtpf;Fhpa Bgdy;fis (panel) me;j me;j gjtpf;Fhpa Kd;Dhpikg;gl;oay;fspy; nUe;J jahh; bra;J, mg;Bgdypy; cs;s egh;fSf;F kl;Lk; Rw;Wf;F mDg;gp xg;g[jy; bgwBtz;Lk;. ng;gzp 15/3 f;Fs; Kof;fg;glBtz;Lk;. (Kd;Dhpikg;gl;oay; thpir vz;. 8, 15, 16, 17, 18, 22 y; Twg;gl;Ls;s gl;oay;fspypUe;J Bgdy; jahh; bra;ag;glBtz;Lk;.)
7. gpd;dh; mg;Bgdypy; Bky;KiwaPLfs; bgwg;gl;lhy; mitfSk; cldoahf rhpbra;ag;gl;L Kgikahd xg;g[jy; bgw;w Bgdiy 31/3 f;Fs; jahh; bra;aBtz;Lk;. mjhtJ Bgdy; xt;bthU Mz;Lk; 31/3 f;Fs; Vw;gspg;g[ bra;aBtz;Lk; vd;W jpl;ltl;lkhf bjhptpf;fg;gLfpwJ."
18. The aforesaid proceedings dated 15.11.2001 of the first respondent makes it clear that the procedure was not followed in finalising the seniority list and teachers were not furnished with the seniority list in Panchayat Unions.
19. It seems that even after the said proceeding in the year 2001 was not followed as per the counter affidavit of the second respondent. The second respondent has averred in the counter affidavit that they followed the procedure after the proceeding dated 03.05.2004 of the first respondent.
20. When the learned counsel for the petitioner has categorically stated that the petitioner was not aware of the seniority list, the second respondent has not disputed the same in the counter affidavit. In paragraph No.6 of the affidavit filed in support of the writ petition it is stated as follows:
"6. I submit that I was not aware of all the above seniority details till the impugned seniority list was published. Even during my promotion to the post of Elementary School Headmistress I was not aware of these details and hence I did not dispute the earlier promotion of the respondents to the said post. I did not know that the respondents 4 to 5 were junior to me in Chellampatti Union as they were under probation."
21. The second respondent filed a counter affidavit and there is no para wise denial. As per paragraph No.6 of the counter affidavit, it is stated as follows:-
"6. I respectfully submit that the seniority list was drawn by our Department prior to the issue of the orders by the first respondent. As soon as the orders of the first respondent in his Na.Ka.No.9683/D1/2004 dated 03.05.2004 was received, based on the guidelines issued by the first respondent the revised seniority list was prepared and communicated to all the teachers, including the present petitioner."
That is, it is admitted that the teachers were communicated with the seniority list only after 2004.
22. As per paragraph No.6 of the counter affidavit, the procedure is followed only after the proceedings dated 03.05.2004 of the first respondent.
23. In these circumstances, I am of the view that the petitioner could not be blamed for not questioning the seniority list dated 01.01.1998 of Secondary Grade Teacher of Chellampatti Union immediately. The seniority list dated 01.01.1998 is produced by the Additional Government Pleader and the same was not issued by the second respondent. Thus, the seniority list itself is without any authority. The seniority list dated 01.01.1998 was prepared and signed by the third respondent alone. As stated above, the list was also not circulated to the teachers and their objections were not called for.
24. A Teacher who was similarly situated like the petitioner questioned the impugned seniority list as well as the promotion given to her junior. The said writ petition was dismissed for laches by this Court by a learned Single Judge and the matter was taken on appeal. The Division Bench of this Court in A.Mani Vs. The Director of Elementary Education, College Road, Nungambakkam and others reported in 2008 Writ L.R.213, considered the aforesaid proceedings of the first respondent and also found that the seniority list was not circulated in most of the panchayat unions including the panchayat union concerned that came for scrutiny. The Division Bench held that the petitioner could not be blamed for questioning the seniority list on the ground of delay.
25. In my view, the said judgment is squarely applicable to the facts of this case. Therefore, the petitioner could not be blamed for questioning the seniority list dated 01.01.1998 of the Secondary Grade Teachers of the Chellampatti Panchayat Union immediately, since the same was not furnished to her and the same was not prepared by the competent authority.
26. The only plea of the fourth respondent is that the petitioner approached this Court belatedly and therefore this Court should not interfere under Article 226 of the Constitution of India. As far as the facts are concerned, the learned counsel for the fourth respondent is not able to dispute the same. The learned counsel submits that prior to 1998, the fourth respondent was shown as junior and on her request, she was shown as senior. It is not known as to how she came to know about her position in the seniority list, when the same was not circulated. He relies Rule No.35(f) of the Tamil Nadu State and Subordinate Services Rules and submitted that the petitioner should have questioned the seniority list within three years. I am in full agreement with the submissions made by the learned counsel for the fourth respondent, if the seniority list was furnished to the petitioner and thereafter, she kept quiet. In this case, the second and third respondents did not furnish the seniority list to the teachers including the petitioner. Therefore, Rule 35(f) of the Tamil Nadu State and Subordinate Service Rules could not be applied in this case.
27. The learned counsel for the fourth respondent has relied on the decision of the Honourable Apex in K.R.Mudgal and others Vs. R.P.Singh and others reported in AIR 1986 SC 2086. In that case, the dispute that arose relating to the inter se seniority between the petitioners therein who were directly appointed as Assistants in the Intelligence Bureau of the Government of India in the year 1957 and certain other Assistants in the Intelligence Bureau, who were appointed prior to 01.02.1954 and the remaining were appointed or absorbed as Assistants prior to the induction of the petitioners into service as Assistants. In the seniority list of the Assistants issued in the year 1958, the petitioners were shown as junior to other Assistants and no objections were raised by the petitioners against the seniority list, nor any objection was raised by the petitioners against the seniority lists issued in 1961 and 1965 and it was only against the seniority list of 1975 that was prepared to rectify the mistake that had crept in the seniority list issued in 1968, the writ petition came to be filed by the petitioners after 18 years. The Honourable Apex Court held that the petitioners were guilty of laches. In that case, the petitioners were issued with the seniority lists in the year 1958, 1961 and 1965 and thereafter, but they did not question the same and they kept quiet.
28. In this case, as already stated above, the seniority lists were not furnished to the teachers including the petitioner and more over the seniority list was not prepared by the competent authority. Therefore, I am of the view that the said judgment could not be applied to the facts of this case.
29. In these circumstances, I am of the view that the writ petition could not be dismissed on the ground of laches, when the seniority list itself was not circulated and the same was not prepared by the competent authority.
30. Therefore, I have no hesitation to quash the impugned seniority list dated 01.01.1998 of Secondary Grade teachers of Chellampatti Panchayat Union. The said seniority list has shown the fourth respondent as senior to the petitioner, while the fourth respondent was probationer, as on 25.06.1992, when the petitioner joined Chellampatti Panchayat Union. In perusal of the files, in the earlier years, the petitioner was shown as senior. But the same was altered at the instance of the fourth respondent, without hearing the petitioner. Hence, the impugned seniority list dated 01.01.1998 is quashed. Based on the same, the promotion as Elementary School Headmistress with effect from 09.09.1998 is also set aside. The common seniority list dated 01.01.2007 is based on the said seniority list dated 01.01.1998. Hence the same is also set aside. Since both the seniority lists are set aside, the promotion of Elementary School Headmistress given to fourth respondent in 1998 and the promotion given to the fourth respondent as Middle School Headmistress by an order dated 21.07.2007 also quashed. As far as the fifth respondent is concerned, she joined in Chellampatti Union only on 01.10.1992, after the petitioner joined on 25.06.1992. In fact in 1998, the fifth respondent is shown as junior in the seniority list prepared by the third respondent as on 01.01.1998. In the said seniority list dated 01.01.1998, the petitioner is shown at serial No.17, the fourth respondent is shown at serial No.15 and the fifth respondent is shown at serial No.19. But in the seniority list dated 01.01.2007, the fifth respondent is shown at serial No.5, while the petitioner is shown at serial No.6. This is not warranted particularly when both of them were promoted as Elementary School Headmistress on the same date ie. on 22.06.1999. For all these reasons, the impugned seniority list dated 01.01.2007 is set aside as far as fifth respondent is also concerned.
31. In view of the above findings, the petitioner should be promoted from 09.09.1998, the date on which the fourth respondent was promoted as Elementary School Headmistress. Further, promotion as Middle School Headmistress also should be given to the petitioner with effect from 21.07.2007, the date on which the fourth respondent was promoted. Hence, a direction is issued to the respondents to promote the petitioner as Elementary School Headmistress with effect from 09.09.1998 and thereafter as Middle School Headmistress with effect from 21.07.2007 with all benefits.
The writ petition is disposed of with the above terms. No costs.
ps To
1.The Director of Elementary Education, College Road, Chennai.
2.The District Elementary Educational Officer, Office of D.E.E.O., Madurai.
3.The Assistant Elementary Educational Officer, Officer of A.E.E.O., Chellampatti - 625 566.