Madras High Court
Y.Usharani vs The State Of Tamil Nadu on 5 November, 2014
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05 / 11 / 2014
CORAM:
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.NO.31291 OF 2013
AND CONNECTED MISCELLANEOUS PETITIONS
Y.Usharani ... Petitioner
Vs.
1.The State of Tamil Nadu
Rep. by its Secretary to Government
Department of Municipal Administration
and Water Supplies
Secretariat, Chennai 600 009.
2.The Commissioner
Coimbatore Corporation
Coimbatore 1.
3.V.Leena
4.R.Mohanasundari
5.S.V.Lakshmanan
6.S.Ganesh Kumar
7.T.Rajamanickam
8.K.Manickam
9.P.Anbarasi
10.R.Tamilvendan
11.N.Annadurai
12.M.M.Kanagaraj ... Respondents
(R4 to R12 impleaded as per order dated 06.06.2014
in M.P.No.1/14 in W.P.No.31291/2013)
Orders reserved on : 03.07.2014
Orders pronounced on : 05.11.2014
PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, forbearing the 2nd respondent from cancelling petitioner's promotion order dated 01.02.2013 for the post of Administrative Officer by demoting her to the post of Superintendent in pursuance to the approval granted to the Agenda in Na.Ka.No.13924/2012/MC2 dated 12.11.2013 in the guise of revising the seniority prepared in the year 2006 and in violation of G.O.No.427, dated 26.10.2006 issued by the 1st respondent.
For Petitioner : Mr.N.Manoharan
For Respondent-1 : Mr.I.Arockiasamy
Government Advocate
For Respondent-2 : Mr.K.Natarajan
For Respondents
3 to12 : Mr.R.Sivakumar
O R D E R
The petitioner joined service as Typist (equivalent to Junior Assistant) in Chennai Corporation on 20.10.1999. She was promoted as Assistant on 04.03.2005. She sought transfer to Coimbatore Corporation, the second respondent herein. Based on the request made by her, she was transferred by the Government from Chennai Corporation to Coimbatore Corporation.
2.The petitioner joined as Assistant in Coimbatore Corporation on 01.12.2006. She was promoted as Superintendent on 03.06.2009, based on the seniority list of Assistants dated 06.12.2008. She was further promoted as Administrative Officer on 01.12.2013 based on the seniority list of Superintendents dated 01.04.2012.
3.While so, the Coimbatore Corporation placed an agenda dated 12.11.2013 for consideration of its Council on 14.11.2013 about the revision of seniority lists dated 06.12.2008 of Assistants and 01.04.2012 of Superintendents. As per the agenda, the aforesaid seniority lists would be revised and the petitioner would be demoted from the post of Administrative Officer to the post of Superintendent.
4.The petitioner has filed this writ petition seeking for issuance of mandamus forbearing the second respondent Coimbatore Corporation from cancelling her promotion order dated 01.02.2013 for the post of Administrative Officer by demoting her to the post of Superintendent pursuant to the approval granted to the Agenda in Na.Ka.No.13924/2012/MC2 dated 12.11.2013 in the guise of revising the seniority prepared in the year 2006 and in violation of G.O.No.427, Municipal Administration and Water Supply Department, dated 26.10.2006 issued by the first respondent Government.
5.While ordering notice of motion on 20.11.2013, this Court granted interim injunction restraining the second respondent from demoting the petitioner from the post of Administrative Officer to Superintendent.
6.The respondents 4 to 12 got impleaded in the writ petition as they are all interested parties and they sought to support the action of the second respondent.
7.The third respondent filed a miscellaneous petition in M.P.No.2 of 2014 in W.P.No.31291 of 2013 along with a detailed affidavit seeking to vacate the interim injunction granted on 20.11.2013.
8.The second respondent filed a counter affidavit refuting the allegations made by the petitioner and explained in detail about the facts that led to placing of an agenda dated 12.11.2013 on 14.11.2013 before the second respondent Corporation Council. The second respondent also stated that a resolution was passed on 14.11.2013 revising the seniority and demoting the petitioner from the post of Administrative Officer to the post of Superintendent. The second respondent also pleaded that without questioning the resolution dated 14.11.2013, the writ petition is not maintainable.
9.On merits, the counter affidavit filed by the second respondent gives various details as to the reason for revising the seniority as otherwise the same would result in causing injustice to senior persons, who are more than ten years senior to the petitioner in the cadre of Assistant.
10.The respondents 4 to 12 filed counter affidavit. It is averred that the petitioner was transferred from Chennai Corporation to Coimbatore Corporation in 2006 as an Assistant with a condition that she will be placed as a last person in the seniority list of Assistants of Coimbatore Corporation. But contrary to the said condition, she was placed above the respondents 3 to 12, while they were promoted as Assistants in Coimbatore Corporation in 1996, even before the petitioner was promoted as Assistant in Chennai Corporation in 2005. They sought to dismiss the writ petition.
11.Heard the submissions made on either side.
12.(i)The petitioner was appointed as Typist in Chennai Corporation on 20.10.1999. She completed her probation on 21.10.2001. She was promoted as Assistant on 04.03.2005. She made a representation dated 17.08.2005 to the Commissioner of Chennai Corporation seeking to transfer her to Coimbatore Corporation, the second respondent herein. She has stated in her representation that she came to know that there was a vacancy in the post of Assistant in second respondent Corporation and since her parents as well as her husband were in Coimbatore, she sought transfer to Coimbatore Corporation. She further expressed her willingness to be the junior most person in the cadre of Assistant, if she is transferred to Coimbatore Corporation.
(ii)The petitioner's request was placed before the Council meeting of Chennai Corporation that was held on 02.02.2006.
(iii)The Council of Chennai Corporation passed a resolution in Resolution No.53/2006 granting approval for the transfer of petitioner to the second respondent Corporation. It is also stated in the said resolution that the Government alone has power to transfer an employee of one Corporation to another Corporation and that the petitioner's application would be forwarded to the second respondent Corporation for its opinion.
(iv)Based on the aforesaid resolution, the Commissioner of Chennai Corporation sent a letter dated 17.03.2006 to the second respondent Corporation along with the resolution of the Council granting approval for the transfer of the petitioner from Chennai Corporation to Coimbatore Corporation.
(v)By a proceeding in Na.Ka.No.5311/2006/M.C.8 dated 27.05.2006, the Mayor in-charge of the second respondent Corporation communicated the Counselors of the second respondent Corporation that the Council could meet on 31.05.2006 and on that day, certain matters would be listed as additional agenda and the issue relating to transfer of the petitioner to the second respondent Corporation was one among the items in the additional agenda.
(vi)On 31.05.2006, the second respondent Council passed a resolution expressing its willingness to absorb the petitioner in the service of the second respondent Coimbatore Corporation from the service of the Chennai Corporation. It was also stated that there was a vacancy in the Coimbatore Corporation in the post of Assistant and that the petitioner could be absorbed in the said vacancy.
(vii)Based on the resolution dated 31.05.2006, the second respondent sent a letter in Na.Ka.No.3735/06/MC-1, dated 25.07.2006 to the first respondent seeking to pass appropriate orders transferring the petitioner from Chennai Corporation to Coimbatore Corporation, through the Commissioner of Municipal Administration, Chepauk, Chennai.
(viii)The Commissioner of Municipal Administration recommended the aforesaid proposal dated 25.07.2006 in his letters dated 24.08.2006 and 07.10.2006 to the first respondent Government.
(ix)Subsequently, the first respondent Government issued orders in G.O.No.427, Municipal Administration and Water Supply Department, dated 26.10.2006 transferring the petitioner from Chennai Corporation to Coimbatore Corporation as an Assistant. It is stated therein that the petitioner shall be placed as a junior most person in the cadre of Assistant in the Coimbatore Corporation.
13.G.O.No.427 was forwarded to the petitioner through Chennai Corporation, by the Section Officer of the Municipal Administration and Water Supply Department. The Section Officer signed the order on 30.10.2006 and the same was received by the Electrical Department of the Chennai Corporation wherein the petitioner was employed on 06.11.2006 that was found at page no.11 of the typed set filed by the petitioner.
14.By an order dated 16.11.2006, the petitioner was relieved from her duties on 30.11.2006. She reported duty on 01.12.2006 in the second respondent Coimbatore Corporation.
15.When the petitioner joined the second respondent Corporation as Assistant, the respondents 3 to 12 were already working as Assistants therein. Further, prior to the petitioner joined service as Typist (which is equivalent to Junior Assistant) in 1999, in the Chennai Corporation, the respondents 3 to 12 were upgraded as Assistants from the post of Junior Assistant, on 16.10.1996, pursuant to G.O.Ms.No.154, Municipal Administration and Water Supply Department, dated 03.06.1994. The said Government Order in G.O.Ms.No.154 upgraded 81 Junior Assistants in Coimbatore Corporation as Assistants over a period of three years at the rate of 27 persons per year commencing from 1994-1995. On upgradation as Assistants, they were discharging the duties of Assistant and receiving the pay of Assistants.
16.While so, the Government issued another order in G.O.Ms.No.139, Municipal Administration and Water Supply Department, dated 27.05.1997 relating to re-organisation of administrative set up of all Corporations, except Chennai Corporation. The said Government Order determined the sanctioned strength of each cadre in Coimbatore Corporation.
17.As far as this case is concerned, as per G.O.Ms.No.139, Municipal Administration and Water Supply Department, the sanctioned strength of Assistants in the second respondent Corporation was 27. The details of the fixation of the cadre strength of Assistants and Accountants (which is equivalent to Assistant) as per the aforesaid Government Order is as follows:
12.Assistants and Accountants (Rs.1200-2040) Main Office:
(1)Establishment Section - 2 (2)Bills Section - 2 (Accountants) (3)Council Wing - 1 (4)Revenue Wing - 1 (5)Accounts Wing (in cash)- 3 (Accountants) (6)Engineering - 1 (7)Public Health - 1 11 Ward Offices:
(1)Establishment - 2 (2)Bills - 1 (Accountant) (3)Revenue and Engineering- 1 4 X 4 = 16 + 11 = 27 Posts
18.Further, it is relevant to note that while determining the cadre strength of Assistants, G.O.Ms.No.139 made it clear that the persons, who would be available as surplus, would be kept in supernumerary post and the same shall be abolished after the present incumbents vacate the post. It is also stated that they could be posted in any branch of the Coimbatore. In the Corporation, the posts of Assistants and Accountants are interchangeable. The relevant passage about the supernumerary post is extracted hereunder:
The remaining posts of Assistants and Accountants, after promotion of the existing Assistants and Accountants to higher posts, if available as surplus, may be kept as supernumerary posts and abolished after the present incumbents vacate the posts. They may be posted in any branch of the Corporation where arrears of work will have to be cleared for the time being. Thus, the respondents 3 to 12, who were beyond the cadre strength of 27, were treated as supernumerary Assistants.
19.As stated above, there were upgradation of 81 Junior Assistants as Assistants during 1994-1996 pursuant to G.O.Ms.No.154 that was issued in 1994. But, as on 21.10.2004, there were only 62 Assistants in the Coimbatore Corporation, as others were promoted to higher posts as stated in G.O.Ms.No.139. Therefore, beyond 27 Assistants, others were treated as supernumerary Assistants. The same could be found in the proceedings in Na.Ka.No.24383/2004/MC-1 dated 21.10.2004 of the second respondent, which is the seniority list that contains 62 names of Assistants and the dates from which they were working as Assistants. The respondents 3 to 12 were working as Assistants from 16.10.1996, as per the aforesaid proceedings dated 21.10.2004. All the persons, including the respondents 3 to 12 are shown in the proceeding dated 21.10.2004 as the Assistants and the dates from which they were working as Assistants.
20.Admittedly, the name of the petitioner could not be found in the said seniority list dated 21.10.2004, since at that time, she was serving at Chennai Corporation. In fact, in 2004, the petitioner was not even promoted as Assistant in Chennai Corporation, while the respondents 3 to 12 were promoted as Assistants in 1996 itself, even prior to the petitioner joined service as Typist (which is equivalent to Junior Assistant) in 1999 in Chennai Corporation. The provisional seniority list issued in the proceedings in Na.Ka.No.24383/2004/MC-1 dated 21.10.2004 is extracted hereunder:
t. vz;
bgah;
gjtp cah;t[ bgw;W cjtpahsu; gzpapy; nrh;e;j njjp 1 vk;. yypjh 02.12.1993 2 gp. Uf;kzpak;;khs;
20.02.1995 3 gp/ Uf;kzp 01.03.1995 4 Mu;. bghd;dk;khs;
01.03.1995 5 Mu;. nkhfd re;jpud;
01.03.1995 6 gp. MWKfk;
01.03.1995 7 V.nf. gHdprhkp 01.03.1995 8 vk;. bghd;Ko 01.03.1995 9 o. $hd;gh!;nfh 01.03.1995 10 gp.vr;. ky;ypfh uhzp 01.03.1995 11 vd;. fdfuh$;
01.03.1995 12 nf. khyjp 01.03.1995 13 V. mh;$%dd;
01.03.1995 14 V. nyhfehjd;
01.03.1995 15 vy;. b$are;jpud;
01.03.1995 16 Mu;. b$fehjd;
01.03.1995 17 $p. uh$nfhghy;
01.03.1995 gzpahsh; epakdf; FG jPh;khd vz;.75 kw;Wk; 77 njjp 10.11.1994 kw;Wk; 20.12.1994-d;go ,t;tYtyf Miz vz;. 14878/94/rp.3 ehs; 1.3.95-d;go gjtp cah;t[ mspf;fg;gl;Ls;sJ gzpapy; nrh;e;j ehs; 1.3.1995 18 o. rz;Kfk;
31.05.1996 19 nf. Rg;gpukzpak;
31.05.1996 20 rp.gp. yl;Rkp 31.05.1996 21 Mu;. Rg;gpukzpad;
31.05.1996 22 [gp.rp. tp$ad;
31.05.1996 23 vk;. Jiuuh$;
31.05.1996 24 nf.gp.; ghf;fpayl;Rkp 31.05.1996 25 vd;. eph;kyh 31.05.1996 26 gp. eluh$d;
31.05.1996 27 Mu;. Mde;jd;
31.05.1996 28 $p. kUjhryk;
31.05.1996 29 vk;. mfkJ brhPg;
31.05.1996 30 $p. mfpyhz;nl!;thp 31.05.1996 31 gp. uh$k;khs;
31.05.1996 32 gp. n$hjpkzp 31.05.1996 33 tp. uhn$!;thp 31.05.1996 34 vd;. jpahfuh$d;
31.05.1996 35 vk;. b$arPyp 31.05.1996 36 nf. ehkfphp 31.05.1996 37 nf. ehfg;gd;
31.05.1996 38 rp.gp. jd;uh$;
31.05.1996 39 v. rnuh$pdp 31.05.1996 40 b$. ghyhkzp 31.05.1996 epakdf; FG jPh;khd vz;.1 ehs; 23.5.96 ,t;tYtyf Miz vz;.69904/95/rp.3 ehs; 30.5.96-d;go gjtp cah;t[ mspf;fg;gl;Ls;sJ gzpapy; nrh;e;j ehs; 31.5.96 41 b$. ft[ry;ah 16.10.1996 42 v!;. re;jpufhe;jp 16.10.1996 43 tp. rhtpj;jphp 16.10.1996 44 vd;. kndhfud;
16.10.1996 45 o.Mu.; utp 16.10.1996 46 bre;jpy; uj;jpdk;
16.10.1996 47 o. yl;Rkp gpugh 16.10.1996 48 tp. rutzd;
16.10.1996 49 utpf;Fkhh;
16.10.1996 50 vd;. mz;zhJiu 16.10.1996 51 v!;.tp. yl;Rkzd;
16.10.1996 52 v!;. fnz#;Fkhh;
16.10.1996 53 vk;. ghR 16.10.1996 54 o. uh$khzpf;fk;
16.10.1996 55 gp. md;gurp 16.10.1996 56 o. uj;jpdhk;ghs;
16.10.1996 57 vk;. ,Ujauh$;
16.10.1996 58 tp. yPdh 16.10.1996 59 Mu;. jkpH;nte;jd;
16.10.1996 60 vk;.vk;. fdfuh$;
16.10.1996 61 Mu;. Re;juuh$d;
16.10.1996 62 Mu;. ntYkzp 16.10.1996 epakdf; FG vz;.13 ehs; 9.10.96 ,t;tYtyf Miz vz;.69904/95/rp.3 ehs; 10.10.96-d;go gjtp cah;t[ mspf;fg;gl;Ls;sJ gzpapy; nrh;e;j ehs; 16.10.96
21.That is, when the first respondent issued orders in G.O.No.427, Municipal Administration and Water Supply Department, dated 26.10.2006 transferring the petitioner from Chennai Corporation to Coimbatore Corporation, there was actually no vacancy. But for the reasons best known to the first respondent, the first respondent issued orders in G.O.No.427, Municipal Administration and Water Supply Department, dated 26.10.2006 transferring the petitioner from Chennai Corporation to Coimbatore Corporation.
22.In fact, when the Coimbatore Corporation considered the issue of transfer of the petitioner from Chennai Corporation to Coimbatore Corporation, as an agenda, in its Council meeting held on 31.05.2006, there was no vacancy in the post of Assistant, in the Coimbatore Corporation, as per G.O.Ms.No.139, dated 27.05.1997, since the said G.O.Ms.No.139 determined the cadre strength of Assistants in Coimbatore Corporation as 27 and the remaining serving Assistants were directed to be treated as supernumerary Assistants.
23.The aforesaid narration of facts would make it very clear that the petitioner was able to move the files in fast track, in high speed, as stated above, which was ultimately resulted in passing of G.O.No.427 transferring her from Chennai Corporation to Coimbatore Corporation, without any vacancy in the said post. In fact, G.O.Ms.No.139, referred to above, states that the post occupied by the serving incumbents as Assistants in supernumerary posts shall be abolished as and when those persons vacate the posts on one reason or other. Hence, as on 21.10.2004, there were only 62 Assistants, while 81 persons including the respondents 3 to 12 were upgraded as Assistants during 1994-1996, as per G.O.Ms.No.154.
24.After the petitioner joined in the second respondent Coimbatore Corporation, another seniority list in Na.Ka.No.42237/2006/MC-2 dated 22.12.2006 was issued containing the names of 26 Assistants and 16 upgraded Assistants below them. That is, as a first time, the second respondent had shown a set of persons as promoted Assistants and the other set as upgraded Assistants. The said list dated 22.12.2006 also does not contain the name of the petitioner. While the seniority list dated 21.10.2004 contains the 62 names of Assistants, without making any distinction between the Assistants and the persons who were upgraded as Assistants, pursuant to G.O.Ms.No.154, Municipal Administration and Water Supply Department, dated 03.06.1994, the later proceedings dated 16.10.2006 has shown the list of 26 persons as promoted Assistants and a separate list of 16 persons as upgraded Assistants, below them. Even the said proceeding makes it very clear that the said persons were upgraded as Assistants on 16.10.1996. That is, even ten years before the petitioner joined the second respondent Corporation on 01.12.2006 and in fact even prior to the petitioner joining the service as Typist (Junior Assistant) in 1999 in Chennai Corporation, they were upgraded as Assistants on 16.10.1996.
25.But for the reasons best known, the second respondent issued the final seniority list dated 23.03.2007 of Assistants, containing the names of 27 Assistants and also the list of 16 upgraded Assistants. The name of the petitioner was inserted at Sl.No.27. It is stated that she joined in Coimbatore Corporation as Assistant on 01.12.2006. But the 16 upgraded Assistants were separately shown below her as upgraded Assistants from 16.10.1996. That is, the petitioner was brought above 16 upgraded Assistants and the respondents 3 to 12 are among those 16 upgraded Assistants.
26.In this regard, the seniority list dated 23.03.2007 is extracted hereunder:
cjtpahsh;fspd; gl;oay;
t. vz;01
bgah;
(jpUthsh;fs; / jpUkjp) 02 gzpapy; nrh;e;j ehs;03
Fwpg;g[iu
04. 01 vk;. yypjh 02.12.1993 02 V. nyhfehjd;
01.03.1995 gzpahsh; ep.F.jP.vz;.75 kw;Wk; 77 njjp 10.11.1994 kw;Wk; 20.12.94-d;go ,t;tYtyf Miz vz;. 14878/94/rp.3 ehs; 1.3.95-d;go gjtp cah;t[ mspf;fg;gl;Ls;sJ. gzpapy; nrh;e;j ehs; 01.03.1995 03 gp.rp. tp$ad;
31.05.1996 04 o. Jiuuh$;
31.05.1996 05 nf.gp.; ghf;fpayl;Rkp 31.05.1996 06 gp. eluh$d;
05.06.1996 07 Mu;. Mde;jd;
05.06.1996 08 kUjhryk;
05.06.1996 09 $p. mfpyhz;nl!;thp 05.06.1996 10 gp. uh$k;khs;
05.06.1996 11 tp. uhn$!;thp 05.06.1996 12 vk;. b$arPyp 05.06.1996 13 nf. ehkfphp 05.06.1996 14 nf. ehfg;gd;
05.06.1996 15 rp.gp. jd;uh$;
05.06.1996 16 vk;. rptFkhh;
05.06.1996 17 v. rnuh$pdp 05.06.1996 18 b$. ghyhkzp 05.06.1996 ep.F.jP.vz;.1/23.05.1996 ,t;tYtyf Miz vz;.69904/95/rp.3 ehs; 30.5.96-d;go gjtp cah;t[ mspf;fg;gl;Ls;sJ 19 b$. bfsry;ah 16.10.1996 20 v!;. re;jpufhe;jp 16.10.1996 21 vd;. kndhfud;
16.10.1996 22 o.Mu.; utp 16.10.1996 23 bre;jpy;Fkhh; uj;jpdk;
16.10.1996 24 nj. y&;kp gpugh 16.10.1996 25 tp. rutzd;
16.10.1996 26 nf. utpf;Fkhh;
16.10.1996 27 ah. c#h uhzp 01.12.2006 ep.F.vz;.13 ehs; 9.10.96 ,t;tYtyf Miz vz;.69904/95/rp.3 ehs; 10.10.96-d;go gjtp cah;t[ mspf;fg;gl;Ls;sJ gzpapy; nrh;e;j ehs; 16.10.96 cah;j;jg;gl;l cjtpahsh;fspd; gl;oay;
t. vz;
01bgah;
(jpUthsh;fs; / jpUkjp) 02 gzpapy; nrh;e;j ehs;
03Fwpg;g[iu 04 01 nkhfd Re;jhp 16.10.1996 epakdf;FG jPh;khd vz;.16/ ehs; 29.10.04d;go gjtp cah;t[ mspf;fg;gl;Ls;sJ 02 vd;. mz;zhJiu 16.10.1996 03 v!;.tp. yl;Rkzd;
16.10.1996 04 v!;. fnz#;Fkhh;
16.10.1996 05 vk;. ghR 16.10.1996 06 o. uh$khzpf;fk;
16.10.1996 ep.F.jP.vz;.13/ ehs; 09.10.96-d;go cah;j;jg;gl;l cjtpahsh; gjtp cah;t[ tH';fg;gl;Ls;sJ 07 nf. khzpf;fk;
10.10.1996 08 v!;.Mh;. g[z;zpatjp 10.10.1996 ep.F.jP.vz;.16/29.10.04d;go cah;j;jg;gl;l cjtpahsh; gjtp cah;t[ tH';fg;gl;Ls;sJ 09 md;gurp 16.10.1996 10 o. uj;jpdhk;ghs;
16.10.1996 11 v!;. ,Ujauh$;
16.10.1996 12 tp. yPdh 16.10.1996 13 Mu;. jkpH;nte;jd;
16.10.1996 14 vk;.vk;. fdfuh$;
16.10.1996 15 Mu;. Re;juuh$d;
16.10.1996 16 Mu;. ntYkzp 16.10.1996 ep.F.jP.vz;.13/ ehs; 19.10.96-d;go cah;j;jg;gl;l cjtpahsh; gjtp cah;t[ tH';fg;gl;Ls;sJ That is, the aforesaid seniority list dated 23.03.2007 shows the petitioner was inserted above the serving Assistants, who were upgraded as Assistants on 16.10.1996 from Junior Assistants pursuant to G.O.Ms.No.154. Even the said seniority list itself makes it very clear that while the upgraded Assistants were serving as Assistants from 16.10.1996, the petitioner joined as Assistant in Coimbatore Corporation in 2006, that is, after ten years. But for the reasons best known to the second respondent, she was shown above the respondents 3 to 12 and the same is obviously contrary to her representation seeking transfer from Chennai Corporation to Coimbatore Corporation and also the resolution passed by the Council of Chennai Corporation as well as the Council of Coimbatore Corporation, besides G.O.No.427, Municipal Administration and Water Supply Department, dated 26.10.2006 passed by the first respondent.
27.Though the petitioner agreed to get placed at the bottom in the cadre of Assistant on transfer to Coimbatore Corporation and the Council of the Chennai Corporation passed a similar resolution to that effect and the first respondent also passed orders in G.O.No.427 transferring the petitioner from Chennai Corporation to Coimbatore Corporation stating that the petitioner would be placed at the bottom of the seniority list of Assistants, she was placed above the serving Assistants in the seniority list dated 23.03.2007.
28.The relevant passage in G.O.No.427 relating to the placement of petitioner as the last person in the seniority list of Assistants in Coimbatore Corporation is extracted hereunder:
1) ,e;j cjtpahsh; khWjYf;Fg; gpwF khw;wg;gl;l khefuhl;rpapy; mtuJ gjtpf;fhd gzp \g;g[g; gl;oaypy; filrpapy; ,lk; bgWthh;.
29.In fact, even before the petitioner was promoted as Assistant in the year 2005 in Chennai Corporation, the respondents 3 to 12 were upgraded as Assistants in the year 1996, about ten years prior to the promotion of the petitioner as Assistant in Chennai Corporation and even prior to the joining of the petitioner in service as Typist (Junior Assistant) in 1999 in Chennai Corporation. Thus, in any case, the petitioner cannot be placed above the respondents 3 to 12 in the post of Assistant.
30.The seniority list dated 23.03.2007 was reproduced in another proceeding in Na.Ka.No.14849/2008/MC-2 dated 06.12.2008. The only difference between the proceedings dated 23.03.2007 and the proceedings dated 06.12.2008 is that the earlier proceeding contained two sets of employees, one showing the list of Assistants and the other showing the list of upgraded Assistants, the later proceeding has contained the running list of 29 Assistants, wherein the petitioner was shown at Sl.No.14 and the respondents 3 to 12 were shown below the petitioner.
31.Even the aforesaid proceeding dated 06.12.2008 clearly states that the petitioner joined as Assistant on 01.12.2006, while the respondents 3 to 12 were promoted as Assistants on 16.10.1996 before the petitioner joined in service as Typist (Junior Assistant) in 1999 in Chennai Corporation and still, the petitioner was shown above the respondents 3 to 12.
32.Based on such fixation of seniority, over the serving Assistants, who were serving as Assistants for more than ten years, when the petitioner joined in second respondent Corporation, she was promoted as Superintendent by an order dated 02.06.2009 overlooking her seniors. That is, while the respondents 3 to 12 were languishing in the post of Assistant from 1996, the petitioner who came to Coimbatore Corporation in 2006 and she became Assistant only in 2005 even in Chennai Corporation, got promotion as Superintendent earlier, vide proceeding dated 02.06.2009.
33.In the meantime, after the promotion of the petitioner as Superintendent, the respondents 3 to 12 were also promoted as Superintendent.
34.The second respondent issued proceeding in Na.Ka.No.2/2012/MC-2 dated 09.07.2012 relating to the seniority list of the Superintendent. The said proceeding dated 09.07.2012 has shown the petitioner at Sl.No.1 in the seniority list of Superintendent and the respondents 3 to 12 were shown below her. In total, the said list contains 13 names of Superintendents. The date of promotion of the petitioner as Superintendent was shown as 03.06.2009 and the date of promotion of 12 others are on various dates, after one year of the promotion of the petitioner, though they were seniors to the petitioner.
35.In fact, the proceeding dated 09.07.2012 relating to seniority list of Superintendent contains the objection made by the third respondent for treating the petitioner as senior person and promoting her as Superintendent prior to them. But the objection was rejected in the same proceeding stating that the petitioner was appointed in the 27th vacancy in the post of Assistant and therefore, she is senior to other upgraded Assistants.
36.In these circumstances, the petitioner was further promoted as Administrative Officer pursuant to the resolution of the second respondent Council dated 29.11.2012.
37.An appeal dated 30.11.2012 was preferred by the third respondent to the first respondent Government through the second respondent Corporation. The second respondent Corporation forwarded the same to the first respondent Government through the Commissioner of Municipal Administration and Water Supply Department, Chennai. The same can be found in the proceeding dated 21.12.2012 of the second respondent.
38.While so, the Commissioner of Municipal Administration sent a letter in Na.Ka.No.52020/2012/MC-1 dated 31.01.2013 to the second respondent seeking to give its remarks on the appeal dated 30.11.2012 preferred by the third respondent, so as to be forwarded to the Government.
39.When the second respondent received the aforesaid letter dated 31.01.2013 of the Commissioner of Municipal Administration seeking remarks on the appeal of the third respondent against the seniority list of Superintendent and seeking to place the petitioner below all the upgraded Assistants, the second respondent decided to place the issue before the Council meeting to be held on 14.11.2013 for consideration.
40.The Council of the second respondent Corporation by its resolution no.277 dated 14.11.2013 considered the entire issue and sought to cancel the promotion of the petitioner as Administrative Officer and also to revise the seniority list in the post of Assistant as well as in the post of Superintendent.
41.(i)The aforesaid resolution dated 14.11.2013 states that the seniority list of Assistant in the proceeding in Na.Ka.No.24383/2004/MC-1 dated 21.10.2004 contains the list of 62 persons.
(ii)The petitioner joined service as Typist in Chennai Corporation on 20.10.1999 and promoted as Assistant on 04.03.2005. She was transferred to the Coimbatore Corporation by G.O.No.427, Municipal Administration and Water Supply Department, dated 26.10.2006. She joined on 01.12.2006 as Assistant in the Coimbatore Corporation.
(iii)While the seniority list of Assistants was a combined one containing the names of promoted Assistants as well as the names of upgraded Assistants, as per the seniority list dated 21.10.2004, as stated above, the same was split into two, in the proceeding dated 22.12.2006, wherein 26 persons were shown as Assistants and 16 others were shown as upgraded Assistants separately below the Assistants. The provisional seniority list dated 22.12.2006 contains the names of 42 persons in total showing 26 as Assistant and 16 as upgraded Assistants and the 42nd person is R.Velumani. The name of the petitioner does not find place in the said list dated 22.12.2006.
(iv)The petitioner should have been placed at Sl.No.43, that is below R.Velumani.
(v)But instead of placing the petitioner at Sl.No.43, she was placed at Sl.No.27, before those 16 upgraded Assistants in the subsequent proceeding dated 23.03.2007 relating to seniority list of Assistants.
(vi)The final seniority list dated 06.12.2008 contains the names of 29 persons as Assistants. As per the aforesaid list dated 06.12.2008, the first person joined on 05.06.1996 as Assistant and the 29th person viz. R.Velumani joined on 16.10.1996 as Assistant and the petitioner, who joined on 01.12.2006, after ten years is shown at Sl.No.14.
(vii)The resolution of the Coimbatore Corporation Council sought to rectify the said mistake by placing the petitioner at Sl.No.29 as the last person. The earlier seniority list dated 06.12.2008 and the corrected seniority list is part of the resolution.
(viii)The following passage in the resolution dated 14.11.2013 makes it clear that the second respondent Corporation has corrected the injustice done to the respondents 3 to 12.
Mizahsh; mth;fspd; Fwpg;ghiz e.f.vz;.24383/2004/vk;.rp.1/ ehs;. 21.10.2004y; btspaplg;gl;l cjtpahsUf;fhd gzp\g;g[ gl;oaypd;go 62 egh;fs; ,lk; bgw;W ,Ue;jdh;. jpUkjp. c#huhzp/ cjtpahshpd; gzpg;gjpntL kw;Wk; xUtHp khWjy; bgw;W nfhak;g[j;Jph; khefuhl;rpg; gzpapy; nrh;e;j nfhg;gpid ghprPypj;jjpy;/ jdpah; brd;id khefuhl;rp/ kpd;Jiwapy; 20.10.1999 md;W jhd; jl;lr;ruhf gzpapy; nrh;e;J 04.03.2005-y; cjtpahsuhf gjtp cah;t[ bgw;Ws;shh;. nkYk;/ murhiz vz;.(g) 427/ efuhl;rp eph;thfk; kw;Wk; FoePh; tH';fy; (khe4) Jiw ehs; 26.10.2006-d;go jpUkjp. ah.c#huhzp xUtHp khWjy; \yk; nfhak;g[j;Jph; khefuhl;rpf;F cjtpahsh; gzpaplj;jpw;F gzp\g;g[ gl;oaypy; filrpahf itf;fg;gLthh; vd;w epge;jida[ld; 01.12.2006 md;W gzpapy; nru mDkjpf;fg;gl;lhh;. mjd;gpd; 2004-k; Mz;L tiu xd;whf btspaplg;gl;l cjtpahsh; gzp\g;g[g; gl;oay; ,uz;lhfg; gphpf;fg;gl;L/ 22.12.2006-y; btspaplg;gl;l cjtpahsh; gzp\g;g[g; gl;oaypy; cjtpahsh;fs; 26 egh;fs; vdt[k; cah;j;jg;gl;l cjtpahsh; 16 egh;fs; Mf bkhj;jk; 42 cjtpahsh;fSf;F gzp\g;g[g; gl;oay; btspaplg;gl;lJ. 16.10.1996 md;W/ cah;j;jg;gl;l cjtpahsuhf gjtp cah;t[ bgw;wth;fspy; 27 ngh; cjtpahsh; vdt[k; 16 ngh; cah;j;g;gl;l cjtpahsh; vdt[k; gzp\g;g[g; gl;oay; gphpf;fg;gl;L/ ,Wjp gzp\g;g[g; gl;oaypy; thpir vz;.43-f;Fg; gjpyhf thpir vz;.27-y; jpUkjp. ah. c#huhzp/ cjtpahsh; bgah;/ mth; bgw;W te;j murhizf;Fg; g[wk;ghf btspaplg;gl;Ls;sJ.
cjtpahsh; kw;Wk; cah;j;jg;gl;l cjtpahsh; Mfpa ,U gzpapl';fSk; xd;Wjhd;. vdnt/ brd;id khefuhl;rpapypUe;J xUtHp khWjypy; nfhak;g[j;Jph; khefuhl;rpapy; gzpapy; nrh;e;j jpUkjp. ah.c#huhzp/ cjtpahsiu gzp\g;g[ gl;oaypy; murhizf;fpz';f ,t;tYtyf Fwpg;ghiz e.f.vz;.42237/2006/vk;/rp.2/ ehs; 22.12.2006y; fhDk; gzp\g;g[g; gl;oaypy; bkhj;jk; cs;s 42 cjtpahsh;fspy; 42tJ cjtpahsuhf 16.10.1996y; gzpapy; nrh;e;j jpU.Mh;.ntYkzp vd;gtUf;F gpd;dhy; ,k;khefuhl;rpapy; 01.12.2006y; gzpapy; nrh;e;j jpUkjp. ah.c#huhzpapd; bgah; nrh;f;fg;gl;oUf;f ntz;Lk;. vdnt ,;t;tYtyf Fwpg;ghiz e.f.vz;.14849/2008/ vk;.rp.2/ ehs; 06.12.2008y; jtwhf btspaplg;gl;l cjtpahsh; ,Wjp gzp\g;g[g; gl;oay; jpUj;jpaikf;fg;gl ntz;Lk;. 27tJ bgauhf jpUkjp. ah.c#huhzp/ murhizf;F g[wk;ghf nrh;f;fg;gl;oUg;gij uj;J bra;a ntz;Lk;.
(ix)After coming to such conclusion, the second respondent Corporation has revised the seniority list dated 06.12.2008 and the revised seniority list is also a part of the resolution and the same is extracted hereunder:
t vz;
06.12.2008y; Vw;fdnt btspaplg;gl;l cjtpahsh; gzp\g;g[g; gl;oay;
jpUj;jk; bra;ag;gl ntz;oaJ 1 gp. uh$k;khs;
05.06.1996 gp. uh$k;khs;
05.06.1996 2 nf. ehfg;gd;
05.06.1996 nf. ehfg;gd;
05.06.1996 3 vk;. rptFkhh;
05.06.1996 vk;. rptFkhh;
05.06.1996 4 V. rnuh$pdp 05.06.1996 V. rnuh$pdp 05.06.1996 5 b$. ghyhkzp 05.06.1996 b$. ghyhkzp 05.06.1996 6 b$. bfsry;ah 16.10.1996 b$. bfsry;ah 16.10.1996 7 v!;. re;jpufhe;jp 16.10.1996 v!;. re;jpufhe;jp 16.10.1996 8 vd;. kndhfud;
16.10.1996 vd;. kndhfud;
16.10.1996 9 o.Mu.; utp 16.10.1996 o.Mu.; utp 16.10.1996 10 bre;jpy;Fkhh; uj;jpdk;
16.10.1996 bre;jpy;Fkhh; uj;jpdk;
16.10.1996 11 nj. yl;Rkp gpugh 16.10.1996 nj. yl;Rkp gpugh 16.10.1996 12 tp. rutzd;
16.10.1996 tp. rutzd;
16.10.1996 13 nf. utpf;Fkhh;
16.10.1996 nf. utpf;Fkhh;
16.10.1996 14 ah. c#h uhzp 01.12.2006 nkhfd Re;jhp 16.10.2006 15 nkhfd Re;jhp 16.10.2006 vd;.mz;zhJiu 16.10.2006 16 vd;.mz;zhJiu 16.10.2006 v!;.tp. yl;Rkzd;
16.10.1996 17 v!;.tp. yl;Rkzd;
16.10.1996 v!;. fnz#;Fkhh;
16.10.1996 18 v!;. fnz#;Fkhh;
16.10.1996 vk;. ghR 16.10.1996 19 vk;. ghR 16.10.1996 o. uh$khzpf;fk;
16.10.1996 20 o. uh$khzpf;fk;
16.10.1996 nf. khzpf;fk;
16.10.1996 21 nf. khzpf;fk;
16.10.1996 v!;.Mh;. g[z;zpatjp 16.10.1996 22 v!;.Mh;. g[z;zpatjp 16.10.1996 g. md;gurp 16.10.1996 23 g. md;gurp 16.10.1996 uj;jpdhk;ghs;
16.10.1996 24 uj;jpdhk;ghs;
16.10.1996 v!;. ,Ujauh$h 16.10.1996 25 v!;. ,Ujauh$h 16.10.1996 tp. yPdh 16.10.1996 26 tp. yPdh 16.10.1996 Mu;. jkpH;nte;jd;
16.10.1996 27 Mu;. jkpH;nte;jd;
16.10.1996 vk;.vk;. fdfuh$;
16.10.1996 29 vk;.vk;. fdfuh$;
16.10.1996 Mu;. ntYkzp 16.10.1996 29 Mu;. ntYkzp 16.10.1996 ah. c#h uhzp 01.12.2006
42.There are 29 Assistants in the revised seniority list dated 06.12.2008 of Assistants as per the resolution of the Coimbatore Corporation Council dated 14.11.2013. The petitioner, who joined on 01.12.2006 was placed at Sl.No.29 instead of at Sl.No.14, while the persons who joined on 05.06.1996 and 16.10.1996 as Assistants were placed at Sl.Nos.1 to 28.
43.(i)Based on the aforesaid revision of seniority of Assistants, the promotion given to the petitioner on 03.06.2009 as Superintendent was cancelled and she was promoted as Superintendent on 27.06.2011.
(ii)Accordingly, the revised seniority list of Superintendent was made and shown in the resolution.
(iii)The earlier seniority list dated 01.04.2012 / 09.07.2012 of Superintendent contains 13 names of Superintendents, wherein the petitioner was shown at Sl.No.1 and all others were shown as 2 to 13.
(iv)The same was revised and the petitioner is shown at Sl.No.11 instead of at Sl.No.1.
(v)The revised seniority list of Superintendents as found in the resolution is extracted hereunder:
jtwhd gzp\g;g[ gl;oaypd; mog;gilapy; jpUkjp. ah. c#huhzp/ cjtpahsUf;F 03.06.2009Mk; njjpad;W tH';fg;gl;l fz;fhzpg;ghsh; gjtp cah;it uj;J bra;J fz;fhzpg;ghsh; gjtp cah;t[ njjpfs; fPH;fz;lthW jpUj;jpaikf;fg;gl;L 01.04.2012y; btspaplg;gl;l fz;fhzpg;ghsh;/cjtp tUtha; mYtyh; gzp\g;g[g; gl;oay; jpUj;jpaikf;fg;gl ntz;Lk;. t vz;
01.04.2012y; Vw;fdnt btspaplg;gl;l fz;fhzpg;ghsh; / cjtp tUtha; mYtyh; gzp\g;g[g; gl;oaypd;go gjtp cah;t[ tH';fg;gl;l ehs;
fz;fhzpg;ghsh; gjtp cah;t[ tH';fg;gl ntz;oa ehs;
1ah.c#huhzp fz;fhzpg;ghsh;
03.06.2009 nkhfd Re;jhp fz;fhzpg;ghsh;
03.06.2009 2 nkhfd Re;jhp fz;fhzpg;ghsh;
24.07.2010 v!;.tp. yl;Rkzd;
fz;fhzpg;ghsh;
24.07.2010 3 v!;.tp. yl;Rkzd;
fz;fhzpg;ghsh;
24.07.2010 v!;. fnz#;Fkhh;
cjtp tUtha; mYtyh;
24.07.2010 4 v!;. fnz#;Fkhh;
cjtp tUtha; mYtyh;
24.07.2010 o. uh$khzpf;fk;
cjtp tUtha; mYtyh;
24.07.2010 5 o. uh$khzpf;fk;
cjtp tUtha; mYtyh;
24.07.2010 nf. khzpf;fk;
fz;fhzpg;ghsh;
24.07.2010 6 nf. khzpf;fk;
fz;fhzpg;ghsh;
24.07.2010 g. md;gurp fz;fhzpg;ghsh;
24.07.2010 7 g. md;gurp fz;fhzpg;ghsh;
24.07.2010 tp. yPdh fz;fhzpg;ghsh;
24.07.2010 8 tp. yPdh fz;fhzpg;ghsh;
01.03.2011 Mu;. jkpH;nte;jd fz;fhzpg;ghsh;;
01.03.2011 9 Mu;. jkpH;nte;jd fz;fhzpg;ghsh;;
01.03.2011 vd;.mz;zhJiu cjtp tUtha; mYtyh;
01.03.2011 10 vd;.mz;zhJiu cjtp tUtha; mYtyh;
27.06.2011 vk;.vk;. fdfuh$;
cjtp tUtha; mYtyh;
27.06.2011 11 vk;.vk;. fdfuh$;
cjtp tUtha; mYtyh;
27.06.2011 ah.c#huhzp fz;fhzpg;ghsh;
27.06.2011 12 vk;. Eph; KfkJ fz;fhzpg;ghsh;
19.08.2011 vk;. Eph; KfkJ fz;fhzpg;ghsh;
19.08.2011 13 v!;.gp. bre;jpy;
fz;fhzpg;ghsh;
01.03.2012 v!;.gp. bre;jpy;
fz;fhzpg;ghsh;
01.03.2012
44.Based on the said revision of seniority list dated 01.04.2012 of Superintendents, promotion given to petitioner as Administrative Officer on 01.12.2013 was cancelled and she was reverted as Superintendent. The relevant portion from the agenda of the resolution in this regard is extracted hereunder:
nkw;fz;lthW 01.04.2012w;fhd fz;fhzpg;ghsh;/ cjtp tUtha; mYtyh; gzp\g;g[g; gl;oaypy; thpir vz;.1y; cs;s jpUkjp. ah. c#huhzpapd; bgaiu thpir vz;.11y; jpU. vk;.vk;. fdfuh$;/ cjtp tUtha; mYtyUf;F mLj;jjhf ,lk; bgwr; bra;J mjd; mog;gilapy; 01.04.2012w;fhd fz;fhzpg;ghsh;/cjtp tUtha; mYtyh; ,Wjp gzp\g;g[g; gl;oaiy jahhpj;J btspapl ntz;o cs;sjhy;/ nkw;go jtwhd gzp\g;g[g; gl;oaypd;go fz;fhzpg;ghsh; gzpapy; ,isnahuhd jpUkjp. ah. c#huhzp/ fz;fhzpg;ghsUf;F 01.02.2013-k; njjp tH';fg;gl;l eph;thf mYtyh; gjtp cah;it uj;J bra;J chpa ,lj;jpy; fz;fhzpg;ghsuhf gjtp ,wf;fk; bra;a khkd;wj;jpd; xg;g[jYf;F rkh;g;gpf;fg;gLfpwJ. mYtyff;Fwpg;g[ :: mDkjpf;fyhk;.
45.The aforesaid facts makes it very clear that there is no infirmity in the order of the second respondent. But as rightly contended by the learned counsel for the second respondent, without challenging the resolution dated 14.11.2013, the petitioner cannot seek for issuance of mandamus, based on the agenda dated 12.11.2013, when the resolution was passed on 14.11.2013 and the writ petition was filed subsequently on 18.11.2013.
46.(i)The petitioner erroneously proceeded as if the seniority of Assistants fixed in 2006 was sought to be cancelled in 2013 after 7 years.
(ii)The petitioner came to Coimbatore Corporation only on 01.12.2006.
(iii)The final seniority list of Assistants was made on 06.12.2008. Hence, the petitioner is not correct in stating in the prayer in the writ petition that her seniority as fixed in 2006 was altered, while she joined only on 01.12.2006.
47.Further, while questioning the agenda dated 12.11.2013 that was placed before the Coimbatore Corporation Council, the petitioner has stated that the same is contrary to G.O.No.427, Municipal Administration and Water Supply Department, dated 26.10.2006. But, it is not so. G.O.No.427 makes it clear that the petitioner shall be placed at the bottom of the seniority list of Assistants and the relevant portion of G.O.No.427 is extracted in para 25 of this judgment.
48.The learned counsel for the petitioner has relied on the following judgments in support of his submissions:
(i)Judgment of the Supreme Court in P.S.SADASIVASWAMY VS. STATE OF TAMIL NADU [1975 (1) SCC 152]
(ii)Judgment of the Supreme Court in MALCOM LAWRENCE CECIL D'SOUZA VS. UNION OF INDIA AND OTHERS [1976 (1) SCC 599]
(iii)Judgment of the Supreme Court in KANDLA PORT VS. HARGOVIND JASRAJ [2013 (3) SCC 182]
(iv)Judgment of the Supreme Court in STATE OF UTTARANCHAL AND ANOTHER VS. SHIV CHARAN SINGH BHANDARI AND OTHERS [2013 (12) SCC 179]
(v)Judgment of the Supreme Court in CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD AND OTHERS VS. T.T.MURALI BABU [2014 (4) SCC 108]
49.The learned counsel for the second respondent has relied on the following judgments in support of his contention:
(i)Judgment of the Supreme Court in UNION OF INDIA AND ANOTHER VS. NARENDRA SINGH [2008 (2) SCC 750]
(ii)Division Bench judgment of this Court in S.VALLUVAN VS. TAMIL NADU CIVIL SUPPLIES CORPORATION REP. BY ITS MANAGING DIRECTOR, CHENNAI AND ANOTHER [2013 (6) MLJ 753].
50.(i)In the Supreme Court judgment relied on by the learned counsel for the petitioner in P.S.SADASIVASWAMY's case (cited supra), the appellant therein entered into service as Junior Engineer in the Highways Department of the then Province of Madras on 21.08.1946. He was promoted as Assistant Engineer on 12.03.1951. In 1955, he was selected by the State Public Service Commission as an Assistant Engineer along with respondents 2 to 4 therein and was placed above them in rank.
(ii)While so, in 1957, the second respondent was promoted as Divisional Engineer. Thereafter, the respondents 2 to 4 were promoted as Assistant Engineers, over the head of the appellant.
(iii)The appellant filed writ petition in 1971, after 14 years, questioning the promotion given to the second respondent as Divisional Engineer in 1957.
(iv)In these circumstances, the Supreme Court held that the appellant should have questioned the same in 1957 itself, while the second respondent was promoted as Divisional Engineer. The Supreme Court further held that the appellant had a second opportunity when the respondents 2 to 4 were subsequently promoted as Divisional Engineers over the head of the appellant. But he failed to question the same. The Supreme Court also held that the appellant had a third opportunity when the respondents 2 to 4 were promoted as Superintending Engineers over the head of the appellant. In the said circumstances, the Supreme Court dismissed the appeal on the ground of inordinate delay.
In the present case on hand, the petitioner was promoted as Superintendent on 02.06.2009. He was further promoted to the post of Administrative Officer on 01.02.2013. The second respondent Council itself rectified the mistake on 14.11.2013 by a proper resolution. However, the said resolution was not put to challenge by the petitioner. In these circumstances, the judgment of the Supreme Court in P.S.SADASIVASWAMY's case (cited supra) finding fault with the appellant therein that he approached the Court after 14 years, would have no application to the present case on hand.
51.In the Supreme Court judgment relied on by the learned counsel for the petitioner in MALCOM LAWRENCE CECIL D'SOUZA's case (cited supra) the petitioner therein questioned the seniority list of Assistant Commissioner of Income-tax alleging that the respondents 4 to 26 therein were shown above him. The Supreme Court held that the seniority list was in accordance with the 1952 Seniority Rules issued by the Ministry of Home Affairs and as per the judgment of the Supreme Court in UNION OF INDIA VS. VASANT JAYARAM KARNIK [1970 (3) SCC 658]. The decision of the Supreme Court was based on merits. Further, after holding on merit, the Supreme Court held that the petitioner therein cannot question the seniority that was determined in 1956, after 14 years, in 1971.
In the present case on hand, the mistake was rectified by the second respondent Council, that too, in a shorter period. Hence, I am of the view that the petitioner cannot have any grievance. Therefore, the aforesaid judgment is of no use to the present case on hand.
52.In the Supreme Court judgment relied on by the learned counsel for the petitioner in KANDLA PORT VS. HARGOVIND JASRAJ [2013 (3) SCC 182] is nothing to do with the service jurisprudence. The matter arose out of a property dispute. Hence, I am of the view that the said judgment can have no application to the present case on hand.
53.(i)In the Supreme Court judgment relied on by the learned counsel for the petitioner in STATE OF UTTARANCHAL's case (cited supra) the respondents therein were appointed in Group III Posts in Subordinate Agricultural Services (SAS) in the Department of Agriculture in the undivided State of Uttar Pradesh during 1974 and 1975. Admittedly, they were seniors to one Madhav Singh Tadagi. But the said Madhav Singh Tadagi, was given adhoc promotion to Group II post on 15.11.1983. But the respondents and the said Madhav Singh Tadagi were regularly promoted in 1989.
(ii)In the year 2000, the State of Uttaranchal was created. The respondents as well as the said Madhav Singh Tadagi were allocated to the State of Uttarkhand. In the year 2013, after 20 years, the respondents challenged the adhoc promotion given to Madhav Singh Tadagi in 1983, before the Public Services Tribunal of Uttarkhand at Dehradun and sought direction to fix their salary in the promotional post from the date on which their junior was given promotion.
(iii)The respondents therein filed their case in Claim Petition No.154 of 2003 after twenty years. The Tribunal allowed their claim and directed to grant notional promotional benefits from 15.11.1983 as they were already promoted in 1989.
(iv)The writ petition preferred by the State against the order of the Tribunal was dismissed. Subsequently, the State filed S.L.P.
(v)During the pendency of SLP, the adhoc promotion given to Madhav Singh Tadagi was cancelled. The State contended that the respondents did not challenge the adhoc promotion given to their junior in 1983, till 2003, for 20 years.
(vi)In those circumstances, knocking the doors of the Tribunal, after twenty years, questioning the adhoc promotion was held to be bad. In the said judgment, the adhoc promotion given to the junior was also cancelled.
In the present case on hand, the mistake committed in the seniority list dated 06.12.2008 of Assistant and the seniority list dated 06.12.2012 of Superintendent was rectified on 14.11.2013 by way of proper resolution by Coimbatore Corporation. Hence, the said judgment is of no use to the present case on hand.
54.(i)In the Supreme Court judgment relied on by the learned counsel for the petitioner in CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD's case (cited supra), the issue is relating to questioning the order of dismissal. A learned single Judge as well as a Division Bench of this Court interfered with the dismissal, without taking into account the merits of the case.
(ii)On appeal, the Supreme Court has held in para 10 of its judgment that there has been no advertence with regard to the issue whether the charges levelled against the respondent employee had been proved or not. The Supreme Court held that the High Court was not correct in holding that the punishment was too harsh and disproportionate to the charges. The Supreme Court also held that there was habitual absenteeism on the part of the respondent employee. He absented for a long period. He did not even submit his explanation. The Enquiry Officer held that the charges were proved. The Disciplinary Authority dismissed him from service. The Supreme Court held that those facts were not taken note of by the High Court besides the respondent therein filed writ petition questioning the dismissal order after four years.
(iii)Apart from holding so on merits, the Supreme Court also held that the writ petition was filed questioning the dismissal by invoking its extraordinary jurisdiction after four years.
Hence, in my view, the said judgment can have no application to the facts of this case, particularly the issue therein was dismissal of an employee and not the determination of seniority.
55.(i)In the Supreme Court judgment relied on by the learned counsel for the second respondent in UNION OF INDIA AND ANOTHER VS. NARENDRA SINGH [2008 (2) SCC 750], the respondent therein was mistakenly promoted as Senior Accountant (Functional) and the mistake was noticed later and a show cause notice was also issued to the respondent.
(ii)After receipt of the reply from the respondent therein, the Principal Accountant General passed an order dated 29.03.1994 cancelled the promotion as it was against the statutory rules.
(iii)The cancellation of promotion was challenged by the respondent therein in O.A.No.275 of 1994 before the Central Administrative Tribunal. On 12.03.1996 the said Original Application was allowed and the Central Administrative Tribunal directed the authorities to reconsider the case of the respondent therein.
(iv)Pursuant to the order of the Tribunal, the appellant therein considered the case of the respondent and again rejected his prayer by an order dated 24.06.1996 and his promotion was cancelled.
(v)Again, the respondent therein approached the Central Administrative Tribunal and this time also, the Tribunal allowed his application and the same was confirmed by the High Court.
(vi)The appellant therein took up the matter before the Supreme Court. The matter was listed before the Supreme Court on 05.12.2007 while the respondent therein was to retire on 31.12.2007. The Supreme Court held that the Tribunal as well as the High Court were not correct in interfering with the order of the appellant therein cancelling the promotion by rectifying the mistake, particularly when the Department itself noticed that the promotion was mistakenly given, contrary to the statutory rules.
(vii)However, since the respondent therein continued in the post of Senior Accountant and he was to retire on 31.12.2007, the Supreme Court partly allowed the appeal on 05.12.2007 by holding that the respondent shall be allowed to continue in the post of Senior Accountant (Functional) till he reaches the age of superannuation on 31.12.2007 and the salary already paid to him in that capacity shall not be recovered and his retiral benefits shall be fixed not as Senior Accountant (Functional) but as Accountant only.
In my view, the aforesaid judgment squarely applies to the facts and circumstances of this case.
56.(i)In the Division Bench judgment relied on by the learned counsel for the second respondent in S.Valluvan's case (cited supra), the appellant therein was the writ petitioner. The second respondent in the writ appeal was appointed on 29.04.1980 as Trainee Shift Engineer and admittedly, he was senior to the appellant. Unfortunately, the second respondent therein met with a serious accident during the course of employment on 16.05.1980 and he lost half of his right foot and five toes. He was admitted in a hospital for treatment pursuant to the said accident and he was granted leave on loss of pay for those days and he was absent for a long period in view of the accident. Since the leave period was treated as loss of pay, the second respondent therein was not regularised in service, within two years from the date of his appointment.
(ii)Taking into account the said circumstances, the appellant therein was placed above the second respondent, though the second respondent was senior to the appellant. A seniority list was published on 23.04.1990 wherein the second respondent was ranked below the appellant.
(iii)Subsequently, the second respondent was promoted as Assistant Engineer with effect from 09.01.2006.
(iv)While so, by a proceedings dated 03.01.2009, the absence of the second respondent during the accident and the treatment period was regularised as Special Disability Leave without monetary benefits. It was also stated that the same would be counted for promotional benefits.
(v)Consequently, by a subsequent proceedings dated 30.05.2009, the first respondent revised the seniority of the second respondent and included his name in the panel of Manager (Engineering) for the year 2006 on par with his immediate junior with retrospective effect.
(vi)The appellant filed writ petition questioning the aforesaid proceedings dated 03.01.2009 and 30.05.2009 of the first respondent. A learned single Judge of this Court dismissed the writ petition stating that the proceedings dated 03.01.2009 and 30.05.2009 of the first respondent were nothing but rectification of mistake.
(vii)Against the order in the writ petition, writ appeal was filed and the same was ultimately dismissed by a Division Bench of this Court holding that as a model employer, the first respondent therein correctly rectified the error committed earlier and therefore, whenever a rectification of mistake is made, the same cannot be found fault with citing delay.
However, in the present case on hand, even there is no such delay in rectifying the mistake committed earlier.
57.Further, the writ petition, questioning the agenda dated 12.11.2013 that was placed before the second respondent, is not maintainable, particularly when a resolution was passed on 14.11.2013 considering the agenda, rectifying the mistake in the seniority list of Assistants and Superintendents and thereby cancelling the promotion given to the petitioner as Administrative Officer.
58.In view of my aforesaid conclusions, the petitioner cannot question the action of the second respondent, when it was to rectify the mistake committed, as the petitioner was mistakenly placed above the respondents 3 to 12, contrary to G.O.No.427, Municipal Administration and Water Supply Department, dated 26.10.2006.
59.For all the aforesaid reasons, the writ petition deserves to be dismissed and accordingly, the same stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
05 / 11 / 2014 Index : Yes Internet : Yes Note : Issue order copy on 06.11.2014 TK To
1.The Secretary to Government Government of Tamil Nadu Department of Municipal Administration and Water Supplies Secretariat, Chennai 600 009.
2.The Commissioner Coimbatore Corporation Coimbatore 1.
D.HARIPARANTHAMAN, J.
TK PRE-DELIVERY ORDER MADE IN W.P.NO.31291 OF 2013 05 / 11 / 2014