Madras High Court
S.Kaleel Raguman vs The Commissioner on 17 December, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.18847 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 12.12.2024
ORDER PRONOUNCED ON : 17.12.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.18847 of 2024
and WMP(MD).Nos.15942 & 15944 of 2024
S.Kaleel Raguman ....Petitioner
Vs
1.The Commissioner
Employment and Training Department
Chennai
2.The Deputy Director (Administration)
Employment and Training Department
Training Wing
Chennai
3.K.Karpagam
Assistant
Government I.T.I
Sattur, Virudhunagar District ....Respondents
Prayer : This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus calling for the records pertaining to
the impugned order passed by the first respondent in Se.Mu.Aanai
No.PaA2/39460/2022 dated 30.07.2024 and quash the same in so far as
placing the third respondent in Serial No.61 is concerned, and direct the 1st
respondent to promote the petitioner as Manager/Superintendent by placing
the petitioner in the place of the 3rd respondent.
https://www.mhc.tn.gov.in/judis
1/12
W.P(MD).No.18847 of 2024
For Petitioner : Mr.RV.Rajkumar
For Respondents : Mr.D.Sasikumar
Additional Government Pleader for R1 & R2
: No appearance for R3
ORDER
The instant writ petition has been filed by an Assistant working in the Employment (Training Wing) Department challenging the panel published by the first respondent for promotion to the post of Manager/Superintendent in the panel year 2023-2024.
(A)Facts leading to the filing of this present writ petition are as follows:
2.The petitioner herein was directly recruited to the post of Junior Assistant on the basis of his success in Group-IV examination and he was allotted Employment (Training Wing) Department. Initially, he was directed to report to the appointing authority on 03.05.2013, but due to administrative delay, the appointment order was issued only on 03.10.2013 and the petitioner had joined duty on 09.10.2013. The probation of the petitioner was declared on 08.10.2015.
3.According to the petitioner, the third respondent had secured lesser marks than the petitioner and therefore, she was placed below the petitioner in TNPSC rank. A panel was published on 22.06.2018 for the year 2016-2017 https://www.mhc.tn.gov.in/judis 2/12 W.P(MD).No.18847 of 2024 for promoting the Junior Assistants to the post of Assistant. Even in the said panel, the name of the petitioner was placed above the third respondent.
According to the petitioner, till today, his name is continuously placed above the third respondent.
4.It is the further contention of the writ petitioner that the seniority was revised based upon the judgment of the Hon'ble Supreme Court and a revised seniority list was published on 30.10.2023. As per the said revised seniority list, the petitioner continued to be placed higher and above the third respondent. Therefore, according to the petitioner, he is in next line of promotion as a Manager /Superintendent. He is fully qualified and having eligibility and seniority. On 04.04.2024, the first respondent had issued proceedings calling for report to prepare a panel for promotion to the post of Manager/Superintendent. In the said proceedings, suddenly the third respondent is placed at Serial No.72 whereas the petitioner was placed in Serial No.101. The petitioner had submitted his objection to the said proceedings on 22.04.2024. Under the impugned order dated 30.07.2024, after considering the objection, a panel was published. In the said impugned panel, the third respondent is placed at Serial No.61, but the name of the petitioner is not found. Aggrieved over the non-inclusion of the petitioner in the panel, the present writ petition has been filed.
https://www.mhc.tn.gov.in/judis 3/12 W.P(MD).No.18847 of 2024 (B)Contentions of the counsels appearing on either side are as follows:
5.According to the learned counsel appearing for the writ petitioner, at the time of joining as Junior Assistant, the name of the petitioner was placed ahead of the third respondent herein, in view of the higher marks obtained by him. Even while implementing the orders of the Hon'ble Supreme Court, the seniority of the petitioner did not get altered. Though a panel was prepared for promotion to the post of Assistant for the year 2015-2016, the said panel was not acted upon. A panel was prepared for the year 2016-2017 for promotion from Junior Assistant to Assistant. Only in the said panel, the promotion was effected to the writ petitioner as well as the third respondent.
6.The learned counsel for the petitioner had relied upon Sections 40 and 41 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and contended that the seniority in the feeder cadre should be carried forward even at the time of promotion. Therefore, when the petitioner was senior to the third respondent in the Junior Assistant cadre as well as in the Assistant cadre, when a panel is prepared for the post of Manager /Superintendent, suddenly the name of the petitioner cannot be placed below the third respondent. He had further contended that the present panel for promotion from Assistant to Manager /Superintendent is for the year 2023-2024. He had given his objection on 04.04.2024 for the tentative https://www.mhc.tn.gov.in/judis 4/12 W.P(MD).No.18847 of 2024 seniority list. However, without considering the said objection, the impugned panel has been published. Hence, he sought to quash the said panel and to place the petitioner at Serial No.61 in the place of the third respondent and grant promotion as Manager /Superintendent.
7.Per contra, the learned Additional Government Pleader appearing for the respondents herein relying upon the counter had contended that the third respondent was appointed on 25.02.2013 whereas the writ petitioner was appointed only on 09.10.2013. The probation of the third respondent was declared on 24.02.2015 itself whereas the probation of the writ petitioner was declared only on 08.10.2015. A panel was prepared in the year 2016-2017 for promotion to the post of Assistant from the post of Junior Assistant, fixing the crucial dated as 15.03.2016. This panel was published on 26.02.2018.
8.In the said panel, the petitioner was placed at Serial No.13 and the third respondent was Serial No.18 and the petitioner was also promoted based upon the said panel. However, on 20.06.2023, the interse seniority of the Junior Assistants have to be revised in compliance with the orders of the Hon'ble Supreme Court dated 18.04.2023. In the said revised seniority list, the petitioner was shown in Serial No.2 and the third respondent was in Serial No.12. On 03.11.2023, a panel was published for the year 2015-2016 for promotion from Junior Assistant to Assistant based upon the revised seniority list which was published pursuant to the orders of the Hon'ble Supreme https://www.mhc.tn.gov.in/judis 5/12 W.P(MD).No.18847 of 2024 Court. In the said panel, the third respondent was placed at Serial No.18 and the name of the petitioner was not included.
9.A panel in the year 2016-2017 for promotion to the post of Assistant from Junior Assistant was prepared and published on 03.11.2023 in which the name of the petitioner was included. Therefore, according to the learned Additional Government Pleader, since the petitioner's appointment was only on 09.10.2013 and his probation was declared only on 08.10.2015, the name of the petitioner could not be included in the year 2015-2016 for which the crucial date was 15.03.2015.
10.The learned Additional Government Pleader had further contended that the petitioner had filed an appeal before the first respondent on 23.11.2023 seeking to revise his seniority and place him above the third respondent. The said request was rejected by way of proceedings dated 18.01.2024. Again the petitioner has given a representation to the first respondent on 24.04.2024. The said representation was referred to the Government for clarification. In the meantime, the present proceedings have been issued on 30.07.2024 publishing a panel for 2023-2024 for promotion from the post of Assistant to the post of Manager /Superintendent. Since the petitioner got promoted as an Assistant only under 2016-2017 panel and not under 2015-2016, as a consequence the petitioner's name has not been included in the present panel. The petitioner has to await for further vacancies https://www.mhc.tn.gov.in/judis 6/12 W.P(MD).No.18847 of 2024 in the post of Manager /Superintendent. Hence, he prayed for dismissal of the writ petition.
11.I have considered the submissions made on either side and perused the material records.
(C)Discussion:
12.The petitioner and the third respondent herein were recruited to the post of Junior Assistant in the same recruitment process. The third respondent was issued with the appointment order on 25.02.2013 while the petitioner was issued with appointment order only on 09.10.2013.As a consequence, the probation of the third respondent was declared on 24.02.2015 whereas the probation of the writ petitioner was declared only on 08.10.2015. The Hon'ble Supreme Court in a judgment reported in (2003) 5 SCC 604 (Bimlesh Tanwar Vs. State of Haryana and others) had directed all the Government departments to revise the seniority of the entry level posts based upon the marks obtained by them in the competitive examination instead of following seniority based on communal rotation. Since the said order was not complied with, in letter and spirit, contempt proceedings were presented. Thereafter, the Government departments started revising the seniority list of their employees.
13.Before the revision of seniority had taken place pursuant to the https://www.mhc.tn.gov.in/judis 7/12 W.P(MD).No.18847 of 2024 order of the Hon'ble Supreme Court, a panel was published by the respondent department for promoting the Junior Assistants to the post of Assistant. This panel for the year 2016-2017(crucial date 15.03.2016) was published on 22.06.2018, in which the name of the petitioner was found ahead of the third respondent. Accordingly, the petitioner as well as the third respondent were also promoted.
14.In view of the contempt proceedings, the respondent department had to issue a revised seniority list in the cadre of Junior Assistant. Accordingly, a revised seniority list was published on 14.07.2023 in which the petitioner's name was found ahead of the third respondent. Therefore, it is not in dispute that the petitioner was shown senior to the third respondent based upon his TNPSC Rank. Now the primary contention of the writ petitioner is that once the petitioner is senior by way of TNPSC rank, the same should be followed while a panel is prepared for the next promotion.
15.After the interse seniority among the Junior Assistants was revised by the department, pursuant to the orders of the Hon'ble Supreme Court, as a consequence, the panel published for every year for promotion to the next level should also be revised in order to find out the suitable candidates and whether any one would get reverted or not. Accordingly, the department has published a revised panel for the year 2015-2016 on 03.11.2023 for promotion to the post of Assistant from Junior Assistant. For the said panel, https://www.mhc.tn.gov.in/judis 8/12 W.P(MD).No.18847 of 2024 the crucial date is 15.03.2015. The petitioner had not completed probation on the crucial date whereas the third respondent had completed probation on 24.02.2015 itself. Therefore, the name of the third respondent was included in the panel and the name of the petitioner was left out.
16.The panel for the year 2016-2017 was also prepared and published on 03.11.2023 for which the crucial date is 15.03.2016. Since the petitioner had already completed probation on 08.10.2015, his name was included in the said panel. Therefore, it is clear that the third respondent got promotion under 2015-2016 panel while the petitioner got promoted as Assistant only under 2016-2017 panel.
17.Though the petitioner is placed ahead of the third respondent in view of TNPSC rank, the petitioner received the appointment order 8 months belatedly and he had completed the probation also belatedly. Without completing the probation, the name of an employee cannot be included in the panel for the next level of promotion in view of Section 41(1) of Tamil Nadu Government Servants (Conditions of Service) Act, 2016. In such circumstances, the authorities cannot be blamed for including the name of the third respondent in 2015-2016 panel excluding the name of the petitioner. As per Section 40(2) of the above said Act, the seniority has to be determined with reference to the date on which a person is appointed to the service. https://www.mhc.tn.gov.in/judis 9/12 W.P(MD).No.18847 of 2024
18.In the present case, the third respondent was appointed on 25.02.2013 but the first respondent was appointed only on 09.10.2013 which has resulted in a consequential delay in declaring the probation. Therefore, even though the petitioner had secured more marks than the third respondent in TNPSC examination, the petitioner having been appointed on a latter date than the third respondent, cannot claim the benefit of seniority. If such an interpretation is given, then the petitioner would get seniority from February 2013 onwards, even before he had discharged for the first time the duties of the post borne on the cadre of such service. Such interpretation is legally un-sustainable.
19.In view of the above said deliberations, there are no merits in the writ petition and the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
17.12.2024.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
https://www.mhc.tn.gov.in/judis
10/12
W.P(MD).No.18847 of 2024
To
1.The Commissioner
Employment and Training Department
Chennai
2.The Deputy Director (Administration)
Employment and Training Department
Training Wing
Chennai
https://www.mhc.tn.gov.in/judis
11/12
W.P(MD).No.18847 of 2024
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).No.18847 of 2024
and W.M.P(MD).Nos.15942 &
15944 of 2024
17.12.2024
https://www.mhc.tn.gov.in/judis
12/12