Madras High Court
Jeyanthi vs The Commissioner on 2 March, 2017
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.03.2017 CORAM THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.P.(MD)Nos.3622 of 2012 and 3627 of 2012 Jeyanthi ... Petitioner in W.P.(MD) No.3622 of 2012 R.Gomathi ... Petitioner in W.P.(MD) No.3627 of 2012 Vs. 1.The Commissioner, Madurai Corporation, Madurai. 2.The Chief Educational Officer, Madurai Corporation, Madurai. 4.Reta Rani ... Respondents in both petitions COMMON PRAYER: These Writ Petitions are filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the 1st respondent relating to Na.Ka.No.A7/21575/08 dated 20.01.2012 and quash the same as illegal and direct the respondents 1 and 2 to prepare the fresh seniority list as per the G.O.Ms.No.388 dated 19.06.1996 by adopting the rank Nos., which was fixed by the Teachers Recruitment Board for the Secondary Grade Teachers recruited by the Board in the year 1995 and 1996 and give promotion as Graduate Teacher to this petitioner as per the rank which shall be earlier to the promotion of the 3rd respondent. !For Petitioners : Ms.T.K.Akalya for M/s.S.Thamizharasan For Respondents : Mr.R.Murali 1 & 2 For 3rd Respondent : No appearance :COMMON ORDER
The prayer in these writ petitions, as amended, as per order dated 02.09.2013 made in M.P.(MD) Nos.1 and 1 of 2013, in these writ petitions, is for a Writ of Certiorarified Mandamus, calling for the records of the 1st respondent relating to Na.Ka.No.A7/21575/08 dated 20.01.2012, and quash the same as illegal and direct the respondents 1 and 2 to prepare the fresh seniority list as per G.O.Ms.No.388 dated 19.06.1996 by adopting the rank numbers which was fixed by the Teachers Recruitment Board for the Secondary Grade Teachers recruited by the Board in the year 1995 and 1996, and give promotion as Graduate Teacher to these petitioners as per the ranks which shall be earlier to the promotion of the 3rd respondent.
2.The case of the petitioners is that, both were selected by the Teachers Recruitment Board for the post of Secondary Grade Teachers in the year 1995 and based on selection, the petitioner in W.P.(MD) No.3622 of 2012 was appointed at Government Higher Secondary School, Karunkalakudi, Madurai District and the petitioner in W.P.(MD) No.3627 of 2012 at Municipality Middle School, Chinnamanor at Karunkattankulam, Theni District. Though both the petitioners had been appointed as such, they had requested for transfer, after appointed in the originally appointed place, to any other school being run by the first respondent Corporation in the Corporation limit. The petitioners request has been accepted and accordingly they had been transferred to the first respondent Corporation Schools on 25.07.1996. However, at the time of issuing the transfer order, the respondent Corporation has put some conditions out of which condition No.4 reads thus:
?4.bghJ khWjypy; tUk; Mrphpah;fs; khWjypy; tUk; fhuzj;jhy; kJiu khefuhl;rp gs;spfspy; ,ilepiy Mrphpah;fspy; md;dhh; gzp K:g;gpy; ,iznahuhff; fUjg;gLthh;fs;?.
3.Thereafter, the respondent Corporation had given promotions to those already existing incumbents working as Secondary Grade Teachers at the first respondent Corporation School. During the relevant point of time, the third respondent, who had been similarly selected by the Teachers Recruitment Board along with petitioners in the year 1996 and had also been appointed as a Secondary Grade Teacher in the Government High School, Kombukarananthal, Sivagangai District and has also been transferred to the first respondent Corporation School, where also, in the transfer posting order given to the third respondent a condition similar to that of the condition, on which the petitioners had been transferred, had been given as condition No.5 in the order of transfer posting to the third respondent. Since the said condition imposed in respect of the third respondent states that, on transfer, the candidature would be considered as the junior most in the respondent school, the third respondent had approached this Court by filing W.P.(MD) No.4844 of 2008 in the matter of A.Rita Rani v. The Commissioner, Madurai Corporation, Madurai and another, where the third respondent had challenged the said condition placing the third respondent as junior most among the Secondary Grade Teachers working at the schools run by the third respondent Corporation, and also sought for direction to the first respondent Corporation to prepare a seniority list, based on the rank provided by the Teachers Recruitment Board, at the time of selection, which is pursuant to the direction of the Government as per G.O.Ms.No.388 Education, Science and Technology Department dated 19.06.1996.
4.This Court after considering the merits of the case as well as the rival submissions made by the parties, had decided the writ petition by order dated 16.06.2011, wherein the learned Judge after taking into consideration of the guidelines issued in G.O.Ms.No.388 Education, Science and Technology Department dated 19.06.1996 and the subsequent proceedings issued by the Department concerned has given a direction in the penultimate paragraph, which reads thus:
?22.For all the above said reasons, the writ petition is allowed and the impugned order, dated 08.04.2008 is liable to be set aside and a direction is issued to the first respondent to prefer fresh seniority list based on G.O.Ms.No.388 and the judgment of this Court in W.P.No.22322 of 2007, dated 10.04.2008.?
In pursuant to the order passed by this Court in the writ petition filed by the third respondent, cited supra, instead of preparing a fresh seniority list based on the ranking given by the TRB, by fixing the candidates' seniority on appropriate place, as per the rank given by TRB, the first respondent Corporation simply has given promotion to the third respondent through the order dated 20.01.2012, whereby the third respondent, who was having qualification for getting promotion as Tamil Pandit, has been given promotion as such by fixing her seniority alone without preparing a seniority list fixing the seniority of the Secondary Grade Teachers working, as directed in the judgment cited supra. Therefore, though initially the writ of Mandamus was sought for by these writ petitioners to prepare the seniority list as per the rank given by the Teachers Recruitment Board and to promote the petitioners as graduate teachers, subsequently, in view of the order passed by the first respondent Corporation in the said order dated 20.01.2012, by which the third respondent had been given promotion by placing her above the petitioners, the prayer was sought to be amended. Accordingly, the prayer got amended as it stands now.
5.Heard both sides.
6.The learned counsel appearing for the petitioners would submit that both the writ petitioners as well as the third respondent Rita Rani had been selected and appointed as Selection Grade Teachers. According to the rank given by the Teachers Recruitment Board, the petitioner in W.P.(MD) No.3622 of 2012 was given the rank 731 and the petitioner in W.P.(MD) No.3627 of 2012 was given the rank 732, whereas the rank given to the third respondent was
831. When that being so, the common seniority list, among the Secondary Grade Teachers working in the first respondent Corporation including those who had been appointed by way of transfer such as petitioners and the third respondent conferring seniority based on the common seniority list, ought to have been prepared. This is infact exactly the judgment cited supra in the writ petition filed by the third respondent has intended. Instead of preparing a seniority list by fixing the seniority of the incumbents like the petitioners, the third respondent and other similarly placed persons appointed by way of transfer, who had been selected through 1995 Selection/Recruitment process, simply the first respondent Corporation has passed the impugned order by which the seniority of the third respondent has been pushed up, whereas the petitioners herein, who were seniors as per the Rank of TRB, had been pushed back or not considered for promotion.
7.The learned counsel appearing for the petitioner would also submit that both the petitioners are qualified to be considered for B.T. Assistant, since they had been qualified to the said post, at the time of their selection itself. Since the petitioners are seniors to the third respondent as per seniority fixed by the TRB and they also qualified to be considered for promotion, instead of preparing common seniority involving all the incumbents including the petitioners as well as the third respondent, by wrongly interpreting the order of this Court, the first respondent Corporation had issued promotion only to the third respondent overlooking the seniority of the petitioners herein. Therefore, it necessitated the petitioners to challenge the order giving promotion to the third respondent. The learned counsel appearing for the petitioners would further submit that if at all the first respondent Corporation thought that the third respondent has to be promoted as per her qualification, at least before which, the petitioners qualification and their rank provided at the time of appointment ought to have been taken into account, before giving promotion to the third respondent. Therefore, the non-preparation of the common seniority list as directed by this Court is bad on the part of the first respondent Corporation and resultantly, the non-consideration of the promotion to the petitioners, based on their rank/seniority, as given by TRB, is also unlawful and further giving promotion to the third respondent alone, overlooking the seniority of the petitioners herein, is also unlawful and unjustifiable and therefore, the prayer sought for herein may be considered.
8.Per contra, the learned Standing Counsel appearing for the first respondent Corporation would fairly submit by relying upon the averments made by the first respondent in the counter affidavit that, even though direction was issued, by the judgment cited supra, to prepare a fresh seniority as per the guidelines issued by G.O.Ms.No.388 dated 19.06.1996, the respondent Corporation has considered only the third respondent's candidature and accordingly, she had been given promotion since she was qualified for consideration to the post of Tamil Pandit. In this regard, the learned Standing Counsel would rely upon paragraphs 2 and 3 of the counter affidavit, which reads thus:
?2.I respectfully submit that the petitioner in both the writ petitions and as well as the 3rd Respondent herein were selected as Secondary Grade teachers through Teachers Recruitment Board in the year 1995. It is submitted that all the 3 persons were originally appointed various Government Schools and thereafter on their own willingness transferred to Madurai Corporation Schools. It is pertinent to state that the Government issued G.O.No.388 School Education Department dated 19.06.1996, and as per the above G.O. those recruited through Teachers Recruitment Board in the year 1995 are entitled to maintain their seniority even after transferred from one District to another District as one time concession. As stated above all the 3 persons namely Gomathi, Jeyanthi, Reeta Rani were transferred to Madurai Corporation from outside Schools. Even these 3 persons are selected through Teachers Recruitment Board the Corporation had not received the rank list of all the persons from the Teachers Recruitment Board immediately. Further the Corporation belatedly received the Rank list of all the persons who are recruited under 1995 batch only on 26.02.2008. Admittedly as per the seniority list provided by the Teachers Recruitment Board the ranks of the above 32 persons are as follows:
Sl.No. Name of the Candidate Rank/Marks
1.
S.Jeyanthi 731
2. Gomathi 732
3. A.Reeta Rani 831
3.I respectfully submit that the 3rd Respondent earlier filed a writ petition in W.P.(MD) No.4844 of 2008 before this Hon'ble Court challenging the seniority list dated 08.04.2008 and consequently sought a direction to adopt Teachers Recruitment Board ranking in terms of G.O.388. The above writ petition was allowed by order dated 16.06.2011. It is submitted that in view of the above judgment the Corporation had promoted the Reeta Rani as B.T. Assistant through proceedings dated 20.01.2012. It is pertinent to state that the above promotion was issued in obedience with the orders made in W.P.(MD) No.4844 of 2008. It is submitted that the petitioners in both the writ petitions are also eligible for promotion to the post of B.T. Assignment.?
9.The learned Standing Counsel appearing for the first respondent Corporation also would submit that not only the petitioners as well as the 3rd respondent, also some other similarly placed persons, who had been appointed, had been working. Some of them may be seniors to the petitioners as well as the third respondent and some may be juniors to the petitioners as well as the third respondent and their seniority has not been fixed taking into account the seniority list given by Teachers Recruitment Board during the year 1995. If such re-examination is done, these anomaly will be rectified.
10.This Court has considered the said rival submissions made and also perused the materials placed before this Court for consideration.
11.The fact remains that pursuant to the selection made by the Teachers Recruitment Board, the selected candidates were allotted ranks. Like that the rank given to the petitioners and the third respondent is not disputed because at paragraph No.2 of the counter the first respondent has accepted the said factor that the petitioners had been given ranking 731 and 732 respectively, whereas the third respondent was given 831st rank. Since for the first time the Teachers Recruitment Board involved in the selection process in the year 1995 the common rank was given based on overall seniority, by way of performance in the selection process by the respective candidates. In some areas such as Chennai and K.K. District, there were only Government Schools. So, those who have been selected for Panchayat Union Schools in the said Districts had to be placed in some other District. So in order to set right their aspirations to accommodate them in their respective District which they belong, the Government came forward to issue G.O.Ms.No.388 Education, Science and Technology dated 19.06.1996. In the said G.O.at paragraph No.2 the following has been given, which are relevant for the issue raised in this writ petition:
?,. 1995-k; Mz;L Mrphpah; njh;t[ thhpaj;jhy; njh;t[ bra;ag;gl;L epakdk; bgw;wth;fs; gzpapl khWjyhfp te;jhYk; mth;fs; Kd;Dhpik Mrphpah; njh;t[ thhpak; mspj;j ju thpir vz; go jhd; mika ntz;Lk;. nkYk;> ,k;khWjy;> Mrphpah; njh;t[ thhpak; mspj;j Kd;Dhpikgoa[k;> fhypaplq;fspd; mog;gilapYk; ,lkhw;wk; bra;a ntz;Lk;. ,t;thz;L gzp khWjy; bra;a ,ayhj 1995-k; Mz;L epakdk; bgw;w ,ilepiy Mrphpah;fis bghWj;jtiu mth;fsJ tpUg;gk; tUk; fhyq;fspy; fhypaplk; Vw;gLtjw;F Vw;g ghprPypf;fg;gl ntz;Lk;.?
Based on the said G.O., the Director of Elementary Education, Government of Tamil Nadu had issued a proceedings dated 15.11.2001, wherein among various other directions, the following direction has been given, which is also relevant for the current issue, which is raised in this writ petition:
?1995k; Mz;L Mrphpah; njh;t[ thhpaj;jhy; epakdk; bra;ag;gl;lth;fSf;F njh;t[thhpak; tHq;fpa ju vz; mog;gilapy; Kd;Dhpik eph;zak; bra;ag;gl ntz;Lk;. ,t;thW Mrphpah; njh;t[ thhpaj;jhy; gpw khtlq;fspy; epakdk; bra;ag;gl;L gpd;dh; jkJ brhe;j khtl;lj;jpw;F xd;wpa khwjypy; te;jth;fs; nrh;e;j xd;wpaj;jpy; xUKiw kl;Lk; Mrphpah; njh;t[ thhpak; tHq;fpa ju vz; mog;gilapy; Kd;Dhpik eph;zapj;Jf; bfhs;syhk;. kps xd;wpa khWjy; bgw;why; Mrphpah; njh;t[ thhpak; tHq;fpa ju vz;iz jf;f itj;Jf; bfhs;s ,ayhJ. khwhf gzpay; nrh;e;j njjpapd; mog;gilapnyna Kd;Dhpik eph;zak; bra;ag;gl ntz;Lk;. ,t;tpjp Mrphpah; njh;t[ thhpaj;jhy; murpdh; cah;epiyg;gs;sp kw;Wk; nky;epiyg;gs;spapy; epakpf;fg;gl;L gpd;dh; khWjy; K:yk; Cuhl;rp xd;wpa Jtf;f kw;Wk; eLepiyg;gs;spapy; gzpapy; nrh;e;jth;fSf;Fk; bghUe;Jk;.?
12.Therefore, on a reading of the said Government order as well as the guidelines issued by the Director concerned, it would be clear that in respect of the candidates selected in the year 1995 by the Teachers Recruitment Board, even though some of the candidates had been appointed by way of transfer to local body schools, including the schools run by the first respondent Corporation, their actual seniority or ranking given by the Teachers Recruitment Board in the said selection, has to be given as a one time exemption, in other words those who have been selected by the Teachers Recruitment Board in the year 1995 and had been appointed originally in Government Schools at various Districts, who had been subsequently transferred and appointed in local body schools, such as the schools run by first respondent herein, the seniority in the transferred place shall be based on the ranking given by the Teacher Recruitment Board alone and not on the basis of seniority maintained at the transferred place. Therefore, as per the said G.O. as well as the instructions given by the Director concerned, the first respondent Corporation ought to have made a combined seniority list among the Secondary Grade Teachers of the first respondent Corporation including those who have been appointed by way of transfer, including the petitioners as well as the third respondent. When the third respondent was transferred and appointed in the respondent Corporation, a condition was imposed that she would be placed as junior most Secondary Grade Teachers working at the first respondent Corporation School and that condition had been assailed by the third respondent successfully before this Court in W.P.(MD) No.4844 of 2008, wherein after considering the issue elaborately the learned Judge has given a direction, that is to say, direction to the first respondent Corporation to prepare a fresh seniority list based on G.O.Ms.No.388 dated 19.06.1996. Inspite of the directions issued by this Court, the first respondent Corporation, admittedly, has not prepared the Seniority list. Had the Seniority list been prepared, as directed by this Court, taking into account the guidelines issued by the Government through the G.O., and subsequent instructions, issued by the Director of Elementary Education, this anomaly could have been avoided and the petitioner would have been placed at appropriate place in the seniority list based on the rank given by the TRB. Therefore, without doing the exercise, a mere promotion has been given to the third respondent, whereby the third respondent has been promoted as Tamil Pandit, by order dated 20.01.2012, since she was qualified to be considered for that post. Insofar as the said consideration of giving promotion to the third respondent, in the opinion this Court, may not find any infirmity, provided, if she is qualified for the said promotion. However, the first respondent has considered promotion of the third respondent before which certainly the candidature of the petitioners also should have been considered for promotion, because both the petitioners are qualified to be considered for B.T. Assistant, since they had been qualified even from the date of appointment. This anomaly is only because of the inaction on the part of the first respondent, in not preparing a common seniority list as directed by this Court in the judgment cited supra. Therefore, the inaction on the part of the first respondent in not preparing a fresh seniority list based on G.O.Ms.No.388 dated 19.06.1996, created all these confusions. With the result, even though the petitioners are, admittedly having the above higher ranks, than the third respondent, had not been considered for promotion to B.T. Assistant sofar inspite of the fact that they are well qualified for consideration. Therefore, there is every justification on the part of the petitioners adjudicating the issue before this Court as projected in this writ Petition. In view of the said factors and the circumstances of case, this Court is inclined to pass the following orders in this Writ Petition:
(i) the first respondent Corporation is hereby directed to prepare a common seniority list from among the Secondary Grade Teachers as on 01.01.1997. While preparing such seniority list of secondary grade teachers working on that date, the rank given for fixing the seniority, for the selectees who had been selected by the Teachers Recruitment Board during the year 1995, which includes selection in respect of the petitioners herein as well as the third respondent, shall be taken into account. After having completed the said process of preparation of common seniority as directed above, the rank shall be given to all the Secondary Grade Teachers who had been in the roll and working as teachers as on 01.01.1997, and based on which, the petitioners claim for promotion to the post of B.T. Assistant has to be considered immediately.
(ii) Since the third respondent had already been promoted as per order dated 20.01.2012 of the first respondent and certainly the seniority of these two petitioners would be prior to the said date of promotion given to the third respondent, from the said date, the petitioners herein, shall be given promotion as B.T. Assistant, if they are otherwise qualified. Once such promotion is given from that date, such promotion shall be considered as notional promotion for the purpose of service benefits, but they are not entitled for salary dues since the petitioners were not worked as B.T. Assistant in all these years. However, the petitioners shall be entitled to get all other service benefits including pay increments correspondingly from the date of such promotions.
(iii) In view of the said directions for giving promotions to the petitioners from 20.01.2012, the order impugned herein need not be disturbed and therefore, the same is directed to be sustained.
(iv)The aforesaid exercise shall be done by the first respondent within a period of 12 weeks from the date of receipt of a copy of this order.
13.With these directions, these Writ Petitions are disposed of. No costs.
To
1.The Commissioner, Madurai Corporation, Madurai.
2.The Chief Educational Officer, Madurai Corporation, Madurai..