Madras High Court
S.Sivaprakasam vs The State Of Tamil Nadu on 3 August, 2021
W.P.(MD) No.8 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD) No.8 of 2012
and
M.P.(MD)Nos.1 and 2 of 2012
S.Sivaprakasam ... Petitioner
vs.
1.The State of Tamil Nadu,
represented by its Secretary to Government,
School Education Department,
Fort St.George, Chennai – 600 009.
2.The Director of School Education,
College Road, Nungambakkam,
Chennai – 600 006.
3.The Joint Registrar of School Education (Personnel),
Office of the Director of School Education,
College Road, Nungambakkam, Chennai – 600 006.
4.The District Educational Officer,
District Educational Office, Kovilpatti,
Tuticorin District – 628 501. ... Respondents
1/12
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.8 of 2012
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records of the
impugned proceedings passed by the third respondent in Na.Ka.No.
11573/A3/E1/2007, dated 25.07.2011 and quash the same as illegal and arbitrary
and consequently to direct the respondents to fix the petitioner's seniority in the
appropriate place on the basis of the petitioner's representations dated 01.06.2011
and 07.06.2011 to take reference of the petitioner's promotion to the post of
Assistant with effect from 21.11.1974 and further to include the petitioner's
seniority to the post of Superintendent with retrospective effect from June 1981
and to other promotions with retrospective effect in the list issued by the third
respondent dated 28.12.2010, 20.05.2011 and 22.07.2011 and further to grant
consequential beneficial of fixation of pay, payment of arrears of salary with
interest and revision of pension from the date of retirement and other retirement
benefits based on such revision of seniority.
For Petitioner : Mr.A.K.Hemaraj
for Mr.M.Sathiamoorthy
For R-1 to R-4 : Mr.M.Linga Durai
Government Advocate
****
2/12
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.8 of 2012
ORDER
This Writ Petition is filed to quash the impugned proceedings passed by
the third respondent, dated 25.07.2011 and to direct the respondents to fix the
petitioner's seniority in the appropriate place on the basis of the petitioner's
representation dated 01.06.2011 and 07.06.2011 to take reference of the
petitioner's promotion to the post of Assistant with effect from 21.11.1974 and
further to include the Petitioner's seniority to the post of Superintendent with
retrospective effect from June 1981 and to other further promotions with
retrospective effect in the list issued by the 3rd respondent dated 28.12.2010,
20.05.2011 and 22.07.2011 and further to grant consequential benefit of fixation
of pay, payment of arrears of salary with interest and revision of pension from the
date of retirement and other retirement benefits based on such revision of
seniority.
2.Heard Mr.A.K.Hemaraj, learned Counsel representing
Mr.M.Sathiamoorthy, learned Counsel for the Petitioner and Mr.M.Linga Durai,
learned Government Advocate for the respondents.
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W.P.(MD) No.8 of 2012
3.The petitioner was appointed as Junior Assistant on 25.05.1956 at Board
High School at Kuruvikulam in Tirunelveli District. The petitioner has also
passed Accountancy test in May 1968 and he was promoted to the post of
Assistant with effect from 21.11.1974 and his service in the promotional post was
also regularised.
4.The petitioner was further promoted to the post of Superintendent with
effect from 07.06.1982. The petitioner was also retired from service on attaining
the age of superannuation as Superintendent on 31.05.1992 from the Office of the
fourth respondent. The petitioner's grievance is that his juniors, who were
promoted to the post of Assistant in the year 1975, were promoted to the post of
Superintendent in 1981. It is admitted before this Court that the petitioner was
promoted to the post of Assistant with effect from 21.11.1974 and that some of
his juniors, who were promoted to the post of Assistant subsequent to his
promotion, had been given promotion to the post of Superintendent with effect
from 1981, whereas, the petitioner was promoted to the post of Superintendent
only with effect from 07.06.1982, that is one year after the petitioner's juniors
were promoted to the post of Superintendent.
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W.P.(MD) No.8 of 2012
5.It is the case of the petitioner that the Honourable Supreme Court has
directed the respondents to adhere to G.O.Ms.No.1968, Education, dated
02.11.1978 for the promotion of both wing “A” and “B” Personnel. It is further
submitted that the seniority list prepared by the second respondent on 19.04.1988
in the “B” Wing Personnel is contrary to G.O.Ms.No.1968, Education, dated
02.11.1978 and that therefore, the Honourable Supreme Court specifically
directed the respondents to prepare a fresh list of seniority for Wing “A” and
Wing “B” Personnels and integrated list of both Wing “A” and “B” Personnel as
on 31.03.1970.
6.It is admitted that some of the petitioner's juniors were promoted to the
post of Superintendent one year before the petitioner was promoted to the post of
Superintendent. Leave alone the subsequent Government Orders, the petitioner's
contention about his seniority over his juniors is not seriously disputed. A
representation was submitted by the petitioner to the respondents to give
promotion to the petitioner with effect from the date, on which his juniors were
promoted, ie., in 1981. The representation was submitted on 26.03.2007. It is to
be noted that even before the representation was submitted in the year 2007,
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W.P.(MD) No.8 of 2012
several representations have been made by the petitioner for about 14 years.
Though it is stated that the issue was not decided in view of the pendency of the
litigation before the Honourable Supreme Court, the respondents have
acknowledged the justification of the petitioner's request and responded that steps
have been taken to address the grievance of the petitioner.
7.In response to the communication, that was sent by the petitioner under
Right to Information Act, the Directorate of School Education has specifically
stated that the petitioner's representation was accepted and that the retrospective
promotion will be given to the petitioner, as and when the proposal submitted to
the Government is accepted. However, by the impugned order, dated 25.07.2011,
passed by the third respondent, the representation of the petitioner was turned
down, on the following reasons:
“4.kDjhuhpd; ,f;Nfhhpf;if kpfTk; ftdKld;
ghprPypf;fg;gl;lJ. kDjhuhpd; kDtpd;gb> kDjhuh; 1982y;
fz;fhzpg;ghsuhfTk;> kDjhuiu tpl gzp %g;gpy; ,isath;fs;
vdf; Fwpg;gpl;Ls;s “gp” gphpT cjtpahsh;fSf;F cjtpahsh;
gjtpapy; 1981y; ntspaplg;gl;l gzp %g;Gg;gl;bay; 1988y;
jpUj;jpaikf;fg;gl;Ls;s epiyapy; mjw;Fk; Kd;djhfNt> 1981> 1982
Mk; Mz;Lfspy; fz;fhzpg;ghsh;fshf toq;fg;gl;l gjtp
cah;Tfs; rhh;gpYk; kDjhuh; tpz;zg;gpj;jpUf;Fk; gl;rj;py; md;iwa
fhy fl;lj;jpNyNa jFjpapd; mbg;gilapy; ghprPypf;fg;gl;L
jpUj;jpaikf;fg;gl;bUj;jy; Ntz;Lk;.
vdNt> md;iwa fhy fl;lj;jpy; “gp” gphpT fz;fhzpg;ghsh;
Kd;Dhpikg;gl;bay; Vd; jpUj;jpaikf;fg;gltpy;iy vd;gJ
mwpa ,ayhj epiyapy; 20 Mz;LfSf;F Nky; fhyk; fle;Js;s
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W.P.(MD) No.8 of 2012
epiyapy; jw;NghJ ghprPypf;f ,ayhjjhf cs;sJ vd kDjhuUf;F
njhptpf;fg;gLfpwJ.”
8.Challenging the impugned order passed by the third respondent, dated
25.07.2011, the above Writ Petition has been filed.
9.The petitioner has raised several grounds in the affidavit filed in support
of this Writ Petition. Vide G.O.Ms.No.761, dated 16.05.1970, the Government
ordered absorption of teaching and non teaching staffs of the District Board
Schools in Government service with effect from 01.04.1970. The petitioner
belongs to a category who were absorbed in Government service from the District
Board Schools. The petitioner, who joined on or before 31.03.1970, treated as
“B” Wing Personnel. Subsequent to the Government Order in G.O.Ms.No.761,
dated 16.05.1970, the staff of regular Government School, who jointed on or after
01.04.1970, were treated as “A” Wing Personnels. By G.O.Ms.No.1968, dated
02.11.1978, the Government integrated both “A” and “B” Wing Personnels
together to enable State vide seniority list to be maintained by the Directorate of
School Education. For the purpose of promotion, the vacancy in the promotional
post should be filled up by persons from “A” and B” Wing Personals in the ratio
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W.P.(MD) No.8 of 2012
of 5:3.
10.From the facts narrated in the affidavit filed in support of the Writ
Petition and the counter affidavit filed by the respondents, it is seen that there is
no dispute with regard to the vital issue and the applicability and scope of various
Government Orders relied upon by the petitioner. The respondents have admitted
their mistake, because of the pendency of the proceedings before the Honourable
Supreme Court. However, the contention of the petitioner that he is entitled to be
promoted to the post of Superintendent atleast from the date on which his
immediate junior was promoted to the post of Superintendent, cannot be
bargained.
11.Assuming that there was some confusion, when “A” and “B” Wing
Personnels were integrated, there is no justification for the respondents to
promote the persons, who are juniors to the petitioner in “B” Wing. The
respondents based on the order of the Honourable Supreme Court, dated
28.04.1998, prepared three seniority lists in the year 2010 and 2011, which are
also enclosed in the typed set of papers. Having accepted the case of the
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W.P.(MD) No.8 of 2012
petitioner on merits that he is entitled to promotion, rejecting the representation of
the petitioner on the ground of delay is not sustainable. Having regard to the
sequence of events, the petitioner is not guilty of laches. The petitioner has made
representations right from the date on which his juniors were promoted.
12.Though the petitioner's promotion to the post of Superintendent was in
the year 1982, the issue was not decided probably due to pendency of various
matters before the Courts. It is also admitted that the respondents took initiative
for refusing his seniority only after the judgment of Honourable Supreme Court,
that too in the year 2009. Even in the year 2010, the prayer of the petitioner was
accepted and was replied to the petitioner that the proposal for preparing revised
seniority list is pending before the Government for approval. The petitioner's
seniority in the post of Assistant was not considered when his juniors were
promoted. The petitioner's juniors were promoted to the post of Superintendent
one year before the petitioner was promoted. When the petitioner's juniors were
promoted in July 1981, the petitioner was promoted to the post of Superintendent
only on 07.06.1982. The placement of petitioner below his juniors in the post of
Superintendent is not supported by any reasons or logic or by citing any orders of
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W.P.(MD) No.8 of 2012
Court. Mere delay will not disqualify a person from getting his rights
crystallised. For no fault on the petitioner, he was discriminated by placing him
below to his juniors in 1981.
13.In such circumstances, this Court is unable to accept the contentions of
the respondents in the counter affidavit citing the delay as reason. It is admitted
in the counter affidavit that final verdict of the Honourable Supreme Court on the
subject came only in the year 1998 and that the third respondent took action to
implement the orders of Honourable Supreme Court. It is also admitted that
tracing of old and previous records are causes for delay in finalising the issue.
When it is admitted by the respondents that the delay was on their part, it cannot
be cited that the petitioner is guilty of laches and that therefore, the Writ Petition
cannot be dismissed for the delay in approaching this Court.
14.As a result, this Writ Petition is allowed and the impugned order passed
by the third respondent, dated 25.07.2011 is set aside. The respondents are
directed to fix the petitioner's seniority in the appropriate place above the
petitioner's junior with effect from 21.11.1974 and further to revise the
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W.P.(MD) No.8 of 2012
petitioner's seniority in the post of Superintendent with retrospective effect from
July 1981 and further promotion with retrospective effect and grant consequential
monetary benefits of fixation of pay, payment of arrears of salary and revision of
pension from the date of petitioner's retirement within a period of four months
from the date of receipt of a copy of this order. No costs. Consequently,
connected miscellaneous petitions are closed.
03.08.2021
Index : Yes / No
Internet : Yes
cmr
To
1.The State of Tamil Nadu,
represented by its Secretary to Government,
School Education Department,
Fort St.George, Chennai – 600 009.
2.The Director of School Education,
College Road, Nungambakkam, Chennai – 600 006.
3.The Joint Registrar of School Education (Personnel),
Office of the Director of School Education,
College Road, Nungambakkam, Chennai – 600 006.
4.The District Educational Officer,
District Educational Office, Kovilpatti,
Tuticorin District – 628 501.
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.8 of 2012
S.S.SUNDAR, J.
cmr
Order made in
W.P.(MD) No.8 of 2012
03.08.2021
https://www.mhc.tn.gov.in/judis/
