Madras High Court
Tmt.Gracy Darling vs Tami Lnadu Electricity Board on 4 October, 2021
W.P.No.9410 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.10.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.9410 of 2009
Tmt.Gracy Darling
.... Petitioner
Vs
1. Tami lNadu Electricity Board,
rep. by its Secretary, Secretariat Branch,
No.144, Anna Salai, Chennai – 600 002.
2. The Chairman,
Tami lNadu Electricity Board,
No.144, Anna Salai, Chennai – 600 002.
3. The Deputy Secretary, (Personal)
Secretariat Branch,
Tami lNadu Electricity Board,
No.144, Anna Salai, Chennai – 600 002.
4. R.Bhagavathi Ammal
5. S.B.Selvi
6. S.Usha Rani
… Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of Writ of Certiorarified Mandamus calling for the
records relating to the proceedings of the 2nd respondent made in Memo (per)
No.051130/A8/A81/2009-3 dated 18.04.2009 and consequential office order
1/12
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No.753 dated 11.05.2009 of 3rd respondent and quash the same and direct the
respondents 1 to 3 to restore the original seniority placing the 4th respondent
below the petitioner in the post of Personal Assistant and direct to promote the
petitioner to the post of Private Secretary from the date of the order of 3rd
respondent with all attendant benefits.
For Petitioner : Mr.Balan Haridas
For Respondents : Mr.P.Subramanian
Standing Counsel– R1 to R3
Mr.Jagannathan
for Mr.Jenasenan – R4 to R6
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ORDER
The petitioner joined the services of the Tamil Nadu Electricity Board
(in short 'TNEB/Board') as steno-typist on 21.10.1995. Respondents 4 to 6,
i.e., private respondents, entered service of the TNEB on 12.02.1999,
05.11.1999 and 30.04.2001 respectively, admittedly, after the date of joining of
service of the petitioner. Seniority, inter se, was fixed based on the date of
joining of the petitioner and private respondents at serial No.1, 2, 3 and 4
respectively.
2. Though respondents 5 and 6 have been arrayed as private respondents,
no case has been made out as against them and in fact, the impugned order only
fixes seniority qua the petitioner and R4. Thus, and seeing as no dispute is
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made out as regards fixation of seniority of R5 and R6, this Writ Petition is
dismissed as against R5 and R6 and is restricted to the dispute that arises
between the petitioner and R4.
3. While the petitioner and private respondents were in service, the
Board, in its proceedings bearing No.55 dated 09.10.1992 created posts of
Personal Clerk, Personal Assistant and Private Secretary. Pending Writ
Petition, I am given to understand that two more escalated posts were created,
that of Additional Senior Private Secretary and Senior Private Secretary.
4. The Board provided for an exercise of option by the employees for
transfer and posting in the Board Office Secretariat and both the petitioner and
R4 exercised such option, which is stated to be final. The fixation of seniority
at the time of absorption in the Board Office Secretariat was to the effect that
the petitioner was senior to R4. R4 did not challenge the same. Thereafter, the
first avenue of promotion was to the post of Personal Assistant and both the
petitioner as well as R4 were promoted to the post of Personal Assistant on
30.06.2004, the petitioner being placed in seniority above R4. Fixation of
seniority, at this juncture, was also not disputed by R4.
5. Admittedly, in order to eligible for appointment of Personal Assistant,
it was incumbent upon the candidate to hold qualifications in shorthand Senior
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W.P.No.9410 of 2009
Grade in English and Tamil. While the petitioner lacked the aforesaid
qualifications, R4, admittedly, possessed both as on the date of promotion. The
promotion of both persons to the post of Personal Assistant and the fixation of
seniority of the petitioner above R4 was presumably, bearing in mind the vast
experience of the petitioner and the fact that her entry into service in the Board
was in 1995, four years prior to R4.
6. At the time of promotion to the post of Personal Assistant, a condition
was laid upon the petitioner to state that additional qualifications of shorthand
Tamil and English should be acquired by her within a period of two years from
date of promotion. If she so failed to acquire the aforesaid qualifications
within the timeline as stipulated, she was to be reverted to the post of Personal
Clerk. It is the say of R4 that the petitioner has made several attempts to
acquire the qualification, but did not succeed.
7. Be that as it may, the conditions imposed upon the petitioner as well
as other candidates who were also promoted without the requisite qualifications
came be withdrawn by the Board by its orders passed on various dates, in the
case of the petitioner, on 16.07.2007.
8. The counter filed by the Board states at paragraph 6 that the condition
imposed upon the petitioner as per paragraph 5 of Office Order dated
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30.06.2004 was withdrawn from 01.07.2006. The aforesaid date, does not
however figure in order dated 16.07.2007, and proceedings in Memorandum
(Permanent) No.56077/A11/A111/2007 dated Nil, July 2007 reflects that the
effective date of the order is upon completion of extension period of two years,
that is, from 01.07.2006.
9. Thereafter, by order dated 06.12.2008, both the petitioner as well as
R4 were temporarily appointed as Private Secretaries in Category 2, Division I,
Class II of the Tamil Nadu Electricity Board Service Regulations, with effect
from their date of joining duty. These proceedings also fix seniority of the
petitioner above that of R4 and have been accepted by R4.
10. By Office Order No.311 dated 02.03.2009, both the petitioner and
R4 stood reverted to the position of Personal Assistants, with effect from the
afternoon of 28.02.2009 for want of vacancies. On reversion, they were to be
retained in the same position until further orders. So far so good, and it is to be
noted that there has been no whisper by R4 challenging the fixation of seniority
in the Board Office Secretariat, at any juncture or stage in the proceedings thus
far.
11. The counter filed by the official respondents, at paragraph 7 states
that the 4th respondent was making representations to the Management to revert
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the petitioner pointing out her failure to acquire the prescribed qualification
within the time frame allowed to her and to revise her seniority placing her
above the petitioner in the post of Personal Assistant.
12. This appears to have found favour with the Board which vide Office
Memo (Per.) No.051130/A8/A81/2009-3 dated 18.04.2009, concluded that
since the petitioner did not possess the requisite qualifications at the time of her
posting, the exemption granted to her would only have prospective effect. As
R4 was qualified from inception, she was assigned seniority above the
petitioner. Hence, the present writ petition.
13. The impugned proceedings dated 18.04.2009 refers to
representations filed by R4 dated 04.07.2007, 05.12.2007 and 04.02.2009 as
well as representation filed by the petitioner dated 10.10.2008, all presumably
on the subject of fixation of seniority.
14. The question that is arises for consideration is as to whether the
fixation of seniority would be retrospective from date of promotion of the
petitioner to the post of Personal Assistant, being 30.06.2004, or prospective
from the date stated in the Board Proceedings dated Nil July, 2007 fixing the
date as 01.07.2006.
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15. Learned counsel for R4 would, in this connection, take me through
the judgment of the Hon'ble Supreme Court in the case of Shitla Prasad Shukla
V. State of U.P. and others (1986 (Supp) Supreme Court Cases 185) .
16. That case concerns the promotion of a Teacher in a school. Though
the petitioner had sought appointment in the post of Lecturer (Hindi), his
application for promotion was not considered having regard to the prohibition
contained under Section 16 of the (U.P.) Intermediate Education Act, 1921
which prescribed certain conditions as mandatory for such promotion.
17. Ultimately, he was granted exemption by the Board of High School
and Intermediate Education, U.P. on July 23, 1963 and promoted to the post of
Lecturer (Hindi). That petitioner's case was that his promotion should take
effect from date of his application and not from date of exemption which
proposition came to be rejected by the High Court and confirmed by the
Hon'ble Supreme Court.
18. Substantial reliance is placed by learned counsel for R4 upon the
observations contained at paragraphs 8,9 and 10 of the aforesaid judgment,
wherein the Hon'ble Court states as follows:
'8. Thus it is clear that the Board was not inclined to grant the
exemption to the appellant and had insisted on the appellant securing the
requisite qualification by appearing in an examination, from an appropriate
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institution. The Board was disinclined to grant the request till late 1962. When
this is the factual position, how can the appellant contend that the Board must
be deemed to have granted the exemption from the date of his application i.e.
November 4, 1960? In this factual backdrop it is futile to contend that the
Board had granted exemption with restropective effect or that the exemption
must relate back to the date of the making of the application. Besides, the
language of Section 16-E of the Act does not admit of the construction
canvassed on behalf of the appellant viz. that the Board can grant exemption
with retrospective effect. It is in terms provided that the exemption may be
granted by the Board only after considering the report of the Director having
regard to the experience, education and other attainments of the person sought
to be appointed. It would be reasonable to construe the Section as enabling the
Board to exercise the power to grant exemption prospectively after
considering the report and taking into account the relevant circumstances
which would by the very nature of things be with prospective effect and not
with retrospective effect. To accede to the construction canvassed on behalf of
the appellant would be to hold that any unqualified person can be appointed
even without the minimum qualifications subject to postfacto exemption being
granted. Till the exemption is granted the person is not qualified to be
appointed. In other words he would be lacking in the basic qualification for
being appointed. This deficiency cannot be made good with retroactive
exemption unless the provision itself expressly or by necessary implication
contemplates such a course of action. Section 16-E does not satisfy this test.
Thus it would appear that retrospective exemption could not have been
granted and in point of fact was not granted in the present case. Even
otherwise, it is not sufficient to show that retropective exemption could have
been granted. It must also be shown that retrospective exemption was in fact
granted. In the present case the factual background clearly shows that the
Board had not granted retrospective exemption. In fact the Board was not
inclined to grant the exemption at all and was insisting that the appellant
should obtain the requisite qualification. And the Board finally made up its
mind to grant exemption only on July 23, 1963. Unless the view is taken that
whenever exemption is granted it must be treated as having been granted with
retrospective effect, if there is such power, the appellant cannot succeed. There
is no warrant in law or logic for taking such a view. The High Court was
therefore perfectly justified in repelling the contention urged on behalf of the
appellant and in dismissing the Writ Petition.
9. There is also one more dimension of the matter. Though the
appellant was working as a lecturer, it was not under any authority of law for
there is no provision which empowers the college to allow any unqualified
person to teach or to appoint him as such in anticipation of his disqualification
being removed in future. Till the exemption was granted appellant was not
even a teacher in the eye of law though he was allowed to teach by the
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indulgence of the college authorities. The disqualification was removed only
on July 23, 1963 when the Board granted the exemption. How could he have
claimed seniority vis-a-vis respondents nos. 5 and 6 who possessd the requisite
qualifications and became regularly and lawfully appointed teachers much
prior thereto?
10. An employee must belong to the same stream before he can claim
seniority vis-a-vis others. One who belongs to the stream of lawfully and
regularly appointed employees does not have to contend with those who never
belonged to that stream, they having been appointed in an irregular manner.
Those who have been irregularly appointed belong to a different stream, and
cannot claim seniority vis-a-vis those who have been regularly and properly
appointed, till their appointments became regular or are regularized by the
appointing authority as a result of which their stream joins the regular stream.
At that point of confluence with the regular stream, from the point of time they
join the stream by virtue of the regularization, they can claim seniority vis-a-
vis those who join the same stream later. The late comers to the regular stream
cannot steal a march over the early arrivals in the regular queue. On principle
the appellant cannot therefore succeed. What is more in matters of seniroty the
Court does not exercise jurisdiction akin to appellate jurisdiction against the
determination by the competent authority, so long as the competent authority
has acted bonafide and acted on principles of fairness and fairplay. In a
matter where there is no rule or regulation governing the situation or where
there is one, but is not violated, the Court will not overturn the determination
unless it would be unfair not to do so. In any view of the matter the appellant
who did not even belong to the stream of regularly (he was allowed to teach
only in an irregular and unauthorized manner) and lawfully appointed
lecturers cannot claim seniority against any one already in the stream before
he joined the stream himself. The view taken by the High Court is
unexceptionable.
19. The rejection of that petitioner's case was on the ground that having
not had the requisite qualification till the grant of exemption on July 23, 1963,
any appointment made prior thereto would have been an irregular appointment
as he would have been unqualified as per the requisite Rule.
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20. The facts of that matter as compared with the present, are wholly
different and distinguishable for several reasons. Firstly, in that case, there was
no appointment of that petitioner till such time exemption had been granted. In
the present case, the Board has chosen to accept the promotion of the petitioner
on 30.06.2004 for the reasons stated by the Board in its counter, that the
petitioner had substantial experience having joined the Board in 1995, four
years prior to the appointment of R4 in TNEB. The promotion of the
petitioner was not an irregular promotion and the same has been made by the
Board after due application of mind and taking note of the petitioner's greater
experience, when compared with other employees.
21. That apart, in the present case, the Board has fixed the seniority on
several occasions, i.e., upon the transfer of the petitioner and R4 to the Board
Office Secretariat, their promotion to the post of Private Secretary and
thereafter when reverted to the post Personal Assistant. The conduct of the
Board is cognizant of the fact that the petitioner is senior to that of R4 and must
thus be placed above her in seniority.
22. R4 has also accepted the fixation of seniority on all the aforesaid
occasions and the representations filed in 2007 and thereafter appear to be an
after thought. Such representations cannot be allowed to unsettle the fixation
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of seniority that has been made by the Board consciously and bearing note of
the seniority of the petitioner in the service of the TNEB, duly accepted by R4
at all relevant points of time.
23. That apart, the impugned proceedings fix the date of coming-into-
effect of the exemption as 01.07.2006, prospectively. The effect of such
fixation is that, on and after, 01.07.2006, the petitioner is deemed to have the
requisite seniority. The impugned order is dated 18.04.2009 on which date the
petitioner has the seniority as required, as per paragraph 5 thereof. The
impugned proceedings are set aside with all consequential effect thereto.
24. There was a dispute in regard to the empanelment of the petitioner
for the post of Additional Senior Private Secretary for the year 2019-2020.
W.P.No.13396 of 2020 came to be filed, which was allowed on 05.02.2021 by
a learned Judge of this Court setting aside the order of rejection of the
petitioner's request for empanelment and directing the respondents to consider
and grant her promotion to the post of Additional Senior Private Secretary
without insisting upon additional qualifications, if she was otherwise fit for
promotion and with all attendant benefits as on date.
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W.P.No.9410 of 2009
Dr.ANITA SUMANTH,J.
25. This order has, as on date, attained finality. I am also given to
understand that the Board has given effect to the said order and has promoted
the petitioner to the post of Additional Senior Private Secretary on 06.05.2021.
26. In the light of the narration as above, this Writ Petition is allowed.
No costs.
04.10.2021
Index : Yes/No
Speaking Order/Non speaking Order
sl
To
1. Tami lNadu Electricity Board,
rep. by its Secretary, Secretariat Branch,
No.144, Anna Salai, Chennai – 600 002.
2. The Chairman,
Tami lNadu Electricity Board,
No.144, Anna Salai, Chennai – 600 002.
3. The Deputy Secretary, (Personal)
Secretariat Branch,
Tamil Nadu Electricity Board,
No.144, Anna Salai, Chennai – 600 002.
W.P. No.9410 of 2009
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