Madras High Court
M.Murugan vs The Registrar Of Co-Operative ... on 4 April, 2022
W.P.(MD)No.15059 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.04.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.15059 of 2018
and
W.M.P.(MD)Nos.13637 to 13639 of 2018
1. M.Murugan
2. S.Gnana Pandi
3. N.Masanam
4. V.Ganesan
5. S.Sathiyamoorthi
6. J.Arul Jenita ... Petitioners
vs
1. The Registrar of Co-Operative Societies,
O/o. the Registrar of Co-Operative Societies,
No.370, EVR Periyar High Road,
Kilpauk, Chennai – 10.
2.The Managing Director cum Joint Registrar,
Ramanathapuram District Central Co-operative Bank Ltd.,
No.370, EVR Periyar High Road,
Kilpauk,
Chennai-10.
3.The Joint Registrar of Co-operative Societies,
Collectorate Complex,
Ramanathapuram-623503.
1/11
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W.P.(MD)No.15059 of 2018
4. S.Rajan
5. Sundara Mahalingam
6. V.Ramesh
7. R.Murugan
8. K.Balakrishnan
9. G.Vishwanathan
10.R.Saravanan
11.D.Kumarakurubaran
12.S.Murugan
13.A.Boopathi
14.N.Sathya Bama
15.K.Sarala Devi
16.A.M.Kavitha ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to
the impugned order in Na.Ka.2599/2015/SAPA dated 14.06.2018 on the file of
the respondent No.3 and quash the same as illegal and consequently direct the
Respondent No.2 to refix the seniority and effect promotions to the post of
Manager in accordance with rule of reservation and order of rotation within the
time period stipulated by this court.
For Petitioners : Mr.T.Lajapathi Roy
For Respondents : Mr.S.Kameswaran for R1
Government Advocate (Civil side)
Mr.D.Shanmugaraj Sethupathi for R2
Mr.V.O.S.Kalali Selvam ofr R4 to R13
No appearance for R15 & R16
2/11
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W.P.(MD)No.15059 of 2018
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order dated 14.06.2018 in Na.Ka.No.
2599/2015/SAPA dated 14.06.2018 and consequently direct the respondents to re-
fix the seniority and effect promotions in accordance with rule of reservation and
order of rotation.
2. The brief facts of the case are that the petitioners originally appointed as
Assistant through the proceedings of the Special Officer, dated 06.10.2008.
Subsequently promoted as Assistant Manager, vide proceedings, dated
28.12.2011. The seniority panel for the year 2009 was released vide proceedings
dated 29.04.2009 and the eligible candidates were called for to submit objections.
The petitioners have submitted their objections on 11.05.2009 stating that the
seniority panel ought to have been drawn in accordance with rule of reservation
and order of rotation, but the panel was prepared based on date of joining and
date of birth. The Special Officer through his proceedings, dated 20.10.2009 had
passed an order stating the seniority is drawn based on the date of joining and the
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W.P.(MD)No.15059 of 2018
date of birth, hence the objections cannot be considered. Thereafter, the petitioner
approached the Managing Director on 13.02.2014 by way of representation to
redraw the seniority list. The contention of the petitioner is that as per the Section
40(1) of the Tamil Nadu Government Servants (conditions of the service) Act
2016 provides for the fixation of seniority and the seniority of a person in a
service shall be determined in the order of the placement in the list prepared by
Recruiting agency in accordance with the rule of reservation and the order of
rotation specified in Schedule-V. The first respondent proceedings in Na.Ka.No.
55158 /2015/MaVaPa-1 dated 21.09.2015 had clearly stated that the seniority was
fixed based on the date of joining and date of birth and the same is violating the
G.O.Ms.No.55, Personnel and Administrative reforms dated 08.04.2010 wherein
it is directed to follow the roster in the matters of promotion as prescribed in
Government Gazette No.107, dated 08.04.2010. Aggrieved over the same, the
petitioners have filed this writ petition.
3. The respondents have filed a counter affidavit stating that the issue of
seniority in the Co-operative Society was not under litigation for several years.
Some Societies are following the seniority list based on the roster system and in
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W.P.(MD)No.15059 of 2018
some of the Societies the seniority list was revised based on the date of joining /
marks. In the present case, the seniority is revised based on the date of joining.
The Special By-law and the G.O.No.107 has stated to follow the roster system
during the time of appointment. As far as the promotion is concerned, the revised
seniority list ought to be issued based on date of joining / marks. The learned
Counsel for the respondents submitted that the seniority is revised as per the
merits and the candidates were promoted as Assistants. Thereafter, promoted as
Assistant Manager and also Manager. However, four persons were promoted
based on the seniority list under roster system. Since they have put in service for
more than eight years, the said candidates ought to be reverted. Therefore, prayed
to fix some date and based on the cut off, the promotions can be given effect.
4. Heard Mr.S.Kameswaran, learned Government Advocate appearing for
first respondent, Mr.D.Shanmugaraja Sethupathi, learned Counsel appearing for
the second respondent, Mr.V.O.S.Kalaiselvam, learned Counsel appearing for the
respondent Nos.4 to 13 and there is no appearance for the respondent Nos.15 &
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W.P.(MD)No.15059 of 2018
5. The issue of fixing seniority was dealt with by the Hon’ble Supreme
Court in Bimlesh Tanwar vs. State of Haryana and others reported in (2003) 5
Supreme Court Cases 604 and the relevant portion is extracted hereunder:
“40. An affirmative action in terms of Article 16(4) of the
Constitution is meant for providing a representation of a class of
citizenry who are socially or economically backward. Article 16 of
the Constitution of India is applicable in the case of an
appointment. It does not speak of fixation of seniority. Seniority is,
thus, not to be fixed in terms of the roster points. If that is done, the
rule of affirmative action would be extended which would strictly
not be in consonance of the Constitutional Schemes. We are of the
opinion that the decision in P.S.Ghalaut does not lay down a good
law.
50. It has been noticed hereinbefore, that the Punjab and Haryana
High Court in exercise of its power of control under Article 235 of
the Constitution of India had been determining inter se seniority of
the candidates in terms of the instructions of the State dated
27.04.1972, as quoted supra. In absence of any statutory rules, the
said practice was developed which cannot be said to be arbitrary.
In any event, such practice cannot be interfered with at this stage,
keeping in view the fact that the rights of a large number of officers
must have already been determined in terms thereof. In the instant
case, Respondents 8 to 11 admittedly were more meritorious. They
were unjustly deprived of their right of appointment, although they
were entitled thereto having regard to Rule 10 of the Rules. They
suffered for no fault on their part. They had to approach the High
Court for ventilating their grievances. The High Court directed the
first respondent herein to make appointment and only pursuant
thereto and in furtherance thereof they were appointed. Should they
in the aforementioned situation be permitted to lose their seniority
is the question involved in this appeal. The answer thereto must be
rendered in the negative. Long-standing practice as well as justice
and equity favour the respondents. It is beyond any cavil that merit
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W.P.(MD)No.15059 of 2018
has a role to play in the matter of determination of inter se
seniority.”
The question raised in the said judgment is whether the seniority has to be fixed
based on the list prepared based on reservation or it should be on the basis of
merits. The Honourable Supreme Court has held that Inter se seniority of the
candidates who are appointed on the same day would be dependent on the rules
governing the same. Moreover, it has been held that the Recruitment Committee
ought to appoint based on the roster system. Thereafter, the seniority list ought to
be published based on the merits. In short, the Recruiting Authority should follow
the roster system, thereafter, the Appointing Authority should prepare the list
based on the merits and that would be the seniority list for further promotions.
Therefore, the issue is settled in Bimlesh Tanwar's case. Therefore, the Official
respondents are directed to prepare the list based on merits and marks and publish
the seniority list among the Assistants. Thereafter, further promotion shall be
considered.
6. A plea was raised that G.O. Ms. No. 107 and the Special Bye-law of the
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W.P.(MD)No.15059 of 2018
society prescribes to follow reservation / roaster and the same is rejected, since
the said Government Order and the Special Bye-law only states that while
recruitment reservation ought to be followed. This Court is of the considered
opinion the said Government Order and the Special Bye-law is not stating that for
promotion also reservation / roaster ought to be followed. It is made clear that for
recruitment reservation ought to be followed, but for drawing of seniority list for
promotion marks and merits alone ought to be followed.
7. The respondents are directed to issue the revised seniority list based on
marks in the light of Bimlesh Tanwar's case, thereafter, issue promotion. Since
the issue is settled in Bimlesh Tanwar's case, the claim of the petitioners to follow
reservation / roaster is incorrect and illegal. Therefore, the seniority list based on
the marks has to be followed and hence there is no merits in this case.
8. The said contention of the respondents that four candidates were granted
promotion long back based on reservation and the said four persons shall be
exempted from reconsideration. The contention of the official respondents that
the promotion was granted long back based on reservation / roaster is accepted,
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W.P.(MD)No.15059 of 2018
then promotion was granted without authority of law, which means is illegal
promotion. Illegality cannot be regularized by court orders. Moreover, it will
affect the promotional aspects of the other contenders. Therefore, this Court
cannot authorize an illegality and the claim of the official respondents regarding
the said four persons cannot be entertained.
9. The official respondents should strictly follow the Bimlesh Tanwar case
and redraw the seniority list based on marks and grant promotion. This shall be
followed for persons who were granted illegal promotion earlier.
10. Since the claim of the writ petitioners is against the order passed in
Bimlesh Tanwar’s case, hence the Writ Petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
04.04.2022
Index : Yes / No
Internet : Yes
jbr
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W.P.(MD)No.15059 of 2018
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the Advocate/litigant
concerned.
To
1. The Registrar of Co-Operative Societies,
O/o. the Registrar of Co-Operative Societies,
No.370, EVR Periyar High Road,
Kilpauk, Chennai – 10.
2.The Managing Director cum Joint Registrar,
Ramanathapuram District Central Co-operative Bank Ltd.,
No.370, EVR Periyar High Road,
Kilpauk,
Chennai-10.
3.The Joint Registrar of Co-operative Societies,
Collectorate Complex,
Ramanathapuram-623503.
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W.P.(MD)No.15059 of 2018
S.SRIMATHY, J
jbr
Order made in
W.P.(MD)No.15059 of 2018
04.04.2022
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