Madras High Court
K.Jeyakrishnan vs The Authority Under Section 153 Of ... on 4 April, 2022
W.P.(MD)No.7137 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.7137 of 2018
and
W.M.P.(MD)No.6873 of 2018
K.Jeyakrishnan ... Petitioner
vs
1. The Authority under Section 153 of the Tamilnadu
Co-operative Societies Act,
(Joint Registrar of Co-operative Societies),
Collectorate, Ramanathapuram.
2. The Managing Director,
Ramanathapuram District Central
Co-operative Bank Ltd.,
Ramanathapuram.
3. M.Balasubramanian
4. M.Saravanan
5. K.Paanja
6. M.Sowmiya Narayanan
7. K.Gopalakrishnan
8. S.Chellapandi Rajan
9. S.Santhi
1/10
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W.P.(MD)No.7137 of 2018
10. V.Meenatchisundaram
11. R.Selvarani
12. G.Ealumalai
13. R.Muthusudha
14. D.Sivabalan
15. Umayapandi
16. M.Thenammal
17. S.Velmurugan
18. T.Poongodi
19. M.Sundarakaleeshwari
20. T.Ramesh
21. T.Kumutha
22. M.Gayathri Devi
23. R.Kanagavalli
24. M.Malathi
25. A.Seetha
26. A.Suriyalakshmi ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records of the 1st Respondent
relating to the order passed in Revision Petition No.6/2012(Na.Ka.No.
3461/2015/Sapa) dated 29.1.2017 and quash the same grant such other relief(s) as
expedient to the facts and circumstances of the matter.
For Petitioner : Mr.S.Seenivasagan
for M.Ganesan
For Respondents : Mr.S.Kameswaran for R1
Government Advocate (Civil side)
Mr.D.Shanmugaraj Sethupathi for R2
No appearance for R3 to R26
2/10
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W.P.(MD)No.7137 of 2018
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorari, to quash the
impugned order passed in Revision Petition No.6 of 2012.
2. The facts of the case are that the petitioner and other 25 employees
including as respondent Nos.3 to 26 were selected for an appointment to the post
of Assistant. The process of recruitment was by way of calling from the eligible
candidates through Employment Exchange and calling for applications from the
qualified employees of the affiliated Societies. Thereafter, conducting written
examination as well as the interview and individual orders of appointments were
communicated to the selected candidates on 26.11.2010. The recruitment is based
on Rule 149 (3) of Tamil Nadu Co-operative Societies Rules as per By-law of No:
9 reservation of appointment is followed. The Registrar of Co-operative Society
by referring to the Gazette No.107 dated 08.04.2013 bearing G.O.Ms.No.55,
Personnel and Administration Reforms (S) dated 08.04.2010 has stated that
channelizing the 'Turn' for every Class of reservation rotation table consisting of
200 appointments as a Unit, shall be followed from 29.04.2009 itself. As per the
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W.P.(MD)No.7137 of 2018
Circular of the Registrar of the Co-operative Society through the communication
in Na.Ka.No.99306/09/MaVa dated 27.05.2010 circulated the copy of the Gazette
No:107 dated 08.04.2010 and directed to follow the communal rotation within
four months of the petitioner's appointment. The Bank published a seniority list
on 24.04.2011 for the post of Assistant on 01.04.2011. The list was published by
including the Assistants of the direct recruitment who were already in service.
The contention of the petitioner is that the seniority list did not indicate the mode
of issuing the seniority list. Since the seniority list was not in accordance with
the list prepared during the appointment and several objections were submitted.
Thereafter, the respondents stated that the said list is prepared based on the merits
and marks obtained at the time of recruitment. The contention of the petitioner is
that the respondents did not rely on the specific By-law relating to the service
conditions and other all service conditions. Therefore, the petitioner has filed this
writ petition.
3. The respondents have filed a counter affidavit stating that the issue of
seniority in the Co-operative Society was under litigation for several years. Some
Societies are following the seniority list based on the roster system and in some of
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W.P.(MD)No.7137 of 2018
the Societies the seniority list was revised based on the marks. In the present
case, the seniority is revised based on the marks. 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 the marks. Therefore, the respondents prayed to dismiss the writ
petition.
4. Heard Mr.S.Seenivasagan, learned Counsel appearing for the petitioner,
Mr.S.Kameswaran, learned Government Advocate appearing for first respondent,
Mr.D.Shanmugaraja Sethupathi, learned Counsel appearing for the second
respondent and there is no appearance for the respondent Nos.3 to 26.
5. The issue of fixing seniority was dealt with 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 Consitution of India is applicable in the case of an appointment.
It does not speak of fixation of seniority. Seniority is, thus, not to be
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W.P.(MD)No.7137 of 2018
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
has a role to play in the matter of determination of inter se
seniority.”
6. 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
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W.P.(MD)No.7137 of 2018
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.
7. A plea was raised that G.O. Ms. No. 107 and the Special Bye-law of the
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
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W.P.(MD)No.7137 of 2018
promotion marks and merits alone ought to be followed.
8. 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. The official
respondents should strictly follow the Bimlesh Tanwar case and draw the
seniority list based on marks and grant promotion. This shall be followed for
persons who were granted illegal promotion earlier and reverse their promotion.
9. Since the claim of the writ petitioners is against the order passed in
Bimlesh Tanwar’s case, the Writ Petition is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
04.04.2022
Index :Yes / No
Internet :Yes
jbr
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W.P.(MD)No.7137 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 Authority under Section 153 of the Tamilnadu
Co-operative Societies Act,
(Joint Registrar of Co-operative Societies),
Collectorate, Ramanathapuram.
2. The Managing Director,
Ramanathapuram District Central
Co-operative Bank Ltd.,
Ramanathapuram.
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W.P.(MD)No.7137 of 2018
S.SRIMATHY, J
jbr
Order made in
W.P.(MD)No.7137 of 2018
04.04.2022
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