Madras High Court
S.Kadalkannan vs The Registrar Of Co-Operative ... on 4 April, 2022
W.P.(MD)No.1734 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.04.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.1734 of 2016
and
W.M.P.(MDNos.1582 & 1499 of 2016
1. S.Kadalkannan
2. S.Muthuvel
3. P.Kasilingam
4. G.Shanmuga Sundaram
5. A.Manickkaraj
6. D.Arunkumar
7. V.Kanimozhi
8. P.Velmurugan
9. G.Jeyabalan ... Petitioners
vs
1. The Registrar of Co-operative Socities,
170,E.V.R. Periyar Salai
Co-operative Bank Ltd.,
Kooturavu Nagar,
Trichy Road,
Dindigul-624 005.
2. The Managing Director/Joint Registrar of
Co-operative Societies,
1/10
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W.P.(MD)No.1734 of 2016
Dindigul District Central,
Co-operative Bank Ltd.,
Kooturavu Nagar, Trichy Road,
Dindigul-624 005.
3. The President,
Dindigul District Central Co-operative Bank Ltd.,
Kooturavu Nagar,
Tirunelveli Road,
Dindigul-624 005. ... 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 on the file of
the 1st respondent circular in Na.Ka.No.55158/2015/Mavapa1 dated 21.09.2015
and the seniority list fixed by 2nd respondent in Na.Ka.No.87/2009-10/pa1 dated
11.3.2014 and quash the same and direct the 2nd respondent to fix the seniority
list based on the merits and prepare the seniority list based on the marks obtained
in their appointments.
For Petitioner : Mr.V.O.S.Kalaiselvam
For Respondents : Mr.S.Kameswaran for R1
Government Advocate (Civil side)
Mr.D.Shanmugaraj Sethupathi for R2 & R3
2/10
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W.P.(MD)No.1734 of 2016
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to challenge the impugned order dated 21.09.2015 and the impugned
seniority list dated 11.03.2014 and the consequential relief to prepare the
seniority list based on the marks obtained during their appointments.
2. The petitioner worked as Assistant in the second respondent Bank on
29.11.2010. The written examinations were held for such recruitment. The
appointments were made both on merits based on the marks obtained in the
written examination as well as the roster system. Thereafter, vide order, dated
11.03.2014, seniority list was published and the respondents called for objections.
All the petitioners aggrieved over the seniority list and submitted their objections
on 19.03.2014. The contention of the petitioner is that the seniority list is
prepared based on the roster system as per the serial number as per the
appointment order dated 29.11.2010. Thereafter, the petitioner obtained
information under Right to Information Act and it came to the knowledge of the
petitioner that the Official respondents are following the seniority list based on
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W.P.(MD)No.1734 of 2016
the roaster. The respondents through their reply dated 27.11.2015 have admitted
that the seniority list is prepared as per the circular of the Registrar of Co-
operative Societies in Na.Ka.No.111439/2013/MaVaPa1 dated 17.11.20155 as
well as the Tamil Nadu Government (Nilai) G.O.No.107 dated 08.04.2010, the
roster system was followed in preparing the seniority list.
3. The contention of the petitioner is that G.O.No.107 states that roster
system should be followed for appointments and no where it is referred that
roaster should be followed for promotion. However, only in the circular date
17.11.2015 referring the G.O.No.107 has stated that the promotion shall be based
on the roster system. Therefore, the claim of the petitioner is that the circular is
erroneous which is passed without considering the Government Order in its
proper perspective. The contention of the respondents is that based on the said
circular roaster system is followed for preparing seniority list and promotion. In
Tamil Nadu the entire Co-operative Society is following the same system for very
many years. Therefore, at this point, the same cannot be changed, since it will
unsettle the settled issues. This Court has already granted the Interim Order dated
28.01.2016 whereby the seniority list drawn based on roaster was stayed. The
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W.P.(MD)No.1734 of 2016
respondents have filed a Vacate Stay petition.
4. Heared Mr.V.O.S.Kalaiselvam, learned Counsel appearing for the
petitioner, Mr.S.Kameswaran, learned Government Advocate appearing for first
respondent and Mr.D.Shanmugaraja Sethupathi, learned Counsel appearing for
the second and third respondent.
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
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.
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W.P.(MD)No.1734 of 2016
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
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
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W.P.(MD)No.1734 of 2016
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, bur for drawing of seniority list for
promotion marks and merits alone ought to be followed.
8. Since the issue is settled in Bimlesh Tanwar's case, the impugned order
passed by following reservation / roaster is illegal and the same is liable to be set
aside. The impugned order is set aside and the respondents are directed to issue
the revised seniority list based on marks in the light of Bimlesh Tanwar's case,
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W.P.(MD)No.1734 of 2016
thereafter, issue promotion. The official respondents should strictly follow the
Bimlesh Tanwar case and redraw the seniority list based on marks and the said
exercise shall be completed within a period of eight weeks from the date of
receipt of the copy of the order.
9. With the above direction, the Writ Petition is allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
04.04.2022
Index : Yes / No
Internet : Yes
jbr
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.
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W.P.(MD)No.1734 of 2016
To
1. The Registrar of Co-operative Socities,
170,E.V.R. Periyar Salai
Co-operative Bank Ltd.,
Kooturavu Nagar,
Trichy Road,
Dindigul-624 005.
2. The Managing Director/Joint Registrar of
Co-operative Societies,
Dindigul District Central,
Co-operative Bank Ltd.,
Kooturavu Nagar, Trichy Road,
Dindigul-624 005.
3. The President,
Dindigul District Central Co-operative Bank Ltd.,
Kooturavu Nagar,
Tirunelveli Road,
Dindigul-624 005.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.1734 of 2016
S.SRIMATHY, J
jbr
Order made in
W.P.(MD)No.1734 of 2016
04.04.2022
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