Madras High Court
K.Chakrapani vs The District Collector on 29 April, 2022
W.P.No.19400 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.04.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.19400 of 2010
K.Chakrapani .. Petitioner
Versus
1. The District Collector,
Tiruvallore District,
Tiruvallore – 602 001.
2. S.Yuvaraj
3. S.Gopal
4. T.E.Sivaprakasam
5. M.Narasimhan
6. A.Mohan
7. M.Babu
8. G.Madhavan
9. G.Balasubramanian
10. D.Lakshmi
11. M.Dhanapal
12. Syed Lathupudin
13. Raja T.Vasuki
14. B.Arul
15. K.Ravi
16. S.Natarajan
17. M.Balakrishnan
18. Meivazhi Anjaneya Gounder
19. D.Vijayakumar
20. VR.Rajasekaran
21. S.Anandan
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W.P.No.19400 of 2010
22. M.Ramakrishnan
23. R.Venkatesan
24. K.M.Thamilarasu
25. K.Vijayakumari
26. V.Jayabalan
27. S.V.Sudakar Pillai
28. D.Mahendran
(R2 to 28 impleaded vide Order, dated 12.04.2022
made in M.P.No.1 of 2012 in W.P.No.19400 of 2010) .. Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India
to issue a Writ of Certiorari to call for the records relating to the impugned
proceedings of the respondent issued in
Na.Ka.No.10163/2010/Establishment-2, dated 29.03.2010 and quash the
same.
For Petitioner : Mr.R.Parthiban
For Respondents : Mrs.E.Ranganayaki
Additional Government Pleader
for R1
: No Appearance for RR-2 to 28
ORDER
The petitioner, who was working as Assistant under the first
respondent, has filed the present Writ Petition, challenging the impugned
seniority list, dated 29.03.2010. According to the petitioner, the petitioner
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W.P.No.19400 of 2010
was promoted to the post of Assistant on 31.03.1998, while the respondents
2 to 28 herein were promoted subsequently from the year 2000 onwards.
Therefore, when the first respondent sought to publish the seniority list in
respect of the post of Assistant, they correctly fixed the seniority and
published the tentative list on 15.10.2009 in which the petitioner's name was
in Serial No.46 and the respondent Nos.2 to 28 were placed below him.
However, it seems that the respondent Nos.2 to 28 filed objections to the
said tentative seniority list, dated 15.10.2009 and based on their objections,
the impugned seniority list is issued which is dated 29.03.2010 in which the
petitioner's name is now pushed to Serial No.66-B while the respondent
Nos.2 to 28 are brought above the petitioner. Aggrieved by the same, the
present Writ Petition is filed.
2. The primary contention of the petitioner is contained in ground (F)
and (G) of the affidavit, the essence of which is that as per Rule-35 of the
Tamil Nadu State and Subordinate Services General Rules, when the
seniority is issued in respect of the post of Assistant, the date on which the
incumbents are promoted as Assistants is the only relevant factor and by any
reason, if the respondent Nos.2 to 28 were wrongfully denied promotion,
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W.P.No.19400 of 2010
unless the same is reviewed and their date of promotion as Assistants
precedes the date of promotion of the petitioner before 31.03.1998, the
respondent Nos.2 to 28 can never be placed as seniors as that of the
petitioner.
3. The respondents sought to contest the Writ Petition by filing a
counter affidavit on three grounds. Firstly, it is their contention that the
respondent Nos.2 to 28 submitted the objections to the tentative seniority
list wherein they have pointed out valid grounds by which they were not
included in the panel earlier and therefore, their grievance had to be
redressed and accordingly, the respondent Nos.2 to 28 who are originally
seniors in the post of Junior Assistants were correctly restored their position
in the impugned seniority list.
4. The second objection is that the petitioner did not submit any
objection to the tentative seniority list and therefore cannot file the Writ
Petition. The third objection is that there is an appeal remedy to the
petitioner as against the seniority list and the same has not been availed and
therefore, the Writ Petition is liable to be dismissed.
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W.P.No.19400 of 2010
5. Heard Mr.R.Parthiban, learned Counsel for the petitioner and
Mrs.Ranganayaki, learned Additional Government Pleader for the first
respondent and perused the material records of the case. Even though
notices have been served, the respondent Nos.2 to 28 have not appeared
before the Court.
6. As a matter of fact in matters of inter se seniority, it has been held
that the first respondent almost takes the place of an arbiter when two sets of
employees claim inter se seniority and therefore, it has to be first noted that
the respondent Nos.2 to 28 are not before this Court to defend their seniority
over and above the petitioner. Now, the stand of the first respondent is that
various grievances of respondent Nos.2 to 28 that they ought to have been
included in the panel before the petitioner was taken into account and
accordingly their seniority was restored. In my view, the same is not a
relevant factor. For any reason, if the first respondent felt that the
respondents 2 to 28 were not validly given promotion, unless the same is
rectified and their date of promotion of Assistants is notionally pre-dated to
that of the petitioner before 31.03.1998, the respondents 2 to 28 cannot be
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W.P.No.19400 of 2010
placed as seniors above the petitioner even while their date of promotion of
Assistants is from the year 2000 onwards. The seniority is in respect of the
cadre of Assistant and the respondent Nos.2 to 28 cannot claim seniority
even before the day when they were born into the cadre and therefore, the
impugned seniority list goes against the very basic tenet of service
jurisprudence. Thus, the petitioner is entitled to succeed.
7. The second ground of defense raised by the respondent as if the
petitioner did not raise an objection to the tentative seniority list does not
hold water since the tentative seniority list was in favour of the petitioner
and therefore, there was no occasion for him to raise objection to the
tentative seniority list. Hence, this ground is without any merit.
8. The final objection raised by the respondent is that the impugned
order of seniority itself provides for an appeal and without availing the
alternative remedy, this Writ Petition is not maintainable. To that there
were two replies on behalf of the petitioner. The learned Counsel for the
petitioner would submit that even though it is mentioned in the impugned
order, there is no specific statutory provision providing for appeal. Further
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W.P.No.19400 of 2010
there was no delay in filing the Writ Petition in as much as the impugned
order is dated 29.03.2010 and the Writ Petition is filed on 23.08.2010 itself
and when the Writ Petition having been entertained at this point of time he
cannot be relegated to the alternative remedy. While it is correct that there
is no specific provision providing an appeal as against the seniority list,
however Rule 57 of the Tamil Nadu State and Subordinate Services Rules
provides that whenever there is no specific provision for appeal or review is
there in the rules against any order passed under the said rules in redressal
of the grievance, a general appeal or review is maintainable to the
appropriate authority. Therefore, the submission of the learned Counsel for
the petitioner that there is no statutory appeal cannot be accepted as there is
an appeal provided. But, however, when this Court had admitted the Writ
Petition and entertained the same on merits and the pleadings have been
completed, after 12 years of the entertainment of the Writ Petition, now the
petitioner cannot be relegated to the remedy of alternative relief. This
position is clearly laid down by the Hon'ble Supreme Court of India in the
judgment of Durga Enterprises (P) Ltd. Vs. Principal Secretary, Govt. of
U.P.1. Therefore, when the petitioner categorically succeeds on merits, at
this belated point of time, he cannot be relegated to the alternative remedy
1 (2004) 13 SCC 665
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W.P.No.19400 of 2010
and therefore, I am not in a position to accept the plea of the learned
Additional Government Pleader in the facts and circumstances of the case.
9. The petitioner was aged 48 years at the time of filing of the Writ
Petition and now has reached the age of 60 years and he is likely to have
been superannuated. However, the learned Counsel for the petitioner is not
exactly sure of the date of superannuation.
10. Therefore, I am inclined to allow the Writ Petition on the
following terms:-
(i) The impugned seniority list, dated 29.03.2010 is set aside in as
much as it places the petitioner below the respondent Nos.2 to 28 and
consequently, the first respondent is directed to restore the seniority of the
petitioner as per the tentative seniority list, dated 15.10.2009 over and above
the respondent Nos.2 to 28;
(ii) The petitioner will be entitled to the consequential promotion, if
any, on account of the revision of the seniority, but, however, such benefit
will be granted notionally without any actual arrears of pay/pension, while
the petitioner is entitled to arrears prospectively from the date of this order;
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W.P.No.19400 of 2010
(iii) The above exercise shall be carried out by the first respondent
within a period of four months from the date of receipt of copy of the order.
(iv) However, there shall be no order as to costs. Consequently,
M.P.No.1 of 2010 is closed.
29.04.2022
Index : yes
Speaking order
grs
To
The District Collector,
Tiruvallore District,
Tiruvallore – 602 001.
https://www.mhc.tn.gov.in/judis
W.P.No.19400 of 2010
D.BHARATHA CHAKRAVARTHY, J
grs
W.P.No.19400 of 2010
29.04.2022
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