Madras High Court
P.Srikumar vs High Court Of Judicature Of Madras on 30 June, 2022
W.P.No.24177 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.06.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.24177 of 2021
P.Srikumar .. Petitioner
Vs
1.High Court of Judicature of Madras,
rep. by its Registrar General,
Chennai - 600 104.
2.The Government of Tamilnadu,
rep. by the Secretary to Law,
Fort St. George,
Chennai - 600 009.
3.The Tamilnadu Public Service Commission (TNPSC),
rep. by its Secretary,
Park Town, Chennai-600 003. .. Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying for a writ of mandamus directing the first respondent to
notify/publish the re-fixation of the petitioner's seniority in
accordance with the resolution of its Administrative Committee dated
21.03.2016 and consequently grant all the attendant benefits
commensurate with the petitioner's revised position in the seniority
list, including pay fixation, disbursal of annual increments etc.
____________
Page 1 of 18
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
For the Petitioner : Mr.T.Gowthaman
For the Respondents : Mr.B.Vijay
for respondent No.1
: Mr.P.Muthukumar
State Government Pleader
assisted by
Mr.Alagu Gowtham
Government Advocate
for respondent No.2
: Ms.G.Hema
Standing Counsel
for respondent No.3
ORDER
(Order of the Court was made by the Hon'ble Chief Justice)
This writ petition has been filed to re-fix the seniority of the
petitioner in accordance with the resolution of the Administrative
Committee of the High Court dated 21.03.2016 and to grant
consequential benefits to the petitioner.
2. The case of the petitioner is that he was recruited as Civil
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
Judge along with 102 other officers in the year 2003. The petitioner
secured 5th rank in the said selection and was, accordingly, given
appointment on the post of Civil Judge in the year 2003 itself. As
per the rules, seniority of the Judicial Officers should be determined
based on the marks obtained by them in the recruitment i.e. in
order of merit, and not based on the communal roster. The
respondents, however, prepared the seniority list based on the
communal roster and, accordingly, flouted the rules for
determination of the seniority.
3. The petitioner was then promoted to the post of Senior Civil
Judge during the year 2014 and his seniority was fixed based on the
marks secured therein. Out of 10 officers promoted as Senior Civil
Judges, only three of them had secured higher marks than the
petitioner and, accordingly, seniority was drawn in order of merit
position in the promotion. The petitioner then submitted a
representation on 24.4.2015 to the first respondent for re-fixation of
the seniority based on the merit ranking in the post of Civil Judge in
the light of the judgment of the Apex Court in the case of Bimlesh
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
Tanwar v. State of Haryana, (2003) 5 SCC 604.
4. It is stated that, in the meanwhile, few officers of
subsequent batch of 2009 filed writ petitions, being W.P.Nos.20449
to 20452 of 2015, praying for fixation of seniority as per merit
ranking in the selection conducted by the Tamil Nadu Public Service
Commissioner and not as per the communal roster point. A Division
Bench of this Court held that seniority of the Judicial Officers is to
be fixed based on the merit ranking in the recruitment and not
based on communal roster point. In the light of the aforesaid, the
representation made by the petitioner was considered by the
Administrative Committee and a decision was taken on 21.3.2016 to
re-fix the seniority of the petitioner's batch apart from other batches
till the year 2012 and, accordingly, revision of seniority was to be
made for the recruitees of 2003 till 2012. But it was not re-fixed.
In the meanwhile, W.P.Nos.20449 to 20452 of 2015 were decided
by the judgment dated 20.07.2021, wherein the following directions
were given:
"41. Accordingly, W.P.Nos.20449, 20451 and 20452 of
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
2021 are disposed of with the following directions:
(i) The revised seniority lists as prepared in
accordance with the marks obtained by the candidates
recruited to the post of Civil Judge (Junior Division)
would prevail irrespective of the order in which they
may have been shown by the Public Service
Commission or their roster positions. If two or more
appointees obtain identical marks, the older or oldest
in age, as the case may be, will occupy the higher or
highest position between such candidates in the
seniority list.
(ii) The above direction will apply only to appointees
recruited to the post of Civil Judge (Junior Division)
2009 onwards.
(iii) It is needless to say that the dates of appointment
are of crucial importance when preparing the seniority
list, but when a common recruitment process is
undertaken, all new recruits must be deemed to have
been appointed on the same date and their order of
seniority will be in accordance with the marks obtained
in the recruitment examination, irrespective of the
date of joining and regardless of the positions they
occupied as per the roster.
(iv) The promotions obtained till today by candidates
who have been recruited as Civil Judge (Junior
Division) in or after the year 2009 will remain
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
unaffected by this order, in the sense that no one
already promoted should be demoted to a lower post.
(v) Even if the revision results in a higher ranked
officer remaining in a lower post than a lower ranked
officer, promotion will be on the basis of the
prospective vacancy in the promotional post.
(vi) For Civil Judges (Senior Division) who may be
eligible to take the limited competitive examination in
future, all judges ranked higher than the last-placed
Civil Judge (Senior Division) who is entitled to take the
examination on the basis of the time spent in the post,
will be eligible irrespective of not having spent the
requisite time in the post.
(vii) As far as the 2020 recruitment process is
concerned, since the appointments have not yet been
made, the seniority list must be prepared in terms of
this order and on the basis of the descending order of
marks obtained by the appointees at the recruitment
examination. To clarify for all purposes, the person
with the highest marks must be placed first in the
seniority list and so on till the person with the lowest
marks in the last position, irrespective of what slots
they may have occupied as per the roster.
(viii) Any fixation or re-fixation of seniority made in
accordance with law for judges recruited prior to 2009
will remain unaffected by this order."
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
5. The petitioner was expecting that his seniority position
would be revised, but as no action was taken by the respondents,
this writ petition was filed seeking a direction on the respondents to
re-fix the seniority of the petitioner in the post of Civil Judge and to
grant consequential benefits in promotion and fix seniority in the
higher post.
6. The writ petition has been contested by learned counsel
appearing for the respondents and it is submitted that it suffers
from laches, as seniority list of Civil Judges recruited in the year
2003 cannot be challenged by bringing a writ petition in the year
2021. It is more so when during the intervening period, the
petitioner was given promotion to the post of Senior Civil Judge,
followed by promotion to the cadre of District Judge. The prayer to
revise the seniority would affect not only the final seniority in the
cadre of Civil Judges, but would further unsettle the promotions,
which is not permissible by filing a belated petition. Thus, the writ
petition suffers from laches, thus, deserves to be dismissed in the
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
light of the judgment of the Apex Court in the case of Shiba
Shankar Mohapatra and others v. State of Orissa and others,
(2010) 12 SCC 471. He further submitted that the prayer in the
writ petition is going against the judgment of the Division Bench of
this Court dated 20.07.2021, where the direction was not to alter
the seniority list of those recruited prior to 2009. The judgment
aforesaid has been upheld by the Apex Court in S.L.P.(C)
Nos.18285-18286 of 2021, by order dated 25.02.2022. Thus, the
prayer is to dismiss the writ petition.
7. We have considered the submissions made by rival parties
and also perused the materials available on record.
8. The writ petition has been filed seeking re-fixation of
seniority in the cadre of Civil Judge and consequential benefits. The
writ petition has been filed by the petitioner who was recruited to
the post of Civil Judge in the year 2003. He did not challenge the
seniority position till 2015 and in between he was given promotion
to the higher post of Senior Civil Judge. The subsequent challenge
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
to the seniority was not by a writ petition, but by a representation
submitted to the first respondent, which was considered by the
Administrative Committee with a favourable direction, according to
the petitioner, but the decision of the Administrative Committee was
not given effect to. There is nothing on record to show that the
decision aforesaid was approved by the Full Court.
9. In any case, the representation aforesaid was made after a
lapse of 12 years of the recruitment and the present writ petition is
filed after a lapse of 5 years of the decision of the Administrative
Committee. Totally, the period intervening is of nearly 18 years. In
the meanwhile, the petitioner along with others were promoted to
the post of Senior Civil Judge, followed by promotion to the cadre of
District Judge. The facts aforesaid have been given to show the
laches in filing the writ petition, because acceptance of the prayer
will not only unsettle the seniority of the recruitees of 2003 but even
promotion and determination of seniority in a higher post and, that
too, when none of the officers who would be affected by it are
before this Court.
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
10. At this juncture, it is relevant to refer to the law
enunciated by the Apex Court in the case of Shiba Shankar
Mohapatra and others (supra), where a claim for seniority was
made after passage of a considerable period of time. The Apex
Court held as under:
“18. The question of entertaining the petition
disputing the long-standing seniority filed at a
belated stage is no more res integra. A
Constitution Bench of this Court, in Ramchandra
Shankar Deodhar v. State of Maharashtra [(1974) 1
SCC 317] considered the effect of delay in challenging
the promotion and seniority list and held that any
claim for seniority at a belated stage should be
rejected inasmuch as it seeks to disturb the
vested rights of other persons regarding
seniority, rank and promotion which have
accrued to them during the intervening period. A
party should approach the court just after accrual
of the cause of complaint. While deciding the said
case, this Court placed reliance upon its earlier
judgments, particularly in Tilokchand
Motichand v. H.B. Munshi [(1969) 1 SCC 110],
wherein it has been observed that the principle on
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
which the court proceeds in refusing relief to the
petitioner on the ground of laches or delay, is
that the rights, which have accrued to others by
reason of delay in filing the writ petition should
not be allowed to be disturbed unless there is a
reasonable explanation for delay. The Court further
observed as under: (Tilokchand case [(1969) 1 SCC
110] , SCC p. 115, para 7)
“7. … The party claiming fundamental rights
must move the Court before other rights come
into existence. The action of courts cannot
harm innocent parties if their rights emerge
by reason of delay on the part of the person
moving the Court.”
19. This Court in Ramchandra Shankar Deodhar
case [(1974) 1 SCC 317] also placed reliance upon its
earlier judgment of the Constitution Bench
in Rabindranath Bose v. Union of India [(1970) 1 SCC
84], wherein it has been observed as under:
(Rabindranath Bose case [(1970) 1 SCC 84] , SCC p.
97, para 33)
“33. … It would be unjust to deprive the
respondents of the rights which have accrued
to them. Each person ought to be entitled
to sit back and consider that his
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
appointment and promotion effected a
long time ago would not be set aside after
the lapse of a number of years.”
21. The issue of challenging the seniority list, which
continued to be in existence for a long time, was again
considered by this Court in K.R. Mudgal v. R.P.
Singh [(1986) 4 SCC 531 : 1987 SCC (L&S) 6 : AIR
1986 SC 2086] . The Court held as under: (SCC pp.
532 & 536, paras 2 & 7)
“2. … A government servant who is appointed
to any post ordinarily should at least after a
period of 3 or 4 years of his appointment be
allowed to attend to the duties attached to his
post peacefully and without any sense of
insecurity. …
***
7. … Satisfactory service conditions
postulate that there should be no sense of
uncertainty amongst the government
servants created by writ petitions filed
after several years as in this case. It is
essential that anyone who feels aggrieved
by the seniority assigned to him should
approach the court as early as possible as
otherwise in addition to the creation of a
sense of insecurity in the minds of the
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
government servants there would also be
administrative complications and
difficulties. … In these circumstances we
consider that the High Court was wrong in
rejecting the preliminary objection raised on
behalf of the respondents to the writ petition
on the ground of laches.”
23. In B.S. Bajwa v. State of Punjab [(1998) 2 SCC
523 : 1998 SCC (L&S) 611] this Court while deciding
the similar issue reiterated the same view, observing
as under: (SCC p. 526, para 7)
“7. … It is well settled that in service
matters the question of seniority should
not be reopened in such situations after
the lapse of a reasonable period because
that results in disturbing the settled
position which is not justifiable. There
was inordinate delay in the present case
for making such a grievance. This alone
was sufficient to decline interference
under Article 226 and to reject the writ
petition.”
29. It is settled law that fence-sitters cannot be
allowed to raise the dispute or challenge the validity of
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
the order after its conclusion. No party can claim the
relief as a matter of right as one of the grounds for
refusing relief is that the person approaching the court
is guilty of delay and the laches. The court exercising
public law jurisdiction does not encourage agitation of
stale claims where the right of third parties crystallises
in the interregnum. (Vide Aflatoon v. Lt. Governor of
Delhi [(1975) 4 SCC 285 : AIR 1974 SC 2077] ; State
of Mysore v. V.K. Kangan [(1976) 2 SCC 895 : AIR
1975 SC 2190] ; Municipal Council,
Ahmednagar v. Shah Hyder Beig [(2000) 2 SCC 48];
Inder Jit Gupta v. Union of India [(2001) 6 SCC 637 :
2001 SCC (L&S) 1083] ; Shiv Dass v. Union of
India [(2007) 9 SCC 274 : (2007) 2 SCC (L&S)
395]; A.P. SRTC v. N. Satyanarayana [(2008) 1 SCC
210 : (2008) 1 SCC (L&S) 161] and City and Industrial
Development Corpn. v. Dosu Aardeshir
Bhiwandiwala [(2009) 1 SCC 168] ).
30. Thus, in view of the above, the settled legal
proposition that emerges is that once the seniority
had been fixed and it remains in existence for a
reasonable period, any challenge to the same
should not be entertained. In K.R. Mudgal, this
Court has laid down, in crystal clear words that a
seniority list which remains in existence for 3 to 4
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
years unchallenged, should not be disturbed. Thus, 3-
4 years is a reasonable period for challenging the
seniority and in case someone agitates the issue of
seniority beyond this period, he has to explain the
delay and laches in approaching the adjudicatory
forum, by furnishing satisfactory explanation.”
[emphasis supplied]
11. Even if the aforesaid is ignored, this Court cannot go
against the decision of the Coordinate Bench, where the issue of
seniority was considered and closed for those who were recruited
prior to 2009. The relevant portion of the judgment has been
quoted earlier. Though learned counsel for the petitioner referred to
paragraph 41(viii) of the judgment as favourable to him, he has
ignored the fact that the petitioner was not extended the benefit of
re-fixation of seniority at any point of time. In view of the above,
the direction in paragraph 41(viii) of the judgment in
W.P.Nos.20449 to 20452 of 2015 is also adverse to the petitioner.
12. The judgment in W.P.Nos.20449 to 20452 of 2015 dated
20.07.2021 has been challenged before the Apex Court in SLP (C)
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
Nos.18285-18286 of 2021 and the same was dismissed on
25.02.2022 and, thus, the order has attained finality.
13. In the light of the aforesaid, we are unable to accept the
prayer made by the petitioner for re-fixation of seniority in the cadre
of Civil Judge for the recruitment made in the year 2003.
The writ petition is dismissed. There will be no order as to
costs. Consequently, W.M.P.No.25508 of 2021 is closed.
(M.N.B., CJ.) (N.M., J.)
30.06.2022
Index : Yes/No
bbr
To:
1.The Registrar General,
High Court of Judicature of Madras,
Chennai - 600 104.
2.The Secretary to Law,
Government of Tamilnadu,
Fort St. George,
Chennai - 600 009.
3.The Secretary,
Tamilnadu Public Service Commission (TNPSC)
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
Park Town, Chennai-600 003.
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24177 of 2021
THE HON'BLE CHIEF JUSTICE
AND
N.MALA,J.
bbr
W.P.No.24177 of 2021
30.06.2022
____________
https://www.mhc.tn.gov.in/judis
