Madras High Court

S.Vijayalakshmi vs The State Of Tamil Nadu on 13 June, 2023

                                                                  W.A.No.1483 of 2019 etc., (batch cases)


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 13.06.2023

                                                     CORAM :

                              THE HON'BLE MRS.JUSTICE J.NISHA BANU
                                              AND
                        THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                           W.A.No.1483, 1496, 1494, 1493, 1510, 1513 and 1491 of 2019
                       and C.M.P.Nos.10204, 10255, 10190, 10208, 10158, 10219 and 10274 of
                                                      2019

                    In W.A.No.1483 of 2019 :
                    S.Vijayalakshmi                                            ... Appellant

                                                       Versus

                    1. The State of Tamil Nadu,
                       Rep. by its Secretary to Government,
                       Rural Development and Panchayat Department,
                       Secretariat, Fort St. George,
                       Chennai – 600 009.

                    2. The Director of Rural Development and Panchayat,
                       Panagal Building, Saidapet,
                       Chennai – 600 015.

                    3. The District Collector,
                       Salem District,
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                    Page 1 of 18
                                                                   W.A.No.1483 of 2019 etc., (batch cases)
                        Salem.

                    4. J.R.Ravichandran
                    5. S.Tamil Selvan
                    6. N.Thiruverangan                                          ... Respondents




                    Prayer in W.A.No.1483 of 2019 : Writ Appeal filed under Clause 15 of

                    Letters Patent to set aside the orders passed by this Court in W.P.No.10438

                    of 2015, dated 06.01.2017.

                              For Appellant
                              (in all the cases)          : Mr.G.Sankaran, Senior Counsel
                                                            for Mr.Nedunchezhiyan.S

                              For Respondents             : Mr.Abishek, Government Advocate
                              (in all cases)                for RR-1 to 3

                                                          : Mr.L.Chandrakumar, for R4

                                                          : Mrs.T.Hemalatha, for RR-6 to 7

                                                          : No Appearance for R5

                                                   COMMON JUDGMENT

                    D.BHARATHA CHAKRAVARHY, J.

https://www.mhc.tn.gov.in/judis ___________

W.A.No.1483 of 2019 etc., (batch cases) All these Writ Appeals are filed by the appellants / writ petitioners,

aggrieved by the common order of the learned Single Judge dated

06.01.2017, in and by which, the Writ Petitions filed by them were

dismissed. The Writ Petitions were filed by the appellants / petitioners

questioning the orders passed rejecting their representation to rectify the

erroneous fixation of their seniority in the cadre of Assistant. Hereinafter,

the parties are referred to as per their array in the Writ Petitions.

2. The case of the petitioners was that they were Junior Assistants in

the Rural Development Department. To become eligible for promotion to

the next higher post of Assistant, they have to pass the following five

departmental tests:-

“I) Community Development Manual Paper-I

II) Village Swaraj

iii) Constitution of India and Miscellaneous Acts.

iv) Account Test and https://www.mhc.tn.gov.in/judis ___________

W.A.No.1483 of 2019 etc., (batch cases)

v) Tamil Nadu Panchayat Act, 1994.”

3. The petitioners cleared the aforesaid departmental tests on various

dates and thereafter, they were promoted as Assistants on various dates and

they joined in the said posts and are working in the said cadre. While so,

while determining inter se seniority in the cadre of Assistant, the date of

becoming eligible to be promoted as Assistant was taken into consideration

and accordingly, their seniority in the post of Assistant was fixed.

4. One S.Yuvaraj, challenged the same by filing the Writ Petition in

W.P.No.14595 of 2009 and by a judgment dated 30.04.2010 in the said

W.P.No.14595 of 2009, this Court allowed the Writ Petition and directed the

respondents to fix the seniority of the petitioner therein by taking into

consideration the date of promotion as Assistant and not the date of

clearance of departmental tests. Aggrieved by the same, the official

respondents filed W.A.No.2132 of 2011. However, the same was also

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W.A.No.1483 of 2019 etc., (batch cases) dismissed by the order dated 13.02.2013 and thereafter, on 15.04.2013, the

order was implemented in respect of the said Yuvaraj alone. Immediately

thereof, the petitioners submitted a joint representation dated 18.03.2014

submitting that the same mistake committed in respect of them shall also be

corrected. Since there was no positive response, they approached this Court

by way of W.P.No.31359 of 2014 and by the order dated 01.12.2014, this

Court directed the respondents to consider the said representation and pass

orders.

5. Pursuant thereto, the order dated 24.03.2015 was passed rejecting

the request of the petitioners on the ground that even the request of the said

Yuvaraj is not in accordance with rules, but, however, was implemented only

because of the directions of the Court and therefore, rejected the claim of the

petitioners. Challenging the same, the Writ Petitions are filed inter alia

contending that the fixation of seniority shall be only as per the rules relating

to seniority and according to the same, it is only the date of joining into the

https://www.mhc.tn.gov.in/judis ___________

W.A.No.1483 of 2019 etc., (batch cases) service in the cadre of Assistant which should be the criteria and not the date

on which they clear the departmental tests to become eligible shall be the

criteria.

6. The Writ Petitions were resisted by the respondents on the ground

that in all cases identically situated persons need not be extended the benefit

of a Judgment. When the petitioners did not approach the Court at the

earliest point of time, they cannot seek remedy belatedly. The petitioners

were all promoted as Assistants only by considering the fact of declaration

of their probation and passing of departmental tests without verification of

parental service as they have been absorbed from a different department and

since they have been granted promotion in batches as and when vacancies

arose, 'the adoption date' mode has been followed for administrative

convenience. Therefore, the Writ Petitions have to be dismissed.

7. The learned Single Judge, after adverting to the cases of both the

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W.A.No.1483 of 2019 etc., (batch cases) sides, found that even though relief is granted to identically placed employee

and that the other similarly situated persons should be treated alike, the

exception lies in the form of latches, delay and acquiescence. Therefore, the

belated claim of the petitioners cannot be entertained. The learned Single

Judge further held that since their parent department is Survey Department

and irrespective of the same, they have been given promotion as Assistants,

they are not entitled to seek seniority on the basis of the date of appointment,

date of promotion and dismissed the Writ Petitions, aggrieved by which, the

present Writ Appeals are filed by the Writ Petitioners.

8. Heard Mr.G.Sankaran, learned Senior Counsel for the appellants in

all the Writ Appeals; Mr.Abishek, learned Government Advocate for the

respondents 1 to 3, Mr.L.Chandrakumar, learned Counsel for the fourth

respondent and Mrs.T.Hemalatha, learned Counsel for the respondents 6 and

7 in all the Writ Appeals.

https://www.mhc.tn.gov.in/judis ___________

W.A.No.1483 of 2019 etc., (batch cases)

9. Mr.G.Sankaran, learned Senior Counsel for the appellants would

submit that all the aggrieved employees including the petitioners have been

making representations right from the date of erroneous fixation of seniority.

When the seniority is inter se and when relief is granted, it cannot be

implemented for one individual alone. Therefore, the respondents cannot

contend that the rule relating to fixation of seniority in respect of the said

Yuvaraj will be the date of promotion and in respect of the petitioners will be

the date of clearance of the departmental tests. There was no delay on the

part of the petitioners. He would further submit that the other ground, on

which the learned Single Judge dismissed the Writ Petitions, was that they

belong to other department and therefore, their seniority can even be fixed

on the basis of the clearance of departmental tests is without any basis.

10. Per contra, Mr.Abishek, learned Government Advocate for the

respondents 1 to 3 would submit that in the matters of seniority, the parties

should immediately approach the Court and the delay in respect thereof

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W.A.No.1483 of 2019 etc., (batch cases) cannot be condoned as the same would lead to cascading the effect of

undoing further promotions and upsetting the very administration itself. In

any event, the order impugned in the Writ Petitions rightly rejected the claim

of the petitioners on merits also and therefore, the Writ Appeal deserves to

be dismissed.

11. We have considered the rival submissions made on either side and

perused the material records of the case. Firstly, on merits, once the Writ

Petitioners are granted promotion and they have joined the post of Assistant

and are working, there cannot be any discrimination considering their source

of appointment as to whether they are from a different department or from

the same department. This position of law is clearly laid down by the

Hon’ble Supreme Court of India in State of Jammu and Kashmir Vs. Shri

Triloki Nath Khosa and Ors.1 and the paragraph No.45 of the said judgment

is extracted as hereunder :

" 45. Thus, all that Roshan Lal case [AIR

(1974) 1 SCC 19 https://www.mhc.tn.gov.in/judis ___________

W.A.No.1483 of 2019 etc., (batch cases) 1967 SC 1889] lays down is that direct recruits and promotees lose their birth-marks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals once again."

(emphasis supplied)

12. Similarly, when the seniority is fixed, the relevant criteria is only

the rules relating to seniority and the factors that they are absorbed from the

other department and the promotion is given by considering clearing of the

examinations, declaration of probation etc., will all become irrelevant. Once

promotion is granted that same is good for all practical purposes. The

respondent department cannot approbate and reprobate contending that it

will re-arrange the seniority irrespective of promotion. The law is very clear

that whenever any additional qualification or clearance of departmental test

is prescribed for promotion, once a senior clears the tests even belatedly,

thereafter, it is only the original seniority which will prevail and not the date https://www.mhc.tn.gov.in/judis ___________

W.A.No.1483 of 2019 etc., (batch cases) of clearance of examinations. Useful reference in this regard can be made to

the judgment of the Hon’ble Supreme Court of India in R.B. Desai and

Another Vs. S.K.Khanolker and Ors.2 (1999 7 SCC 54), more particularly

paragraph 9, which reads as under :

“ 9. .....We are of the opinion that if at the time of consideration of promotion the candidates concerned have acquired eligibility, then unless the rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility.

...” (emphasis supplied)

13. Thus, we are of the opinion that the order impugned in the Writ

Petition, holding as if the judgment of this Court in the earlier round in the

case of Yuvaraj is contrary to rules, is erroneous and this Court had

appropriately directed re-fixation of seniority. Once the re-fixation of

seniority is ordered, even though in a case of one individual, it is expected of

the respondents to follow the principle in respect of all the persons in the

(1999) 7 SCC 54 https://www.mhc.tn.gov.in/judis ___________

W.A.No.1483 of 2019 etc., (batch cases) same seniority list. Therefore, the case of the petitioners is squarely covered

by the earlier judgment and the respondents ought to have granted the

benefit even without any claim from the petitioners. In that view of the

matter, when the petitioners made representation immediately after grant of

benefit to Yuvaraj, it can neither be termed as belated nor it can be termed as

acquiescence. In that view of the matter, the prayer of the Writ Petitioners

deserves to be allowed.

14. Even though we have held that there was no undue delay and that

there is no acquiescence on the part of the petitioners, considering the

timeline, we are of the view that the petitioners will only be entitled to re-

fixation of their seniority and for consequential notional promotion, if any, to

the next higher post, but, without any back-wages and arrears to pay.

15. In the result,

(i) The Writ Appeals in W.A.No.1483, 1496, 1494, 1493, 1510, 1513

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W.A.No.1483 of 2019 etc., (batch cases) and 1491 of 2019 are allowed;

(ii) The Writ Petitions filed by the appellants are allowed on the

following terms:-

(a) The impugned order, dated 24.03.2015

in Na.Ka.No.82442/2014/C1 issued by the second

respondent shall stand quashed;

(b) The respondents 1 to 3 shall re-fix the

seniority by taking into account the original

seniority in the post of Junior Assistant and their

promotion as Assistant and not the date of

declaration of probation or passing of the

departmental tests;

(c) The appellants would be entitled for the

consequential notional promotion, if any, from the

date of promotion of their juniors and accordingly,

will be entitled to notional fixation of their pay

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W.A.No.1483 of 2019 etc., (batch cases) scale and salaries, but, however, will not be

entitled to the back-wages / arrears of pay. It is

also seen that of the seven appellants, five of

them, except V.Annadurai and D.Arulanandaraj

have now retired. In respect of the retired

petitioners, they will be entitled to notional

promotion and consequential re-fixation of their

last on benefits, if any, without any financial

benefits and they will be entitled for arrears of

pension from the date of carrying out of this

exercise.

(iii) The respondents shall carry out the exercise within two months

from the date of receipt of a copy of this judgment and the actual financial

benefits, including arrears of pay, will be payable from the said date of

implementation of the orders;

(iv) If there is any delay on the part of the respondents in

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W.A.No.1483 of 2019 etc., (batch cases) implementing the order, then the appellants will be entitled for financial

benefits including back-wages and arrears from the date of this order;

(v) There will be no order as to costs.

(vi) Consequently, connected Civil Miscellaneous Petitions are closed.

                                                                                             (J.N.B.,      J.)
                    (D.B.C., J.)
                                                                                  13.06.2023

                    Index                  : yes
                    Speaking order
                    Neutral Citation       : yes
                    grs

                    To

                    1. The Secretary to Government,