Madras High Court
V.Gopal vs The Principal Secretary on 4 September, 2023
WP.No.43908 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 04.09.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.43908 of 2016
and
WMP.Nos.37727 and 37728 of 2016
V.Gopal ... Petitioner
Versus
1.The Principal Secretary
Government of Tamil Nadu
Welfare of Differently-abled Persons Department,
Fort St.George, Chennai – 600 009.
2.S.Murugaiah, I.A.S,
State Commissioner,
Commissionerate for the Differently-abled Persons,
K.K.Nagar, Chennai – 600 078. ... Respondents
** R2 – Deleted vide order dated 02.01.2017
in WP.No.43908/2017
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of Mandamus, directing the 2nd
respondent to pay compensation of Rs.1,00,000/- (Rupees One Lakh only)
1
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WP.No.43908 of 2016
from and out of his personal salary benefits to the petitioner for the
harassment, humiliation and mental agony suffered by the petitioner and for
depriving his fundamental right to livelihood and equality.
For Petitioner : Mr.R.Prabhakaran
For Respondents : Mr.S.Ravikumar
Special Government Pleader
ORDER
(1) The writ petition has been filed in the nature of a mandamus seeking
a direction to the 2nd respondent to pay compensation of Rs.1 lakh
from and out of the personal salary benefits of the 2 nd respondent who
had since been deleted as a party to the writ petition.
(2) The petitioner was appointed as Ministerial Assistant on 02.05.1983
in Social Welfare Department of Government of Tamil Nadu. This
Department was then bifurcated to form the Directorate of
Rehabilitation of the Disabled. He worked as Selection Grade Post
Graduate Assistant. He was appointed as P.G.Assistant on
24.12.1991. Thereafter, he had been asked to hold full additional
charge as Principal, Government Higher Secondary School for the
Blind at Poonamallee and its allied Units from 01.08.2002 till
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WP.No.43908 of 2016
29.08.2005 and thereafter, as Headmaster at Government Girls Higher
Secondary School, Trichy, from 01.06.2006 till 17.09.2011. The
petitioner had earlier filed a writ petition in WP.No.28336/2005 and
by an order dated 05.09.2005, it was directed that his representation
for seniority be considered by the respondents. The petitioner then
again filed WP.No.16689/2009 seeking a direction to promote him to
the post of Principal, Government Higher Secondary School for the
Blind at Poonamallee, with effect from 01.06.1995 and also
consequential promotion as Assistant Director, Special Schools,
which was vacant from 01.08.2002. The petitioner then withdrew
WP.No.16689/2009 and it was dismissed as withdrawn. The
petitioner claimed that he had been denied due promotion. He had
made several representations to the respondents. Finally, by
proceedings dated 12.11.2015, the 2nd respondent had stated that the
petitioner was not entitled for promotion as he had not been included
in the panel for the post of Principal [Regular]. The petitioner then
filed WP.No.5641/2016 seeking to interfere with that particular order.
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WP.No.43908 of 2016
It is stated that an order of status quo had been granted and that the
writ petition is still pending. The petitioner had also filed
WP.No.9283/2017, again seeking promotion by reckoning his service
with effect from 24.12.1991 and arrears of salary.
(3) A learned Single Judge of this Court, by an order dated 27.10.2022,
had dismissed the writ petition. The petitioner now claims
compensation of Rs.1 lakh to be paid to him from the 2nd respondent's
salary. The 2nd respondent had been deleted as a party to the writ
petition by an order dated 02.01.2017 in WP.No.43908/2017.
Therefore, there is no source for payment of compensation to the
petitioner herein. Additionally, on 27.10.2022, subsequent to the
deletion of the 2nd respondent, the earlier writ petition filed by the
petitioner in WP.No.9283/2017 had also been dismissed. The ratio
therein applies to the facts of this particular case.
(4) Let me extract the said order for better appreciation:-
''2.The petitioner states that he was initially
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WP.No.43908 of 2016
appointed as Ministerial Assistant on 02.05.1983 in the
Social Welfare Department. The department was
bifurcated and new department of Directorate of
Rehabilitation for the Disabled was constituted. The
petitioner worked as Selection Grade, Post Graduate
Assistant in the newly formed Department. He was
appointed as PG Assistant on 24.12.1991. The said
appointment was questioned by the other candidates
before the Tamil Nadu Administrative Tribunal and the
matter went up to the Hon?ble Supreme Court of India
and appointment of the writ petitioner as PG Assistant
in the year 1991 was declared as null and void. Thus,
the petitioner was found not eligible to hold the post of
PG Assistant in the Commissionerate of
Differently~abled Persons Department.
3.The learned Additional Advocate General
appearing on behalf of the ?State? furnished a copy of
the judgment of the Hon?ble Supreme Court of India,
wherein, the Apex Court held as follows:
''?11.The matter, however, does not seem
to end here. In the proceedings dated December
24, 1991, by which the appellant was
appointed, the date of his application is
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WP.No.43908 of 2016
mentioned as July 17, 1991. This appears to us
quite inexplicable as the notice inviting
applications is itself dated December 5, 1991.
The counsel, appearing for the appellant, failed
to give any satisfactory explanation for this
anomaly. We, therefore, feel that the whole
process of selection and appointment was quite
irregular and unsatisfactory and in those
circumstances, we are unable even to sustain
the appointment of the appellant to the post of
P.G. Assistant (Political Science). We,
accordingly, direct the concerned authority to
take fresh steps for filling up the said post in
accordance with the rules. The process of
selection and appointment must be completed
within three months from today. Needless to say
that every eligible candidate for the post on the
date of the notice for appointment would be
entitled to make application and selection will
be made in accordance with the rules.
12.Since the appellant is working on the
post for the past about 20 years, he would
continue on it till a fresh appointment is made,
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WP.No.43908 of 2016
as directed above.
13.The appeal is disposed of with the
aforesaid observations and directions.?''
4.The learned Additional Advocate General
appearing on behalf of the ?State? made a submission
that based on the judgment of the Hon?ble Supreme
Court of India, the case of the writ petitioner was
reconsidered and subsequently on acquisition of
qualification in the year 2011 and accordingly, the
petitioner was appointed in the post of PG Assistant on
11.01.2012 as per the orders of the Hon?ble Supreme
Court of India. Thus, the seniority of the writ petitioner
was reckoned from the date on which he was appointed
as PG Assistant i.e. on 11.01.2012.
5.The learned counsel for the petitioner made a
submission that the seniority of the writ petitioner is to
be reckoned from the year 1991 and in earlier
proceedings, his seniority was fixed above
Smt.G.Anusiya Devi and in the final seniority he was
placed in S.No.4 below the said Smt.G.Anusiya Devi
and thus, the final seniority list is to be set aside.
6.The comparison made by the petitioner
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WP.No.43908 of 2016
deserves no merit consideration, since his first
appointment as PG Assistant in the Commissionerate
of Differently~abled Persons was set aside by the
Courts and he was appointed as a fresh candidate in
the post of PG Assistant as per the orders of the
Hon?ble Supreme Court of India only on 11.01.2012
and thus, the respondents have fixed the seniority
taking into consideration of the date of appointment as
PG Assistant based on the orders of the Hon?ble
Supreme Court of India.
7.The learned counsel for the petitioner relied on
the proposals submitted by the Commissionerate of
Differently~abled Persons in proceedings dated
17.08.2012. In respect of the proposals, a final
decision was taken by the competent authorities.
However, the final seniority list was published only
after affording opportunity to all the candidates
including the petitioner. The impugned order reveals
that objections were received from all the employees
concerned and considering the objections, the final
seniority list was published by the competent authority
in proceedings dated 22.03.2017.
8.The learned Additional Advocate General
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WP.No.43908 of 2016
appearing on behalf of the ?State? brought to the
notice of this Court that the petitioner passed PG (PS)
in April 1986 and he has passed the subject in
December 1987. As per the procedure is being started
afresh, during the issue of notice to Thiru. V.Gopal /
writ petitioner is senior than P.Gnana Selva Udaya
Kumari in getting M.A. degree in Political Science.
Though the petitioner is a Ministerial Staff, there is no
bar or restriction in appointing him as PG Assistant
(PS) as observed by the Hon?ble Supreme Court of
India.
9.Thus, the petitioner was appointed as PG
Assistant (PS) with effect from the date of the issuance
of the order i.e. on 11.01.2012. It is clearly stated that
in the order of appointment that ?The seniority of PG
Teacher is fixed from the date of issue of the order i.e.
on 11.01.2012?. It is further ordered that his past
service rendered by him shall be counted only for
pensionary benefits. As the petitioner was posted
afresh, his pay may be fixed in the cadre afresh from
the date of joining in the post.
10.The order of appointment issued to the writ
petitioner on 11.01.2012, unambiguously indicates that
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WP.No.43908 of 2016
the seniority of the writ petitioner in the post of PG
Teacher will be fixed from the date of appointment
order on 11.01.2012 and earlier service will be taken
into consideration only for the pensionary benefits.
Accepting the said order of appointment, the petitioner
joined in the post of PG Assistant in the year of 2012.
Thus, now he cannot turn around and claim seniority
with reference to the appointment, which was nullified
by the Hon?ble Supreme Court in its order. Thus, the
petitioner is not entitled for the relief as his seniority
was fixed based on the appointment order as well as
the conditions stipulated in the order of appointment.
11.Accordingly, the Writ Petition stands
dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.''
(5) It is thus seen that it had been very categorically held that the
petitioner having joined the post of PG Assistant in the year 2012,
cannot turn around and claim seniority with reference to appointment
which had been nullified by the Hon'ble Supreme Court in the order
which has been extracted. The Hon'ble Supreme Court had nullified
the said order whereby they had stated that they are not able to sustain
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WP.No.43908 of 2016
the appointment of the petitioner therein to the post of PG Assistant
[Political Science]. It had been held by the Hon'ble Supreme Court
that therefore, it would only come into effect only from 11.01.2012.
The said order is binding on the petitioner herein. The mandamus
cannot be issued for payment of any compensation as respondent had
followed Rule of Law and had applied the Rule of Law and the Rules
and Regulations correctly.
(6) The writ petition stands dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
04.09.2023
AP
Internet : Yes
To
The Principal Secretary
Government of Tamil Nadu
Welfare of Differently-abled Persons Department,
Fort St.George, Chennai – 600 009.
https://www.mhc.tn.gov.in/judis
WP.No.43908 of 2016
C.V.KARTHIKEYAN, J.,
AP
WP.No.43908 of 2016
04.09.2023
https://www.mhc.tn.gov.in/judis
