Madras High Court

S.Kittanasamy vs The Director Of Elementary Education on 13 September, 2024

                                                                             W.P.No.14719 of 2013

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   Dated :13.09.2024

                                                     CORAM:

                      THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR

                                                 W.P.No.14719 of 2013
                                              and M.P.Nos.1 and 2 of 2013

                     S.Kittanasamy                                                 ... Petitioner
                                                          vs.

                     1. The Director of Elementary Education,
                        College Road, Chennai 600 006.

                     2. The District Elementary Educational Officer,
                        Erode District, Erode.

                     3.The Assistant Elementary Educational Officer,
                       Sathiyamangalam Panchayat Union,
                       Erode District, Erode.

                     4. The Additional Assistant Elementary Educational Officer,
                       Sathiyamangalam Panchayat Union,
                       Erode District, Erode.

                     5. D.Senthil Kumar
                     6. R.Sakthivel
                     7. T.Eswaramurthy
                     8. S.Sarath Arul Maran                                 ... Respondents




                     1/12


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                                                                                W.P.No.14719 of 2013

                     Prayer: Petition filed under Article 226 of the Constitution of India, praying
                     to issue a writ of certiorarified mandamus, calling for the records of the
                     respondents 1, 2 and 4       issued in guideline No.1 of Proceedings No.
                     Na.Ka.No.9683/ D1/2004 dated 03.05.2004; and the seniority list of
                     Secondary Grade Teachers published in proceedings No.Nil dated 14.07.2011
                     and the proceedings in Na.Ka.No.42/2013/A1 dated 08.03.2013, respectively
                     and quash the same in so far as the petitioner and respondent Nos. 5 to 8 is
                     concerned and issue a consequential direction to the respondents 1 to 4 to
                     restore the seniority rank of the petitioner and respondent Nos.5 to 8 as fixed
                     in the seniority list as on 01.01.2007 issued in proceedings No.Nil dated
                     06.03.2007 and to follow the same for the year 2013-2014, for promotion to
                     the post of Primary School Headmaster and to promote the petitioner as
                     Primary School Headmaster in Sathiyamangalam Panchayat Union, Erode
                     District with service and monetary benefits


                                        For Petitioner     : Mr.R.Saseetharan
                                        For Respondents    : Mr.K.H.Ravikumar,
                                              1 to 4         Government Advocate

                                        For Respondents
                                              7 and 8   : Served – No Appearance

                                        For Respondents
                                              5 and 6   : Unserved




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                                                                                   W.P.No.14719 of 2013



                                                          ORDER

This writ petition has been filed seeking writ of certiorarified

mandamus to call for the records of the respondents 1, 2 and 4 issued in

guideline No.1 of Proceedings No. Na.Ka.No.9683/ D1/2004 dated

03.05.2004, the seniority list of Secondary Grade Teachers published in

proceedings No.Nil dated 14.07.2011 and the proceedings in

Na.Ka.No.42/2013/A1 dated 08.03.2013, respectively and quash the same in

so far as the petitioner and respondent Nos. 5 to 9 are concerned and also

sought for consequential direction to the respondents 1 to 4 to restore the

seniority rank of the petitioner and respondent Nos.5 to 9 as fixed in the

seniority list as on 01.01.2007 issued in proceedings No.Nil dated 06.03.2007

and to follow the same for the year 2013-2014, for promotion to the post of

Primary School Headmaster and to promote the petitioner as Primary School

Headmaster in Sathiyamangalam Panchayat Union, Erode District with

service and monetary benefits.

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2. The respondents 5, 8 and 9 were served. However, they have not

entered appearance. Notices sent to respondents 6 and 7 have been returned

with an endorsement “Out of Station”. As notice has been substantially served

on all the private respondents, the non service of the respondents 6 and 7 is

not fatal to this writ petition. Hence, this Court does not deem it necessary to

serve respondents 6 and 7 with notice.

3. The petitioner and respondents 5 to 9 were appointed as secondary

teachers by order dated 04.12.2006 issued by the Assistant Elementary

Educational Officer, basing upon the list forwarded by the concerned

employment exchange. The petitioner and respondents 5 to 9 have joined

duty on 04.12.2006 itself as second grade teachers and they have been

working as such.

4. While so, the seniority of the petitioner and respondents 5 to 9 was

finalized through proceedings dated 01.01.2007, wherein the petitioner was

shown as senior to respondents 5 to 9. The same situation was reflected in

the seniority lists that were prepared as on 01.01.2008 and 01.01.2009.

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However, in the seniority list prepared on 01.01.2011, the petitioner was

pushed down and respondents 5 to 9 were given seniority over the petitioner

on the ground that the petitioner has reported duty on 04.12.2006 A.N.

whereas the respondents 5 to 9 have reported duty on 04.12.2006 F.N.. It is

aggrieved by the said revision of the seniority list, the petitioner has

approached this Court by filing this writ petition.

5. This Court has carefully considered the submissions made on either

side and also perused the entire material on record.

6. While challenging the proceedings of the Assistant Elementary

Educational Officer dated 08.03.2013 whereby the respondents 5 to 9 were

given seniority over the petitioner herein, the petitioner has also challenged

the proceedings in Na.Ka.No.9683/D1/2004 dated 03.05.2004 whereby the

Director of Elementary Education issued directions to take into consideration

the time of joining as criteria for fixation of seniority among the persons who

joined the services on the same day. Taking into consideration the date of

joining into the services as criteria for fixing the seniority has been held to be

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bad by the Hon'ble Apex Court in the judgment reported in 2007(1) SCC 405.

In the relevant portion, it has been held as follows:

“6. There is no dispute that the appellant was ranked higher to Respondent 8. There is also no dispute that in the appointment letter the appellant was given six weeks' time to join. Merely because Respondent 8 joined earlier that did not in any way affect the merit placement.

7. This Court in Chairman, Puri Gramya Bank v. Ananda Chandra Das [(1994) 6 SCC 301 : 1994 SCC (L&S) 1384 : (1994) 28 ATC 293] held as follows : (SCC p. 301, para

2) “2. This appeal arises from the judgment of the High Court of Orissa in OJC No. 1007 of 1988, dated 4-3-1992. The respondent and others were selected by direct recruitment as managers of Rural Bank. His rank was No. 9 in the merit list. He was directed to be given seniority on the basis of the date of his reporting to duty. It is reported that the first respondent is dead. The only question in this case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the Selection Board? On

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comparative evaluation of the respective merits of the candidates for direct recruitment, the Board has prepared the merit list on the basis of the ranking secured at the time of the selection. It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court, is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. However, we need not interfere with the order, since the first respondent has died.” (underlined for emphasis)

8. Since there was no rule in operation, obviously the ranking in the merit list was to decide the respective seniority. The ratio in Chairman, Puri Gramya Bank

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case [(1994) 6 SCC 301 : 1994 SCC (L&S) 1384 : (1994) 28 ATC 293] has full application to the facts of the case. The appellant's claim that he was to be treated as senior to Respondent 8 was rightly accepted by the learned Single Judge. Unfortunately, the Division Bench did not address itself to the specific question and has placed undue stress on Respondent 8 having joined earlier.

9. Therefore, the judgment of the Division Bench is set aside and that of the learned Single Judge is restored. We, however, make it clear that the appellant will not be entitled to any salary for the period during which Respondent 8 has worked. For all other service benefits, the period in question shall be reckoned. The official respondents shall explore the possibility of absorbing Respondent 8 to the suitable post considering the fact that for nearly quarter of the century he has rendered services. The payment made to him shall not be recovered.

7. Taking into consideration the date of joining itself was held to be

bad for the purpose of finalizing the seniority and hence the question of

taking the time of joining into services on the same day as criteria is much

more arbitrary and illegal. There is no legal basis for issuing such guidelines

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to take into consideration the time of joining. The fixation of seniority is

governed by Rule 35 of the State and Subordinate Service Rules and seniority

is to be fixed in terms of the said Rules and not contrary otherwise. In cases,

where several persons appointed on the same day, merit should be taken into

consideration for fixing seniority. In the absence of merit, the date of birth of

the candidate should be taken into consideration for the purpose of fixing the

seniority. Though appointments may be made on the same date for several

candidates, the appointment order may be communicated to them at different

times and different dates and depending upon the same, the candidates would

join the services accordingly. Receiving the appointment order on an earlier

date and joining service earlier are under no circumstances relevant criteria

for the purpose of fixing seniority, much less the time of joining.

8. Be that as it may, in terms of the Rule 35(f) of the Tamil Nadu State

and Subordinate Service Rules, any objection with regard to the seniority is

required to be raised within a period of three years. Rule 35(f) reads as

under:-

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“Application for the revision of seniority of a person in a service, class, category or grade shall be submitted to the appointing authority within a period of three years from the date of appointment to such service, class, category or grade or within a period of three years from the date of order fixing the seniority, as the case may be. Any application received after the said period of three years shall be summarily rejected. This shall not, however, be applicable to cases of rectifying orders, resulting from mistake of facts”

9. Admittedly, seniority among the petitioner and respondents 5 to 9

was finalized on 01.01.2007 and the same continued till 01.01.2011 on which

date the seniority was altered without notice to the petitioner. As respondents

5 to 9 failed to raise any objection with regard to the seniority that was

finalized on 01.01.2007 in representation that was submitted, the said

representation ought not to have been considered by respondents 1 to 4 in

terms of the bar under Rule 35(f)of the Tamil Nadu State and Subordinate

Service Rules. In such circumstances, the impugned order cannot be

sustained and accordingly, the same is hereby set aside. The Writ Petition is

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allowed. The respondents 1 to 4 is directed to restore the seniority of the

petitioner as on 01.01.2010 and also grant the consequential benefits to the