R. Arivudai Nambi v. P. Dhakshinamoorthy

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 10.01.2008CORAMThe Honourable Mr. Justice P.K. MISRAandThe Honourable Mr. Justice K. CHANDRUW.P. No.9666 of 19981. R. Arivudai Nambi2. S. Ravindran3. G. Tamaraiselvan... Petitioners..vs..1.P. Dhakshinamoorthy2.K. Sadasivam3.M. Manickam4.P. Subramanian5.M. Sultan Khader6.Inspector General of Prisons,Chennai – 10.7.The Registrar,Tamil Nadu Administrative TribunalChennai – 104.... RespondentsPetition under Article 226 of the Constitution of India,praying to issue a writ of certiorarified mandamus, to call for therecords pertaining to the order passed by the Tamil Nadu AdministrativeTribunal in R.A. No.116/96 dated 5.5.97 confirming order in O.A. 126/91dated 19.6.1996 and quash the same and direct the 6th respondent to givepromotion to the petitioners as per proceedings of the 6th respondent inE2/4922/87-1 dated 4.2.1987.For Petitioners : Mr. C. Selvaraj, Senior Counsel for Mr. S. KamadevanFor Respondent-1: Mr. R. Sasitharan Respondent-6: Mr. M. Dhandapani, Special Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by P.K. MISRA, J.)Heard Mr. C. Selvaraj, learned senior counsel appearing forthe petitioners and Mr. R. Sasitharan, learned counsel appearing for thefirst respondent and Mr.M. Dhandapani, learned Special GovernmentPleader appearing for the sixth respondent.2. The facts giving rise to the present writ petition are asfollows :-2.1 The present Respondents 1 to 5 had filed O.A.No.126 of 1991before the Tamil Nadu Administrative Tribunal praying for quashing theseniority list dated 4.2.1987 and to fix seniority of the applicantsabove that of the direct recruits who were impleaded as Respondents 2 to68 in such O.A..2.2 Such applicants before the Tribunal had joined the PrisonDepartment as Grade II warders The question presently raised isrelating to seniority in the post of Assistant Jailor. Recruitment tosuch post of Assistant Jailor is either by way of direct recruitment orby way of promotion. Initially the quota available for direct recruitswas 20%, but subsequently by amendment it was provided that 50% can berecruited directly and 50% can be promoted by promotion. However,eligibility requirement for promotion was to the effect that Grade IIwarders should have worked as Chief Head Warder for a period of oneyear. Since sufficient persons are not available to be promoted, it wasdecided to fill up the posts through direct recruitment. However, theapplicants before the Tribunal and many other persons were promoted ontemporary basis, even though they had not worked for a period of oneyear in the post of Chief Head Warder. Such temporary promotions hadtaken place during April, 1983. In the meantime, steps had been takento appoint Assistant Jailors on the basis of direct recruitment and 66persons were directly recruited as Assistant Jailors and they joinedduty on 1.2.1985. Subsequently, the temporarily promoted AssistantJailors were regularised on 19.3.1985. In the seniority list, which wasprepared during the year 1991, such promotees were shown as juniors tothe directly recruited Assistant Jailors. The applicants filedO.A.No.126 of 1991. The Tribunal, by judgment dated 9.3.1993, directedthe State Government to regularise the services of the applicants andother similarly placed persons retrospectively with effect from the dateon which they were fully qualified to hold the post of AssistantJailors. However, at that stage, some of the directly recruitedAssistant Jailors, who were respondents in O.A.No.126 of 1991, had filedReview Appln.No.153 of 1993, which having been rejected on 13.9.1994,the matter was taken to the Supreme Court by filing appeal. The Supreme https://hcservices.ecourts.gov.in/hcservices/ Court observed that the Tamil Nadu Jail Subordinate Service Rules hadbeen amended in 1982 increasing the quota of direct recruits from 20% to50% and moreover, the order of the Tribunal was by an AdministrativeMember alone. The Supreme Court, therefore, set aside the orders dated9.3.1993 and 13.4.1994 and remanded the matter to the Tribunal for freshdisposal. Thereafter, the properly constituted Tribunal consisting of aJudicial Member as Vice Chairman and another Administrative Member,heard the matter afresh and allowed the Original Application anddirected the State Government to refix the seniority of the applicantsby observing that such applicants were to be regularised with effectfrom 1983. Thereafter, out of 66 directly recruited Assistant Jailors,three persons, who had been arrayed as Respondent Nos.7, 17 and 40 inthe Original Application, filed Review Appln.No.116 of 1996. SuchReview Application having been rejected by judgment dated 5.5.1997, thepresent writ petition has been filed by such persons, who had filed theReview Application No.116 of 1996.3. The main contention raised by the Senior Counsel appearingthe petitioners is to the effect that since direct recruits wereappointed on regular basis with effect from 1.2.1985 and since thepromotees, even though promoted earlier on temporary basis, had beenregularised only with effect from 19.3.1985, such promotees could nothave claimed seniority. It is further submitted that at any rate whenthe order was passed regularising the promotees only with effect from19.3.1985, without challenging such order, they could not have simplyclaimed seniority by filing O.A.No.126 of 1991. 4. The post of Assistant Jailor is required to be filled upby direct recruitment and by promotion. Initially 20% of the postscould be filled up by promotion, however, subsequently, it wasincreased upto 50%. For the purpose of promotion, Grade II Warder isrequired to function as Chief Head Warder for at least one year. Theapplicants before the Tribunal in the Original Application were promotedon temporary basis, even though they had not completed such one year.However, there is no dispute that even before the writ petitioners couldbe recruited directly, such applicants, but for their temporarypromotion as Assistant Jailors, would have completed such a period ofone year and would have been thus eligible for promotion at least duringthe year 1983. It is also not in dispute that inspite of availabilityof eligible candidates for promotion, no formal proceeding wasundertaken, but, the persons, who had been temporarily promoted asAssistant Jailors, continued as such. In the above background, a letterwas issued by the State Government in the year 1992 wherein it had beenclearly recommended that since vacancies were available to be filled upby the promotees, eligible candidates who had completed one year werealso available, such persons could be regularised with effect from thedate on which they had become eligible.5. In the above background, the Tribunal, after the matter was https://hcservices.ecourts.gov.in/hcservices/ remanded by the Supreme Court, on discussion of the materials on record,came to the following conclusions :-(1) Posts were available for the promotees within 50% meant forpromotees.(2) Even though initially the persons promoted as Asst. Jailors hadnot completed one year in the post of Chief Head Warder before suchtemporary period, they would have completed such one year before 1983.(3) Such promotees should not suffer merely on account of the factthat there was no formal proceedings for promotion, even though eligiblecandidates were available. Accordingly, the Tribunal directed that suchapplicants before the Tribunal should be treated as seniors compared tothe directly recruited Assistant Jailors.6. In the Review Application, which was filed by the presentwrit petitioners, two contentions had been raised. The main contentionwas that since the promotees were regularised with effect from March,1985, they could not claim seniority over the direct recruits whoseservices were regularised even on 1.2.1985. In this connection, theother contention was to the effect that the applicants before theTribunal had not specifically claimed that their regularisation shouldbe deemed to have been made from an earlier date nor they hadspecifically prayed for quashing the order passed by the Statewhereunder they were regularised with effect from March, 1985. TheTribunal under the impugned judgment rejected such Review Application.The very same contentions have been reiterated in the present writpetition.7. Even though the aforesaid contentions may prima facieappear to be justified, on deeper scrutiny and on the peculiar facts andcircumstances of the present case, such submissions are not acceptable.It is not the case of the present petitioners that the promotees wereallowed to be promoted on temporary basis in excess of 50% quotaavailable for the promotees. The Tribunal has discussed the entirematerials on record in the order passed in the Original Applicationdated 9.3.1993 as well as in the Review Application disposed of on13.4.1994 and had come to the categorical conclusion that promotion ofthe promotees was within the permissible quota available for thepromotees and not in excess of such quota. This finding has not at allbeen challenged. The Tribunal has also referred to the letter of theGovernment issued during the year 1992, which clearly indicated thatappropriate proceedings during 1984 for the purpose of giving promotionhad not been initiated, even though eligible candidates for promotionwere available and, therefore, had recommended that such persons shouldbe regularised with effect from the date when they had become eligible.By adopting the above logic, the Tribunal granted the relief to theapplicants because the Tribunal found that the applicants who hadcontinuously worked as Assistant Jailors without any break were not atfault and they could not suffer on account of apathy on the part of the https://hcservices.ecourts.gov.in/hcservices/ appropriate authority for considering the question of promotion onregular basis.8. Such conclusion of the Tribunal, which was based onpeculiar facts and circumstances of the case, has also the support injudicial precedents. In many decisions of the Supreme Court it has beenlaid down that if a person has continued for a long period onofficiating basis and subsequently such promotion is regularised,seniority of such person can be counted from the date of initialpromotion or appointment, particularly in a case where such promotion isnot in excess of the quota available for the promotees. [see (2000) 4SCC 20 (T. VIJAYAN AND OTHERS v. DIVISIONAL RAILWAY MANAGER AND OTHERS)and (2003) 4 SCC 65 (A.G. SAINATH REDDY v. GOVERNMENT OF ANDHRA PRADESHAND OTHERS)]9. In such view of the matter, since the order of the Tribunaleffectuates substantial justice and cannot be said to be contrary to theprinciple laid down by the Supreme Court in Vijayan's case, we do notthink that such orders passed by the Tribunal in O.A.No.126 of 1991dated 19.6.1996 and subsequently in Review Appln.No.116 of 1996 dated5.5.1997 are required to be interfered with in exercise of jurisdictionunder Article 226 of the Constitution.10. Learned counsel appearing for the writ petitioners hadsubmitted with much vehemence but less conviction, that the applicantsbefore the Tribunal without challenging the legality of the order ofregularisation with effect from March, 1985, had merely claimedseniority.11. It is of course true that there was no specific prayer tothe effect that regularisation should have been made with effect from anearlier date. However, a fair reading of the averments made in theOriginal Application clearly indicates that the entire tenor of theapplication was on the footing that regularisation should have been madewith effect from the date on which such persons had become eligible.Keeping in view the well settled principle of law that when basicaverments are available on record, the relief or the prayer can besuitably moulded in order to effectuate substantial justice, we do notfind any fault in the orders passed by the Tribunal.12. Apart from the above, we find that out of 66 directrecruits, who were held to be juniors to the promotees, only three hadchosen to file Review Application and pursue the matter further byfiling the writ petition. The other direct recruits, some of them whowere senior to the present writ petitioners, have neither filed anyindependent writ petition nor have been impleaded as respondents. Theorder of the Tribunal had become final as against those persons. If, atthe instance of a few of such persons, without impleading all others,the order of the Tribunal would be modified, the matter which has become https://hcservices.ecourts.gov.in/hcservices/ final between the applicants before the Tribunal and other respondentswould also become uncertain. Moreover, keeping in view the fact thatthe main question is relating to seniority and most of the promotees whogot the benefit of the promotion orders have in the meantime eitherretired or about to retire, it would not be appropriate on the part ofthe High Court to unsettle the matters after such a long lapse of time.13. For the aforesaid reasons and more particularly keeping inview the peculiar facts and circumstances of the case, we decline tointerfere with the orders passed by the Tribunal. The writ petition isaccordingly dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa/dpkToInspector General of Prisons.Chennai – 10.+1cc to Govt. Pleader Sr 1750+1cc to Mr.S.Mani, Advocate Sr 1507MDR (CO)km/17.6.W.P. No.9666 of 1998