K.M. Mohammed Ali v. The Chairman & Ors.

IN THE H IGH COURT OF JUDICATURE AT MADRASDATED: 30.10.2009CORAMTHE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.19743/1999K.M.Mohammed Ali,Clerk,Madras Dock Labour Board,Rajaji Salai, Chennai. ... Petitioner Vs.1.The Chairman, Madras Dock Labour Board, Rajaji Salai, Chennai-12.The Dy.Chairman, Madras Dock Labour Board, Rajaji Salai, Chennai -1.3.Shri.V.Chandrasekaran Clerk, C&F Scheme, MDLB. Madras – 600 001.4.The Chairman, The Chennai Port Trust, Chennai. (R4- Impleaded as per order dated 20.08.2008 in W.P.M.P.No.1280/08) ... RespondentsPRAYER: Writ Petition filed under Article 226 of Constitution ofIndia praying to issue Writ of Certiorarified Mandamus to call forthe records pertaining to the order bearing No.257/99-A. 14 dated19.11.1999 of the second respondent and quash the same andconsequentially direct the respondents to consider the petitioner forpromotion to the post of Junior Assistant from clerical post based onthe correct seniority position. For Petitioner :Mr.R.RameshFor Respondents:Mr.G.Venkatraman for RR1-R4ORDERThe petitioner has filed the above writ petition challenging theorder passed by the second respondent dated 19.11.1999 promoting the3rd respondent herein as Junior Assistant in the Madras Dock LabourBoard. https://hcservices.ecourts.gov.in/hcservices/

2. The facts leading to the filing of the writ petition are asfollows:The Madras Dock Labour Board is a statutory body constitutedunder the Provisions of Dock Workers (Regulation of Employment) Act1948 (herein after refer to the Act). In terms of Section 4, CentralGovernment frames statutory schemes which the Dock Labour Board hasto administer. 3. Four such statutory schemes came to be regulated by the DockLabour Board and one such scheme was the Madras Unregistered DockClearing and Forwarding Workers (RE) scheme, 1988 known as C&Fscheme. Prior to 1.08.1988 this was administered by theAdministrative Committee of the clearing and forwarding agentsprivately. Since, there was representation from the Trade Union tobring the workers under the Administration of the Madras Dock LabourBoard, the statutory scheme namely C&F scheme was framed and all theworkers were brought under the control of the first respondent from01.08.1988. The workers covered under the private scheme were madeDock workers and brought under the statutory Scheme on condition thatthey should have been registered in the list of workers of theErstwhile Private Administrative Committee of Clearing and Forwardingagents. The clerks and other administrative staffs were not coveredunder the private scheme nor they were covered under the statutoryscheme made in 1988. Though the clerical staffs were not coveredunder the statutory scheme, they were working in the ministerial sideunder the private management and subsequently as on 11.06.1986, theadministrative staffs were also taken under the statutory C&F schemeas fresh employees with effect from 01.08.1988.4. The petitioner was temporarily appointed as a clerk on14.03.1986 under the erstwhile management of C&F Scheme onconsolidated monthly salary. Thereafter, he was made as aprobationary clerk for a period of two years from 14.06.1986 and wasgiven salary in a time scale of pay. Subsequently, he was confirmedas a clerk with effect from 10.06.1986. When the statutory scheme wasbrought into force on 01.08.1988, the erstwhile management terminatedthe petitioner's service. Thereafter, since the administrative staffswere also taken under the scheme with effect from 09.08.1988, and thepetitioner was also absorbed in the Madras Dock Labour Board as on09.08.1988. 5. The grievance of the petitioner in the present writ petitionis that he is the senior most clerk in the seniority list of C&FScheme after one C.G.Palaniappan. During 1999 two vacancies arose inthe post of Junior Assistant, the feeder category for promotion tothe post of Junior Assistant is clerk and Assistant Supervisor is anequivalent grade to that of Junior Assistant. 6. According to the petitioner due to the reversion of Shri. https://hcservices.ecourts.gov.in/hcservices/ Jaganathan as a clerk on 25.09.1997 and dismissal of one Rameshkumar,Junior Assistant, two vacancies in the post of Junior Assistant hadarisen. Therefore, it is contended that the said Palaniappan andpetitioner are entitled to be considered for promotion. While so, therespondent had issued promotion order dated 19.11.1999, promoting the3rd respondent who was in fact a reverted staff from the post ofAssistant Supervisor during 1992. The said order of promotion dated19.11.1999 issued in favour of the 3rd respondent is impugned in thepresent writ petition.7. Mr.R.Ramesh, learned counsel appearing for the petitionerwould contend that the action of the respondent in promoting the 3rdrespondent is arbitrary and discriminatory and illegal. The learnedcounsel would further submit that the petitioner's seniority has beenaltered without notice and by promoting the 3rd respondent, thepetitioner's rights have been seriously prejudiced. Learned counselwould submit that by promoting the 3rd respondent, the petitioner'sseniority has been pushed to number 4 from number 2 and thisalteration has been done without notice to the petitioner.8. Learned counsel would further submit that the 3rd respondenthad lost his seniority position after his reversion and has to bekept in the bottom most of seniority position in clerical grade andtherefore, the petitioner is senior to the 3rd respondent. Learnedcounsel would further submit that the reference has been made by therespondent organisation to Fundamental Rule 29 and the AdministrativeInstructions issued by the Government dated 10.10.1962 and07.02.1964. Learned counsel would submit that the said AdministrativeInstructions issued by the Government of India is not applicable tothe present case and if at all there is any protection of seniorityfor the 3rd respondent it could be only in the promoted post and notin the clerical grade, since he has been reverted to the said grade.Therefore the learned counsel would further submit that the impugnedorder is liable to be set aside.9. Mr.G.Venkatraman learned counsel appearing for therespondents 1&2, would, after elaborately stating out as to how theDock Labour Board came into the existence and as to how thepetitioner came to be absorbed, would contend that the category ofclerk is the entry level post in respect of each of the 4 statutorySchemes. The next avenue of promotion is the category of JuniorAssistant, separate seniority list is maintained in respect of thestaff of each of the scheme with effect from 01.08.1988 and acombined seniority list is maintained from 1990 onwards. Promotion tothe post of Junior Assistant is based on seniority-cum-merit. Thelearned counsel would submit that the petitioner is not the seniormost clerk and as per the seniority list, the petitioner is placed inthe 4th position and as on that date, he is not eligible to bepromoted. It is further submitted that the 3rd respondent was workingas an Assistant Supervisor under the erstwhile private management and https://hcservices.ecourts.gov.in/hcservices/ was taken into service of the first respondent with effect from01.08.1988 as Assistant Supervisor, he was reverted to the post ofclerk pursuant to disciplinary action with effect from 01.02.1992 andhe was placed as a junior next to G.Jaganathan. 10. Though the order of reversion did not stipulate any period,the 3rd respondent was not considered for promotion during April 1992,April 1993, June 1997 and August 1998, since, he did not showimprovement. During 2002, the 3rd respondent's representation wasconsidered and he was found fit and promoted by order dated19.11.1999. It is contended that there is no alteration of seniorityand that the 3rd respondent is senior to the petitioner and he wasposted as a clerk on reversion and his seniority was fixed in thegrade of clerk based on Government of India Instructions issued underFR 29. Thereafter as per the Government of India instructions, whenthe D.P.C found him fit to be promoted as Junior Assistant, he waspromoted. 11. Learned counsel appearing for the respondents would furthersubmit that the seniority fixation in the grade of clerk has beencorrectly done and when the 3rd respondent is reverted to a lowergrade, he has to be placed at the top of the lower grade unless theorder reverting him to lower grade directs that he shall take rank insuch lower grade next below any specified member thereof. The learnedcounsel would place reliance on Rule 35 (c) of the Tamil Nadu Stateand Subordinate Service Rules and would submit that theinterpretation under the said Rule could be made applicable to theservice in the first respondent and an analogy could be drawn. 12. The learned counsel would further submit that the order ofreversion dated 27.01.1992 passed against the 3rd respondent revertinghim as a clerk does not give any specific order as regards his rankin revered post. Therefore, the learned counsel would contend thatthe writ petition is devoid of merits and liable to be dismissed. 13. I have carefully considered the submissions of the learnedcounsel appearing of either side and perused the materials availableon records. 14. The question to be decided in the present case is thatwhether the petitioner is senior to that of 3rd respondent in thegrade of clerk and as to whether the order of promotion, promotingthe 3rd respondent as Assistant Supervisor, without granting suchpromotion to the petitioner is valid in law.15. The facts which are not in dispute are that both thepetitioner and the 3rd respondent were employees under the erstwhileprivate management. The petitioner was employed as a clerk under theerstwhile private management and was absorbed by the first respondentwith effect from 09.08.1988. The 3rd respondent was an Assistant https://hcservices.ecourts.gov.in/hcservices/ Supervisor under the erstwhile private management and he was absorbedas Assistant Supervisor and he has been taken into service of thefirst respondent with effect from 01.08.1988. Thus it is to be notedthat the 3rd respondent was admittedly holding a higher post than thatof the petitioner under the private management. The problem which hasarisen in the present case is on account of disciplinary action takenagainst the 3rd respondent when he was revered to the post of clerkwith effect from 01.02.1992. It is to be noted that the D.P.C did notconsider the 3rd respondent fit for promotion on four occasions namelyApril 1992, April 1993, June 1997 and August 1998. The impugnedpromotion has been accorded to the 3rd respondent on 19.11.1999. Thus,it is to be seen as to whether the first respondent was justified inpromoting the 3rd respondent without considering the claim of thepetitioner. The petitioner has reiterated that there are only twopersons who are eligible to promote as a Junior Assistant as per theseniority list and the first person is Mr.Palaniappan and the secondperson is the petitioner. It is the case of the petitioner that afterthe order of the reversion passed against the 3rd respondent, he hasto be fitted in the bottom most of seniority in the post of clerk,below the petitioner. This, according to the petitioner has not beendone and the 3rd respondent has been promoted during 1999 over lookingthe petitioner. 16. Government of India have issued certain AdministrativeInstructions under Section FR 29 on the question as to how should theseniority of Government servants should be determined, consequence ofan order of reduction to a lower grade. Under the said instructionsdated 10.10.1962 & 07.02.1964, it has been stated as follows:-"2. The order imposing the penalty of reduction to alower service, grade or post or to a lower time-scale may ormay not specify the period of reduction. Where the order doesnot specify the period of reduction and there is coupled withit an order declaring the Government servant permanentlyunfit for promotion, the question of re-promotion will,obviously, not arise. In other cases where the period ofreduction is not specified, the Government servant should bedeemed to be reduced for an indefinite period, i.e., tillsuch date as, on the basis of his performance subsequent tothe order of reduction, he may be considered fit forpromotion. On re-promotion, the seniority of such aGovernment servant should be determined by the date of re-promotion. In all such cases, the person loses his originalseniority in the higher service, grade or post entirely. Onre-promotion, the seniority of such a Government servantshould be determined by the date of re-promotion withoutregard to the service rendered by him in such service, gradeor post prior to his reduction.3. The more common course is to specify the period ofreduction and except when it is intended to debar a https://hcservices.ecourts.gov.in/hcservices/ Government servant from promotion permanently, it is thepreferable course.Accordingly, it has been decided in consultation withthe Ministries of Law and Finance that in future, an orderimposing the penalty of reduction to a lower service, gradeor post or to a lower time-scale should invariably specify:-(i) the period of reduction, unless the intention isthat the reduction should be permanent or for an indefiniteperiod;(ii)whether on such re-promotion, the Government servantwill regain his original seniority in the higherservice, grade or post or higher time-scale which hasbeen assigned to him prior to the imposition of the penalty.In cases where the reduction is for a specified periodand is not to operate to postpone future increments, theseniority of the Government servant may, unless the terms ofthe order of punishment provide otherwise be fixed in thehigher service, grade or post or the higher time-scale atwhat it would have been but for its reduction.Where the reduction is for a specified period and is tooperate to postpone future increments, the seniority of theGovernment servant on re-promotion may, unless the terms ofthe order of punishment provide otherwise, be fixed by givingcredit for the period of service rendered by him in thehigher service, grade or post or higher time-scale."17. Thus from the reading of the above instructions, what isrelevant is as to whether the order of reversion is for a specifiedperiod with any conditions. The order of reversion passed against the3rd respondent dated 27.01.1992 states that, he shall be revered fromthe post of Assistant Supervisor to the post of clerk with effectfrom 01.02.1992. The order does not specify the period and also doesnot state as to in what position the 3rd respondent has to be fittedon reversion. The instructions also states that on re-promotion theGovernment servant regain his original seniority in the higherservice, which was assigned to him prior to the imposition of thepenalty. It is true that the standing orders of the first respondentdoes not specifically speak about the seniority position on suchreversion.18. Therefore the General Service Rules applicable to a stateservice could be looked into for the purpose of ascertaining whetherthe action is justified. In that view, the learned counsel appearingfor the respondents rightly placed reliance on Rule 35 (c) of theTamil Nadu State Subordinate Service Rules, which clearly indicates https://hcservices.ecourts.gov.in/hcservices/ that on reversion such incumbent shall be placed on the top most ofthe seniority in the revered grade, unless the order of reversionspecifies other modes. 19. As noted earlier order on reversion passed against the 3rdrespondent dated 27.01.1992 does not specify any thing about the 3rdrespondent's seniority in the reverted post and therefore the firstrespondent is fully justified and correct in placing the 3rdrespondent as senior most in the grade of clerk. In view of the abovereasoning, I find that there are no merits in the claim made by thepetitioner.20. It is brought to the notice of this Court by the learnedcounsel appearing for the respondents that the petitioner has notsuffered any financial loss, since the petitioner has been givenfinancial up-gradation under the ACP scheme with effect from22.01.2001. Thereafter the petitioner was regularly promoted to thepost of Junior Assistant by an order dated 18.09.2002 with effectfrom 29.05.2001, his probation in the promotion post was alsodeclared on 11.02.2004 by further order dated 25.08.2004, thepetitioner has been given financial up-gradation with effect from09.08.2000. Thus it is seen that the petitioner has also beenregularly promoted and from 09.08.2000, he has been given financialup-gradation. 21. For the above reasons and taking into consideration theentire facts and circumstances of the case, I find that the action ofthe first respondent in placing the 3rd respondent as senior most inthe grade of clerk after his reversion from the post of AssistantSupervisor is proper and consequently the promotion accorded to the3rd respondent by the impugned order is legally sustainable and callsfor no interference. Hence, this writ petition is dismissed. No costs.pbnSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.1.The Chairman, Madras Dock Labour Board, Rajaji Salai, Chennai-1 https://hcservices.ecourts.gov.in/hcservices/

2.The Dy.Chairman, Madras Dock Labour Board, Rajaji Salai, Chennai -1.3.The Chairman, The Chennai Port Trust, Chennai.+ 1 CC to Mr.Aiyar and Dolia Advocate SR.57752Order inW.P.No.19743/1999AKR(CO)VC(10.11.2009)