High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.04.2007CORAMTHE HON’BLE MR. JUSTICE F.M. IBRAHIM KALIFULLA&THE HON'BLE MR. JUSTICE V. DHANAPALANW.A. Nos.182 & 183 of 2007A. Raman Appellant in both the W.As.vs.1 State of Tamil Nadu Represented by Secretary to Government Information & Tourism Department Fort St. George, Chennai – 600 0092 The Commissioner of Tourism Department of Tourism Tamil Nadu Tourism Complex Wallajah Road, Chennai – 600 0023 N. Kumaresan Office of the Commissioner of Tourism Tamil Nadu Tourism Complex Wallajah Road, Chennai – 600 002 Respondents in W.A.No.182/071 N. Kumaresan Office of the Commissioner of Tourism Tamil Nadu Tourism Complex Wallajah Road Chennai – 600 0022 The Secretary to Government Information and Toursim Department Secretariat Chennai – 600 0093 The Commissioner and Director Tourism Department, Chennai – 600 002 Respondents in WA No.183/07 Writ Appeals filed under Clause 15 of the Letters Patentchallenging the common order dated 19.01.2007 passed by a learnedSingle Judge of this Court in W.P. No.21129 of 2005 and W.P.No.23171 of 2006.W.P.No. 21123 of 2005:- https://hcservices.ecourts.gov.in/hcservices/ This Writ Petition presented to this Court under Article ;226 of the Constitution of India to issue a writ of Certiorari tocall for the records of the 2nd respondent in impugned ProceedingsNo Se Mu. Aa. No. 2722/Ma.Va. May 2/03-1 daed 20/6/05 and theconsequential proceedings No Sc Mu Aa No 2722/Ma.Va.May 2/03-02dated 20.6.2005 and proceedings No. Sc. Mu. Aa. No. 2722/Ma. Va.May 2/03-03 dated 20.6.2005 and quash teh same.W.P.No. 123171/06:-To Issue a Writ of Certiorari to call for the records in proc.No.6872/HRD-1/2005 dated 13.7.2006 on the file of the 2nd respondentand quash the same.For appellantMrs. Nalini Chidambaram, Sr. Counselin both the appeals for M/s. Gladys DanielFor RR 1 & 2Mr.K.Balakrishnan,Addl.Govt.Pleaderin WA No.182 of 2007 and RR 2 and 3 in WA No.183 of 2007For R3 in WP No.182/07 and R1 in WP No.183/07 Mr. N.S. NandhakumarCOMMON JUDGMENTV. DHANAPALAN, J. Since the writ appeals have arisen out of a common orderand the appellant in both the writ appeals happens to be the sameperson, they are decided by a common judgment. 2. The facts necessary for the disposal of thewrit appeals are as under: a. The petitioner in W.P.No. 21129 of 2005(hereinafter referred to as “Raman”) and the petitioner inW.P. No.23171 of 2006 (hereinafter referred to as “Kumaresan”)were appointed as Junior Assistants on 22.02.1993 and30.03.1984 respectively in the Tourism Branch of theDepartment of Information and Tourism in the Secretariat. When steps were on to form a separate department for Tourism,Kumaresan was appointed as Receptionist-Grade II on 22.08.1994by recruitment by transfer; whereas Raman continued to remainin the Secretariat itself and was promoted as Assistant on15.02.1996 and Kumaresan was appointed as Assistant on04.07.1996. b. Though Raman was accorded seniority over andabove Kumaresan in view of the fact that he was promoted tothe post of Assistant earlier than Kumaresan, the Government,by way of a clarification dated 08.11.2004 pointed out thatKumaresan was senior to Raman. Meanwhile, Raman got promoted https://hcservices.ecourts.gov.in/hcservices/ as Superintendent on 06.11.2000 based on the tentativeseniority fixed earlier. Subsequent to filing of a writpetition by Kumaresan, seeking to promote him asSuperintendent from the date on which Raman was promoted, theCommissioner of Tourism passed three orders, first one toplace Kumaresan above Raman in seniority, second one torevert Raman from the post of Superintendent to Assistant andthe third one to promote Kumaresan as Superintendent. c. The writ petition filed by Raman challenging theabove three orders of the Commissioner of Tourism wasadmitted; but, interim stay was not granted on the ground thatthe orders of reversion of Raman and promotion of Kumaresanhad already been given effect to. In the writ appeal preferredby Raman against the order in W.P.M.P. No.23018 of 2005 inwhich only notice was ordered and no order of interim stay wasgranted. Interim stay of Raman’s order of reversion wasgranted. and when the writ appeal was finally disposed of,interim stay of Raman’s order of reversion was directed to becontinued. Consequently, Raman rejoined duty as Superintendenton 20.09.2005 and Kumaresan also continued in the post ofSuperintendent which was a leave vacancy. Since the personwho had gone on leave joined his services, the Department hadno clue whether to revert Raman or Kumaresan. Since Ramancould not be reverted as he had in his favour the order ofinterim stay of his reversion order, Kumaresan was reverted tothe post of Assistant. d. Challenging this, Kumaresan filed a writpetition and obtained stay of his reversion order. Since theDepartment could not implement the order of interim stay asthere was no vacancy of Superintendent, Kumaresan filed aContempt Petition before this Court. The writ petitions filedby Raman and Kumaresan and the Contempt Petition filed byKumaresan were taken up together for final hearing by alearned Single Judge. The learned Single Judge upholding thethree orders passed by the Commissioner of Tourism anddeclaring Raman as junior to Kumaresan, dismissed the writpetition filed by Raman and disposed of the writ petitionfiled by Kumaresan with a direction to restore him to thepost of Superintendent with all consequential benefits andthe contempt petition filed by Kumaresan was closed as therewas no wilful disobedience of interim orders of stay on thepart of the Department. 3. Aggrieved by the common order dated 19.01.2007passed by the learned Single Judge whereby and whereunder Raman’sreversion and Kumaresan’s promotion as Superintendent were upheld,Raman has preferred the present writ appeals. 4. Heard the learned counsel for the parties. 5. The main grounds of attack of Mrs. NaliniChidambaram, learned Senior Counsel appearing on the side of theappellant would be that: https://hcservices.ecourts.gov.in/hcservices/ a. having opted to give up the Tamil NaduMinisterial Service, Kumaresan cannot try to reckon hisseniority in the said Service for the purpose of fixing hisseniority; b. the learned Single Judge ought not to have heldthat the post of Receptionist-Grade II in the Tamil NaduGeneral Subordinate Service Rules and the post of Assistant inthe Tamil Nadu Ministerial Service Rules are identicalconsidering that the scale of pay for both the posts is thesame; c. the finding of the learned Single Judge thatthe seniority list dated 27.02.1998 was not a final list iserroneous and the reversion of the appellant to the post ofAssistant is in violation of principles of natural justiceinasmuch as no opportunity to show cause as to why he shouldnot be reverted, was given to the appellant; and d. as per Rule 35(aa) of the Tamil Nadu State andSubordinate Service Rules, seniority in a post is to bedetermined only from the date of appointment to such post andthus, Raman is senior to Kumaresan since the former hadjoined the post of Assistant five months earlier than thelatter. 6.Contending contra, Mr. N.S. Nandakumar, learnedcounsel appearing for Kumaresan, relying on general rule 9 of theTamil Nadu State and Subordinate Service Rules, would contend thatseniority has been fixed in respect of Muralidevi, Kumaresan,Rajaraman and Raman in the post of Assistant on the basis of theirjoining as Junior Assistant/Typist and their accrued rights weredecided on the basis of ad hoc rules issued on 01.02.1998 by theGovernment in G.O.Ms.No.262, Department of Information and Tourismand the seniority of these persons has been decided in whichKumaresan has been shown as senior to Raman. He would furthercontend that when Kumaresan was appointed nine years prior to theappointment of Raman as Junior Assistant, the orders of theCommissioner of Tourism in reverting Raman to the post ofAssistant and restoring the post of Superintendent for Kumaresan,which are upheld by the learned Single Judge do not warrantinterference by this Court. 7.It is not in dispute that Raman and Kumaresan wereappointed as Junior Assistants in the Department of Informationand Tourism and the latter is senior to former by nine years. While Raman was promoted from the post of Junior Assistant toAssistant under Tamil Nadu Ministerial Service, Kumaresan wasappointed by the method of recruitment by transfer as ReceptionistGrade-II and subsequently given the post of Assistant under TamilNadu Subordinate Service which carries the same scale of pay of anAssistant. Considering the counter affidavit filed by theDepartment, the learned Single Judge had held that the posts of https://hcservices.ecourts.gov.in/hcservices/ Assistant and Receptionist Grade-II are identical since both thepost were promotional posts to the post of Junior Assistant. 8. As regards the seniority of Kumaresan overRaman, the learned Single Judge has categorically held thatKumaresan had given his willingness to the post of Assistant asearly as on 17.04.1995; but the same had not been considered bythe Department. Though the learned Senior Counsel for theappellant would contend that Kumaresan had not given hiswillingness to the post of Assistant on such date, no evidencewhatsoever has been placed before this Court in support of herargument and as such, her mere contention, not supported by anyevidence, does not have legs to stand. 9. In respect of seniority, some useful referencecould be made to Rule 35 (aa) of the General Rules for Tamil NaduState and Subordinate Services which reads as under: “The seniority of a person in aservice, class, category or grade shall,where the normal method of recruitment tothat service, class, category or grade is bymore than one method of recruitment, unlessthe individual has been reduced to a lowerrank as a punishment, be determined withreference to the date on which he isappointed to the services, class, category orgrade.” 10. It is seen that Kumaresan was appointed asReceptionist Grade-II as early as on 22.08.1994 which is actuallya post equivalent to the post of Assistant, carrying the samescale of pay. Since the posts of the Assistant and ReceptionistGrade-II are identical and Raman and Kumaresan who joined asJunior Assistants are eligible for promotion to both the posts,viz., Assistant and Receptionist Grade-II, once Kumaresan wasappointed to the post of Receptionist Grade-II on 22.08.1994 andRaman was given the post of Assistant only on 04.07.1996, theconclusion arrived at by the learned Single Judge that Kumaresanis senior to Raman, taking note of his appointment as ReceptionistGrade-II on 22.08.1994 when compared to Raman who was placed inthe post of Assistant only 04.07.1996 and giving due considerationto Rule 35(aa) of the Tamil Nadu State and Subordinate Serviceswhich states that seniority in a post is to be determined onlyfrom the date of appointment to such post, in this case,Assistant/Receptionist Grade-II and also Rule 9 of the GeneralRules for State and Subordinate Services, we are not able to findany fault with such conclusion arrived at by the learned SingleJudge. Thus, we find no reason to interfere with the order of thelearned Single on this count. 11. Lastly, though it is contended by the learnedSenior Counsel for the appellant that no opportunity of hearingwas given to the appellant before the Department came out with theorders in question, it is not that the learned Single Judge has https://hcservices.ecourts.gov.in/hcservices/ not given due consideration to this aspect. The learned SingleJudge has held categorically that seniority list dated 27.02.1998made it clear that it was subject to finalization after the issueof ad hoc rules. It has also been taken note of by the learnedSingle Judge that Raman’s order of promotion to the post ofAssistant would not confer on him any seniority which was purelytemporary. Though it is argued by the learned Senior Counsel forthe appellant that the seniority list dated 27.02.1998 was finalin nature, it could be seen from a plain reading of the same thatit was only ad hoc in nature. Furthermore, it specifically statesthat permanent list of seniority would be issued once the serviceof the aforesaid employees are regularized. In such view of thematter, the seniority list dated 27.02.1998 cannot be of anyassistance to the appellant for the purpose of claiming seniority,as contended by the learned Senior Counsel for the appellant,since it is only ad hoc in nature and not a final one. Thus, thecategorical finding of the learned Single Judge that the vestedright of the appellant was not taken away and that he would beentitled to an opportunity only if his vested right is taken away,is perfectly in order and does not warrant any interference.12. In view of the foregoing discussion, finding no faultwith the common order passed by the learned Single Judge andupholding the same, we dismiss the writ appeals as devoid of anymerit. However, there is no order as to costs. NocadSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1 The Secretary to Government Information & Tourism Department Fort St. George, Chennai – 600 0092 The Commissioner of Tourism Department of Tourism Tamil Nadu Tourism Complex Wallajah Road, Chennai – 600 0023 The Commissioner and Director Tourism Department, Chennai – 600 002+ One cc to M/s Gladysdaniel Advocate sR 29139+ One cc ;to Mr. N. S. Nandakumar SR 28982+ One cc to Govt Pleader SR 2815MBS (co)sg 14/5/07Common judgment inW.A. Nos.182 & 183 of 200727.04.2007