P.Velayutham v. The Pondicherry Institute of Post Matric Technical Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.07.2009CORAMTHE HONOURABLE MR.JUSTICE S.NAGAMUTHUW.P.No.9725 of 2000P.Velayutham ... Petitioner -vs-The Pondicherry Institute of Post MatricTechnical Education, rep. By Member Secretary, Lawspet, Pondicherry – 8. . .. RespondentThis petition filed under Article 226 of the Constitution of Indiafor issuance of Certiorarified Mandamus or any other writ, order ordirection to call for the records of the respondent withNo.PIPMATE/11020/21/A.1/1997 and to quash the same in respect ofseniority list of Electronics & Communication Engineering DepartmentLecturers and consequently to direct the respondent to revise theseniority list of Lecturers of Electronics and CommunicationEngineering by placing the petitioner at 3rd place of the senioritylist. For Petitioner : Mr.v.Ajayakumar For Respondent: Mr.T.P.Manoharan. Special Government Pleader O R D E RThe respondent Puducherry Institute of Post Metric TechnicalEducation was established by the Government of Puducherry for thepurpose of imparting post Metric Technical Education, etc. in theUnion Territory of Puducherry. It is a Society registered underthe Societies Registration Act. The respondent has established asmany as four Polytechnic Colleges in the Union Territory ofPuducherry. The respondent has also framed Recruitment Rules forall the posts. All the Central Civil Service Rules except thePension Rules and General Provident Fund Rules apply to theemployees of the respondent. https://hcservices.ecourts.gov.in/hcservices/

2.During the year 1993, there were four vacancies for thepost of Lecturers in Electronics and Communication Engineering inthe Women's Polytechnic, Puducherry and Dr.B.R.Ambedkar Polytechnic,Yanam, established by the respondent. In the selection processwhich held on 18.11.1993 and 19.11.1993, the petitioner was selectedas against the vacancy reserved for scheduled caste. Three otherpersons by name M.Thanigasalam, V.Vijayalakshmi, T.A.Balarajuswamywere selected as against the rest of the three vacancies under thegeneral quota. The Selection Committee recommended the appointmentof the above four candidates including the petitioner on 28.1.1994.The other three candidates joined service in time, whereas thepetitioner took some time and joined service belatedly.3.The respondent published a tentative seniority list ofLecturers in the Institutions under the respondents by itsproceedings No.PIPMATE/11020/21/A.1 dated 10.11.1996. In the saidtentative list, in so far as Electronics and CommunicationEngineering is concerned, the petitioner was kept as No.3 in theseniority and below him M.Thanigasalam, V.Vijayalakshmi,T.A.Balarajuswamy, were kept as Nos. 4, 5 and 6. Subsequently, afinal list of seniority was published by the respondent on14.10.1997. In the said final list, M.Thanigasalam,V.Vijayalakshmi, T.A.Balarajuswamy, were kept above the petitioneras Nos.3, 4 and 5 and the petitioner was kept at No.6. Claiming thatthe petitioner should have been kept above M.Thanigasalam,V.Vijayalakshmi, T.A.Balarajuswamy, the petitioner has come forwardwith this Writ Petition challenging the said seniority list, it iscontended.4.It is the contention of the petitioner that as per thereservation Roster maintained by the respondent, out of the fourvacancies for which selection was held in the year 1993, as per theturn, the first vacancy was reserved for scheduled caste and theother three were earmarked under the open quota. Since thepetitioner was selected as against the scheduled caste quota, heshould have been kept as No.1 among the four selected candidates andthe others should have been kept below him in the seniority list.5.In the counter, it is submitted that the reservationRoaster is intended to be an aid to determine the number ofvacancies for scheduled caste and not for determining seniority. Asper the order in O.M.No.10/52/73.Estt. (SCT) issued by theDepartment of Personnel and Administrative Reforms dated 24.5.1974,to all the Ministries in the Government of India, the Roasters whichhave been prescribed to give effect to the reservation for scheduledcaste candidate, through O.M.No.1/11/69-Estt.(SCT) dated 22.4.1970and No.1/72-Estt.(SCT) dated 12.3.1973, are for determining thenumber of vacancies reserved for Scheduled Castes and Scheduled https://hcservices.ecourts.gov.in/hcservices/ Tribes in any particular examination, recruitment etc., and theroaster is not for determining the order of actual appointment orfor the purpose of determining seniority. 6.The learned counsel appearing for the respondent wouldrely on the above Government Order and submit that out of fourvacancies, for which selection was held during the year 1993, onewas reserved for the scheduled caste as per the roster and it cannotbe said that the said vacancy is the first vacancy among the fourfor the purpose of fixation of seniority. It is further stated thatas per the marks secured in the interview Thanigasalam secured 75marks, V.Vijalakshmi secured 75 marks, Mr.T.A.Balarajuswamy secured70 marks and the petitioner secured 62 marks, the selection was madein the order as 1 to 4 respectively keeping M.Thanigasalam as No.1,V.Vijayalakshmi as No.2, T.A.Balarajuswamy as No.3 and thepetitioner at No.4, and the selection list was submitted to therespondent. 7.The appointment orders were made on the basis of the saidselection list and according to the same, the seniority was fixed.It is further submitted that in the tentative list of seniority, ofcourse it is true that the petitioner was kept above the said threepersons, but when the above three persons submitted theirobjections, the mistake was found out and therefore, it wasrectified and the petitioner was rightly kept below the above saidthree persons in the final list. Thus, according to the respondentsthere is no justification in the grievance of the petitioner.8.I have considered the above rival submissions.9.When an identical question arose for consideration beforethe Hon'ble Supreme Court in BIMLESH TANWAR Vs. STATE OF HARYANAreported in (2003) 5 SCC 604, after analysing various earlierjudgments, the Hon'ble Supreme Court has ultimately held as follows:"40.An affirmative action in terms of Article 16(4) of the Constitution is meant for providing arepresentation of a class of citizenry who aresocially or economically backward. Article 16 of theConstitution of Indian is applicable in the case of anappointment. It does not speak of fixation ofseniority. Seniority, is, thus, not to be fixed interms of the roster points. If that is done, the ruleof affirmative action would be extended which wouldstrictly not be in consonance of the constitutionalschemes. We are of the opinion that the decision inP.S.Ghalaut does not lay down a good law."The law laid down in the said judgment squarely applies to the facts https://hcservices.ecourts.gov.in/hcservices/ of the present case.10.As rightly pointed out by the learned counsel for therespondent, as per the Government Orders referred to above also,reservation Roasters are intended to be an aid only to determine thenumber of vacancies and not for determining seniority. Seniorityis to be determined on the basis of selection list based oncomparative merits. In this case, as per the marks secured in theinterview, since the petitioner had secured lesser marks than theother three candidates, in the select list, he was kept at No.4among the four selected candidates. Based on the same, hisseniority has also been fixed. Therefore, the contention of thepetitioner that the vacancy reserved for scheduled caste as per theReservation Roaster is the first vacancy and therefore overlookingthe other three, he should be kept above the said three candidatescannot be countenanced. Thus, in my considered opinion, theseniority of the petitioner has been rightly fixed and as such nointerference is called for. 11.The learned counsel for the petitioner would raise anotherobjection to say that before changing the seniority list, therebybringing the petitioner below the above said three persons, noopportunity whatsoever was given to the petitioner. He wouldfurther submit that the petitioner was under the impression that theseniority as stated in the tentative seniority list would be finallypublished as final seniority list. It may be true that objectionswere raised by M.Thanigasalam, V.Vijayalakshmi, T.A.Balarajuswamy,but, the grievance of the petitioner is that before accepting theobjections raised by those three persons and before altering theseniority, the petitioner ought to have been given opportunity. Onthis ground, according to the petitioner, the impugned senioritylist is liable to be set aside.12.Though, there appears to be some justification in theargument of the learned counsel for the petitioner, the entire factsand circumstances of the case as extracted above would show thatbecause no such opportunity was given to the petitioner, he has notbeen in any way prejudiced. Even before this Court, the onlycontention of the petitioner is that his seniority should have beenfixed as per the Reservation Roaster. In the earlier paragraphs, Ihave negatived the same. Except the said objection, the petitionerhas got no other objection regarding the final list of seniority.Had an opportunity been given to the petitioner, he would haveraised only the said objection. Since there is no substance in thesaid objection, giving an opportunity now to the petitioner would beonly a wasteful exercise as it would be an empty formality and so,I am of the view that no further opportunity need be given to thepetitioner by setting aside the impugned seniority list.Absolutely, I find no merit in the Writ Petition and thus the same https://hcservices.ecourts.gov.in/hcservices/ is liable to be dismissed. 13.In the result, the Writ Petition fails and the same isdismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrpaToThe Pondicherry Institute of Post MatricTechnical Education, rep. By Member Secretary, Lawspet, Pondicherry – 8. +1cc to Mr.T.P.Manoharan, Advocate Sr 32900+1cc to Mr.V.Ajayakumar, Advocate Sr 32224KJ(CO)km/6.8.W.P.No.9725 of 2000