The Commissioner Coimbatore Corporation Coimbatore v. A.Michael Raj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.01.2008CORAMTHE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANANDTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANW.A.NO.1570 OF 2006 AND M.P.NO.1 OF 2006The CommissionerCoimbatore CorporationCoimbatore..... Appellant Vs.1. A.Michael Raj 2. The Corporation Education Officer, Coimbatore Corporation, Coimbatore..... RespondentsMP.2/06:- Presented to this Court to pass an order of inteimdirection directing the respondents to promote the petitionerbased on the existing panel dated 10.8.2005 in the existingvacancy caused due to the death of Mrs. Dhanammal, HeadmistresP.N. Pudur pending disposal of WP.No.22967/06.Writ Appeal filed under Clause 15 of the Letters Patentagainst the order dated 25.7.2006 passed by the single Judge inM.P.No.2 of 2006 in W.P.No.22967 of 2006. This Petitionpresented to this Court under Article 226 of the Constitution ofIndia to issue a writ of certiorarified mandamus to call forrecords in proceedings Na.Ka.No.1586/2006/K7 dated 30.6.2006 andquash there by direct the respondents to promote the petitioneras Headmaster corporation High School wef (13.5.2006) based onthe existing panal drawn by the respondents dated 10.8.2005 withall monetary and service benefits.For Appellants: Mr.R.SivakumarFor Respondent: Mr.V.ThirupathiNo.1 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) The order dated 25.7.2006 passed by the learned single Judgein M.P.No.2 of 2006 in W.P.No.22967 of 2006 grantingconsequential final order at the time of admission itself by wayof interim order has been assailed in this writ appeal.2. The 1st respondent herein filed writ petition forissuance of writ of certiorarified mandamus to call for therecords of the appellant in proceedings Na.Ka. No.1586/2006/K.7dated 30.06.2006, provisional seniority list for preparing panelof candidates for promotion as Head-master and quash the same anddirect the appellant to promote the 1st respondent herein asHeadmaster, Corporation High School with effect from 13.5.2006based on the existing panel drawn by the appellants dated10.8.2005 with all monetary and service benefits. 3. The 1st respondent filed the said writ petition interalia contending that he was working as a P.G. Assistant inCorporation, Boys Higher Secondary School, Coimbatore. The nextavenue of promotion is to the post of Head Master. The 1strespondent qualified himself in May, 2004 for promotion to thepost of Head Master. The appellant Corporation, by itsproceedings dated 10.08.2005, issued a seniority list forpromotion to the post of Head Master in which the 1st respondentwas placed at Serial No.7. The list was valid upto one year i.e.,09.08.2006. The 1st respondent earlier filed writ petition inW.P.No.6771 of 2006 seeking for direction directing the appellantto consider and pass orders on the representation made by the 1strespondent on 19.12.2005. In that representation, the 1strespondent represented that one Dhanammal, Headmistress hasreached the age of superannuation on 30.11.2005, but her serviceswere extended till the academic year upto 31.5.2006. In thevacancy to be caused on the superannuation of the said Dhanammal,the 1st respondent should be promoted to the post. That writpetition came to be disposed of with a direction to consider the1st respondent if he is otherwise eligible. In the mean time thesaid Dhanammal expired on 13.5.2006. The 1st respondent once againmade a representation on 15.5.2006 to promote him as Head Master.While the representation was pending, the appellant, by hisproceedings dated 30.06.2006 prepared seniority list as on01.01.2006 in which the 1st respondent was placed at serial No.9.According to the 1st respondent, the preparation of senioritylist was highly illegal and the 1st respondent should have been https://hcservices.ecourts.gov.in/hcservices/ promoted to the post of Head Master. On that basis, he filed thepresent writ petition seeking for the relief of certiorarifiedmandamus to quash the provisional seniority list dated 30.06.2006and consequently direct the appellant to promote him as HeadMaster of the Corporation School with effect from 13.05.2006based on the existing panel dated 10.08.2005. That writ petitionwas admitted, and taking note of the representation of thelearned counsel that the 1st respondent was placed at Serial NO.7in the seniority list, the said panel was still alive and on theexpiry of the said Dhanammal, the 1st respondent was entitled topromotion to the post of Headmaster, an interim direction to theappellant Corporation to promote the 1st respondent based on thepanel dated 10.8.2005 in the existing vacancy was granted. Thecorrectness of the said order is now canvassed in the writappeal.4. Learned counsel appearing for the appellant assailed theimpugned order by contending that the competent authority, theappointment committee by the resolution dated 15.12.2006 hadapproved the names of the 1st six persons towards the actualnumber of vacancies in existence. The panel drawn out of theseniority list was thus already exhausted. The vacancy causeddue to the death of one headmaster on 13.05.2006 has to beconsidered only for the year 2006. It is only in that process offilling up the said vacancy, the provisional seniority list dated30.06.2006 was published. The 1st respondent, without filing hisobjections, if any, to the said list, filed the writ petition.The impugned direction granted in favour of the 1st respondent isagainst all norms of settled principles of law and in violationof the basic principles of natural justice.5. Learned counsel appearing for the 1st respondent hasreiterated the averments contained in the affidavit, which areextracted above. 6. We heard the learned counsel on either side and perusedthe materials available on record.7. In the earlier writ petition filed by the 1st respondentin W.P.No.6771 of 2006, an order was passed by D.Murugesan,J., on9.3.2006, the relevant portion of which reads as follows:"... 3. In the matter of appointment to the postof Headmaster by promotion, it is not a rule that theseniority alone should count, as the post ofHeadmaster is to be filled up only by considering thecomparative merit and ability of all the eligiblecandidates and when both the merit and ability areapproximately equal, then the seniority has to betaken into consideration. Though the petitioner (1st https://hcservices.ecourts.gov.in/hcservices/ respondent herein) claims that he is senior andconsequentially he should be promoted as Headmaster, Iam not inclined to accept the said submission in viewof the above principle, which is in accordance withthe rules. Nevertheless, the post of Headmaster is dueto become vacant in the end of the present academicyear. In the event the petitioner (1st respondentherein) is also eligible, he could be considered alongwith the other eligible candidates on the basis ofmerit and ability...."8. One additional factor for the 1st respondent to file thepresent writ petition was that the provisional seniority listprepared on 30.06.2006, the 1st respondent was arrayed at SerialNo.9. As averred by the 1st respondent in the sworn affidavit,while issuing the list dated 30.06.2006, as on 01.01.2006, theappellant has called for objections, if any, to the list from theteachers included in the list. If the 1st respondent is havingany objection in arraying him in Serial No.9, he could have verywell objected to the same. However, he filed the present writpetition to quash the list by way of certiorari and consequentlysought for a direction by way of mandamus in a positive manner topromote him as Headmaster, that too, with effect from 13.05.2006.9. In all services, whether public or private there isinvariably a hierarchy of posts comprising of higher posts andlower posts. Promotion, as understood under the Service LawJurisprudence, is advancement in rank, grade or both and noemployee has right to be promoted, but has a right to beconsidered for promotion. The principles of seniority-cum-meritand merit-cum-seniority are conceptually different. For theformer, greater emphasis is laid in seniority, though it is notthe determinative factor, while in the latter merit is thedeterminative factor. Useful reference can be had to the judgmentof the Supreme Court in the case of STATE OF UTTAR PRADESH VS.JALAL UDDIN AND OTHERS reported in 2004(7) Supreme 244,K.SAMANTARAY VS. NATIONAL INSURANCE COMPANY LIMITED., AIR 2003 SC4422 and SANT RAM SHARMA VS. STATE OF RAJASTHAN AND OTHERSreported in AIR 1967 SC 1910.10. If the above said legal position is applied to thepresent case, we are not able to approve the grant of impugnedorder at the stage of admission of the writ petition itself. Thefinal relief sought for in the writ petition has been granted byway of interim relief, that too without hearing the appellants.Even the grant of main relief is appeared to be highly debatable.By virtue of the interim order granting the main relief, theteachers, who are arrayed over and above the 1st respondent inthe panel, are virtually condemned because of the overtaking of https://hcservices.ecourts.gov.in/hcservices/ the 1st respondent over and above them. Assuming for the sake ofthis case, the 1st respondent is having hundred percent case andhe is so confident of succeeding in the writ petition, the orderof the present nature cannot be granted, as it would otherwiseamount to granting the final relief, without hearing the personsadversely affected by the impugned order. There is no prejudicecaused to the 1st respondent if he waits till the final ordersare passed. If a final order is passed in favour of the 1strespondent, he would be placed in appropriate position restoringhis seniority and all the benefits to which he is entitled, wouldbe granted to him. But in the negative, if the 1st respondent isnot able to succeed in the main writ petition, till final ordersare passed the 1st respondent has been placed in an advantageousposition for which he is not legally entitled to on ultimateanalysis of the case. 11. Writ of mandamus can be regarded as a mandatoryinjunction in Civl Jurisprudence. It is very well establishedprinciple of law that a mandatory injunction can be granted onlyafter hearing the other parties and that too, taking intoconsideration of the prima facie case, balance of convenience andirreparable loss and injury. None of the ingredients for grantinginterim order even after hearing the other side is available inthis case. Useful reference can be had to the judgment of theSupreme Court in the case of BHARAT SANCHAR NIGAM LIMITED VS.PREM CHAND PREMI reported in (2005) 13 SCC 505.12. For the above said reasons, the writ appeal is allowedand the order dated 25.7.2006 passed by the learned single judgein M.P.No.2 of 2006 in W.P.No.22967 of 2996 is set aside. It isopen to the parties to approach the appropriate Court to get thewrit petition disposed of an early date. No costs. Consequently,the connected M.P.No.1 of 2006 is closed. UskSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Commissioner Coimbatore Corporation Coimbatore.2. The Corporation Education Officer, Coimbatore Corporation, Coimbatore.+ 1 cc to M/s. R. Sivakumar, Advocate, SR No.1373+ 1 cc to Mr.V. Thirupathi, Advocate, SR No.1061W.A.NO.1570 of 2006AKR(CO)SR/29.1.2008