R.Jayanthi v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.2.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIWrit Appeal No.70 of 20071. The State of Tamil Nadu rep. by its Secretary (Higher) Education Department Fort St.George, Chennai 600 009.2. The Director of Technical Education Guindy, Chennai 600 025... Appellants[Respondents].Vs.R.Jayanthi.. Respondent[Petitioner].Appeal under Clause 15 of the Letters Patent against the order ofthe learned Single Judge dated 6.2.2006 in W.P.No.26922 of 2005. W.P.No.26922 of 2005: Petition presented to this Court underArticle 226 of the Constitution of India, to issue a Writ ofCertiorarified Mandamus to call for records relating to theproceedings of the 2nd respondent made in No.O.Mu.34522/D.3/2001dated 31.8.2001 and O.Mu.10972/D.3/2002 dated 23.4.2002, to quash thesame and consequently direct the respondents to extend all servicebenefits by taking into account the appointment of the applicant asJunior Assistant on the basis of the Panel made in proceedingsNo.11653/D.4/88 dated 14.6.1988 and other consequential benefitsthereto.For Appellants : Mr.K.Ilango, Spl.G.P.For Respondent : Mr.L.ChandrakumarJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)The above appeal is directed against the order dated 6.2.2006made in W.P.No.26922 of 2005, filed by the respondent herein.2. For the purpose of convenience, parties are arrayed as pertheir rank in the writ petition.3. The brief facts which paved way for filing the above appealare as under.(a) The petitioner was appointed as a Record Clerk on 10.12.1982through Employment Exchange. Thereafter, she was promoted as JuniorAssistant by the proceedings of the second respondent dated19.7.1988, specifically stating that the said promotion was temporaryand the same would not confer any right as against the candidatesselected through the Tamil Nadu Public Service Commission and shewould be reverted to the post of Record Clerk as and when postingswere issued to the candidates selected from the Tamil Nadu PublicService Commission. The petitioner did not join the promotional post https://hcservices.ecourts.gov.in/hcservices/ as she was suffering 50% disability and requested the secondrespondent to post her in and around Coimbatore.(b) By proceedings of the second respondent dated 4.8.1988, thepromotion given to the petitioner was cancelled and she was revertedto the post of Record Clerk. Nearly after thirteen years, thepetitioner made a representation, through her husband, on 10.8.2001to cancel the order of reversion dated 4.8.1988 and to promote her tothe post of Junior Assistant notionally with effect from 19.7.1988.However, the second respondent, by proceedings dated 31.8.2001,rejected the request made on behalf of the petitioner on the groundthat the promotion given to the petitioner was temporary and subjectto the condition that she would be reverted back as and when postingswere issued to the candidates selected from the Tamil Nadu PublicService Commission. (c) The petitioner made a further representation on 19.3.2002 andthe same was also rejected by the second respondent, by proceedingsdated 23.4.2002 on the grounds stated in their earlier proceedingsdated 19.3.2002 and further stating that the promotion to the post ofJunior Assistant from Record Clerk was cancelled even before thepetitioner joined the duty in the promotional post. (d) In the meanwhile, the petitioner was given regular promotionfrom the post of Record Clerk to the post of Junior Assistant on6.1.1995. (e) However, aggrieved by the proceedings of the secondrespondent dated 31.8.2001 and 23.4.2002, the petitioner filedO.A.No.6260 of 2002 before the Tamil Nadu Administrative Tribunal,relying upon G.O.Ms.No.502, P & AR Department, dated 10.6.1987.Thereafter, the said O.A. was transferred and re-numbered asW.P.No.26922 of 2005, (f) The second respondent resisted the writ petition reiteratingthe reasons stated in their impugned orders dated 31.8.2001 and23.4.2002.(g) The learned single Judge, by order dated 6.2.2006, holdingthat the petitioner was entitled to be promoted as Junior Assistantfrom the post of Record Clerk as per G.O.Ms.No.502, P & ARDepartment, dated 10.6.1987, quashed the proceedings of the secondrespondent dated 31.8.2001 and 23.4.2002 and directed the respondentsto give notional promotion to the petitioner with effect from19.7.1988. Hence, the present appeal by the respondents.4. Heard Mr.K.Ilango, learned Special Government Pleader for theappellants and Mr.L.Chandrakumar, learned counsel for the respondent,who reiterated their submissions made before the learned single Judge.5.1. It is not in dispute that the petitioner was appointed asRecord Clerk on 10.12.1982 and promoted to the post of JuniorAssistant temporarily by proceedings dated 19.7.1988, which issubject to the condition that she would be reverted back as and whenpostings are issued to the candidates selected by the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Public Service Commission. The petitioner did not join thepromotional post as she wanted to continue at Coimbatore itself. Inthe meanwhile, she was reverted to the post of Record Clerk byproceedings dated 4.8.1988. Nearly after thirteen years, thepetitioner, without challenging the impugned proceedings of thesecond respondent, had chosen to make representations requesting topromote her to the post of Junior Assistant notionally with effectfrom 19.7.1988 and the same were rejected by the impugned proceedingsof the second respondent.5.2. No doubt, G.O.Ms.No.502, P & AR Department, dated 10.6.1987provides that persons who are having more than five years of servicein the lower category are entitled to get promotion as JuniorAssistant based on seniority. But, in the instant case, thepetitioner has relinquished her promotion to the post of JuniorAssistant by not joining the promotional post. Having abdicated herpromotion, the petitioner is not entitled to stake her claim ofpromotion to the post of Junior Assistant notionally relying onG.O.Ms.No.502, P & AR Department, dated 10.6.1987. Assuming thepetitioner is promoted as Junior Assistant notionally, the same, inour considered opinion, would disrupt the vested rights with regardto the seniority, rank and promotions that had been accrued by othersduring the intervening period of the order of reversion and theimpugned orders of rejection, apart from financial burden. 5.3. The petitioner had chosen to stake her claim to promote herto the post of Junior Assistant notionally, after thirteen years. In the cases where the litigant approaches with inordinate delay orlaches, the Courts, while exercising their discretion, are loath togrant relief, especially in service matters relating to seniority, inorder to ensure that settled seniority is not disturbed. Unsettlingsuch seniority would result in administrative chaos, inconvenienceand lead to considerable incoherence in the system of administration,apart from financial repercussions. 5.4. It is true that the relief claimed, after an abnormal delay,cannot be denied to the aggrieved merely on the ground of laches.However, if the delay and laches would have the effect of seriouslyaffecting the fundamental rights of a third party, the relief can berefused for valid reasons. Similarly, grant of relief can also bedenied if the long delay would result in throwing publicadministration out of gear vide P.V.S.V.Prasada Rao v. AndhraUniversity [MANU/AP/0906/2005].5.5. Of course, the rule, which says that the Court may notenquire into belated and stale claims, is not a rule of law but arule of practice based on sound and proper exercise of discretion.The delay, by itself, no doubt, would not defeat the claim for reliefon account of lapse of time. But, it depends upon an examination ofthe facts of each case. In the instant case, apart from the fact thatthere is no plausible explanation by the petitioner for the abnormaldelay in making the representation that the lapse of time is notattributable to any laches or negligence on her part, the petitionerlost her locus to stake her claim for promotion to the post of JuniorAssistant, based on G.O.Ms.No.502, P & AR Department, dated10.6.1987, as a matter of right, as, admittedly, she refused to join https://hcservices.ecourts.gov.in/hcservices/ the promotional post in spite of the proceedings dated 19.7.1988,which was subsequently cancelled to accommodate the candidatesselected by the Tamil Nadu Public Service Commission, a conditionincorporated in the order of promotion itself. Therefore, theconduct of the petitioner relinquishing her promotion, coupled withlaches, disentitle her to stake her claim based on G.O.Ms.No.502, P &AR Department, dated 10.6.1987, even notionally. 5.7. Further, it is apparent on a perusal of the proceedings ofthe second respondent dated 19.7.1988 that the promotion given to thepetitioner was temporary and subject to the condition that the samewould not confer any right on her as against the candidates selectedthrough the Tamil Nadu Public Service Commission and she would bereverted to the post of Record Clerk as and when postings were issuedto the candidates selected from the Tamil Nadu Public ServiceCommission. Therefore, we do not see any error on the part of thesecond respondent in reverting the petitioner to the post of RecordClerk, even before her joining in the promotional post.6. For all these reasons, we are unable to agree with the reasonsand findings of the learned single Judge in allowing the writpetition. Hence, the order of the learned single Judge is set aside.The writ appeal is allowed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kplTo1. The Secretary (Higher) State of Tamil Nadu Education Department Fort St.George, Chennai 600 009.2. The Director of Technical Education Guindy, Chennai 600 025.+ 1 CC To Mr. L.Chandrakumar, Advocate SR NO.5243+ 1 CC to the Government Pleader SR NO 5223W.A.No.70 of 2007.vc[co]gp/22.2.