Deivasigamani v. The Secretary to Government of Tamil Nadu, Adi Dravidar Welfare Department & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 23.6.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition Nos.34300 of 2004 and 2241 of 2006W.P.No.34300 of 2004:-A.Deivasigamani. ... Petitionervs.1.The Secretary to Government of Tamil Nadu, Adi Dravidar Welfare Department, Fort St. George, Chennai-9.2.The Managing Director, Tamil Nadu Adi Dravidar Housing & Developing Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Chennai-101. ... RespondentsW.P.No.2241 of 2006:-A.Deivasigamani. ... Petitionervs.1.The Chairman, Tamil Nadu Adi Dravidar Housing and Development Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Madras 101. https://hcservices.ecourts.gov.in/hcservices/

2.The Managing Director, Tamil Nadu Adi Dravidar Housing & Development Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Chennai-101. 3.P.Mohan, Assistant Executive Engineer/ Assistant Director, Tamil Nadu Adi Dravidar Housing & Development Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Madras 101. ... RespondentsWrit Petition No.34300 of 2004 is filed under Article 226 ofthe Constitution of India to issue a Writ of Mandamus directing thesecond respondent to place the petitioner in the post of AssistantExecutive Engineer by giving promotion and fix the seniority on thebasis of the Work Assistant Seniority List, consequently disburse theentire monetary benefit. Writ Petition No.2241 of 2006 is filed under Article 226 ofthe Constitution of India to issue a Writ of Certiorari calling forthe records relating to the impugned order passed by the secondrespondent in his proceedings No.A3/13649/2004-1, dated 6.12.2005 andquash the same in so far as it relates to Sl.No.3 of the impugnedorder. W.P.No.34300 of 2004:-For petitioner : Mr.C.PrakasamFor respondents : Mr.L.S.M.Hasan Fizal, Government Advocate for R1 : Mr.Saravanan for R2W.P.No.2241 of 2006:-For petitioner : Mr.C.PrakasamFor respondents : Mr.Saravanan for R2 : Mr.Dhanasekar for R3 : No appearance for R1 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERWrit Petition No.34300 of 2004 is filed to issue a Writ ofMandamus directing the second respondent to place the petitioner inthe post of Assistant Executive Engineer by giving promotion and fixthe seniority on the basis of the Work Assistant Seniority List,consequently disburse the entire monetary benefit. 2. Writ Petition No.2241 of 2006 is filed to issue a Writ ofCertiorari calling for the records relating to the order passed bythe second respondent in his proceedings No.A3/13649/2004-1, dated6.12.2005 and quash the same in so far as it relates to Sl.No.3 ofthe order. 3. W.P.No.2241 of 2006:- The brief facts for disposal of this case are as follows:- (i) Petitioner joined the Tamil Nadu Adi Dravidar HousingDeveloping Corporation as a Work Assistant, Grade-I on 1.1.1975. Thesecond respondent department is in short called as TAHDCO. It hasseveral divisions spread all over State. Work Assistants have beenrecruited at the different locations of TAHDCO. The Work Assistants,who qualified themselves by obtaining diploma in civil examinationand such other required qualification and who had put in some periodof service were temporarily promoted and appointed as JuniorEngineers. On 27.4.1978 one such order was passed by the ManagingDirector of TAHDCO whereby 21 persons were promoted and appointed asJunior Engineers and assigned work at various divisions all overTamil Nadu. The persons so promoted were informed that theappointment is purely temporary. The petitioner, a Work Assistant,whose name did not find a place in the list, made a representationimmediately. His case was also considered and he was promoted andappointed as a temporary Junior Engineer by order dated 19.5.1978.He gave representation on 25.5.1978 to consider his claim forseniority in the cadre of Junior Engineer based on his seniority asWork Assistant. While this interaction was going on between thepetitioner and the TAHDCO, on 1.7.1983,the Managing Directorregularised the services of the temporarily appointed JuniorEngineers. In that order of regularisation, serial No.4 is respondentNo.3 and the petitioner is serial No.20. It has been specificallystated in clause 4 of the order that seniority of the candidates willbe fixed according to roster and communicated separately.Consequently, on 13.3.1985 a tentative seniority list of JuniorEngineers was prepared by the Managing Director of TAHDCO. In thislist, the third respondent was placed as Serial No.11 and thepetitioner was placed as serial No.29. Parties are not able to state https://hcservices.ecourts.gov.in/hcservices/ as to when the seniority list was finally fixed. However,on23.8.1989, the Managing Director issued a proceeding whereby a listof fully qualified Junior Engineers fit for appointment by promotionto the post of Assistant Executive Engineers were drawn. From thistemporary panel, a few were temporarily promoted as AssistantExecutive Engineers. In this the third respondent's name finds aplace. The panel of Junior Engineers eligible to be promoted asAssistant Executive Engineer was drawn on 21.8.1989. (ii) Since the name of the petitioner did not find a place inthe said panel dated 21.8.1989 of Junior Engineers for promotion tothe post of Assistant Executive Engineer, a writ petition was filedin W.P.No.15939 of 1990 by five aggrieved persons including thepetitioner herein. In that writ petition, the present thirdrespondent was arrayed as respondent No.2. In that writ petition,the specific challenge was against the non-inclusion of thepetitioner in the temporary panel of Junior Engineers in proceedingsdated 21.8.1989, for the purpose of temporary promotion to the postof Assistant Executive Engineer. The TAHDCO, the first respondent,in its counter in that writ petition, submitted as follows and isrecorded as hereunder:- "3. On the other hand, the 1st respondenthas filed the counter affidavit. In the counterit is stated that tentative seniority list ofJunior Engineers were already drawn dated13.3.1985 as there was no vacancies of AssistantExecutive Engineers petitioners were not promotedwithin one year from the date of drawal of thepanel."In the writ petition No.15939 of 1990 a specific direction wasgiven by this court that even if the panel is reviewed, the placementof the respondent No.2 in the said writ petition, the respondent No.3in this writ petition, should not be disturbed. Paragraph 5 of theorder reads thus:-"5. Under such circumstances it issuffice if a direction is issued to the 1strespondent to review the panel within eight weeksfrom the date of receipt of the order copy andaffect the promotion for the petitioners, if theyare otherwise eligible without disturbing theplacement of the respondents. The petitionersshall be posted in the order of theirseniority." (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ (iii) Thereafter, the petitioner made severalrepresentations. On 30.5.2003 a tentative seniority list ofAssistant Engineers and Junior Engineers working in TAHDCO was drawnas on 31.12.2002. In the tentative list of Junior Engineersprepared as on 31.12.2002, the name of the petitioner finds place inserial No.5. Respondent No.3 having been promoted earlier asAssistant Executive Engineer, obviously did not figure in the list.On 6.4.2004 final seniority list in respect of the Junior Engineerswas prepared in proceedings No.A3/10316/98. In the final senioritylist, the petitioner's name finds place as serial No.5. (iv) On 6.12.2005, the third respondent Assistant ExecutiveEngineer was considered and included in the panel for the appointmentto the post of Executive Engineer. Third respondent's name findsplace at serial No.3. Aggrieved by the non inclusion of thepetitioner's name in the panel for consideration to the post ofExecutive Engineer, the present writ petition has been filedchallenging the order dated 6.12.2005. 4. A counter-affidavit has been filed by TAHDCO and thecontesting third respondent and it is contended that the petitionerhas accepted the earlier seniority list and the final order inW.P.No.15939 of 1990 dated 18.8.1999. Therefore, when thepetitioner's seniority in the Junior Engineer carder is noteffectively challenged, he cannot now challenge the panel to the postof Executive Engineer for which the feeder category is AssistantExecutive Engineer. The writ petition has to be dismissed on accountof latches and acquiescence. 5. The relief sought for by the petitioner at this point oftime cannot be granted for the following reasons:-(i) The petitioner was promoted as Junior Engineertemporarily on 19.5.1978. Thereafter, the services of the petitionerwas regularised on 1.7.1983 and the tentative seniority list wasdrawn on 13.3.1985. In that list, the petitioner is in serial No.29and the third respondent is in serial No.11, which seniority list wasnot challenged by the petitioner and has become final.(ii) Even in the regularisation order dated 1.7.1983, it hasbeen specifically stated that the seniority of the candidate will befixed according to the roster and communicated separated. This wasdone on 13.3.1985.(iii) Having failed to establish his seniority in the year1985, petitioner cannot make a claim to refix the seniority asagainst respondent No.3 at this point of time. https://hcservices.ecourts.gov.in/hcservices/ (iv) Petitioner challenged the temporary panel of JuniorEngineers drawn on 21.8.1989 in W.P.No.15939 of 1990 and this courtby order dated 18.8.1999 rejected the plea as against the presentthird respondent, who was arrayed as second respondent in the writpetition No.15939 of 1990. This court in its order dated 18.8.1999issued direction to the authorities to review the panel and effectthe promotion, however, with a rider that the placement of thepresent third respondent who was respondent No.2 in W.P.No.15939 of1990 should not be disturbed. Such order of this court has not beenchallenged further and has attained finality. On the other hand,petitioner accepted the order of the court and subsequently on30.5.2003, a panel of Junior Engineers as on 31.12.2992 was drawn andthe name of the petitioner finds place in serial No.5. Thisseniority list is not under challenge. The tentative seniority listdated 30.5.2003 was finalised on 6.4.2004 by the proceedings of theManaging Director as referred to earlier. There also, the petitioneris in serial No.5. Petitioner has not chosen to challenge theseniority list dated 6.4.2004. (v) In the meanwhile the third respondent has reached thefeeder category of Assistant Engineer for promotion to the post ofExecutive Engineer. Whereas the petitioner is now in the feedercategory, namely, Junior Engineer eligible for promotion to the postof Assistant Executive Engineer. Therefore, the petitioner and thethird respondent fall under different feeder categories on the basisof the concluded proceedings as above. The petitioner is, therefore,not entitled to challenge the order dated 6.12.2005 which relates tothird respondent's position for promotion to the next level.(vi) Petitioner cannot now plead that the clock should beset back as on date of his original appointment as Work Assistant andhis seniority at the time of temporary promotion as Junior Engineerin the year 1978 should be redone. Much water has been flown afterthe Work Assistants were temporarily promoted as Junior Engineers andregularised. The seniority in the post of Junior Engineer has beendone long before and has not been effectively challenged by thepetitioner. 6. In view of the above conclusion, it is clear that thepetitioner in W.P.No.2241 of 2006 has not made out a case forinterfering with the proceedings under challenge, viz.,Proc.No.A3/13649/2004-1 dated 6.12.2005. Accordingly, W.P.No.2241 of2006 is dismissed. No order as to costs.7. W.P.No.34300 of 2004:- Since the petitioner has noteffectively challenged the seniority list while in the post of WorkAssistant, the temporary promotion as Junior Engineer and thesubsequent seniority fixed in the post of Junior Engineer, he is notentitled to seek the relief for a mandamus to direct the second https://hcservices.ecourts.gov.in/hcservices/ respondent to place the petitioner in the post of Assistant ExecutiveEngineer overlooking the rival claims. The relief sought for cannotbe granted. No mandamus can be issued as prayed for. However, asdirected by this court in its order dated 18.8.1999 in W.P.No.15939of 1990 based on the representation of the petitioner and hiseligibility to be promoted as Assistant Executive Engineer can beconsidered on the seniority list drawn subsequently which has alreadyreferred to above without undue delay. Accordingly, the writ petitionNo.34300 of 2004 is disposed off. No order as to costs. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrarts To1.The Secretary to Government of Tamil Nadu, Adi Dravidar Welfare Department, Fort St. George, Chennai-9.2.The Managing Director, Tamil Nadu Adi Dravidar Housing & Developing Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Chennai-101. 3.The Chairman, Tamil Nadu Adi Dravidar Housing and Development Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Madras 101. + 2 cc to Mr.C.Prakasam,Advocate,SR.25721+ 1 cc to Mr.V.Bharathidasan,Advocate,SR.25520+ 1 cc to Mr.D.Krishna Kumar,Advocate,SR.25343+ 1 cc to Government Pleader,SR.25781 W.P.Nos.34300 of 2004 and 2241 of 2006KS(CO)EM/3.7.09