High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2008CORAMTHE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAANDTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.17719/2003P.S.Sesuraj .. Petitioner-Vs.-1.The Deputy Director [Administration] Directorate of Fire & Rescue Services, Egmore, Chennai 600 008.2.Mr.R.Jayakumari3.The Registrar Tamilnadu AdministrativeTribunal, High Court Campus, Chennai 600 104. .. RespondentsPRAYER: Petition under Article 226 of The Constitution of India prayingfor the issuance of a Writ of certiorarified mandamus calling for therecords relating to the order dated 27.12.2002 made in OA.No.7575 of2001 on the file of the Tamil Nadu Administrative Tribunal, Chennai, the3rd respondent herein [2] the proceedings of the Deputy Director ofAdministration, Chennai-8, the 1st respondent herein made inNa.Ka.No.5600/Pa.1/2001, dated 12.11.2001 and the proceedings made inNa.Ka.No.5600/Pa.1/2001-2 dated 13.11.2001 insofar as the recasting ofthe seniority of the petitioner from 1987 to 1988 in the post ofAssistant and the order of reversion of the petitioner from the post ofSuperintendent to Assistant and consequently direct the 1st respondentherein to refix the seniority of the petitioner as has been done earlieron 7.9.1990 in the post of Assistant and consequentially promote him tothe post of Superintendent on par with his immediate juniors with allconsequential service and monetary benefits due to the petitioner in thepost of Superintendent and disburse all the arrears within a short date.For Petitioner : Mr.K.RajkumarFor Respondents: Mr.M.Dhandapani,Spl.GP https://hcservices.ecourts.gov.in/hcservices/ O R D E RK.CHANDRU, J.The petitioner is aggrieved by the order of the Tamil NaduAdministrative Tribunal [For Short "Tribunal"] made in OA.No.7575 of2001 dated 27.12.2002 and hence, the present writ petition is filed.2.Heard the arguments of Mr.K.Rajkumar, learned counsel for thepetitioner and Mr.M.Dhandapani, learned Special Government Pleader andhave perused the records.3.The petitioner was working as a Superintendent in the DivisionalFire Office and by order dated 13.11.2001, he was reverted to the postof Assistant and it was this order which was challenged before theTribunal by the petitioner. The petitioner sought for an interim order.Though it was granted earlier, it was not extended and it was againstthis non-extension of the interim order of reversion, the petitionerfiled the writ petition before this court being WP.No.9980 of 2002.This court declined to interfere with the orders passed by the Tribunaland merely directed the disposal of the Original Application on merits.4.The petitioner joined the Fire Service Department as a JuniorAssistant on 19.03.1983. He was appointed on the ground that he was aBurma Repatriate and his appointment was regularised by the Governmentonly on 16.04.1990 but to take effect from 19.03.1983. Thereafter, hewas promoted as an Assistant on 07.01.1987 and further promoted as aSuperintendent on 17.05.2001. On 07.09.1987, the departmental PromotionCommittee [DPC]published the list of eligible candidates to the post ofAssistant/Typist. The petitioner was having Serial No.13 in theseniority list and the second respondent was placed over him. 5.The petitioner filed a Writ Petition before this court which wastransferred to the Tribunal and taken on filed as TA.No.231 of 1990.However, the said Transfer Application was withdrawn by the petitionerand the Tribunal permitted the withdrawal of the said TransferApplication by an order dated 25.06.1990. 6.Once again when the DPC published the panel for the post ofSuperintendent, the petitioner had the fifth position. He was promotedas a Superintendent in a leave vacancy by an order dated 17.05.2001. Itwas only on 20.10.2001 he was posted in a permanent vacancy as aSuperintendent. But by the order dated 13.11.2001, he was revered tothe post of Assistant. This was on the basis of the direction issued bythe Deputy Director dated 12.11.2001 before the issuance of the saidorder another order was issued by the department dated 12.11.2001 by theDeputy Director [Administration] on the basis of the Government'sdirection dated 01.06.2001. The Government had queried whether theratio of 4:1 between the Junior Assistant and Typist was followed while https://hcservices.ecourts.gov.in/hcservices/ permitting the persons to the cadre of Assistant in terms of theGovernment order. 7.Based on this, a seniority list was published having the ratio4:1. This seniority list was not challenged by the petitioner. Butonly the consequential proceeding dated 13.11.2001 reverting thepetitioner alone was challenged. Before the Tribunal a reply affidavitwas filed by the Official respondent. They had also contended that thesecond respondent and one Tmt.Shenbagam was senior to the petitioner inthe post of Assistant as they were promoted to the post of Assistant on04.11.1987 and 25.11.1987 whereas the petitioner was promoted to thepost of Assistant only on 02.08.1990, viz., three years after the dateof promotion of the second respondent as well as the said Shenbagam.Therefore, when the promotion to the post of Superintendent came, it wasonly the second respondent who was eligible to be promoted whereas thepetitioner was promoted only in a leave vacancy in the year 1999 and wasreverted for want of vacancy. It was only on 20.10.2000, regularpromotion was given to him in the Erode Division. 8.Because of the representation made by the second respondent andthe said Shenbagam, the Government gave the direction by letter dated10.04.2001 that as per the Tamil Nadu Ministerial Service Rules, thecrucial date for drawal of "C" list for the post of Assistant is 15thMarch of every year and those who are qualified on the crucial datealone should be included in the 'C' List of that particular year.Therefore, on 13.03.1987, the Government indicated five personsincluding the petitioner, who were ineligible to be included in the 'C'list and the petitioner had acquired qualification only in May 1987 andhe ought not have been included in the list for 1987. It was to giveeffect to this order and basing upon the representation of the secondrespondent who was admittedly senior to the petitioner in the post ofAssistant, the list was revised and accordingly, the consequentialdirections were given. Since the post of Director of Fire Service waskept vacant, the post could not be filled up and the Government gavepower to the Deputy Director to revise the 'C' list and accordingly, theDeputy Director implemented the orders of the Government. 9.For the contention that the revision was made long after the duedate and there was an infraction of Rule 35[F] of the General Rules itwas stated that the very same rule saves rectification of ordersresulting from "Mistake of Facts" and the same will not be covered bythe Rules. It was also stated that the contention of the petitionerthat the revision of seniority was done after 17 years is not covered bythe rules quoted by him. The Tribunal accepting the stand of therespondents, held as a matter of fact, the second respondent and thesaid Shenbagam are seniors to the petitioner and they have also acquiredqualification on the crucial date, viz., 15.3.1987 and therefore, therewas no question of setting aside the reversion order given to thepetitioner. There was no prejudice to the petitioner as he had hardly https://hcservices.ecourts.gov.in/hcservices/ worked in the promoted post for a few months and his earlier promotionwas on fortitous circumstances, viz., in a leave vacancy.10.Mr.K.Rajkumar, learned counsel for the petitioner strenuoulycontended that an incompetent authority had effected the reversion andtherefore, it is invalid and also relied upon Appendix III of Rule 14-A.First of all, the said rule will apply only in case of penalty and notin a case where the consequential reversion order is passed pursuant torefixation of seniority. In any event, the Government had explainedthat in the absence of vacancy in the Director's the Government haddelegated the powers to the Deputy Director and no exception can bemade. 11.The learned counsel also relied upon the following judgments insupport of his contentions:-[A]AIR 1967 SC 209 [M/s.Dalmia Cement [Bharat] Ltd., New Delhi Vs.Their Workmen and another] and reiterated that if there is any longusage or custom it that can be protected. We are afraid to take anysuch cue from the said judgment as it related to availing of Sick andCasual leave by Industrial Workmen and under the I.D.Act long whereinthe custom and usages have been recognised. [B]AIR 1989 SC 218 [Rana Randhir Singh and others V. State ofU.P. And others]. In that case, it was held that after promotions made adispute relating to seniority after 9 years was considered to beprejudicial to persons. In the present case, it must be stated that thepetitioner had an undue advantage of promotion when he was not seniorand when he was not qualified to hold the post on the crucial date. 12.The learned counsel also relied upon the judgments of AndraPradesh High Court reported in 2001 [7] SLR 246 [Smt.M.R.Subhadra v.Financial Adviser and Chief controller of Accounts, APSEB and others]and that of the Punjab and Haryana High Court reported in 2004 [2] ATJ35 [Guran Dass V. State of Punjab and others]. In the first case, itwas stated that once a person without qualification is promoted, it isdeemed to be relaxed in his favour and therefore, at this point of time,the petitioner's lack of qualification cannot be raised. In the secondcase, once a candidate gains necessary experience then reversion cannotbe made on the ground of lack of qualification. We do not think thatthese two judgments have any relevance to the present case.13.Learned counsel also relied upon the judgment of the DivisionBench of Bombay High Court reported in 2001 [1] SLR 480 [V.R.VishwanathRamji Mandare V. Maharashtra State Road Transport Corporation, Bombayand another] to contend that reversions cannot be passed by an authoritylower than that of an appointing authority. It is to be pointed out thatin the present case, the post of Director was vacant and that the DeputyDirector was delegated with powers. It was also pointed out that it isnot a case of reversion by way of penalty. https://hcservices.ecourts.gov.in/hcservices/

14.In the light of the above, we are constrained to hold that thepetitioner had not made out any case and accordingly, the writ petitionstands dismissed. However, there will be no order as to costs.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarapTo1.The Deputy Director [Administration] Directorate of Fire & Rescue Services, Egmore, Chennai 600 008.+1 cc to Mr.K.Rajkumar, Advocate, SR.No.18713.Vsv (Co)krd / 15.4.08W.P.No.17719/2003