V. Shanmugasundaram v. Government of Pondicherry

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22..4..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 29453 of 20041.V. Shanmugasundaram2.P. Swaminathan3.S. Mahalingam... Petitioners-vs- 1.Government of PondicherryRep. by Secretary to GovernmentLocal Administration and Public Works Dept.(Public Works Wing)Pondicherry2.The Deputy Secretary to GovernmentLocal Administration and Public Works Dept.(Public Works Wing)Pondicherry3.S. Karunanidhy4.P. Ramasamy5.R. Sathiya Narayanan6.V. Perumal7.K. Madhusudana Rao8.R. Narasimha Murthy9.M. Velusamy10.R. Ramamurthy11.P. Velusamy12.V. Lakshmanan13.M. Selvaraj14.J. Ramadass15.The Registrar Central Administrative Tribunal Chennai ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition under Article 226 of the Constitution of India praying toissue a writ of Certiorarified Mandamus calling for the records relatingto the order of the respondent dated 15.4.2004 passed in O.A. No. 221 of2003, quash the same and consequently allow the O.A.221 of 2003 asprayed for.For Petitioner : Mr. M. Vijay Narayan, SC for Mr. Karthik RajaFor Respondents 1&2 : Mr. Syed MustafaFor Respondent 8: Mr. Bharatha Chakravarthy for M/s Sai, Bharath & IlanORDERK. CHANDRU, J.Heard the arguments of Mr. M. Vijay Narayan, learned Senior Counselleading Mr. Karthik Rajan, learned counsel appearing for thepetitioners, Mr. Syed Mustafa, learned Special Government Pleader(Puducherry) representing the respondents 1 and 2 and Mr. BharathaChakravathy appearing for M/s Sai, Bharath and Ilan, learned counsel forthe eighth respondent and have perused the records.2.This writ petition is filed against the order of the CentralAdministrative Tribunal [for short, 'CAT'] dated 15.4.2004 made in O.A.No. 221 of 2003 and to grant the original prayer in the petition to setaside the order dated 27.01.2003 issued by the second respondent andconsequently include the name of the petitioners in the seniority listabove the name of one S.Karunanidhi and also to promote the petitionersas Executive Engineer w.e.f. 27.01.2003. 3.At the relevant point of time, the petitioners were working asAssistant Engineers in the Public Works Department of Government ofPuducherry. It is the case of the petitioners that the petitioners 1and 2 were originally recruited as Junior Engineers in the Public WorksDepartment and they applied to Union Public Service Commission fordirect recruitment to the post of Assistant Engineer and they wereaccordingly appointed as Assistant Engineers on 31.7.1992. The thirdpetitioner was appointed directly as Assistant Engineer by proceedingsdated 28.7.1992. Under the Statutory Recruitment Rules, 20% of thepost of Assistant Engineers is to be filled up by direct recruitment and80% by promotion. According to the petitioners, when the RecruitmentRules were issued, there were 44 sanctioned posts and between the years1986-88, by four Executive Orders, 24 additional posts of AssistantEngineers were sanctioned on temporary basis. Therefore, as on thatdate, there were only 68 sanctioned posts of Assistant Engineers. The https://hcservices.ecourts.gov.in/hcservices/ petitioners have completed their probation in the year 1994. When afinal seniority list of Assistant Engineers was issued on 24.3.1998, thepetitioners found that the said seniority list was not prepared as perthe quota rota rules. The petitioners moved the CAT with O.A. No. 917of 2002 against the provisional seniority list but they were asked tofile their objections. Ultimately, the seniority list dated27.01.2003 came to be published. 4.It is the case of the petitioners that their names should havebeen found above the name of one Karunanidhi in the said list and theirseniority should be calculated on the basis of 20:80 ratio and thepersons, who are coming from the promoted categories should not beallowed to have posts in excess of their quota in the seniority list. 5.Once again, they filed O.A. No. 221 of 2003. The saidOriginal Application was resisted by both official and privaterespondents. The CAT held that there was no excess quota and thedirectly recruited Assistant Engineers have adequately represented interms of their quota. In fact, the CAT found that the additional postswere created to accommodate several Assistant Engineers, who were senton deputation to various other Departments such as Municipalities,Panchayats, Housing Boards, etc. If those who are on deputation postswere added to the regular sanctioned strength of 68, then the totalcomes to 109 posts. The CAT also held that out of the 109 posts, thedirect recruits were occupying 22 posts, the balance 87 posts go to thepromotees. If as contended by the petitioners the ratio is fixed onlyin terms of 68 original posts, then the quota for direct recruits willalso go down and the direct recruits were also beneficiaries due to thesanction of additional posts. The CAT also held that by applying quotarota rule, they cannot get any seniority to a date in which they werenever in service. It also found that the promotees were admittedlyseniors to the petitioners. The CAT also referred to the earlier casefiled by one G. Sekar in O.A. No. 493 of 2000 making a similar claimwhich was also dismissed. In that view of the matter, the CAT referredto the judgment of the Supreme Court relied on by the petitioners andrejected the same on the ground that the private respondents (promotees)were never appointed in excess of their quota. It also held that sinceno new seniority list has been published and the attempt of theapplicants to move the CAT was premature. 6.Even before this Court, the eighth respondent has filed acounter affidavit denying the allegations made by the petitioners. Itwas contended on behalf of the eighth respondent that the cause ofaction for the petition arose on 24.3.1998 when the seniority list waspublished. But they moved the CAT only in the year 2003 choosing tochallenge the seniority list dated 27.01.2003. Therefore, there wasinordinate delay in approaching the CAT and on that ground, the writpetition deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

7.Mr. Vijay Narayan, learned Senior Counsel appearing for thepetitioners in support of his submissions relied on the decisions ofthe Supreme Court reported in 2004 (10) SCC 734 [Sanjay K. Sinha – IIand others v. State of Bihar and others], 2007 (5) SCC 561 [ASS Kaurv. Kartar Singh] and 1992 Supp (1) SCC 304 [A.N. Sehgal v. Raje RamSheoran]. We do not think the above referred decisions will have anyassistance to the case of the petitioners. 8.As rightly pointed out, the petitioners are guilty of delay andlaches in filing the O.As. to set aside the seniority list for which theoriginal cause of action arose in the year 1998 but the petitioners hadmoved the CAT only in the year 2002. Recently, the Supreme Court heldin State of Tamil Nadu v. Seshachalam [2007 (10) SCC 137] that merelyby sending representations, the petitioners cannot save the limitation.Speaking for the Bench, S.B. Sinha, J. in paragraph 11 observed asfollows:Para 11:"Some of the respondents might have filed representationsbut filing of representations alone would not save theperiod of limitation. Delay or laches is a relevantfactor for a court of law to determine the question as towhether the claim made by an applicant deservesconsideration. Delay and / or laches on the part of aGovernment servant may deprive him of the benefit whichhad been given to others. Article 14 of theConstitution of India would not, in a situation of thatnature, be attracted as it is well known that law leans infavour of those who are alert and vigilant."9.In any event, the earlier attempt by one Sekar raising thesimilar dispute has given a finality to the said issue and rightly theCAT refused to reopen the issue all over again. Further, the directrecruits were also beneficiaries due to the additional sanction of postsand they cannot complain about the quota not being followed incommensurate with their posts. We are not persuaded to interfere withthe finding rendered by the CAT that the promotees over whom thepetitioners want their seniority to be fixed and they are admittedlyseniors to the petitioners and they cannot claim seniority to a date inwhich they had never entered into the service. 10.In view of the above, the writ petition is misconceived anddevoid of merits. Accordingly, it is dismissed. However, there willbe no order as to costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ griTo1.Government of PondicherryRep. by Secretary to GovernmentLocal Administration and Public Works Dept.(Public Works Wing)Pondicherry2.The Deputy Secretary to GovernmentLocal Administration and Public Works Dept.(Public Works Wing)Pondicherry3.The Registrar Central Administrative Tribunal Chennai + one cc to Mr. R. Parthiban, SR.23583+ one cc to the Senior Public prosecutor for Pondicherry, SR.22793+ one cc to M/s. Sai Bharath & Ilan, SR.22921KSK(CO)RP 02.05.08 W. P. No. 29453 of 2004