Judgment:
Writ Petition filed under under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorarified Mandamus to call for the records relating to the proceedings of the 2nd respondent issued in Proc.No.17218/E1/91 dated 22.10.2003 and quash the same and direct the respondents 1 and 2 to promote the petitioners in accordance with the panel of Assistants prepared by the 2nd respondent for promotion to the post of Superintendent for the year 2003-2004 by his Proceedings in Proc.Rc.No.17218/E1/91 dated 27.5.2003.
ORDER
1. The petitioners have approached this Court with a prayer for issuance of a writ in the nature of Certiorari for quashing the promotion to the respondents Nos.3 to 13 as Superintendents being in violation of statutory regulation.
2. The petitioners were appointed as Junior Assistants in the Tamil Nadu Wakf Board in the year 1978 and 1979, whereas, the respondents 3 to 13 were appointed as Junior Assistants in the year 1976 and therefore, admittedly, were seniors to the petitioners.
3. According to the Tamil Nadu State Wafk Board Service Regulations 1971, the next channel of promotion from the post of Junior Assistant is to the post of Assistant which is to be filled up by promotion from among Junior assistants or by appointment on deputation of a suitable person in the service of the Government or by direct recruitment.
4. The Wakf Board made recommendation to the Government for amendment of regulation and accordingly, vide G.O.Ms.No.1122 dated 29.10.80 Regulation 10(A) was added to the service Regulation by way of amendment, whereby a condition of passing a prescribed test was added for promotion to the post of Assistant. The test was required to be passed within a period of three years.
5. It is not disputed that the petitioners qualified in the test and were accordingly promoted as Assistants in the year 1984, whereas, the respondents 3 to 13 continued to hold the post of Junior Assistants on account of their failure to pass the prescribed test.
6. It is not in dispute that the Wakf Board gave the respondents extension of time to pass the test and finally, they succeeded in passing the test after 13 years of promotion of the petitioners after which they were also promoted.
7. The post of Superintendent, according to Regulation, is to be filled up by promotion amongst Assistants and Wakf Inspectors or by appointment on on deputation of a suitable person in the service of the Government. According to regulation, this appointment by promotion of any category is on the ground of merit and ability, seniority being considered only where the merit and ability are approximately equal. Regulation 13 of Tamil Nadu State Wakf Board Service Regulations, 1971 reads as follows:
13. Seniority:- The seniority of a person appointed to a category shall be determined by the date from which he has been continuously officiating in a post in accordance with these rules:Seniority of persons selected from outside at the same time shall be determined according to the order of merit or preference indicated at the time of selection for appointment by the appointing authority .
8. Therefore, according to Regulation, the petitioners were seniors to respondents 3 to 13 in the post of Assistant as the rule of seniority is clear that the seniority is to be counted on the basis of continuous length of service in a category of post.
9. It is not disputed that while promoting the respondents 3 to 13 the case of the petitioners were not considered by treating them to be juniors to respondents 3 to 13 on the basis of their seniority as Junior Assistants. This action of the respondent No.1 cannot be approved being contrary to the Regulation 13 of Tamil Nadu State Wakf Board Service Regulations, 1971. The promotion of the respondents 3 to 13 therefore deserves to be set aside as the respondents 3 to 13 were promoted without considering the claim of the seniors for promotion on the basis of merit cum seniority.
10. It has been pointed out that all the respondents have retired. Therefore, it will not be appropriate at this stage to quash their promotion having worked on the promotional post.
11. Therefore, this writ petition is partly allowed and a writ in the nature of mandamus is issued directing the respondent to consider the case of the petitioners for promotion/notional promotion from the date the respondents 3 to 13 were so promoted and if they are found eligible on merit, then to grant promotion with retrospective effect from the date their juniors were so promoted with all consequential benefits.
No costs.