Full Judgment
Prayer in W.P.(MD) No.7606 of 2006
Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorari to call for the records of the impugned order in Na.Ka.No.39076/2004/C5 dated 9/3/2006 issued by the first respondent and quash the same.
Prayer in W.P.(MD) No.9434 of 2006
Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorari to call for the records of the impugned order in Na.Ka.No.14/31663/2004 dated 20/8/2009 passed by the second respondent and quash the same.
COMMON ORDER
1. The petitioner was appointed as Junior Assistant in Divisional Development Office, Karur through Tamil Nadu Public Service Commission in Karur District on 14/6/1985. On his request, he was transferred to Thoothukudi District and joined on 5/6/1987.
2. The third respondent was appointed as Typist at Kadaladi Block in Ramnad District on 17/4/1985. She was transferred to Thoothukudi District on request and joined duty as Typist at Karunkulam Block on 14/7/1986.
3. The second respondent issued a proceeding dated 3/3/1991 relating to the seniority of Junior Assistants/Cashiers/Typists/RWO - Grade II in Thoothukudi District. The rank of the petitioner in the said seniority list is 270, while the rank of the third respondent is 206.
4. As per the Service Rules framed in G.O.Ms.No.585, Rural Development and Local Administration Department dated 12/4/1984 and G.O.Ms.No.349 P & AR Department dated 12/4/1984, a Junior Assistant should have passed five departmental tests prescribed for the Officers of Panchayat Development and should have completed the period of probation and should have also rendered one year service in the cadre of Junior Assistant and RWO Grade II for inclusion of his name in the panel for promotion to the post of Assistant.
5. The petitioner passed all the departmental tests in May 1986 and he also qualified in other respects for inclusion of his name in the panel for promotion to the post of Assistant.
6. Admittedly, the third respondent passed the departmental tests during the month of May 1988.
7. The cut off date for empanelling the names of the candidates in the promotion panel is 15/3/1988.
8. Though the petitioner qualified for inclusion in the panel for promotion to the post of Assistant for the year 1988 that was drawn by the second respondent in the proceedings dated 28/12/1988, his name was not included, while the name of the juniors to the petitioner were included. The name of the third respondent also was not included.
9. The petitioner made a representation to include his name in the panel. The second respondent issued the proceedings dated 16/2/1989 including the name of the petitioner in the panel along with three others.
10. Though the third respondent did not qualify for inclusion in the panel for promotion for the post of Assistant for the year 1988, her name was also included by the second respondent in the proceeding dated 6/1/1989 along with three others.
11. Both the petitioner and the third respondent were thus promoted as Assistant by including their names in the panel for the year 1988.
12. The second respondent issued the proceeding dated 16/5/1991, relating to the seniority list of Assistants in Thoothukudi District. In the said list, the petitioner ranks at 244 and the third respondent ranks at 242.
13. On noticing the same, the petitioner made an appeal that the third respondent should not be placed above him in the seniority list of Assistants, since she was not qualified for inclusion in the panel for the year 1988, while the petitioner qualified for inclusion in the panel.
14. Based on the representation of the petitioner, the second respondent issued the proceeding dated 31/10/1996 assigning the rank of the petitioner at 237 A and thus the third respondent was placed below the petitioner.
15. In view of the same, the petitioner was promoted as Extension Officer on 22/8/1997, while the third respondent was promoted as Extension Officer, subsequently on 19/12/1997.
16. The seniority list of Assistants dated 7/7/1997 issued by the second respondent has assigned the rank 150 to the petitioner and 157 to the third respondent. The seniority list for the post of Assistants as on 1/1/1999 was published by the second respondent in the proceeding dated 14/5/1999 and the petitioner ranks at 95 while the third respondent ranks at 101. Subsequently, another proceeding dated 20/5/1999 was issued by the second respondent relating to the seniority of Assistant as on 1/1/1998. The petitioner ranks at 107 and the third respondent ranks at 113 in the said seniority list. In the seniority list of Assistant dated 27/5/1999 as on 1/1/1999, issued by the second respondent, the petitioner ranks at 96 whereas the third respondent ranks at 102.
17. Based on the aforesaid seniority, the petitioner was promoted as Deputy Block Development Officer on 19/9/2002, while the third respondent was promoted as Deputy Block Development Officer on 31/3/2003.
18. Since the petitioner being senior, he was promoted as Block Development Officer on 24/3/2003, while the third respondent was promoted as Block Development Officer only on 5/12/2005.
19. The second respondent issued the proceeding dated 3/11/2003 relating to the seniority of Extension Officers in Thoothukudi District as on 1/1/2002 and the petitioner ranks at 83 and the third respondent ranks at 89.
20. During 2004, the third respondent while serving as Deputy Block Development Officer, submitted an appeal dated 26/4/2004 to the first respondent questioning the seniority list of Extension Officers dated 3/11/2003 issued by the second respondent. At that time, as stated above, the petitioner was serving as Block Development Officer.
21. While so, the first respondent passed the impugned order dated 9/3/2006 revising the seniority of Assistants as fixed by the second respondent in the proceedings dated 31/10/1996, wherein the second respondent assigned the rank to petitioner at 237 A, while the third respondent ranks at 242 and the first respondent directed the second respondent that the third respondent shall be placed above the petitioner in the seniority list of Assistants.
22. The first respondent further directed in the impugned order dated 9/3/2006 that the second respondent shall also revise seniority accordingly in the promotional posts, viz., Extension Officer, Deputy Block Development Officer, etc.
23. Based on the aforesaid order dated 9/3/2006 of the first respondent, the second respondent passed the consequential order dated 20/8/2009. In the said order, the third respondent is assigned the rank of 149 A in the seniority list of Assistants dated 7/7/1997, while the petitioner ranks at 150.
24. Likewise, the third respondent is assigned the rank of 82 A in the seniority list of Extension Officer dated 3/11/2003, while the petitioner ranks at 83.
25. In the same way, the third respondent is assigned the rank of 36 A in the seniority list of Deputy Block Development Officer, where the petitioner ranks at 37.
26. Accordingly, the petitioner was placed above in all panel for promotion to the respective posts.
27. The petitioner filed W.P.No.7606 of 2006 to quash the order dated 9/3/2006 of the first respondent and W.P.No.9434 of 2009 to quash the consequential order of the second respondent dated 20/8/2009.
28. While ordering notice of motion on 28/8/2006 in W.P.No.7606 of 2006, this Court granted interim stay of the impugned order, if the same is not already implemented.
29. Since the impugned order dated 9/3/2006 was not given effect to, the petitioner was promoted as Assistant Director on 14/9/2007, while the third respondent was promoted as Assistant Director on 30/10/2009. The petitioner was further promoted as Joint Director on 27/2/2012.
30. The petitioner has assailed the impugned order dated 9/3/2006 of the first respondent that the same was passed in blatant violation of principles of natural justice. According to the petitioner, before passing adverse order, the petitioner was not heard. Further, the petitioner case is that the appeal preferred by the third respondent in 2004 sought to question the seniority list dated 3/11/2003 relating to Extension Officers, without questioning the seniority list dated 31/10/1996, 7/7/1997, 14/5/1999 and 20/5/1999 of the Assistants published periodically. Hence the first respondent should have rejected the appeal. On the other hand, according to the petitioner, the seniority of Assistants that was fixed by the second respondent by the order dated 31/10/1996 placing the petitioner above the third respondent was disturbed after 8 long years and in the mean time, the petitioner was promoted as Extension Officer on 22/8/1997, Deputy Block Development Officer on 19/9/2002 and Block Development Officer on 24/3/2003 before the third respondent was promoted to those posts.
31. The second respondent filed counter affidavit in W.P.(MD) No.7606 of 2006 and the same supports the case of the petitioner. The third respondent filed counter affidavit in both the writ petitions. The third respondent has averred that she is senior to the petitioner in the feeder category of Junior Assistant and therefore, the first respondent has correctly passed the order dated 9/3/2006 allowing her appeal and revised the seniority in all the promotional posts by treating the third respondent as senior to the petitioner.
32. Heard both sides.
33. Both the petitioner and the third respondent were recruited through Public Service Commission as Junior Assistant and Typist respectively and were allotted to different Districts. While the third respondent came to Thoothukudi District in 1986, the petitioner came to Thoothukudi District in 1987. Therefore, in the cadre of Junior Assistant, the petitioner shall be treated as junior to the third respondent.
34. The next promotion to Junior Assistant/Typist is Assistant. For inclusion in the panel for promotion to the post of Assistant, one should have passed the departmental test as prescribed under the Rules as on the cut off date viz., 15th March of the concerned year.
35. While the petitioner passed all the departmental test in 1986, admittedly, the third respondent did not pass all the departmental tests as on 15/3/1998 for inclusion in the panel for promotion to the post of Assistant for the year 1988.
36. Though the petitioner qualified for inclusion in the panel, his name was omitted. He made an appeal. His appeal was allowed and he was included in the panel of the year 1988.
37. But the third respondent who was not qualified for inclusion in the panel of the year 1988, was also subsequently included by a separate proceeding dated 6/1/1989. Since it was a separate proceeding, the petitioner was not aware.
38. While so, when the seniority list of Assistant dated 16/5/1991 was issued by the second respondent, the third respondent is placed above the petitioner i.e., while the petitioner ranks at 244, the third respondent ranks at 242 in the seniority list of assistants dated 16/5/1991. The same position is followed in the seniority list of assistants dated 28/6/1992 issued by the second respondent.
39. On finding that the petitioner was placed below the third respondent, the petitioner preferred an appeal stating that the third respondent was not even qualified for inclusion in the panel for promotion to assistants of the year 1988, and therefore, the petitioner shall be placed above the third respondent. The appeal of the petitioner was allowed and the petitioner was assigned in Serial No.237 A and was placed above the third respondent by the second respondent in his proceeding dated 31/10/1996.
40. Later, when the seniority list of assistants dated 7/7/1997 was issued by the second respondent, the petitioner was shown above the third respondent. Likewise, when periodically the seniority list of Assistants dated 14/5/1999, 20/5/1999 and 27/5/1999 were issued, the petitioner was shown above the third respondent.
41. But the third respondent kept quiet and did not choose to question those seniority lists.
42. Based on the aforesaid fixation of seniority, the petitioner was promoted as Extension Officer on 22/8/1997 and subsequently, the third respondent was promoted on 19/12/1997.
43. The second respondent issued the seniority list dated 3/11/2003 of the Extension Officers as on 1/1/2002 and the petitioner was shown above the third respondent.
44. Only thereafter, the third respondent filed an appeal dated 26/4/2004 to the first respondent questioning the seniority of Extension Officer dated 3/11/2003 without questioning the seniority of Assistant.
45. Admittedly, the petitioner was placed above the third respondent in 1996 and subsequently in various seniority lists of Assistants. Hence, there was latches on the part of the third respondent in questioning the seniority list of Extension Officer.
46. Further, without questioning the seniority list of Assistants, the third respondent could not question the seniority list of Extension Officer in 2004.
47. Further more, when the third respondent made an appeal in 2004, questioning the seniority list of Extension Officers, the petitioner was by then promoted as Extension Officer and also as Deputy Block Development Officer and Block Development Officer i.e., the petitioner was promoted as Extension Officer on 22/8/1997, Deputy Block Development Officer on 19/9/2002 and Block Development Officer on 24/3/2003.
48. On the ground of latches alone, the first respondent should have rejected the appeal of the third respondent.
49. But the first respondent passed the impugned order dated 9/3/2006 without hearing the petitioner. Since the first respondent passed an adverse order, the first respondent should have heard the petitioner. It is well settled that no adverse order resulting in civil consequences could be passed without hearing the aggrieved person. Since the impugned order was violating the principles of natural justice, the impugned order dated 9/3/2006 is liable to be quashed.
50. The following passages of the common counter affidavit of the respondents 1 and 2 in W.P.No.7606 of 2006 are extracted hereunder:-
"4. As per the single service rules framed in G.O.Ms.No.585, R.D & L.A Dept., dated 12/4/1984 and G.O.ms.No.349 P & AR Dept., dated 12/4/1984, a Junior Assistant should have passed the 5 Departmental Tests prescribed for the officers of Panchayat Development and completed the period of probation and rendered one year service in the cadre of Junior Assistant and RWI Gr.II for consideration to include his name in the panel for the post of Assistant.
8. It is submitted that the petitioner represented to the second respondent that the names of juniors to the petitioner, namely Tmt.T.Hetzi Leema Amalini and S.Sarojadevi had been included just above the petitioner and hence requested to place the name of the petitioner properly. Accordingly, after due consideration, the petitioner's name was placed in Sl.No.237 (A) as per the proceedings No.V12/51426/95 dated 31/10/1996. Based on this, subsequent year's seniority lists were released in which the third respondent's name has been placed below the name of the petitioner.
9. The crucial date for drawing panel for the post of Assistant for any year is 15th March of the year. Even though the third respondent is senior to the petitioner, the third respondent was not qualified on 15/3/1988 and hence the name of the third respondent has been placed below the name of the petitioner in the seniority list in the cadre of Assistant."
51. Further more, the respondents 1 and 2 had averred in the counter affidavit that the petitioner made an appeal against the order of the first respondent and before considering the same and passing the order, he has approached this Court.
52. For all the aforesaid reasons, this writ petition is allowed and the order dated 9/3/2006 of the first respondent is quashed. Since the order dated 9/3/2006 of the first respondent is quashed, the consequential order of the second respondent dated 20/8/2009 is also quashed. No costs. Consequently,the connected Miscellaneous Petitions are closed.