{"id":81228,"date":"2011-01-27T00:00:00","date_gmt":"2011-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-velmail-vs-the-district-collector-on-27-january-2011"},"modified":"2015-08-18T22:19:23","modified_gmt":"2015-08-18T16:49:23","slug":"s-velmail-vs-the-district-collector-on-27-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-velmail-vs-the-district-collector-on-27-january-2011","title":{"rendered":"S. Velmail vs The District Collector on 27 January, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
S. Velmail vs The District Collector on 27 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 27\/01\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE  M.VENUGOPAL\n\nWP.(MD)No. 3695 of 2005\n&\nW.P.M.P. (MD) No. 3902 of 2005\n&\nM.P. (MD)No.1 of 2007\n\nS. Velmail,\nExtension Officer(Administration),\nSrivaikuntam Panchayat Union,\nSrivaikuntam, Tuticorin District.\t\t... Petitioner\n\nVs.\n\n1. The District Collector,\nTuticorin District,\nTuticorin.\n\n2. Thiru P. James Nirmal Roase,\nExtension Officer(Scheme),\nPanchayat Union, Sattankulam.\n\n3. Thiru C. Kathiresan,\nExtension Officer (NMP),\nPanchayat Union, Kayathar.\n\n4. Thiru S. Ananda Narayanan,\nExtension Officer (ADW),\nPanchayat Union, Thiruchendur.\n\n5. Tmt. P. Petchiammal,\nExtension Officer(NMP),\nPanchayat Union, Karungulam.\n\n6. Thiru U. Subramanian,\nExtension Officer(NMP),\nPanchayat Union, Thoothukudi.\n\n7. Tmt. S. Subbulakshmi,\nExtension Officer (Admn.),\nPanchayat Union, Ottapidaram.\n\n8. Thiru S. Balasubramanian,\nExtension Officer (Scheme),\nPanchayat Union, Pudur.\n\n9. Thiru K.S. Veerabaghu,\nExtension Officer(SS),\nPanchayat Union, Thoothukudi.\n\n10.Thiru K. Rajamani,\nExtension Officer (Scheme),\nPanchayat Union, Koilpatti.\n\n11. Tmt. P. Packiam Leela,\nExtension Officer (Pt),\nPanchayat Union, Karungulam.\n\n12. Thiru S. Palani Velumurugan,\nExtension Officer (Pt),\nPanchayat Union, Sattankulam.\n\n13. Thiru A. Murugiah,\nExtension Officer (Pt),\nPanchayat Union, Srivaikuntam.\n\n14. Thiru S. Subbiah,\nExtension Officer (Pt.),\nPanchayat Union, Ottapidaram.\n\n15. Thiru S. Ganapathi,\nExtension Officer (Pt),\nPanchayat Union, Thoothukudi.\n\n\n16. Tmt. P. Vasantha,\nExtension Officer (Scheme),\nPanchayat Union, Tiruchendur.\n\n\n17. Thiru. M. Muthu Krishnan,\nExtension Officer (Pt),\nPanchayat Union, Pudur.\n\n18. Tmt. E. Tamil Selvi,\nExtension Officer (Pt),\nPanchayat Union, Tiruchendur.\n\n19.Thiru M. Arumugam,\nExtension Officer (Pt),\nPanchayat Union, Ottapidaram.\n\n20.Thiru R. Rajan,\nExtension Officer (Pt),\nPanchayat Union, Alwarthirunagari.\n\n21. Tmt. P. Padma,\nExtension Officer (Pt),\nPanchayat Union, Alwarthirunagari.\n\n22. Thiru E.S. Nesamani Rajendran,\nExtension Officer (Pt),\nPanchayat Union, Kayathar.\n\n23. Tmt. M. Leema Rose,\nExtension Officer (ADW),\nPanchayat Union, Karungulam.\n\n24. Thiru S. Ramasamy,\nExtension Officer (Schemes),\nPanchayat Union, Kayathar.\n\n25. Thiru S.Murugan,\nExtension Officer(Accts.),\nCollectorate (Development),\nThoothukudi.\n26. Tmt. I. Selvi,\nExtension Officer (ADW),\nPanchayat Union, Thoothukudi.\n\n27. Thiru K. Sankara Narayanan,\nExtension Officer (SS),\nPanchayat Union, Kovilpatti.\n\n28. Tmt. M. Paramasivan,\nExtension Officer (SS),\nPanchayat Union, Ottapidaram. \t\t\t... Respondents\n\t\nPrayer\n\nWrit Petition is filed under Article 226 of Constitution of India to\nissue a Writ of Certiorarified Mandamus to call for the records on the file of\nthe first respondent in connection with the impugned order vide Proceedings No.\nV14.97308\/03 dated 29.12.2004 and quash the same and consequently direct the\nfirst respondent to fix the correct seniority by placing the petitioner's name\nabove the individual respondents 2 to 28 and pass any other appropriate order or\ndirection this Court may deem fit and proper in the circumstances of the case.\n\n!For Petitioner     ... Mr. A. Thirumurthy\n^For R1\t    \t    ... Mr. D. Sasikumar,\n\t\t        Government Advocate\nFor R2 to R28\t    ... No appearance\n\n:ORDER\t\n<\/pre>\n
\tThe petitioner has projected this Writ Petition seeking the relief of Writ
\nof Certiorarified Mandamus to call for the records of the first respondent in
\nconnection with the impugned order in letter No.  Va\/14\/97308\/03 dated
\n29.12.2004 and to quash the same and also to issue directions to the First
\nRespondent\/District Collector, Thoothukudi, to fix the correct seniority by
\nplacing the petitioner’s name above the names of R2 to R28.\n<\/p>\n
\t2. For the disposal of the present Writ Petition, the necessary facts of
\nthe case are stated hereunder:\n<\/p>\n
\tThe petitioner was initially appointed as Junior Assistant on 05.02.1986
\non compassionate ground. He was promoted to the post of Assistant and later,
\npromoted as Extension Officer. He was working as Junior Assistant in the year
\n1990, the Government had sanctioned for the creation of temporary posts for
\nattending to all the works connected with the ensuing ordinary elections to
\nPanchayat and Panchayat Union Councils as per G.O. Ms. No. 738 RD (C1)
\nDepartment dated 11.09.1990. Based on the said Government order, the First
\nRespondent\/District Collector, Thoothukudi, issued a temporary Sub Panel for the
\npost of Assistant and RWO Grade I for the year 1990 as per proceedings in
\nV12\/95358\/90 dated 31.10.1990. The said Sub Panel was a transitory one and it
\ndid not give any preference. The Sub Panel was issued with a view to fill up the
\nAssistant Post created as Election Assistant Post and 26 persons were included
\ninstead of 15 Election Assistants.\n<\/p>\n
\t4. The grievance of the petitioner is that against the individuals in the
\ntemporary Sub-Panels, who were juniors to him, were included in the Temporary
\nSub-Panel. But, his name was not included on the ground that he has not
\ncompleted the probation as on date. However, the temporary 15 promotees in the
\nSub Panel were reverted to their original posts as per proceedings of the first
\nrespondent dated 5.3.1991 within a period of two months from the date of
\nreversion. Again, four persons among fifteen were given preference and they were
\nre-promoted in the existing vacancies, without following the seniority and
\nwithout adhering to the substantive panel for the year 1991.\n<\/p>\n
\t5. The learned counsel for the petitioner urges before this Court that the
\npetitioner was not at fault for the probation which was declared at a belated
\ntime and the non-inclusion of the petitioner’s name in the 1991 panel was
\naffected his right to get promotion.However,the seniority list for the post of
\nJunior Assistant RWO Grade-II, Cashier,and Typist was issued as per Proceeding
\ndated 03.08.1992 of the First Respondent\/ District Collector, Tuticorin,
\nincluding all the individuals originally accommodated in the Tuticorin District
\nand persons transfered from other districts at the time of bifurcation. In this
\nseniority list,  petitioner’s name had been kept below the individual
\nrespondents, who are        juniors to him and his rank was 289B. Therefore, the
\npetitioner was perforced to file appeals to the first respondent with a request
\nto fix  correct seniority and place him above the individual respondents in all
\nthe above said panel and list of seniority. As per correctional order, dated
\n20.01.2000, issued by the first respondent, the petitioner completed his period
\nof probation with effect from 15.05.1991. The plea of the learned counsel for
\nthe petitioner is that the petitioner’s name would have been included in the
\npromotional order dated 16.5.1991 if the correctional order was issued earlier.
\nBut, the same was not resorted to by the concerned.\n<\/p>\n
\t6. The learned counsel for the petitioner brings it to the notice of this
\nCourt that the petitioner’s regularization order was modified viz. 05.02.1986
\n(being the date of his appointment) instead of 31.7.1989 as per the order of the
\nFirst Respondent\/District Collector, Tuticorin, dated 12.12.1997. The petitioner
\nmade a representation dated 14.10.1999 to the first respondent to alter his rank
\nin the original seniority in respect of the Junior Assistant post, which was
\nrecommended by the Block Development Officer, Srivaikundam, even as early as
\n08.11.1999. The rank in seniority of the petitioner was modified in respect of
\nthe seniority list for the year 1992 – 1999. As per the corrected or modified
\nseniority list, the petitioner’s name was shown in serial No. 202(a) instead of
\n289(b) in the year 1992 seniority and the serial No. 107(a) instead of 173 in
\nthe year 1999 senioritys. An amendment in regard to four persons including the
\npetitioner was made to the panel for the year 1991 as per amendment order
\n20.12.2000 by the First Respondent\/District Collector, Tuticorin, as per his
\nproceedings in V1\/44612\/2000.\n<\/p>\n
\t7. That apart, the crucial date for a temporary seniority list for the
\nyear 2003, in the cadre of Extension Officer was 1.1.2003, which was issued
\nbased on the previous panel 2001 and 2002. In this seniority list,  the
\npetitioner’s name was shown below the individual respondents, who are far
\njuniors to him. For e.g., one P. Padma appointed as Junior Assistant after the
\npetitioner in the District that is on 26.12.1986 was placed in serial No. 67
\nabove the petitioner. When she was substantively  promoted as Assistant on
\n11.09.1991, the petitioner was a eligible person in all respects to be promoted
\nas Junior Assistant. But, the petitioner’s name was included by amendment of the
\npanel for Assistant on 23.7.1991. Paradoxically, the petitioner’s juniors were
\nplaced above the petitioner in the seniority list dated 20.12.2003. Once again,
\nthe petitioner filed an appeal on 05.02.2004 with a request to the First
\nRespondent\/District Collector, Tuticorin, to fix the correct seniority by fixing
\nhis name above P.Padma, who is junior to him. But, the petitioner was issued
\nwith impugned order, dated 29.12.2005, passed by the first respondent rejecting
\nthe Representation\/Appeal of the petitioner on the ground that he had completed
\nthe probation period only after the said P.Padma.\n<\/p>\n
\t8. The learned counsel for the petitioner vehemently contends that the
\nFirst Respondent\/District Collector, Tuticorin, had failed to appreciate the
\nsimple fact that after the issuance of temporary Sub-panel, regular panel that
\nis on 23.07.1991 was approved and the earlier temporary Sub Panels were
\nsuperceded automatically and they did not sustain thereafter and also that the
\nfirst respondent had given preference to individuals, who were included in the
\ntemporary Sub Panel and promoted them without any basis and accordingly, the
\nimpugned order dated 29.12.2004 of the first respondent is not sustainable in
\nthe eye of law.\n<\/p>\n
\t9. The learned counsel for the petitioner projects an argument that the
\nFirst Respondent\/District Collector, Tuticorin, should have seen that insofar as
\nthe date of appointment of Junior Assistant in the first respondent District the
\nindividual respondents were juniors to the petitioner and they were promoted as
\nAssistants after 15.5.1991 and on that day, the petitioner was fully eligible to
\nbe promoted as Assistant. But the same was not done. In this regard, the
\nrelevant rule in Tamil Nadu State and Subordinate Service Rules namely, the Rule
\n36(b)(ii) under the caption Promotion according to seniority was not adhered to
\nwhich it has resulted in miscarriage of justice, which is to be rectified by
\nthis Court sitting in writ jurisdiction. Lastly, it is the contention of the
\nlearned counsel for the petitioner that in the service jurisprudence, giving
\npreference to the individual respondents, who were juniors to the petitioner in
\nall the panel is not a valid and legally sustainable one in the eye of law.\n<\/p>\n
\t10. Per contra, it is the submission of Mr.Sasikumar, Learned Government
\nAdvocate appearing for the First Respondent\/District Collector, Tuticorin, that
\nthe petitioner, even though being senior to the eligible juniors who were
\nincluded in the temporary Sub Panel, was not included because of the simple fact
\nthat he had not completed probation in the Junior Assistant cadre at that point
\nof time. Later, the promoted individuals were reverted to Junior Assistant posts
\nbecause of postponement of Panchayat Election during March 1991 and that the
\nreverted persons were included in the temporary Sub Panel already released,
\nbased on the panel, the reverted persons were promoted and posted in the
\nvacancies which arise later.\n<\/p>\n
\t11. The Learned Government Advocate submits that the panel for the year
\n1991 was issued on 23.7.1991 and when eligible Junior Assistant’s name were
\nincluded, the petitioner’s name was not included in the panel,  because the
\nprobation of the petitioner was not declared in the cadre of Junior Assistant.
\nIn the seniority list published for the post of Junior Assistant\/Rural Welfare
\nOfficer Grade-II\/Cashier on 3.8.1991, the petitioner’s name was placed in serial
\nNo. 289B in regard to the date of regularisation of services in the cadre of
\nJunior Assistants and in regard to the date of joining in Thoothukudi District
\nin respect of the respondents who were on District transfer. On the basis of the
\npetitioner’s request, a revised order of completion of probation on 15.5.1991
\nwas issued. Because of the petitioner’s representation for seeking of seniority
\nin the cadre of of Junior Assistant, the petitioner’s name was placed in serial
\nNo. 202(a) instead of serial No. 289B by the first respondent and hence, his
\nname was included in the panel for the post of Junior Assistant in respect of
\nthe year 1991 as per the proceedings in ref. No. V14\/44612\/2000 dated 20.12.2000
\nof the first respondent. Accordingly, the seniority list was revised and
\nfurther, promotions were ordered.\n<\/p>\n
\t12. The principal contention advanced on behalf of the first respondent is
\nthat the petitioner became eligible for being considered as Junior Assistant
\nonly on 15.05.1991 and based on the temporary panel for Junior Assistant post
\nfor the year 1990 released due to Election Assistant post one P.Padma had
\npromoted as Assistant initially and later, reverted to Junior Assistant when the
\nElection Assistant post was withdrawn by the Government. The said P.Padma, who
\nwas included in the temporary Sub Panel for the year 1990 for the post of
\nAssistant, subsequently, was promoted when the vacancies arose during 1991.\n<\/p>\n
\t13. The stand of the first respondent is one P. Padma was included in the
\npanel for the year 1990 and that the petitioner could not claim right for
\ninclusion in the panel for 1990 since he became eligible in the year 1991 and
\nthe petitioner could not compare with P.Padma and further, on the crucial date
\ni.e. on 15.3.1991, the petitioner was not eligible to be promoted as Junior
\nAssistant and he became eligible to be promoted as Junior Assistant only on
\n15.5.1991, and at the time of drawal of panel i.e. on 23.7.1997, the eligibility
\nof the petitioner was taken into account.\n<\/p>\n
\t14. At this juncture, this Court makes useful reference to Rule 36(b)(ii)
\nof Tamil Nadu State and Subordinate Services Rules under the caption ‘Promotion
\naccording to Seniority’, which enjoins as follows:\n<\/p>\n
All other promotions shall, be made in accordance with seniority unless –
\n(1) the promotion of a Member has been withheld as a penalty, or
\n(2) a Member is given special promotion for conspicuous merit and ability.\n<\/p>\n
\t15. A reading of the aforesaid Rule 36(b)(ii) of Tamil Nadu State and
\nSubordinate Services Rules inherently points out that all other promotions other
\nthan mentioned in 36(a), 36(b)(i) of the said Rules shall be made in accordance
\nwith seniority subject to the conditions laid down in Rule 36(b)(ii) and this
\nshows that promotion must be made strictly according to seniority.\n<\/p>\n
\t16. A perusal of the proceedings of the District Collector in reference
\nNo. V12\/934124\/98, dated 05.05.1999, shows that at age No.40, at serial No.107
\none S.Pechi and at serial No. 108 S.A. Jeyakumar’s names are found. Admittedly,
\nthe petitioner’s seniority was revised as per proceedings of the District
\nCollector, Tuticorin, in Va\/14\/44615\/2000 dated 20.12.2000 at 107(a). It is
\nfound in page No.33 of the typed set of papers. A correctional order passed by
\nthe First Respondent\/District Collector, Tuticorin, in proceedings in
\nV\/14\/98643\/ 96-1 dated 20.01.2000 also categorically mentions in serial No.2
\nwherein, the petitioner’s name was shown in the year 1992 in the seniority list,
\nhis name found a place in the corrected seniority at 202(a). Likewise, for the
\nJunior Assistant seniority list for the year 1999 in serial No. 202 and the
\npetitioner’s name was mentioned and found a place according to which, namely,
\nthe corrected list his seniority is 107(a).\n<\/p>\n
\t17. If the petitioner’s name for the year 1999 in the Junior Assistant
\nseniority list is 107(a) then, certainly his name should find a place between
\nserial No. 107 S. Petchi and serial No. 108 S.A. Jeya Kumar as serial No.
\n107(a). But, surprisingly, in the proceedings of the first respondent in
\nV12\/93414\/1998 dated 5.5.1999 there is no serial No. as 107(a) and the
\npetitioner’s name has not been found. Conspicuously, his name is absent in the
\nproceedings of the First Respondent\/District Collector, Tuticorin, dated
\n5.5.1999. To put it precisely, when the First Respondent \/District Collector has
\nissued the proceedings in Va\/14\/44615\/2000 dated 20.12.2000 the corrected
\nseniority list of Junior Assistant for the year 1999, the petitioner’s name is
\nshown as in serial No. 107(a) as a corrected one. Consequently, an appropriate
\namendment proceedings would have been issued to the proceedings of the District
\nCollector, Tuticorin, dated 5.5.1999, issued earlier or revised seniority
\ncorrect list for Junior Assistant in respect of the year 1999 ought to have been
\ndrawn up by the first respondent showing the name of the petitioner in serial
\nNo. 107(a) in between the name of one S.Petchi(serial No. 107) and S.A. Jeya
\nKumar(serial No.108). However, that has not been done so.\n<\/p>\n
\t18. Be that as it may, on a careful consideration of respective
\ncontentions and in view of the detailed, quantitative and qualitative
\ndiscussions mentioned supra and taking note of the facts and circumstances of
\nthe present case, this Court comes to an inevitable conclusion that when
\nadmittedly, the petitioner’s seniority list in respect of the year 1999
\npertaining to Junior Assistant Post has since been corrected by the First
\nRespondent\/District Collector, Tuticorin, as per his proceedings  dated
\n20.1.2000 and also shown as 107(a) (corrected position) then, the petitioner is
\nrightly to be placed above the individual respondent Nos. 2 to 28 shown in the
\nWrit Petition, as opined by this Court. As such, his seniority is to be fixed
\ncorrectly by the First Respondent\/ District Collector and in this regard, the
\nimpugned order of the First Respondent\/District Collector dated 29.12.2005
\nrejecting the petitioner’s request\/prayer to fix the seniority by placing his
\nname after the individual respondent Nos. 2 to 28 is not a correct and legally
\nvalid
\none in law and therefore, this Court is constrained to interfere in writ
\njurisdiction and accordingly, sets aside the said order by allowing the present
\nWrit Petition to prevent the aberration of justice.\n<\/p>\n
\t19. In the result, this Writ Petition is allowed leaving the parties to
\nbear their own costs. The First Respondent\/ District Collector, Tuticorin, is
\ndirected to fix the petitioner’s correct seniority by placing him above the
\nindividual respondent Nos. 2 to 28 and to draw a fresh list of Junior Assistant
\npost seniority in respect of the year 1999 and to provide him with all necessary
\nmonetary benefits and all other service and attendant benefits thereto within a
\nperiod of eight weeks from the date of receipt of copy of this order. No costs.
\nConsequently, connected M.Ps are closed.\n<\/p>\n
ses
\nTo,
\nThe District Collector,Tuticorin District,Tuticorin.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S. Velmail vs The District Collector on 27 January, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27\/01\/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL WP.(MD)No. 3695 of 2005 & W.P.M.P. (MD) No. 3902 of 2005 & M.P. (MD)No.1 of 2007 S. Velmail, Extension Officer(Administration), Srivaikuntam Panchayat Union, Srivaikuntam, Tuticorin District. … […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-81228","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS. 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