IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22..4..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 29453 of 2004 1. V. Shanmugasundaram 2. P. Swaminathan 3. S. Mahalingam ... Petitioners -vs- 1. Government of Pondicherry Rep. by Secretary to Government Local Administration and Public Works Dept. (Public Works Wing) Pondicherry 2. The Deputy Secretary to Government Local Administration and Public Works Dept. (Public Works Wing) Pondicherry 3. S. Karunanidhy 4. P. Ramasamy 5. R. Sathiya Narayanan 6. V. Perumal 7. K. Madhusudana Rao 8. R. Narasimha Murthy 9. M. Velusamy 10. R. Ramamurthy 11. P. Velusamy 12. V. Lakshmanan 13. M. Selvaraj 14. J. Ramadass 15. The Registrar Central Administrative Tribunal Chennai ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order of the respondent dated 15.4.2004 passed in O.A. No. 221 of 2003, quash the same and consequently allow the O.A.221 of 2003 as prayed for. For Petitioner : Mr. M. Vijay Narayan, SC for Mr. Karthik Raja For Respondents 1&2 : Mr. Syed Mustafa For Respondent 8 : Mr. Bharatha Chakravarthy for M/s Sai, Bharath & Ilan ORDER K. CHANDRU, J. Heard the arguments of Mr. M. Vijay Narayan, learned Senior Counsel leading Mr. Karthik Rajan, learned counsel appearing for the petitioners, Mr. Syed Mustafa, learned Special Government Pleader (Puducherry) representing the respondents 1 and 2 and Mr. Bharatha Chakravathy appearing for M/s Sai, Bharath and Ilan, learned counsel for the eighth respondent and have perused the records. 2. This writ petition is filed against the order of the Central Administrative 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 set aside the order dated 27.01.2003 issued by the second respondent and consequently include the name of the petitioners in the seniority list above the name of one S.Karunanidhi and also to promote the petitioners as Executive Engineer w.e.f. 27.01.2003. 3. At the relevant point of time, the petitioners were working as Assistant Engineers in the Public Works Department of Government of Puducherry. It is the case of the petitioners that the petitioners 1 and 2 were originally recruited as Junior Engineers in the Public Works Department and they applied to Union Public Service Commission for direct recruitment to the post of Assistant Engineer and they were accordingly appointed as Assistant Engineers on 31.7.1992. The third petitioner was appointed directly as Assistant Engineer by proceedings dated 28.7.1992. Under the Statutory Recruitment Rules, 20% of the post of Assistant Engineers is to be filled up by direct recruitment and 80% by promotion. According to the petitioners, when the Recruitment Rules were issued, there were 44 sanctioned posts and between the years 1986-88, by four Executive Orders, 24 additional posts of Assistant Engineers were sanctioned on temporary basis. Therefore, as on that date, 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 a final seniority list of Assistant Engineers was issued on 24.3.1998, the petitioners found that the said seniority list was not prepared as per the quota rota rules. The petitioners moved the CAT with O.A. No. 917 of 2002 against the provisional seniority list but they were asked to file their objections. Ultimately, the seniority list dated 27.01.2003 came to be published. 4. It is the case of the petitioners that their names should have been found above the name of one Karunanidhi in the said list and their seniority should be calculated on the basis of 20:80 ratio and the persons, who are coming from the promoted categories should not be allowed to have posts in excess of their quota in the seniority list. 5. Once again, they filed O.A. No. 221 of 2003. The said Original Application was resisted by both official and private respondents. The CAT held that there was no excess quota and the directly recruited Assistant Engineers have adequately represented in terms of their quota. In fact, the CAT found that the additional posts were created to accommodate several Assistant Engineers, who were sent on deputation to various other Departments such as Municipalities, Panchayats, Housing Boards, etc. If those who are on deputation posts were added to the regular sanctioned strength of 68, then the total comes to 109 posts. The CAT also held that out of the 109 posts, the direct recruits were occupying 22 posts, the balance 87 posts go to the promotees. If as contended by the petitioners the ratio is fixed only in terms of 68 original posts, then the quota for direct recruits will also go down and the direct recruits were also beneficiaries due to the sanction of additional posts. The CAT also held that by applying quota rota rule, they cannot get any seniority to a date in which they were never in service. It also found that the promotees were admittedly seniors to the petitioners. The CAT also referred to the earlier case filed by one G. Sekar in O.A. No. 493 of 2000 making a similar claim which was also dismissed. In that view of the matter, the CAT referred to the judgment of the Supreme Court relied on by the petitioners and rejected the same on the ground that the private respondents (promotees) were never appointed in excess of their quota. It also held that since no new seniority list has been published and the attempt of the applicants to move the CAT was premature. 6. Even before this Court, the eighth respondent has filed a counter affidavit denying the allegations made by the petitioners. It was contended on behalf of the eighth respondent that the cause of action for the petition arose on 24.3.1998 when the seniority list was published. But they moved the CAT only in the year 2003 choosing to challenge the seniority list dated 27.01.2003. Therefore, there was inordinate delay in approaching the CAT and on that ground, the writ petition deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 7. Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioners in support of his submissions relied on the decisions of the Supreme Court reported in 2004 (10) SCC 734 [Sanjay K. Sinha – II and others v. State of Bihar and others], 2007 (5) SCC 561 [ASS Kaur v. Kartar Singh] and 1992 Supp (1) SCC 304 [A.N. Sehgal v. Raje Ram Sheoran]. We do not think the above referred decisions will have any assistance to the case of the petitioners. 8. As rightly pointed out, the petitioners are guilty of delay and laches in filing the O.As. to set aside the seniority list for which the original cause of action arose in the year 1998 but the petitioners had moved the CAT only in the year 2002. Recently, the Supreme Court held in State of Tamil Nadu v. Seshachalam [2007 (10) SCC 137] that merely by sending representations, the petitioners cannot save the limitation. Speaking for the Bench, S.B. Sinha, J. in paragraph 11 observed as follows: Para 11: "Some of the respondents might have filed representations but filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and / or laches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant." 9. In any event, the earlier attempt by one Sekar raising the similar dispute has given a finality to the said issue and rightly the CAT refused to reopen the issue all over again. Further, the direct recruits were also beneficiaries due to the additional sanction of posts and they cannot complain about the quota not being followed in commensurate with their posts. We are not persuaded to interfere with the finding rendered by the CAT that the promotees over whom the petitioners want their seniority to be fixed and they are admittedly seniors to the petitioners and they cannot claim seniority to a date in which they had never entered into the service. 10. In view of the above, the writ petition is misconceived and devoid of merits. Accordingly, it is dismissed. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ gri To 1. Government of Pondicherry Rep. by Secretary to Government Local Administration and Public Works Dept. (Public Works Wing) Pondicherry 2. The Deputy Secretary to Government Local Administration and Public Works Dept. (Public Works Wing) Pondicherry 3. 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.22921 KSK(CO) RP 02.05.08 W. P. No. 29453 of 2004 https://hcservices.ecourts.gov.in/hcservices/