IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 06.08.2009 CORAM THE HONOURABLE MR. JUSTICE S. NAGAMUTHU W.P.NO.7703 OF 2000 S. Umapathy ... Petitioner Vs. 1. The Chairman, Tuticorin Port Trust, Tuticorin. 2. R. Kasi ... Respondents . . . Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the 1st respondent to give seniority to the petitioner over and above the 2nd respondent and promote the petitioner to higher posts as per rules of promotion and thus render justice . . . For Petitioner : Mrs.Chitra Gomathi For Respondent : Mr. S. Yaswanth . . . O R D E R The Petitioner, during the year 1995 was working as a Driver Grade (1) in Tuticorin Port Trust. The next avenue of promotion is to the post of driver Grade I (B). During the year 1995, one vacancy in the post of Driver Grade I (B) arose. Selection process was taken up by the 1st respondent to promote from Driver Grade I to fill up the said post. During that year, the petitioner's seniority was at No.5, whereas the seniority of the 2nd respondent, who was also then working as Driver Grade I was at No.7. The grievance of the petitioner is that instead of promoting the petitioner as against the said vacancy in the post of Driver Grade I (B), the second respondent was promoted. It appears that the petitioner was also promoted as Driver Grade I (B) in the year 1996. In the post of Driver Grade I (B) the, petitioner was kept as Junior to the 2nd respondent. The petitioner is aggrieved by the same. Therefore, he has come forward with this writ petition, seeking a Mandamus to direct the 1st respondent to give seniority to the https://hcservices.ecourts.gov.in/hcservices/ petitioner over and above the second respondent and promote him to the higher post. 2. The contention of the petitioner is that as per the seniority, he should have been promoted first to the post of Driver Grade I (B) and the 2nd respondent should have been promoted only after him. Had the same been done, according to the petitioner, in the post of Driver Grade I (B), he should have been kept as senior to the 2nd respondent. 3. In the Counter filed by the 1st respondent it is stated that as per the instructions of the Government of India, "40% reservation roster" is maintained. During the year 1990, one vacancy in the post of Driver Grade I (B) occurred. The same should be filled up by a candidate under point No.14 which was reserved for SC Community and as no Scheduled Case candidate was available, the said vacancy was carried forward to the next appointment year. During 1993, yet another vacancy arose in the post of Driver Grade I (B). The same should be filled up by a candidate under point No.17 from a non SC Candidate. But the point No.17 was treated as S C as per the carried forward vacancy of year 1990. Even then, there was no schedule Caste candidate available and so, non Scheduled Caste Candidate was appointed and the S C vacancy was carried forward to the next appointment year. During the year 1995, one vacancy under Point No.19 in the roster ear marked for non S C occurred. But because of the carrying forward of the Scheduled Caste vacancy from the year 1990, then in 1993 to 1995, the said vacancy, viz.Point No.19 was treated as Scheduled Caste Vacancy. Since the second respondent was fully qualified, he was promoted as against the said vacancy, namely, the roster point No.19 in the year 1995. Subsequently, when another vacancy arose in the year 1996, which was ear-marked for Non-Scheduled Caste, the petitioner was duly promoted to the post, namely Driver Grade I- B. Since the second respondent had already been promoted, he was kept as senior to the petitioner in the said post. All these exercises were done strictly in accordance with the instructions of the Government of India, it is contended. 4. The learned Counsel appearing for the first respondent would rely on a judgment of the Hon'ble Supreme Court in the case of Superintending Engineer, Public Health, U.T.Chandigarh and others Vs Kuldeep Singh and others reported in (1997) 9 Supreme Court Cases 199, wherein the Hon'ble Supreme Court has upheld the directions issued by the Government of India to carry forward the S.C Vacancy for three consecutive appointment years. 5. I have considered the rival submissions. As rightly pointed out in the counter filed by the first respondent, the vacancy ear-marked for Scheduled Case Candidates in the year 1990, was carried forward till 1995. In the year 1995, when a vacancy arose in https://hcservices.ecourts.gov.in/hcservices/ the post of Driver Grade I, though the said vacancy originally was ear marked for non-Scheduled Caste candidate, as per the directions of the Central Government, the said vacancy was treated as carried forward vacancy for Schedule Caste Candidate. As against this, the second respondent has been duly promoted. In the judgment relied on by the learned Counsel for the respondent cited supra, in paragraph 3 , the Hon'ble Supreme Court has held as follows. "Thus, it is clear that in a Calendar year, i.e., from 1st January to 31st December of the Calendar year, if the recruitment has been made and if the candidates belonging to the Scheduled Castes and Scheduled Tribes are not available, the reserved vacancies are required to be carried forward for three recruitment years. Take for instance, the recruitment took place in the year 1986 and the candidates belonging to Scheduled Tribes are not available, the vacancies are required to be carried forward for three recruitment years thereafter. Suppose the second recruitment takes place in 1989, the second recruitment year is 1989 but not the year 1987, as sought to be interpreted by the respondent . It is seen and admitted that in the year 1987, the respondent was not eligible. Therefore, the post was carried forward to the year 1987 (Sic 1988) and in 1988 the post was filled up without considering the caste of the respondent and the petitioners construed it to be three recruitment years, and thereby it is said that the period of three years for the purpose has elapsed. The construction is fallacious and deliberate to deny the benefit of reservation in the light of the unequivocal instructions as extracted hereinbefore. Moreover, no proceedings for reservation and prior approval of the Government of India, Ministry of Home Affairs were obtained. We are surprised to note, as rightly pointed out by the tribunal, that the petitioner , Union Territory Office, despite given repeated opportunities to produce the roster, has suppressed production of the roster which they are enjoined to maintain. In the petition, no explanation has been offered. The duty to implement the rule of reservation is a constitutional duty to be performed honestly, sincerely and in its true content and spirit which the petitioner appears to have derelicted." https://hcservices.ecourts.gov.in/hcservices/ 6. Applying the said ratio laid down by the Hon'ble Supreme Court, if the facts of the present case are analysed, the first respondent was right in promoting the second respondent during the year 1995 as against the roster point No.19. The grievance of the petitioner that he should have been promoted as against the said vacancy cannot be countenanced. He was rightly promoted during the next appointment year. Thus I do not find anything illegal or irregular in the matter of promotion given to the petitioner as well as to the second respondent. 7. Above all, in the present writ petition, the prayer is only for a mandamus to give seniority over and above the second respondent. The promotion of the second respondent was made in the year 1995. If it is the case of the petitioner that the promotion of the second respondent was illegally made overlooking his seniority, he should have very well challenged the said promotion made in favour of the second respondent. Even now, the petitioner has not chosen to challenge the said promotion given to the second respondent. When he was promoted in the year 1996, if it is the case of the petitioner that such promotion is not correct and he should have been promoted prior to the second respondent, at least at that juncture, the petitioner would have challenged the same. But he did not chose to do so also. It was only in the year 2000, i.e. five years after the promotion given to the second respondent, a simple direction for mandamus is sought for in the present writ petition. In my considered opinion, without challenging the promotion given to the second respondent in the year 1995, it is not at all open for the petitioner to ask for seniority over and above the second respondent, that too, after a lapse of five years. Thus the writ petition is not at all maintainable. The petitioner is guilty of laches also. 8. Looking at the facts of the case from any angle, I find no merit in the writ petition. The writ petition fails and the same is, accordingly, dismissed. No costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Chairman, Tuticorin Port Trust, Tuticorin. +1 cc to Mr.A.sankara Subramanian, Advocate, SR.No.36220 +1 cc to Mr.S.Yashwanth, Advocate, SR.No.36039 W.P.NO.7703 OF 2000 KS {CO} TP/22.8.2009. https://hcservices.ecourts.gov.in/hcservices/