IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.12.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.4037 OF 2008 AND M.P.NO.1 OF 2008 .. R. Kaliamurthy .. Petitioner vs. The Chief Electrical Inspector Government Thiru-vi-ka Industrial Estate, Chennai 600 032. .. Respondent Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus Calling for the records pertaining to the impugned order of the respondent passed in Ku.Ka.No.5393/E2/2007, dt 11.9.2007 and quash the same and consequently directing the respondent to fix the seniority of the petitioner in the post of Assistant on par with the candidates appointed in the year 1989 in the post of Junior Assistant and to include the name of the petitioner in the post of Office Superintendent. For petitioner : Mr.Veera Kathiravan For respondent : Mr.T.Seenivasan Government Advocate .. ORDER The writ petition is directed against the order of the respondent dated 11.09.2007, in and by which the respondent has rejected the claim of the petitioner to fix his seniority in the post of Assistant on par with the candidates appointed in the year 1989 in the post of Junior Assistant and to include his name for the post of Office Superintendent, on the basis that the application has been filed belatedly. 2. The case of the petitioner is that he joined as Office Assistant on 23.04.1979 and as on date, he is working as Assistant in the Office of the Electrical Inspector, Villupuram, completing 28 years of service. From the post of Office Assistant, he was promoted as Junior Assistant on 3.12.1998 and he was given further promotion as Assistant on 3.12.2002 and posted at Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 2(a). It is stated that the respondent has prepared a panel to the next promotional post of Office Superintendent, in which the petitioner’s serial number was 34. According to the petitioner, his name should have been placed at serial number 13, but it was wrongly placed in inappropriate place and he was eligible for promotion in the year 1987 itself to the post of Junior Assistant, which was not done due to the fault of the respondent. 2(b). It is on the basis that he should have been posted in the year 1987 as Junior Assistant and consequently his name should have been found a place in serial number 13 in the year 2007 for the post of Office Superintendent, the petitioner has filed the present writ petition after giving representation to the respondent on 19.02.207, which was forwarded to the respondent through the immediate superior of the petitioner on 20.02.2007. Earlier, the petitioner filed a writ petition in W.P.No.31649 of 2007, which came up for hearing on 01.07.2007 and in the meantime, the respondent has passed the impugned order. 2(c). The petitioner has filed the writ petition on the ground that the order is unfair; that the fixation of seniority in the post of Assistant is wrong; that the respondent has not prepared seniority list for several years and therefore, there is no delay on the part of the petitioner and that the petitioner is entitled to claim seniority on par with other persons who were given promotion without taking the seniority into consideration and hence, the reason for rejecting his claim is unreasonable. 3. In the counter affidavit filed by the respondent it is stated that the writ petition has been filed with long delay without explanation for laches. It is stated that the petitioner has joined as Office Assistant on 23.04.1979. The respondent has referred to various Government Orders to the effect that the appointment of Record Clerk and Office Assistant as Junior Assistant by recruitment by transfer was restricted to 10% of vacancies, which has subsequently been increased to 20%, and stated that as per G.O.Ms.No.502 dated 10.06.1987, three persons, viz., P.C.Ponnurangan, G.Balraj and G.Gunalan, who were holding the posts of Office Assistants and who were seniors to the petitioner in joining the Department on 26.07.1976, 29.08.1977 and 24.12.1977 respectively were appointed as Junior Assistants on 3.12.1987. 3(a). It is also stated that one S.Balasubramanian, Office Assistant was appointed as Junior Assistant, by recruitment by transfer in the newly created Sub Divisional Office at Pudukottai and he was also senior to the petitioner. Even though the petitioner has acquired qualification for the post of Junior Assistant in the year 1987, the petitioner reported about his qualification only in the year 1990 when he was working as Office https://hcservices.ecourts.gov.in/hcservices/ Assistant in the Office of the Assistant Electrical Inspector, Mettur. 3(b). The vacancies arose in the year 1991-92, 1992-93, 1993-94 were only four and not sufficient for appointment by recruitment by transfer to the limit of 10% to 20% as per the Government Order and therefore, no recruitment by transfer was made during the said periods. In respect of the vacancies arose in the year 1994-95 and 1995-96, which were 11 in number, 20% of the vacancies, viz., two posts of Junior Assistants were filled up by recruitment by transfer by appointing C.Kamalakannan and B.Durairaj, who are seniors to the petitioners. 3(c). In respect of the remaining vacancies, which arose upto 1998-99, four posts of Junior Assistants were filled up through recruitment by transfer by the proceedings of the respondent dated 18.11.1998, and the same included the name of the petitioner as second person in the order of seniority, as follows: Name Date of joining in the Department 1 Thiru.B.Babu 20.03.1978 2 Thiru.R.Kaliamurthy 23.04.1979 3 Thiru.A.Anandan 23.05.1980 4 Thiru.C.Jayaseelan 10.11.1980 Therefore, it was in the year 1998, as per the availability of the vacancies, 20% thereof was filled up by recruitment by transfer and therefore the appointment of the petitioner in the year on 3.12.1998, is as per the procedure and seniority as per various Government Orders. 3(d). It is stated that the petitioner has completed his probation as Junior Assistant on 5.01.2001 and he passed the Account Test for Subordinate Officers Part I and Tamil Nadu Office Manual Test, which are essential for promotion as Assistant, in May, 2001 and thereafter, he was promoted as Assistant on 03.12.2002. It is stated that the petitioner in the representation dated 19.02.2007 and 02.04.2007, has stated that as per G.O.Ms.No.502 P&AR Department dated 10.06.1987, his name should have been considered for promotion as Junior Assistant in the year 1989 and seniority should have been fixed before the name of one G.Gangadharan, who was appointed as Junior Assistant through the Tamil Nadu Public Service Commission in the year 1989 and his name should have been considered in the subsequent promotion of Assistant and also included in the panel for the year 2006-2007 for the post of Office Superintendent. 3(e). As per Rule 35(f) of the Tamil Nadu State and Subordinate Service Rules, such application for revision should be made within https://hcservices.ecourts.gov.in/hcservices/ three years from the date of appointment to the said post. The petitioner was appointed as Junior Assistant in the year 1998 and promoted as Assistant in 2002 and submitted his representation only on 19.02.2007, and therefore, it was rejected. During the years 1993 to 2006, promotion from the post Junior Assistant to Assistant was given only on temporary basis due to the pendency of a case, which was subsequently dismissed on 19.09.2006 and thereafter, in 2007 order of regularization has been made to the temporary promotions and in that order the petitioner was placed in serial number 34, according to the existing seniority list in the post of Assistant and therefore, the averment of the petitioner that he should be placed in serial number 13 is not correct. 3(f). It is also stated that the qualification acquired for the post of Junior Assistant by the petitioner was intimated in the year 1990 only and in any event, the persons who were promoted are seniors to him. However, two persons viz., Sudalai Aandi and Jayaseelan, who got qualifications for the post of Junior Assistant much earlier to the petitioner, viz., in the year 1983-84 itself, were promoted based on their qualifications. It is stated that even though the seniority list is not published, panel is prepared for every year according to seniority and promotion is given as per the panel and therefore, the petitioner has not been deprived of his seniority right. 4. On the facts and circumstances of the case, it is clear, as admitted by the petitioner, that he was promoted as Junior Assistant on 3.12.1998, whereas his claim is, he was eligible to be promoted as Junior Assistant in the year 1987 itself. It is also seen that, after his promotion as Junior Assistant on 3.12.1998, from which he was promoted as Assistant on 03.12.2002 and then, after waiting for more than five years, he made a representation on 19.02.2007, which representation came to be rejected by the respondent on the ground of delay. 5. In the Tamil Nadu State and Subordinate Services Rules, Rule 35(f) was introduced by G.O.Ms.No.1140 P & AR (Per.P) dated 2.12.1983, which is as follows: " 35(f). Application for the revision of seniority of a person in a service, class, category or grade shall be submitted to the appointing authority within a period of three years from the date of appointment to such service, class, category or grade or within a period of three years from the date of order fixing the seniority,as the case may be. Any application received after the said period of three years shall be summarily rejected. This shall not, however, be applicable to cases of rectifying orders, resulting from mistake of facts." https://hcservices.ecourts.gov.in/hcservices/ 6. The above Rule makes it abundantly clear that any person who seeks revision of seniority must make representation within three years from the date of fixing the order of seniority. The petitioner who has been promoted as Junior Assistant on 3.12.1998 has chosen to make a claim for the first time only on 19.02.2007 to the effect that he was eligible to be posted as Junior Assistant in 1987 itself. Accordingly, the claim of the petitioner is totally opposed to the Service Rules. 7. The reason for fixing such limitation cannot be said to be unreasonable for, unsettling a seniority list after a long period will certainly result in other consequences affecting the persons who were promoted and it is on the basis of the check and balance, the said Rule has been incorporated under the Service Rules. Therefore, the petitioner who is bound by the Service Rules cannot turn around and say that the respondent has not published the seniority list and therefore he can make representation after many years. 8. Further, the counter affidavit of the respondent is very clear that persons who were promoted as Junior Assistant at that time were all seniors to the petitioner either by recruitment by transfer or by acquisition of necessary qualifications. On the part of the petitioner, though he has acquired the required qualifications in the year 1987 he has informed the same to the Department only in the year 1990. Therefore, it is the petitioner, who has to be blamed and not the respondent. Even in respect of other two candidates, viz., Sudalai Aandi and Jayaseelan, the counter affidavit makes it clear that they were promoted in the year 1998 and 1999 and they have acquired qualifications in the year 1983 and 1984, much earlier to the petitioner, who got qualification in the year 1987 and intimated the same to the respondent only in the year 1990. Therefore, looking it in any angle the petitioner is not entitled to any relief as claimed in this writ petition. 9. The two unreported judgments cited by the learned counsel for the petitioner, which relate to Finance (Local Fund) Department, are not applicable to the facts of the present case, since in the present case, the rejection is only on the basis of delay and against the statutory rules and absolutely there is no scope to interfere with the same by this Court. In any event, as stated by the respondent, the petitioner has got right of further appeal to the Government and he can always work out his remedy by filing such appeal. 10. In such view of the matter, the petitioner is not entitled to claim any relief in this writ petition and there is nothing to interfere in the impugned order of the respondent. If the petitioner choses to file an appeal to the Government within four https://hcservices.ecourts.gov.in/hcservices/ weeks from the date of receipt of copy of this order, it is for the Government to consider and pass orders on the same expeditiously and on merits. The writ petition is dismissed with the above direction. No costs. Connected miscellaneous petition is closed. Kh Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Chief Electrical Inspector Government Thiru-vi-ka Industrial Estate, Chennai 600 032. + 1 cc to Mr. Veerakathiravan, Advocate SR No.65828 GV(CO) SR/4.12.2009 Order in W.P.No.4037 of 2008 https://hcservices.ecourts.gov.in/hcservices/