IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 23.6.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition Nos.34300 of 2004 and 2241 of 2006 W.P.No.34300 of 2004:- A.Deivasigamani. ... Petitioner vs. 1.The Secretary to Government of Tamil Nadu, Adi Dravidar Welfare Department, Fort St. George, Chennai-9. 2.The Managing Director, Tamil Nadu Adi Dravidar Housing & Developing Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Chennai-101. ... Respondents W.P.No.2241 of 2006:- A.Deivasigamani. ... Petitioner vs. 1.The Chairman, Tamil Nadu Adi Dravidar Housing and Development Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Madras 101. https://hcservices.ecourts.gov.in/hcservices/ 2.The Managing Director, Tamil Nadu Adi Dravidar Housing & Development Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Chennai-101. 3.P.Mohan, Assistant Executive Engineer/ Assistant Director, Tamil Nadu Adi Dravidar Housing & Development Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Madras 101. ... Respondents Writ Petition No.34300 of 2004 is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the second respondent to place the petitioner in the post of Assistant Executive Engineer by giving promotion and fix the seniority on the basis of the Work Assistant Seniority List, consequently disburse the entire monetary benefit. Writ Petition No.2241 of 2006 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records relating to the impugned order passed by the second respondent in his proceedings No.A3/13649/2004-1, dated 6.12.2005 and quash the same in so far as it relates to Sl.No.3 of the impugned order. W.P.No.34300 of 2004:- For petitioner : Mr.C.Prakasam For respondents : Mr.L.S.M.Hasan Fizal, Government Advocate for R1 : Mr.Saravanan for R2 W.P.No.2241 of 2006:- For petitioner : Mr.C.Prakasam For respondents : Mr.Saravanan for R2 : Mr.Dhanasekar for R3 : No appearance for R1 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER Writ Petition No.34300 of 2004 is filed to issue a Writ of Mandamus directing the second respondent to place the petitioner in the post of Assistant Executive Engineer by giving promotion and fix the seniority on the basis of the Work Assistant Seniority List, consequently disburse the entire monetary benefit. 2. Writ Petition No.2241 of 2006 is filed to issue a Writ of Certiorari calling for the records relating to the order passed by the second respondent in his proceedings No.A3/13649/2004-1, dated 6.12.2005 and quash the same in so far as it relates to Sl.No.3 of the order. 3. W.P.No.2241 of 2006:- The brief facts for disposal of this case are as follows:- (i) Petitioner joined the Tamil Nadu Adi Dravidar Housing Developing Corporation as a Work Assistant, Grade-I on 1.1.1975. The second respondent department is in short called as TAHDCO. It has several divisions spread all over State. Work Assistants have been recruited at the different locations of TAHDCO. The Work Assistants, who qualified themselves by obtaining diploma in civil examination and such other required qualification and who had put in some period of service were temporarily promoted and appointed as Junior Engineers. On 27.4.1978 one such order was passed by the Managing Director of TAHDCO whereby 21 persons were promoted and appointed as Junior Engineers and assigned work at various divisions all over Tamil Nadu. The persons so promoted were informed that the appointment is purely temporary. The petitioner, a Work Assistant, whose name did not find a place in the list, made a representation immediately. His case was also considered and he was promoted and appointed as a temporary Junior Engineer by order dated 19.5.1978. He gave representation on 25.5.1978 to consider his claim for seniority in the cadre of Junior Engineer based on his seniority as Work Assistant. While this interaction was going on between the petitioner and the TAHDCO, on 1.7.1983,the Managing Director regularised the services of the temporarily appointed Junior Engineers. In that order of regularisation, serial No.4 is respondent No.3 and the petitioner is serial No.20. It has been specifically stated in clause 4 of the order that seniority of the candidates will be fixed according to roster and communicated separately. Consequently, on 13.3.1985 a tentative seniority list of Junior Engineers was prepared by the Managing Director of TAHDCO. In this list, the third respondent was placed as Serial No.11 and the petitioner was placed as serial No.29. Parties are not able to state https://hcservices.ecourts.gov.in/hcservices/ as to when the seniority list was finally fixed. However,on 23.8.1989, the Managing Director issued a proceeding whereby a list of fully qualified Junior Engineers fit for appointment by promotion to the post of Assistant Executive Engineers were drawn. From this temporary panel, a few were temporarily promoted as Assistant Executive Engineers. In this the third respondent's name finds a place. The panel of Junior Engineers eligible to be promoted as Assistant Executive Engineer was drawn on 21.8.1989. (ii) Since the name of the petitioner did not find a place in the said panel dated 21.8.1989 of Junior Engineers for promotion to the post of Assistant Executive Engineer, a writ petition was filed in W.P.No.15939 of 1990 by five aggrieved persons including the petitioner herein. In that writ petition, the present third respondent was arrayed as respondent No.2. In that writ petition, the specific challenge was against the non-inclusion of the petitioner in the temporary panel of Junior Engineers in proceedings dated 21.8.1989, for the purpose of temporary promotion to the post of Assistant Executive Engineer. The TAHDCO, the first respondent, in its counter in that writ petition, submitted as follows and is recorded as hereunder:- "3. On the other hand, the 1st respondent has filed the counter affidavit. In the counter it is stated that tentative seniority list of Junior Engineers were already drawn dated 13.3.1985 as there was no vacancies of Assistant Executive Engineers petitioners were not promoted within one year from the date of drawal of the panel." In the writ petition No.15939 of 1990 a specific direction was given by this court that even if the panel is reviewed, the placement of the respondent No.2 in the said writ petition, the respondent No.3 in this writ petition, should not be disturbed. Paragraph 5 of the order reads thus:- "5. Under such circumstances it is suffice if a direction is issued to the 1st respondent to review the panel within eight weeks from the date of receipt of the order copy and affect the promotion for the petitioners, if they are otherwise eligible without disturbing the placement of the respondents. The petitioners shall be posted in the order of their seniority." (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ (iii) Thereafter, the petitioner made several representations. On 30.5.2003 a tentative seniority list of Assistant Engineers and Junior Engineers working in TAHDCO was drawn as on 31.12.2002. In the tentative list of Junior Engineers prepared as on 31.12.2002, the name of the petitioner finds place in serial No.5. Respondent No.3 having been promoted earlier as Assistant Executive Engineer, obviously did not figure in the list. On 6.4.2004 final seniority list in respect of the Junior Engineers was prepared in proceedings No.A3/10316/98. In the final seniority list, the petitioner's name finds place as serial No.5. (iv) On 6.12.2005, the third respondent Assistant Executive Engineer was considered and included in the panel for the appointment to the post of Executive Engineer. Third respondent's name finds place at serial No.3. Aggrieved by the non inclusion of the petitioner's name in the panel for consideration to the post of Executive Engineer, the present writ petition has been filed challenging the order dated 6.12.2005. 4. A counter-affidavit has been filed by TAHDCO and the contesting third respondent and it is contended that the petitioner has accepted the earlier seniority list and the final order in W.P.No.15939 of 1990 dated 18.8.1999. Therefore, when the petitioner's seniority in the Junior Engineer carder is not effectively challenged, he cannot now challenge the panel to the post of Executive Engineer for which the feeder category is Assistant Executive Engineer. The writ petition has to be dismissed on account of latches and acquiescence. 5. The relief sought for by the petitioner at this point of time cannot be granted for the following reasons:- (i) The petitioner was promoted as Junior Engineer temporarily on 19.5.1978. Thereafter, the services of the petitioner was regularised on 1.7.1983 and the tentative seniority list was drawn on 13.3.1985. In that list, the petitioner is in serial No.29 and the third respondent is in serial No.11, which seniority list was not challenged by the petitioner and has become final. (ii) Even in the regularisation order dated 1.7.1983, it has been specifically stated that the seniority of the candidate will be fixed according to the roster and communicated separated. This was done on 13.3.1985. (iii) Having failed to establish his seniority in the year 1985, petitioner cannot make a claim to refix the seniority as against respondent No.3 at this point of time. https://hcservices.ecourts.gov.in/hcservices/ (iv) Petitioner challenged the temporary panel of Junior Engineers drawn on 21.8.1989 in W.P.No.15939 of 1990 and this court by order dated 18.8.1999 rejected the plea as against the present third respondent, who was arrayed as second respondent in the writ petition No.15939 of 1990. This court in its order dated 18.8.1999 issued direction to the authorities to review the panel and effect the promotion, however, with a rider that the placement of the present third respondent who was respondent No.2 in W.P.No.15939 of 1990 should not be disturbed. Such order of this court has not been challenged further and has attained finality. On the other hand, petitioner accepted the order of the court and subsequently on 30.5.2003, a panel of Junior Engineers as on 31.12.2992 was drawn and the name of the petitioner finds place in serial No.5. This seniority list is not under challenge. The tentative seniority list dated 30.5.2003 was finalised on 6.4.2004 by the proceedings of the Managing Director as referred to earlier. There also, the petitioner is in serial No.5. Petitioner has not chosen to challenge the seniority list dated 6.4.2004. (v) In the meanwhile the third respondent has reached the feeder category of Assistant Engineer for promotion to the post of Executive Engineer. Whereas the petitioner is now in the feeder category, namely, Junior Engineer eligible for promotion to the post of Assistant Executive Engineer. Therefore, the petitioner and the third respondent fall under different feeder categories on the basis of the concluded proceedings as above. The petitioner is, therefore, not entitled to challenge the order dated 6.12.2005 which relates to third respondent's position for promotion to the next level. (vi) Petitioner cannot now plead that the clock should be set back as on date of his original appointment as Work Assistant and his seniority at the time of temporary promotion as Junior Engineer in the year 1978 should be redone. Much water has been flown after the Work Assistants were temporarily promoted as Junior Engineers and regularised. The seniority in the post of Junior Engineer has been done long before and has not been effectively challenged by the petitioner. 6. In view of the above conclusion, it is clear that the petitioner in W.P.No.2241 of 2006 has not made out a case for interfering with the proceedings under challenge, viz., Proc.No.A3/13649/2004-1 dated 6.12.2005. Accordingly, W.P.No.2241 of 2006 is dismissed. No order as to costs. 7. W.P.No.34300 of 2004:- Since the petitioner has not effectively challenged the seniority list while in the post of Work Assistant, the temporary promotion as Junior Engineer and the subsequent seniority fixed in the post of Junior Engineer, he is not entitled to seek the relief for a mandamus to direct the second https://hcservices.ecourts.gov.in/hcservices/ respondent to place the petitioner in the post of Assistant Executive Engineer overlooking the rival claims. The relief sought for cannot be granted. No mandamus can be issued as prayed for. However, as directed by this court in its order dated 18.8.1999 in W.P.No.15939 of 1990 based on the representation of the petitioner and his eligibility to be promoted as Assistant Executive Engineer can be considered on the seniority list drawn subsequently which has already referred to above without undue delay. Accordingly, the writ petition No.34300 of 2004 is disposed off. No order as to costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ts To 1.The Secretary to Government of Tamil Nadu, Adi Dravidar Welfare Department, Fort St. George, Chennai-9. 2.The Managing Director, Tamil Nadu Adi Dravidar Housing & Developing Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Chennai-101. 3.The Chairman, Tamil Nadu Adi Dravidar Housing and Development Corporation, TNHB Shopping Complex, Tirumangalam, Anna Nagar West, Madras 101. + 2 cc to Mr.C.Prakasam,Advocate,SR.25721 + 1 cc to Mr.V.Bharathidasan,Advocate,SR.25520 + 1 cc to Mr.D.Krishna Kumar,Advocate,SR.25343 + 1 cc to Government Pleader,SR.25781 W.P.Nos.34300 of 2004 and 2241 of 2006 KS(CO) EM/3.7.09 https://hcservices.ecourts.gov.in/hcservices/