IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 30.10.2009 CORAM THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.19743/1999 K.M.Mohammed Ali, Clerk, Madras Dock Labour Board, Rajaji Salai, Chennai. ... Petitioner Vs. 1.The Chairman, Madras Dock Labour Board, Rajaji Salai, Chennai-1 2.The Dy.Chairman, Madras Dock Labour Board, Rajaji Salai, Chennai -1. 3.Shri.V.Chandrasekaran Clerk, C&F Scheme, MDLB. Madras – 600 001. 4.The Chairman, The Chennai Port Trust, Chennai. (R4- Impleaded as per order dated 20.08.2008 in W.P.M.P.No.1280/08) ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus to call for the records pertaining to the order bearing No.257/99-A. 14 dated 19.11.1999 of the second respondent and quash the same and consequentially direct the respondents to consider the petitioner for promotion to the post of Junior Assistant from clerical post based on the correct seniority position. For Petitioner :Mr.R.Ramesh For Respondents :Mr.G.Venkatraman for RR1-R4 ORDER The petitioner has filed the above writ petition challenging the order passed by the second respondent dated 19.11.1999 promoting the 3rd respondent herein as Junior Assistant in the Madras Dock Labour Board. https://hcservices.ecourts.gov.in/hcservices/ 2. The facts leading to the filing of the writ petition are as follows: The Madras Dock Labour Board is a statutory body constituted under the Provisions of Dock Workers (Regulation of Employment) Act 1948 (herein after refer to the Act). In terms of Section 4, Central Government frames statutory schemes which the Dock Labour Board has to administer. 3. Four such statutory schemes came to be regulated by the Dock Labour Board and one such scheme was the Madras Unregistered Dock Clearing and Forwarding Workers (RE) scheme, 1988 known as C&F scheme. Prior to 1.08.1988 this was administered by the Administrative Committee of the clearing and forwarding agents privately. Since, there was representation from the Trade Union to bring the workers under the Administration of the Madras Dock Labour Board, the statutory scheme namely C&F scheme was framed and all the workers were brought under the control of the first respondent from 01.08.1988. The workers covered under the private scheme were made Dock workers and brought under the statutory Scheme on condition that they should have been registered in the list of workers of the Erstwhile Private Administrative Committee of Clearing and Forwarding agents. The clerks and other administrative staffs were not covered under the private scheme nor they were covered under the statutory scheme made in 1988. Though the clerical staffs were not covered under the statutory scheme, they were working in the ministerial side under the private management and subsequently as on 11.06.1986, the administrative staffs were also taken under the statutory C&F scheme as fresh employees with effect from 01.08.1988. 4. The petitioner was temporarily appointed as a clerk on 14.03.1986 under the erstwhile management of C&F Scheme on consolidated monthly salary. Thereafter, he was made as a probationary clerk for a period of two years from 14.06.1986 and was given salary in a time scale of pay. Subsequently, he was confirmed as a clerk with effect from 10.06.1986. When the statutory scheme was brought into force on 01.08.1988, the erstwhile management terminated the petitioner's service. Thereafter, since the administrative staffs were also taken under the scheme with effect from 09.08.1988, and the petitioner was also absorbed in the Madras Dock Labour Board as on 09.08.1988. 5. The grievance of the petitioner in the present writ petition is that he is the senior most clerk in the seniority list of C&F Scheme after one C.G.Palaniappan. During 1999 two vacancies arose in the post of Junior Assistant, the feeder category for promotion to the post of Junior Assistant is clerk and Assistant Supervisor is an equivalent grade to that of Junior Assistant. 6. According to the petitioner due to the reversion of Shri. https://hcservices.ecourts.gov.in/hcservices/ Jaganathan as a clerk on 25.09.1997 and dismissal of one Rameshkumar, Junior Assistant, two vacancies in the post of Junior Assistant had arisen. Therefore, it is contended that the said Palaniappan and petitioner are entitled to be considered for promotion. While so, the respondent had issued promotion order dated 19.11.1999, promoting the 3rd respondent who was in fact a reverted staff from the post of Assistant Supervisor during 1992. The said order of promotion dated 19.11.1999 issued in favour of the 3rd respondent is impugned in the present writ petition. 7. Mr.R.Ramesh, learned counsel appearing for the petitioner would contend that the action of the respondent in promoting the 3rd respondent is arbitrary and discriminatory and illegal. The learned counsel would further submit that the petitioner's seniority has been altered without notice and by promoting the 3rd respondent, the petitioner's rights have been seriously prejudiced. Learned counsel would submit that by promoting the 3rd respondent, the petitioner's seniority has been pushed to number 4 from number 2 and this alteration has been done without notice to the petitioner. 8. Learned counsel would further submit that the 3rd respondent had lost his seniority position after his reversion and has to be kept in the bottom most of seniority position in clerical grade and therefore, the petitioner is senior to the 3rd respondent. Learned counsel would further submit that the reference has been made by the respondent organisation to Fundamental Rule 29 and the Administrative Instructions issued by the Government dated 10.10.1962 and 07.02.1964. Learned counsel would submit that the said Administrative Instructions issued by the Government of India is not applicable to the present case and if at all there is any protection of seniority for the 3rd respondent it could be only in the promoted post and not in the clerical grade, since he has been reverted to the said grade. Therefore the learned counsel would further submit that the impugned order is liable to be set aside. 9. Mr.G.Venkatraman learned counsel appearing for the respondents 1&2, would, after elaborately stating out as to how the Dock Labour Board came into the existence and as to how the petitioner came to be absorbed, would contend that the category of clerk is the entry level post in respect of each of the 4 statutory Schemes. The next avenue of promotion is the category of Junior Assistant, separate seniority list is maintained in respect of the staff of each of the scheme with effect from 01.08.1988 and a combined seniority list is maintained from 1990 onwards. Promotion to the post of Junior Assistant is based on seniority-cum-merit. The learned counsel would submit that the petitioner is not the senior most clerk and as per the seniority list, the petitioner is placed in the 4th position and as on that date, he is not eligible to be promoted. It is further submitted that the 3rd respondent was working as an Assistant Supervisor under the erstwhile private management and https://hcservices.ecourts.gov.in/hcservices/ was taken into service of the first respondent with effect from 01.08.1988 as Assistant Supervisor, he was reverted to the post of clerk pursuant to disciplinary action with effect from 01.02.1992 and he was placed as a junior next to G.Jaganathan. 10. Though the order of reversion did not stipulate any period, the 3rd respondent was not considered for promotion during April 1992, April 1993, June 1997 and August 1998, since, he did not show improvement. During 2002, the 3rd respondent's representation was considered and he was found fit and promoted by order dated 19.11.1999. It is contended that there is no alteration of seniority and that the 3rd respondent is senior to the petitioner and he was posted as a clerk on reversion and his seniority was fixed in the grade of clerk based on Government of India Instructions issued under FR 29. Thereafter as per the Government of India instructions, when the D.P.C found him fit to be promoted as Junior Assistant, he was promoted. 11. Learned counsel appearing for the respondents would further submit that the seniority fixation in the grade of clerk has been correctly done and when the 3rd respondent is reverted to a lower grade, he has to be placed at the top of the lower grade unless the order reverting him to lower grade directs that he shall take rank in such lower grade next below any specified member thereof. The learned counsel would place reliance on Rule 35 (c) of the Tamil Nadu State and Subordinate Service Rules and would submit that the interpretation under the said Rule could be made applicable to the service in the first respondent and an analogy could be drawn. 12. The learned counsel would further submit that the order of reversion dated 27.01.1992 passed against the 3rd respondent reverting him as a clerk does not give any specific order as regards his rank in revered post. Therefore, the learned counsel would contend that the writ petition is devoid of merits and liable to be dismissed. 13. I have carefully considered the submissions of the learned counsel appearing of either side and perused the materials available on records. 14. The question to be decided in the present case is that whether the petitioner is senior to that of 3rd respondent in the grade of clerk and as to whether the order of promotion, promoting the 3rd respondent as Assistant Supervisor, without granting such promotion to the petitioner is valid in law. 15. The facts which are not in dispute are that both the petitioner and the 3rd respondent were employees under the erstwhile private management. The petitioner was employed as a clerk under the erstwhile private management and was absorbed by the first respondent with effect from 09.08.1988. The 3rd respondent was an Assistant https://hcservices.ecourts.gov.in/hcservices/ Supervisor under the erstwhile private management and he was absorbed as Assistant Supervisor and he has been taken into service of the first respondent with effect from 01.08.1988. Thus it is to be noted that the 3rd respondent was admittedly holding a higher post than that of the petitioner under the private management. The problem which has arisen in the present case is on account of disciplinary action taken against the 3rd respondent when he was revered to the post of clerk with effect from 01.02.1992. It is to be noted that the D.P.C did not consider the 3rd respondent fit for promotion on four occasions namely April 1992, April 1993, June 1997 and August 1998. The impugned promotion has been accorded to the 3rd respondent on 19.11.1999. Thus, it is to be seen as to whether the first respondent was justified in promoting the 3rd respondent without considering the claim of the petitioner. The petitioner has reiterated that there are only two persons who are eligible to promote as a Junior Assistant as per the seniority list and the first person is Mr.Palaniappan and the second person is the petitioner. It is the case of the petitioner that after the order of the reversion passed against the 3rd respondent, he has to be fitted in the bottom most of seniority in the post of clerk, below the petitioner. This, according to the petitioner has not been done and the 3rd respondent has been promoted during 1999 over looking the petitioner. 16. Government of India have issued certain Administrative Instructions under Section FR 29 on the question as to how should the seniority of Government servants should be determined, consequence of an order of reduction to a lower grade. Under the said instructions dated 10.10.1962 & 07.02.1964, it has been stated as follows:- "2. The order imposing the penalty of reduction to a lower service, grade or post or to a lower time-scale may or may not specify the period of reduction. Where the order does not specify the period of reduction and there is coupled with it an order declaring the Government servant permanently unfit for promotion, the question of re-promotion will, obviously, not arise. In other cases where the period of reduction is not specified, the Government servant should be deemed to be reduced for an indefinite period, i.e., till such date as, on the basis of his performance subsequent to the order of reduction, he may be considered fit for promotion. On re-promotion, the seniority of such a Government servant should be determined by the date of re- promotion. In all such cases, the person loses his original seniority in the higher service, grade or post entirely. On re-promotion, the seniority of such a Government servant should be determined by the date of re-promotion without regard to the service rendered by him in such service, grade or post prior to his reduction. 3. The more common course is to specify the period of reduction and except when it is intended to debar a https://hcservices.ecourts.gov.in/hcservices/ Government servant from promotion permanently, it is the preferable course. Accordingly, it has been decided in consultation with the Ministries of Law and Finance that in future, an order imposing the penalty of reduction to a lower service, grade or post or to a lower time-scale should invariably specify:- (i) the period of reduction, unless the intention is that the reduction should be permanent or for an indefinite period; (ii)whether on such re-promotion, the Government servant will regain his original seniority in the higher service, grade or post or higher time-scale which has been assigned to him prior to the imposition of the penalty. In cases where the reduction is for a specified period and is not to operate to postpone future increments, the seniority of the Government servant may, unless the terms of the order of punishment provide otherwise be fixed in the higher service, grade or post or the higher time-scale at what it would have been but for its reduction. Where the reduction is for a specified period and is to operate to postpone future increments, the seniority of the Government servant on re-promotion may, unless the terms of the order of punishment provide otherwise, be fixed by giving credit for the period of service rendered by him in the higher service, grade or post or higher time-scale." 17. Thus from the reading of the above instructions, what is relevant is as to whether the order of reversion is for a specified period with any conditions. The order of reversion passed against the 3rd respondent dated 27.01.1992 states that, he shall be revered from the post of Assistant Supervisor to the post of clerk with effect from 01.02.1992. The order does not specify the period and also does not state as to in what position the 3rd respondent has to be fitted on reversion. The instructions also states that on re-promotion the Government servant regain his original seniority in the higher service, which was assigned to him prior to the imposition of the penalty. It is true that the standing orders of the first respondent does not specifically speak about the seniority position on such reversion. 18. Therefore the General Service Rules applicable to a state service could be looked into for the purpose of ascertaining whether the action is justified. In that view, the learned counsel appearing for the respondents rightly placed reliance on Rule 35 (c) of the Tamil Nadu State Subordinate Service Rules, which clearly indicates https://hcservices.ecourts.gov.in/hcservices/ that on reversion such incumbent shall be placed on the top most of the seniority in the revered grade, unless the order of reversion specifies other modes. 19. As noted earlier order on reversion passed against the 3rd respondent dated 27.01.1992 does not specify any thing about the 3rd respondent's seniority in the reverted post and therefore the first respondent is fully justified and correct in placing the 3rd respondent as senior most in the grade of clerk. In view of the above reasoning, I find that there are no merits in the claim made by the petitioner. 20. It is brought to the notice of this Court by the learned counsel appearing for the respondents that the petitioner has not suffered any financial loss, since the petitioner has been given financial up-gradation under the ACP scheme with effect from 22.01.2001. Thereafter the petitioner was regularly promoted to the post of Junior Assistant by an order dated 18.09.2002 with effect from 29.05.2001, his probation in the promotion post was also declared on 11.02.2004 by further order dated 25.08.2004, the petitioner has been given financial up-gradation with effect from 09.08.2000. Thus it is seen that the petitioner has also been regularly promoted and from 09.08.2000, he has been given financial up-gradation. 21. For the above reasons and taking into consideration the entire facts and circumstances of the case, I find that the action of the first respondent in placing the 3rd respondent as senior most in the grade of clerk after his reversion from the post of Assistant Supervisor is proper and consequently the promotion accorded to the 3rd respondent by the impugned order is legally sustainable and calls for no interference. Hence, this writ petition is dismissed. No costs. pbn Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.1.The Chairman, Madras Dock Labour Board, Rajaji Salai, Chennai-1 https://hcservices.ecourts.gov.in/hcservices/ 2.The Dy.Chairman, Madras Dock Labour Board, Rajaji Salai, Chennai -1. 3.The Chairman, The Chennai Port Trust, Chennai. + 1 CC to Mr.Aiyar and Dolia Advocate SR.57752 Order in W.P.No.19743/1999 AKR(CO) VC(10.11.2009) https://hcservices.ecourts.gov.in/hcservices/