IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09.04.2010 CORAM: THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN Writ Petition No.13517 of 2009 N.K.Rajasekaran ..Petitioner Vs. 1. The Commissioner of Rural Development & Panchayat Raj, Panagal Building, Saidapet, Chennai-600 015. 2. The District Collector, Krishnagiri District, Krishnagiri. 3. R.Sundararajan 4. A.Rajagiri 5. T.Rajaram ..Respondents Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records pertaining to the order 27.4.2009 bearing ROC.No.66865/07/C1 of the first respondent herein, to quash the same and to further direct the first respondent to refix the seniority of the petitioner in the cadre of extension officer over and above respondent Nos.3 to 5 herein with all consequential benefits such as retrospective promotion and refixation of seniority in the higher cadres. For Petitioner : Mr.V.Suthakar For Respondents-1 & 2 : Mr.S.Gopinath Additional Govt. Pleader For Respondents-3 to 5 : Mr.P.Rajendran O R D E R The petitioner herein was initially appointed as Junior Assistant through the Tamil Nadu Public Service Commission with effect from 20.2.1985. He was allotted to the Rural Development Department of the Composite Dharmapuri District. https://hcservices.ecourts.gov.in/hcservices/ 2. Respondents-3 to 5 were appointed as Junior Assistants prior to the petitioner herein, a fact which is not denied by the petitioner and stated so in paragraph 3 of the affidavit. The petitioner was promoted as Assistant on 2.6.1987 in preference to respondents-3 to 5, on the ground that the petitioner had the requisite qualification, he having passed the departmental examination prescribed for the post of Junior Assistant. 3. In the presumptive panel for the post of Assistant for the year 1987, on 6.12.1988, the petitioner was placed in rank No.8 and respondents-3 to 5 were placed in Rank Nos.21, 33 and 34. Respondents-3 to 5 preferred an appeal for their placement above the petitioner, which was, however, rejected by the District Collector of the Composite Dharmapuri District. On 9.2.2004, the composite Dharmapuri District was bifurcated into Dharmapuri and Krishnagiri District and the petitioner as well as respondents-3 to 5 were allotted to Krishnagiri District. 4. While preparing the panel of seniority list in the cadre of Extension Officer, by proceedings dated 27.4.2004, the District Collector, Krishnagiri District, placed the petitioner in Rank No.15, whereas, respondents-3 to 5 were placed in Rank Nos.10, 11 and 12. Aggrieved by the same, the petitioner preferred an appeal to the second respondent. The second respondent, however, rejected the appeal and held that the second respondent had only followed the seniority list published by Composite Dharmapuri District on 21.5.2002. 5. It is stated that aggrieved by the seniority list prepared on 27.4.2004, the petitioner preferred an appeal to the Commissioner of Rural Development and Panchayat Raj, the first respondent herein. On a writ petition filed before this Court in W.P.No.22152 of 2004, challenging the order of the first respondent - District Collector dated 11.7.2004 and the confirmed seniority list dated 21.5.2002 prepared by the composite Dharmapuri District, by order dated 30.10.2008, this Court disposed of the writ petition directing the petitioner to approach the appellate authority. Accordingly, the petitioner appealed before the first respondent, which came to be considered under order dated 27.4.2009, rejecting the petitioner's plea for refixation of seniority over and above respondents-3 to 5. 6. Learned counsel for the petitioner submits that the rejection of the appeal for considering him for promotion by refixation of seniority on the ground that the petitioner did not have the requisite qualification in the petitioner not working as a Junior Assistant/ Rural Welfare Officer Grade II for a period of one year before the crucial date of preparation of the penal on 1.3.1987, is totally unsustainable, since deputing the petitioner for working as a Rural Welfare Officer Grade II and to Bhavani Sagar Training Institute to undergo the foundation training course is a matter which https://hcservices.ecourts.gov.in/hcservices/ was not within the control of the petitioner. Learned counsel pointed out that although the petitioner was declared as having successfully completed the probation in the cadre of Junior Assistant on 2.3.1987, the first respondent considered that as on the date of drawing of the panel on 1.3.1987, the petitioner had not completed the probation in the cadre of Junior Assistant and hence, he was not entitled to be considered in the seniority list. 7. Learned counsel pointed out that the acquiring of service qualification by deputing the petitioner to undergo one year training purely depended upon the discretion of the District Collector, Composite Dharmapuri District, and any default in the administration could not cause prejudice to the petitioner being considered in the rightful place in the senority list. He pointed out that the first respondent, in his letter dated 23.4.1994, had given clear instructions to the District Collectors that no one should be denied of promotion for want of service qualification, if the fault is not attributable to the candidate. The petitioner had had his declaration of probation in the cadre of Junior Assistant on 2.3.1987. A.Rajagiri's probation was declared on 14.5.1987 and that of T.Rajaram on 19.4.1987. R.Sundararajan's probation was not declared since he was in the feeder category. Learned counsel for the petitioner submits that having regard to the fact that the petitioner had passed the departmental examination, the petitioner has to be considered for promotion as Assistant. He further pointed out that the District Collector, Krishnagiri, in his recommendation dated 16.12.2008 and 23.3.2009 and the District Collector, Dharmapuri, gave remarks on 11.3.2009 wherein, the District Collector, Krishnagiri gave a favourable recommendation to the case of the petitioner for fixation of seniority over and above respondents-3 to 5. He pointed out that since the petitioner is presently working in Krishnagiri District, the remarks of the second respondent cannot be ignored by the first respondent. 8. As to the delay in challenging the seniority list, learned counsel pointed out that only after the creation of Krishnagiri District on 9.2.2004, the petitioner came to know about the illegality that had crept in the seniority list; consequently, the delay cannot be put against the petitioner. 9. On notice, the Government has filed a counter affidavit, wherein, it is stated that the petitioner's probation was declared in the cadre of Junior Assistant on 27.7.1987 with effect from 2.3.1987 afternoon. The petitioner had not acted as Rural Welfare Officer Grade II for a minimum period of one year as on 1.3.1987. Hence, for want of qualification of one year service in the post of Rural Welfare Officer, a pre-requisite qualification for promotion as Assistant/Rural Welfare Officer Grade I as per G.O.Ms.No.349, P&AR Department dated 12.4.1984, the petitioner was not eligible for the post of Assistant/ Rural Welfare Officer Grade I as on 1.3.1987. The https://hcservices.ecourts.gov.in/hcservices/ counter affidavit further states that the petitioner was temporarily promoted and posted as Assistant in the year 1987 when his probation was not declared at that time in the post of Junior Assistant and he had not had the requisite qualification of serving as Rural Welfare Officer for a minimum period of one year. Hence, the petitioner cannot contend that his seniority cannot be ignored for want of his qualification. Going by G.O.Ms.No.349, P&AR Department dated 12.4.1984 and the Single Service Rules under G.O.Ms.No.585 RD & LA Department dated 12.4.1984, the petitioner could have a valid claim if and when he satisfies the requisite qualification for further promotion. The counter affidavit further refers to the remarks of the District Collector as to why the petitioner was not considered in the seniority list in fixing his seniority above respondents-3 to 5. The counter further pointed out that the petitioner is junior to the contesting respondents-3, 4 and 5 as per the Single Service Rules under G.O.Ms.No.585, RD&LA Department dated 12.4.1984. Consequently, no fault could be attributed to the order passed against the petitioner. 10. As far as the contesting respondents-3 to 5 are concerned, the said respondents pointed out that the placement of the petitioner over and above respondents-3 to 5 under the proceedings of the District Collector in the year 1987 was a mistake, since it was done with reference to the date of joining and without taking into consideration the Single Service Rules. The petitioner did not have the necessary qualification of one year in the post of Rural Welfare Officer Grade I and he completed the probation much later than respondents-3 to 5. Since he did not possess the requisite qualification as on 12.3.1987 and the respondents-3 to 5 had the necessary qualification as on that date, rightly, the seniority list was corrected on 6.12.1988 by the District Collector, Dharmapuri, thereby confirming the fixing of seniority of respondents-3 to 5. 11. The respondents contend that the inter se seniority list in the cadre of Extension Officer was properly fixed and confirmed on the basis of the feeder category seniority by the Collector, Dharmapuri, by proceedings dated 6.8.2001 and 21.5.2002. Following the same, with the bifurcation of the composite Dharmapuri District into Dharmapuri District and Krishnagiri District with effect from 09.02.2004, a separate seniority list was drawn by the Collector, Krishnagiri, in his proceedings dated 27.4.2004 and 11.7.2004, wherein, the writ petitioner was placed below respondents-3 to 5. Thus the mistake was rectified as early as 1988, subsequently to be followed by the proceedings of the Collector on 20.11.1995. The seniority list of 2004 was only a continuation of the proceedings made as early as 1995. Having failed to challenge the seniority list within the stipulated three year period as given under Rule 35(f) of the Tamil Nadu State and Subordinate Services General Rules, on the ground of laches, the petitioner's claim has to be rejected and rightly so, the appellate authority rejected the plea of the https://hcservices.ecourts.gov.in/hcservices/ petitioner. In this background, the respondents state that the appointment of the petitioner itself was subsequent to the appointment of the respondents and that as far as Sundararajan is concerned, he was appointed in 1979 in the post of Junior Assistant in the Panchayat Development Unit in the Composite Dharmapuri District. As regards A.Rajagiri, he joined on 21.2.1985 in the cadre of Junior Assistant in the Revenue Department and later in the Panchayat Development Unit, Dharmapuri on 23.8.1985 and was regularised in the cadre of Junior Assistant on 21.2.1985. As far as T.Rajaram is concerned, he was appointed as early as 29.1.1985 in the Revenue Department as per the Selction and allotment by the Tamil Nadu Public Service Commission and he joined the Panchayat Development Unit as a Junior Assistant on 21.8.1985 and his services as Junior Assistant were regularised on 29.1.1985. The petitioner joined only on 2.9.1985 as Junior Assistant in the Panchayat Development Unit, Dharmapuri District. Thus going by the date of appointment, the petitioner was not entitled to have his seniority fixed above the contesting respondents. 12. Heard learned counsel appearing on either side. 13. Learned counsel for the petitioner brought to my attention the decision of this Court in similar circumstances in W.P.No.12362 of 2007 dated 24.10.2007 (K.Kumaresan Vs. District Collector, Tiruvannamalai) that when the deputing of Government servant for one year service as Rural Welfare Officer was only at the hands of the Unit Head, namely, the Collector and when there is no default on the petitioner in not undergoing one year stint as a Rural Welfare Officer Grade II, the failure to undergo the service requirement cannot be held against the petitioner. Consequently, in view of the decision of this Court referred to above, the issue raised on the correctness of the order passed by the first respondent has to be answered in favour of the petitioner. 14. A perusal of the order passed by the first respondent dated 27.2.2009 shows that the only ground on which the petitioner's plea for refixation of seniority was rejected was that the petitioner had his probation declared only on 2.3.1987 on the basis of his completing the training in the Bhavani Sagar Training Institute. Further, only on the petitioner undergoing the one year service as a Rural Welfare Officer Grade II that the petitioner could be considered as fully qualified for further promotion as Assistant. 15. The first respondent pointed out that as on 1.3.1987, the petitioner had not come into the zone of consideration to be included in the list of seniority. Hence, the plea of the petitioner was rejected as one totally against the Service Rules. The first respondent further pointed out that as of 1985 and thereafter, there was no seniority fixed among the Junior Assistants or Rural Welfare Officer Grade II or Accountants. The temporary promotion of the https://hcservices.ecourts.gov.in/hcservices/ petitioner in 1987 was only on account of the exigency of the administration and not on account of the petitioner satisfying the qualification for further promotion. Hence, taking note of the Dharmapuri District Collector's note, the petitioner's plea was rejected. 16. Before going into the various contentions raised by the petitioner herein, the judgment of this Court in W.P.No.12362 of 2007 dated 24.10.2007 (K.Kumaresan Vs. District Collector, Tiruvannamalai), relied on by the petitioner, needs to be seen. 17. The said decision relates to a case of the first petitioner, a Government Servant appointed in the year 22.1.1992 and the second petitioner on 24.3.1993. These petitioners successfully completed the period of probation and passed all the departmental examinations for the post of Junior Assistant. The petitioners contended that as per the date of their original appointment, the petitioners should have been placed in the 1996 panel of Assistants. Since the issue as to the regularisation at that time was pending before the Government, their names were not included in the panel in the year 1996. After the regularisation order was issued in the year 2004, after the completion of the foundation training course in the Bhavani Sagar Training Institute, the petitioners were considered and promoted in the year 2006. 18. It is stated that after the regularisation order passed in the year 2004 retrospectively from 1996, the petitioners' names were included and the seniority of the petitioners was fixed accordingly. Going by the seniority list, the petitioners' names came into the zone of consideration for the post of Extension Officer for the year 2007-08. However, when the panel for Extension Officers' promotion was prepared on 1.3.2007, the petitioners' name were not included, but their juniors' names were included. The respondents, however, intimated the reason for non-inclusion of the names of the petitioners in the panel of Extension Officers on the ground that the acquisition of their service qualification was long after their juniors. Consequently, the petitioners' names were not considered for promotion and included in the panel for promotion to the post of Extension Officer. Aggrieved by the same, the petitioners came before this Court under writ jurisdiction. 19. Going through the issue, this Court pointed out that on no fault of the petitioners but on account of administrative reasons, the petitioners could not complete their service qualification to serve in the category of Rural Welfare Officer Grade I. It was pointed out that even though the petitioners had been in service as Junior Assistant with effect from 1991 and in the post of Rural Welfare Officer Grade I, the petitioners were not considered for further promotion on account of the non-completion of the service requirements. This Court held that when the petitioners had https://hcservices.ecourts.gov.in/hcservices/ successfully completed the departmental examinations, the petitioner cannot be denied inclusion in the panel on the ground that they did not possess the service qualification – an area which was purely in the hands of the respondents. Referring to the order of this Court dated 9.10.2006 in W.P.No.18501 of 2006 (C.Periasamy and another Vs. The District Collector, Dharmapuri) holding that service qualification cannot be equated to a pass in the departmental test, this Court held: " While the pass in a departmental test may be in the hands of the individual, the posting of the individual to a particular post is not within the hands of the individual." In the circumstances, this Court held that the respondents should have formulated and implemented a policy providing equal opportunity to all persons to acquire the service qualifications. This Court pointed out that but for the belated regularisation in 1996, the petitioner would have undergone the foundation training in Bhavani Sagar Training Institute, the petitioners were not at fault, they should not have been omitted to be included in the panel. 20. It is not denied by the respondents that the petitioner had not suffered any black-mark in the course of his service. Respondents-1 and 2 also do not dispute the fact that in the integrated service seniority list for the year 1980-87 published by the District Collector, Composite Dharmapuri District, the petitioner's name was found much above respondents-3 to 5. It is further seen that the contesting respondents' claim made earlier to have their names included above the petitioner was also rejected. It is an admitted fact that the petitioner had successfully come out in the departmental examination conducted for the post of Junior Assistant, well ahead of the contesting respondents. It is seen from the order passed on 6.12.1988 that in the case of Rajaram, he passed the departmental examination in May, 1987, although he joined the services on 21.8.1985. As far as Rajagiri is concerned, he passed his examination in the year 1986. R.Sundararajan, A.Rajagiri and T.Rajaram have all passed the examination as of May 1987, whereas the petitioner passed the departmental examination in the post of Junior Assistant as early as November, 1986. In the background of the said fact, the Collector, Composite Dharmapuri District, relied on the seniority list, placing the petitioner above respondents-3, 4 and 5. 21. It is also an admitted fact that based on the petitioner's successful completion of the departmental examination, he was also temporarily promoted as Assistant. However, surprisingly, when the seniority list was drawn thereafter, the petitioner's name did not figure in the place in which it was originally there, for the simple reason that the petitioner did not obtain the requisite qualification by undergoing the one year stint as a Rural Welfare Officer Grade-II for a period of one year before the crucial date for the preparation of panel on 1.3.1987 and that the petitioner did not have his foundation training in the Bhavani Sagar Training Institute before the crucial date. In this, as rightly pointed out by the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the petitioner, the letter dated 23.4.1994 from the Director of Rural Development to the Collector of All Districts (except Madras), assumes significance. The said letter reads as follows: " Sub: Service qualification - Some instructions to be followed while issuing posting orders - Regarding. ----- It has been brought to the notice of the Director of Rural Development and it was noted that the interchange of personnel from one post to another has not been done effectively, under Single Service Rules, which in turn has resulted in many senior personnel not acquiring the necessary service qualifications. And the affected personnel moved the Tamil Nadu Administrative Tribunal and T.A.T. had also agreed with, that it is because of the failure on the part of the District Administration to give them necessary postings in the different posts as prescribed. Postings are not to be done as a matter of choice of the individuals. The Departmental authorities should ensure that the due opportunities are given to all the staff to secure service qualification. No seniors should be denied of promotion on account of his failure to acquire service qualifications, unless some default on his part. Hence appointing authorities are requested to have a clean watch so as to avoid unnecessary workload and Administrative inconvenience in day to day routine work. The receipt of this circular may kindly be acknowledged. Sd/- .............. For Director of Rural Development / true copy / Superintendent. " Going by the said letter and applying the decision of this Court in W.P.No.12362 of 2007 dated 24.10.2007 (K.Kumaresan Vs. District Collector, Tiruvannamalai), following the earlier decision of this Court dated 9.10.2006 in W.P.No.18501 of 2006 (C.Periasamy and another Vs. The District Collector, Dharmapuri), I have no hesitation in accepting the plea of the petitioner that the failure on the part of the District Collector in deputing the petitioner for working as a Rural Welfare Officer Grade II and for one year training in the https://hcservices.ecourts.gov.in/hcservices/ Bhavani Sagar Training Institute cannot be attributed to the petitioner that he had not qualified himself for inclusion in the promotion list and for seniority. Consequently, the default of the Administration cannot be allowed to prejudice the petitioner to cite the same as the default of the petitioner in not qualifying himself departmentally for the purpose of consideration in the seniority list for further promotion as Assistant. 22. In the light of the decision of this Court and the communication from the Director of Rural Development dated 23.4.1994, the petitioner is entitled to be considered for placement in the seniority list above those candidates who had not passed the departmental examination. In the background of the said fact, I have no hesitation in accepting the plea of the petitioner that his appeal merits to be considered positively for placing him in the seniority list at the right place. In the circumstances, I am constrained to set aside the order passed by the first respondent and thereby allow the writ petition. 23. This however leaves the issue of laches on the part of the petitioner, an issue which was agitated by respondents-3 and 4. 24. It is seen from the affidavit filed before this Court that the petitioner had the knowledge of the preparation of seniority list, pushing this petitioner down below respondents-3 to 5, only after the creation of Krishnagiri District on 9.2.2004 on the publication of the seniority list. The petitioner states that the list of refixation of seniority made by the District Collector, Composite Dharmapuri District placing respondents-3 to 5 over and above the petitioner was never served on the petitioner and hence, the same cannot be relied upon. 25. It is no doubt true that as per Rule 35(a), a person aggrieved of seniority placement has to agitate the same within a period of three years from the date of declaration of seniority. As far as the present case is concerned, the refixation of seniority placing respondents-3 to 5 above the petitioner came consequent on a representation made by respondents-3 to 5. Rightly, when the seniority of the petitioner gets disturbed, the petitioner should have been put on notice as to the disturbance caused to the earlier list which was consistently placing the petitioner above respondents- 3 to 5. The first respondent pointed out that the details of seniority were regularly shown in the notice board. Taking note of the same, the petitioner should have acted as per Rule 35(a). 26. Learned counsel for the petitioner pointed out that in the seniority list prepared for the year 1987, the appeal preferred by respondents-3 to 5 was rejected and the petitioner's seniority above respondents-3 to 5 was confirmed at least till 2001. Hence, the seniority continued till the creation of Krishnagiri District. On https://hcservices.ecourts.gov.in/hcservices/ bifurcation of the composite Dharmapuri District, when the issue as to seniority came to the fore, the petitioner came to know that the original seniority panel had undergone a change, placing respondents- 3 to 5 over and above the petitioner. 27. In the background of the above-said fact, the decision of the Apex Court reported in (1997) 6 SCC 538 (Jagdish Lal and others Vs. State of Haryana and others) needs to be seen. The Apex Court pointed out that if an aggrieved party sleeps over his rights for a long number of years and approaches the Court under Article 226 of the Constitution of India on coming to know the decision at a belated stage, the desparate attempt to redo the seniority is not amenable to judicial review. The same principle is also reiterated in the order dated 7.9.2006 made in W.P.No.43975 of 2002 etc. (K.Soundarapandian