IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 4-11-2009 Coram The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA and The Honourable Mr.Justice T.S.SIVAGNANAM W.A.Nos.1047 of 2001, 1748 of 2002 W.P.Nos.35771 of 2002, 5740 of 2004 C.M.P.No.9460 of 2001 W.A.M.P.Nos.3026, 3027 of 2002 W.A.No.1047 of 2001 Tamil Nadu Text Book Corporation, (Old Name: Tamil Nadu Text Book Society), College Road, Chennai – 600 006, rep.by its Managing Director. ... Appellant/2nd Respondent Vs. K. Padmanabhan ... Respondent/Petitioner (All Co Respondents in WP are given up) This writ appeal is filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 18.4.2001 in W.P.No.12099 of 1991. Writ petition praying to issue a writ of certiorarified mandamus calling for the records relating to the proceedings of the second respondent in Proc.No.16256/GA1/90 dated 16.7.1991 (impugned order) and to quash the same and to direct the second respondent to prepare a fresh Seniority list of Superintendents in the Tamilnadu Text Book Society by placing the petitioner above respondents 3 to 24 herein along with all service benefits. W.A.No.1748 of 2002 M.M.Meiyappan ... Appellant/Respondents 5 Vs. 1. K. Padmanabhan 2. The State of Tamil Nadu, rep.by its Secretary, Education Department, Fort St.George, Chennai – 600 009. 3. Tamil Nadu Text Book Corporation, formerly Tamil Nadu Text Book Society, College Road, chennai – 600 006. 4. C.Kumarasamy 5. D.Ratnamonie https://hcservices.ecourts.gov.in/hcservices/ 6. C.A.M.A.Rahman 7. S.P.Murugappan 8. T.Ramakrishnan 9. V.Pugalendhi 10. M.Vaidyalingam 11. M.Jayalakshmi 12. A.Bakthavachalam 13. M.Sundarakaladharan 14. R.Balasubramanian 15. P.Parthasarathy 16. A.Karunakaran 17. D.Nedunchezhian 18. P.R.Lingappa 19. K.Rathnakumar 20. K.Hariramakrishnan 21. R.Rajmohan 22. S.Duraikannu 23. G.Narayanan 24. M.P.Raghuraman ... Respondents/Petitioner & Respondents (Respondents 4 to 24 are given up) This writ appeal is preferred under Clause 15 of the Letters Patent against the order of the learned single Judge dated 18.4.2001 in W.P.No.12099 of 1991. Writ petition praying to issue a writ of certiorarified mandamus calling for the records relating to the proceedings of the second respondent in Proc.No.16256/GA1/90 dated 16.7.1991 (impugned order) and to quash the same and to direct the second respondent to prepare a fresh Seniority list of Superintendents in the Tamilnadu Text Book Society by placing the petitioner above respondents 3 to 24 herein along with all service benefits. W.P.No.35771 of 2002 K.Padmanabhan ... Petitioner Vs. 1. Tamil Nadu Text Book Corporation, rep.by Managing Director, E.V.K.Sampath Maligai, College Road, Chennai – 600 006. 2. M.M.Meiyappan ... Respondents This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of mandamus directing the first respondent to grant promotional and monetary benefits accruing to the petitioner pursuant to the implementation of the orders passed by this Court in W.P.No.12099 of 1991 dated 18.4.2001 including refixation of petitioner's pay and payment of arrears from 1976. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.5740 of 2004 M.M.Meiyappan ... Petitioner Vs. 1. The Tamil Nadu Text Book Corporation, College Road, Chennai – 6, rep.by its General Manager. 2. K. Padmanabhan ... Respondents This writ petition is filed under Article 226 of the Constitution of India, praying this Court to to issue a writ of Certiorari calling for the records pertaining to the issue of impugned order by the first respondent in proceedings No.12642/A1/91, dated 27.6.2002 and consequential order Rc.No.1589/A1/2002 dated 30.1.2004 and quash the same. For Appellant in W.A.1047/2001, : Mr.P.Wilson, 3rd Respondent in W.A.1748/2002, Addl.Advocate General, 1st Respondent in W.P.35771/2002 & for 1st Respondent in W.P.5740/2004 Mr.K.R.A.Muthukrishnan For Appellant in W.A.1748/2002, : Mr.M.Abdul Razack 2nd Respondent in W.P.35771/2002 & Petitioner in W.P.5740/2004 For Respondent in W.A.1047/2001, : Mr.T.V.Lakshmanan 1st Respondent in W.A.1748/2002, Petitioner in W.P.35771/2002 & 2nd respondent in W.P.5740/2002 For 2nd Respondent in W.A.1748/2002 : Mr.G.Desingh, Special Govt. Pleader COMMON JUDGMENT (Judgment of the Court was made by F.M.IBRAHIM KALIFULLA, J.) Challenge in these appeals is to the order of the learned single Judge dated 18.4.2001 passed in W.P.No.12099 of 1991. 2. The Tamil Nadu Text Book Corporation (earlier known as Tamil Nadu Text Book Society), represented by its Managing Director is the appellant in W.A.No.1047 of 2001 and the respondent therein is an employee of the Corporation. 3. W.A.No.1748 of 2002 has been preferred by another employee of the Tamil Nadu Text Book Corporation, who was also aggrieved by the order of the learned single Judge dated 18.4.2001 and he seeks to challenge the said order of the learned single Judge. https://hcservices.ecourts.gov.in/hcservices/ 4. The appellant in W.A.No.1748 of 2002 has preferred W.P.No.5740 of 2004, where he seeks to challenge the order of the Tamil Nadu Text Book Corporation, dated 27.6.2002 and the consequential order dated 30.1.2004, which orders came to be passed as a consequence to the implementation of the order of the learned single Judge, dated 18.4.2001 passed in W.P.No.12099 of 1991. 5. The respondent in W.A.No.1047 of 2001 has preferred W.P.No.35771 of 2002 for issuance of a writ of mandamus to direct the Tamil Nadu Text Book Corporation to grant promotional and monetary benefits accruing to him in pursuance of the implementation of the orders of the learned single Judge dated 18.4.2001, passed in W.P.No.12099 of 1991, including refixation of the his pay and for payment of arrears from 1976. 6. Since the disposal of W.P.Nos.35771 of 2002 and 5740 of 2004 depend upon the outcome of W.A.Nos.1047 of 2001 and 1748 of 2002, we take up the writ appeals in the first instance. 7. In this common judgment, the appellant in W.A.No.1047 of 2001 will be referred to as 'Tamil Nadu Text Book Corporation' and the respondent therein viz., K.Padmanabhan as 'respondent', while the appellant in W.A.No.1748 of 2002 will be referred to by his name viz., 'M.M.Meiyappan'. 8. The Tamil Nadu Text Book Society, which came to be later known as the 'Tamil Nadu Text Book Corporation' was a Society registered under the Societies Registration Act, 1860, on 4.3.1970. The name came to be changed on 7.1.1993 under section 11 of the Tamil Nadu Societies Registration Act, 1975. 9. The sole respondent in W.A.No.1047 of 2001 and the appellant in W.A.No.1748 of 2002 entered the services of the Tamil Nadu Text Book Corporation on 7.10.1971 and 4.3.1970 respectively. The respondent joined as Junior Assistant on 7.10.1971 and M.M.Meiyappan joined as Last Grade Servant on 4.3.1970 and was promoted as Junior Assistant on 1.12.1971. The respondent, at the time of joining, was possessing degree qualification, while M.M.Meiyappan was possessing only S.S.L.C. M.M.Meiyappan, however acquired degree qualification viz., B.Com in May, 1978. 10. Be that as it may, the State Government issued G.O.Ms.No.1647, Education Department, dated 29.7.1976, in regard to the Employees of the Tamil Nadu Text Book Corporation, which provided for relaxation of age and educational qualification, depending upon the concerned individuals. The Government Order specifically provided that such relaxation granted in the said Government Order would take effect from 4.3.1970, i.e, the date of formation of the erstwhile Tamil Nadu Text Book Society. 11. The educational qualification for the post of Junior Assistant was a degree from a recognised University. Since on the date of entry into the post of Junior Assistant M.M.Meiyappan did not have the said qualification, in the above referred Government Order, relaxation in regard to the said qualification came to be granted to him as could be seen from paragraph 4(iii) read along with Annexure-II, where the name https://hcservices.ecourts.gov.in/hcservices/ of M.M.Meiyappan is found in Sl.No.26. In any event, as stated earlier, M.M.Meiyappan acquired the said qualification in May, 1978 itself. 12. Whileso, for the Junior Assistants to aspire for the post of Assistants, further qualifications to be satisfied are, pass in Account Test for Subordinate Officers Part-I, and pass in Lower Accountancy. For further promotion from the post of Assistant to the post of Superintendent, the required qualification is Higher Accountancy examination conducted by the Directorate of Technical Education. 13. In the above said background, the claims of the respondent has to be considered. The respondent was temporarily promoted on 6.8.1976 as Assistant with a condition that he should pass the departmental tests within one year from 6.8.1976. As far as M.M.Meiyappan was concerned, he passed the concerned departmental tests in November, 1973 and May, 1974 itself. The respondent, though cleared the Account test for Subordinate Officers Part-I in November, 1973, he failed to clear Lower Accountancy test even after his temporary promotion on 6.8.1976. M.M.Meiyappan came to be promoted as Assistant on 30.9.1976. While working as Assistant, M.M.Meiyappan also cleared the Higher Accountancy examination in the month of June, 1978. He was also regularised in the post of Assistant from 30.9.1976, the date of his initial promotion to the post of Assistant. 14. As far as the respondent is concerned, though he failed to clear the test, to his fortune, an amendment came to be introduced in the rules relating to passing of such departmental tests, on 26.11.1979. By virtue of the said amendment, which came into effect from the date of issuance of the said circular, viz., 26.11.1979, it was held that the existing prescribed qualification of the Accountancy Lower and Higher for the posts of Assistant and Superintendent would not be applicable with effect from 1.11.1979, or the date of approval of the proposed amendment by the Executive Committee, whichever was later. Since the approval came to be granted by the Executive Committee on 26.11.1979, the requirement of passing departmental Accountancy test ceased with effect from 26.11.1979. 15. However, it is relevant to make a reference to the amended rule 2(a) and (b), which are very vital for deciding the controversy raised by the respondent herein. The amended Rule 2(a) and (b) read as under: "2(a) The interse seniority of all persons whose seniority have been fixed in the category of Assistant and those who have been fully qualified and promoted in accordance with Rules in force prior to the date of approval of the amended rules by the Executive Committee will be protected. 2(b) Those who gets subsequently qualified by the amendment will be placed below the persons mentioned in para 2(a)." By virtue of the amended rule, which came into effect from 26.11.1979, the promotion of the respondent in the post of Assistant came to be regularised with effect from the date of his initial temporary promotion viz., 6.8.1976. https://hcservices.ecourts.gov.in/hcservices/ 16. In the meantime, as M.M.Meiyappan was fully qualified and was holding the post of Assistant on regular basis, when a vacancy arose in the post of Superintendent, he came to be promoted to the said post on and from 28.8.1978. He was also regularised in the said post. As far as the respondent was concerned, after his regularisation on 27.11.1979 in the post of Assistant, when a vacancy arose in the post of superintendent on 31.7.1980, the respondent came to be promoted. He was also regularised in the post of Superintendent on and from 31.7.1980. It is thereafter the seniority list in the post of Superintendent grade was issued by proceeding dated 12.7.1991. In the said seniority list, by virtue of the respective dates on which the respondent and M.M.Meiyappan came to be regularised in the post of Superintendent on 31.7.1980 and 28.8.1978 respectively, the name of M.M.Meiyappan was in Sl.No.4 and the name of the respondent was in Sl.No.27. One other relevant fact which is to be stated is, subsequently the respondent retired on reaching the age of superannuation on 31.5.2004 and M.M.Meiyappan reached the age of superannuation on 29.2.2008. 17. After issuance of the seniority list, the respondent filed the writ petition in W.P.No.12099 of 1991. The respondent prayed for issuance of a certiorarified mandamus to call for the records relating to the proceedings of the Tamil Nadu Text Book Corporation dated 16.7.1991 with the seniority list, quash the same and to direct the Tamil Nadu Text Book Corporation to prepare a fresh seniority list of Superintendents in the Tamil Nadu Text Book Corporation by placing the respondent above the respondents 3 to 24 therein and confer all service benefits to him. M.M.Meiyappan, who was arrayed as 5th respondent in the said writ petition did not prosecute his case in the writ petition. The writ petition was however, resisted by the Tamil Nadu Text Book Corporation. The learned single Judge, by the order impugned in the writ appeals, took the view that when once age and educational qualification came to be relaxed at the instance of the Tamil Nadu Text Book Corporation, the subsequent relaxation of test qualifications should also enure to the benefit of the respondent as from the date of his promotion to the post of Assistant on 6.8.1976, and if such benefit is extended in that fashion, the respondent was entitled to the relief prayed for in the writ petition. On the above said reasong, the learned Judge allowed the writ petition and set aside the seniority list impugned in the writ petition and directed the Tamil Nadu Text Book Corporation to re-draw the seniority list and accord necessary regularisation in accordance with the observations contained in the order of the learned single Judge. 18. In pursuance of the said order, a contempt petition came to be filed before this Court at the instance of the respondent in Contempt Application No.533 of 2001. Since the present writ appeal came to be filed by the Tamil Nadu Text Book Corporation, much later, an order came to be passed on 9.1.2002, in and by which the seniority list was re- drawn and the rank of the respondent was changed from 27 to 9, just above M.M.Meiyappan. In that process, while the name of the respondent appeared in Sl.No.9, the name of M.M.Meiyappan appeared in Sl.No.10. Further, in pursuance of the said re-alignment of the seniority, further order came to be passed on 31.7.2002, in and by which the salary of M.M.Meiyappan for the month of July, 2002, came to be fixed without any revision. By subsequent order dated 30.1.2004, the said order dated https://hcservices.ecourts.gov.in/hcservices/ 31.7.2002 was affirmed. It is as against the said order M.M.Meiyappan has come forward with W.P.No.5740 of 2004. 19. We heard Mr.P.Wilson, learned Additional Advocate General on behalf of the Tamil Nadu Text Book Corporation, Mr.T.V.Lakshmanan, learned counsel for the respondent and Mr.M.Abdul Razaack, learned counsel for M.M.Meiyappan. 20. The learned Additional Advocate General, after referring to the above facts relating to the appointment and promotions achieved by the respondent and M.M.Meiyappan, also referred to G.O.Ms.No.221 Personnel and Administrative Reforms (Per.S) Department, dated 10.5.1990, wherein it has been stated that relaxation once given exempting a person from possessing qualification/passing departmental/special tests and other obligatory tests prescribed for the post, which should be held valid for all future promotions, where the same qualification is prescribed. The learned Additional Advocate General, while referring to the said Government Order pointed out, the same came to be issued based on the directions of the Division Bench decisions of this Court in W.A.No.106 of 1979 and 211 of 1986. The learned Additional Advocate General contended that when the respondent was promoted to the post of Superintendent much later than M.M.Meiyappan i.e., on 31.7.1980 as against Meiyappan's promotion on 28.8.1978 and when passing of the departmental test was dropped only on 26.11.1979, there was absolutely no justification in the claim of the respondent in challenging the final seniority list dated 16.7.1991. The learned Additional Advocate General also pointed out that when the earlier Government Order in G.O.Ms.No.1647, dated 29.7.1976, which relaxed the basic educational qualification in respect of various employees including M.M.Meiyappan as from 4.3.1970, there could have been no valid claim for the respondent to claim any advantage, as against any of the persons including M.M.Meiyappan, who came to be promoted to the post of Superintendent earlier to the respondent. The learned Additional Advocate General therefore contended that the conclusion of the learned single Judge in having held that the subsequent dropping of passing of the departmental test on and after 26.11.1979 should have been extended to the benefit of the respondent on any date prior to that date was unjustified and therefore any promotion granted to others including M.M.Meiyappan in the post of Superintendent prior to 31.7.1980 i.e., the date on which the first respondent came to be promoted to the post of Superintendent, ought not to have been disturbed. The learned Additional Advocate General therefore seeks for setting aside the order of the learned single Judge. 21. As against the above submissions, Mr.T.V.Lakshmanan, learned Counsel appearing for the respondent contended that the very relaxation granted in the earlier G.O.Ms.No.1647 dated 29.7.1976 was not in consonance with the Government Order in G.O.Ms.No.861 dated 2.9.1986 and therefore any benefit based on which M.M.Meiyappan secured his promotion to the post of Junior Assistant could not have been validated. 22. We are not inclined to consider such a submission since we find, in the subsequent G.O.Ms.No.221 dated 10.5.1990, the position relating to relaxation of qualification and how such relaxation would enure to the benefit of the employees for future promotion has been set down based on the Division Bench decisions of this Court. In any https://hcservices.ecourts.gov.in/hcservices/ event, the respondent having not chosen to challenge the benefit granted in G.O.Ms.No.1647 dated 29.7.1976, he cannot be permitted to raise any such contention, which would conflict with the said Government Order. The said Government Order dated 29.7.1976 in G.O.Ms.No.1647 was implemented and stood the test of time till this date. Therefore it is too late for the respondent to raise such a far-fetched contention at this point of time. 23. The other contention of the learned counsel for the respondent that once after dropping of the passing of departmental test under the amended rule dated 26.11.1979, when the respondent's position in the post of Assistant came to be regularised with effect from 6.8.1976 and when various other employees including Meiyappan, whose regularisation in the post of Assistant was subsequent to that date viz., 6.8.1976, the respondent was well justified in claiming re- alignment of seniority of his original appointment in the post of Assistant as from 6.8.1976. 24. Though the said submission of the learned counsel for the respondent appears to be attractive in the first blush, we find that the said argument cannot also be accepted, inasmuch as, at least when we examine the case of M.M.Meiyappan, we find that though in the post of Assistant he came to be regularised as from 30.9.1976, since as on 28.8.1978, when M.M.Meiyappan was promoted to the post of Superintendent, the respondent was not even eligible to be considered for further promotion i.e., to the post of Superintendent, there is no question of any comparison being made as between the respondent and M.M.Meiyappan and all those others, who were identically placed like that of M.M.Meiyappan. In other words, the very right of the respondent to claim for consideration to be promoted to the post of Superintendent accrued to him only on 26.11.1979, when by way of amendment to the rules, the prescription of passing Lower and Higher Accountancy qualifications came to be scrapped. In that context the contention of the learned counsel for M.M.Meiyappan by placing reliance upon the amended rule 2(a) and (b) assumes greater significance. Rule 2(a), extracted in the earlier paragraph of this Judgment makes it clear that the interse seniority of all persons, whose seniority has been fixed in the category of Assistant and those who have been fully qualified and promoted in accordance with the rule in force prior to the date of approval of the amended rules by Executive Committee, would be protected and in Rule 2(b) it is further more specifically prescribed that those who get subsequently qualified by the amendment would be placed below the persons mentioned in Rule 2(a). The above said amended rule also remains unchallenged till date. It is crystal clear that the promotion of the said M.M.Meiyappan to the post of Superintendent from 28.8.1978 and all others, who were similarly placed like that of M.M.Meiyappan, vis-a-vis the position of the respondent, who came to be promoted to the said post only on 31.7.1980, stood protected. In such circumstances, when substantive rule framed by the Tamil Nadu Text Book Corporation was occupying the field, which clearly set out as to how in such a situation viz., the scrapping of the passing of Accountancy test should be worked out, the claim of the respondent in merely challenging the seniority list dated 16.7.1991, which was well in accordance with the prevailing rules, could not have been granted. https://hcservices.ecourts.gov.in/hcservices/ 25. We are therefore convinced that the challenge made by the respondent to the said seniority list was without any substance and the order of the learned single Judge in allowing the same cannot be sustained. The reasonings of the learned single Judge as contained in para 18 that the Text Book Corporation's failure to consider the respondent's application for relaxation on the ground that the request can be considered only if it is a test qualification, is arbitrary cannot be accepted, inasmuch as at no point of time the respondent has chosen to challenge either the relaxation granted under G.O.Ms.No.1647 dated 29.7.1976 or the amended rule as brought out with effect from 26.11.1979. The further reasoning of the learned Judge that the relaxation which was granted to others in respect of age and educational qualification should have been considered in favour of the respondent by way of equal treatment, also cannot be accepted as we do not find any statutory prescription to support the said conclusion of the learned Judge. 26. Viewed from any angle, we do not find any justification in the order of the learned single Judge in having interfered with the seniority list dated 16.7.1991. Consequently, (a) Both the writ appeals are allowed and the order of the learned single Judge dated 18.4.2001 made in W.P.No.12099 of 1991 is set aside. (b) The subsequent re-drawn seniority list of the Tamil Nadu Text Book Corporation by way of implementation of the order of the learned single Judge in the order dated 9.1.2002 cannot stand. Therefore, while restoring the original seniority list dated 16.7.1991, the subsequent order dated 9.1.2002 will stand set aside. (c) Inasmuch as we have allowed the writ appeals and set aside the order of the learned single Judge and restored the seniority list, the consequential order passed by the Tamil Nadu Text Book Corporation, which is under challenge in W.P.No.5740 of 2004 also merits acceptance and the said writ petition is allowed. The order impugned therein are set aside. (d) Similarly since the writ appeals having been allowed, there is no scope for the respondent to claim any benefit much less the benefits claimed by him in W.P.No.35771 of 2002. The said writ petition fails and the same is dismissed. (e) There will be no order as to costs. (f) Connected miscellaneous petitions are closed. vr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Managing Director, Tamil Nadu Text Book Corporation, EVK Sampath Maligai, College Road, College Road, Chennai – 600 006, 2.The Secretary, State of Tamil Nadu, Education Department, Fort St.George, Chennai – 600 009. + 3 ccs to Mr.T.V.Lakshmanan, Advocate SR No.58853 + 1 cc to Mr.K.R.A.Muthukrishnan, Advocate SR No.59009 Common Judgment in W.A.Nos.1047/2001, 1748/2002 W.P.Nos.35771/2002, 5740/2004 GV(CO) SR/24.11.09 https://hcservices.ecourts.gov.in/hcservices/