IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2008 CORAM THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.17719/2003 P.S.Sesuraj .. Petitioner -Vs.- 1.The Deputy Director [Administration] Directorate of Fire & Rescue Services, Egmore, Chennai 600 008. 2.Mr.R.Jayakumari 3.The Registrar Tamilnadu AdministrativeTribunal, High Court Campus, Chennai 600 104. .. Respondents PRAYER: Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of certiorarified mandamus calling for the records relating to the order dated 27.12.2002 made in OA.No.7575 of 2001 on the file of the Tamil Nadu Administrative Tribunal, Chennai, the 3rd respondent herein [2] the proceedings of the Deputy Director of Administration, Chennai-8, the 1st respondent herein made in Na.Ka.No.5600/Pa.1/2001, dated 12.11.2001 and the proceedings made in Na.Ka.No.5600/Pa.1/2001-2 dated 13.11.2001 insofar as the recasting of the seniority of the petitioner from 1987 to 1988 in the post of Assistant and the order of reversion of the petitioner from the post of Superintendent to Assistant and consequently direct the 1st respondent herein to refix the seniority of the petitioner as has been done earlier on 7.9.1990 in the post of Assistant and consequentially promote him to the post of Superintendent on par with his immediate juniors with all consequential service and monetary benefits due to the petitioner in the post of Superintendent and disburse all the arrears within a short date. For Petitioner : Mr.K.Rajkumar For Respondents : Mr.M.Dhandapani,Spl.GP https://hcservices.ecourts.gov.in/hcservices/ O R D E R K.CHANDRU, J. The petitioner is aggrieved by the order of the Tamil Nadu Administrative Tribunal [For Short "Tribunal"] made in OA.No.7575 of 2001 dated 27.12.2002 and hence, the present writ petition is filed. 2.Heard the arguments of Mr.K.Rajkumar, learned counsel for the petitioner and Mr.M.Dhandapani, learned Special Government Pleader and have perused the records. 3.The petitioner was working as a Superintendent in the Divisional Fire Office and by order dated 13.11.2001, he was reverted to the post of Assistant and it was this order which was challenged before the Tribunal by the petitioner. The petitioner sought for an interim order. Though it was granted earlier, it was not extended and it was against this non-extension of the interim order of reversion, the petitioner filed the writ petition before this court being WP.No.9980 of 2002. This court declined to interfere with the orders passed by the Tribunal and merely directed the disposal of the Original Application on merits. 4.The petitioner joined the Fire Service Department as a Junior Assistant on 19.03.1983. He was appointed on the ground that he was a Burma Repatriate and his appointment was regularised by the Government only on 16.04.1990 but to take effect from 19.03.1983. Thereafter, he was promoted as an Assistant on 07.01.1987 and further promoted as a Superintendent on 17.05.2001. On 07.09.1987, the departmental Promotion Committee [DPC]published the list of eligible candidates to the post of Assistant/Typist. The petitioner was having Serial No.13 in the seniority list and the second respondent was placed over him. 5.The petitioner filed a Writ Petition before this court which was transferred to the Tribunal and taken on filed as TA.No.231 of 1990. However, the said Transfer Application was withdrawn by the petitioner and the Tribunal permitted the withdrawal of the said Transfer Application by an order dated 25.06.1990. 6.Once again when the DPC published the panel for the post of Superintendent, the petitioner had the fifth position. He was promoted as a Superintendent in a leave vacancy by an order dated 17.05.2001. It was only on 20.10.2001 he was posted in a permanent vacancy as a Superintendent. But by the order dated 13.11.2001, he was revered to the post of Assistant. This was on the basis of the direction issued by the Deputy Director dated 12.11.2001 before the issuance of the said order another order was issued by the department dated 12.11.2001 by the Deputy Director [Administration] on the basis of the Government's direction dated 01.06.2001. The Government had queried whether the ratio of 4:1 between the Junior Assistant and Typist was followed while https://hcservices.ecourts.gov.in/hcservices/ permitting the persons to the cadre of Assistant in terms of the Government order. 7.Based on this, a seniority list was published having the ratio 4:1. This seniority list was not challenged by the petitioner. But only the consequential proceeding dated 13.11.2001 reverting the petitioner alone was challenged. Before the Tribunal a reply affidavit was filed by the Official respondent. They had also contended that the second respondent and one Tmt.Shenbagam was senior to the petitioner in the post of Assistant as they were promoted to the post of Assistant on 04.11.1987 and 25.11.1987 whereas the petitioner was promoted to the post of Assistant only on 02.08.1990, viz., three years after the date of promotion of the second respondent as well as the said Shenbagam. Therefore, when the promotion to the post of Superintendent came, it was only the second respondent who was eligible to be promoted whereas the petitioner was promoted only in a leave vacancy in the year 1999 and was reverted for want of vacancy. It was only on 20.10.2000, regular promotion was given to him in the Erode Division. 8.Because of the representation made by the second respondent and the said Shenbagam, the Government gave the direction by letter dated 10.04.2001 that as per the Tamil Nadu Ministerial Service Rules, the crucial date for drawal of "C" list for the post of Assistant is 15th March of every year and those who are qualified on the crucial date alone should be included in the 'C' List of that particular year. Therefore, on 13.03.1987, the Government indicated five persons including the petitioner, who were ineligible to be included in the 'C' list and the petitioner had acquired qualification only in May 1987 and he ought not have been included in the list for 1987. It was to give effect to this order and basing upon the representation of the second respondent who was admittedly senior to the petitioner in the post of Assistant, the list was revised and accordingly, the consequential directions were given. Since the post of Director of Fire Service was kept vacant, the post could not be filled up and the Government gave power to the Deputy Director to revise the 'C' list and accordingly, the Deputy Director implemented the orders of the Government. 9.For the contention that the revision was made long after the due date and there was an infraction of Rule 35[F] of the General Rules it was stated that the very same rule saves rectification of orders resulting from "Mistake of Facts" and the same will not be covered by the Rules. It was also stated that the contention of the petitioner that the revision of seniority was done after 17 years is not covered by the rules quoted by him. The Tribunal accepting the stand of the respondents, held as a matter of fact, the second respondent and the said Shenbagam are seniors to the petitioner and they have also acquired qualification on the crucial date, viz., 15.3.1987 and therefore, there was no question of setting aside the reversion order given to the petitioner. There was no prejudice to the petitioner as he had hardly https://hcservices.ecourts.gov.in/hcservices/ worked in the promoted post for a few months and his earlier promotion was on fortitous circumstances, viz., in a leave vacancy. 10.Mr.K.Rajkumar, learned counsel for the petitioner strenuouly contended that an incompetent authority had effected the reversion and therefore, it is invalid and also relied upon Appendix III of Rule 14-A. First of all, the said rule will apply only in case of penalty and not in a case where the consequential reversion order is passed pursuant to refixation of seniority. In any event, the Government had explained that in the absence of vacancy in the Director's the Government had delegated the powers to the Deputy Director and no exception can be made. 11.The learned counsel also relied upon the following judgments in support of his contentions:- [A]AIR 1967 SC 209 [M/s.Dalmia Cement [Bharat] Ltd., New Delhi Vs. Their Workmen and another] and reiterated that if there is any long usage or custom it that can be protected. We are afraid to take any such cue from the said judgment as it related to availing of Sick and Casual leave by Industrial Workmen and under the I.D.Act long wherein the custom and usages have been recognised. [B]AIR 1989 SC 218 [Rana Randhir Singh and others V. State of U.P. And others]. In that case, it was held that after promotions made a dispute relating to seniority after 9 years was considered to be prejudicial to persons. In the present case, it must be stated that the petitioner had an undue advantage of promotion when he was not senior and when he was not qualified to hold the post on the crucial date. 12.The learned counsel also relied upon the judgments of Andra Pradesh High Court reported in 2001 [7] SLR 246 [Smt.M.R.Subhadra v. Financial Adviser and Chief controller of Accounts, APSEB and others] and that of the Punjab and Haryana High Court reported in 2004 [2] ATJ 35 [Guran Dass V. State of Punjab and others]. In the first case, it was stated that once a person without qualification is promoted, it is deemed to be relaxed in his favour and therefore, at this point of time, the petitioner's lack of qualification cannot be raised. In the second case, once a candidate gains necessary experience then reversion cannot be made on the ground of lack of qualification. We do not think that these two judgments have any relevance to the present case. 13.Learned counsel also relied upon the judgment of the Division Bench of Bombay High Court reported in 2001 [1] SLR 480 [V.R.Vishwanath Ramji Mandare V. Maharashtra State Road Transport Corporation, Bombay and another] to contend that reversions cannot be passed by an authority lower than that of an appointing authority. It is to be pointed out that in the present case, the post of Director was vacant and that the Deputy Director was delegated with powers. It was also pointed out that it is not a case of reversion by way of penalty. https://hcservices.ecourts.gov.in/hcservices/ 14.In the light of the above, we are constrained to hold that the petitioner had not made out any case and accordingly, the writ petition stands dismissed. However, there will be no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar ap To 1.The Deputy Director [Administration] Directorate of Fire & Rescue Services, Egmore, Chennai 600 008. +1 cc to Mr.K.Rajkumar, Advocate, SR.No.18713. Vsv (Co) krd / 15.4.08 W.P.No.17719/2003 https://hcservices.ecourts.gov.in/hcservices/