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2003 DIGILAW 1876 (MAD)

D. Dayalan & Others v. The Commissioner & Another

2003-11-18

K.P.SIVASUBRAMANIAM

body2003
Judgment :- The petitioner prays for writ of Certiorarified Mandamus to direct the respondents to include the petitioners' name as per seniority in the promotion panel dated 11.3.1997 published by the first respondent and to direct the respondents to promote them as Assistants and to give all the consequential benefits. 2. The three petitioners are working as typists. They were originally appointed during the year 1980 and subsequently, they were promoted as typists with effect from the year 1988. They had passed Accounts Test in the year 1990, 1989 and 1993 respectively. They also passed the Tamil Nadu Government Office Manuel Test in November 1996. 3. The petitioners contend that the next promotion post to the typist is the post of Assistant. It will be filled up by taking into account of the overall seniority in the post of Junior Assistant, Shorthand-Typist, Typist and Clerk-cum-Typist. The method of recruitment for the post of Assistant is by promotion from the said four categories. Even though the qualification prescribed in the unapproved by-law for promotion as Assistant is a pass in the Account Test and a Pass in the D.O.M. Test, all along seniority alone was the main consideration. Even in the proceedings of the Deputy Commissioner of Chennai Corporation dated 25.4.1994, 19 persons have been promoted as Assistants with a condition that they should pass the District Office Manual Test within one year from the date of joining as Assistants. Even recently in the proceedings of the Commissioner dated 23.9.1996, two persons have been promoted as Assistants with a condition to pass the D.O.M. Test within one year from the date of joining as Assistants. Therefore, it was clear that the seniority alone was the main basis for consideration. 4. The petitioners further submit that on 24.4.1997, a select panel consisting of 44 persons dated 11.3.1997 was published by the Commissioner in which the names of the petitioners were not included. The petitioners also alleged that juniors to them have been included in the panel. Even though they had been promoted as typists from the year 1988 itself and were possessed of the required qualifications, they have not been included in the panel. It is further stated that by circular dated 23.4.1997, it is stated that the persons who have passed the departmental tests before the crucial date (i.e. 1.3.1996) alone have been included in the panel. It is further stated that by circular dated 23.4.1997, it is stated that the persons who have passed the departmental tests before the crucial date (i.e. 1.3.1996) alone have been included in the panel. The circular states that those who have passed the departmental tests after 1.3.1996 will be considered for promotions only subsequently. In the said context, the petitioners contend that before the publication of the present panel, they have not been put to any notice regarding the crucial date. There is no rule, regulation or Government Order fixing the crucial date. The first respondent cannot, according to his whims and fancies, fix the crucial date so as to affect the career prospects of the typists like the petitioners. Hence the above writ petition. 5. In the counter filed by the Commissioner, it is stated that the crucial date for the drawal of the Assistants for the year 1996-97 was 1.3.1996. Though the petitioners had passed Account Test before the crucial date, they had passed the D.O.M. Test only subsequent to the crucial date. Therefore, the petitioners' demand cannot be sustained. When qualified candidates are available for being promoted, the petitioners claim cannot be accepted. For the vacancies expected to arise in the year 1996-97, a panel of Assistants was drawn with 46 names. The names of the petitioners were not considered as they were not qualified. As regards the fixation of the crucial date, the respondents state that the administration has fixed the crucial dates for different panels which were known to the employees. Fixation of the crucial date was within the administrative powers of the respondents and even if there was no crucial date, the date on which the panel is drawn will be the crucial date and those who passed the tests prescribed subsequent to that date will have to take their chances only in the future panels. The crucial date has been fixed only considering the administrative conveniences and the same does not require approval from the Government. 6. I have heard the learned counsel for the petitioners. The crucial date has been fixed only considering the administrative conveniences and the same does not require approval from the Government. 6. I have heard the learned counsel for the petitioners. Apart from raising the contentions as dealt with in the affidavit in support of the writ petition, learned counsel for the petitioners brings to my notice the earlier promotions effected to the post of Assistant and reference is made to the condition that promotees should pass the test within one year from the date of joining as Assistants. According to the learned counsel, it was the practice hitherto as could be seen from the proceedings dated 25.4.1994. Reference has also been made to a subsequent proceeding dated 23.9.1996 whereunder also promotions were given in favour of all typists subject to the condition that they should pass the D.O.M. Test within a period of one year. Therefore, learned counsel for the petitioner contends that there was absolutely no justification for the change of policy suddenly. The rules did not contemplate any crucial date and crucial date cannot be fixed on an anterior date. Crucial date on 1.3.1996 appears to have been fixed with retrospective effect, and the same results in affecting the prospects of the petitioners, and hence cannot be held to be valid. Learned counsel further submits that the panel was actually prepared on 11.3.1997 on which date the petitioners had passed the D.O.M. Test. Therefore, by the artificial fixation of crucial date as on 1.3.1996, the prospects of the petitioners cannot be affected. 7. I have also heard the learned counsel for the respondent-Corporation. Learned counsel for the respondents contends that the fixation of the date 1.3.1996 as crucial date was known to all the employees. It is not the case of the respondents that any discrimination have been shown in the manner of preparation of the temporary panel. The petitioners do not allege that any one in similarly placed as the petitioners has been discriminated against them. As a policy, the crucial date has been fixed as 1.3.1996 and the petitioners, who have admittedly passed the D.O.M. Test only during November 1996, cannot claim that their names should be included in the panel. 8. I have considered the submissions of both sides. 9. As a policy, the crucial date has been fixed as 1.3.1996 and the petitioners, who have admittedly passed the D.O.M. Test only during November 1996, cannot claim that their names should be included in the panel. 8. I have considered the submissions of both sides. 9. The stand of the petitioner that no crucial date had ever been fixed in the matter of promotion panel for Assistants is not disputed in the counter. The date 1.3.1996 appears to have been fixed as the crucial date as a result of the resolution of the appointment committee dated 9.4.1997. It is obvious that the resolution has been given retrospective effect and the crucial date has been fixed as 1.3.1996. There is also no dispute over the fact that earlier to this panel, the practice was always to allow promotees to qualify themselves by passing the D.O.M. Test even after the promotion. Reference was made to the order of promotion dated 25.4.1994 and subsequent order of promotion dated 23.9.1996. 10. A perusal of the said orders disclose that the promotees were required to pass the D.O.M. Test after promotion within a period of one year. No reasons are stated as to why there was a departure from the said practice. Even so, any change to be made in the service conditions can be made only prospectively and not retrospectively so as to affect the chances of promotion to the existing incumbents. Even going by the stand taken by the respondents in the counter, the date on which the panel is drawn will be the crucial date. In this case, temporary panel was formulated on 11.3.1997 on which date admittedly, the petitioners were fully qualified. They had passed the D.O.M. Test in November 1996 itself. Therefore, there was no justification to have excluded the petitioners from the select panel of 11.3.1997. The method adopted by the respondents had resulted in grave prejudice to the petitioners considering that, admittedly, many of their juniors have found their place in the panel. 11. With the result, the petitioners are entitled to succeed. There will be a direction to the respondents to consider the claims of the petitioners in terms of their seniority in the post of typist and they be placed above their immediate juniors in accordance with their seniority. The writ petition is ordered accordingly. No costs.