Judgment :- PRAYER IN W.P.No.9983 of 2000: Writ petition filed under Article 226 of the Constitution of India praying for the issue a writ of Certiorarified Mandamus to call for the records of the first respondent with No.PEC/E3/S.L.1/96/2726 dated 30.7.1996 and to quash the same in respect of seniority of 2nd respondent and consequently to direct the 1st respondent to issue a fresh seniority list, by placing the petitioner in Seniority No.2. PRAYER IN W.P.No.784 OF 2003 Writ petition filed under Article 226 of the Constitution of Indian praying for the issue of Certiorarified Mandamus to call for the records of the first respondent with No. PEC/E4ESH/Pev 2002/No.4898 dated 28.11.2002 and to quash the same and subsequently to direct the first respondent to consider and promote the petitioner to the post of Assistant Librarian with effect from 31.10.2002 with all other consequential reliefs including seniority, back wages, etc.) Common Order: W.P.No.9983 of 2000 is filed challenging the order of the first respondent, the Principal, Pondichery Engineering College, dated 30.7.1996 and for a direction to issue fresh seniority list by placing the petitioner as No.2 in the seniority list and above the second respondent. 2. Pending the above writ petition, since the second respondent was further promoted as Assistant Librarian from the post of Library Assistant, the petitioner filed the subsequent writ petition No.784 of 2003 challenging the order of the first respondent dated 28.11.2002, in which the second respondent was promoted to the post of Assistant Librarian and also for a direction to consider the petitioner to be promoted as Assistant Librarian with effect from 31.10.2002. 3. The case of the petitioner is that, he had joined in the first respondent College as an Attender on 13.1.1987, in which post, he was regularised on 1.9.1989. The said post is stated to be Group ‘D’ post. Subsequently, the petitioner was promoted as Library Assistant, which is a Group ‘C’ post on 25.6.1993. According to the petitioner, the second respondent joined in the first respondent College on 9.7.1990 as a casual labourer and under the common order of promotion, the petitioner as well as the second respondent were promoted on 25.6.1993 as Library Assistants. Subsequently, the petitioner was promoted as Library Assistant, which is a Group ‘C’ post on 25.6.1993. According to the petitioner, the second respondent joined in the first respondent College on 9.7.1990 as a casual labourer and under the common order of promotion, the petitioner as well as the second respondent were promoted on 25.6.1993 as Library Assistants. In the Group D category, when a seniority list was drawn by the first respondent on 15.5.1992, in the said list, the petitioner was placed in Sl.No.10 and the second respondent was placed in Sl.No.16 and therefore, in the Group D category, the petitioner was senior to the second respondent. The further case of the petitioner is that, eventhough in the order of appointment promoting the Attenders to that of Library Assistants, the first respondent by his order dated 25.6.1993, has shown the petitioner as No.1 and the second respondent as No.2. But, by the impugned order, which is stated to be the final seniority list of Library Assistants dated 30.7.1996, the second respondent is shown as Sl.No.2, while the petitioner is driven back to Sl.No.3. The petitioner challenges this impugned order on the ground that, while the second respondent is junior to him in the Group D category and while the first respondent himself in the order dated 25.6.1993, issuing promotion of Attenders as Library Assistant, has shown the petitioner as No.1 and the second respondent as No.2, consequently, the impugned order which reverses the stand, suffers from illegality. It is also the case of the petitioner that because from Group D, the petitioner as well as the second respondent were promoted to Group C, it cannot be said to be a selection post and therefore, the petitioner is entitled to get the seniority as per the list of seniority in the lower post. 4. It is also the case of the petitioner that, while the dispute relating the seniority list itself was pending adjudication before this Court, the subsequent order passed by the first respondent in promoting the second respondent to the next post of Assistant Librarian on 28.11.2002 ignoring the claim of the petitioner would amount to arbitrary and illegal act and hence liable to be set aside. Here also, the basis of the claim of the petitioner is that, when in the seniority list of Group D, the petitioner was placed as No.10 and second respondent was placed as No.16, only that seniority list should be followed even for any further promotion. 5. On the other hand, the first respondent College has filed a counter affidavit, stating that the post of Assistant Librarian, which is in Group C is a selection post and the Departmental Promotion Committee after perusing the report of the candidates, has recommended the list of candidates for promotion from the panel. Accordingly, a tentative seniority list of Library Assistant was issued by the first respondent on 18.6.1993 by placing the second respondent as No.2 and the petitioner as No.3. It is also stated that the order of the first respondent dated 25.6.1993 is only a promotion order, drawn in alphabetic order and the seniority will be assigned according to the order of merit allotted by the Departmental Promotion Committee, as stated in the order dated 25.6.1993 of the first respondent himself. Therefore, there is absolutely no anomaly in respect of fixing of seniority between the petitioner and the second respondent in the cadre of Library Assistant which is in Group C. The first respondent would also state that in their College, there are four posts of Assistant Librarians, out of which three posts were already filled up by the Departmental Promotion Committee. For the purpose of filling up one post, the Departmental Promotion Committee convened. Two candidates, petitioner and the second respondent have come within the zone of consideration before the Departmental Promotion Committee, since both of them were qualified as per the Recruitment Rules. It is also the case of the first respondent that since the post was a non- selection post, the second respondent who is senior to the petitioner in the cadre of Library Assistant was promoted to the post of Assistant Librarian and therefore, there is absolutely nothing wrong in the same. 6. The second respondent has also filed a counter affidavit to the same effect. According to the second respondent, she was getting more salary even as an Attender than that of the petitioner. That apart, the second respondent also would state that the nature of the job done by the petitioner was pertaining to other department, whereas, the second respondent was exclusively working in the Library. According to the second respondent, she was getting more salary even as an Attender than that of the petitioner. That apart, the second respondent also would state that the nature of the job done by the petitioner was pertaining to other department, whereas, the second respondent was exclusively working in the Library. The second respondent would further state that the Departmental Promotion Committee, while drawing the seniority list in the category of Library Assistant, has followed the rules framed by the College and after consideration of all the aspects, has fixed the seniority by placing the second respondent above the petitioner in the category of Library Assistant and the same is drawn in order. While, when a vacancy arose in the post of Assistant Librarian, which is a non-selection post, naturally as a senior, the second respondent was promoted by the order of the first respondent dated 28.11.2002, which is also perfectly in order. 7. I have heard the arguments of the learned counsel for the petitioner as well as the respondents. 8. The learned counsel appearing for the petitioner apart from reiterating the stand of the petitioner taken in the writ petition has asserted that, while admittedly in the category of Group D, the petitioner was senior, that seniority cannot be denied to him to the next post of Library Assistant in Group C, on the basis that it is a selection post. The learned counsel has also relied upon the Judgment of this Court passed in a batch of writ petitions in W.P.Nos.6383, 6384 and 6386 of 1995, under which the promotion of twelve Attenders who are in Group D to that of Lower Division Clerks, which comes under Group C category, like that of the Library Assistant post, was challenged and this Court has considered by the Judgment dated 4.12.2002 about the constitution of the Departmental Promotion Committee for selection to the post of Lower Division Clerk. There also the petitioners were placed below the respondents like in the present case. In that case, this Court has considered the principles to be observed while preparation of the panel in respect of selection cum seniority and selection by merit, as published in the ‘Swamy’s compilation on Seniority and Promotion’ under the caption Selection cum Seniority and selection by merit. In that case, this Court has considered the principles to be observed while preparation of the panel in respect of selection cum seniority and selection by merit, as published in the ‘Swamy’s compilation on Seniority and Promotion’ under the caption Selection cum Seniority and selection by merit. In paragraph 6.3.1, especially relating to (iii), it is stated as follows: “(iii) Each Departmental Promotion Committee while considering the suitability of officers for promotion to posts for which the bench-mark has been determined as ‘Good’ would grade the officers as ‘Good’, ‘Average’ and ‘Unfit’ only. Only those officers who obtain the grading of ‘Good’ will be included in the panel in the order of their seniority in the lower grade subject to availability of vacancies.” While considering the said paragraph, this Court has held that, while it is not the case of the Department that the petitioner was not discharging any sensitive work, etc., has held that the so called consideration of performance report is not permissible. This Court has further held as follows in paragraph 9 of the Judgment: “9. .... Therefore, the so called consideration of performance report is not permissible. Further, maintaining such a secret record is worse than the rigor of a Confidential Report. At least in the matter of maintaining Confidential Reports, if any adverse entry is made, then it is the duty of the employer to disclose the adverse entry and the employee has a right to challenge the same. But in the present case of undisclosed performance report, such requirements are not contemplated, which goes against basic rules of fairness.” 9. The learned counsel for the petitioner Mr. V.Ajay Kumar, relies upon the said judgment in which the first respondent is a party, holding that in the name of Departmental Promotion Committee, for Group C category, seniority cannot be re-fixed by placing a person who was shown as a senior in Group D as junior in Group C. On the other hand, Mr. Vijay, learned Government Pleader (Pondicherry) appearing for the first respondent College, as also Ms. D. Geetha, learned counsel appearing for the second respondent would contend that when admittedly, the Group C post is a post by way of selection, which is depending upon the recommendation of the Departmental Promotion Committee, it is only based on the Departmental Promotion Committee’s recommendation, the seniority were re-fixed. 10. D. Geetha, learned counsel appearing for the second respondent would contend that when admittedly, the Group C post is a post by way of selection, which is depending upon the recommendation of the Departmental Promotion Committee, it is only based on the Departmental Promotion Committee’s recommendation, the seniority were re-fixed. 10. The fact that the post of Library Assistant which is in Group C is a selection post, is not denied. It is also not denied that the next post of Assistant Librarian is a non-selection post and therefore, the appointment as an Assistant Librarian is based on seniority. The only question that requires consideration in this case is, as to whether a person promoted from Group D to Group C is entitled to retain his seniority which is fixed in Group D category or not ? 11. When admittedly, Group C category is a selection post, the presence of the Departmental Promotion Committee cannot be denied for effecting the seniority list. But, in the present case, it is not the case of the first respondent College that there was any adverse remarks against petitioner so as to enable the Departmental Promotion Committee to decide against him while fixing the seniority in Group C category. The Rule as elicited from ‘Swamy’s Compilation’ also states as follows: “officers who obtain the grading of ‘Good’ will be included in the panel in the order of their seniority in the lower grade subject to availability of vacancies.” (emphasis supplied) Therefore, it is clear that in the absence of any adverse remarks, the grading of the petitioner as well as the second respondent should be treated ‘Good’ and under such circumstances, by applying the said Rule, the petitioner who was admittedly placed as senior in the lower grade namely Group D, in which he was placed in Sl.No.10, while the second respondent was placed in Sl.No.16, the petitioner is certainly entitled to have the protection of seniority. As this Court has already held that in the name of Departmental Promotion Committee’s recommendation, especially the said Department Promotion Committee recommendations are not placed before this Court, there cannot be any assumption that the petitioner has either become unfit or average so as to deny him the right of his seniority which has accrued to him in the lower grade. It is also relevant to point out that the entire facts relating to the same situation was also discussed by this Court as stated above, in which the first respondent himself was a party and admittedly there was no appeal filed against the same. The contention of the learned counsel for the second respondent that the said judgment should be treated as per incuriam is not sustainable, because in both the cases, the question that was to be answered was, as to whether there was any adverse remark. In the absence of such adverse remarks, the judgment cited by the learned counsel for the petitioner is exactly applicable to the present case also. Therefore, in my considered view, of the petitioner is bound to succeed. 12. In the result, W.P.No.9983 of 2000 is allowed. The impugned order of the first respondent dated 30.7.1996 is set aside and the first respondent is directed to draw a fresh seniority list in view of the observations made above and pass necessary orders, in any event, within a period of eight weeks from the date of receipt of a copy of this order. Consequent to the order passed in W.P.No.9983 of 2000, in which this Court has directed the first respondent to re-fix the seniority based on the observations made therein by quashing the impugned order in the said writ petition, the impugned order of the first respondent in W.P.No.784 of 2003 by promoting the second respondent as an Assistant Librarian is also liable to be set aside. Accordingly, the impugned order of the first respondent is set aside and the first respondent is directed to make fresh orders regarding promotion to the post of Assistant Librarian among the petitioner and the second respondent in the light of the observations made above. Accordingly, both the writ petitions are allowed and there will be no order as to cost.