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2008 DIGILAW 135 (MAD)

R. Arivudai Nambi v. P. Dhakshinamoorthy

2008-01-10

K.CHANDRU, P.K.MISRA

body2008
Judgment :- P.K. MISRA, J. Heard Mr. C. Selvaraj, learned senior counsel appearing for the petitioners and Mr. R. Sasitharan, learned counsel appearing for the first respondent and Mr.M. Dhandapani, learned Special Government Pleader appearing for the sixth respondent. 2. The facts giving rise to the present writ petition are as follows :- 2. 1 The present Respondents 1 to 5 had filed O.A.No.126 of 1991 before the Tamil Nadu Administrative Tribunal praying for quashing the seniority list dated 2. 1987 and to fix seniority of the applicants above that of the direct recruits who were impleaded as Respondents 2 to 68 in such O.A.. 2.2 Such applicants before the Tribunal had joined the Prison Department as Grade II warders The question presently raised is relating to seniority in the post of Assistant Jailor. Recruitment to such post of Assistant Jailor is either by way of direct recruitment or by way of promotion. Initially the quota available for direct recruits was 20%, but subsequently by amendment it was provided that 50% can be recruited directly and 50% can be promoted by promotion. However, eligibility requirement for promotion was to the effect that Grade II warders should have worked as Chief Head Warder for a period of one year. Since sufficient persons are not available to be promoted, it was decided to fill up the posts through direct recruitment. However, the applicants before the Tribunal and many other persons were promoted on temporary basis, even though they had not worked for a period of one year in the post of Chief Head Warder. Such temporary promotions had taken place during April, 1983. In the meantime, steps had been taken to appoint Assistant Jailors on the basis of direct recruitment and 66 persons were directly recruited as Assistant Jailors and they joined duty on 2. 1985. Subsequently, the temporarily promoted Assistant Jailors were regularized on 13. 1985. In the seniority list, which was prepared during the year 1991, such promotees were shown as juniors to the directly recruited Assistant Jailors. The applicants filed O.A.No.126 of 1991. The Tribunal, by judgment dated 3. 1993, directed the State Government to regularize the services of the applicants and other similarly placed persons retrospectively with effect from the date on which they were fully qualified to hold the post of Assistant Jailors. The applicants filed O.A.No.126 of 1991. The Tribunal, by judgment dated 3. 1993, directed the State Government to regularize the services of the applicants and other similarly placed persons retrospectively with effect from the date on which they were fully qualified to hold the post of Assistant Jailors. However, at that stage, some of the directly recruited Assistant Jailors, who were respondents in O.A.No.126 of 1991, had filed Review Appln.No.153 of 1993, which having been rejected on 19. 1994, the matter was taken to the Supreme Court by filing appeal. The Supreme Court observed that the Tamil Nadu Jail Subordinate Service Rules had been amended in 1982 increasing the quota of direct recruits from 20% to 50% and moreover, the order of the Tribunal was by an Administrative Member alone. The Supreme Court, therefore, set aside the orders dated 3. 1993 and 14. 1994 and remanded the matter to the Tribunal for fresh disposal. Thereafter, the properly constituted Tribunal consisting of a Judicial Member as Vice Chairman and another Administrative Member, heard the matter afresh and allowed the Original Application and directed the State Government to refix the seniority of the applicants by observing that such applicants were to be regularized with effect from 1983. Thereafter, out of 66 directly recruited Assistant Jailors, three persons, who had been arrayed as Respondent Nos.7, 17 and 40 in the Original Application, filed Review Appln.No.116 of 1996. Such Review Application having been rejected by judgment dated 5. 1997, the present writ petition has been filed by such persons, who had filed the Review Application No.116 of 1996. 3. The main contention raised by the Senior Counsel appearing the petitioners is to the effect that since direct recruits were appointed on regular basis with effect from 2. 1985 and since the promotees, even though promoted earlier on temporary basis, had been regularised only with effect from 13. 1985, such promotees could not have claimed seniority. It is further submitted that at any rate when the order was passed regularising the promotees only with effect from 13. 1985, without challenging such order, they could not have simply claimed seniority by filing O.A.No.126 of 1991. 4. The post of Assistant Jailor is required to be filled up by direct recruitment and by promotion. Initially 20% of the posts could be filled up by promotion, however, subsequently, it was increased upto 50%. 1985, without challenging such order, they could not have simply claimed seniority by filing O.A.No.126 of 1991. 4. The post of Assistant Jailor is required to be filled up by direct recruitment and by promotion. Initially 20% of the posts could be filled up by promotion, however, subsequently, it was increased upto 50%. For the purpose of promotion, Grade II Warder is required to function as Chief Head Warder for at least one year. The applicants before the Tribunal in the Original Application were promoted on temporary basis, even though they had not completed such one year. However, there is no dispute that even before the writ petitioners could be recruited directly, such applicants, but for their temporary promotion as Assistant Jailors, would have completed such a period of one year and would have been thus eligible for promotion at least during the year 1983. It is also not in dispute that inspite of availability of eligible candidates for promotion, no formal proceeding was undertaken, but, the persons, who had been temporarily promoted as Assistant Jailors, continued as such. In the above background, a letter was issued by the State Government in the year 1992 wherein it had been clearly recommended that since vacancies were available to be filled up by the promotees, eligible candidates who had completed one year were also available, such persons could be regularised with effect from the date on which they had become eligible. 5. In the above background, the Tribunal, after the matter was remanded by the Supreme Court, on discussion of the materials on record, came to the following conclusions :- .(1) Posts were available for the promotees within 50% meant for promotees. .(2) Even though initially the persons promoted as Asst. Jailors had not completed one year in the post of Chief Head Warder before such temporary period, they would have completed such one year before 1983. .(3) Such promotees should not suffer merely on account of the fact that there was no formal proceedings for promotion, even though eligible candidates were available. Accordingly, the Tribunal directed that such applicants before the Tribunal should be treated as seniors compared to the directly recruited Assistant Jailors. 6. In the Review Application, which was filed by the present writ petitioners, two contentions had been raised. Accordingly, the Tribunal directed that such applicants before the Tribunal should be treated as seniors compared to the directly recruited Assistant Jailors. 6. In the Review Application, which was filed by the present writ petitioners, two contentions had been raised. The main contention was that since the promotees were regularised with effect from March, 1985, they could not claim seniority over the direct recruits whose services were regularized even on 2. 1985. In this connection, the other contention was to the effect that the applicants before the Tribunal had not specifically claimed that their regularization should be deemed to have been made from an earlier date nor they had specifically prayed for quashing the order passed by the State where under they were regularized with effect from March, 1985. The Tribunal under the impugned judgment rejected such Review Application. The very same contentions have been reiterated in the present writ petition. .7. Even though the aforesaid contentions may prima facie appear to be justified, on deeper scrutiny and on the peculiar facts and circumstances of the present case, such submissions are not acceptable. It is not the case of the present petitioners that the promotees were allowed to be promoted on temporary basis in excess of 50% quota available for the promotees. The Tribunal has discussed the entire materials on record in the order passed in the Original Application dated 3. 1993 as well as in the Review Application disposed of on 14. 1994 and had come to the categorical conclusion that promotion of the promotees was within the permissible quota available for the promotees and not in excess of such quota. This finding has not at all been challenged. The Tribunal has also referred to the letter of the Government issued during the year 1992, which clearly indicated that appropriate proceedings during 1984 for the purpose of giving promotion had not been initiated, even though eligible candidates for promotion were available and, therefore, had recommended that such persons should be regularised with effect from the date when they had become eligible. By adopting the above logic, the Tribunal granted the relief to the applicants because the Tribunal found that the applicants who had continuously worked as Assistant Jailors without any break were not at fault and they could not suffer on account of apathy on the part of the appropriate authority for considering the question of promotion on regular basis. 8. Such conclusion of the Tribunal, which was based on peculiar facts and circumstances of the case, has also the support in judicial precedents. In many decisions of the Supreme Court it has been laid down that if a person has continued for a long period on officiating basis and subsequently such promotion is regularized, seniority of such person can be counted from the date of initial promotion or appointment, particularly in a case where such promotion is not in excess of the quota available for the promotees. [see (2000) 4 SCC 20 (T. VIJAYAN AND OTHERS v. DIVISIONAL RAILWAY MANAGER AND OTHERS) and (2003) 4 SCC 65 (A.G. SAINATH REDDY v. GOVERNMENT OF ANDHRA PRADESH AND OTHERS)] 9. In such view of the matter, since the order of the Tribunal effectuates substantial justice and cannot be said to be contrary to the principle laid down by the Supreme Court in Vijayans case, we do not think that such orders passed by the Tribunal in O.A.No.126 of 1991 dated 16. 1996 and subsequently in Review Appln.No.116 of 1996 dated 5. 1997 are required to be interfered with in exercise of jurisdiction under Article 226 of the Constitution. 10. Learned counsel appearing for the writ petitioners had submitted with much vehemence but less conviction, that the applicants before the Tribunal without challenging the legality of the order of regularisation with effect from March, 1985, had merely claimed seniority. .11. It is of course true that there was no specific prayer to the effect that regularisation should have been made with effect from an earlier date. However, a fair reading of the averments made in the Original Application clearly indicates that the entire tenor of the application was on the footing that regularisation should have been made with effect from the date on which such persons had become eligible. However, a fair reading of the averments made in the Original Application clearly indicates that the entire tenor of the application was on the footing that regularisation should have been made with effect from the date on which such persons had become eligible. Keeping in view the well settled principle of law that when basic averments are available on record, the relief or the prayer can be suitably moulded in order to effectuate substantial justice, we do not find any fault in the orders passed by the Tribunal. 12. Apart from the above, we find that out of 66 direct recruits, who were held to be juniors to the promotees, only three had chosen to file Review Application and pursue the matter further by filing the writ petition. The other direct recruits, some of them who were senior to the present writ petitioners, have neither filed any independent writ petition nor have been impleaded as respondents. The order of the Tribunal had become final as against those persons. If, at the instance of a few of such persons, without impleading all others, the order of the Tribunal would be modified, the matter which has become final between the applicants before the Tribunal and other respondents would also become uncertain. Moreover, keeping in view the fact that the main question is relating to seniority and most of the promotees who got the benefit of the promotion orders have in the meantime either retired or about to retire, it would not be appropriate on the part of the High Court to unsettle the matters after such a long lapse of time. 13. For the aforesaid reasons and more particularly keeping in view the peculiar facts and circumstances of the case, we decline to interfere with the orders passed by the Tribunal. The writ petition is accordingly dismissed. No costs.