M. Syril Bernad v. Registrar, University of Madras, Chennai
2012-06-28
ELIPE DHARMA RAO, M.VENUGOPAL
body2012
DigiLaw.ai
Judgment :- 1. This writ appeal is directed against the order, dated 28.04.2011, made in W.P.No.30733 of 2006, whereby the writ petition, which was filed by the appellant challenging the order, dated 01.06.2006, passed by the respondent thereby fixing his seniority based on the date of his joining duty, i.e., on 28th December, 1983, was dismissed. 2. It is the case of the appellant that he entered service under the Respondent/University on 24.04.1981 on daily rate basis, as 'Temporary Clerk' and in similar fashion, the respondent has appointed 'Temporary Clerks' for the periods from 1978 to 1983 and thereafter, the said temporary appointments made in respect of 175 Temporary Clerks' including the appellant were made permanent in the year 1983, redesignating the said post as 'Temporary Junior Assistants' by issuing individual appointment orders. It is also the case of the appellants that by order dated 18.10.1985, the appointment of the appellant was regularised as 'Junior Assistant' against substantive post available in the respondent with effect from 16.11.1984, giving placement as S.No.127, in the seniority list of Junior Assistants out of 175 in between the names of S.No.126-Thiru D.Raja Rathinam and S.No.128-Thiru R.D.Santhanam and at the inception, 73 of them had been regularised and confirmed in the then existing vacancies with retrospective effect from 24.12.1983 and the rest of the Junior Assistants had been regularised subsequently on various dates as and when vacancies arose. 3. It is the further case of the appellant that thereafter, both the sets of Junior Assistants were clubbed together by preparing a common seniority list after obtaining individual declaration from all the 175 Junior Assistants that their respective seniority has been finalised with effect from 24.12.1983 pursuant to Syndicate Resolution, as per the meeting held on 27.04.1988 approving the decision of the Accounts and Audit Committee that the seniority of the Junior Assistants must be fixed with reference to their dates of appointment in the following order:- (a) 175 persons appointed with effect from 24.12.1983; (b) Tmt.S.T.Thamizharasi appointed with effect from 10.02.1984; and (c) 8 persons promoted from class IV with effect from 13.02.1984. 4. It is also the case of the appellant that his appointment as Junior Assistant was approved with effect from 24.12.1983 along with 175 Junior Assistants and the same became final under Law of University and individual undertakings have been obtained from all the 175 Junior Assistants.
4. It is also the case of the appellant that his appointment as Junior Assistant was approved with effect from 24.12.1983 along with 175 Junior Assistants and the same became final under Law of University and individual undertakings have been obtained from all the 175 Junior Assistants. It is the further case of the appellant that pursuant to the proceedings of the respondent dated 18.06.1988, the Syndicate of the University has approved the decision of the 'Accounts and Audit Committee' on 27.04.1988 holding that the seniority of the Junior Assistants must be fixed with reference to their date of appointments. It is also the case of the appellant that the seniority list of Junior Assistants are divided into two parts, i.e., the first batch of 73 Junior Assistants appointed with effect from 24.12.1983 was confirmed in the post of Junior Assistant with effect from 24.12.1983 and the second batch of 83 Junior Assistants appointed with effect from 24.12.1983 were regularised and confirmed in the post of Junior Assistant on various dates and in the said exercise, the appellant's name was included in the second batch as S.No.45 in between the names of S.No.44, Thiru D.Raja Rathinam and S.No.46, Thiru T.A.Chandrasekaran, confirming the service with effect from 28.04.1984. 5. It is the further case of the appellant that the respondent has included the name of Tmt.
5. It is the further case of the appellant that the respondent has included the name of Tmt. S.T. Thamizharasi, whose appointment was made on compassionate ground with effect from 10.02.1984 apart from including other persons promoted as Junior Assistants from Class IV category with effect from 13.02.1984, against which, the appellant and 54 other Junior Assistants have filed W.P.No.1354 of 1991 before this Court and as per order dated 30.09.1991, the said writ petition was allowed, setting aside the inclusion of Junior Assistants from Class IV cadre in between the name of 175 Junior Assistants and directing the respondent to give opportunity to the aggrieved 55 Junior Assistants and to re-fix the seniority list without including the names of 8 individuals promoted from Class IV cadre, pursuant to which, the respondent has refixed the seniority of Junior Assistants as per the order dated 09.11.1992, passed by the Syndicate to that effect that since the entire 175 batch was appointed before regularisation of 7 candidates, the 7 candidates ought to have been placed only after the eligible candidates of the 175 batch and therefore, the Committee suggested revision of date of regularisation/seniority as per the annexure enclosed. 6. It is also the case of the appellant that in the revised seniority list of 175 Junior Assistants, the appellant's name was correctly fixed as S.No.33 in between S.No.32, Raja Rathinam and S.No.34, Thiru T.A.Chandrasekar and said seniority list has become final, as is evident from the proceedings of the respondent, dated 14.05.1992, that the seniority list drawn as per the communication dated 14.12.1990 has been set aside. It is the further case of the appellant that thereafter, he was promoted as Assistant in December 1990 and the said promotion post was re-designated as Assistant Section Officer by an order dated 23.09.1994. 7.
It is the further case of the appellant that thereafter, he was promoted as Assistant in December 1990 and the said promotion post was re-designated as Assistant Section Officer by an order dated 23.09.1994. 7. It is also the case of the appellant that in the seniority list prepared on 01.01.1996, the names of the Junior Assistants were fixed according to their respective appointment dates and whereas, in the case of the appellant and the rest of the temporary appointees the date of entry was fixed as 23.12.1983 and with regard to the inter se seniority among the temporary appointees got regularised on 23.12.1983, were fixed according to their respective year of entry into service and among the same year appointees, seniority has been fixed according to their date of birth seniority and accordingly, the seniority list as on 01.01.1996 was correctly prepared giving his placement as Serial No.428. 8. It is the further case of the appellant that his next avenue of promotion is 'Section Officer' for which he is eligible depending upon the availability of vacancies and when the appellant perused the latest seniority list in order to find out his position for promotion, to his shock and surprise, his placement in the seniority list has been altered refixing his name at the bottom of 175 regularised candidates on 23.12.1983, without any notice or providing any opportunity of hearing and without calling for any objections by publishing the proposal of revision from the aggrieved individuals. It is also the case of the appellant that immediately after the knowledge of arbitrary revision, he brought the irregularity to the knowledge of the respondent on 13.04.2006 requesting him to correct the seniority list so as to enable him to occupy his avenue of promotion as Section Officer in the future available vacancy. While so, the respondent has issued the proceedings dated 01.06.2006, contending that the 175 batch staff be regularised from their date of appointments, i.e., 24.12.1983 against supernumerary posts and the staff who have joined later than 24.12.1983 be regularised on their respective dates of joining duty and the monetary benefits be given accordingly. Aggrieved by the said order, the appellant has filed W.P.No.30733 of 2006. 9.
Aggrieved by the said order, the appellant has filed W.P.No.30733 of 2006. 9. The learned single Judge, on consideration of the facts and circumstances of the case, dismissed the writ petition by holding that the petitioner/appellant has not shown any sufficient cause or reason to grant the relief and he has not been in a position to show that he had no knowledge of the resolutions of the Syndicate and the consequential arrangements made by the respondent with regard to fixation of seniority of 175 candidates in question and the writ petitioner, belatedly long after the seniority of the 175 candidates had been settled, has come forward to challenge the fixation of seniority. The learned single Judge also held that the appellant has not made the candidates, who would be adversely affected by the refixation of seniority, as party to the proceedings and on the ground of non-joinder of necessary parties also the writ petition was liable to be dismissed. 10. Aggrieved by the aforesaid order passed by the learned single Judge, the present writ appeal has been filed. 11. Heard the learned counsel for the appellant and the learned Counsel appearing for the respondent. 12. It is seen from the perusal of the materials that aggrieved of the order passed by the learned single Judge dismissing the writ petition filed against the fixation of seniority dated 01.06.2006 and the quash the said order and to direct the respondent to restore the writ petitioner's seniority as found in the seniority list prepared as on 01.01.1996, the present writ appeal has been filed. 13. The facts are not in dispute. Though a number of persons were working in the University on temporary basis from 1978 onwards along with the appellant, who is stated to be working from 24.04.1981, thereafter, the University has taken a decision to regularise the services of 175 persons, who are working on temporary basis in the University and passed a resolution fixing the date of appointment as 24.12.1983 to regularise their services in supernumerary posts created and the appellant is one among those 175 persons. The respondent/University has further taken a decision to fix the seniority of the persons, who were appointed later than 24.12.1983 and fixed their seniority from the date of their joining duty. Though the petitioner was appointed on 24.12.1983 on his own admission, he joined duty four days later.
The respondent/University has further taken a decision to fix the seniority of the persons, who were appointed later than 24.12.1983 and fixed their seniority from the date of their joining duty. Though the petitioner was appointed on 24.12.1983 on his own admission, he joined duty four days later. Then the Audit and Accounts Committee, in its meeting held on 30.03.1988, suggested to fix the seniority with reference to the date of appointment in the following manner:- (a) 175 persons appointed with effect from 24.12.1983; (b) Tmt.S.T.Thamizharasi appointed with effect from 10.02.1984; & (c) 8 persons promoted from class IV with effect from 13.02.1984. 14. It is also seen from the perusal of the records that the aforesaid decision was approved by the Syndicate on 27.04.1988 and it was communicated to all the employees on 18.06.1988. Subsequently, it was found that only 86 out of 175 batch were appointed on 24.12.1983 and the remaining 68 were confirmed and regularised after the nine Junior Assistants mentioned in Clauses (b) and (c). Thereafter, a resolution was passed on 17.11.1990 refixing the seniority of Junior Assistants in the following order:- (a) 86 out of 175 batch appointed with effect from 24.12.1983; (b) S.T.Thamizharai appointed with effect from 10.02.1984; and (c) Persons promoted as Junior Assistants with effect from 13.02.1984. d) 68 persons out of 175 batch appointed with effect from 24.12.1983 and regularised and confirmed on different dates starting from 31.03.1984. 15. It is further seen from the perusal of the materials that the aforesaid refixation of seniority was communicated to all the employees, by order dated 14.12.1990, against which, W.P.No.1354 of 1991 was filed before the High Court and the same was disposed of by order dated 30.09.1991 directing the University to call for objections and consider and thereafter pass an order. In compliance of the above, the Establishment Committee, which was held on 25.02.1992 resolved that 'since the entire 175 batch was appointed before regularisation of seven candidates, the seven candidates ought to have been placed only after the eligible candidates of the 175 batch and therefore, the Committee suggested revision of date of regularisation/seniority as per the annexure enclosed'. The same was approved by the Syndicate on 25.09.1992 and communicated to the staff on 09.11.1992. 16.
The same was approved by the Syndicate on 25.09.1992 and communicated to the staff on 09.11.1992. 16. It is also seen from the perusal of the materials that thereafter, a mass representation was made by the said 175 batch of staff to the effect that all of them be regularised from same date in the post of Junior Assistant even though part of them were appointed as substantive posts on subsequent dates. Accepting their representation, the Syndicate resolved that the 175 batch staff be regularised from the date of their appointments, i.e., 24.12.1983. Accordingly, the seniority was fixed and the same was communicated to all the employees. 17. At this juncture, it is to be pointed out that the appellant, without moving his finger during the said period, after a lapse of ten years only, has chosen to make a representation on 13.04.2006 and against the reply, dated 01.06.2006, to the said representation, he filed W.P.No.30733 of 2006 and the learned single Judge, apart from consideration of the merits of the case, on the question of delay of ten years, dismissed the writ petition, against which, the present writ appeal has been filed. 18. We have gone through the entire materials placed on record. The affidavit filed by the appellant is very specific and it has not mentioned the communications of the Syndicate from time to time with regard to the fixation of the seniority from the date of joining after excluding persons, who joined on 24.12.1983, out of 175 candidates and fixing the seniority from the date of joining, as per the resolution passed by the Syndicate and Establishment Committee. The petitioner has also not chosen to file any rejoinder to the averments made in the counter affidavit filed by the respondent as to whether he has received the communication of the Syndicate or not. The affidavit filed in the writ petition is very silent about the assertion made by the University. 19. In view of the above, we are of the considered opinion that promotions were effected to the writ petitioner/appellant not only based on the seniority, but also taking into consideration the subsequent development and also the decision of the High Court in W.P.No.1354 of 1991 dated 30.09.1991.
19. In view of the above, we are of the considered opinion that promotions were effected to the writ petitioner/appellant not only based on the seniority, but also taking into consideration the subsequent development and also the decision of the High Court in W.P.No.1354 of 1991 dated 30.09.1991. On consideration of the objections received from 55 persons, a decision was taken and accordingly, the seniority was fixed in respect of persons, who joined on 24.12.1983 and those appointed and joined subsequent to 24.12.1983 and that has become final in 1996 itself. Now, the appellant cannot file the writ petition, after a lapse of ten years, by stating that he is not aware of the revision of seniority and after the knowledge of arbitrary revision, he brought the irregularity to the knowledge of the respondent on 13.04.2006 requesting him to correct the seniority list so as to enable him to occupy his avenue of promotion as Section Officer in the future available vacancy. 20. Therefore, as rightly contended by the learned counsel for the respondent, the seniority list prepared in the year 1996 has become final and operative, and the statement made by the appellant, who is working in the same organisation, after a lapse of ten years, that he is not aware of the revision of seniority and for the first time when he had knowledge about the same, he made a representation on 13.04.2006, is unbelievable. Therefore, we are not able to appreciate the contentions raised by the appellant and we have no hesitation to agree with the order passed by the learned single Judge and no interference is warranted. 21. For the aforesaid reasons, the writ appeal fails and the same is dismissed. However, there will be no order as to costs.