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2015 DIGILAW 486 (MAD)

N. M. Velmurugan v. State of Tamil Nadu

2015-01-28

V.M.VELUMANI

body2015
Judgment :- The petitioner has come up with the writ petition to direct the respondents authorities to fix the seniority of the petitioner in the cadre of Inspector of Fisheries as per the Service Commission rank, assigned on 23.04.2002 and to promote the petitioner as Assistant Director of Fisheries from the date of his Juniors were promoted and confer all the consequential benefits, including the monetary benefits in the cadre of Inspector of Fisheries from the date on which his Juniors in the selection list were appointed. 2. The third respondent called for application to fill up 6 posts of Inspector of Fisheries. The petitioner applied for the said post during the period 1995 - 1996. The Selection was made based on Written Examination and viva voce. The petitioner secured 172.25 marks and he belongs to Backward Class. Out of 6 posts, two posts were reserved for Backward classes. Though the petitioner got 5th rank in all, he was not selected. Therefore, he has filed O.A.No.3602/1997 before the Tamil Nadu Administrative Tribunal. By order dated 07.09.1998 the Tamil Nadu Administrative Tribunal allowed O.A.No.3602 of 1997 and set aside the selection and directed the third respondent to re-do the selection and give appointment. 3. Against which, one of the aggrieved candidate namely Padmavathi filed a Writ Petition before this Court in W.P.(MD)No.18048 of 1998. By order, dated 08.10.2001, this Court confirmed the order of the Tribunal and disposed of the writ petition. Thereafter, the third respondent published the Revised List on 23.04.2002. The petitioner was placed as serial No.1 in the list of 6 candidates selected for the post of Inspector of Fisheries. 4. The petitioner was given appointment by the order dated 10.06.2002. The petitioner joined duty on 17.06.2002. In the seniority list, the petitioner was shown as serial No.136. The petitioner made a representation dated 23.04.2003 to the second respondent to refix the seniority in between the serial Nos.79 and 80. He made several representations and last such representation was made on 03.03.2009. The second respondent sent a reply dated 12.08.2009 that the representation of the petitioner is under consideration of first respondent. 5. The second respondent was proposing to fill up 26 posts of Assistant Director of Fisheries and called for the list of eligible candidates in the ratio of 1:2 i.e., 52 candidates from Field Officer. The second respondent sent a reply dated 12.08.2009 that the representation of the petitioner is under consideration of first respondent. 5. The second respondent was proposing to fill up 26 posts of Assistant Director of Fisheries and called for the list of eligible candidates in the ratio of 1:2 i.e., 52 candidates from Field Officer. According to the petitioner, his name did not find place in the list of second respondent, whereas one Tmt.Padmavathy and P.Pradeep Kumar were found in the list as Sl.No.10 and 11. The petitioner has stated that his name should have been included in between Sl.Nos.9 and 10. According to the petitioner, the service of Tmt.Padmavathy was not regularized. Ignoring his position as Sl.No.1 in the selection list and orders of this Court and Tribunal, the respondents are trying to fill up the vacancies in the post of Assistant Director of Fisheries by appointing his Juniors. 6. The petitioner further contended that seniority in the concerned post will be on the basis of the rank assigned by the Service Commission. They cannot deny the seniority. Under similar circumstances, another person namely, T.Ilamvazhuthi approached the Court and was given appointment in the same Department. They cannot deny the seniority of the petitioner. Therefore, the petitioner has filed the present writ petition for the relief sought for. 7. The respondents 1 and 2 filed counter affidavit denying the various averments made in the affidavit. The respondents stated that the petitioner joined duty only on 17.06.2002 as per the appointment order dated 10.06.2002 issued as per the orders of the Tribunal and this Court. Therefore, his seniority fixed at Sl.No.136 below P.Sekar, who joined duty as Inspector of Fisheries on 17.09.2001. The petitioner was placed as serial No.136 taking into account his date of joining. 8. One Lemoc Jeyakumar was promoted as Inspector of Fisheries on 12.08.1996 and one Sekar was promoted as Inspector of Fisheries on 17.09.2001. Lemoc Jeyakumar was placed as serial No.79 and P.Sekar placed as Serial No.135. On receipt of the representation from the petitioner, the second respondent has sent a proposal to the first respondent as to whether the seniority of the petitioner has to be fixed below Thiru Lamek Jayakumar (Sl.No.79) or below Thiru P.Sekar (Sl.No.135) after Sl.No.135. The said proposal is pending. On receipt of the representation from the petitioner, the second respondent has sent a proposal to the first respondent as to whether the seniority of the petitioner has to be fixed below Thiru Lamek Jayakumar (Sl.No.79) or below Thiru P.Sekar (Sl.No.135) after Sl.No.135. The said proposal is pending. The respondents 1 and 2 also stated that the preparation of panel in the post of Assistant Director of Fisheries is under process. Further it has been stated that juniors to the petitioner were not promoted to the post of Assistant Director of Fisheries. The service record of the petitioner also called for consideration of the preparation of the panel for promotion to the post of Assistant Director of Fisheries. Therefore, prayed for dismissal of writ petition. 9. The third respondent filed counter affidavit adopting the counter affidavit filed by first respondent and has stated that no specific averments made against third respondent and prayed for dismissal of the writ petition. 10. Heard Mr.V.Panneer Selvam, learned counsel for the petitioner, Mr.M.Murugan, learned Government Advocate for the respondents 1 & 2 and Mr.S.P.Maharajan, learned counsel for the third respondent. 11. The petitioner has given number of representation to refix his seniority taking into account on the basis of rank assigned by Service Commission. The second respondent has sent a proposal to the first respondent for refixing the petitioner's seniority. They have sought for the views of third respondent whether inter-se seniority of petitioner may be fixed below Thiru.Lamac Jeyakumar Sl.No.79 or below P.Sekar Sl.No.135. From proceedings of second respondent dated 22.09.2009, it is seen that he has called for service details of Inspector of Fisheries. The petitioner has been shown in Sl.No.52. The panel for promotion to the post of Assistant Director of Fisheries is under preparation. 12. The respondents have stated that no juniors to the petitioners had been promoted to the post of Assistant Director of Fisheries. The post of Assistant Director of Fisheries is a promotional post. The promotion to the post is merit cum seniority. Only when the merit is equal, the seniority will be taken into account for giving promotion. In the present case the service particulars of petitioner is also called for preparation of panel for promotion to the post of Assistant Director of Fisheries. Therefore, the contention of the petitioner that his juniors are sought to be promoted ignoring his seniority is contrary to the facts. In the present case the service particulars of petitioner is also called for preparation of panel for promotion to the post of Assistant Director of Fisheries. Therefore, the contention of the petitioner that his juniors are sought to be promoted ignoring his seniority is contrary to the facts. 13. Further contention of petitioner that service of Padmavathy is not regularised is also not correct. The first respondent on sympathetic ground decided to allow said Padmavathy as Inspector of Fisheries and issued order in G.O(Ms) No.106, Animal Husbandry Dairying and Fisheries (FS-2) Department, dated 22.10.2003 to continue in service by relaxing Rule 2(1) (Under Section 11) of the Tamil Nadu Fisheries Subordinate Service for no fault of her. 14. From the counter affidavit, it is seen that proposal for refixation of petitioner's seniority is under consideration. Further, it has been categorically stated that no junior to the petitioner had been promoted as Assistant Director of Fisheries. The service rendered by the petitioner is also called for consideration in preparation of panel for promotion to the post of Assistant Director of Fisheries. In view of the fact that the proposal for the re-fixation of the seniority is under consideration, the first respondent is directed to pass orders on the proposal sent by the second respondent for re-fixation of petitioner's seniority within four weeks from the date of receipt of a copy of this order on merits and in accordance with law. 15. With the above observations and directions, the writ petition is disposed of. No costs.