S. Mari v. Government of Tamil Nadu Rep by its Secretary, Health & Family Welfare, Chennai Others
2022-08-29
D.KRISHNAKUMAR
body2022
DigiLaw.ai
JUDGMENT (Prayer: Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to calling for the records from the 2nd respondent pertaining to the cumulative regularization Ref No.6429/N2/1/2017 dated 24.07.2019 and quash the same and consequently to direct the 2nd respondent to include the petitioner name between G.Mary (CNL 6932) who was already retired and V.Uma Maheswari (CNL 6961) which contains the panel year 2004-2005 and thereafter insert her name in the present panel Ref.No. 43945/ N2/2022 dated 13.06.2022 for the post of Nursing Tutor Grade-I.) 1. The Writ petitioner was appointed as Staff Nurse in the year 1990. While in service, the petitioner with the permission of the first respondent studied B.Sc. (Nursing) and completed in the year 2004 and thereby she has become eligible for the post of Nursing Tutor Grade II in the year 2004 itself. The petitioner's name was listed in the serial No.33 (CNL No.6953) instead of fixing her name between one G.Mary (CNL 6932) who was already retired and V.Uma Maheswari (CNL 6961) in the panel of the year 2004-2005. However, the second respondent has issued promotion and posting order to the petitioner for the post of Nursing Tutor Grade II on 6.11.2007 though the petitioner has become eligible for the said post in the year 2004 itself. The petitioner has made several representations to the respondents 2 and 3 regarding seniority of the petitioner from 2004-2005. In the meantime, the petitioner also completed M.Sc. (Nursing) in the year 2013. While so, the second respondent regularised the services for the post of Nursing Tutor Grade II from the Panel year 1985 to 2016-2017. However, the petitioner's name was found in the list of regularised Nursing Tutor Grade II for the panel year 2006- 2007. Again, the third respondent prepared a panel for the post of Nursing Tutor Grade II for the year 2022-2023 and the same was issued by proceedings in Ref.No.43945/N2/2022 dated 13.6.2022. In the present list also, the petitioner's name was in the same place without any change even though the petitioner's date of birth is senior to other members in the panel. Therefore, challenging the impugned order dated 13.6.2022, the petitioner has filed the instant writ petition before this Court to revise the seniority of the petitioner. 2.
In the present list also, the petitioner's name was in the same place without any change even though the petitioner's date of birth is senior to other members in the panel. Therefore, challenging the impugned order dated 13.6.2022, the petitioner has filed the instant writ petition before this Court to revise the seniority of the petitioner. 2. The learned Additional Government Pleader appearing for the respondents has submitted that the petitioner seeks seniority for promotion to the post of Nursing Tutor Grade II for the year 2004-2005. The seniority for the said post was already fixed in the year 2004 and the same was settled and at this juncture, after the lapse of 18 years, the petitioner cannot seeks to revise the said seniority and therefore, interference of this Court is not warranted. 3. Heard the rival submissions of the parties and perused the materials available on record. 4. Pursuant to the promotion granted to one Uma Maheswari for the post of Nursing Tutor Grade II by the respondent in the year 2006, the petitioner has made representation to the respondents 2 and 3 to revise the seniority, however, the petitioner has not persuaded the request for revision of seniority. Now, after the lapse of 18 years, the petitioner has approached this Court to revise the seniority already drawn in the year 2004 itself. 5. As per Rule 35(f) of the Tamil Nadu State and Subordinate Services (Disciplinary & Appeal) Rules, the petitioner has to challenge the seniority drawn for the year 2004-2005 for promotion to the post of Nursing Tutor Grade II, within a period of three years from the date of panel drawn by the respondent. Now, after the lapse of 18 years, the petitioner cannot challenge the seniority drawn for promotion to the post of Nursing Tutor Grade II for the year 2004-2005 which already settled. Further, the petitioner has not impleaded the alleged junior in the present writ petition. 6.
Now, after the lapse of 18 years, the petitioner cannot challenge the seniority drawn for promotion to the post of Nursing Tutor Grade II for the year 2004-2005 which already settled. Further, the petitioner has not impleaded the alleged junior in the present writ petition. 6. At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court in Maloon Lawrence Cecil D.Souza v. Union of India [ AIR 1975 SC 1269 ] wherein it was held that “taking up of old matters like revision of seniority after a long time is likely to result in administrative complications and difficulties; it would therefore appear to be fair in the interest of smoothness and efficiency of administration that the settled matters should not be made unsettled and it should be given a quietus after the lapse of some time”. 7. The Hon'ble First Bench of this Court in the decision in S.Somachari and L.Geetha v. Union of India [Order dated 15.04.2008 in W.P.Nos.7200 of 1999 etc., batch] held as follows: “5. Firstly, as apparent, the seniority list had been prepared as way back in May, 1989. Law is well settled that in the matters relating to seniority, an aggrieved party is expected to come to the Court as expeditiously as possible without avoidable delay and the matters which are remained settled for a long period should not be allowed to unsettle after a long lapse of time. 5.1. In the present case, the petitioners approached the Tribunal for the first time by filing Original Applications in 1996 or 1997, after about 7 to 8 years. Learned counsels for the petitioners submitted that representations have been made and they have been waiting for the reply from the Government. In such matters, merely by making a representation, an aggrieved employee cannot wait quietly for a long period. If no reply was received within a reasonable period, say six months or one year, obviously the person has to approach the Court to ventilate his grievance. 5.2. The Supreme Court, further, in the judgment relating to the State of Tamil Nadu v. Seschalam (2007 AIR SCW 7750) held that law leans in favour of those who are alert and vigilant. Speaking for the Bench, S.B. Sinha, J. in paragraph 11 had observed as follows :- “11.
5.2. The Supreme Court, further, in the judgment relating to the State of Tamil Nadu v. Seschalam (2007 AIR SCW 7750) held that law leans in favour of those who are alert and vigilant. Speaking for the Bench, S.B. Sinha, J. in paragraph 11 had observed as follows :- “11. Some of the respondents might have filed representations but filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and / or laches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.” 8. In Union of India & Others v. Chaman Rana [2018 SCC Online SC 294], the Hon'ble Apex Court observed as under: “8. Manifestly, the cause of action first arose to the respondents on the date of initial supersession and again on the date when rejection of their representation was communicated to them, or within reasonable time thereafter. Even if the plea based on Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] be considered, the cause of action based thereon accrued on 12- 5-2008. There has to be a difference between a cause of action and what is perceived as materials in support of the cause of action. In service matters, especially with regard to promotion, there is always an urgency. The aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter as third-party rights accrue in the meantime to those who are subsequently promoted. Such persons continue to work on the promotional post, ensconced in their belief of the protection available to them in service with regard to seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also.
Such persons continue to work on the promotional post, ensconced in their belief of the protection available to them in service with regard to seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also. Additionally, any directions at a belated stage to consider others for promotion with retrospective effect, after considerable time is bound to have serious administrative implications apart from the financial burden on the Government that would follow by such orders of promotion. 9. As far back as in P.S. Sadasivaswamy v. State of T.N. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22] , considering a claim for promotion belated by 14 years, this Court had observed that a period of six months or at the utmost a year would be reasonable time to approach a court against denial of promotion and that it would be a sound and wise exercise of discretion not to entertain such claims by persons who tried to unsettle the settled matters, which only clog the work of the court impeding it in considering genuine grievances within time in the following words: (SCC p. 154, para 2) “2. … A person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the court and impedes the work of the court in considering legitimate grievances as also its normal work.
The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal.”(emphasis supplied) 16. In the facts and circumstances of the present case, any direction to consider retrospective promotion of the respondents at such a belated passage of time of over 17 to 20 years, would virtually bring a tsunami in the service resulting in administrative chaos quite apart from the financial implications for the Government. The order of the High Court is therefore held to be unsustainable and is set aside.” 9. In the light of the decisions rendered by the Hon'ble Supreme Court cited supra, and Rule 35(f) of the Tamil Nadu State and Subordinate Services (Disciplinary & Appeal) Rules, this Court find no merit in the writ petition and consequently, the writ petition is liable to be dismissed. 10. Accordingly, the writ petition stands dismissed. No costs. Connected miscellaneous petition is closed.