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The District Elementary Educational Officer, Karur District, Karur and Another Vs. M. Balasubramani and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberW.A.(MD) Nos. 1182 & 541 of 2016 & C.M.P.(MD)Nos. 7646 & 8338 of 2016
Judge
AppellantThe District Elementary Educational Officer, Karur District, Karur and Another
RespondentM. Balasubramani and Another
Excerpt:
.....been reverted from the post of elementary school head master, sengalivalasu, aravakurichi union, karur district to the post of secondary grade teacher at panchayat union middle school, a.venkatapuram, aravakurichi union. 3.2. it is the case of the writ petitioner that he was appointed as a secondary grade teacher on consolidated pay at the panchayat union primary school, periyamalaiyandipatti, krishnarayapuram union, karur district on 20.07.2004. though his initial appointment was on consolidated pay, he was brought under the time scale of pay on 01.06.2006 and he was transferred to aravakurichi union, karur district on 09.01.2006. it is further submitted that the first respondent published a seniority list of secondary grade teachers for promotion to the post of primary school head.....
Judgment:

(Prayer :Writ Appeal filed under Clause 15 of Letters Patent to set aside the order, dated 10.03.2016, made in W.P.(MD) No.20615 of 2015.)

Common Judgment

M. Sathyanarayanan, J.

1. These Writ Appeals are filed by the third respondent as well as the Official respondents 1 and 2, aggrieved by the order dated 10.03.2016 made in W.P.(MD)No.20615 of 2015. Hence, both the Writ Appeals are disposed of by this common judgment.

2. This Court, for the sake convenience, is adopting the array of parties as in the impugned order passed in W.P.(MD)No.20615 of 2015, dated 10.03.2016.

3. The facts lead to the filing of these Writ Appeals briefly narrated are as follows:

3.1. The Writ Petitioner herein filed the said Writ Petition praying for quashment of the order of the first respondent dated 09.11.2015, in and by which, he has been reverted from the post of Elementary School Head Master, Sengalivalasu, Aravakurichi Union, Karur District to the post of Secondary Grade Teacher at Panchayat Union Middle School, A.Venkatapuram, Aravakurichi Union.

3.2. It is the case of the Writ Petitioner that he was appointed as a Secondary Grade Teacher on consolidated pay at the Panchayat Union Primary School, Periyamalaiyandipatti, Krishnarayapuram Union, Karur District on 20.07.2004. Though his initial appointment was on consolidated pay, he was brought under the time scale of pay on 01.06.2006 and he was transferred to Aravakurichi Union, Karur District on 09.01.2006. It is further submitted that the first respondent published a seniority list of Secondary Grade Teachers for promotion to the post of Primary School Head Master on 01.01.2015 and he was placed at Serial No.38 and another panel was published for the post of Elementary School Head Master as on 01.01.2015, in which, the petitioner was at Serial No.2 and the third respondent viz., S.Senthilkumar was placed at Serial No.20.

3.3. It is further stated by the petitioner that subsequently, the petitioner was promoted to the post of Head Master at Panchayat union Primary School vide proceedings of the first respondent, dated 17.08.2015 and he joined in the said post on 19.08.2015 and he was working in the said post. The petitioner came to understand that the third respondent submitted a representation dated 30.03.2015 to the Official respondents and other Authorities to regularise his services with effect from 03.01.2002 and also confirm the seniority and extend the benefits granted as that of one Kulandhai Rosery Jegan, who was junior to the third respondent in the employment seniority as well as the date of appointment. The third respondent subsequently filed a writ petition in W.P.(MD)No.6177 of 2015 on the file of this Court praying for issuance of Writ of Mandamus directing the first respondent viz., the Secretary to School Education, Government of Tamil Nadu, Chennai to regularise his service as Secondary Grade teacher with effect from 03.01.2002, as was granted by the first respondent in his proceedings dated 21.02.2014 in respect of the similarly placed person.

This Court disposed of the Writ Petition by directing the first respondent to consider the representation of the third respondent dated 30.03.2015 and pass orders on merits and in accordance with law within a stipulated time, after affording the opportunity of hearing.

3.4. The petitioner, to his shock and surprise, has received the impugned proceedings of the first respondent dated 09.11.2015 stating that he has been reverted from the post of Elementary School Head Master to the post of Secondary Grade Teacher at Panchayat Union Middle School, A.Venkatapuram, Aravakurichi Union, in compliance of the order passed by this Court in W.P.(MD)No.6177 of 2015. Further, the consequential order was also passed leaving from the said post with a further direction to join the reverted post vide proceedings dated 13.11.2015. The Writ Petitioner, challenging the legality of the proceedings of the first respondent dated 09.11.2015 and the proceedings of the second respondent dated 13.11.2015, had filed the writ petition.

3.5. The said writ petition was entertained and notices were ordered. The first respondent had filed counter affidavit stating among other things that the petitioner placed at Serial No.38 in the list of promotion to the post of Primary School Head Master and his name was found place in Serial No.2 in the cadre of Elementary School Head Master and the third respondent was placed at Serial No.20. It is further stated by the first respondent that the third respondent was appointed as Secondary Grade Teacher in a Panchayat Union Primary School on 28.09.2004 and brought under the time scale of pay on 01.06.2006 and since his representation to treat on par with Kulandhai Rosary Jegan has not been considered by the Official respondents, he filed a writ petition in W.P.(MD)No.6177 of 2015 and taking into consideration all the relevant factors only, the third respondent's seniority was revised and his services were regularised with effect from 03.01.2002.

3.6. Insofar as the challenge made by the writ petitioner to the order of reversal and the other consequential proceedings, the first respondent took a stand that even in his promotion order dated 17.08.2015, it has been clearly indicated that his promotion is purely temporary and for want of vacancy also, he can be reverted without any notice in view of Rule 8(a) of the Tamil Nadu State and Subordinate Service Rules and in the light of the same, the petitioner need not be put on notice and prayed for dismissal of the writ petition.

3.7. The third respondent filed his counter affidavit and took a stand that since the seniority was District-wise and there was a small number of persons registered in the Employment Exchange of Karur District, the persons from other Districts got registered for employment and in that process, the appointment got delayed.

3.8. The third respondent further stated that the candidates who got registered subsequent to him in Karur District upto 05.10.2000 under BC non-priority were given appointment with effect from 03.01.2002, in spite of the fact that his registration date was on 14.10.1999 and he was not considered for appointment on the wrong premise that he did not belong to Karur District and subsequently, he had got clear.

3.9. It is further submitted by the third respondent that he was appointed as Secondary Grade Teacher on 28.09.2004 on consolidated pay and he was brought under the time scale of pay on 01.06.2006 and he was transferred to Aravakurichi Union on 09.01.2006. The third respondent further submitted that since the writ petitioner on his own volition, was transferred to Aravakurichi Union on 09.01.2006, he should be placed below him as he was junior to him.

3.10. The third respondent also took a stand that the writ petitioner filed a writ petition in W.P.(MD)No.6794 of 2010 to consider his representation dated 04.01.2010 to regularise his services with that of the year 2003-2004 and this Court, vide order dated 11.03.2013, had directed the Director of Elementary Education to consider his representation and in compliance of the said order, the first respondent issued G.O.(3D)No.35 School Education Department, dated 10.04.2014, regularising the services of the writ petitioner with effect from 20.07.2004. Though he claimed that he should be regularised with effect from 03.01.2002, however for the reasons best known to him, he did not choose to challenge the above said Government Order.

3.11. According to the third respondent, his case is also similarly placed as that of J.Kulandhai Rosary Jegan, who got his services regularized with effect from 03.01.2002, in pursuance of the order dated 22.07.2011 passed in W.P.No.13155 of 2007. Accordingly, he submitted a representation and since it failed to invoke any kind of response from the respondents, he filed a writ petition in W.P.(MD)No.6177 of 2015 and this Court, vide order dated 21.04.2015, has directed the first respondent therein to consider the representation of the petitioner and pass appropriate orders on merits and in accordance with law after affording an opportunity of personal hearing and since the second respondent, after due and proper application of mind, has passed the impugned proceedings, it cannot be faulted with and hence, he prayed for the dismissal of the writ petition.

3.12. The learned Judge, after taking into consideration the materials placed before the Court and upon hearing the rival submissions made by either side, had expressed a view that the first respondent has misconstrued the order dated 21.04.2015 passed in W.P.(MD)No.6177 of 2015, as if there was a positive direction to promote the third respondent and therefore, the said order has been passed without application of mind. The learned Judge further found that the impugned order which is consequential one, has been passed without notice to him and therefore, it warranted interference and accordingly, allowed the writ petition and quashed the impugned order of the first respondent dated 09.11.2015 and the consequential order of the second respondent dated 13.11.2015.

3.13. Challenging the legality of the same, the third respondent in the writ petition has filed the Writ Appeal in W.A.(MD)No.541 of 2016 and aggrieved by the same order, the Official Respondents have filed the Writ

4. Mr.M.Ajmalkhan, learned Senior Counsel appearing for the appellant in W.A.(MD)No.541 of 2016 made the following submissions:

4.1. The appellant/third respondent got registered in the Employment Exchange on 14.10.1999, whereas the first respondent/writ petitioner got registered on 23.11.2001. Admittedly, at the relevant point of time, the employment seniority list was the primordial consideration and on that ground also, he is entitled to have a march over the first respondent/writ petitioner.

4.2. In the year between 2001 and 2002, there was a recruitment and since the persons belonging to other Districts got themselves registered in Karur District, on the ground that few of the persons were registered in the Karur District and it was the subject of matter of scrutiny and also challenge in a batch of cases in W.P.Nos.15307 of 2000 etc. By a common order dated 08.08.2001, a Single Bench of this Court had cancelled the registration certificates and residential certificates with a further direction to the District Collector or any other officer authorised by him for verification of the residential certificates after giving notice and opportunity to the concerned persons. On that account also, he got appointed below them, for which, he cannot be blamed.

4.3. The attention of this Court was also drawn to the common order dated 27.01.2006 made in Contempt Petition Nos.1012 to 1020 of 2003, wherein this Court has ordered that since the order of the appointment of any junior is prejudicial to the claim of any senior person, necessary remedial action should be taken and it was also obviously unjust to deny them the benefit of notional increments till the date of actual appointment and very many persons similarly placed like that of the petitioner viz., T.Elango, Kandasamy, Rama and Kulandai Rosary Jegan had approached this Court seeking fixation of seniority and notional increment from 03.01.2002 and positive orders came to be passed and in some cases, on account of non-compliance of the orders, contempt petitions were filed and all the orders have been complied with and therefore, the petitioner was constrained to submit a representation to treat on par with Kulandai Rosary Jegan and since the respondents had failed to invoke any kind of response, he filed a writ petition in W.P.(MD)No.6177 of 2015 and it was disposed of by this Court with a direction to consider and pass appropriate orders on merits and in accordance with law after affording an opportunity of personal hearing and accordingly, the first respondent, after taking note of the earlier orders and the relevant records and due and proper application of mind, has carefully passed the impugned order and it cannot be found faulted with.

4.4. The learned Senior Counsel appearing for the appellant/third respondent has also invited the attention of this Court to the Form B of seniority list of papers, Aravakurichi Union. In that, the appellant/third respondent was placed at Serial No.19 wherein the writ petitioner was placed at Serial No.25 and the said seniority list was not put to challenge and even otherwise, since he voluntarily himself got transferred to Aravakurichi Union on 09.01.2006, his seniority should be placed below him as he was junior to him.

4.5. Insofar as the stand taken by the writ petitioner that the first respondent viz., the Secretary to School Education Department, Tamil Nadu Government, Chennai, ought to have passed orders in compliance of the order made in W.P.(MD)No.6177 of 2015, the learned Senior Counsel appearing for the appellant/third respondent would submit that as per Rule 3 of the Tamil Nadu Elementary Educational Subordinate Service Rules, the District Elementary Educational Officer is having jurisdictional power and hence, there is nothing wrong on the part of the District Elementary Educational Officer, Karur, to pass the impugned order.

4.6. Insofar as the reversion is concerned, the learned Senior Counsel appearing for the appellant/third respondent has invited the attention of this Court to Rule 8(a) of the Tamil Nadu State and Subordinate Service Rules and would submit that for the purpose of reversion under the State Rules, the writ petitioner need not be put on notice and even his promotion is disputed by seniors, for want of vacancy, he can be reverted without putting the writ petitioner on notice.

4.7. It is also contended by the learned Senior Counsel appearing for the appellant/third respondent that even for the sake of arguments that the order dated 09.11.2015 passed by the District Elementary Educational Officer, Karur District, fixing the seniority on the appellant/third respondent, reverting the writ petitioner, was not served on him and subsequently, in the form of counter affidavit, it was brought to the knowledge of the writ petitioner, however, no steps had been taken to amend the prayer in the writ petition and no order of remand has also been sought for. As per the Employment Exchange Seniority, the appellant/third respondent was the senior and by virtue of the fact that the writ petitioner got himself transferred on his volition to Aravakurichi Union on 09.01.2006, he should be placed below him as he was junior to him. There is no need to remand the matter.

4.8. The learned Senior Counsel appearing for the appellant/third respondent, in support of his contentions, would place reliance on the following decisions:

(i) Ashok Kumar Sonakar Vs. Union of Indian and Others reported in (2007)4 Suprem C Ca 54;

(ii) Om Metal Infra Proj Ltd. repre by its Au Signatory a O Vs. Un of Ind repre by its S a O reported in 2015(1) CWC 456; and

(iii) Stat of Utt Pra a O Vs. Arvin Kum Srivastava a O reported in (2015)1 Suprem C Ca 347.

5. Mr.R.Velmurugan, learned Government Advocate appearing for the Official Respondents / appellants in W.A.(MD)No.1182 of 2016 submitted that in the light of Rule 8(a) of the Tamil Nadu State and Subordinate Service Rules, for the purpose of reversion under the State Rules, the writ petitioner need not be put on notice for passing the impugned order of reversion. It is further submitted by the learned Government Advocate that the learned Judge failed to consider that the order of reversion came to be passed without putting notice on the writ petitioner and hence, the matter should have been remanded and hence, he prayed for remanding the matter.

6. Mr.B.Saravanan, learned Counsel appearing for the first respondent/writ petitioner would submit that though the impugned order dated 09.11.2015 came to be termed as an order of reversion, it is virtually an order of revising the seniority and admittedly, in the said impugned proceedings, the earlier order of the District Elementary Educational Officer, Karur District, dated 09.11.2015, was not even referred to. Further, he has drawn the attention of this Court to the seniority list, dated 01.01.2015, in respect of Aravakurichi Panchayat Union, which is Document No.17 in the additional typed set of papers filed on behalf of the appellant and would submit that as per the said seniority list, the writ petitioner is placed at serial No.2, whereas the third respondent is placed at serial No.20 and by virtue of the impugned order dated 09.11.2015, the seniority has been altered without putting him on notice and hence, on that sole ground, it warrants interference.

7. The learned Counsel for the first respondent would further submit that earlier similar orders, have no application to the case of the third respondent for the reason that in the year 2001, two steps of recruitment came to be made and the writ petitioner was evicted in the first step and the third respondent got recruitment in the first set of recruitment on the ground that he is belonging to the nativity of Karur District and hence, he cannot be claimed seniority over and above him and therefore, the learned Judge, after due and proper application of mind to the entire facts and circumstances, has allowed the writ petition and such a well considered finding may not be interfered with by this Court by exercising writ jurisdiction and hence, prayed for dismissal of both writ appeals.

8. This Court has paid it's best attention to the rival submissions and also perused the materials before this Court as well as the decisions relied upon by the learned Senior Counsel appearing for the appellants in W.A. (MD) No.541 of 2016.

9. The primordial questions that arise for consideration are: (i) whether the impugned proceedings of the first respondent viz., the District Elementary Educational Officer, Karur District is only an order of reversal or an order of reversion of seniority? And (ii) whether the order of allowing the writ petition is sustainable?

10. It is not in dispute that the Employment Exchange seniority of the third respondent was dated 14.10.1999, which was earlier to that of the writ petitioner dated 23.11.2001.

11. It is also to be noted at this juncture that the candidates from other Districts got themselves registered with Karur District on the ground that only few persons got registered and it was the subject matter of litigation in W.P.No.15307 of 2000 and etc., batch of cases and by order dated 08.08.2001, this Court cancelled the registration certificates as well as the residential certificates and remanded the matters to the District Collector or any other Officer authorised by him for verification of the residential certificate after giving notice and opportunity to the concerned persons and therefore, there was a delay in appointing the petitioner.

12. The writ petitioner also did not dispute the facts that on account of his request, there was a transfer to Aravakurichi Panchayat Union on 09.01.2006 and since the unit-wise seniority was followed to fill up the vacancy at the relevant point of time, he should take his seniority below the writ petitioner.

13. In Form-B seniority list of Secondary Grade Teachers drawn on 01.01.2015 in respect of Aravakurichi Panchayat Union, which is Document No.16 in the additional typed set of papers filed on behalf of the appellant in W.A.(MD)No.541 of 2016, the third respondent was placed at Serial No.19 and the writ petitioner was placed at Serial No.25. However, in Document No.17, which is the seniority list of Secondary Grade Teacher eligible for promotion to the post of Head Master, the writ petitioner was placed in Serial No.2 and the third respondent was placed in Serial No.20 and admittedly, the said list has not been put to challenge. The third respondent claiming that he is similarly placed as that of J. Kulandai Rosary Jegan, writ petitioner in W.P.No.13196 of 2007, submitted a representation dated 30.03.2015 to the Official respondents and since it was not considered by them, he filed a writ petition in W.P.(MD)No.6177 of 2015 and this Court, vide order dated 21.04.2015, has directed the first respondent viz., the Secretary, Government of Tamil Nadu, School Education Department, Chennai, to consider and dispose of his representation within a stipulated time frame, after affording opportunity of being heard and pass orders on merits and based on the available records after recording the absence of the party/parties and in compliance of the same, two orders dated 09.11.2015 came to be passed by the District Elementary Educational Officer, Karur District.

14. A perusal of the first order dated 09.11.2015, which is available in page No.134 of the additional typed set of papers filed by the appellant in W.A.(MD)No.541 of 2016, would disclose among other things that though this Court directed the concerned Officials to pass orders on merits and in accordance with law, after merely extracting the operative portion of the order and further it has been stated that as per the above said order, the seniority of the petitioner has been revised from 01.01.2013 and he was promoted as Elementary School Head Master, Sengalivalasu, Aravakurichi Panchayat Union and the writ petitioner was reverted to the post of Senior Grade Teacher, A.Venkatapuram, Aravakurichi Panchayat Union. Admittedly, the said order has not been communicated to the writ petitioner. The District Elementary Educational Officer, Karur District, on the very same day has passed another proceedings by extracting the operative portion of the order made in W.P.(MD)No.6177 of 2015 and stated that in compliance of the order dated, the third respondent has been upgraded to the seniority and consequently, the writ petitioner is reverted to the said post. The second respondent also passed the consequential order dated 13.11.2015 relieving him from the post of Head Master with a direction to join in the transferred post.

15. A perusal of the above said two proceedings of the District Elementary Educational Officer, Karur District, dated 09.11.2015, would disclose that the said official formed an opinion as if there was a positive direction to accord promotion to the third respondent. However it is not so. In fact, in both the proceedings, the operative portion of the order passed in W.P.(MD)No.6177 of 2015 has been extracted and therefore, this Court is of the view that the said Official has not properly applied her mind to the contents of the order passed in the said writ petition.

16. It is also to be noted at this juncture that in the above said two proceedings, the seniority list of eligible Elementary School Head Masters has been drawn on 01.01.2015 in respect of Aravakurichi Panchayat Union and admittedly, the writ petitioner was placed in Serial No.2 and the third respondent was placed at Serial No.20. It is a settled position of law that the seniority list is a civil right. (In Indu Shekhar Singh and Others Vs. State of U.P., and Others reported in (2006)8 Suprem C Ca 129) and admittedly, the writ petitioner has not been put on notice while revising the seniority list. The alteration of the seniority list by virtue of the above said two proceedings dated 09.11.2015 causes the writ petitioner grave civil consequences and in all fairness, the District Elementary Educational Officer, Karur District, ought to have put the writ petitioner on notice. However, she has failed to do so.

17. The primordial submission of the learned Senior Counsel appearing for the appellant/third respondent in the Writ Appeal No.541 of 2016, is that even if the matter is remitted back, it is only an empty formality and in Ashok Kumar Sonakar Vs. Union of Indian and Others reported in (2007)4 Suprem C Ca 54; in Om Metal Infra Proj Ltd. repre by its Au Signatory a O Vs. Un of Ind repre by its S a O reported in 2015(1) CWC 456; and in Stat of Utt Pra a O Vs. Arvin Kum Srivastava a O reported in (2015)1 Suprem C Ca 347 it has been considered.

18. In the considered opinion of this Court, the civil right of the petitioner in the form of seniority cannot be altered to his detriment without affording him any opportunity in any event cannot be termed as useless formality and before revising the same, the writ petitioner ought to have put on notice and admittedly, it was not done so.

19. This Court has also posed a question to the learned Government Advocate who is appearing for the appellant in W.A.(MD)No.1182 of 2016 and on instructions, he would submit that before passing the impugned proceedings, dated 09.11.2015, the writ petitioner was not put on notice.

20. Insofar as the order of reversion is concerned, the learned Senior Counsel appearing for the appellant in W.A.(MD) No.541 of 2016, is right in saying that as per Rule 8(a) of the Tamil Nadu State and Subordinate Service Rules, the writ petitioner need not be put on notice and even in the order of promotion also, it was specifically made clear that in the event of reversion for want of vacancy, he need not be put on notice. However, the seniority list is revised and the petitioner is placed above the third respondent by virtue of the impugned proceedings and without putting him on notice and as such cannot be sustained. The learned Judge, though observed that the order of reversion visits the petitioner with grave consequences, have not taken into account the said material fact.

21. In any event, the impugned proceedings were interfered with on technical ground and hence, the learned Judge ought to have remanded the matter to the District Elementary Educational Officer, Karur District, for fresh consideration after putting the concerned parties on notice. However, allowed the writ petition and therefore, to that extent, the impugned order passed in the writ petition, warrants interference.

22. In the result, both the Writ Appeals are partly allowed and the impugned order allowing the writ petition insofar as in not remanding the matter for fresh adjudication to the District Elementary Educational Officer, Karur District, is set aside and the matter is once again remitted to the District Elementary Educational Officer for fresh consideration and adjudication and the said Officer is directed to put the writ petitioner viz., M.Balasubramani and the third respondent viz., S.Senthilkumar on notice and after affording reasonable opportunity of personal hearing, shall pass orders on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this judgment and communicate the decision taken to them.

23. At this juncture, it is represented that the third respondent viz., S.Senthilkumar is holding the post of Head Master of Elementary School of Sengalivalasu, Aravakurichi Panchayat Union, Karur District and the writ petitioner viz., M.Balasubramanian is holding the post of Secondary Grade Teacher, Panchayat Union Middle School, A.Venkatapuram, Aravakurichi Panchayat Union, Karur District and till such time, the District Elementary Educational Officer passes the orders in terms of the directions as per the judgment passed in these Writ Appeals, status quo as on date shall continue. No costs. Consequently, the connected Civil Miscellaneous Petitions are closed.


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