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2015 Supreme(Mad) 3610

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
V. Ramasubramanian, N. Kirubakaran, JJ.
District Elementary Educational Officer, Pudukkottai and others - Appellants
Versus
M. Kamala and others - Respondents
Writ Appeal (MD) No. 35 of 2013 and M.P. (MD) Nos.1 of 2013 & 1 of 2014 and Writ Appeal (MD) No. 1295 of 2013 & M.P. (MD)No. 4 of 2013
Decided on : 16-12-2015

Advocates:
Advocate Appeared:
For the Appellants : V.R. Shanmuganathan, Spl. Govt. Pleader, V. Panneer Selvam
For the Respondent: A. Velan, V.R. Shanmuganathan, Spl. Govt.Pleader.
For Caveator :D. Anbarasan, Advocate.

Headnote:

General Rules - Rule 35(f) - Tamil Nadu State and Subordinate Services - Section 35(f) - Promotion to post of Graduate Assistant - Challenging said order and also claiming - Writ petition filed by first respondent in these writ appeals and directing State to restore her seniority and also grant promotion to post of Middle School Headmistress - Heard learned Special Government Pleader appearing for State and learned Counsel appearing for appellants in other writ appeal and learned Counsel appearing for first respondent/writ petitioner - First respondent/writ petitioner was appointed as Secondary Grade Teacher in Elementary School at Panchayat Union -Held, There are two types of expressions used in Rule 35(f) - First expression used in Rule is Revision of Seniority - Second expression used in Rule is cases of rectifying orders resulting from mistake of fact - Observations contained of decision of Honorable Division Bench of this Court in Director of Elementary Education and Others goes completely contrary to expression in Rule 35 - Therefore with great respect court have to point out that statement of law of decision in Director of Elementary Education and Others is not in accordance with language of rule - Appeal allowed.

JUDGMENT :

V. Ramasubramanian, J.

Both these Writ Appeals, one by the State and another by private parties, are directed against the order passed by the learned Judge, allowing the writ petition filed by the first respondent in these writ appeals and directing the State to restore her seniority and also grant promotion to the post of Middle School Headmistress.

2. Heard Mr. VR.Shanmuganathan, learned Special Government Pleader appearing for the State and Mr. V. Panneer Selvam, learned Counsel appearing for the appellants in other writ appeal and Mr. A. Velan, learned Counsel appearing for the first respondent/writ petitioner.

3. The first respondent/writ petitioner was appointed as Secondary Grade Teacher on 16.08.1983, in the Elementary School at Annavasal Panchayat Union. On 05.12.1990, she was transferred on her request to Municipal Middle School, Machuvadi at Pudukkottai.

4. At the time when the first respondent/writ petitioner was transferred to Pudukkottai Town Panchayat, the appellants in W.A(MD)No.1295 of 2013 had already been appointed as Secondary Grade Teacher and were not given promotion. They successfully completed the period of probation after writ petitioner joined duty on 05.12.1990.

5. However, the first respondent/writ petitioner was placed as junior to the appellants in W.A(MD)No.1295 of 2013.

6. After 16 years of transfer, the first respondent/writ petitioner found that in the list prepared as on 01.01.2006, of persons eligible for promotion to the post of Graduate Assistant, she was placed as junior to those appellants. Therefore, the writ petitioner claimed to have made a representation and also approached this Court.

7. In the meantime, the first appellant in W.A.(MD)No.1295 of 2013 was promoted as Elementary School Headmistress on 29.06.2006. The second appellant was promoted as B.T. Assistant on 18.09.2006 and she also gained further higher promotion to the post of Middle School Headmistress on 02.06.2006. The third appellant in W.A.(MD)No.1295 of 2013 was promoted as B.T. Assistant on 14.11.2007.

8. It is only thereafter that the writ petitioner was promoted as Tamil Pandit as on 02.06.2008.

9. The representation of the writ petitioner/first respondent was rejected by an order dated 23.05.2011. Challenging the said order and also claiming promotion to the post of Middle School Headmistress, the first respondent came up with a writ petition in W.P(MD)No.7122 of 2011. It was allowed by the learned Judge on the ground that a mistake in the placement of seniority can always be rectified and that if the writ petitioner was entitled to seniority as per law, the wrong fixation of seniority cannot deprive the writ petitioner's valuable rights.

10. Aggrieved by the said order of the learned Judge, three private respondents in the writ petition as well as the State have come up with both these appeals.

11. The point for consideration is as to whether a person who came to Court after such a long gap of time questioning the fixation of seniority could have been granted the relief or not.?

12. Admittedly, the writ petitioner went on request transfer to Pudukkottai Panchayat in 1990. Once a person gets a transfer on own request to another unit she has to forfeit the seniority that she gained in the previous station. But he or she can certainly take seniority below the last approved probationer of that Union. Therefore, on the first principle of law, the learned Judge was right.

13. But, unfortunately, the long delay and laches on the part of the writ petitioner in approaching the Court after more than 20 years could not have been overlooked. Though the writ petitioner has stated that from 1990 she was not aware of the wrong fixation of seniority, she came to know that she was placed below the other persons at least as on 01.01.2006. Moreover, the writ petitioner appears to have been promoted on 02.01.2008 to the post of Tamil Pandit and she did not ask for re-fixation of seniority in the promoted post. On the contrary, she sough










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