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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
SANJAY V. GANGAPURWALA, R. SUBRAMANIAN, JJ.
The Director General of Police, Mylapore, Chennai – Appellant
Versus
K. Perumalswamy & Another – Respondents
W.A.(MD) No. 883 of 2023 & CMP(MD) No. 7059 of 2023
Decided On : 23-06-2023
Seniority - Appointment Dispute - The court upheld the original writ petitioner's claim for seniority and promotion, dismissing the appeal against the order of the learned Single Judge.
Fact of the Case:
The original writ petitioner, appointed as a Junior Assistant on compassionate grounds in 1987, claimed seniority and promotion over a junior appointed through the Tamil Nadu Public Service Commission.
Finding of the Court:
The court found that the original writ petitioner was appointed prior in time to the respondent, had passed all departmental examinations, and was entitled to seniority and promotion over the junior appointee.
Issues: Dispute over seniority and promotion based on the date of appointment and method of reckoning seniority.
Ratio Decidendi: Seniority cannot be counted from a date prior to the appointment of a person, and a deemed date cannot be given for seniority and promotion for the period the candidate was not born in the service.
Final Decision: The appeal was dismissed, upholding the original writ petitioner's claim for seniority and promotion. No costs were awarded, and the connected Miscellaneous Petition was closed.
JUDGMENT
(Prayer: Appeal filed under Clause 15 of Letters Patent against the order dated 06.09.2021 passed in WP(MD) No.10638 of 2016.)
1. The order passed by the learned Single Judge is assailed.
2. Original writ petitioner was appointed as a Junior Assistant on 27.04.1987 on compassionate ground. He has completed his probation successfully and his services were regularized with effect from 27.04.1987. Petitioner passed all the departmental examinations and became fully qualified to the post of Assistant on the crucial date, viz., 15.03.1990 for the 1990-91 panel. These are the undisputed facts.
3. On or about 06.05.2016, the order was passed by the department that the petitioner had not reached the zone of consideration for the panel year 1990-91 to 1993-94. The third respondent in the writ petition was appointed on 04.05.1987 pursuant to the recruitment notification originally issued in 1983. The third respondent was promoted by including his name in the panel prepared for 1992-93. The original writ petitioner claimed that the third respondent junior to the petitioner being promoted on 03.05.1993. The petitioner is entitled to get his name included above the third respondent even in the promotion panel that was given effect subsequently.
4. According to the learned Special Government Pleader, the third respondent in the writ petition was appointed through the Tamil Nadu Public Service Commission and the seniority list is to be drawn in the post of Assistant in Tamil Nadu Ministerial Subordinate Service, Police Department, by placing the Tamil Nadu Public Service Commission 1983 batch candidates above the persons, who are appointed on compassionate ground by reckoning the date of service as November 1983.
5. According to the learned Special Government Pleader, the learned Single Judge has erred in passing the impugned order. We have heard the learned counsel for the original writ petitioner.
6. It is not disputed that the original writ petitioner was appointed prior in point of time to respondent No.3. The seniority cannot be counted from the date prior to the appointment of a person. A deemed date cannot be given for seniority and for promotion, for the period the candidate was not born in the service.
7. As it was not disputed that the original writ petitioner also passed all the departmental examinations and was appointed prior in point of time and the seniority cannot be counted from the year 1983, though appointed in May, 1987, the learned Judge has not committed any error, while passing the impugned order. The appeal as such is dismissed. However, there is no order as to costs. consequently connected Miscellaneous Petition is closed.
Seniority and promotion are to be determined based on the actual date of appointment, and a deemed date cannot be given for the period the candidate was not born in the service.
Equitable treatment in seniority matters must prevail over procedural delays in objections when similar cases have been favorably resolved.
Administrative delays in service regularization do not preclude rightful promotions based on established seniority.
The judgment emphasizes the importance of seniority as a civil right and highlights the need to rectify mistakes committed by the official respondents in matters of seniority.
Rule 10(a)(i) of the General Rules have to be ranked below TNPSC candidates irrespective of the date of appointment of such TNPSC candidates and special absorption rules candidates.
Promotion seniority should not be altered based on delays in qualification if it complies with probation rules, affirming the importance of adhering to original seniority assignments.
An employee cannot be denied promotion based on delays in service posting that are not their fault; promoting juniors who fulfill eligibility criteria creates inequity.
The main legal point established is that seniority is determined based on the date of appointment, and retrospective promotion is essential for the grant of retrospective seniority.
Seniority in public service must follow the order of merit per category, prohibiting inter-category comparisons, and claims made after inordinate delay are unsustainable.
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