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Judgment
G. Rajasuria, J.—The petitioner filed Original Application in O.A. No. 6047 of 1999 before the Tamil Nadu Administrative Tribunal.
Consequent to its abolition, the said Original Application was transferred to this Court and re-numbered as W.P.(MD) No. 4843 of 2006.
Heard both sides.
The nutshell facts would run thus:
The nitty-gritty, the gist and kernel, the pith and marrow of the case of the petitioner is that the petitioner was originally appointed as Draftsman on
18.11.1978 in Madurai District; subsequently the post of Senior Draftsman was offered to her vide order dated 25.05.1984; but she declined that
promotion as per her letter dated 31.05.1984 and that had the effect of relinquishing her rights to the post of Senior Draftsman temporarily for a
period of three years; whereas the fourth respondent A.M.S. Kathija, who was junior to the petitioner, was promoted as Senior Draftsman as per
the order dated 01.06.1984, and she worked upto 29.12.1985. With effect from 01.01.1986, the composite Madurai District was bifurcated as
Madurai District and Dindigul District.
However, just before bifurcation, the fourth respondent A.M.S. Kathija, expressed her right to continue in the post of Senior Draftsman in
Dindigul District and got reverted to the post of Draftsman and came back to Madurai by 29.12.1985 itself. Subsequently, the same Kathija was
promoted as Senior Draftsman overlooking the seniority of the petitioner; thereupon O.A. No. 2585 of 1993 was filed before the Tamil Nadu
Administrative Tribunal and that the Tribunal ordered as follows:
In the result, in O.A. No. 5955/93, Respondents are directed to repromote the Applicant with effect from 31.07.1990 with all service and
monetary benefits. In the other three applications, the Respondents are directed to promote them as Senior Draftsman with effect from 31.07.1990
from the date on which R. 4 (Kathija) was promoted with all attendant benefits.
Consequent upon the order of the Tamil Nadu Administrative Tribunal, the petitioner herein was given retrospective promotion with effect from
31.07.1990 virtually recognizing her original seniority and fixing the petitioner as senior to the fourth respondent, Kathija.
However, subsequently, for the post of Head Draftsman, the fourth respondent, Kathija was treated as Senior to the petitioner and accordingly,
promotion was given as Head Draftsman ignoring the earlier findings given by the Tamil Nadu Administrative Tribunal.
Per contra, the counter was filed before the Tamil Nadu Administrative Tribunal, but that is not readily available in the file; however the learned
Additional Government Pleader would give a copy of the counter, which had been filed by the Government. The contention in the counter of
Additional Director of Survey and Land Records, would be to the effect that the fourth respondent Kathija was promoted as Senior Draftsman
w.e.f. 01.06.1984 and hence her seniority in the Senior Draftsman should be recognized.
As per the order of the Tamil Nadu Administrative Tribunal, the petitioner was given promotion w.e.f. 31.07.1990. Paragraph Nos.7 and 8 of
the counter are reproduced here under for ready reference:
Regarding Paragraph 6(7) of the application it is submitted that with regard to relinquishment and then claim of the applicant that as per amendment
issued to Rule 47 i.e. addition of Sub-rule 2 of Rule 47 in G.O. Ms. No. 494, P & AR (Per-S) dated 20.09.88 ""Relinquishment of a right or
privilege for a temporary period shall be accepted if it is made for a period of not less than three years subject to the condition that after the expiry
of the said period, the claim of right or privilege relinquished will be with reference to the state of affairs that exist on the date of the expiry of
period of relinquishment and without restoration of original seniority. If relinquishment of right of privilege is made permanently and is accepted,
subsequent claim of the relinquished rights or privileges shall not be entertained.
In view of the said amendment, after the expiry of the period of relinquishment, the claim of right for the privilege relinquished will be with reference
to the state of affairs that exist on the date of expiry of the period of relinquishment without restoration of original seniority. As the applicant had
relinquished her rights of promotion for a period of three years her name can be considered after the expiry of the period of relinquishment and that
too with reference to the state of affairs that existed on the date of expiry of period of relinquishment. She cannot also claim for restoration of
original seniority. The respondent 4 had already worked as Senior Draftsman whereas the applicant not at all join duty as Senior Draftsman but
relinquished her rights of claim for promotion. As such the applicant cannot claim for promotion as Senior Draftsman in preference to the person
who had already worked as Senior Draftsman. These points have not been taken into account, while passing final orders. However, it is submitted
that as the Honourable Tamil Nadu Administrative Tribunal issued directions in O.A. 2585/93 and as the Assistant Director of Survey, Madurai
was the first respondent, the applicant in O.A. 2583/93, 2584/93, 2585/93 were issued with order of retrospective promotion by the Assistant
Director of Survey, Madurai. However, as there were to posts of Senior Draftsman to accommodate these persons, including the applicant in this
Original Application, necessary proposals have been sent to the Government for creation of supernumerary posts with effect from 31.07.90 and on
receipt of orders further process will take place. It is also submitted even on this count, the applicant can be considered for further promotion with
reference to the above date (i.e.) 31.07.90 where as the fourth respondent, on promotion earlier in the year 1984, joined duty as Senior Draftsman
and discharged her duties as Senior Draftsman till the Madurai District was bifurcated. Hence, it is submitted that with reference to the date of
regularisation as Senior Draftsman in the year 1984, the name of the fourth respondent has been included in the panel of Head Draftsman of the
year 1998. It is pertinent here to submit that the services in the case of Senior Draftsman of the last person included in the said panel for Head
Draftsman have been regularised with effect from 23.10.86, whereas the applicant has been promoted to the post of Senior Draftsman
retrospectively, with effect from 31.07.90 only. It is therefore submitted that there is no cause for consideration of the prayer of the applicant.
Regarding paragraph 6(8), it is submitted that no such representation as stated by the applicant has been received by the first respondent.
The point for consideration is as to whether the petitioner was senior to the fourth respondent Kathija as on the date of promoting the latter as
Head Draftsman?
Point:
At the time of hearing, the learned Counsel for the petitioner would submit that during the pendency of this writ petition, the petitioner was
promoted as Head Draftsman w.e.f. 02.07.2007.
The learned Counsel for the petitioner would also submit that already the Tamil Nadu Administrative Tribunal clearly and categorically gave a
finding to the effect that simply because the fourth respondent worked as Senior Draftsman in Dindigul District w.e.f. 01.06.1984 till 29.12.1985,
that period cannot be taken as material for reckoning the seniority between the two.
The learned Counsel for the petitioner placed reliance on the paragraph Nos. 7, 8, 9, 10 and 11 in the order of the Tamil Nadu Administrative
Tribunal dated 01.04.1998 in O.A. Nos. 2583 to 2585 of 1993 and 5955 of 1993 and which are extracted here under for ready reference:
The main contention of the three applicants is that the promotion given to fourth respondent Kathija as Senior Draftsman on 21.07.90 is not proper
since they are seniors to her in the category of Draftsman as per 1987-1990 seniority list. In this connection, learned Counsel for the fourth
respondent submits that when they relinquished their promotion for a period of three years after the relinquishment of their right for promotion to
the post of Senior Draftsman for a period of three years, Kathija was promoted and joined duty as Senior Draftsman in Dindigul in July 1984 and
she had worked three upto 29.12.85. Consequent on the bifurcation of Madurai District as Madurai and Anna District, Kathija who gave option
to work at Madurai District had to be reverted as Draftsman, for want of vacancy in Madurai District. Subsequently, when a vacancy arose in in
July, 1990, the earlier promotion was given to Kathija was restored. However, we are unable to agree with the contention of the fourth
respondent. The relinquishment period of all the three applicants had expired on 31.05.87. On that date, Kathija had already been reverted for
want of vacancy. So, when the next vacancy arose on 31.7.90, on the basis of seniority, Kathija should not have been promoted earlier to them.
We have to bear in mind that after 31.5.87, these three were also eligible for promotion, That Kathija had acted in the promotional post earlier
cannot clothe her with any right for priority after the reversion.
Learned Counsel for Smt. M. Subbulakshmi, submits that she was allotted to Madurai District at the time of bifurcation. Only on account of want
of vacancy in the category of Senior Draftsman, she was retained in Dindigul. She has now relinquished her appointment as Senior Draftsman in
which post she continued from 23.3.85 to 31.5.86. Pursuant to the interim order of this Tribunal, dated 10.5.93, Nirmala, Annakili and
Mangayarkarasi who have also relinquished their promotion have been promoted as Senior Draftsman. While so, the applicant who has already
acted as Senior Draftsman for more than a year is also entitled to be promoted.
Respondents 1 to 3 also state in the reply statement that consequent on the bifurcation of Madurai District, options were called for and staff were
transferred along with the post according to the options given by them to the extent possible. The applicant opted for Madurai District, but as there
was no post of Senior Draftsman, for providing the applicant she was accommodated in Draftsman post. As per Government letter No.
68847/M1/87-5, C.T. and R.E. Department dated 24.6.88, seniority for the post of Sub-Inspectors of Survey and Land Records and Senior
Draftsman is maintained at Districtwise. The persons who are not willing to work in other districts need not be treated as having relinquished their
claim for promotion and their names may be considered according to district seniority when vacancies arise. As the applicant was working as
Senior Draftsman from 23.3.85 to 31.3.86 and opted to be allocated to Madurai District on bifurcation, she cannot be treated as having
relinquished her rights for promotion. The reply statement further reads that the applicant has also been promoted as Senior Draftsman. However,
this has to be regulated with reference to the rules and orders in force which will be done by issuing of instructions to the Assistant Director of
Survey and Land Records, Madurai who is the appointing authority for the posts of Senior Draftsman.
We are informed that Smt. M. Subbulakshmi has been repromoted as Senior Draftsman from 1.9.93. Her prayer is that the repromotion should be
from the date of promotion of Nirmala, Annakili and Mangayarkarasi who are juniors to her. Since the above three have to be promoted from
31.7.90, evidently, Subbulakshmi also should have been promoted from that case.
In the result, in O.A. No. 5955/93, respondents are directed to repromote the applicant with effect from 31.7.90 with all service and monetary
benefits. In the other three applicants, the respondents are directed to promote them as Senior Draftsman with effect from 31.7.90 from the date
on which R. 4 was promoted with all attendant benefits.
A mere perusal of the Judgment of the Tribunal including the aforesaid paragraphs would make it amply clear that the Department was not
justified in taking into account the short period in which the fourth respondent worked as Senior Draftsman and the Tribunal also went to the extent
of giving a clear indication that the petitioner should be given retrospective promotion with effect from the date of which the fourth respondent
Kathija was promoted with all attendant benefits which includes the seniority also. It is not as though, the petitioner w.e.f. 01.06.1986 onwards
continuously worked as Senior Draftsman and she was promoted as Head Draftsman; if that be so, the matter would be entirely different. But that
was not the position as evidenced from the above narration of facts. Without any clarity the Department in its counter as extracted supra, quite
antithetical to the Tribunal''s finding, has gone even to the extent of commuting as though the Tribunal was not right in passing such order.
The explanation furnished by the Department in paragraph No. 7 as though there were no posts of Senior Draftsman at the relevant time of
giving retrospective promotion to the petitioner, are all not germane for deciding this matter. Once, fourth respondent Kathija being treated as
senior to the petitioner based on the criterion viz., she worked w.e.f. 01.06.1984 upto 29.12.1985, was turned down, then there is no question of
treating the fourth respondent Kathija once again as senior to the petitioner based on the same ground while filling up the post of Head Draftsman.
Accordingly, the act of the Department in treating the fourth respondent Kathija as senior to the petitioner and giving promotion to her as Head
Draftsman earlier to the petitioner was not at all tenable. Hence, the petitioner is deemed to have promoted to the post of Senior Draftsman on the
same date of promotion having been given to the fourth respondent and the petitioner shall be treated as senior to the fourth respondent Kathija
even in the post of Head Draftsman. I make it clear that for the past period the principle ""no work no pay"" shall be applicable and for the period
for which the petitioner never worked as Head Draftsman, she is not entitled to arrears of pay and allowances as applicable equal to that of the
post, but the period will be counted for seniority and further promotions. However, the petitioner is entitled to refixation of her pay in the Head
Draftsman post with all attendant benefits without right to claim arrears. In other words, for the past period she cannot claim arrears but all other
benefits, shall be available to her and her deemed service shall be counted for pensionary benefits.
With the above observations, this Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.