Dr. J. Kanaka Durga vs Singareni Collieries Women''s Degree College and Others

T.N.C. Rangarajan, J.—This writ petition seeks a direction to the respondents to consider the case of the petitioner for the post of Principal treating her as 3rd in the seniority list of lecturers, in the S.C. Women''s Degree College, Kothagudem. It is stated by the petitioner that the Singareni Collieries Company Limited was permitted by G.O.Ms. No. 814, Education, dated 5-7-1975 to start a Junior College and by G.O.Ms. No. 836 dated 11-7-1975 to start a Degree College for Women with effect from the academic year 1975-76. It is also stated that in spite of there being two separate permissions, the Company has been maintaining the Institution as a composite unit and selected lecturers by a common advertisement in July,, 1975. According to the petitioner, she was 2nd in the merit list of selected candidates for the post of lecturers and she has been teaching in the Degree College. But when the post of a Principal became vacant, she was not considered for the same on the ground that she was 8th in the seniority list. She protested and also sent a representation to the Commissioner, Collegiate Education without any response. Since the 6th respondent was appointed as Principal, she has challenged the same by this writ petition. The 6th respondent impleaded herself to defend her appointment.

The Government has not filed any counter affidavit. The 6th respondent filed a counter affidavit and pleaded for vacating the interim direction according to which the selection was subject to the result of the writ petition. The first respondent-management also filed a counter affidavit contending that the Institution is a single entity offering both degree and intermediate courses, that lecturers are not earmarked for the degree college, and therefore, the post of Principal has to be filled up from among the first three seniormost lecturers. It is also stated that since all the candidates were recruited at one time, the seniority will be from the date of their joining, and hence, the petitioner was placed as the 8th in the seniority.

The learned Counsel for the petitioner submitted that the fixation of seniority among the candidates selected on the same day must be on some basis and since no principle has been shown, it was arbitrary. According to him, the selection was on merit and even though they were from different subjects since the list indicated that the petitioner was No. 2, she must be given that rank. In the alternative, it was submitted that since some candidates were ranked as reserve candidates, they cannot be treated as equal to the selected candidates even though they might have joined earlier when time was given by the appointment order to join duty. According to him, the 5th respondent given 3rd in rank was a reserve candidate in the Botany Department and she cannot be given that place over the rank of the petitioner. It was submitted that in the Telugu Department a reserve candidate, who also joined on the same date as the petitioner, claimed seniority and that had been rejected on that principle. It was submitted that if correct principles were to be applied, then the petitioner was to be treated as within the first three and considered for appointment as Principal.

The learned Counsel for the Management submitted that there cannot be a comparison of candidates from different departments, and therefore, the basis of seniority was only the date of first entry into service. It was submitted that when all the candidates are recruited simultaneously it cannot be said that the reserve candidates are in any way inferior and if the rule of taking the Heads of the Department as senior, is to be followed, then even a person recruited long afterwards will walk-over all the candidates already working in the Departments which is absurd. The learned Counsel for the 6th respondent stated that since the selection was completed, it should not be disturbed. The learned Counsel for the 5th respondent submitted that the petitioner had not exhausted the alternative remedy for fixing of seniority, and therefore, the writ petition is not maintainable.

5.Taking the last objection first I find that the petitioner approached the Commissioner for Collegiate Education with a grievance but there was no response. In fact, even in this case, the Government has not filed a counter affidavit and none appeared for the Government. The learned Counsel for the petitioner placed before me a copy of the minutes of meeting held on 19-1-1990 where it was stated that the service conditions and pay scales of the Lecturers in Junior and Degree College being different, the composite colleges are not being allowed by the Government. If only the Government had filed a counter affidavit to indicate whether in this case the Degree College was recognised as a separate entity with separate seniority, it would have been possible to ascertain the correct factual position. I must record the fact that the Government Department has not been of any assistance in this case. It is, therefore, futile to argue that the petitioner should have exhausted the alternative remedy which is obviously ineffective.

The main question is with reference to the fixation of the seniority. The minutes of the Selection Committee held on 19th and 20th July, 1975 and 27th and 28th August at Hyderabad states as follows:

"The performance of the candidates who attended the interviews is considered and co-ordinated. The following are selected for various posts.

Principal xxxxxxxxxxx LECTURERS: English:- (1) Smt. B. Kasturi, M.A., (2) Kum. A. Hemlatha (Reserve) Telugu:- (1) Kum. J. Kanakadurga. (2) L. Sarada Devi (Reserve) Hindi:- (1) Smt. Shashi Mudiraj (2) Kum. T. Kamala Kumari (Reserve) Physics:- (1) Kum. G. Lakshmi Kumari (2) Kum. K. Jyotsna (Reserve) Chemistry:- (1) Smt. Y. Vijaya Laxmi (2) Smt. C. Krishna Kumari (Reserve) (3) Kum. Shobha Reddy (Reserve) Botany:- (1) Kum. A. Jayasree (2) Smt. J. Usha Kumari (R) (3) Kum. G. Madhuravani (R) Zoology:- (1) Kum. P.G. Bhanumathi (2) Kum. P. Shyamala (Reserve) (3) Kum. P. Shobha Suchetha (Reserve) Pol.Science:- (1) Kum. P. Anasuyamma (2) Smt. C. Radhakrishna Kumari (Reserve) Economics:- (1) Kum.B. Sarada (2) Kum. A. Kamakshi (Reserve) (3) Kum. L.M.R. Suseela Devi (R) History:- (1) Dr. (Smt) K. Sarojini Devi (400/800) (2) Kum. Ch. Nirmala (Reserve) Home Science:- (1) Kum. V. Rama Devi (2) Kum. Y. K. Vani (Reserve) Physical Director:- (1) Kum.T. Vijaya Lakshmi (2) Kum. Parveen Farooqui (Reserve) Mathematics:- (1) V. Vijaya Kumari Commerce None selected. The above candidates are listed in the order of merit and they may be offered jobs accordingly.& " However, the seniority list given by the respondent is as follows:

& "THE SINGARENI COLLIERIES WOMEN''S DEGREE COLLEGE, KOTHAGUDEM SENIORITY LIST OF LECTURERS (AIDED/UNAIDED) (APRIL ''95) _____________________________________________________________________________ Sl. Name Subjects Date of Quali- Remarks No. (in order of seniority) joining fication _____________________________________________________________________________ 1. Boyapati Kasturi English 1-9-75 BA, MA., Aided M. Phil 2. Allu Jayasree Botany 5-9-75 B.Sc, -Do- M.Sc. 3. Dr. J. Usha Kumari Botany 9-9-75 B.Sc., M.Sc. -Do- Ph.D 4. Dr.Ch. Krishna Kumari Chemistry 11-9-75 B.Sc, -Do- M.Sc. Ph.D. 5. Potluri Syamala Zoology 11-9-75 B.Sc, -Do- M.Sc. B.Ed. 6. Anapindi Kamakshi Economics 11-9-75 B.A., -Do- M.A. 7. Talluri Vijaya Laxmi Phy. Edn. 11-9-75 B.A. NIS. -Do- M.P.ED. 8. Dr.J. Kanaka Durga Telugu 11-9-75 B.A., M.A. -Do- M.Phil. Ph.D _____________________________________________________________________________ 7. The first contention that the selection list itself indicate the order of the merit and the petitioner should be the 2nd in seniority, may not be acceptable because the selection is for different Departments and it cannot be said that their inter se merit has been considered. The learned Counsel for the petitioner pointed out that Mathematics, which generally comes as an important subject, has been placed in the end which may indicate that the Mathematics candidate did not perform as well as the language candidates or even Physics and Chemistry candidates. I am not able to accept this submission because the statement in the end of the selection list that ''the candidates are listed in the order of the merit and they may be offered the jobs accordingly'', should be applicable to each Department and not for the entire list. This is because each Department has to be filled up with lecturers and it cannot be said that the Telugu candidate can be offered the job only if the English candidate refuses to join. The Supreme Court has also held that the basis of the seniority cannot be in the order of the speciality as that would make it arbitrary see State of Andhra Pradesh Vs. Dr. N. Ramachandra Rao and Others, .

This takes me to the next contention that in each Department the first candidate will be taken as senior to reserve candidates of the other departments. This contention assumes importance only because the Management is not able to put forward any principle or basis on which the inter se seniority of the candidates was fixed when several of them joined on the same date. Of course, if the Selection Committee itself indicates the seniority that will be final irrespective of the date on which the candidates join duty. In the absence of any such fixation, the seniority of those who join on the same date, will be reconciled with reference to their age. The additional factor in this case is that in each Department there is a ranking according to merit. It appears that even at the first instance the reserve candidates also were issued offers of employment and all of them joined duty but some of them who joined left the Institution by the time the question of selecting the Principal came up for consideration. This is the reason why the candidates shown as reserve in the list happen to be seniormost in the respective Departments. In particular in Botany Department, Dr.G. Usha Kumari is a reserve candidate so also the candidates No. 4, 5 and 6. It is stated that candidate No. 7 Talluri Vijaya Laxmi is not eligible for appointment as Principal being a Physical Education Director. It is in this factual background that the petitioner claims that she being placed as No. l in the merit list in her Department in the same selection list, she must have precedence over the candidate Nos. 3 to 6 who are reserve candidates in their respective Departments. The reply of the Management that such a principle indicated that a Head of Department whether recruited will take precedence, is besides the point because the contention is with reference to the selection at point of time and not with reference to the subsequent recruitments. The point is that when several people are recruited simultaneously for different Departments and in each Department there is a merit list is there a principle that the first candidate in each Department being more meritorious than the 2nd candidate in each Department should have precedence over them even though they all joined on the same date. The Management cannot deny that in respect of some Departments even though offers of appointments are issued to both the candidates who are placed as No. 1 and as reserve with some time for joining, the reserve candidate cannot be taken to be senior if she joins before the candidate placed in the first rank in that Department on merit. This is because of the statement in the selection list that the candidates are listed in order of merit and they are to be offered jobs accordingly. Therefore, in each Department when the jobs are offered simultaneously both to the meritorious candidate and the reserve candidate, the seniority must be given to the meritorious candidate even if the reserve candidate joins earlier. This is obviously the reason why the representation of Sarada Devi, reserve candidate in Telugu Department who joined on the same date as the petitioner for seniority over the petitioner was rejected as she was a reserve candidate as against the petitioner who was meritorious candidate in the list. If this position is acceptable, then it would follow that on the same reasoning none of the reserve candidates of any Department could be placed senior to the meritorious candidate of the other Department even if they had joined duty earlier to them as long as offers of appointment were given simultaneously and equal time was given to all of them to join duty. When time has been given to join duty, the seniority can be lost only by not joining duty within the prescribed time and not otherwise, and in the present case, admittedly, the petitioner had joined duty within the time allowed. I am, therefore, of the considered opinion that in the absence of any basis on which the seniority of the petitioner was fixed, and the only acceptable principle as the basis is the note in the selection list that the candidates are listed in the order of merit, the petitioner has to be ranked as No. 3. It follows that she was denied an opportunity of being considered for appointment as Principal because under the rules the first three candidates have to be considered for promotion as Principal.

In the circumstances, I deem it fit to set aside the selection to the post of Principal made on 19-5-1995. The Management shall make a fresh selection after considering the candidature of the petitioner also. Such selection shall be made within two months from the date of receipt of a copy of this order.

Accordingly, the writ petition is allowed. No costs.