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Judgment
Vinod K. Sharma, J.—The Petitioner aggrieved by the order, dated 16.08.2004 vide which the representation made by the Petitioner against the fixation of seniority of the Tabulators was dismissed,has invoked the writ jurisdiction of this Court.
The case of the Petitioner is that Manomaniam Sundaranar University advertised the post of Tabulators on 01.05.1991. The qualification fixed for women candidate was post-graduate decree, knowledge of typewriting and computer. In response to the advertisement, 18 women candidates applied for the post of Tabulators.
The interview Committee selected all the 18 candidates, and they were offered appointment order on daily wages at the rate of Rs. 30/- per day.
It is the case of the Petitioner that all the selected candidates joined duty on 31.05.1991 and continued working on daily wages till 31.03.1992 and thereafter, their service ordered to be terminated.
The order of termination was challenged before this Court. This Court allowed the Writ Petition and consequently all of them were reinstated in service.
On 01.05.1992, the Petitioner was appointed as Tabulator on consolidated pay of Rs. 1000/-p.m. w.e.f. 01.05.1992.
The other employees whose order of termination was also set aside were issued appointment on consolidated salary. Five of such candidates were given appointment on 07.09.1992.
The service of all the Tabulators who were selected on 31.05.1991, was regularized w.e.f. 01.04.1993.
The case of the Petitioner is that the University did not fix the seniority of the employees whose service were regularized between 01.05.1993 to 05.12.1996.
It was on 05.12.1996, that in pursuance to the resolution of the Syndicate, dated 05.12.1996 the seniority of 14 Junior Assistants including the Petitioner was fixed on the basis of the date of birth.
The case of the Petitioner is that in order to settle the dispute of seniority of the employees, the Syndicate appointed One Man Commission, to go into this question. The one man Commission after considering the facts and circumstances, recommended that inter-se seniority for all the 14 persons including that of Petitioner be modified by placing the employees appointed in May 1992 on consolidated pay over the employees who were appointed in September 1992,on consolidated pay.
On presentation of the report of One Man Commission recommending the change in the inter-se seniority. The matter was referred to Review Committee. The Committee also accepted the recommendation of One Man Commission regarding seniority, but rejected the recommendation regarding regularization in time-scale and grant of monetary benefits, from the date of joining duty, due to the financial crunch.
The case of the Petitioner is that on 17.02.2001, the recommendation of Review Committee was placed before the Syndicate, but, the matter was deferred.
Thereafter, the matter regarding fixation of seniority of 13 Assistants in terms of recommendations was again deferred.
On 24.06.2004, the Establishment Sub-Committee of Syndicate decided not to interfere with the matter as it was belated and was likely to cause complications.
Thereafter by way of impugned order, dated 16.08.2004, the Petitioner was informed that the seniority already fixed was in order.
The Petitioner filed a representation on 21.09.2004 against the decision, but as No. action was taken thereon, the Petitioner approached this Court with a prayer referred to above.
In order to appreciate the submission of Petitioner, the interpretation of Statute 16, is necessary. The Statute 16 reads as under:
Tamil Nadu Government Rules applicable on all questions of interpretation of these statutes the decision of the Vice-Chancellor of the University shall be final. For the matters not specifically covered in the service statutes of the University employees, such rules governing the servants of Tamil Nadu Government shall applyunles so the rwise decided by the Syndicate.
The Seniority therefore is to be fixed as per Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules.
Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules which readsas under:
35(a) Theseniorityofa personina service,classor categoryor gradeshallunlesshehas beenreducedtoa lowerrankas a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, as the case may be, subject to the rule of reservationwhere it applies.The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.
(aa) The seniority of a person in service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lowerrankas a punishment, bedetermined with reference to the date on whichhe is appointed to the services, class, category or grade.
Provided that where the junior appointed by a particularmethod or recruitment happensto be appointed toa service, class, category or grade, earlier than the senior appointed by the same method of recruitment,thesenior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed.
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-seseniority.
Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se seniority shall be decided with reference to the irage.
A reading of the statute of the University and the Tamil Nadu State and Subordinate Service Rules shows that seniority is to be counted from the date of appointment.
Once it is not disputed that the Petitioner was appointed on 01.05.1992 on the consolidated salary whereas five persons were appointed on 07.09.1992. The contention of the learned Counsel for the Petitioner is that, as per rules Petitioner is to be placed higher in seniority.
In support of this contention, the learned Counsel for the Petitioner placed reliance on a judgement of this Court in the case of R. Gopalakrishnan.vs. The Managing Director,Tamilnadu State Transport Corporation (Madurai) Limited, Madurai, W.P. No. 7657 of 2010 decided on 29.10.2010, wherein, this Court has laid down that the seniority of an employee is to be fixed from the date of joining, and the person who joined earlier in point time is entitled to be placed senior to the person who joins later.
The Writ Petition is opposed by the University, as also the private Respondent.
The contention of the learned Counsel for the Respondent is that the seniority is rightly fixed as the date of appointment of all the Tabulators is same. Therefore, according to the statute and service rules governing their service conditions, the seniority is to be fixed according to age and that is what has been done.
The objection has also been raised by the Respondent that the Writ Petition suffers from the vice of delay and laches. The contention is that the seniority was fixed in the year 1996, which was challenged in 2005 that too, without impleading the affected persons as parties, who were only impleaded in the year 2011.
This contention raised by the learned Counsel for the Respondent deserves to be rejected for the reason that the Petitioner had filed a representation immediately on fixation of seniority, and the University took time to decide. The order was passed only on 16.08.2004. The writ petition was thereafter immediately filed. The Writ Petition does not suffer from delay and laches.
As regards the objection of non-joinder of necessary parties is concerned, that defect has also stands cured, as the Petitioner with the permission of this Court impleaded the affected person as parties. Therefore at this stage, the Petitioner cannot be non-suited on this ground.
On consideration, I find No. force in this Writ Petition. It is not in dispute that the Petitioner as well as the private Respondent were appointed on 31.05.1991 in pursuance of the advertisement issued on 01.05.1991.
It is also not in dispute that the service of the Petitioner as well as the Respondents were terminated on 01.04.1993 and it was only in pursuance to the acceptance of the Writ Petition, that the order of termination was set aside. It was in view of the order passed by this Court, that the University appointed all the Tabulators whose termination order was set aside, merely because the Petitioner was given appointment earlier in time than the others, by the University while implementing the orders of this Court, cannot give undue advantage to the Petitioner. It is no-body''s case, that the Respondent had failed to join in spite of offer.
In any case, it is the admitted case of the parties, that the Petitioner as well as private Respondent were brought in the cadre only on 01.04.1993 when their service were regularized.
The date of appointment of the Petitioner as well as of private Respondent therefore is the same.
The seniority therefore is to be fixed by treating older in age is senior than the person who is younger as per rules. This what has been done in this case.
The contention of the learned Counsel for the Petitioner, that the decision is contrary to recommendation of One Man Commission, or of the Review Committee, also does not advance the case of the Petitioner. The report of the Committee is not based on correct appreciation of facts, as neither the One Man Commission nor the Review Committee took into consideration, the fact that the termination order of all the employees was set aside by this Court and it was the University to reappoint them, in compliance of the order passed by this Court.
It is settled law that a person can be allowed to suffer for the lapse on the part of the University in implementing the order of this Court in letter and spirit. The judgment of this Court on which reliance has been placed by the learned Counsel for the Petitioner, does not advance the case of the Petitioner, as the principle of law laid down therein, has not been violated, rather by the impugned order that has been passed by taking the date of appointment of Petitioner as well as the Respondents to be same. Therefore, in view of the Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules, persons older in age is to be treated senior.
No. ground is made out to interfere with the impugned order.
For the reasons referred to above, this Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is dismissed. No. costs.