G.Gunasundaram, v. The Commissioner,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on 19.12.2022 Pronounced on .02.2023

CORAM

THE HONOURABLE MR.JUSTICE M.S.RAMESH W.P.No.28182 of 2016 G. Gunasundaram ... Petitioner Vs.

1.The Commissioner, Erode City Municipal Corporation, Erode-638 001.

2.S.Vasanthi 3.The State of Tamil Nadu rep. by Secretary to Government, Municipal Administration & Water Supply Department, Secretariat, Fort St. George, Chennai-630 009.

4.The Commissioner, Municipal Administration & Water Supply Department, Ezhilagam, Chepauk, Chennai-600 005.

[R3, R4 impleaded as per order dated 13.12.2019 made in WMP.34790/2019 in WP.28182/2016 by DKKJ] ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Certiorarified Mandamus, calling for the records of the first respondent relating to the order in Na.Ka.No.C1/2955/2016 dated 18.07.2016 and the consequential proceeding dated 19.07.2016, quash 1/19

the same and consequently, direct the first respondent to restore the petitioner seniority above that of the second respondent in the post of Assistant cum Accountant as per the seniority list issued in Na.Ka.No.C1/3098/2012 dated 06.08.2012 and continue to treat me as senior to the second respondent in the services and grant all consequential benefits such as promotions, pay scales, increments etc. For Petitioner : Mr.R.Bharanidharan for Mr.P.K.Harinath Babu For Respondent : Mr.M.Rajamathivanan No.1 For Respondent : Mrs.Dhakshayani Reddy No.2 for Mr.P.Rajavel For Respondent : Mr.D.Gopal, G.A.

Nos.3 & 4 O R D E R Heard Mr. R.Bharanidharan, learned counsel for the petitioner and Mr. M.Rajamathivanan, learned counsel appearing for the first respondent, Mrs. Dhakshayani Reddy, learned counsel on behalf of the second respondent, as well as Mr. D.Gopal, learned Government Advocate for the respondents 3 & 4.

2. When the first respondent Corporation had released a temporary promotional panel for the post of Superintendent on 21.06.2016, the petitioner's name was shown immediately below that of the second respondent's name in the list. Claiming seniority over the 2/19

second respondent, the petitioner raised his objections, which were rejected through the impugned order dated 18.07.2016, predominantly on the ground that the date of the first regular appointment of an individual in that service would be the criteria for fixation of seniority. The petitioner challenges this rejection order in the present Writ Petition.

3. Mr.R.Bharanidharan, learned counsel for the petitioner submitted that under Clause 3 (iii) of the G.O. (Ms) No.56 dated 01.04.2008, the petitioner's seniority was rightly fixed above the second respondent's name in the seniority list dated 06.08.2012 and therefore, the impugned order dated 18.07.2016, placing reliance on G.O. (Ms) No.121, dated 20.12.2012, is incorrect. He also submitted that when the second respondent was placed as a junior to the petitioner in the inter-se seniority lists dated 18.06.2012, 19.06.2012 and 06.08.2012, the second respondent had not raised any objections nor questioned the validity of the fixation and therefore, now he is estopped from objecting to the refixation of petitioner's seniority.

4. On the other hand, Mrs.Dhakshayani Reddy, learned counsel for the second respondent submitted that both the petitioner and the 3/19

second respondent were under the Municipalities of Salem Unit and till the up-gradation of the same. She contended that the second respondent herein, who was originally appointed on 02.09.1994, as against the petitioner's appointment dated 26.10.1994 and her promotion to the posts of Assistant was on 19.10.2007 while the petitioner's promotion was on 07.11.2007. Hence, the learned counsel strenuously contended that in view of the above facts, she was senior to the petitioner in all aspects. According to the learned counsel, Clause V of the Corporation Service Rules alone would be applicable as clarified by the Government and G.O.Ms No.56 dated 01.04.2008, will have no relevance at all. The learned counsel submitted that the Government order has to yield to the Tamil Nadu Municipal Corporation Service Rules under G.O. (Ms) No.

237, Municipal Administration & Water Supply (Selection) Department, dated 26.09.1996. In view of the second respondent's initial appointment to the post of Junior Assistant in the Municipality being earlier than the petitioner herein, she has to be necessarily arrayed as senior to the petitioner in the inter-se seniority list.

5. The learned Government Advocate appearing for the respondents 3 & 4 submitted that as as per G.O. (Ms) No.140, Municipal 4/19

Administration & Water Supply Department,dated 27.05.1997, the question of fixing the inter-se seniority will arise only between panchayat and municipal employees, as fixed by the Commissioner of Municipal Administration, will have to be taken by the Corporation without any change and therefore, the petitioner's request for revision of seniority has been rightly rejected.

6. I have given careful consideration to the submissions made by the respective counsels.

7. While the petitioner herein joined as a Junior Assistant in Tiruppur Municipality on 26.10. 1994, the second respondent herein joined as Junior Assistant in Mettur Municipality on 02.09.2004. In the year 1997, the petitioner was transferred to Bhavani Municipality. On 13.09.2007, an approved promotional panel to the posts of Assistants in Tamil Nadu Municipal General Service-Salem Unit was issued in which the petitioner's seniority was arrived at S.No.14 and the second respondent herein's seniority was fixed at S.No.13. On 17.10.2007, both the petitioner, as well as the second respondent herein, were promoted to the posts of Assistant, wherein the petitioner's name was in S.No.13 shown immediately below the name of the second 5/19

respondent herein. On promotion, the petitioner was posted as a Market Superintendent which is equal to the post of Assistant and the second respondent was posted as an Assistant in the Mettur Municipality itself.

8. On 17.11.2007, the Municipalities of Tiruppur and Erode were upgraded as Corporations with effect from 01.01.2008 through G.O.(Ms) No.56, Municipal Administration and Water Supply Department, dated 01.04.2008. As per Sub clause (ii) of paragraph 3 of the said G.O., when the employees and the officers of the Corporation exercise their option to continue their services under the Corporation, their inter-se seniority would be fixed from the date of their appointment in the posts under the Corporation. As per Clause 3 (iii) of the G.O., when the employees of the Municipalities give their willingness to join the Corporation, their inter-se seniority would be fixed as Junior under the respective category.

9. On 29.07.2009, the temporary seniority list of Erode Corporation was released by the Commissioner in which the petitioner's name was shown at S.No.12. His name also found place in the subsequent promotional panel released by the Erode Corporation for the posts of Superintendent at S.No.6.

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10. In this background, the second respondent herein was transferred from Mettur Municipality to Kasipalayam Grade-III Municipality on 15.12.2010. On 25.10.2011, Kasipalayam Grade-III Municipality merged with Erode City Municipal Corporation. Consequently, the inter-se seniority of the second respondent herein was placed immediately below the seniority of the Assistants employed in Erode City Municipal Corporation at S.No.14, wherein the petitioner's seniority was at S.No.7. The second respondent had not raised any objections with regard to the fixation of this seniority.

11. On 19.06.2012, the temporary seniority list was released by the first respondent Corporation in which the petitioner's name was found at S.No.7 and the second respondent name's was arrayed at S.No.14. No objections were raised by the second respondent with regard to the fixation of the seniority for this temporary panel also. In the final seniority list for the posts of Assistant dated 26.07.2012, the second respondent's name was fixed at S. No.6., while the petitioner's name was at S.No. 8. On the objections raised by the petitioner, that his seniority was to be fixed in accordance with Clause 3(ii) of G.O. (Ms) No.56 dated 01.04.2008, the seniority list was revised on 06.08.2012, whereby the petitioner's seniority was altered and fixed at S.No. 7 and 7/19

the second respondent's seniority was at S.No.13. Even here, the second respondent did not raise any objections or questioned the fixation.

12. In this background, the Government had issued G.O.121, Municipal Administration and Water Supply Department, dated 20.12.2012, ordering the Corporation Commissioner to prepare the inter-se seniority list of the staff to be absorbed from the merged local bodies to the Erode City Municipal Corporation, as per the Government norms and Corporation Service Rules. Accordingly, the list of the staff of the merged local bodies was released in which the second respondent's name was found in S.No.1. Since the petitioner's seniority was already fixed under the Erode Corporation, his name was not included in this list.

13. In this backdrop, the temporary promotional panel for the posts of Superintendent was released by the Corporation on 21.06.2016, whereby the second respondent's name was shown in S. No.3 and the petitioner's name was at S. No.4. On 30.06.2016, the petitioner has raised his objections by referring to the seniority list dated 06.08.2012, which objections came to be rejected through the 8/19

impugned order dated 18.07.2016, in which the Corporation had relied upon Clause 3(d) of the G.O.(Ms) No.121 dated 20.12.2012, which provides that inter-se seniority of the staff is to be absorbed from the merged local bodies into the Erode City Municipal Corporation, as well as to Rule 4, which provides for fixation of inter-se seniority of the employees, who have migrated from Municipality and Panchayat services and the existing employees of the Corporation, within three months from the date of issuance of the Rules. The impugned order also made a reference to the clarification issued by the Government with regard to fixation of inter-se seniority, which states that the question of inter-se seniority would arise only between Panchayat and Municipal employees and therefore, the existing seniority of the Municipal employees will not be changed. The clarification further stated that the seniority of the Municipal Corporation employees, as fixed by the Director of Municipal Administration, will have to be taken by the Corporations without any change.

14. The predominant question that arises for consideration is, when the petitioner was shown as a senior in the inter-se seniority list dated 18.06.2012, 19.06.2012 & 06.08.2012, the second respondent herein had not raised any objections with regard to such fixation and 9/19

whether he can now object to the petitioner's claim for seniority? The procedure for preparation and finalisation of the seniority list in any establishment was considered by a learned Single Judge of this Court in the case of S.Shanmuga Kumari Vs. The Chairman, V.O. Chidambaranar Port Trust, Tuticorin and 2 Others in W.P. (MD) Nos.11457 to 11470 of 2015 dated 21.06.2019. The relevant portion of the order reads as follows:

"5. The procedure to be followed by any establishment as a matter of fact is that the draft/provisional seniority list must be published based on the service records of the employees and in accordance with rules in force. Considering the date of appointment or the promotion in the feeder category, the draft seniority lists are to be prepared by the establishment and such draft seniority list must be published and communicated to all concerned for the purpose of receiving objections/appeals, if any grievances exists to the employees. On receipt of any objections/appeals from the employees, the same is to be considered carefully and a speaking order is to be passed enabling the management either to reject the objections or to allow the objections. In the event of allowing such objections submitted by the aggrieved employees, their seniority is to be reconsidered 10/19

and accordingly they must be placed in the proper place in the final seniority list."

15. When any provisional seniority list is published, there is a duty cast on the aggrieved employees to raise their objections then and there and within the stipulated time with regard to the discrepancies in the fixation. The provision to raise such objections is by way of giving an opportunity to the persons, who have either been excluded from the panel or who have been wrongly arrayed in the seniority, to file an appeal to get their grievances redressed by way of a departmental remedy. If no such objections are raised in time, the concerned employee is deemed to have acquiesced and would be estopped from claiming any benefits out of the wrong fixation at a later stage. This principle of estoppel was considered by the Hon'ble Supreme Court in the case of P.S.Gopinathan Vs. State of Kerala & Others reported in 2008 (7) SCC 70. The relevant portions of the decision reads as follows:

"37.

Lord Campbel in Cairncross v.

Lorrimer, 1860 (3) LT 130 (IIL) held that, ... generally speaking if a party having an interest to prevent an act being done had full notice of its being done, and acquiesce it, so as to induce a reasonable belief that he consents to 11/19

it and the position of the others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license.

38. The aforesaid facts clearly make out an acquiescence of the appellant of accepting order dated 14.1.1992 being treated as temporary appointment order on the post of District & Sessions Judge and he cannot now be permitted to change his position and claim the permanent appointment from 14.1.1992 to claim seniority on the post. Besides this, the High Court has rightly held that in the absence of the challenge to the second appointment order dated 15.7.1992 from the fresh panel dated 21.2.1992, that order will stand, though later in time, and has to be given effect to as an order of appointing the appellant on permanent basis under Rule 6 of the Rules.

39. For the aforesaid reasons, the appeal is dismissed."

16. In the instant case, when the inter-se seniority of the second respondent herein was shown to be as 'junior' in the list published on 25.10.2011 after merging of the Kasipalayam Municipality with Erode 12/19

City Municipal Corporation, the second respondent had not raised any objections. Likewise on 19.06.2012, the temporary list was released by the first respondent Corporation in which the second respondent was shown at Serial No.14 as against the petitioner's seniority at Serial No.7, no objections were raised by the second respondent. Further, in the final seniority list for the post of Assistant dated 26.07.2012, when the second respondent's seniority was fixed at Serial No.6 and the petitioner's name at Serial No.8, he has raised his objections before the first respondent Corporation. On consideration of his objections, the seniority list was revised on 06.08.2012, whereby, he was placed in the seniority at Serial No.7 and the second respondent at Serial No.13. Even here the second respondent did not raise any objections or questioned the same.

17. As claimed earlier, in the inter se seniority lists dated 18.06.2012, 19.06.2012 & 06.08.2012, the petitioner was shown as a senior to the second respondent herein. This fixation of seniority remained unaltered for about four years till 21.06.2016, when the promotional panel for the post of Superintendent was issued on 21.06.2016, which altered the petitioner's seniority, showing him as a junior to the second respondent herein. In Shiba Shankar Mohapatra 13/19

& Others Vs. State of Orissa & Others reported in 2010 (12) SCC 471, the Hon'ble Supreme Court had stipulated three to four years as a reasonable period for challenging the fixation of seniority and in failure to challenge, the delay and laches requires to be satisfactorily explained. In the words of the Hon'ble Supreme Court: "30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."

18. In an earlier decision in the case of K.R. Mudgal & Others Vs. R.P. Singh & Others reported in 1986 (4) SCC 531, a similar finding was made to a belated challenge of the seniority list, in the following manner:- 14/19

"... Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties."

19. If the ratio laid down in the aforesaid two decisions, as well as the judgment of the Hon'ble Supreme Court in P.S. Gopinath's case (supra), the facts of the present case would reveal that the seniority of the petitioner above the second respondent herein for over a period of four years remained unaltered and consequently, it could be said that the second respondent herein, is deemed to be have acquiesced to her original seniority fixation, wherein the petitioner was all along shown to be a senior to the second respondent herein. Resultantly, the first respondent herein ought not to have interfered with the seniority which has attained the finality over a period of four years and re-fixed the same and such re-fixation is opposed to the dictum of the Hon'ble Supreme Court in the aforesaid decision in general and in the case of 15/19

Shiba Shankar Mohapatra's case (supra) in particular. In this background, the proceedings of the first respondent herein deserves interference.

20. The main ground on which the petitioner questions the impugned order is that, the first respondent released the inter se seniority lists on 18.06.2012, 19.06.2012 & 06.08.2012, in which the petitioner's name was shown above the second respondent in the order of seniority and when the second respondent had not questioned the same, the first respondent ought not to have rejected his request for revision in the temporary promotional panel dated 21.06.2016. The mode of fixation of inter se seniority list as projected by the official respondents has not been seriously contended. Thus, when the earlier inter se seniority lists dated 18.06.2012, 19.06.2012 & 06.08.2012 has not been objected too by the second respondent and the same had continued till 21.06.

also. In view of the fact that mode of fixation of seniority list has not been seriously objected to, the objections of the learned Government Advocate does not require consideration.

21. For all the foregoing reasons, the impugned order dated 18.07.2016 and the consequential proceeding dated 19.07.2016 passed by the first respondent herein, are quashed. Consequently, there shall be a direction to the first respondent to restore the petitioner's seniority above that of the second respondent in the post of Assistant-cumAccountant as per the seniority list issued in Na.Ka.No.C1/3098/2012 dated 06.08.2012 and grant all consequential service and monetary benefits in accordance with such re-fixation, within a period of four weeks from the date of receipt of a copy of this order. The Writ Petition stands allowed. There shall be no order as to costs. 08.02.2023 Internet :Yes / No Order :Speaking / No DP 17/19

To 1.The Commissioner, Erode City Municipal Corporation, Erode-638 001.

2.The Secretary to Government, State of Tamil Nadu Municipal Administration & Water Supply Department, Secretariat, Fort St. George, Chennai-630 009.

3.The Commissioner, Municipal Administration & Water Supply Department, Ezhilagam, Chepauk, Chennai-600 005.

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M.S.RAMESH,J.

DP ORDER MADE IN W.P.No.28182 of 2016 08.02.2023 19/19