Vazhivittan.M v. The Secretary To The Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN M.Vazhivittan ... Petitioner Vs.
1.The Secretary to the Government, Home Department, Secretariat, Fort St.George, Chennai - 600 009.
2.The Director General of Police, O/o. The Director General of Police, Kamarajar Salai, Mylapore, Chennai - 600 004.
3.The Superintendent of Police, Ramanathapuram District, Ramanathapuram.
... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order made in C.No.A3/3077/65/2020-3 dated 02.02.2022 passed by the 3rd respondent and quash the same insofar as the petitioner is concerned and consequently directing the respondents to refix the petitioner's seniority 1/8
on par with his batch mates provisionally selected for the year 2012-2013 instead of 2015 in the light of the order made in W.P.No.33706 of 2013 dated 27.07.2020 on the file of this Court.
For Petitioner : Mr.P.R.Prithviraj For Respondents : Mr.N.Ramesh Arumugam, Government Advocate.
ORDER
Heard the learned counsel on either side.
2.The petitioner took part in the recruitment process for the post of Grade II Police Constable for the year 2012 - 2013. Since the petitioner was not provided with appointment, he filed W.P.(MD)No.7347 of 2013. Vide order dated 29.04.2013, the writ petition was allowed. The petitioner was issued with appointment order on 11.10.2014. The petitioner was sent for training only on 05.10.2015. The petitioner is working ever since. The petitioner's grievance is that his seniority should be reckoned on par with his batchmates. With this prayer, the petitioner has filed this writ petition.
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3.The respondents have filed counter affidavit and the learned Government Advocate took me through its contents and pressed for dismissal of this writ petition.
4.I carefully considered the rival contention and went through the materials on record. The issue raised in the writ petition is no longer res integra. An identical issue arose for consideration in W.P.No.22454 of 2021 vide order dated 27.10.2021. The writ petition was allowed in the following terms:- "7. This is the case where the petitioner has successfully cleared examinations and the mile stone prescribed for qualifying himself to the post of Grade II Police Constable in the recruitment since during 2001-2003. However, the petitioner was not selected on the ground that the petitioner was medically unfit on account of bilateral flat feet which has been considered and not to be a qualifying for appointing the petitioner as Grade II Police Constable. The delay in getting appointed with the respondents was not on account of the fault of the petitioner but on account of the stand taken by the respondents. As a matter of fact under similar circumstances in W.P.(MD)No.33479 of 2016 by an order dated 02.09.2021, the 3/8
appointment was directed to be given pursuant to the order of this Court in W.P.No.3273 of 2016, dated 25.01.2008. The issue is no longer res-integra and the issue is squarely covered in favour of the petitioner. There the petitioner had sought for refixing of seniority to include his name in the appropriate list and selection list during the year 2001-2003 for the post of Police Constable with effect from the date of training. 8.In view of the above, the writ petition stands allowed with consequential relief to the petitioner. The respondents are therefore directed to carry out the necessary corrections in the Service Register of the petitioner by refixing the seniority of the petitioner along with the batchmates who participated in the Recruitment called for during the year 2001-2003.
The above exercise shall be carried out by the respondent within a period of twelve weeks from the date of receipt of a copy of this order." 5.I am inclined to adopt the very same approach. As rightly pointed out by the learned counsel appearing for the petitioner, the petitioner was not at all at fault. Only because the recruiting agency proceeded on misconception that the petitioner's vision was defective, he was not appointed. If everything had taken place in the appropriate time sequence, the petitioner would have been sent for training in the year 2012 itself.
petitioner cannot be made to suffer. Lost of three years seniority will definitely have serious civil consequence. The question that arises for consideration is whether the petitioner's application should be rejected as barred by limitation. Section 40(6) of the Tamil Nadu Government Servant (Condition of Service) Act, 2016 is as follows:- "Application for the revision of seniority of a person in a service, class, category or grade shall be submitted to the appointing authority within a period of three years from the date of appointment to such service, class, category or grade or within a period of three years from the date of order fixing the seniority, as the case may be. Any application received after the said period of three years shall be summarily rejected. This shall not however be applicable to cases of rectifying orders, resulting from mistake of facts."
The provision itself makes it clear that limitation will not be applicable to cases of rectifying orders resulting from mistake of facts. The case on hand would fall under such category. Non-inclusion of the petitioner in the seniority list of the year 2012 is a mistake of fact. 5/8
6.In this view of the matter, the orders impugned in the writ petition are set aside. The respondents are directed to fix the petitioner's seniority in the recruitment batch of the year 2012 at the appropriate place.
7.Adopting the same approach, the order impugned in the writ petition is set aside. The respondents are directed to fix the petitioner's seniority in the recruitment batch of the year 2012 - 2013 at the appropriate place.
8.This writ petition is allowed accordingly. No costs. 27.06.2023 NCC : Yes/No Index : Yes / No Internet : Yes/ No ias 6/8
To:- 1.The Secretary to the Government, Home Department, Secretariat, Fort St.George, Chennai - 600 009.
2.The Director General of Police, O/o. The Director General of Police, Kamarajar Salai, Mylapore, Chennai - 600 004.
3.The Superintendent of Police, Ramanathapuram District, Ramanathapuram.
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G.R.SWAMINATHAN, J.
ias 27.06.2023 8/8