@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThe Petitioner has filed the present writ petition, seeking for a direction to the first Respondent to restore the seniority of the Petitioner by placing him above his junior, who is the second Respondent with effect from 01.01.2003 in the panel for the year 2002-2003.
2. The writ petition was admitted on 24.03.2009. On notice from this Court, the first Respondent had filed a counter affidavit dated 21.10.2009. The Petitioner has filed a reply affidavit dated Nil December 2009.
3. Heard Ms. Vijayakumari Natarajan, learned Counsel for the Petitioner, Mr. V. Subbiah, learned Special Government Pleader appearing for the first Respondent and Ms. D. Veda, learned Counsel appearing for the second Respondent.
4. It is admitted that the Petitioner and the second Respondent belong to the Tamil Nadu Labour Service, which is a State service. Both of them were holding the post of Deputy Commissioner of Labour. The second Respondent was the immediate junior to the Petitioner. The further promotion from the post of Deputy Commissioner of Labour is to the post of Joint Commissioner of Labour and it is a selection post.
5. Hence, it is necessary to refer to the Clause (b) of Explanation II to Rule 2 of the Special Rules applicable to the Tamil Nadu Labour Service, which is as follows:
Explanation II (a) No person shall be eligible for recruitment by transfer to the post of Labour Officer, unless his name has been included in the list of persons approved by the State Government in consultation with the Tamil Nadu Public Service Commission as suitable for such transfer. Persons in such lists shall be arranged by the State Government in consultation with the Commissioner in the order of preference and appointment to the service by recruitment by transfer shall be made in such order.
b. The promotion to the posts of Joint Commissioners of Labour, Deputy Commissioners of Labour, Deputy Director, Tamil Nadu Institute of Labour Studies, Madras and Assistant Commissioners of Labour including Assistant Commissioner of Labour (Establishment and General) shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal.
6. The Government issued G.O.(D) No. 1090, Labour and Employment Department dated 09.08.2005 approving a panel for one person for promotion to the post of Joint Commissioner of Labour for the year 2002-03. The Petitioner''s case was overlooked in preference to his immediate junior, who is the second Respondent. The non-inclusion of the Petitioner''s name in the panel for the year 2002-03 was said to be attributable to the adverse remarks found in the Annual Confidential Report (for short ACR) within the check period of the panel. Pursuant to the inclusion of the name of the second Respondent, the second Respondent was given consequential posting order as Director of Tamil Nadu Institute of Labour Studies by G.O.(D). No. 1116 Labour and Employment Department, dated 31.08.2005.
7. Aggrieved by the same, the Petitioner sent representations dated 05.09.2005 and 14.09.2005 to the State Government. The State Government issued an order dated 31.01.2006 and rejected the request of the Petitioner. The Petitioner once again sent a representation dated 12.05.2006 and it was also rejected by the Government on 22.06.2006. The Petitioner did not chose to challenge the orders dated 31.01.2006 and 22.06.2006.
8. In the meanwhile, the Petitioner''s name was included in the panel of names fit for promotion to the post of Joint Commissioner of Labour for the year 2003-2004 vide G.O.(D). No. 463 Labour and Employment Department, dated 28.06.2006. Pursuant to the said GO, a consequential order in G.O.(D). No. 573 Labour and Employment Department, dated 08.08.2006 was passed and the Petitioner was promoted and appointed to the post of Secretary cum Chief Executive Officer of the Tamil Nadu Manual Workers Social Welfare Board. Three years after obtaining the said promotion, the Petitioner preferred the present writ petition and that too for the same direction to place him above the name of second Respondent.
9. In the absence of any challenge to the order including the name of the second Respondent in the panel, by G.O.(D). No. 1090 L & E Department, dated 09.08.2005 and the subsequent rejection of the Petitioner''s request by the State Government vide orders dated 31.01.2006 and 22.06.2006, the present writ petition is not maintainable and liable to be rejected on the short ground. Further, the writ petition is also liable to be rejected on the ground of laches and delay since the Petitioner has come forward to challenge the inclusion of the name of the second Respondent in an indirect manner after a period of four years from the date of the said panel.
10. Notwithstanding the same, Ms. Vijayakumari Natarajan, learned Counsel for the Petitioner contended that injustice had been done to the Petitioner. The Petitioner had done extremely well in the post of Deputy Commissioner and his disposal rate was also very high. According to the Petitioner, for the period from 28.12.1995 to 08.04.2007, he had consistently good outstanding ACR entries. During the preparation of the panel for the year 2002-2003, the check period from 03.02.2000 to 05.05.2001, he had the rating of ''Average''. Therefore, for the purpose of promotion, one has to take into account the cumulative rating for the entire period and not go by the isolated entry made for a block period. The person who made the entry as Reporting Officer for that period had himself given a good certificate to the Petitioner on 18.12.2000. The Commissioner of Labour, who was the Scrutinizing Officer had also given good commendatory certificates on 19.12.2000 and 20.12.2000. Therefore, it was contended that the Petitioner''s case deserves consideration. The learned Counsel had also produced the total number of cases disposed showing that rate of disposal was more high during the period in which adverse entries were made.
11. But noting in the Annexure 4 of the ACR in respect of the question for ''Capacity for control and supervision, tact, initiative and drive'' the entry made was as follows:
Not having sufficient control
In respect of the entry as against Item 11, the entry is as follows:
General narrative report with worked turned out, special responsibilities, extenuating or aggregating circumstances,etc.,
His disposal of cases in Workman Compensation Act and Shops and Establishment Act is only average. His supervision over subordinate officers is not effective
12. The Petitioner construing them as adverse entry had sent a representation dated 21.10.1991 but the same was negatived by the Commissioner of Labour by an order dated 24.09.2002 and that was also not challenged. The learned Counsel also relied upon a judgment of the Tamil Nadu State Administrative Tribunal in the matter of promotion given to one P. Jeyasingan in O.A. No. 1729 of 2003 stating that if a person writes adverse remarks and subsequently writes a letter of appreciation, then the adverse remarks made will be without justification. However, this Court is unable to agree with the said submission. The Tribunal is not justified in coming to such sweeping conclusion. May be in a case where the very entry of adverse remarks is under challenge on valid legal grounds, the Court may look into the attendant circumstances and decide the issue on merits and not otherwise.
13. In the present case, construing the entry as adverse remarks, the Petitioner had filed an application for expunging the same and when that was negatived, he did not make any challenge to the same. Further the promotion itself as seen from the relevant rule extracted above, is based upon grounds of merit and ability and seniority will be considered only when merit and ability are approximately equal. Since the Petitioner had not challenged the appointment of the second Respondent in this writ petition, the issue whether the second Respondent had superior claim over the Petitioner and got his name included cannot be gone into this writ petition.
14. Lastly, the learned Counsel for the Petitioner placed reliance upon the judgment of the Supreme Court in
58. From the above judgments, the following principles can be summarised:
(1) Under Article 16 of the Constitution, right to be "considered" for promotion is a fundamental right. It is not the mere "consideration" for promotion that is important but the "consideration" must be "fair" according to established principles governing service jurisprudence.
(2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury principles or it was mala fides.
(3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness.
(4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement.
(5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.
(6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed." The said judgment is not helpful to the case of the Petitioner.
15. On the contrary, in the present writ petition, this Court is not going into the adverse remarks made against the Petitioner as it had reached finality. This Court is also not going into the validity of the promotion given in favour of the second Respondent as the Petitioner''s representations against the said promotion was negatived by the Government twice and they are not under challenge. In the absence of any challenge to these orders, the Petitioner''s prayer to have his seniority fixed above the second Respondent cannot be countenanced by this Court. Admittedly, the second Respondent was included in the panel for the year 2002-2003 and got promoted to the higher post. The Petitioner''s name got included in the subsequent year''s panel and he was finally promoted only on 08.08.2006, exactly one year after the case of the second Respondent. When it is a Selection Post and the second Respondent had been promoted earlier to the next higher post, the Petitioner cannot seek for any higher seniority than the second Respondent.
16. The Supreme Court in Union Public Service Commission v. Hiranyalal Dev and Ors. reported in (1988) 2 SCC 242 in the matter of selection post had held that seniority is not a criteria. It was observed that when someone was selected in preference to the other, it could not be said that it amounted to super session of a junior by a senior. The concept of super session is relevant in the context of promotion and not in the context of selection.
17. In the light of the above, the writ petition is misconceived, bereft of any legal reasons and devoid of merits. Accordingly, the writ petition stands dismissed.
