(Prayer: To call for records of the order passed by the 1st Respondent vide Letter No. 13109 / HK2 / 2018-12 dated 23.07.2021 and to quash the same, and consequently direct the respondents to re-fix the seniority of the petitioner from the date of re-appointment i.e on 02.09.1988 and also to provide promotion all monetary benefits entitled to the Petitioner.)

1. This Writ Petition has been filed challenging the order dated 23.07.2021 and consequently direct the respondents to re-fix the seniority of the petitioner from the date of re-appointment i.e on 02.09.1988 and also to provide promotion, all monetary benefits, which are entitled to the Petitioner.

2. Heard the learned Senior Counsel appearing for the petitioner, the learned Government Advocate appearing for the respondents 1 and 3 and the learned Standing Counsel appearing for the 2nd respondent.

3(a). The learned Senior Counsel appearing for the petitioner would submit that though the petitioner joined during 1988, the seniority list of Assistant Engineers as on 01.01.2004 was issued first time on 15.06.2004 and thereafter, he has submitted his objection for the same. But, in spite of the objection, the first respondent has rejected his objection vide order dated 29.06.2004. Against which, the petitioner preferred a writ Petition in WP.No.21786 of 2004 and the same was ordered on 27.04.2009.

               (b). As per the direction of this Court, the TNPSC has forwarded the recommendation to the Government for re-fixation of seniority vide letter dated 02.08.2010. In the meanwhile, a Writ Appeal was filed against the above order in WA.Nos.1704 of 2010 and 304 and 305 of 2011, in which the Division Bench has set aside the Writ Court order. Against the Division Bench order, the petitioner has preferred the Review Application, in which this Court vide order dated 30.10.2014 directed the respondent to consider the case of the petitioner sympathetically. Having given such direction, the respondent without sympathetically considering the petitioner’s request, has rejected vide order dated 23.07.2021 with incorrect facts.

               (c).The learned Senior Counsel would further submit that, though the first respondent rejected the petitioner’s request on account of delay, there would not have been any delay as the petitioner has been consistently fighting for seniority since 2004. The sum and substance of the submission is that the impugned order was passed without application of mind. Hence, prayed to allow this writ petition by setting aside the impugned order and remit back the matter for fresh consideration, as per the directions in Review Petition.

4. Per contra, the said contention was stoutly objected by the learned Government Advocate and would contend that the petitioner was appointed as an Assistant Engineer through the Employment Exchange on temporary basis during 1984 and later on he was ousted from service after one year. After that, he was again appointed as Assistant Engineer on 02.09.1988 and his service was regularized with effect from 1984 vide G.O.Ms.No.528, Highways Department dated 30.06.1995. However, the petitioner’s seniority was fixed below the candidate selected by TNPSC in 1992 selection list. It is also the contention of the Government Advocate that, having fixation of seniority by the respondent against petitioner in the year 1995 itself, raising objection belatedly in the year 2004 is contrary to Rule 35(f) of the Erstwhile Tamil Nadu State and Subordinate Service Rules and 40(6) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016. It is also the contention of the learned Government Advocate that the rejection order is not based on incorrect facts, on the other hand, the rejection order was passed taking into consideration of the entire history and proclivity of the petitioner’s case. It is also the submission of the learned Government Advocate that the settled seniority cannot be disturbed after a period of 30 years. Hence, prayed to dismiss the present writ petition.

5. I have given my anxious consideration to either side submissions.

6. From the submissions made by the learned Senior Counsel, the impugned order dated 23.07.2021 is based upon a factually incorrect facts. In this regard, it is relevant to refer the impugned order passed by the respondent and the same is as follows:-

               “I am directed to invite your attention to your representation wherein you have requested to refix seniority from the date of your re-appointment i.e 02.09.1988.

               2. In this regard, it may be stated that your seniority has already been fixed by the Government in consultation with the Tamil Nadu Public Service Commission in the year 1995.

               3. As per Sec.40(6) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, the application for revision of seniority shall be submitted to the appointing authority within a period of three years from the date of order fixing the seniority. Any application received after the period of three years shall be rejected.

               4. Hence, your request cannot be complied with, since the seniority has already been fixed and settled both by the Court and Government in the year 1995 itself.

7. The learned Senior Counsel would submit that the above reason, more particularly challenging the seniority after a period of 30 years, is factually incorrect. In this regard, the learned Senior Counsel would invite the attention of this Court about the petitioner’s objection with regard to the seniority given before the respondents on 23.06.2004, which was later on rejected by the respondents on 29.06.2004. The learned Senior Counsel would also contend that against the rejection, they preferred a writ petition in WP.No.21786 of 2004. In which, this Court has accepted the objection of the petitioner and directed to revise the seniority. Against which, when some of the persons preferred WA.Nos.1704 of 2010, 304 & 305 of 2011, the order of the learned Single Judge was set aside. However, the learned Senior Counsel relies upon the filing of a Review and subsequent Review order.

8. Before we proceed with the review order, it is relevant to extract the relevant portion of WA.Nos.1704 of 2010, 304 & 305 of 2011:-

               “36. It is relevant as correctly submitted by Mr.K.Venkataramani, learned Senior Counsel appearing for the candidates appointed through TNPSC that Rule 35(f) of the Rules, which is as follows:

               "Rule 35(f). 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."

               makes it very clear that in respect of revision of seniority if there is any dispute, the same has to be raised within three years from the date of appointment in the said service or class and it makes it also clear that any application made after three years shall be summarily rejected, except in cases where it resulted from mistake of facts.

               37. By applying the said Rule to the facts of the present case, when the Government Order was passed in the year 1995, the writ petitioners have chosen to come to the Court in the year 2004 and, therefore, the grievance of the original writ petitioners cannot be looked into even as per the statutory provisions.

               38. The reliance placed on G.O.Ms.No.444, Agricultural (AE.II) Department, dated 13.6.1990 by Mr.AR.L.Sundaresan, learned Senior Counsel to show that in Agricultural Engineering Department regularization has been effected in respect of the Engineers appointed is under totally different circumstances, wherein the Government has regularized their services on the ground that the TNPSC has not conducted any recruitment process after 1982 in respect of the Assistant Engineers (Agricultural Engineering) and it was in those circumstances, by relaxation of various requirements, the Government has regularized the services. In the said order, the Government has also stated that the seniority must be assigned below the candidates last selected/approved by the TNPSC for the post of Assistant Engineer (Agricultural Engineering). This order does not help the candidates who are temporarily appointed since on the facts of the present case all the 37 candidates have been regularized with effect from the date of their original appointment.

               39. Even the other Government order in G.O.Ms.No.265, Highways (HK2) Department, dated 24.9.2004 relating to the appointment to the post of Assistant Engineers relied upon by the learned Senior Counsel clearly shows that the temporary appointees numbering 67 are to be regularized from the date of their original appointment, but in respect of the seniority they should be placed below the persons appointed through the TNPSC. Therefore, the same can be of no help to the writ petitioners.

               40. In these circumstances, the contentions raised by the learned Senior Counsel appearing for the temporary appointees as if the impugned order dated 27.4.2009 made in W.P.No.21786 of 2004 has not decided any issue and has only left it open to the Government to decide on merits again is not acceptable.”

9. Now let us consider the stand of the petitioner with regard to the Review Petition. It is the specific case of the learned Senior Counsel that in the Review Application Nos.11 to 13 of 2013, 44 to 46 of 2013 and 100 to 102 of 2014, this Court vide order dated 30.10.2014 has given liberty to the petitioner to once again raise his seniority issue. In this regard, they relied upon the orders of the Review Court in paragraph 17. For ready reference, paragraph 17 of the review order made in Review Application Nos.11 to 13 of 2013, 44 to 46 of 2013 and 100 to 102 of 2014 is extracted hereunder:-

               “17. Having not placed the entire facts and having not argued the case on the basis of the new facts, which, now he wanted to rely on, it is not open to the applicant to find fault with the decision of the Division Bench and to review the same. As rightly pointed out by Thiru.K.Venkataramani, the learned senior counsel, this review applicant’s case appears to be entirely different and it was not at all argued before the Division Bench. Hence, we are of the considered view that on the grounds raised by this review applicant, the order of the Division Bench cannot be reviewed. However, considering the fact that he was qualified in the TNPSC examinations in the year 1986 itself, it is also not in dispute and considering the replies given by the Department that his case would be considered after considering the seniors in the TNPSC selection list dated 22.09.1986, his case deserves some sympathetic consideration. Accordingly, we direct the review applicant in the Review Application Nos.100 to 102 of 2014 to make a fresh representation on the basis of his qualification in the TNPSC examinations to the authorities concerned, within four weeks from the date of receipt of a copy of this order and if such representation is received within the time, the competent authority to whom the representation is submitted, is directed to consider the same on merits and in accordance with law within a further period of eight weeks thereafter.”

10. It is relevant to mention that when the petitioner’s similar request was made on 15.06.2004, the same was rejected by the first respondent on 29.06.2004. While the petitioner challenging such rejection in WP.No.21786 of 2004, though the same was allowed to re-fix the seniority, the Division Bench of this Court in WA.No.1704 of 2010 vide order dated 18.09.2012 has set aside the same and has given a specific finding that having the petitioner was placed below the TNPSC recruits of the year 1992 and having accepted and joined, they cannot take such defence after a lapse of long delay. To put it differently, the seniority fixed in G.O.Ms.No.528 dated 30.06.1995 was confirmed. However, the main contention put forth by the learned Senior Counsel is based upon the Review Application filed against the Writ Appeal order.

11. While perusing the Review Application, this petitioner viz., C.Brahmarajan along with two other petitioners viz., (i) C.Subramanian and (ii)C.Jayaselvan filed a Review Application No.44 of 2013. The said Review Application was disposed of along with many other Review Applications viz. Review Application Nos.11 to 13 of 2013, 44 to 46 of 2013 and 100 to 102 of 2014. While looking into the order, in paragraphs 13 & 14 the Division Bench has observed as follows:-

               “13. In so far as the other ground was concerned, viz., G.O.Ms.No.265 Highways Department dated 24.09.2004, a perusal of the Government Order would show that it would not apply to the review applicants, who have been temporarily appointed under Rule 10(a) of the General Rules, but, it applies to the persons who are promoted as Assistant Engineers possessing BE/AMIE qualifications and having five years of experience. In fact, this issue was examined by the Division Bench in paragraph 38 & 39 of the judgment and therefore, the review applicants are not entitled to any relief on this ground. 14.Accordingly, Rev.Appl.Nos.11 to 13 and 44 to 46 of 2013 are dismissed. No costs.”

12. On perusal of the same, it is amply clear that the Review Application filed by the petitioner was dismissed. In the above Review Order, while dismissing the petitioner’s review Application, has held in paragraphs 38 and 39 as follows:-

               “38.The reliance placed on G.O.Ms.No.444, Agricultural (AE.II) Department, dated 13.6.1990 by Mr.AR.L.Sundaresan, learned Senior Counsel to show that in Agricultural Engineering Department regularization has been effected in respect of the Engineers appointed is under totally different circumstances, wherein the Government has regularized their services on the ground that the TNPSC has not conducted any recruitment process after 1982 in respect of the Assistant Engineers (Agricultural Engineering) and it was in those circumstances, by relaxation of various requirements, the Government has regularaized the services. In the said order, the Government has also stated that the seniority must be assigned below the candidates last selected/approved by the TNPSC for the post of Assistant Engineer (Agricultural Engineering). This order does not help the candidates who are temporarily appointed since on the facts of the present case all the 37 candidates have been regularized with effect from the date of their original appointment.

               39. Even the other Government order in G.O.Ms.No.265, Highways (HK2) Department, dated 24.9.2004 relating to the appointment to the post of Assistant Engineers relied upon by the learned Senior Counsel clearly shows that the temporary appointees numbering 67 are to be regularized from the date of their original appointment, but in respect of the seniority they should be placed below the persons appointed through the TNPSC. Therefore, the same can be of no help to the writ petitioners.”

13. At this juncture, it is also relevant to mention that subsequent to the ouster of the petitioner, TNPSC has also called for recruitment on 30.11.1992, whereas this petitioner was not at all participated in the recruitment. Having not participated in the recruitment process, as observed by the Division Bench, the seniority cannot be superseded with the persons those who have been regularly recruited.

14. Now reverting to the submissions made by the learned Senior Counsel, his entire submission is based upon the Review Application order, whereas, the review application filed by the petitioner was dismissed [as extracted hereinabove]. But the reliance was placed by the learned Senior Counsel is in Review Application No.100 to 103 of 2014, in which the petitioner was not at all a party. Therefore, the contention of the learned Senior Counsel that the Review Court has directed the authority for a sympathetic consideration is factually incorrect.

15. As rightly contended by the learned Government Advocate, as per the judgment of the Hon’ble Supreme Court in H.S.Vankani Vs. State of Gujarat reported in (2010) 4 SCC 301, the settled seniority should not be disturbed as the same would cause bitterness, resentment, hostility among the government servants and such action would run counter to the effective and smooth administration. Therefore, the reason assigned by the first respondent that there is a delay in submitting the application is well merited. Furthermore, the seniority has already been settled between the parties in WA.No.1704 of 2010 and the contention of the petitioner that he is entitled to give a fresh representation as per the Review Application order is factually incorrect. Therefore, this Court is of the firm view that, there is no merit in the writ petition.

16. Accordingly, this Writ Petition stands dismissed. No costs.