Dismissed

C. Stephen Mascarenhas v. the Commissioner

Madras HC6 Sept 2011WP(MD)/10006/2011

Case brief

AI extract

What is this about?

A writ petition challenging a recruitment circular for Deputy Manager posts was dismissed. The court held that since selection is based on merit (tests/interviews) and not seniority, a petitioner who failed earlier due to punishment cannot claim a right to the latest fresh recruitment process.

What the court decided

AI extract

C. Stephen Mascarenhas Vs the Commissioner — Pension and Retirement Benefits | Madras HC (2011)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.09.2011 CORAM:

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.10006 of 2011 and M.P.(MD)Nos.1 to 3 of 2011

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C.Stephen Mascarenhas, Code No.10871, Selection Grade Executive Stores (Tech), Madurai District Co-operative Milk Producers Union Limited, Madurai.

: Petitioner

Vs.

1.The Commissioner,

Milk Production and Dairy Development Department, Madhavaram Milk Colony,

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Chennai.

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2.The General Manager, Madurai District Co-operative Milk Producers Union Limited, Madurai.

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: Respondents

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PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned circular made in Na.Ka.No.3136/Pagu.1/2011, dated 30.08.2011 passed by the second respondent insofar as recruitment to the post of Deputy Manager (Dairy/Engineering) is concerned and quash the same and consequently, direct the respondents to appoint the petitioner in the post of Deputy Manager (Dairy/Engineering) in the second respondent union.

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For Petitioner : Mr.D.Sadiq Raja For Respondents : Mr.B.Pugalendhi Special Government Pleader ORDER

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Challenge in this Writ Petition is to the proceeding dated 30.08.2011 passed by the General Manager, Madurai District Co-operative Milk Producers Union Limited, Madurai, the second respondent herein, insofar as recruitment to the post of Deputy Manager (Dairy/Engineering) is concerned and consequently, the petitioner has sought for a Certiorarified Mandamus, to quash the same and direct the respondents to appoint him in the post of Deputy Manager (Dairy/Engineering) in the second respondent Union.

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Assailing the correctness of the impugned circular, Mr.D.Sadiq Raja, learned counsel for the petitioner submitted that earlier when a similar circular in Na.Ka.No.3136/Pagu.1/2007, dated 30.07.2007, was https://hcservices.ecourts.gov.in/hcservices/ issued, for recruitment of various posts including eight posts of the Deputy Manager (Dairy/Engineering) in the second respondent Union, the petitioner attended the interview and his name appeared at the 8^th place out

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of 18 in the merit list. Unfortunately, his name was not approved by the Selection Committee, on account of a punishment of postponement of increment for a period of six months without cumulative effect, imposed vide proceedings of the General Manager, Madurai District Co-operative Milk Producers Union Limited, Madurai, the second respondent herein, in Na.Ka.No.727/Tho.Oo/2007, dated 28.10.2007.

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Learned counsel for the petitioner further submitted that when the period of punishment has expired, the respondents ought to have promoted the petitioner to the post of Deputy Manager (Dairy/Engineering), as per the Full Bench decision of this Court in The Deputy Inspector General of Police, Thanjavur Range v. V.Rani reported in 2011(3) CTC 129 and that it is not open to them to initiate fresh process for recruitment of the remaining unfilled two Deputy Manager posts. According to the learned counsel, the petitioner is fully qualified and without considering his case, for promotion to the post of Deputy Manager (Dairy/Engineering) in the remaining unfilled vacancies, the second respondent has issued the impugned circular, which has to be set aside.

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Heard the learned counsel for the petitioner and the learned Special Government Pleader for the respondents and perused the materials available on record.

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Pleadings disclose that earlier when the circular dated 30.07.2007 was issued by the General Manager, Madurai District Co-operative Milk Producers Union Limited, Madurai, the second respondent herein, calling for applications to fill up various posts including the eight posts of Deputy Manager (Dairy/Engineering) in the second respondent Union, the petitioner also submitted an application and though he is qualified in all respects, promotion was not given, on the ground that he suffered a punishment of postponement of increment for six months, vide orders dated 28.10.2007.

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Pleadings and material on record also disclose that the petitioner was placed under suspension on 13.02.2007 and after a departmental enquiry, the above said punishment had been inflicted. Out of eight posts notified, six posts had been filled up. By the impugned circular dated 30.08.2011, once again, the General Manager of Madurai District Co-operative Milk Producers Union Limited, the second respondent herein, has invited applications from eligible candidates, to fill up the remaining two posts of the Deputy Manager (Dairy/Engineering) and other posts in the Office of the second respondent Union. Though the petitioner has contended that he has a legal right to be considered for promotion to the above said post, after the expiry of period of punishment, as per the Full Bench judgment of this Court, cited supra , nothing prevented the petitioner to submit an application, to the General Manager of Madurai District Co-operative Milk Producers Union Limited, Madurai, the second respondent herein before a specified date i.e., 15.09.2011. The representation dated 14.09.2009 of the petitioner said to have been sent to the General Manager of Madurai District Co-operative Milk Producers Union Limited, Madurai, the second respondent herein shows that earlier when the circular dated 30.07.2007 was issued by the second respondent for filling up the vacancies for the posts of Deputy Manager (Dairy/Engineering), the https://hcservices.ecourts.gov.in/hcservices/ petitioner has attended the written test and personal interview. It is evident from his representation and the averments made in this Writ

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Petition that only those who were successful in the written test and personal interview, were being considered for the post of Deputy Manager (Dairy/Engineering) in the office of the second respondent and it is not by mere seniority. When merit is the criteria for selection to the post of Deputy Manager (Dairy/Engineering), it is not open to the petitioner to contend that he ought to have been considered for promotion, on the expiry of the period of punishment. The selection process for that year is over and eligible candidates have been promoted. The petitioner, who is unsuccessful in getting promotion on account of the punishment, cannot seek for promotion, on the basis of the earlier selection, which included a written test and interview.

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In such view of the matter, having regard to the selection process to the post of Deputy Manager (Dairy/Engineering), this Court is of the view that there is no manifest illegality in the impugned circular of the General Manager, Madurai District Co-operative Milk Producers Union Limited, Madurai, the second respondent herein, which was issued to fill up the vacancies, without prejudice to the pendency of the Writ Petitions filed before this Court.

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For the reasons stated supra , the Writ Petition stands dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs.

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Sd/-

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Assistant Registrar (RTI)

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/True copy/

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Sub Assistant Registrar(C.S)

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