Madras High Court
T.Ganesan vs The State Of Tamil Nadu on 9 September, 2014
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.09.2014 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NOS.8036 AND 8037 OF 2013 AND CONNECTED MISCELLANEOUS PETITIONS T.Ganesan .. Petitioner in W.P.No.8036 / 2013 R.Natarajan .. Petitioner in W.P.No.8037 / 2013 Versus 1.The State of Tamil Nadu Rep. By the Chief Engineer (General) Highways Department Chepauk, Chennai 600 005. 2.The Divisional Engineer Highways Department Ariyalur District. .. Respondents in both WPs' PRAYER IN BOTH WP's: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records passed in pursuant to the impugned order issued by the 2nd respondent in proceeding K.No.336/2013/A1 dated 08.03.2013 and quash the same. For Petitioner (in both WPs') : Mr.S.M.Subramaniam For Respondents : Mr.R.Ravichandran Additional Government Pleader COMMON ORDER
The petitioners were initially working as Gang Mazdoor in the Highways Department. They were promoted as Road Inspector Grade II on 22.07.1981 and 01.10.1980 respectively. However, they were reverted subsequently after about one year due to want of vacancy. Again they were promoted as Road Inspector Grade II. As on 21.04.2000 and 22.06.1999, they rendered a total service of five years in the post of Road Inspector Grade II.
2.The Road Inspectors Grade II, who have rendered five years of service are eligible for promotion to the post of Road Inspector Grade I depending on the vacancies that would arise in the post of Road Inspector Grade-I. On completion of five years service as Road Inspector Grade II, such employees should come under the zone of consideration.
3.However, the Divisional Engineers of Ariyalur, Sivagangai, Paramakudi, Namakkal and Cuddalore promoted all the Road Inspectors GradeII as Road Inspectors Grade I, on completion of five years of service, irrespective of vacancies.
4.The petitioners belong to Ariyalur Division. In Ariyalur Division, an order was passed on 18.02.2010, promoting the petitioners as Road Inspectors Grade I, with effect from 22.04.2000 and 23.06.1999 respectively, on completion of five years of service as Road Inspectors Grade II. Similar orders were issued in some other divisions also.
5.Based on the orders passed in Ariyalur Division, Villupuram Division and Cuddalore Division etc., a batch of writ petitions were filed in W.P.Nos.4842 to 4847 of 2012 and the petitioners therein sought direction to the respondents therein to promote them as Road Inspectors Grade I on completion of five years of service.
6.In the said batch of writ petitions, I have considered the order dated 18.02.2010 promoting three persons as Road Inspector Grade-I on completion of five years of service as Road Inspector Grade-II, in Ariyalur Division. In this regard, it is useful to extract paras 12 and 22 to 27 of the judgment dated 01.02.2013 in W.P.Nos.4842 to 4847 of 2012, which reads as follows:
12.Thereafter, the Divisional Engineer, Ariyalur has passed an order in br/K/f.vz;/1/2009-10/A1, dated 18.02.2010 granting promotion to three persons as Road Inspector Grade I on completion of 5 years of service as Road Inspector Grade II.
22.I am of the strong view that the Divisional Engineers have played a foul play in issuing those orders. G.O.Ms.No.1858 and 856 were referred to in the above said six orders. These Government Orders do not provide promotion on just completion of five years of service. However, the Divisional Engineers have promoted the Road Inspectors Grade II to the post of Road Inspectors Grade I on just completion of 5 years of service. Therefore, they cannot plead that on the ignorance of the rules, they have passed the above said orders promoting the persons from Road Inspectors Grade II to Road Inspectors Grade I.
23.At this juncture, it is relevant to state that G.O.Ms.Nos.1858 and 858 (Public Works Department) dated 22.10.1989 and 1.6.1977 relate to Special Rules for Tamil Nadu Highways Engineering Subordinate (work charged) Service. Both G.O.Ms.Nos.1858 and 858 provide the method of appointment to the post of Road Inspector Grade I and Road Inspectors Grade II. It is mentioned in both the Government Orders that the post of Road Inspector Grade II has to be filled up by way of direct recruitment and the post of Road Inspector Grade I has to be filled up by way of promotion from among the Road Inspectors Grade II based on the grounds of merit and ability. The eligibility criteria for consideration for promotion to the post of Road Inspectors Grade I is that an employee should have rendered 5 years of service in Road Inspectors Grade II. It is nowhere stated in the above said two Government Orders that an employee can be promoted as Road Inspectors Grade-I on just completion of 5 years of service in Road Inspectors Grade-II. Hence, no employee can claim promotion, on just completion of 5 years of service as Road Inspectors Grade-II.
24.The Divisional Engineers in the above said Divisions have passed orders granting promotion on just completion of 5 years of service. Therefore, the petitioners have filed these writ petitions claiming promotion as Road Inspector Grade I from the post of Road Inspector Grade II.
25.As stated above, as per G.O.Ms.No.1858 and 856, the Road Inspectors Grade II would come within the zone of consideration for promotion to the post of Road Inspector Grade I. Just because an employee comes within the zone of consideration, he cannot claim promotion since the promotion depends on existence of vacancies and further the same is based on merit and ability.
26.But promotions were given contrary to service jurisprudence. Employees were wrongly given promotion just on completion of 5 years of service with monetary benefits, thereby causing heavy loss to public exchequer.
27.In view of the above, an enquiry has to be conducted at the top level as to the grant of promotion in Highways Department from Road Inspector Grade II to Road Inspector Grade I as some foul play took place therein. Hence, I hereby direct the Secretary, Highways Department, Fort St. George, Chennai to enquire into the illegality and submit the report to the Chief Secretary to Government, Fort st. George, Chennai for taking further action. The Government shall not allow such a blatant illegality granting undue promotion to the employees, who are not entitled under the Service Rules, thereby causing huge loss to the finance of the State.
7.By way of order dated 18.02.2010, three persons were granted promotion to the post of Road Inspector Grade I, on completion of five years of service. Two are the petitioners herein and another person one Mr.S.Sivaprakasam also was the beneficiary of such an illegal order.
8.After the judgment dated 01.02.2013 passed in W.P.Nos.4842 to 4847 of 2012, the impugned order dated 08.03.2013 was passed by the second respondent to recover the excess amount paid for the post of Road Inspector Grade I from the date of their promotion upto the date of passing of the impugned order dated 08.03.2013.
9.The petitioners have filed these writ petitions seeking to quash the aforesaid impugned order dated 08.03.2013.
10.Today, the Superintendent of Ariyalur Division is present before this Court with relevant records. He has stated that there was no vacancy in the post of Road Inspector GradeI as on 22.04.2000. The petitioners completed five years of service as Road Inspector Grade II as on 21.04.2000 and 23.06.1999 respectively. Hence, the petitioners and one Mr.Sivaprakasam were given promotion as Road Inspector Grade I by an order dated 18.02.2010. The Superintendent has further stated that when the petitioners completed five years of service as Road Inspector Grade II, there was no vacancy in the post of Road Inspector Grade I and that the vacancy arose only when the order dated 18.02.2010 was passed promoting them as Road Inspector GradeI. But retrospective promotion was given on the presumption that they are entitled to retrospective promotion on completion of five years of service.
11.The aforesaid facts are not disputed by the learned counsel for the petitioners. But the learned counsel for the petitioner has rightly pointed out that the impugned order may be correct in directing the petitioners to recover the excess amount paid that was paid upto 18.02.2010, the date of their promotion, but not upto 08.03.2013. According to him, since the petitioners actually served as Road Inspector Grade I with effect from 18.02.2010, that is from the date of order granting them promotion, there is no reason to recover the amount paid for the service rendered by the petitioners as Road Inspector Grade I.
12.I find considerable force in the submission made by the learned counsel for the petitioners in this regard. It is well settled that on promotion to a particular post, an employee is entitled to salary to the promoted post which is admitted by the learned Additional Government Pleader and the records produced by the Superintendent also revealed that promotion was made by an order dated 18.02.2010. However, instead of giving promotion from the date of order viz., namely 18.02.2010, when vacancy arose, it was erroneously given on completion of five years of service as Road Inspector Grade II.
13.As stated above, they came to the zone of consideration on 22.04.2000 and 23.06.1999. However, they are entitled promotion only in 2010, when there was vacancy. In my view, their promotion from 18.02.2010 is as per the rules, and the retrospective promotion alone is bad and thus, the impugned order is not correct seeking to deduct the excess amount paid, after 18.02.2010 also.
14.Accordingly, the impugned order dated 08.03.2013 insofar as ordering recovery for the amount paid for the post of Road Inspector Grade I, from 18.02.2010 concerned is quashed. As far as for the earlier period is concerned, the respondents can recover the amount that was paid for the promoted post of Road Inspector Grade I, since the petitioners did not discharge the duties of Road Inspector Grade I. However, the respondents are directed to recover the excess amount paid in easy installments.
15.This Court in W.P.Nos.4842 to 4847 of 2012 dated 01.02.2013 has already directed the Secretary, Highways Department, Fort St.George, Chennai to enquire into the illegality and submit a report to the Chief Secretary to Government, Fort St. George, Chennai for taking further action. However, it is not known as to whether the said direction was complied with or not.
16.Therefore, now a direction is issued to the Secretary to Government, Highways Department, Fort St.George, Chennai to submit a copy of the report to this Court, as per the order dated 01.02.2013 in W.P.Nos.4842 to 4847 of 2012, within a period of four weeks from the date of receipt of a copy of this order.
17.The Registry is directed to circulate a copy of this order to the Secretary to Government, Highways Department, Fort St. George, Chennai 9, and follow up the same.
18.The writ petitions are partly allowed in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.
09.09.2014 Index : Yes Internet : Yes TK To
1.The Chief Engineer (General) Government of Tamil Nadu Highways Department Chepauk, Chennai 600 005.
2.The Divisional Engineer Highways Department Ariyalur District.
D.HARIPARANTHAMAN, J.
TK W.P.NOS.8036 AND 8037 OF 2013 09.09.2014