Madras High Court
R.Baskaran vs The State Of Tamil Nadu on 30 April, 2013
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.04.2013 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.(MD) No.725 of 2007 W.P.(MD).No.5495 AND W.P.(MD).No5496 of 2009 AND W.P.No.725 of 2007 R.Baskaran ... Petitioner -vs- 1.The State of Tamil Nadu Rep. by its Secretary to Govt., Local Administration, St., George Fort., Chennai - 9. 2.The Commissioner of Municipal Administration, Chepauk, Chennai - 5. 3.The Commissioner, Madurai Municipal Corporation, Madurai. 4.Mr.S.Chandrasekaran Assistant Engineer, Madurai Municipal Corporation, Madurai. 5.Mr.S.M.Rajendran Assistant Engineer, Madurai Municipal Corporation, Madurai. 6.Mr.S.Arasu Assistant Engineer, Madurai Municipal Corporation, Madurai. ... Respondents W.P.No.5495 AND W.P.No.5496 of 2009 #M.Kamaraj ... Petitioner in W.P.No.5495/2009 #M.Muneer Ahamed ... Petitioner in W.P.No.5496/2009 vs $The Commissioner of Madurai Corp., Madurai. ... Respondent in both W.Ps. Prayer in W.P.No.725/2007 : The Writ Petitions filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus, to call for the records relating to the list of seniority of Assistant Engineers/Junior Engineers issued in kep 1/35042/05, dated 12.01.2007 and consequential order of promotion issued in kep 1/35042/05 dated 18.01.2007 on the file of third respondent and quash the same as illegal and consequentially to direct the third respondent to revise the list of seniority of Assistant Engineers/Junior Engineers treating the Assistant Engineers and Juniors as single category for the promotion to the post of Assistant Executive Engineer in accordance with Rule 5 of Tamil Nadu Municipal Corporation Service Rules 1996. Common Prayer in W.P.Nos.5495 & 5496/2009 : The Writ Petitions filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus, to call for the records of the respondent relating to ma.na.1/35042/2005, dated 31.03.2009 and quash the same and consequently direct the respondent to prepare the inter-se-seniority list totally at first and two lists should be prepared before and after 01.10.1996 separately a fresh for the Assistant Engineers who are appointed by direct recruitment based on communal rotation and date of registration in the Employment Exchange and for the promotee Junior Engineers based on the date of joining into service with ratio of 3:1 respectively and thus implement the orders issued by the Commissioner of Municipal Administration, Chennai in his letter ROC No.471/2008/F-4, dated 27.08.2008, within a specified time frame. !For Petitioner ... Mr.S.Viswalingam in W.P.No.5495 & 5496 of 2009 Mr.M.Ajmal Khan Sr. Counsel for Mr.M.E.Elango in W.P.No.725/07 ^For Respondents ... Mr.M.M.Raja Rajan G.A for RR1&2 in W.P.No.725 of 2007 Mr.R.Murali for R3 in W.P.No.725/07 and Respondent in W.P.Nos.5495 & 5496 of 2009 Mr.Isaac Mohanlal for Ms.T.Sholly Suba Kumar for RR4-6 in W.P.No.725 of 2007 :COMMON ORDER
The issue involved in these writ petitions relate to the fixation of inter-se-seniority between the directly recruited Assistant Engineers and Promotee Junior Engineers in the Madurai Municipal Corporation. The relevant rules, which governs the issue is the Tamil Nadu Municipal Corporation Service Rules, 1996, (Rules) which was framed on 26.09.1996 and came into effect on 01.10.1996.
2. In W.P.No.725 of 2007, the petitioner, who is the Junior Engineer, has sought for issuance of a writ of Certiorarified Mandamus, to quash the seniority list of Assistant Engineers/ Junior Engineers, dated 12.01.2007 and the consequential order of promotion dated 18.01.2007 and for a direction to the Commissioner, Madurai Municipal Corporation to revise the seniority list treating the Assistant Engineers and Junior Engineers as single category for the promotion to the post of Assistant Executive Engineer in accordance with Rule 5 of the said Rules.
3. In W.P.Nos.5495 & 5496 of 2009, the petitioners are Assistant Engineers and they have sought for an identical prayer for issuance of writ of Certiorarified Mandamus, to quash the proceedings of the respondent corporation, dated 31.03.2009 and to direct the respondents to prepare the inter-se-seniority totally at first and two lists should be prepared before and after 01.10.1996 separately for Assistant Engineers, who are appointed by direct recruitment based on communal rotation and the date of registration in the employment exchange and for the Promotee Junior Engineers based on the date of joining into service in the ratio of 3:1 respectively by implementing the orders of the Commissioner of Municipal Administration, Chennai in his proceedings dated 27.08.2008.
4. Mr.M.Ajmal Khan learned Senior counsel appearing for the petitioner in W.P.No.725 of 2007 contended that the petitioner who was working as Junior Engineer is to be promoted to the post of Assistant Executive Engineer for which the feeder category is Assistant Engineer and Junior Engineer and these two posts form a single category and the officers, who have an Engineering degree, have been designated as Assistant Engineer and the officers, who possesses a Diploma in Engineering, were designated as Junior Engineer. It is further submitted that the nature of duties of both posts are one and the same and they are governed by the said rules, which came into effect on 01.10.1996. It is further submitted that the appointment of Assistant Engineer by direct recruitment and Junior Engineer by promotion shall be in the ratio of 3:1. However for the purpose of promotion of Assistant Engineers/Junior Engineers to the post of Assistant Executive Engineers both the posts form a single category and the promotion shall be made on the basis of the seniority among the Assistant Engineer/Junior Engineer. In this regard, emphasize was made on Rule 5 of the said Rules. It is further submitted that the respondent Corporation while preparing the tentative panel for promotion to the post of Assistant Executive Engineers adopted the ratio of 3:1 by selecting three candidates from the post of Assistant Engineer and one candidate from the post of Junior Engineer and this is contrary to Rule 5 of the Rules and in spite of the representations made by the persons aggrieved like the writ petitioner, they published the seniority list and also effected promotion and this has been challenged in this writ petition.
5. The learned Senior counsel further contended that the impugned seniority list and consequential order of promotion has been made in utter disregard to Rule 5 of the Rules, which only provides for ratio of 3:1 in the matter of appointment to Assistant Engineers and Junior Engineers and the rule does not envisage a ratio for promotion to the post of Assistant Executive Engineers in the ratio of 3:1, as both the posts form a single category. The learned counsel after referring to Rule 5 submitted that the Rule is manifestly clear and the respondents cannot add words to the statute and the interpretation sought to be given is wholly untenable. In support of his contention that while interpreting a statute, there cannot be any addition or subtraction of words, the learned Senior counsel referred to the decision of the Hon'ble Supreme Court in Colgate Palmolive (India) Ltd., vs. M.R.T.P. Commission and others, [AIR 2003 SC 317] . Therefore, the learned Senior counsel submitted that omission cannot be supplied by the Court, when the rule is clear and in respect of the Chennai Corporation and the Trichy Corporation, the rule for promotion to the post of Assistant Executive Engineer provides for a ratio of 3:1 and therefore, in cases arising out of those corporations, it was upheld and the said decision cannot be applicable to the Madurai Municipal Corporation, where the Rule is very clear that ratio is only for appointment to the post of Assistant Engineer by direct recruitment and by promotion from the post of Technical Assistant to the post of Junior Engineer by adopting a ratio of 3:1.
6. Mr.Isaac Mohanlal appearing for Ms.T.Shelly Suba Kumar learned counsel appearing for the respondents 4 to 6 submitted that the question of ratio to the post of Junior Engineer does not arise and in this regard, reference was made to the categories and class of posts and it was submitted that the ratio is only for promotion to the post of Assistant Executive Engineer as Junior Engineer and Assistant Engineer are two different streams and therefore, the question of applying ratio at the lower stage does not arise. It is further submitted that Assistant Engineers are classified as class II officers and Junior Engineers as class III officers, while Assistant Engineers, who are degree-holders are directly appointed, Junior Engineers are promoted from the post of Technical Assistant and the scale of pay for Junior Engineer is Rs.5500-175-9000, whereas for Assistant Engineers it is in the scale of Rs.6500-200-10500. It is further submitted that the rule is unambiguous and clear, as it stipulates that only after appointing three Assistant Engineers, one Junior Engineer can be promoted from the post of Technical Assistant and though the Assistant Engineers and Junior Engineers are considered as a single category for further promotions and the Junior Engineers would be placed below the three Assistant Engineers in the seniority list as appointment itself prescribes 3:1 ratio and therefore, the writ petitioners cannot contend that such ratio is not applicable for further promotion to the post of Assistant Executive Engineers.
7. Further, the learned counsel referred to the decision of this Court in W.P.No.9971 of 1998, dated 08.10.2004, [T.S.Chandrasekaran vs. Commissioner, Madurai Corporation] and submitted that an identical question came up for consideration before this Court in the said writ petition and this Court by order dated 08.10.2004, dismissed the writ petition and the same arguments as advanced by the petitioner in this writ petition came to be rejected and the judgment attained finality. Reference was also made to the Tamil Nadu Municipal Engineering Service Rules and the amendment made to the said rules vide G.O.Ms.No.38, dated 22.02.2010, wherein the Rule was amended to state that the Tamil Nadu Municipal Engineering and Water Works Service and the ratio for appointment between promotion from the post of Assistant Engineer and recruitment by transfer from the post of Junior Engineer shall be 3:1. The learned counsel placed reliance on the decision of the Hon'ble Suprme Court in P. Murugesan & Ors., vs. State of Tamil Nadu & Ors., [(1993) 2 SCC 340], wherein a dispute between degree-holders and diploma holders in Engineering Service under the Madras Municipal Corporation and identical question was decided in favour of the degree-holders and the judgment clearly applies to the facts of this case. Reliance was also placed on the decision of the Hon'ble Division Bench of this Court in W.A.(MD).Nos.1334 & 1336 of 2009, dated 21.01.2010 and though the matter pertains to the post of Assistant Divisional Engineers, the Hon'ble Division Bench upheld the ratio of 3:1 and the reasons assigned in the judgment would support the stand of the private respondents.
8. Mr.R.Murali, learned counsel appearing for the respondent Corporation submitted that prior to the introduction of the Service Rules, there were two sections namely, Engineering Section and Water Supply Section and after 1996, when the Rules were introduced, there were 27 Assistant Engineers and nine Junior Engineers. The learned counsel made elaborate reference to annexure 1 to G.O.Ms.No.237, by which the Tamil Nadu Municipal Corporation Service Rules, 1996, was framed and reference was made to the special instructions to protect the service conditions of existing corporation employees under saving class of the New Corporation Service Rules with specific reference to merger of Town Planning Department of Corporation with Engineering and Water Supply Department of Corporation and fixation of inter-se-seniority between the Assistant Engineers, Junior Engineers and Town Planning Inspectors. Therefore, the question of common seniority list for Assistant Engineers and Junior Engineers will not arise as per the saving class under the Service Rules and the contention that the Rule is clear and ratio has to be adopted and the interpretation given by the writ petitioner is wholly untenable.
9. Mr.S.Viswalingam, learned counsel appearing for the Assistant Engineers, who have filed a separate writ petitions in W.P.Nos.5495 & 5496 of 2009 submitted that at the time of framing of the Rule, the Government have taken into consideration the various aspects and issued general instructions appended to the Service Rules as per the applicability of the Rules to the existing employees of the Corporation and to group them for fixation of inter- se-seniority under the New Service Rules with special instructions to protect the service conditions of the existing corporation employees under saving class of New Corporation Service Rules. Further, it is contended that the clarification issued by the Commissioner of Municipal Corporation, dated 27.08.2008 is based on the New Service Rules and since the Commissioner of Madurai Corporation issued a memo to the writ petition in W.P.No.5496 of 2009, stating that in the instructions dated 27.08.2008, there is no direction to revise seniority list and therefore, the two writ petitions in W.P.Nos.5495 & 5496 of 2009 have been filed to quash the intimation given by the Commissioner of Madurai Corporation. It is further submitted that as per instructions given by the Commissioner of Municipal Administration, dated 27.08.2008, inter-se- seniority list between the directly recruited Assistant Engineers and promottee Junior Engineers should be in the ratio of 3:1 respectively and these instructions cannot be ignored by the respondent Municipal Corporation and therefore, the petitioners have sought for a direction to prepare two lists, one prior to 1996 and another after 1996 as per the New Service Rules and as per the instructions contained in the proceedings of the Commissioner of Municipal Administration, dated 27.08.2008.
10. Mr.M.M.Raja Rajan learned Government Advocate appearing for the respondents 1 & 2 in W.P.No.725 of 2007, reiterated the provisions of the Rules, submitted that the rules and instructions given in the annexure to the Rules have to be implemented and inter-se-seniority list has to be prepared strictly in accordance with the instructions contained in the Government order in G.O.Ms.No.237.
11. I have heard the learned counsel appearing for the parties and perused the materials placed on record and given my anxious consideration to the facts of the case and the issue involved in this writ petition.
12. The short question which falls for consideration in this writ petition is as to whether ratio of 3:1 has to be adopted for promotion to the post of Assistant Executive Engineer in the Madurai Municipal Corporation from the post of Assistant Engineer and Junior Engineer and whether the relevant rule namely, Rule 5 contemplates only the ratio for the lower category or whether the ratio should be followed for the promotion. The entire controversy rests on the interpretation of the Rule 5 of the said Rules, which reads as follows:-
5. Ratio between direct recruitment of Assistant Engineers and appointment of Junior Engineers by promotion. For the purpose of filling up of the vacancies in the posts of Assistant Executive Engineers the posts of Assistant Engineers and Junior Engineers shall be considered as a single category. The ratio of appointment of Assistant Engineer by direct recruitment and by promotion from the post of Technical Assistant to the post of Junior Engineer shall be 3:1.
13. The above Rule states that for the purpose of filling up the post of Assistant Executive Engineer, the post of Assistant Engineers and Junior Engineers shall be considered as a single category. The second limb of the Rule states that the ratio of appointment of Assistant Engineer by direct recruitment and by promotion from the post of Technical Assistant to the post of Junior Engineer shall be 3:1. In order to examine the scope and ambit of the said Rule, it would be necessary to refer to Rule 3. Under Rule 3 appointment to the post of City Engineer, Executive Engineer, Assistant Executive Engineer and the method of recruitment has been mentioned. The method of recruitment for the post of Assistant Engineer is by direct recruitment and that of the Assistant Executive Engineer is by promotion from the holders of the post of Assistant Engineer and Junior Engineer. The table provided in Rule 4 stipulates the qualification required for the post of Assistant Engineer. The method of appointment for Assistant Engineer is by direct recruitment and the qualification is a degree in Engineering or Town Planning from a recognised University and passed in departmental test prescribed for the Corporation before completion of probation. Therefore, the Tamil Nadu Municipal Corporations Engineering and Water Supply Service Rules speaks only about two classes of posts, namely Class I which consist of two groups and each group having one category of post under Class I, Group I, category 1 is the post of City Engineer, Group II category 1 is the post of Executive Engineer. In class II, there are two groups each having one category of post and under Group I, Category 1 is the post of Assistant Executive Engineer and Group II, Category 1 is the post of Assistant Engineer. Therefore, the contention that the Rule 5 speaks about a ratio to be followed in the matter appointment to the post of Assistant Engineer and promotion to the post of Junior Engineer from Technical Assistant is not the correct interpretation given to Rule 5.
14. As noticed above, the Rule 5 consist of two components, firstly it states that the post of Assistant Engineer and Junior Engineer form a single category for promotion to the post of Assistant Executive Engineer and the ratio is as per the second limb of the Rule, which stipulates the ratio of 3:1, which in fact is the ratio of appointment of Assistant Engineer by direct recruitment and Junior Engineer by promotion. Therefore, this interpretation alone would be a purposive interpretation and the actual intent and purpose of the Rule. This conclusion is further fortified, if the annexure I to G.O.Ms.No.237, is examined. At this stage, it has to be kept in mind that the Municipal Corporation Service Rules came into effect on 01.10.1996. Therefore, the departments which were functioning in the Madurai Corporation prior to 01.10.1996, were different after the Service Rules came into force on account of merger of departments.
15. Secondly, while fixing the inter-se-seniority, there had to be restructuring so that adequate representations and promotional opportunities are given to all categorise of posts, if the special instructions under annexure I of G.O.Ms.No.237, is perused, it is seen that after the Service Rule came into force on 01.10.1996, the Town Planning Department of the Corporation was abolished and therefore, the existing Town Planning Inspectors were brought under Engineering and Water Supply Department and designated as Assistant Engineers/Junior Engineers. The Assistant Town Planning Planning Officers were designated as Assistant Executive Engineer (Planning) and Town Planning Officers as Executive Engineers (Planning) and were allowed to be in separate posts without merging their services with any other services of the Corporation. Similar provisions were made for the Special Grade Town Planning Inspectors, who were redesignated as Junior Engineers (Planning).
16. Similarly one list of names of Assistant Engineers of Engineering and Water Supply Department was directed to be prepared and the names on the Assistant Engineers transferred from Town Planning Department were placed below the names of Assistant Engineers of Engineering and Water Supply Department. Likewise the names of Assistant Engineers of Town Planning Department were placed in the order of seniority in the post of Town Planning Inspectors. Another list of names of Junior Engineers of the Engineering and Water Supply Department was prepared and the Junior Engineers transferred from Town Planning Department were placed below the names of Junior Engineers of Engineering and Water Supply Department in the order of their seniority in the post of Town Planning Inspectors. The Government order also stipulated the manner regarding future appointments by stating that it shall be made in the ratio of 3:1, Engineering Graduate/ Assistant Engineers and one Diploma holders Junior Engineer and therefore, fixing of seniority of 3:1 does not arise in respect of future cases. But, it became necessary to follow such ratio now. While fixing the inter-se-seniority between Assistant Engineers and Junior Engineers along with Town Planning Inspectors, who are also be transferred to the Engineering and Water Supply Department. In such contingency, when there was already a panel of names of Assistant Engineers and Junior Engineers approved either by the Government or by the Special Officer of the Municipal Council, their names were directed to be not taken into account and inter-se-seniority was directed to be fixed for the remaining Assistant Engineers and Junior Engineers, who are waiting for inclusion of their names in the next penal for promotion to the posts of Assistant Executive Engineer along with Town Planning Inspectors, who are being transferred to the Engineering and Water Supply Department. While doing so, the contingency regarding the number of Junior Engineers available was also taken note of and further instruction was given that when Junior Engineers are more in number than Assistant Engineers, while following the ratio of 3:1 some Junior Engineers may remain without placement in the seniority lists and those cases were directed to be treated as a special case and thus, Junior Engineers were directed to be placed at the end of the seniority list and considered for promotion to the post of Assistant Engineer without refixing the seniority at the ratio of 3:1 along with Assistant Engineers, who are being appointed in future vacancies.
17. Therefore, the Rule has to be read as a whole though it may contain to two components and further the annexure to the Rules has to be necessarily looked into as special instructions have been given to protect the service conditions of the existing corporation employees under the saving class of the New Corporation Service Rules. Consequent upon the merger of Town Planning Department with Engineering and Water Supply Department and for appropriately fixing the inter-se-seniority.
18. Thus, this Court is unable to accept the contention of the learned Senior counsel appearing for the petitioner that the Rule is sought to be misinterpreted and attempt has been made to omit part of the rule. In view of the said conclusion, the decisions relied on by the learned Senior counsel appearing for the petitioner are of no assistance to the case of the petitioners. In W.P.No.9971 of 1998 filed by one Mr.T.S.Chandrasekaran, wherein prayer was made to quash the order passed by the Commissioner, Madurai Corporation, dated 24.06.1998 and for a direction to promote the petitioner therein as Assistant Executive Engineer. By the said order dated 24.06.1998, one Mr.Chellappa, who was the second respondent therein was promoted as Assistant Executive Engineer. The petitioner therein was a Promottee Junior Engineer and it was contended that he has joined the post of Junior Engineer earlier than the second respondent therein and should have been promoted as Assistant Executive Engineer earlier to the second respondent. An identical contention was raised by contending that the ratio of 3:1 should not be followed as both the posts are single category. After considering the effect of Rule 5 as in the instant case, being raised in the petitioner therein was rejected and the writ petition was dismissed. The operative portion of the order reads as follows:-
11. Clinging to the first part of this clause to the effect that between the direct recruitment of Assistant Engineers and appointment of Junior Engineers by promotion, for the purpose of filling up the post of Assistant Executive Engineers, the post of Assistant Engineers and Junior Engineers shall be considered as a single category, the petitioner has come forward to claim that as per this part of clause V since the petitioner joined the post of Junior Engineer earlier than the second respondent, he should have been promoted as Assistant Executive Engineer prior to the second respondent and therefore, the petitioner would come forward to quash the promotion order which is impugned herein.
12. On the contrary, it would be very strongly argued on the part of the first respondent Corporation in a crisp manner that as per the above Clause V of the Rules, the ratio of appointment of Assistant Engineer by direct recruitment and by promotion from the post of Technical Assistants to the Junior Engineer would be 3:1, adhering to which the promoting have been given effect to and the same is proper and quite legal.
13. No mention need be necessary that on a bare reading of the abvoe clause extracted, it could be understood that though the posts of Assistant Engineers and Junior Engineers as in the manner aforementioned shall be considered as a single category, still in the second part of the said clause the ratio of appointment of Assistant Engineer by direct recruitment and by promotion from the post of Technical Assistant to the post of Junior Engineer shall be 3:1 and the second respondent since being Assistant Engineer by direct recruitment, according to the ratio, if three of them are promoted, from the category of the petitioner that is from Technical Assistant to the post of Junior Engineer for being promoted, the only one would get the opportunity and therefore, in accordance with the preference of the second respondent category, he has been placed before the petitioner and there is no wonder in such placements occurring in the matter of promotion to the posts of Assistant Executive Engineer and therefore, the petitioner cannot claim priority over the second respondent in the placements since when three of the second respondent's category would be getting the chance for promotion only one of the category of the petitioner gets the opportunity and therefore the above fixation of the ratio since being reasonable particularly when the petitioner is not challenging the said ratio, is dis-entitled to challenge the priority given to the second respondent in accordance with the ratio and hence the following order.
In result,
(i) the above writ petition does not merit acceptance but becomes only liable to be dismissed and is dismissed accordingly:
(ii) the order of the first respondent dated 24.06.1998 issued in No.Ma.Nee.2/4924/98 is confirmed.
No costs.
19. The above decision applies with full force of the facts of the case, wherein an identical contention came to be rejected. Furthermore, the above aforementioned order has become final and conclusive.
20. In the case of P. Murugesan & Ors., vs. State of Tamil Nadu & Ors., referred supra, was a dispute between degree-holders and diploma holders in the Engineering Service under the Madras Municipal Corporation. A somewhat identical contention was raised by the Diploma holders by contending that for promotion, it is not permissible for the Rule making authority to make any distinction between graduates and non-graduates. This contention was rejected by the Hon'ble Supreme Court and it was held that the distinction was also in the matter of promotion and not for any other purpose.
21. Hence, for all the above reasons, the petitioner in W.P.No.725 of 2007, has not made out a case to interfere with the seniority list dated 12.01.2007, and the consequential orders of promotion dated 18.01.2007 and the writ petition fails and it is dismissed.
22. In view of the said conclusion and the seniority list and consequential promotion orders having been upheld, W.P.Nos.5495 & 5496 of 2009 are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
pbn Copy to:-
1.The State of Tamil Nadu Rep. by its Secretary to Govt., Local Administration, St., George Fort., Chennai - 9.
2.The Commissioner of Municipal Administration, Chepauk, Chennai - 5.
3.The Commissioner, Madurai Municipal Corporation, Madurai.