Madras High Court
M.Perumal vs The Principal Secretary & Commissioner on 24 June, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.Nos.5867 and 5868 of 2014 and M.P.Nos.1 and 2 of 2014 M.Perumal ... Petitioner in W.P.No.5867 of 2014 N.Dhanalakshmi ... Petitioner in W.P.No.5868 of 2014 -Versus- The Principal Secretary & Commissioner, Corporation of Chennai, Chennai. ... Respondents in both Writ Petitions Prayer in W.P.No.5867 of 2014: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondent to implement the panel for promotion to the post of Junior Assistants for the year 2012-2013 communicated in P.D.Na.Ka.No.C6/38369/2012 dated 11.06.2013 and promote the petitioner as Junior Assistant in pursuance of inclusion of his name in the said promotion panel at Sl.No.58 and grant him all consequential service and monetary benefits and grant such other further relief. Prayer in W.P.No.5868 of 2014: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondent to implement the panel for promotion to the post of Junior Assistants for the year 2012-2013 communicated in P.D.Na.Ka.No.C6/38369/2012 dated 11.06.2013 and promote the petitioner as Junior Assistant in pursuance of inclusion of his name in the said promotion panel at Sl.No.55 and grant her all consequential service and monetary benefits and grant such other further relief. For Petitioner(s) in both : Mr.K.Venkataramani, Writ Petitions Senior Counsel for Mr.M.Muthappan For Respondent in both : Ms.Karthikaa Ashok, Writ Petitions Standing Counsel COMMON ORDER
The petitioners in both the writ petitions are presently working as Sanitary Workers in the Corporation of Chennai. The next avenue of promotion for them is to the post of Junior Assistant. For the year 2012-2013, the respondent Corporation approved a penal for promotion consisting of as many as 61 eligible persons in the feeder category. The petitioner in W.P.No.5868 of 2014 was in the 55th rank and the petitioner in W.P.No.5867 of 2014 was in 58th rank. The said panel was operated and out of the 61 persons, 54 persons were promoted as Junior Assistants as per the proceedings of the respondent in P.D.Na.Ka.No.C6/38369/2012 dated 11.06.2013. Thereafter, the panel was not operated. According to the petitioners, the said panel will be in force for a period of one year from the date of its publication [i.e., from 11.06.2013]. Thus, according to them, the panel should be operated till 10.06.2014. It is also the case of the petitioner, had the panel been operated on or before 10.06.2014, the petitioners would have been promoted by this time. But, instead of doing that the respondent corporation has published a fresh panel for promotion as per the proceedings of the respondent in P.D.Na.Ka.No.C6/37000/2013 dated 14.02.2014. In this panel, the petitioner in W.P.No.5868 of 2014 is kept at 53rd rank and the petitioner in W.P.No.5867 of 2014 has not been included. Totally, there are 54 candidates included in the said panel dated 14.02.2014. According to them, the earlier panel dated 11.06.2014 had not lost its life as on the date of filing of these two writ petitions. Therefore, according to them, the respondent should be directed to give effect to the panel dated 11.06.2013 and promote the petitioners as Junior Assistants. Hence, these writ petitions.
2. Since common issues are involved in both the writ petitions, they were heard together and they are disposed of by means of this common order. I have heard the learned counsel for the petitioners and the learned standing counsel for the respondent and also perused the records carefully.
3. In the counter affidavit filed by the respondent it is stated that for drawal of panel for the year 2012-2013, the crucial date was 01.08.2012. By taking 01.08.2012 as the crucial date, a panel consisting of 61 persons was drawn for the said year. Out of which 54 alone were actual vacancies and 7 posts were only 5 persons leave reserve vacancy. But, since there was no vacancy beyond the actual vacancies arose within the panel year 2012-2013, i.e., from 01.08.2012 to 31.07.2013, the petitioners could not be considered for promotion. It is also stated that since the actual vacancies occurred during the panel year 2012-2013, i.e., from 01.08.2012 to 31.07.2013 were filled up and leave reserve vacancy did not arise within the panel year, necessary action was taken by the respondent to fill up the vacancies for the year 2013-2014, for which, 01.08.2013 was the crucial date. Based on the same, a tentative panel dated 14.02.2014 was prepared and the same has been circulated calling for objections. It is also stated that if the petitioners have got any objection regarding the tentative panel, it is for them to raise objections before the appropriate authority.
4. It is further submitted by the respondent that the appointment committee of the respondent Corporation passed a resolution under Resolution No.271/2013 dated 23.12.2013 wherein the committee directed that the persons who were appointed on compassionate grounds in lower cadre with degree qualification at the time of appointment are exempted from three years of service as prescribed for promotion as Junior Assistant and they are eligible for promotion as Junior Assistant in the year 2013-2014 as first priority. The tentative panel for promotion to the post of Junior Assistant 2013-2014 comprising 54 persons from the feeder categories which includes first 21 persons, viz., those who were appointed in lower categories on compassionate grounds with degree qualification at the time of appointment as per the above Resolution, followed by compassionate employees with more than 3 years service, but without degree qualification and employees with minimum educational qualification putting more than 5 years of service as per Chennai Corporation Class-III and IV Subordinate Service revised By-law 2009. Following the said by-law, the panel has been prepared and circulated among staff. Thus, according to the counter there is no violation of the rules. The leave reserve panel 2012-2013 could not be operated since all the vacancies arose in the panel year 2012-2013 from 01.08.2012 to 31.07.2013 were filled up.
5. Thus, according to the respondent, the panel for the year 2013-2014 was prepared giving top priority in the matter of seniority for graduates who were appointed on compassionate grounds in the lower cadre with 3 years of experience and followed by a compassionate appointees with 5 years of experience followed by the others. This panel was drawn as per the decision of the appointment committee and, therefore, promotion is to be validly given as per the said panel.
6. I have considered the above submissions carefully.
7. Since a stand has been taken in the counter affidavit that the panel for the year 2013-2014 has been tentatively prepared and published, in accordance with the Corporation by-laws of the year 2009, this court ventured to examine the said issue. But, it came to light that by-law of the year 2009 has not been sanctioned by the the Government and, therefore, the same cannot be operated. In this regard, I may refer to Section 394 of the Chennai City Municipal Corporation Act, 1919 which empowers the Municipal Council to make by-laws on the subjects enumerated therein which includes the power to make by-law in respect of employees of the corporation. Section 352 of the said Act mandates that for any such by-law made by the council to take effect, sanction of the same by the State Government is absolutely essential. The said provision reads as follows:-
"352. Confirmation of by-laws by State Government - (1) No by law made by the council under this Act shall have any validity unless and until it is sanctioned by the State Government.
(2) The State Government may, at any time, by notification, repeal wholly or in part or modify any by-law:
Provided that before taking any section under this sub-section, the State Government shall communicate to the council, the grounds on which they propose to do so, fix a reasonable period, for the council to show cause against the proposal and consider its explanations and objections, if any.
(3) The repeal or modification of any be-law shall take effect from the date of the order and shall not affect any thing done, omitted to be done or suffered before such date."
8. In this case, since it has been stated in the counter that the panel for the year 2013-2014 has been prepared as per the by-law of the corporation of the year 2009, this court wanted the respondent to inform as to whether the said by-law has got sanction of the Government so as to take effect. In this regard, the Principal Secretary and Commissioner has submitted an affidavit dated 20.06.2014 wherein he has tacitly admitted that prior to 2009 in respect of Class-III and Class IV employees of the Corporation, a by-law was approved by the council by Resolution No.753/1981 dated 26.04.1981 and the same was forwarded to the Government for sanction, but, the Government did not pass any order sanctioning the same. Thus, according to the counter affidavit, even the by-law of the year 1981 had not taken force. All these years, it appears that appointments were made by following the by-law of the year 1981 which has got no force at all. It is further stated in para 3 of the affidavit by the Principal Secretary / Commissioner that in order to give effect to the change of pay structures and in the interest of better administration, a new by- law was framed in the year 2009. The same was published in the Bulletin of the respondent Corporation vide Bulletin No.51 dated 30.12.2009 and the same was approved by the Council vide Resolution No.45/2010 dated 28.01.2010.
9. It is further stated that the said by-law of the year 2009 was forthwith sent to the Government for sanction as required under Section 352 of the Act. But, it was not sanctioned. While so, in the year 2011, the by-law of the year 2009 was again revised in the interest of the administration and the revised by-law which was approved by the council under Resolution No.188/2011 dated 29.06.2011 was forwarded to the Government seeking sanction. The same is pending with the Government.
10. From the above submissions it is crystal clear that such a very big organization which has got a checkered history has got no by-law, as of now, in force with the sanction of the State Government relating to the appointments and service conditions of Class-III and IV employees of the corporation. From the affidavit of the Commissioner it is inferable that all these years [i.e., for more than 33 years] without there being a by-law sanctioned by the Government, the Corporation is making appointments and regulating the conditions of services of Class-III and IV employees of Corporation of Chennai only based on the unapproved by-law of the year 1981 followed by the by-law of the year 2009. Thus, the stand taken by the Government that the panel for the year 2013-2014 was prepared based on the by-law of the year 2009 cannot be sustained. The same, in my considered opinion, is non est in the eye of law which cannot be given effect to at all.
11. But, in the counter affidavit, the respondent has further stated that as per Section 85(3)(c) of the Act, all appointments to Class-III and Class-IV employees shall be made by the appointment committee consisting of Mayor, the Commissioner and two Councillors elected by the Council, which shall be established for the corporation subject to the by-laws, if any, made by the council. In the cases on hand, it is contended by the respondents that exercising such power, the appointment committee has drawn the tentative panel for the year 2013-2014 as per its resolution vide Resolution No.271 dated 23.12.2013 which was later on approved by the council by Resolution No.827/2013 dated 27.12.2013. But, Section 86 of the said Act mandates that in respect of service conditions of Class-III and Class-IV employees, the council should make a by-law under Section 349 of the Act and the same shall regulate the service conditions of these employees. But, in the cases on hand, as I have already pointed out, no by-law has been sanctioned by the Government and thus, the stand of the respondent that in the absence of the by-law, the appointment committee can make appointments is only to be rejected because such appointment committee cannot have arbitrary power to appoint anyone in its whims and fancies without there being a by-law prescribing the qualifications, experience and the other requirements for appointment or for promotion. In view of the same, the contention of the respondent that the tentative panel for the year 2013-2014 had been approved both by the appointment committee as well as the council shall not make the panel valid. I hold that the tentative panel for the year 2013-2014 is non est in the eye of law.
12. Now, turning to the panel prepared for the year 2012-2013, admittedly, this panel has been operated to the benefit of 54 candidates. Since this panel also has been prepared only as per the by-law of the year 2009, the said panel is also not in accordance with law. But, since this panel has been operated to the benefit of 54 persons included in the said panel, to maintain parity and to avoid any kind of kios and confusion, the said panel should be operated in respect of the others who are also included in the said panel. For this panel, the crucial date was 01.08.2012. But, admittedly, it was published only on 11.06.2013. Now, the crucial question is as to whether the said panel is to be operated for one year from date of publication of panel [i.e., from 11.06.2013] or for one year from the date of crucial date for panel [i.e., 01.08.2012]. As we have already seen, it is the contention of the petitioners that the panel will be valid for one year from the date of publication viz., 11.06.2013 whereas, according to the respondent, the said period of one year should be counted from the crucial date of panel viz., 01.08.2012. It is the contention of the respondent that since as against the estimated leave reserve vacancies, actual vacancies did not occur prior to 31.07.2013, the petitioners could not be appointed. This contention of the respondent, in my considered opinion, cannot be accepted for more than one reason. First of all, the period of one year cannot commence from the crucial date of the panel, but it should commence only from the date of publication of the panel.
13. In this regard, the learned senior counsel for the petitioners relied on the letter of the Government under Letter No.31189/S98-1, Personnel and Administrative Reforms (S) Department, dated 13.07.2000 wherein the Government has clarified that according to Rule 4 of the General Rules, all lists (Panels) prepared for a year shall be displayed in the Notice Board in the Office of the appointing authority. The list should also be communicated by Registered Post to all persons concerned whose names are found in the list as well as to persons senior to the junior most persons included in the list whose names have not been included in the list. The list so published shall be valid for a period of one year from the date of approval by the competent authority. It shall lapse at the expiry of one year. If the estimated vacancy for any particular year is nil, a 'Nil' list should also be displayed in the aforesaid manner.
14. From the above letter of the Government, it is crystal clear that the period of one year should commence not from the date of crucial date for preparation of the panel, but, it should be from the date of publication of the panel.
15. The learned senior counsel would refer to Rule 4 of the General Rules for the Tamil Nadu State & Subordinate Service Rules which also states that the list of approved candidates, so prepared, shall be in force for a period of one year only and shall lapse at the end of the year. Since Rule 4 is ambiguous, the Government has clarified by means of the letter referred to above that the period of one year shall commence from the date of publication of the panel. In view of the above said position, I hold that in the cases on hand, the panel for the year 2012-2013 should have been operated until 10.06.2014 and not for one year from 01.08.2012, the crucial date for the panel.
16. The next contention of the respondent in the counter is that as far as the panel for the year 2012-2013 is concerned, there were only 54 vacancies and all the 54 vacancies were filled up. Regarding this, there is no dispute. It is further stated that 7 more persons were included as against leave reserve vacancies. Since, no such vacancy actually arose during the panel year between 01.08.2012 to 31.07.2013, the petitioners were not promoted. This contention deserves only to be rejected, because, as I have already concluded, this panel would be valid till 10.06.2014 and so, the vacancy which arose on or before 10.06.2014 should have been filled up by operating the list for the year 2012-2013. It is not the case of the respondent that no vacancy arose between 31.07.2013 to 10.06.2014. Therefore, in my considered opinion, the vacancies which arose before 10.06.2014 ought to have been filled up by following the list for the year 2012-2013 and if that is done, the petitioners would have been promoted by this time. Thus, the stand taken by the respondent is not correct and the same is rejected.
17. The contention of the respondent that the appointment committee passed a resolution to keep the candidates appointed on compassionate grounds above the other candidates is discriminatory and violative of Article 14 of the Constitution of India and therefore, the stand of the Corporation justifying the action of the respondent keeping the compassionate appointees above the others is not legal.
18. In view of the above position, the writ petitions are allowed with the following directions:-
(i) It is declared that the approved panel for the year 2012-2013 should be operated until 10.06.2014 and the actual vacancies which arose as against the estimated vacancies before 10.06.2014 shall be filled up by operating the panel for the year 2012-2013.
(ii) If the petitioners fall within the zone from out of the panel for the year 2012-2013 as against the above vacancies, they shall be promoted as Junior Assistants.
(iii) It is further directed that a consequential order shall be passed by the respondent within a period of two months from the date of receipt of a copy of this order.
(iv) It is directed that the respondent shall endeavor to put in place a by-law relating to the appointments and service conditions of Class-III and Class-IV employees of the Corporation of Chennai after getting necessary sanction from the Government as required under the Chennai City Municipal Corporation Act, without any further delay.
No costs. Consequently, connected MPs are closed.
Index : yes 24..06..2014 Internet : yes kmk To 1.The Principal Secretary & Commissioner, Corporation of Chennai, Chennai. S.NAGAMUTHU.J., kmk Pre-Delivery Common Order in Writ Petition Nos.5867 & 5868 of 2014 24..06..2014