Madras High Court
Y.Koteeswariah vs Chennai Metropolitan Water Supply on 24 April, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.4.2012
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
Writ Petition Nos.6108 and 6387 of 2011
Y.Koteeswariah .. Petitioner in W.P.No.6108 of 2011
D.Yuvaraaj .. Petitioner in W.P.No.6387 of 2011
vs.
1. Chennai Metropolitan Water Supply
and Sewerage Board
Rep. By its General Manager
No.1, Pumping Station Road
Chindadripet, Chennai-600 002
2. The Managing Director
Chennai Metropolitan Water Supply
and Sewerage Board
Personnel and Administration (R&A) Department
No.1, Pumping Station Road
Chindadripet,
Chennai-600 002
3. S.Thangaraj .. Respondents in both the writ petitions
W.P.No.6108 of 2011:
This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the proceedings of the 2nd Respondent having reference No.CMWSSB/P&A/STF/RA1/33314/2010,dated 16.09.2010 containing the panel for promotion to the post of Superintending Engineer for the year 2010-2011 and quash the same in so far as the name of the 3rd Respondent is included in the 5th place in the panel overlooking the seniority of the Petitioner vis a vis the 3rd Respondent if reckoned from the date of 1st appointment into service and consequently direct the 1st and 2nd Respondents to place the Petitioner in the 5th place the panel drawn for promotion to the post of Superintending Engineer in the 1st Respondent Board for the year 2010-2011.
W.P.No.6387 of 2011:
This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the proceedings of the 2nd Respondent having reference Proc.No.CMWSSB/P&A/STF/RA1/33314/2010, dated 16.9.2010 containing the panel for Promotion to the post of Superintending Engineer for the year 2010-2011 and quash the same in so far as the name of the 3rd respondent is included in the 5th place in the panel overlooking the seniority of the petitioner vis a vis the 3rd respondent if reckoned form the date of 1st appointment into service and consequently direct the 1st and 2nd respondents to place the petitioner above the 3rd respondent while drawing the panel for promotion to the post of Superintending Engineer in the 1st Respondent Board for the year 2010-2011.
For petitioners : Mr.Nalini Chidambaram
Senior Advocate for
Ms.C.Uma
For respondents : Mr.T.Gowthaman
for R1 and R2
Mr.V.Radhakrishnan
Senior Advocate for
Mr.K.Sasindran for R3
C O M M O N O R D E R
Since, the issues involved in both the writ petitions are similar in nature, they have been taken up together and a common order is being passed.
2. Heard the learned senior counsel appearing for the petitioners and the learned counsels appearing for the respondents.
3. The petitioner, in W.P.No.6108 of 2011, had stated that he is a Civil Engineer. He was recruited to the post of Overseer, by the Commissioner, Corporation of Chennai, on 21.5.1977. He was recruited in service, as his name had been sponsored by the employment exchange concerned. On 1.8.1978, the petitioner had been transferred to the Madras Metropolitan Water Supply and Sewerage Board. Subsequently, on 12.6.1980, the second respondent had reappointed the petitioner to the post of Assistant Engineer (Civil), as the petitioner had obtained higher qualifications.
4. The petitioner, in W.P.No.6387 of 2011, had stated that he is a Civil Engineer. He was recruited by the Managing Director, the Madras Metropolitan Water Supply and Sewerage Board, Chennai, to the post of Assistant Engineer (Civil), on 27.6.1980. His name had been sponsored through the employment exchange.
5. The hierarchy of the posts are as follows:
1. Assistant Engineer
2. Assistant Executive Engineer (with minimum 5 years experience as Assistant Engineer)
3. Executive Engineer (with minimum 3 years experience as Assistant Executive Engineer)
4. Superintending Engineer
5. Chief Engineer Engineer Director
6. It has been stated that the Chennai Metropolitan Water Supply and Sewerage Board Act, 1978, (hereinafter referred to as 'the Act') had been enacted by the State legislature. Accordingly, the Chennai Metropolitan Water Supply and Sewerage Board had been established, under Section 3 of the Act. Thereafter, the said Board had been brought under the control of the Municipal Administration and Water Supply Department. Section 81(2) (c) of the Act enables the Board to make regulations, with regard to the method of recruitment, qualification, pay, duties and other terms and conditions of the services of its officers and other employees. The Chennai Metropolitan Water Supply and Sewerage Board, the first respondent in the above writ petitions, had framed the Employees Service Regulations, 1978, in exercise of its powers conferred, under Section 81 of the Act. Regulation 21 of the said Regulations deals with the method of determination of the employees seniority. As per clause C of sub section (2) of Section 81 of the Act, certain Special Regulations had also been framed, in respect of several services, under the first respondent Board. The qualifications for the post of Superintending Engineer had been specified in the Special Regulations, 1982. As per the said Regulations, the petitioners were fully qualified to be promoted to the post of Superintending Engineers.
7. It had been further stated that, originally, the posts of Assistant Engineer (Civil/Mechanical) and the Assistant Engineer (Electrical) were filled up by direct recruitment and by transfer from other categories. Separate seniority list had been maintained for the post of Civil, Mechanical and Electrical Engineers, upto the level of Assistant Engineers. A common seniority list was also maintained for the cadre of Assistant Executive Engineers, based on the date of their joining in the promotional post. Such an arrangement was objected to by the Civil and Mechanical Engineers, on the ground that the Electrical Engineers, who had joined duty later, would be placed in a higher position than their counterparts in Civil and Mechanical Engineering. Therefore, a three member committee had been constituted in the year, 2000. The said committee had submitted a report, which was placed before the Managing Committee. The Managing Committee, in its minutes, dated 25.9.2004, had constituted a new committee for the purpose of fixing a common seniority, between Civil/Mechanical and Electrical disciplines.
8. It had been further stated that, after studying the method of promotion, in certain other Boards, a recommendation had been placed before the first respondent Board. After a detailed discussion had been held, a resolution came to be passed for giving uniform benefits to all the employees working in the Chennai Metropolitan Water Supply and Sewerage Board. It had also been resolved to prepare a seniority list from the date of their joining in the posts of Assistant Engineers. This method had been found to be reasonable, by this Court, in its decision, dated 30.11.2009, made in W.P.No.26859 of 2007 etc. batch.
9. It had also been stated that a separate seniority list had been drawn for Civil, Electrical and Mechanical Engineers. The Assistant Engineers in Electrical and Mechanical disciplines were given promotions to the post of Assistant Executive Engineers earlier to that of Civil Assistant Engineers. Due to the said practice being followed in respect of promotions, the third respondent, whose date of initial appointment of service is 9.7.1980, had been promoted to the next promotional post, namely, Assistant Executive Engineer (Electrical), on 6.3.2000, while Y.Koteeswariah, the petitioner, in W.P.No.6108 of 2011, whose date of initial appointment is 25.1.1977, had been promoted to the post of Assistant Executive Engineer (Electrical), only on 25.9.2003. As such, when the seniority list for promotion to the post of Executive Engineer was drawn, the petitioners name had been placed below the third respondent. In fact, the second respondent ought to have drawn the seniority list for the post of Executive Engineer, by determining the candidates seniority taking into consideration the date of their initial appointment in service.
10. In respect of the petitioner, D.Yuvaraaj, in W.P.No.6387 of 2011, the third respondent, whose date of initial appointment in service is 9.7.1980, had been promoted to the next promotional post of Assistant Executive Engineer (Electrical), on 6.3.2000, while the petitioner, whose date of initial appointment is 27.6.1980, had been promoted to the post of Assistant Executive Engineer (electrical), only on 25.9.2003. In view of the wrong method of promotion followed by the first respondent Board, the petitioners had been denied their rightful promotion to the post of Superintending Engineer. Therefore, the petitioner had preferred the present writ petitions, under Article 226 of the Constitution of India.
11. In the counter affidavit filed on behalf of the first and the second respondents, in W.P.No.6108 of 2010, it has been stated that, as per regulation 6 of the Chennai Metropolitan Water Supply and Sewerage Board Regulations, 1982, (hereinafter referred to as the 'Board Regulation', the post of Assistant Engineer (Civil and Mechanical) and Assistant Engineer (Electrical) are two different categories of posts. Both the categories are feeder categories, for the promotion to the post of Assistant Executive Engineer, which is made on the basis of their seniority, fixed with reference to Regulation 21(a) of the Employees Services Regulation Act, 1978. The said regulation reads as follows:
"The seniority of a person in the Board's service with respect to a category or grade shall be determined by the rank obtained by him in the list of approved candidates drawn up by the Board subject to the rule of reservation where it applies; the date of commencement of his probation shall be the date on which he joins the Board's service irrespective of his seniority."
12. It had been further stated that, prior to the year, 1993, the Assistant Engineers, who had put in 10 years of service, were eligible to be considered for promotion, as Assistant Executive Engineers. The State Government had passed an order, in G.O.Ms.No.218, Municipal Administration and Water Supply Department, dated 24.9.1993, directing the adoption of the ratio of 3:1, between the Assistant Engineers (Graduate) and Junior Engineers (Diploma) for the purpose of promotion, as Assistant Executive Engineers. Accordingly, the first promotion as prescribed in the Government order, to the cadre of Assistant Executive Engineer, had been made adopting the ratio of 3:1 and it had been given effect to on 19.11.1993.
13. It had been further stated that since, the vacancy in the post of Assistant Executive Engineer (Electrical) arose earlier than the vacancy in the post of Assistant Executive Engineer (Civil/Mechanical), they were promoted as Assistant Executive Engineers (Electrical), before their counterparts in Civil/Mechanical discipline could be promoted as Assistant Executive Engineers. Aggrieved by the said practice, the Assistant Executive Engineers (Civil/Mechanical) had represented that the date of joining in the post of Assistant Engineer/Junior Engineer should be taken as the criterion for fixing the common seniority. In such circumstances, in order to resolve the said issue, a committee had been constituted by the first respondent Board. The committee, while giving its recommendations, had taken into account the ratio of 3:1, adopted on the lines of the Government Order and had suggested that the promotions made to the post of Assistant Executive Engineer, before 19.11.1993, may be merged with their date of joining as Assistant Engineers/Junior Engineers and the seniority of those Engineers, who were promoted as Assistant Executive Engineers, on 19.11.1993 and thereafter, it should be as per Regulation 21(a) of the Board Regulations.
14. It has been further stated that, during the year, 2007, a common seniority list in the cadre of Executive Engineer, had been prepared and a notice had also been issued inviting objections on the proposed seniority list, which had been communicated to all the persons, including the petitioners herein. In response to the said notice, 16 objections had been received. However, there was no objection filed by the petitioner, in W.P.No.6108 of 2010. Further, all the objections, which had been received, were examined on merits and the confirmed seniority list was issued, on 12.9.2007, and communicated to all the persons concerned, including the petitioners. In such circumstances, the third respondent, namely, S.Thangaraj, who was promoted, as an Assistant Executive Engineer, from the electrical cadre, prior to the petitioner, has been placed above the petitioner. The said seniority list had also been confirmed and acted upon. Based on the confirmed seniority list, dated 12.9.2007, subsequent panels and promotions had also been effected. The present panel for promotion to the post of superintending engineer was not objected to, by the petitioner, at any point of time, in the last four years. Having kept quite for a long time and after the publication of the panel for the promotion to the post of superintending engineer, the petitioner has preferred the present writ petition, before this Court, challenging the promotion given to the third respondent, with ulterior motive. Therefore, the writ petition deserves to be dismissed, in limine, on the ground of latches, as well as on merits.
15. It had also been stated that the Committee, consisting of Board Officials, constituted to examine the issue relating to promotions, had taken into account, while making its recommendations, the procedures adopted by the Water Boards of Bangalore, Hyderabad, Delhi and Jal Board. The committee had made the recommendations, after taking into account the nature of the jobs involved in the streams of civil/mechanical and electrical engineers, the existing practical difficulties, and the procedures being followed by the other Water Boards. Based on such information, the committee had recommended to continue the method of having a merged seniority, from the level of Assistant Executive Engineers, for both Civil/Mechanical and Electrical Engineers, for the purpose of drawing the panel for promotion to the post of Executive Engineer. The committee had also made the following recommendations for fixing a common seniority, in the cadre of Assistant Executive Engineer.
"1. Seniority of those Engineers who were promoted as Assistant Executive Engineers before 1993 may be merged as per their date of joining in Assistant/Junior Engineer service.
2. Seniority of those Engineers who were promoted as Assistant Executive Engineer on 19.11.1993 (first promotion given adopting the ratio of 3:1 between Graduate Engineers and Diploma Engineers as per G.O.Ms.No.218, Municipal Administration and Water Supply Department, dated 24.9.1993) and afterwards adopting the seniority as per Regulation 21 (a) (Communal Roaster System) and ratio 3:1 (i.e) 3 Graduate Engineers and 1 Diploma holders as per the above Government Orders."
16. The recommendations made by the committee had been placed before the Board, in its meeting, held on 7.9.2007. The Board had resolved to fix the common seniority for Civil/Mechanical/Electrical Engineer, in the cadre of Assistant Executive Engineer, based on the date of their joining as Assistant Engineers, subject to the fulfillment of the other existing conditions, and also to publish the proposed common seniority list among the Engineers, in all categories, and to invite the objections, if any. Only 16 objections had been received. After considering the objections, the seniority list had been confirmed and it was issued by the first respondent Board, on 12.9.2007. However, the petitioner had not objected to the common seniority list, issued in the cadre of Executive Engineer during the year 2007, in spite of being served with copies of the same. In such circumstances, the writ petition filed by the petitioner is devoid of merits.
17. In the counter affidavit filed on behalf of the third respondent, in W.P.No.6387 of 2011, it has been stated that the petitioner in the said writ petition, namely, D.Yuvaraj, was working as an Executive Engineer in the first respondent Board. He has challenged the proceedings of the second respondent, dated 16.9.2010, stating that he should have been placed in the 5th place in the panel drawn by the second respondent, for promotion to the post of Superintending Engineer, in the first respondent Board, for the year 2010-2011.
18. It had been further stated that the second respondent had published the seniority list of Executive Engineers working in the first respondent Board, in its proceedings, dated 8.9.2010. In the said list, the third respondent's name was found at serial No.42. The said seniority had been drawn on the basis of the service render in the feeder post of Assistant Engineer. The first respondent board had published an establishment list - Technical Grade II to Grade V, as on 1.4.2005. Serial No.5 in the said list relates to Executive Engineers. The name of the third respondent was found at serial No.10, while the petitioner's name was at serial No.41. While so, the first respondent, on a representation made by some of the Executive Engineers (Civil and Mechanical), passed a resolution, on 12.4.2007. The said resolution No.103/2007, dated 12.4.2007, is as follows:
"The Board after detailed discussion, accorded approval for fixation of common seniority for Civil/Mechanical/Electrical in the cadre of Assistant Engineer based on the date of joining as Assistant Engineers subject to the fulfillment of other existing conditions.
The Board also permitted to publish the proposed common seniority list among the Engineers in all the categories and Write objections, if any."
19. Pursuant to the said resolution, a notice, dated 27.4.2007, had been sent to all the Executive Engineers proposing a revised seniority list, in accordance with the resolution passed by the Board, on 12.4.2007. In the said seniority list, the name of the third respondent was found at serial No.27, while the petitioner's name was found at serial No.34. A notice had been issued inviting representations against the proposed fixation of common seniority stating that such representation, if any, should be made, on or before 21.5.2007. Several Executive Engineers, including the third respondent had sent their objections to the proposed seniority list. In the proceedings, dated 3.7.2007, the second respondent, after considering the objections, had published the revised seniority, as contained in Annexure II to his proceedings, dated 3.7.2007. In the said seniority list, the name of the third respondent was found at serial No.25, while the petitioner's name was found at serial No.31. Even though the petitioner had sent his objections to the proposed seniority list communicated by the second respondent, in the letter, dated 27.4.2007, the objections raised by the petitioner had been overruled. The final seniority list had been published and it had become final as the petitioner had not challenged the same.
20. It had been further stated that the third respondent had filed a writ petition, in W.P.No.26890 of 2007. Further, a writ petition, in W.P.No.26891 of 2007, had also been filed challenging the consequential order of promotion of the juniors of the petitioner. This Court, by its order, dated 30.11.2009, had dismissed the same and had upheld the seniority list, dated 27.4.2007. In the meanwhile, on 12.9.2007, the seniority list of Executive Engineers had been modified, on the basis of certain representations made by some of the Executive Engineers. Therefore, an erratum had been issued following which the name of the third respondent was found at serial No.25, and the name of the petitioner at No.32. However, at no point of time, the petitioner had ever raised any objections, as to the seniority compared with that of the third respondent. Therefore, the seniority list had been acted upon and the necessary promotions had been made, periodically. In such circumstances, it is not open to the petitioner to challenge the said seniority list, which had become final. Therefore, it is not open to the petitioner to challenge the panel prepared for the granting of promotion, to the post of Superintending Engineer, at this belated stage. Therefore, the writ petitions are liable to be dismissed.
21. The learned counsel appearing for the petitioners had relied on the decision of this Court, dated 30.11.2009, made in W.P.Nos.26859, 26860, 26890 and 26891 of 2007. The relevant paragraphs of the said order read as follows:
13. The aggrieved parties submitted their respective objections before the Board and the only objection raised by the objectors was that the common seniority should not be drawn on the basis of date of joining the services. The Board has considered separately each and every objections made by the parties including the petitioners S.Thangaraj and S.Prabakar. While dealing with their objections, the Board has dealt with the petitioners objection also. The petitioner S.Thangaraj was one of the members of the Electrical discipline and after taking into account the nature of job involved in the streams of Civil / Mechanical and Electrical Engineers, he has not objected to the recommendations of the committee. He has agreed to the proposed seniority list and signed in the report of the Committee and the seniority has been fixed based on the Service Regulations, 1978 and as per the resolution of the Board. Therefore, the objections of the petitioners were overruled.
14. The common seniority list which has been proposed to be finalised is only for the purpose of giving uniform benefit to all the employees working in the Chennai Metropolitan Water Supply and Sewerage Board. In any event, preparing a seniority list on the basis of the date of their joining as Assistant Engineers cannot be found fault with. Further, the objections were called for from the aggrieved parties and after analysing the position and meeting out their objections, the resolution came to be passed for giving uniform benefit and thereafter, the impugned seniority list was published. The further contention of the learned counsel appearing for the petitioners that the resolution has not been passed in accordance with the provisions envisaged under Rule 21(2) (c) of the Service Regulation, 1978 also cannot be accepted since the respondent Board passed the resolution only after complying with the provisions of Regulation 21A of the Service Regulations, 1978.The 1st respondent has passed the resolution in exercise of the powers conferred under Section 81(2)(c) of the Act fixing the date of entry into service as Assistant Executive Engineers as criterion for the purpose of giving promotional opportunity to the Engineering personnel of the Board. This is being acceptable criterion, this Court does not find any substance in the case of the petitioners. Further, when this criterion was accepted by the petitioner S.Thangaraj himself at the time when he participated in the committee meeting, he cannot now be allowed to take a "U" turn and object to the same. Therefore, this Court is not inclined to entertain these writ petitions. The petitioner S.Prabakar joined the Board service as Assistant Engineer (Electrical) on 09.07.1980 while the 3rd respondent T.V.Prabhakar joined as Assistant Engineer (Civil) on 26.10.1979, which is prior to the petitioner S.Prabakar. While that being so, the contention of the petitioner S.Prabakar that his seniority will be affected, if the 3rd respondent T.V.Prabhakar is kept above him, cannot be accepted.
15. For all the foregoing discussions, the writ petitions fail and the same are liable to be dismissed.
16. In the result, the writ petitions are dismissed. Consequently, connected Mps are closed. No costs."
22. In view of the submissions made by the learned counsels appearing for the petitioners, as well as the respondents, this Court is of the considered view that the petitioners have not made out a case to grant the reliefs, as prayed for by them, in the present writ petitions.
23. From the records available, it is noted that the state Government had issued an order, in G.O.Ms.No.218, Municipal Administration and Water Supply Department, dated 24.9.1993, directing the adoption of the ratio of 3:1, between the Assistant Engineers (Graduate) and Junior Engineers (Diploma), for the purpose of promotion as Assistant Executive Engineers. The said Government Order had been given effect to, on 19.11.1993. since, the vacancy in the post of Assistant Executive Engineer (Electrical) arose earlier than the vacancy in the post of Assistant Executive Engineer (Civil/Mechanical), they were promoted, as Assistant Executive Engineer (Electrical) before their counterparts in Civil and Mechanical disciplines could be promoted as Assistant Executive Engineers. Aggrieved by the same, the Assistant Executive Engineers, (Civil/Mechanical) had represented that the date of joining in the post of Assistant Engineers/Junior Engineers should be taken into account, for fixing the common seniority. To consider the said request and to find a solution to the controversy involved in the granting of promotions, a committee had been constituted by the first respondent Board. In its recommendations, the committee had adopted the scheme envisaged in the Government Order, in G.O.Ms.No.218, Municipal Administration and Water Supply Department, dated 24.9.1993, and had suggested that the promotions made to the post of Assistant Executive Engineer, before 19.11.1993, which is the date of the first promotion given after the issuance of the Government Order, may be merged with their date of joining as Assistant Engineers/Junior Engineers and the seniority of those Engineers, who were promoted as Assistant Executive Engineers, on 19.11.1993 and afterwards should be adopted, as per Regulation 21(a) of the Board Regulations. While so, during the year, 2007, a common seniority list, in the cadre of Executive Engineer, had been prepared and a notice had been issued, inviting objections. After examining the objections, a seniority list had been prepared and issued, on 12.9.2007. Based on the seniority list, dated 12.9.2007, subsequent panel had been prepared and promotions had been effected. The present panel for promotion to the post of Superintending Engineer was not objected to by the petitioners, earlier.
24. It is noted that the procedure adopted by the first respondent, for fixing the seniority of Assistant Executive Engineer/Junior Engineer, had been challenged before this court, in W.P.Nos.26859, 26860, 26890 and 26891 of 2007. This Court by its order, dated 30.11.2009, had rejected the said writ petitions, confirming the seniority list drawn by the first respondent board, based on which the posts in the cadre of Superintending Engineers had to be filled up, by way of promotion. The said order had become final. While so, it is not open to the petitioners to challenge the seniority list, at this belated stage. Further, it is also noted that the petitioners had not taken effective steps against the seniority list prepared by the first respondent Board, at the first instance. Therefore, this Court is of the considered view that the writ petitions filed by the petitioners are devoid of merits. Hence, they are dismissed. No costs. Connected M.P.No.1 of 2011 is closed.
lan To:
1. The General Manager Chennai Metropolitan Water Supply and Sewerage Board No.1, Pumping Station Road Chindadripet, Chennai-600 002
2. The Managing Director Chennai Metropolitan Water Supply and Sewerage Board Personnel and Administration (R&A) Department No.1, Pumping Station Road Chindadripet, Chennai 600 002