Madras High Court
V.Kalyani vs The State Of Tamil Nadu on 27 January, 2023
Author: S.Srimathy
Bench: S.Srimathy
W.P.(MD)No.7860 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 28.10.2022
PRONOUNCED ON : 27.01.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.7860 of 2015
and
M.P.(MD)Nos.1 and 2 of 2015
V.Kalyani ... Petitioner
vs.
1.The State of Tamil Nadu,
represented by its Principal Secretary to Government,
Highways and Minor Ports Department,
Secretariat, Chennai-9.
2.The Director General (High Ways)
(Construction and Maintenance),
Chepauk, Chennai-5.
3.The Chief Engineer,
Highways Department (C & M),
Chepauk, Chennai-5.
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W.P.(MD)No.7860 of 2015
4.The Superintending Engineer,
Highways (Construction & Maintenance),
Thamarai Thotti,
Madurai.
5.The Divisional Engineer,
Highways Department
(Construction and Maintenance),
Sivagangai.
6.The Assistant Divisional Engineer,
Highways Department
(Construction and Maintenance),
Sivagangai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records relating to the impugned
order issued by the 5th respondent in his proceedings in Se.Mu.Ka.No.
427/2013/Aa4, dated 31.03.2015 and the consequential order passed by the 6th
respondent in his proceedings in Se.Mu.Ka.No.1/2015, dated 28.04.2015 (both
orders served to the petitioner on 30.04.2015) and to quash the same as illegal.
For Petitioner : Mr.M.Mohammed Rafi
for M/s.Ajmal Associates
For Respondents : M/s.D.Farjana Ghoushia
Special Government Pleader
*****
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W.P.(MD)No.7860 of 2015
ORDER
This writ petition is filed for writ of Certiorari, to quash the impugned order dated 31.03.2015 passed by the 5th respondent and the consequential order passed dated 28.04.2015 passed by the 6th respondent.
2. The brief facts of the case are that the petitioner was working a as Road Inspector Grade I (Selection Grade). Initially, the petitioner was appointed as Road Inspector Grade II on 06.08.1981 through employment exchange and at the time of appointment, the petitioner was having SSLC (pass) and Bifurcated Engineering Course. The petitioner was terminated on 30.09.1986 on the ground of want of vacancy and was again reappointed as Road Inspector Grade II on 14.12.1992 by virtue of the order passed by the Administrative Tribunal. The interregnum period of non-employment was directed to be treated as leave on loss of pay. The petitioner’s service is governed by the Special Rules for the Tamil Nadu Highways Engineering Subordinate (Work Charged) Services (hereinafter 3/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 referred to as Special Rules). The Rule 2 of the Special Rules was amended vide G.O.Ms.No.856 Public Works Department dated 6.01.1987 in exercise of the power of conferred under Article 309 of the Constitution of India and as per the amended Rule, the post of Road Inspector Grade I shall be filled up by promotion from the holders of Road Inspector Grade II who have put in not less than 5 years of service with the educational qualification SSLC and Bifurcated Engineering Course. In respect of persons who do not possess Bifurcated Engineering Course, they will be entitled to be promotion after completion of 10 years. Despite the above said government order, the Road Inspector Grade II was not promoted as Road Inspector Grade I for several years and as a result of the same, number of persons working as Road Inspector Grade II was stagnated in the post of Road Inspector Grade II for a period of more than 20 or 25 years. In view of the same nearly 452 sanctioned posts of Road Inspector Grade 1 remained vacant for number of years. But the respondents had not initiated any proceedings to fill up the post by granting promotion, not even issued seniority list. The petitioner had 4/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 completed 10 years of service in the cadre of Road Inspector Grade-II. Thereafter, the petitioner was conferred with the selection grade in the cadre of Road Inspector. However, since the scale of pay of the Road Inspector Grade-II (Selection Grade) was on par with the scale pay of the Road Inspector Grade-1. Hence, the Road Inspector Grade-II was upgraded on 20.02.1998 as Grade Inspector-1 with the same scale of pay as that of the Road Inspector Grade-II (Selection Grade). Subsequently, the 2nd respondent sanctioned 19 posts of Road Inspector Grade I for Sivagangai Division. The 5th respondent, vide his proceedings dated 28.07.2001 promoted the petitioner as Road Inspector Grade 1 with effect from 04.03.1993, the date on which the petitioner had completed 5 years of service in the post of Road Inspector Grade 1 as contemplated under G.O.Ms.No.856. The monetary benefits arising thereby was directed to be disbursed with effect from 04.03.1993.
3. But the 5th respondent vide his impugned proceedings, dated 31.03.2015, 5/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 has cancelled the proceedings, dated 28.07.2001, promoting the petitioner as Road Inspector Grade-1 with effect from 04.03.1993 and also revised the petitioner's scale of pay. The 6th respondent, vide consequential impugned proceedings, dated 28.04.2015, has ordered recovery of Rs.2,54,167/- in installments. The contention of the petitioner is that there is no reason in the above impugned proceedings as to why the promotion given to the petitioner was wrong. The petitioner submitted that the said impugned order was passed based on the order dated 01.03.2013 made in W.P.Nos.4282 to 4287 of 2012 wherein this Court while observing that promotions were wrongly given contrary to service jurisprudence and employees were wrongly given promotion just on completion of 5 years of service with monetary benefits thereby causing heavy loss to public exchequer, directed the Secretary to Government to submit a report for further action. The said order was misinterpreted by the respondents and has passed the present impugned order. Hence, the petitioner challenged the reversal order and the recovery order.
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4. The 5th respondent has filed a counter affidavit along with vacate stay petition. The respondents have raised a preliminary objection stating that the petitioner has willfully suppressed the notice issued to the petitioner by the 5th respondent, vide proceedings, dated 10.05.2013, calling for explanation regarding the cancellation of promotion and the excess amount paid to the petitioner which was passed in compliance to the order passed in W.P.Nos.4282 to 4287 of 2012. The petitioner has misled the Court as if the order was passed without giving any notice and hence the petitioner has approached this Court with unclean hands and suppressed all material facts. The Honourable Principal Bench of this Court has directed to conduct “High Level Enquiry” against the promotion given in the Highways Department and also to take necessary steps to rectify the promotions given erroneously, vide order, dated 01.02.2013, in writ petition in W.P.Nos.4842 to 4847 of 2012. In the above writ petition, it has been clarified that G.O.Ms.Nos. 1858 and 858 (Public Works Department), dated 22.10.1989 and 01.06.1977, respectively, relates to Special Rules for Tamil Nadu Highways Engineering and 7/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 Subordinate (Work Charged) services and the prescription of 5 years of service completed in Road Inspector Grade II post is only a qualification in addition to the educational qualification of SSLC and Bifurcated Engineering. The persons who come within the zone of consideration would not have a vested right to consider for promotion, immediately on completion of five years of service. The said provisions is not a time bound promotion / upgradation and it is only qualification for considering for promotion. Hence, the Court has directed to conduct enquiry, since the said promotion had caused huge loss to government exchequer. The petitioner is claiming promotion on completion of 5 years of service, which the Hon’ble Court had held is in utter violation of G.O.Ms.No. 1858 and 858 (Public Works Department), dated 22.10.1989 and 01.06.1977, respectively. Notice was issued to the petitioner calling for explanation. After issuing the show cause notice and after calling for objections, the impugned order came to be passed. Hence, there is no violation of principles of natural justice, moreover the claim of the petitioner is against the rules and G.O.s passed 8/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 thereunder. Therefore, the petitioner is not entitled to the said amount. Hence, the respondents prayed to reject the writ petition.
5. Heard Mr.M.Mohammed Rafi, learned Counsel appearing for the petitioner and M/s.D.Farjana Ghoushia, learned Special Government Pleader appearing for the respondents and perused the records placed before this Court.
6. The learned Special Government Pleader appearing for the respondents submitted that the said issue of granting promotion after completion of 5 years was considered in W.P.Nos.4842 to 4847 of 2012, wherein this Court has heavily come down against the respondents. The respondents have shown the promotion granted to one Kalyani and the said Kalyani is none other than the present writ petitioner. Based on the promotion granted to Kalyani, the petitioners thereunder, namely, Tamilarasan and others have claimed promotion. This Court has directed the respondents to cancel the promotion granted to all the stake holders which 9/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 includes the promotion granted to the said Kalyani, the present writ petitioner. Hence the writ petitioner, Kalyani is also not entitled to.
7. The Learned Special Government Pleader had also submitted that the said Tamilarasan had preferred a writ appeal in W.A.Nos.810 to 815 of 2013. The Hon’ble Division Bench, vide order, dated 12.02.2019, had dismissed the writ appeals and the relevant portion of the judgment is extracted here under:
“7. The Road Inspector Grade I is the post in question. The Tamil Nadu Highways Engineering Subordinate (Work Charged) Service Rules provides that appointment to the post of Road Inspector Grade I is by promotion from among the holders of the post of Road Inspector Grade II, who have put in not less than five years of practice. The Rule further provides that promotion shall be made on the ground of merit and ability, seniority being considered where merit and ability are approximately equal. Therefore, it is very clear that the post of Road Inspector Grade I is a selection post. The appointing authority is obliged to consider the relevant merits and ability of the Road Inspector Grade II for promotion to the post of Road Inspector Grade I.
8. The appellants have taken up a contention that it was not the practice of the Highways Department to assess the relative merits and ability and promotion used to be made immediately after completing five 10/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 years of continuous service. We are not in a position to agree with the said contention in view of the rule position.
9. The rule is very clear that promotion would be made on the grounds of merit and ability alone and seniority would be relevant only in case the merit and ability are approximately equal. The fact that the Highways Department earlier promoted some of the Road Inspector Grade I without assessing the relative merit and ability cannot be a reason to direct the Department to violate the special rules. We are therefore of the view that there is absolutely no merit in the contention taken by the appellants.
10. The learned Single Judge has considered the Special Rules and rightly dismissed the Writ Petitions.”
8. The learned Counsel appearing for the petitioner submitted that for a similarly placed, namely Tajudeen, this Court had allowed the writ petition in W.P.(MD)No.18981 of 2013, vide order, dated 19.03.2021 and prayed to allow the writ petition.
9. On perusing the order passed in W.P.(MD)No.18981 of 2013 in the case 11/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 of Tajudeen, it is seen that earlier orders passed by this Court in W.P.Nos.4842 to 4847 of 2012 and W.A.Nos.810 to 815 of 2013, were not brought to the knowledge of the Learned Single Judge. Hence, the Learned Single Judge had allowed the writ petition. However, the learned Special Government Pleader has brought to the notice of this Court that the issue has already been considered by Learned Single Judge of this Court which is confirmed by the Honourable Division Bench. The petitioners are entitled to promotion after fulfilling the conditions, based on the vacancies. The 5 years period prescribed is only a condition so that the employees would come under the zone of consideration after completion of 5 years. The promotion is not automatic on completion of five years. Moreover, the promotion is based on merit and ability, against vacancies. The promotion is not upgradation on completion of five years. Therefore, the petitioner is under a wrong impression that the promotion granted to the petitioner is within the purview of law. The petitioner might have come within the zone of consideration, but it has to be considered after fulfilling the other 12/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 conditions like merit and ability and vacancies. Hence, the promotion granted with effect from 04.03.1993 was cancelled and consequently the recovery proceedings have been initiated against the petitioner. Since this issue has been dealt by the Learned Single Judge, wherein it has been held that there was a large scale scam in the Department and ordered for high level enquiry.
10. The Learned Counsel for the petitioner relied on the ratio laid down in State of Punjab and others Vs. Rafiq Masih (White Washer) reported (2015) 4 SCC 334 and prayed to issue direction not to recover the amount. Moreover, the petitioner had retired on attaining superannuation, it will affect the pensionary benefits. is not applicable to the present case. However, the Learned Special Government Pleader submitted if this claim is allowed then all the other persons would seek the same benefit and prayed to decline the prayer. This Court is of the considered opinion that if one mistake is allowed based on sympathy, the entire department will be in a mess. Since it is the mistake of the higher officials this 13/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.7860 of 2015 Court deems it fit to recover 50% of the recovery amount from the petitioner in installments. The balance amount shall be collected from the erred officials. As far as the fixation is concerned, the respondents shall fix the correct salary to the petitioner. The said exercise shall be completed with the period of eight weeks from the date of receipt of the order. Hence, this writ petition is partly allowed. No costs. Consequently, connected miscellaneous petitions are closed.
NCC : Yes / No 27.01.2023
Index : Yes / No
Internet : Yes
Tmg
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W.P.(MD)No.7860 of 2015
To
1.The Principal Secretary to Government,
State of Tamil Nadu,
Highways and Minor Ports Department,
Secretariat, Chennai-9.
2.The Director General (High Ways)
(Construction and Maintenance),
Chepauk, Chennai-5.
3.The Chief Engineer,
Highways Department (C & M),
Chepauk, Chennai-5.
4.The Superintending Engineer,
Highways (Construction & Maintenance),
Thamarai Thotti,
Madurai.
5.The Divisional Engineer,
Highways Department
(Construction and Maintenance),
Sivagangai.
6.The Assistant Divisional Engineer,
Highways Department
(Construction and Maintenance),
Sivagangai.
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W.P.(MD)No.7860 of 2015
S.SRIMATHY, J
Tmg
W.P.(MD)No.7860 of 2015
27.01.2023
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