Madras High Court
I.Albert Francis vs The State Of Tamilnadu on 6 April, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.04.2018
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.13550 of 2012
and W.M.P.(MD)No.10656 of 2016
and M.P.(MD)No.1 of 2012
I.Albert Francis ...
Petitioner
Vs.
1.The State of Tamilnadu,
Rep.by its Secretary,
Home Department,
Fort St.George, Chennai.
2.The Director,
Fire and Rescue Services Department,
Egmore, Chennai.
3.The Deputy Director,
Fire and Rescue Services Department,
Southern Region, Madurai.
4.The District Officer,
Fire and Rescue Services Department,
Madurai.
5.C.Raja
6.A.Augestin Amarnath
7.S.Soundararajan
8.V.Senthil
9.P.Manigandaraja
10.R.Ashok Kumar
11.R.Mayakrishnan
12.R.Kumar
13.G.Sakthivel
14.N.Vanangamudi
15.S.Jeyakumar
16.K.Elangovan
17.V.Ramar
18.R.Thangam
19.R.Muralidaran
20.K.Jeyaraman ...Respondents
(R5 to R20 are impleaded vide Court order
dated 20.12.2016 in M.P.(MD)Nos.1,2 of 2014
and 1 of 2015)
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Declaration declaring rule 2 (b) (ii) of the Tamilnadu Fire
Subordinate Services Rules as illegal and unconstitutional with reference to
preparation of list for promotion to the posts stipulated under Rule 2 (b)
(i) in item 4 therein on the divisional basis and consequently directing the
respondents to draw state-wise seniority list for promotion to the post of
Leading Fire Man from the post of Fire Man under Category 5 of Class II of
Rule 1 of the Tamilnadu Fire Subordinate Services Rules and effect promotion
in the order of State wise Seniority.
!For Petitioner : Mr.B.Saravanan
^For R1 to 4R : Mr.S.Srimathy
Special Government Pleader
:ORDER
The prayer sought for in this Writ Petition is for a declaration by declaring Rule 2 (b) (ii) of the Tamilnadu Fire Subordinate Services Rules as illegal and unconstitutional with reference to preparation of list for promotion to the posts stipulated under Rule 2 (b) (i) in item 4 therein on the divisional basis and consequently directing the respondents to draw state-wide seniority list for promotion to the post of Leading Fire Man from the post of Fire Man under Category 5 of Class II of Rule 1 of the Tamilnadu Fire Subordinate Services Rules and effect promotion in the order of State wide Seniority.
2.The case of the petitioner is as follows:
The petitioner was selected and appointed as Fire Man, after successfully completed the examination conducted by the Tamilnadu Uniformed Services Recruitment Board and he was issued with the appointment order on 24.08.1996 and he was directed to take charge as Fire Man at Bodinayakkanur Fire Station, Madurai Division on 09.09.1996. Accordingly, the petitioner joined services and he has been working at various places as Fire Man.
3.The next promotional hierarchy for the post is the Leading Fire Man. Under the Rule 1 of the Tamil Nadu Fire Subordinate Service Rules, the post of Fire man comes under category 5 of Class II in the Constitution of Fire Subordinate Services and the promotional post of Leading Fire Man would fall under category 2 of Class II. The appointment and promotion of Fire Man and other positions including Leading Fire Man are covered by the said Rule of Tamil Nadu Fire Subordinate Services Rules. The promotion shall be made from a list of qualified candidates suitable for promotion prepared on State-wide basis in respect of each of the post mentioned in Items 1 and 2 and the list shall be prepared on a Divisional Basis in respect of the post mentioned in Items 3 to 6 and the divisional promotion list shall be initially prepared by the Divisional Fire Officer concerned assisted by the respective Assistant Divisional Fire Officers and finally approved by the Deputy Director of Fire Services of the Region.
4.It is further submitted that under Clause 22 of the Tamil Nadu Fire Service Manual, the mode of recruitment to the post of Fire Man under direct recruitment has been prescribed. It is provided under Clause 22 (2) of the Tamilnadu Fire Service Manual that the selection of candidates for direct recruitment to the category of Fire Officer, it would address the local Employment Exchange of the respective Districts comprising the division to nominate qualified persons on their rolls for interview and selection. Therefore, based on Clause 22 (b) of Tamilnadu Fire Service Manual and Rule 2
(b) (ii) of the Tamil Nadu Fire Subordinate Services Rules, it would make it clear that if the appointment to the post of Fire Man is made through Employment Exchange, then, the promotion to the post of Leading Fire Man under category 2 of Class II would be on divisional basis.
5.It is further averred in the affidavit that from the year 1996, the direct recruitment of the candidates to the post of Fire Man has been made by the Tamilnadu Uniformed Services Recruitment Board and State-wide list also prepared and postings were given. Therefore, the promotion of candidates from the post of Fire Man to the post of Leading Fire Man is only on the basis of State-wide seniority list and not on the basis of list prepared on Divisional basis. Therefore, the petitioner is seeking the declaration of Rule 2 (b) (ii) of the Tamilnadu Fire Subordinate Services Rules as illegal.
6.During the pendency of this writ petition, the respondents 5 to 20, who were similarly placed persons filed a petition to implead them and accordingly they were impleaded as party respondents herein and they are also sailing along with the petitioner.
7.Considering the nature of the case, this Court, at the earliest stage, granted an interim order of stay of all promotions. Today, when the case is taken up for hearing, the learned Special Government Pleader appearing for the respondents has filed affidavit of the second respondent / The Director of the Fire and Rescue Services Department, Chennai, which is having the following averments:
"4.I state that the Government while issuing orders for upgradation or 165 Driver Mechanics as Station Officer (Transport), directed in para 5(ii) of the G.O.Ms. No.352, Home(Police-17)Department, dated 14.05.2012 that "For existing personnel seniority for elevation to the level of Station Officer or Station Officer (Transport) will be based on original seniority at the level of Fireman"(i.e.STATE SENIORITY). Accordingly a proposal has been sent to Government vide this office letter Rc.No.5100/B1/2018, dated 14.03.2018, for orders of Government for effecting promotions to the post of Fireman Driver/Leading Fireman/Driver Mechanic by following the original seniority of Fireman i.e. ENLISTMENT AND STATE SENIORITY. I further state that the proposal of adoption of State Seniority sent to Government for orders is brought to the notice of this Hon'ble Court and it is further informed that, when the Government approve the same issue necessary orders for adoption of ENLISTMENT AND STATE SENIORITY for promotions from Fireman to Station Officer & Station Officer(Transport), necessary proposal to amend the Service Rules will be sent to Government.
5.Pending consideration of the proposal we intent to operate the State Seniority and all promotions will be on temporary basis and will be adjusted depending upon the final outcome of the proposal from the Government. Moreover, due to the stay order and pending Court cases, promotions to the following posts could not be effected for several years and the administration is put to jeopardy. At present, the number of vacancies in the promotional posts are given below:
Fireman Driver : 451
Driver Mechanic : 33
Leading Fireman : 249
Station Officer : 72
Station Officer(Transport) : 22
6.Therefore it is prayed that this Hon'ble Court may be pleased to take note of the active action taken by the second respondent and pass orders vacating the stay in the case and thus render justice".
8.Mr.B.Saravanan, learned counsel appearing for the petitioner, submitted that though Rule 2 (b) (ii) of the Tamilnadu Fire Subordinate Services Rules is sought to be declared as illegal in the Writ Petition, since the official respondents have come forward to settle the issue by giving up the method of division-wise promotion in spite of adopting the State-wide seniority of the promotion and also taken a stand that necessary proposal in respect of State-wide seniority for promotion has already been sent to the authorities of the Government and further taken a stand that after approval of the Government with regard to the State-wide seniority basis promotion, necessary amendment also would be proposed to the Government for making amendment of the Rule 2 (b) (ii). Therefore, recording the stand taken by the second respondent, this Writ Petition can be disposed of.
9.Mrs.S.Srimathy, learned Special Government Pleader appearing for the respondents, by relying upon the averment made in the affidavit filed by the second respondent dated March 2018, would submit that the Department sent proposal to the Government to adopt State-wide seniority and when the Government approve the same and issue necessary orders for adoption of enlistment of State-wide seniority for promotion from Fireman to Station officer and Station Officer (Transport), further proposal to amend Service Rule i.e. Rule 2 (b) (ii) also will be sent to the Government.
10.The learned Special Government Pleader also submitted that the promotions are stagnated because of the pending Court cases, where interim orders were passed which are operating against the orders passed by the Government Department will move for giving promotion by adopting the State- wide seniority as an ad-hoc basis and all promotions will be on temporary basis and will be adjusted depending upon the final outcome of the decision to be taken by the State Government where the proposal for adoption of State- wide seniority is pending.
11.I have considered the submissions of the learned counsel on either side and perused the materials placed before this Court.
12.As rightly pointed out by the learned Special Government Pleader appearing for the official respondents relying upon the averments made in the affidavit filed by the second respondent dated March 2018, though the Department already decided to adopt the State-wide seniority for promotion to fill up the posts including Leading Fire Man and in the meanwhile, they already decided to adopt the State-wide seniority on ad-hoc basis promotion as the promotions were stagnated for a long time. The stand taken by the Government as recorded in the affidavit filed before this Court, is to be taken into consideration.
13.In the said affidavit, the second respondent has stated that a number of postings like Fireman, Driver, Driver Mechanic, Leading Fireman, Station Officer, Station Officer (Transport) are kept vacant because of the pending Writ Petition. Also, the second respondent in the said affidavit has specifically averred that the proposal sent by the Department to the Government on adoption of State-wide seniority for promotion and also taken a stand that when the approval given by the State Government, further necessary proposal to amend the service Rules would also to be sent to the Government, this Court feels that the petitioner has no further grievance.
14.In view of the averment made in the affidavit filed by the second respondent, this Court is of the view that, the present Writ Petition can be disposed of by recording the said submission made by the respondents, especially, the second respondent, in paragraph Nos.4 and 5 of the affidavit dated March 2018. Accordingly, the Writ Petition is disposed of.
15.It is made clear that in future, if the official respondents do not act as per their averment in the said affidavit and if any violation is noticed with regard to the non-adoption of State-wide seniority for consideration of promotion, the same can be agitated by the petitioner and private respondents in the manner known to law.
16.With these observations, the Writ Petition is disposed of by recording the stand taken by the respondent Department. Consequently, connected Miscellaneous Petitions are closed. No costs.
To
1.The State of Tamilnadu, Rep.by its Secretary, Home Department, Fort St.George, Chennai.
2.The Director, Fire and Rescue Services Department, Egmore, Chennai.
3.The Deputy Director, Fire and Rescue Services Department, Southern Region, Madurai.
4.The District Officer, Fire and Rescue Services Department, Madurai.
.