Madras High Court
S.Krishnan vs The State Of Tamil Nadu on 28 September, 2011
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/09/2011 CORAM THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.(MD).No. 3998 of 2004 And W.P.M.P.No. 4032 of 2004 S.Krishnan ... Petitioner Vs. 1. The State of Tamil Nadu rep. by the Commissioner & Secretary Environment & Forests Secretariat Chennai - 9 2. The Principal Chief Conservator of Forests Panagal Building Saidapet Chennai - 15 3. The Secretary Tamilnadu Public Service Commission Government Estate Chennai -2 4. R.Mohandoss 5. Thiru.C.Jeyachandran 6. Thiru.N.Appusamy 7. M.Dharmaraju 8. M.Thiagarajan 9. R.Ravindran 10. T.R.Palanivelu 11. M.N.Loganathan 12. C.Sreerangaram 13. M.Gurudsamy 14. K.Dhanapal 15. K.Devarajan 16. M.Tirupathy 17. S.Marimuthu 18. R.Mohandass 19. S.Soundararajan 20. A.Krishnamoorthi 21. A.Thiyagarajan 22. J.Raman 23. E.Rajendran 24. K.Loganathan 25. Ziaudin Ahamed 26. N.Somasundaram 27. A.Muthukrishnan 28. G.Palani 29. V.Palanichamy 30. M.Govindan ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records on the file of the first respondent in connection with the orders passed by him in his proceedings in G.O.(D).No. 242 dated 15.7.2005 and quash the same and direct the respondents to promote the petitioner to the post of Assistant Conservator of Forests. *** For Petitioner : Mr.R.Singaravelan For RR 1 to 3 : Mrs. S.Bharathi Government Advocate For RR 4, 8, 13, 23 to 25, 28 to 30 : Mr.M.Ravi For RR 5, 6, 14, 16, 17, 19, 21, 26 : No appearance For 18th Respondent; Mr.V.R.Shanmuganathan O R D E R
The pleaded case is that, the petitioner was appointed as Ranger by Direct Recruitment on merits and he joined service on 01.11.1981. The petitioner was placed ranking at 8 by the Tamil Nadu Public Service Commission. The petitioner belongs to Backward Class Community.
2. That in the advertisement issued for the examination, it was not stipulated that the ranking given by the Tamil Nadu Public Service Commission, will be altered later by the appointing authority at any point of time for any reason. The selection was made for the post of Forest Apprentices, who after training were to be recruited as Ranger in the Tamil Nadu Forest Subordinate Service.
3. The grievance of the petitioner is that the ranking given by the Tamil Nadu Public Service Commission, was altered by the Forest Training College, which deserves to be declared unconstitutional and ultravires, by ignoring the notification, dated 19.03.1955, providing for seniority of a Ranger on the basis of ranking in the Forest Training College.
4. The second grievance of the petitioner is that the respondents have drawn the panel for promotion to the post of Assistant Conservator of Forests in violation of the Rule 4(3) of the Tamil Nadu State and Subordinate Service Rules, which stipulates the minimum of service of 7 years in each post, before further promotion. The respondents by relaxing the mandatory rules have promoted the persons to the post of Assistant Conservator of Forest.
5. The petitioner also aggrieved in drawing of collective panel for 3 years from 2001-2003, being in violation of Rule 11 of the Tamil Nadu Forest Service Subordinate Service Rules, which stipulated yearly panel.
6. The petitioner also challenged the selection to the post of Assistant Conservator of Forest on merit by asserting that the post of Assistant Conservator of Forest is to be filled up only on seniority.
7. The petitioner further challenged the promotion of the respondents to be in violation of the reservation policy of the Government of Tamil Nadu, while drawing the panel, and that the representations, made by the petitioner have not been considered.
8. It is finally submitted that the respondents were trying to release the promotion panel by ignoring seniority, by accepting the recommendation of the selection committee, which was unconstitutional, being in violation of the rules.
9. In the counter stand of the third respondent is that the petitioner, was provisionally appointed as Forest Apprentice in pursuant to the selection by the Tamil Nadu Public Service Commission, in the year 1981.
10. On completion of the Ranger course at Southern Forest Rangers College, Coimbatore and the practical training, the petitioner was appointed as Ranger, and under Rule 8-A, of the Tamil Nadu Forest State and Sub-Ordinate Services, the petitioner was placed under Sl. No. 25 in seniority. Whereas, selection process by the Tamil Nadu Public Service Commission, the petitioner was placed S.No. 10, and not 8 by following Rotation Backward Community rule of reservation.
11. The positive stand of the respondents in the counter is that the persons are recruited as Apprentice through Tamil Nadu Public Service Commission, but their seniority as Forest Ranger is fixed on the basis of final examination conducted by the Forest Rangers College in terms of Rule 8-A of the Tamil Nadu Forest Sub-Ordinate Services.
12. It is also the stand of the respondents that rule of reservation was followed, and the petitioner was selected under the rule of reservation, by the Tamil Nadu Public Service Commission.
13. Rule 8-A of the Tamil Nadu Forest Sub-Ordinate Services reads as under:
"8-A Seniority: For appointment as Ranger, the seniority of a candidate who completes the Ranger's training satisfactorily at the Forest College, shall be determined solely by his rank in the pass list of the college, as notified by the Principal, Forest College, after the final examination.''
14. The stand taken in the counter by the Government that Order in G.O.(Ms).No. 446, Food and Agriculture Department, dated 08.02.1958, was issued with retrospective effect can be subject to challenge in law, but this Court is not concerned with it in this case, as the petitioner was appointed in the year 1981, and even if the amendment is taken to be prospective, still the petitioner is to be given by the amended rules.
15. It is also the stand of the respondents that according to Rule 4 of the Special Rules for Tamil Nadu Forest Service, for appointment to the post of Assistant Conservator of Forests, the person is required to have the following eligibility criteria:
(i) Completed 8 years of Service as Forest Ranger
(ii) Passed Account test for Executive Officers
(iii) Passed Forest Revenue
(iv) Completed Discipline of Service as follows:
(i) Plantation works for two years
(ii) Project or Corporation as Tea, Rubber for two years
(iii) Non-sensitive and Territorial post for three years.
16. The averments of the petitioner, that Rule 4 of the Special Rules for the Tamil Nadu Forest Service, is mandatory, is denied in counter by placing reliance of Rule 48 of the Tamil Nadu State and Subordinate Services Rules, which gives the power of relaxation of the Rules.
17. The assertion of the petitioner that the joint panel for three years is also denied in the counter, by submitting that separate panel for each year was prepared, though published together.
18. It is also the stand in the counter, that after the passing of the Judgment of this Court in W.A.No. 1113 of 1985, the General Rules were amended, and Rule 36-A was added, making the post of Assistant Conservator of Forests to be a selection post. In reply to the assertion of the petitioner, that his representations are not being considered. It is submitted that the name of the petitioner was not in zone of consideration for promotion as Assistant Conservator of Forests nor any of his juniors was considered for promotion, as the last man considered in the panel was at seniority No. 63, where as the petitioner's seniority was at No.77.
19. Finally the reliance in counter is placed on the Judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Shri Srikant Chapekhar (JT) reported in 1992 (S) SC 638, wherein the Hon'ble Supreme Court, was pleased to laid down, that the Courts and Tribunals are not competent to direct the promotion of a person, as they cannot substitute themselves for a Departmental Promotion Committee, but can only direct the authorities to consider / reconsider a person for promotion, in accordance with law.
20. The contention of the learned counsel for the petitioner in support of the relief claimed, was that the petitioner fulfilled the eligibility criteria under the Tamil Nadu Forest Services and the Tamil Nadu State and Subordinate Service Rules, and thus, he is eligible to be considered for promotion to the post of Assistant Conservator of Forests from due date. The petitioner had submitted his representations against drawing of panel fro the year 1998-1999, being against the rules.
21. The case of the petitioner is that 13 persons were wrongly included in the panel by giving relaxation, which resulted in denying the right of the consideration to the petitioner.
22. Learned counsel for the petitioner contended that in the year 2001, and in the year 2005, Rule 4(3) and 11 of the Tamil Nadu Forest Service Rules, was not followed, and the promotions were given by relaxation of rules, which is ultra vires and unconstitutional.
23. In support of this contentions, the reliance placed on the Judgments of the Hon'ble Supreme Court in R.S.Garg Vs. State of U.P., & Others reported in (2006) 6 SCC 430 and K.H. Siraj Vs. High Court of Kerala and Others reported in (2006) 6 SCC 395. Both the Judgements have no relevance to the point raised. In the case of R.S.Garg Vs. State of U.P., & Others (Supra), the Court was considering U.P. Labour Department (Factories & Boilers Division) Officers Service Rules, 1980 and on the facts of the said case held the appointment of the third respondent to be bad. There is no such pleading in the present case as the persons were admittedly promoted in exercise of power under the relaxation rule. In the case of K.H. Siraj Vs. High Court of Kerala and Others, the prayer was for relaxation of age in future recruitment, which was declined by the Hon'ble Supreme Court. This is not the question raised in the present Writ Petition.
24. The next contention of the learned counsel for the petitioner is, that the yearly panel was required to be drawn, and that the joint panel for three years was contrary to rules, can not be sustained, in view of the stand of the official respondents that a yearly panel was drawn.
25. It was the contention of the learned counsel for the petitioner, that the late drawing of panel itself is illegal in view of the law laid down by the Hon'ble Supreme Court in Union of India and another Vs. Hemraj Singh Chauhan and Others reported in (2010) 4 SCC 290, again is misplaced as the Hon'ble Supreme Court has not laid down that, mere delay can result to quash panel, in absence of any adverse effect in the right of the petitioner.
26. On the contention referred to above, the learned counsel for the petitioner, prays for issuance of a Writ in the nature of Certiorari to quash the impugned panel, and to consider the case of the petitioner for promotion as Assistant Conservator of Forest from due date.
27. Ms. S.Bharathi, learned Government Advocate, opposed, the Writ Petition, by contending that though the petitioner satisfied Rule 4(3) of the Tamil Nadu Forest Service Rules, but at the time of consideration of his case for promotion, two charge sheets under Section 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules were pending against him.
28. This was again the case at the time of drawing of panel for the year 2007-2008. This was the reason for his non-selection.
29. Again for the year 2008-2009, a charge sheet under Section 17(b) of Tamil Nadu Civil Service (Discipline and Appeal) Rules, was pending for recovery of Rs.5,99,534/- (Rupees Five Lakhs Ninety Nine Thousand Five Hundred and Thirty Four only) thus the petitioner could not be cleared for promotion.
30. On superannuation, the petitioner was placed under suspension as the Vigilanc and Anti Corruption Department registered a case against him.
31. The contention of the State counsel, was that the Writ Petition filed by the petitioner deserved to be dismissed, as the petitioner could not be promoted, due to pending charge sheets, under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. Learned counsel for the State in support of this contention placed reliance on the Full Bench Judgment of this Court in Deputy Inspector General of Police Vs. V.Rani, reported in (2011) 4 MLJ 1. This Judgment does not deal with the point, as to whether promotion can be denied pending enquiry. But deals with the effect of order of punishment.
32. On consideration, I find no force in this Writ Petition. The challenge of the petitioner, that promotion panel was in violation of statutory rules, as juniors were promoted by ignoring petitioner is specifically denied. The positive stand of the respondent is that panel for each year has been prepared, wherein case of the petitioner was also considered, but he was not promoted due to pending enquires under Section 17(b) of the Tamil Nadu Civil Service (Punishment and Appeal) Rules.
33. The stand of the petitioner, that his seniority was not been rightly fixed, is also misconceived, as the petitioner was placed in seniority list as per Rule 8-A, of the Tamil Nadu Forest State and Sub-Ordinate Services.
34. The other contention of the learned counsel for the petitioner that he was entitled to promotion, as of right on acquiring eligibility also cannot be sustained. The case of the petitioner was duly considered, but he could not be promoted, because of the pendency of the charge sheets under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. In view of the fact that the petitioner is facing number of departmental enquiries including a case under the Prevention of Corruption Act. The petitioner can not claim promotion to the post of Assistant Conservator of Forest, at this stage.
VINOD K.SHARMA, J vsg
35. No merit. Dismissed.
36. No costs.
28.09.2011 Index :Yes/No Internet:Yes/No vsg To
1. The Commissioner & Secretary Environment & Forests State of Tamil Nadu Secretariat Chennai - 9
2. The Principal Chief Conservator of Forests Panagal Building Saidapet Chennai - 15
3. The Secretary Tamilnadu Public Service Commission Government Estate Chennai -2 Pre-Delivery Order in W.P.(MD).No. 3998 of 2004