Madras High Court
A.Rajagopalan vs The District Collector on 9 March, 2012
Bench: Chitra Venkataraman, R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09/03/2012
CORAM
THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN
and
THE HONOURABLE MR. JUSTICE R.KARUPPIAH
WRIT APPEAL (MD) No.1285 of 2011
WRIT APPEAL (MD) No.1286 of 2011
WRIT APPEAL (MD) No.1287 of 2011
WRIT APPEAL (MD) No.1288 of 2011
WRIT APPEAL (MD) No.1289 of 2011
WRIT APPEAL (MD) No.1290 of 2011
and
M.P.(MD)Nos.1, 1, 1, 1, 1 and 1 of 2011 in
W.A (MD) Nos.1285 to 1290 of 2011
and
M.P.(MD)No.3 of 2011 in W.A.(MD)No.1285 of 2011
W.A.(MD)No.1285 of 2011
A.Rajagopalan .. Appellant
vs.
1.The District Collector,
Tiruchirappalli District,
Tiruchirapalli.
2.K.Manesh Kumar
3.M.Karthikeyan
(Respondents 2 and 3 are impleaded
as party respondents vide order
dated 9.3.2012 made in M.P.(MD)No.2
of 2011 in W.A.(MD)No.1285 of 2011) .. Respondents
W.A.(MD)No.1286 of 2011
A.Sivagami .. Appellant
vs.
The District Collector,
Tirunelveli District,
Tirunelveli. .. Respondent
W.A.(MD)No.1287 of 2011
1.C.Bhavani
2.A.Sivasubramania Pillai
3.T.Manjula
4.C.Stella Gnanamani Premeela
5.S.Kamalakannan .. Appellants
vs.
1. The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
2. S.Johan
3. P.Gnanavel,
4. R.Sri Mohana
5. G.R.Rajasekaran,
6. R.Ganesan,
7. S.Sivasankaran,
8. A.Selvamathi,
9. T.Valarmathi,
10.J.Shornambai Beaula,
11.K.Muthukumareshwarai
12.K.Nagarathinam,
13.T.Johnsiponnu
14.V.Meenal
15.M.Natarajan,
16.S.V.Sirajudeen,
17.A.Shoba,
18.R.Rengarajan,
19.A.Akbarali,
20.T.Nirmala,
21.S.R.Srinivasan,
22.S.Hendrysamidurai,
23.S.Sivakamasundari,
24.N.Jeyakumar,
25.S.Kasthurirengan,
26.C.Deiveegan,
27.P.Sendhamurai .. Respondents
W.A.(MD)No.1288 of 2011
R.Selvaraju .. Appellant
vs.
1. The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
2. The Principal Secretary & Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai-600 005.
3. The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
4. M.Baladhandayutham
5. T.Elangovan
6. S.Periyasamy
7. K.Malligaisundaram
8. V.Savithri
9. P.Srirangam
10.R.Mathivanan
11.R.Leelavathi
12.S.Manoharan
13.T.S.Badrinath
14.M.Kadar Moideen
15.R.Gunaseelan
16.R.Kalavathi
17.A.Metilda
18.A.R.A.Jeyaraj
19.R.Umapathi
20.R.Naganathan
21.V.Rengarajan
22.A.Kulathur Pandiyan
23.S.Ubhaharam
24.P.Selvam
25.S.Subramanian
26.R.Sudamani
27.R.Radha Krishnan
28.M.Srinivasan
29.K.Kaliyamoorthy
30.R.Jeyabarathi
31.N.Vasuki
32.P.L.Shanmugadurai
33.S.Arumugam
34.A.Malarkodi
35.M.Veeramani
36.K.Sulochana .. Respondents
W.A.(MD)No.1289 of 2011
1. A.Thangaraju
2.C.Shanmugam
3.P.Paramasivam .. Appellants
vs.
1. The Secretary to Government,
Revenue Department,
Secretariat,
Chennai - 600 009.
2. The Principal Secretary & Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai-600 005.
3. The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
4. M.Baladhandayudham
5. P.Ravindran
6. N.Neelavathi
7. P.Ashok Kumar
8. D.Chandrasekaran
9. S.Christi
10.P.S.Pangajavalli
11.P.Pushpam
12.P.Veeramani
13.T.Gopal
14.M.Mohanasundaram
15.N.Subramaniyan
16.N.Janaki
17.S.Soundaramani
18.A.Chinnadurai
19.M.P.Mathivanan
20.M.Manoharan
21.H.Kalyani
22.T.Muthulakshmi
23.R.Shanmugaraja
24.L.Vijayalakshmi
25.V.Saratha Rukumani
26.M.Periyasamy
27.M.Balasubramanian
28.S.Sarathiganesan
29.A.Jeyanthi
30.J.Balaji
31.A.Jeenatha Banu
32.S.Jeyanthi
33.T.Elangovan
34.S.Periyasamy
35.K.Malligaisundaram
36.V.Savithri
37.P.Srirangan
38.R.Mathivanan
39.R.Leelavathi
40.S.Manoharan
41.T.S.Badrinath
42.M.Kadar Moideen
43.R.Gunaseelan
44.R.Kalavathi
45.A.Metilda
46.A.R.A.Jeyaraj
47.R.Umapathi
48.R.Naganathan
49.V.Rengarajan
50.A.Kulathur Pandiyan
51.S.Ubhaharam .. Respondents
W.A.(MD)No.1290 of 2011
K.Muthusamy .. Appellant
vs.
1. The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
2. The Principal Secretary & Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai-600 005.
3. The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
4. C.Nallappa Udayar
5. William Sil Vester Louisraj
6. V.Shanthi
7. T.Malar
8. M.Karunakaran
9. R.Sridar
10.S.Sathya Bala Gangadaran
11.P.Ravi
12.M.Sumathi
13.R.Thangavel
14.G.Shanthi
15.V.Manoharan
16.P.Rajendran
17.S.Balasubramanian .. Respondents
Writ Appeal (MD)No.1285 of 2011 filed under Clause 15 of the Letters
Patent Act against the order dated 12.10.2011 passed in W.P.(MD)No.12918 of 2009
of this Court.
Writ Appeal (MD)No.1286 of 2011 filed under Clause 15 of the Letters
Patent Act against the order dated 12.10.2011 passed in W.P.(MD)No.12919 of 2009
on the file of this Court.
Writ Appeal (MD)No.1287 of 2011 filed under Clause 15 of the Letters
Patent Act against the order dated 12.10.2011 passed in W.P.(MD)No.13405 of 2009
on the file of this Court.
Writ Appeal (MD)No.1288 of 2011 filed under Clause 15 of the Letters
Patent Act against the order dated 12.10.2011 passed in W.P.(MD)No.189 of 2010
on the file of this Court.
Writ Appeal (MD)No.1289 of 2011 filed under Clause 15 of the Letters
Patent Act against the order dated 12.10.2011 passed in W.P.(MD)No.255 of 2010
on the file of this Court.
Writ Appeal (MD)No.1290 of 2011 filed under Clause 15 of the Letters
Patent Act against the order dated 12.10.2011 passed in W.P.(MD)No.1394 of 2010
on the file of this Court.
W.A.(MD)No.1285/2011
!For appellant ... Mr. S.Visvalingam
^For 1st respondent ... Mr.S.Gomathi Nayagam
Addl.Advocate General,
assisted by Mr.B.Pugalendhi,
Spl.Govt.Pleader
For respondents 2 and 3 ... Mr.A.Sivaji
W.A.(MD)No.1286/2011
For appellant ... Mr. S.Visvalingam
For respondent ... Mr.S.Gomathi Nayagam
Addl. Advocate General,
assisted by Mr.B.Pugalendhi,
Spl.Govt.Pleader
W.A.(MD)No.1287/2011
For appellants ... Mr. S.Visvalingam
For 1st respondent ... Mr.S.Gomathi Nayagam
Addl. Advocate General,
assisted by Mr.B.Pugalendhi,
Spl.Govt.Pleader
For respondents 2 to 27 ... No appearance
W.A.(MD)No.1288/2011
For appellant ... Mr. S.Visvalingam
For respondents 1 to 3 ... Mr.S.Gomathi Nayagam
Addl. Advocate General,
assisted by Mr.B.Pugalendhi,
Spl.Govt.Pleader
For 4th respondent ... Mr.G.R.Swaminathan
For respondents 5 to 36 ... No appearance
W.A.(MD)No.1289/2011
For appellants ... Mr. S.Visvalingam
For respondents 1 to 3 ... Mr.S.Gomathi Nayagam
Addl. Advocate General,
assisted by Mr.B.Pugalendhi,
Spl.Govt.Pleader
For 4th respondent ... Mr.G.R.Swaminathan
For respondents 5 to 51 ... No appearance
W.A.(MD)No.1290/2011
For appellant ... Mr. Isaac Mohanlal
For respondents 1 to 3 ... Mr.S.Gomathi Nayagam
Addl. Advocate General,
assisted by Mr.B.Pugalendhi,
Spl.Govt.Pleader
For respondents 4 to 17 ... No appearance
:JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN, J) The present Writ Appeals are filed as against the common order of the learned single Judge dated 12.10.2011 passed in W.P.(MD)Nos.255, 189, 1394 of 2010, 12918, 12919, 13405 and 13757 of 2009 concerning promotion and drawing up of seniority list pursuant to the orders of the Apex Court in Civil Appeal Nos.2251 and 2252 of 2009 dated 8.4.2009.
2. Before going into the rival contentions in the orders of the learned single Judge pursuant to the directions issued by the Apex Court, the facts herein need to be seen.
(i) Under G.O.Ms.No.133, Revenue department dated 7.2.1995, the Government of Tamil Nadu brought an amendment to Rule 5(g) and Annexure III to the Special Rule of the Tamil Nadu Revenue Subordinate Service, whereunder, a classification was made in the matter of granting promotion between direct recruit assistants and promotees. The rule reads as follows:-
AMENDMENTS in the said Special Rules:-
"(1) in rule 5, for sub rule (g) including the Note thereunder, the following sub rule shall be substituted namely:-
appellate authority: Where the Collector of District is selecting authority, the appellate authority shall be the Commissioner of Revenue Administration and where the Commissioner of Revenue Administration is the selecting authority, the appellate authority shall be the Government. Any person, who is qualified for inclusion in the list of approved candidates and who is senior in the category from which selection has been made, to any person whose name has been included in the list or who is aggrieved by the rank assigned to him by the selecting authority, shall be entitled to an appeal to the authority prescribed in this sub rule. The appeal shall be made within two months from the date of communication regarding inclusion or non-inclusion under sub rule (f) and (2) In Annexure III, in item (ii), for the last proviso, the following provision shall be substituted namely:-
"Provided also that an Assistant appointed by direct recruitment in the offices of the erstwhile Board of Revenue, who has completed a total service of five years, passed all the tests prescribed and undergone training as Firka Revenue Inspector for a period of two years successfully shall be eligible for inclusion of his name in the approved list of Deputy Tahsildars for Madras City, above his seniors appointed other than by direct recruitment or for re-fixation of his seniority of his seniority over such seniority, if his name has already been included in the list of Deputy Tahsildars. The consideration of his claim shall be against the first vacancy that follows the carried over vacancies.
3. After the proviso so substituted, the following proviso shall be added:-
"Provided also that an Assistant appointed by direct recruitment in the District Revenue Unit, who has completed a total period of five years, passed all the tests prescribed and undergone training as Firka Revenue Inspector for a period of two years successfully, shall be eligible for inclusion of his name in the approved list of Deputy Tahsildars in the District above his seniors appointed other than by direct recruitment or for re-fixation of his seniority over such seniors, if his name has already been included in the list of Deputy Tahsildars. The consideration of his claim shall be against the first vacancy that follows the carried over vacancies."
A perusal of the above rule shows the direct recruits were placed over and above the promotees in the matter of considering their names for further promotion to the post of Deputy Tahsildar.
(ii) After orders passed by the Tamil Nadu Administrative Tribunal, Chennai, allowing the case of the promotees that there cannot be any consideration of the direct recruits over and above the promotees, writ Petitions were filed before the High Court as against the Tribunal's Order. As against the order passed by the High Court setting aside the Tribunal's order, further appeals were preferred before the Apex Court.
3. In considering the scope of the amendment, in Paragraph 25 of the judgment dated 8.4.2009 passed by the Apex Court, it was observed that the directly recruited Assistants and promoted Assistants have been integrated into one category of classification. After integration, there cannot be a further classification for promotion except when it is based on higher educational qualification, which would be a rational one. The Apex Court further clarified that once a promotee becomes a graduate, there cannot be any rational basis for discrimination against him vis-a-vis direct recruits.
4. As regards the non-graduate promotee Assistants, the Apex Court observed as follows:-
"26. As regards the non graduate promotee Assistants, we are of the opinion that ordinarily it is for the State Government to decide whether their qualification has a reasonable relation to the nature of duties and responsibilities that go with and are attendant on the promotional post of Deputy Tahsildar. It is true that as observed in Roo Chand Adlakha's case (supra) there may, conceivably, be cases where the differences in the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another, and whether the classification is reasonable or not must, therefore, necessarily depend upon the facts of each case and the circumstances obtaining at the relevant time.
However, the question whether the difference in the educational qualification is sufficient to give preferential treatment to one class of candidates against another, should in our opinion be ordinarily left to the executive authorities to decide. The executive authorities have expertise in administrative matters, and it is ordinarily not proper for this Court to sit in appeal over their decisions unless it is something totally arbitrary or shocking. Whether graduate degree is a sufficient basis for classification for promotion vis-a-vis non-graduates, and whether such classification has rational relation to the nature of duties of a Deputy Tahsildar, is, in our opinion for the State Government to decide, and not the Court. Hence, we uphold the validity of impugned rule to the extent that it gives preference to the directly recruited Assistants over the promoted Assistants who are non graduates."
5. In the light of the above, the impugned rule was to be read down holding that once a promotee becomes a graduate, there is no rational basis for discrimination between direct recruits and promotees who are graduates.
6. Admittedly, subsequent to the Apex Court's judgment, without considering the letter issued regarding the decision of the State Government to take into consideration non-graduates on par with the graduates promotee candidates, promotions were made, as per Rule 7 of the Tamil Nadu Revenue Subordinate Service Rules. Considering the fact that in the matter of granting promotion to the promotees to the post of Deputy Tahsildar, the Government had not acted as per the decision of the Apex Court and that the claims of the non- graduate promotee Assistants were not considered, several Writ Petitions were preferred before this Court, one set of Writ Petitions seeking direction to the Collector to retain the old approval and restrain him from drawing the panel as well as to quash the fresh panel prepared by the District Collector; one set of Writ Petitions were filed seeking amendment to Rule 5(g) of the Tamil Nadu Revenue Subordinate Service Rules as per the order of the Supreme Court and one set of Writ Petitions for setting aside the panel and to implement the order of the Supreme Court in accordance with the principle of carried over vacancies.
7. In considering these claims, learned single Judge passed a common order dated 12.10.2011 and dismissed all the Writ Petitions. As far as the prayer for amending the rules is concerned, learned single Judge held that the direction given to the State Government by reading down the rule that graduate promotees are also eligible to be treated on par with direct recruits for being promoted to the next higher cadre is binding on the State Government under Article 142 of the Constitution of India and that it does not require a formal amendment to the rule, or for that matter, an order to be made to direct the Government to amend the rules. As far as recasting of the panel is concerned, learned single Judge pointed out that once the Apex Court declares the law, it is effective from the inception of the provisions, this Court cannot interpret the Apex Court's order to mean that it is prospective only. Going by the judgment of the Apex Court reading down the provision, it is unnecessary to give direction to the Government to implement the judgment which is binding on all authorities. As regards the list already prepared, learned single Judge pointed out that mere inclusion in the panel without there being any further order would not confer any right on the petitioners. The Government is free to fill up or not to fill up such posts and hence no Mandamus could be issued. The fact that the names of some of the petitioners were found in the earlier panel, per se, would not give any vested right to the petitioner to continue in the panel when the State is bound to recast the panel in the light of the Apex Court's order.
8. In the light of the above, the Writ Petitions seeking Mandamus were rejected. Aggrieved by the same, the present Writ Appeals are filed.
9. It is a matter of record that after passing of the order in the Writ Petitions, on 30.12.2011, the Government issued Letter (MS) No.392, accepting the recommendations of the Principal Secretary and Commissioner of Revenue Administration, and directed that at present, for the post of Deputy Tahsildar, and for further promotion like Tahsildar, Deputy Collector, District Revenue Officer, when the qualification of degree is not prescribed that it may not be appropriate to prescribe graduate qualification as an essential qualification applicable only for the post of Deputy Tahsildar. Under the circumstances, the Government decided that graduate degree need not be prescribed in as an essential qualification for considering the candidature for the post of Deputy Tahsildar. Thus, the proposal to make an amendment as suggested, originally, to prescribe the qualification was given up. The consequence of this is that for the purpose of considering the eligibility of a person to be promoted to the post of Deputy Tahsildar, graduation is not taken as an essential qualification and that graduate and non-graduate promotee Assistants would be considered as one single category along with assistants. Thus, in the context of the Apex Court's decision, particularly, in Paragraphs 25 and 26 of the judgment with the rule read down and the decision to include non-graduates as eligible candidates along with the graduate promotees, the Government expressed its desire to treat them all alike.
10. The consequence that follows from the discussions is that the promotees and the direct recruits in the post of Assistants are to be considered as one single category for considering them for further promotion to the post of Deputy Tahsildar. Thus, this takes us to the next question as to the date of implementation of the rule.
11. It is not denied by the Government herein that Notification No.884, Revenue Department, dated 12.8.1992 was given effect retrospectively with effect from 04th December, 1978. Thus, with the reading down of the said amendment by the Apex Court as early as 8.4.2009 and the subsequent order of the Government deciding to include non-graduates for the purposes of considering them for further promotion, the only logical conclusion would be that the effect of the rule read down has to be taken as effective from 4.12.1978 only and the list has to be drawn from 04.12.1978. It is no doubt true that while recasting the list, due to efflux of time, in the mean time, many persons would have retired by now and some persons would not be alive at all. Such difficulties projected would, no doubt, bring on certain practical problem in drawing the list.
12. However, taking note of the above instances, the proper course herein would be to take non-graduate promotees along with graduate promotees and the direct recruits as one group, and based on the seniority as on 4.12.1978 and other qualification given thereon for the post of Deputy Tahsildar, promotion list has to be drawn for those candidates on satisfying the required qualification.
13. Having heard the learned counsel appearing for the appellants and the learned Additional Advocate General for the official respondents and the counsel for other respondents, we have no hesitation in setting aside the order of the learned single Judge, thereby directing the Government to draw the seniority list taking promotees as well as direct recruits forming as one category, draw the panel as on 04th December, 1978 and reconsider the promotion subject to the candidates satisfying the criteria required under the rules within a period of two months from the date of receipt of a copy of this order.
14. In so drawing up the panel, considering the distance of time, the Government shall also consider that those candidates who were already promoted to the post of Deputy Tahsildar but who are not in service either on account of retirement on attaining superannuation or those persons not available by reason of death, that such cases may not be disturbed or adversely considered to their prejudice. Thus, the above order is passed taking into account principles of equity and justice.
15. The Writ Appeals are disposed of and the State is directed to take action expeditiously. No costs. Connected Miscellaneous Petitions are closed.
asvm To
1. The Secretary to Government, Revenue Department, Secretariat, Chennai-600 009.
2. The Principal Secretary & Commissioner of Revenue Administration, Ezhilagam, Chepauk, Chennai-600 005.
3.The District Collector, Tiruchirappalli District, Tiruchirapalli.
4.The District Collector, Tirunelveli District, Tirunelveli.