Madras High Court
The Secretary To Government vs S.Subramanian on 13 March, 2019
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, P.D.Audikesavalu
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.03.2019
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
And
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
W.A.No.610 of 2019
and
C.M.P.No.5007 of 2019
1.The Secretary to Government,
Home (Fire 17) Department,
Fort St.George, Chennai -9.
2.The Additional Director General of
Police Cum Director,
Tamil Nadu Fire & Rescue Services Department,
Egmore, Chennai – 8.
3.The Deputy Director,
Northern Region,
Tamil Nadu Fire & Rescue Services Department,
Greams Road, Chennai – 6.
4.The Divisional Fire Officer,
Sub-urban Division,
Tamil Nadu Fire & Rescue
Services Department,
Ambattur, Chennai – 59. ... Appellants
Vs.
S.Subramanian ... Respondent
Prayer:
Writ appeal filed under Clause 15 of the Letters Patent against
the order dated 17.07.2018 made in W.P.No.18910 of 2014.
http://www.judis.nic.in
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For Appellants : Mrs.Narmatha Sampath
Additional Advocate General
Assisted by Mrs.A.Srijayanthi
Special Government Pleader
For Respondent : Mr.Venkatraman
Senior Counsel for
Mr.M.Muthappan
JUDGMENT
(Judgment of the Court was delivered by K.K.SASIDHARAN,J.) Introductory :
The learned Single Judge allowed the writ petition filed by the respondent and permitted him to function as Fireman by restoring his original seniority and to participate in the promotion test for appointment to the post of Leading Fireman. The appellants have come up with this intra Court appeal with a contention that once there is an option exercised by the Fireman to work in the posts included in Channel -I or Channel -II, it would not be possible to go back to the other Channel as it would jeopardize the interest of the other employees, who were in the seniority list of the particular panel. Background Facts :
2.The respondent was appointed as a Fireman through the Tamil Nadu Uniformed Service Recruitment Board. His appointment was on 09.09.1996. The respondent after his appointment as Fireman http://www.judis.nic.in 3 appears to have given an option selecting Channel – II. The respondent was later promoted to the post of Fireman (Driver). The next avenue of promotion in the said line is Fireman Driver (Mechanic) and thereafter Station Officer (Transport). The Fireman in Channel – I would be promoted at the first instance as Leading Fireman, then as Assistant Station Officer and finally Station Officer. The respondent was promoted as Fireman (Driver) on 30.04.2007.
3. The Government issued an order in G.O.(Ms).No.352, Home (Police XVII) Department, dated 14.05.2012 upgrading 273 Driver Mechanics as Station Officers (Transport). Therefore, all the persons who were holding the post of Driver (Mechanic) as on 14.05.2012 were given upgradation as Station Officer (Transport). In view of the en masse upgradation, promotion to the post of Driver (Mechanic) from the post of Fireman (Driver) became slim and remote. However, the promotion prospects of Fireman in the other Channel were bright.
4. The respondent submitted a representation on 27.03.2013, seeking relinquishment of his promotion as Fireman (Driver). Since there was no response, the respondent filed a writ petition in W.P.No.15078 of 2013. The Additional Director General of Police cum Director, Tamil Nadu Fire and Rescue Services, Chennai, pursuant to http://www.judis.nic.in 4 the direction given by the writ Court passed an order dated 14.06.2014, rejecting the claim made by the respondent for posting him as Fireman in Channel – I. The said order was challenged in W.P.No.18910 of 2014.
5. Before the writ Court, the second appellant/ Additional Director General of Police cum Director, Tamil Nadu Fire and Rescue Services Department, Chennai, filed a counter affidavit indicating that it would not be possible to permit a Fireman (Driver) from Channel -II to switch over to Channel – I and for promoting him to the post of Leading Fireman, Assistant Station Officer and finally as Station Officer. The Tamil Nadu Fire and Rescue Services Department contended that the option once exercised is final and the employees are not entitled to change it at a subsequent point of time.
6. The learned Single Judge was of the view that the relinquishment in question was only temporary in nature and as such, the respondent was right in claiming the change of Channel and promotion from the post of Fireman to the post of Leading Fireman after retaining his original seniority in the post of Fireman. The learned Single Judge placed reliance on an earlier judgment of this Court in W.A.Nos. 1659 and 1660 of 2014 to arrive at a finding that http://www.judis.nic.in 5 the relinquishment for a temporary period would not deny the right to claim promotion in the other Channel at a later point of time. Feeling aggrieved by the order dated 17.07.2018, the State is before this Court.
Summary of Submissions :
7. The learned Additional Advocate General contended that the respondent opted to become Fireman (Driver) in Channel-II and as such he was not justified in claiming the promotion by relinquishing the earlier promotion and by migrating to Channel – I. The learned Additional Advocate General further contended that there is a clear bar for changing the Channel as it would affect the promotion chances of the Fireman and Leading Fireman included in Channel -I.
8. The learned Senior Counsel for the respondent while justifying the order passed by the learned Single Judge contended that there is nothing like permanent relinquishment. There was no option as such as contended by the State. According to the learned Senior Counsel, the respondent is prepared to forgo his promotion in the post of Fireman (Driver) and he is prepared to function as Fireman. The learned Senior Counsel further contended that there was no claim made by the respondent to promote him forthwith in Channel -I. All that he requires is to restore his seniority in the post of Fireman and http://www.judis.nic.in 6 consideration for promotion to the post of Leading Fireman, after the cooling period.
Analysis:
9. The respondent was recruited as Fireman by the Tamil Nadu Uniformed Service Recruitment Board. There were two Channels for promotion in the case of Fireman. The following table would make the position clear :
“Channel-I : Fireman → Leading Fireman → Assistant Station Officer → Station Officer.
Channel-II: Fireman → Fireman (Driver) → Fireman Driver (Mechanic) → Station Officer (Transport)”
10.The respondent opted Channel – II, resulting in his promotion as Fireman (Driver) on 30.04.2007. He was promoted to the post of Fireman(Driver) after completing 11 years of service as Fireman. The primary reason for switching over to Channel – I appears to be the remote chances of getting promotion to the Fireman and Fireman(Driver) who are included in Channel -II. In short promotion chances in Channel – I is more when compared to Channel – II.
http://www.judis.nic.in 7
11. The Government Order in G.O.(Ms).No.352, Home (Police XVII) Department, dated 14.05.2012 upgrading 273 Driver Mechanics as Station Officers (Transport), appears to be the main reason for affecting the prospects of promotion to the employees in Channel – II.
12. The respondent made a request to cancel his promotion in the post of Fireman (Driver) and post him as Fireman in Channel -I. In case his request is favourably considered he would be posted as Fireman in Channel – I and his case would be considered for the post of Leading Fireman subject to seniority and after the expiry of the statutory cooling period.
13. The appellants took up the position that once a Fireman gives an option it would not be possible to cancel it at a later point of time. The primary reason for this stand appears to be the non availability of sufficient Fireman (Driver) and the difficulty to run the administration. In fact the counter affidavit filed by the Joint Director Tamil Nadu Fire and Rescue Services Department, Chennai and the submission made by the learned Additional Advocate General shows that there are no sufficient Fireman (Driver) in Tamil Nadu Fire and Rescue Services Department.
http://www.judis.nic.in 8
14. The fact that there is a shortage of Drivers in the Tamil Nadu Fire and Rescue Services Department alone cannot be a reason to deny the right claimed by the Fireman in Channel – II to switch over to the other Channel by forgoing his promotion.
15. The appellants considered the option given by the respondent as a permanent relinquishment and that was the reason for rejecting his request for posting him as Fireman, after cancelling the promotion given to him as Fireman (Driver). The respondent is not claiming that by virtue of his seniority he should be given promotion to the post of Leading Fireman forthwith. The request is very limited. The respondent seeks an order to cancel his promotion in the post of Fireman (Driver) and put him in the common entry post of Fireman by Honouring his seniority.
16. The post of Driver is the basic post in both Channel – I and Channel – II. It is only after the initial appointment as a Fireman, the employees are given option either to select Channel – I or Channel -II. There is absolutely no regulation prohibiting the Fireman from changing the Channel at a later point of time. The appellants would be justified in their contention in case the request of the respondent is to preserve his seniority at all point of time and to promote him into the http://www.judis.nic.in 9 post of Leading Fireman immediately. Notwithstanding the promotion given to others, who were appointed along with him in the post of Fireman taking into account their option to join Channel – I.
17. The learned Single Judge found that the relinquishment was only temporary and it will not deny the chances of the respondent later to claim the post of Fireman with seniority. In fact this is not a case of relinquishing the promotion. It is essentially an option. The option was given for a particular purpose. In case the employee is willing to surrender his promotion for the purpose of going back to the original post and to claim promotion in the other Channel, it cannot be said that his claim is un-justified. We are therefore of the view that there is absolutely no merit in the contention taken by the State.
18.The learned Single Judge directed the appellants to consider the respondent for promotion to the post of Leading Fireman after the expiry of the statutory period. We direct the appellants to revert the respondent to the post of Fireman and consider his case for further promotion after the expiry of the statutory cooling period as indicated in Paragraph No.15 of the order passed by the learned Single Judge.
19. We confirm the order passed by the learned Single Judge. http://www.judis.nic.in 10
20. The intra court appeal is dismissed without any liability to pay costs. Consequently, the connected miscellaneous petition is closed.
[K.K.SASIDHARAN,J.] [P.D.AUDIKESAVALU,J.] 13.03.2019 Speaking Order/ Non Speaking Order Index: Yes / No Internet: Yes / No ms/pri To
1.The Secretary to Government, Home (Fire 17) Department, Fort St.George, Chennai -9.
2.The Additional Director General of Police Cum Director, Tamil Nadu Fire & Rescue Services Department, Egmore, Chennai – 8.
3.The Deputy Director, Northern Region, Tamil Nadu Fire & Rescue Services Department, Greams Road, Chennai – 6.
4.The Divisional Fire Officer, Sub-urban Division, Tamil Nadu Fire & Rescue Services Department, Ambattur, Chennai – 59.
http://www.judis.nic.in 11 K.K.SASIDHARAN,J.
And P.D.AUDIKESAVALU,J.
ms/pri W.A.No.610 of 2019 and C.M.P.No.5007 of 2019 13.03.2019 http://www.judis.nic.in