Madras High Court
B.Olivannan vs Tamil Nadu Industrial Investments ... on 18 November, 2008
Author: S.Tamilvanan
Bench: Elipe Dharma Rao, S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 18-11-2008
CORAM
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
WRIT APPEAL No.1502 of 1998
and C.M.P.No.16512 of 1998
1. B.Olivannan
2. T.Kirubagaran
3. G.Srinivasan
4. M.Seetharaman
5. K.Nagarajan
6. M.Muthukumar
7. P.T.Mathivanan
8. P.Sundaram
9. R.Gunasekaran
10. D.D.Thomas ... Appellants
-vs-
1. Tamil Nadu Industrial Investments Corporation
Rep. by its Chairman & Managing Director
27, While Road, Chennai 14.
2. M.Pushparaj
3. N.R.Radharamanan
4. M.Sundaresan
5. M.R.Gowrishankar
6. S.Muthiah
7. S.Muthuramalingam
8. M.Hariradhakrishnan
9. G.Gururaj
10. V.Chandrasekaran
11. A.Mohan
12. P.Jeyavelan
13. R.Narayanan
14. M.Jayakumar
15. T.William Amirtharaj ... Respondents
Writ appeal filed under Clause 15 of the Letters Patent against the order, dated 11.02.1998 made in W.P.No.4862 of 1996.
For appellants : Mr.S.Vadivelu
For respondents : Mr.Vijay Narain, Senior Counsel
for M/s. Aiyar & Dolia
J U D G M E N T
S.TAMILVANAN,J The writ appeal has been preferred, challenging the correctness of the order, dated 11.02.1998 made in W.P.No.4862 of 1996 by the learned single Judge.
2. The appellants herein were the petitioners in the writ petition. They were working as Assistant Managers in the Tamil Nadu Industrial Investments Corporation Ltd, the first respondent herein in different stations on the date of filing the writ petition. They were directly recruited and appointed as Assistant Managers by the first respondent, as per Service Rules from open market and the respondents 2 to 15 were promotees to the post of Assistant Manager from the feeder category of officers in the first respondent Corporation.
3. The appellants / petitioners filed the writ petition for quashing the proceedings of the first respondent in No.Admn/A3/1706/95, dated 08.03.1995, whereby the seniority of the appellants herein was altered by placing them below the respondents 2 to 15 herein and the connected proceedings of the first respondent in No.Admn/A3/1706/95, dated 08.05.1995, so far as the appellants herein are concerned and direct the first respondent to restore the original seniority of the petitioners herein and to place them above the respondents 2 to 15 herein.
4. It is an admitted fact that as per the circular, dated 19.01.1999 issued by the first respondent, applications were invited from the members of the staff working in the Tamil Nadu Industrial Investments Corporation Ltd., from the cadre of Officers, who possess the following qualification and who have completed five years of service in Tamil Nadu Industrial Investments Corporation Ltd., for selection to the post of Assistant Manager. The qualification prescribed therein is CA/ICWA/B.E/B.Tech or Post Graduate with MBA. The appellants having the required qualification had applied for the said post and were selected after undergoing a written test and interview. On 01.03.1994, the appellants were informed that they have been selected for appointment to the post of Assistant Managers in the first respondent Corporation. The appointment was made, by order dated 10.03.1994, though their selection for the appointment was intimated on 01.03.1994. However, the appointment was made by Proceedings, dated 10.03.1994, informing that the appellants who were appointed as Assistant Managers were deemed to officiate as Assistant Managers from 01.03.1994.
5. As per Proceedings No.Admn/A3/4564/94-1, dated 28.02.1994, the respondents 2 to 15 were also informed that they were promoted as Assistant Managers with effect from 01.03.1994 and they were deemed to officiate as Assistant Managers from the date, 01.03.1994.
6. According to the appellants, as per paragraph 3 of the proceedings, dated 28.02.1994, it was informed to the respondents 2 to 15 that the inter-se seniority of the promotees, as shown in the above proceedings will be fixed below the directly recruited Assistant Managers, who were selected on 27.02.1994. It is not in dispute that both the promotees as well as direct recruits were on probation for a period of one year from 01.03.1994. According to the appellants, as per the proceedings, dated 28.02.1994, the direct recruits, selected through open market were placed above the promotees, the respondents 2 to 15 herein. But, as per the impugned proceedings of the first respondent in No.Admn/A3/1706/95, dated 08.03.1995, contrary to the earlier proceeding, it was intimated that the seniority of the promotees, the respondents 2 to 15 herein had been placed above the appellants. Hence, the appellants / direct recruits, filed the writ petition, challenging the order. With the above averments, the appellants / petitioners have sought the relief to quash the proceedings of the first respondent, dated 08.03.1995 revising the seniority of the appellants and to issue a direction to the first respondent to restore their seniority, as per order, dated 28.02.1994, that was maintained before the issue of the impugned proceedings of the first respondent, dated 08.03.1995.
7. Mr.S.Vadivelu, learned counsel appearing for the appellants submitted that under Rules 3.4 (7) of the service rule of TIIC, the ratio for direct recruitment and internal promotion to the post of Assistant Manager shall be 1:1. The appellants herein were recruited as per the quota permissible under the Service Rules. Though they were selected on merits, arbitrarily violating Article 14 of the Constitution, inter-se seniority has been altered by the first respondent and as such, failed candidates for the direct recruitment have been placed over the successful candidates in fixing the seniority and no reason has been assigned for the alteration of seniority. The learned counsel also drew the attention of this court to Article 110 of the Articles of Association of the first respondent, which makes it clear that even regulation cannot be made so as to invalidate any prior act of the directors, which would have been valid if such regulation had not been made.
8. According to the learned counsel appearing for the appellants, as per the impugned proceedings, dated 08.03.1995, the approved seniority of the appellants herein has been taken away against Article 110 of the Articles of Association of the first respondent and he further contended that it is a clear violation of Article 16 (1) of the Constitution of India. In support of his contention, the learned counsel relied on the following decision Mervyn Continho vs. Collector of Customs, Bombay, reported in AIR 1967 SC 52.
9. Per contra Mr.Vijay Narain, learned Senior Counsel appearing for the first respondent submitted that there is no violation in the impugned order, dated 08.03.1995 passed by the first respondent. According to the learned Senior Counsel, in the absence of provisions of 'Quota- Rota' in the Service Rules, merely based on the Quota fixed for a particular category cannot claim rota, on the basis of past practice. In support of his contention, he relied on the decision, Suraj Prakash Gupta vs. State of J & K, reported in 2000 (7) SCC 561. The learned Senior Counsel further submitted that respondents 2 to 15 were admittedly promoted on 01.03.1994 by order, dated 28.02.1994, whereas the appellants were appointed only by order, dated 10.03.1994 with retrospective effect from 01.03.1994. Hence, according to the learned Senior Counsel, the appellants cannot claim seniority prior to the date of their joining in the service and therefore, the writ appeal is liable to be dismissed.
10. In the counter filed by the first respondent, it has been clearly stated that there were vacancies for the post of Assistant Manager during 1993 and it was decided by the first respondent Corporation to fill up the vacancies in the ratio of 1:1, as per the Service Rules of the Corporation, i.e., one vacancy to be filled up by promotion from the feeder cadre of officers and one vacancy to be filled up by direct recruitment on the basis of selection from open market, accordingly, advertisements were made calling for eligible persons to apply for the post of Assistant Manager in the Corporation. In order to provide an opportunity to the persons possessing same qualification and also working in the Corporation in the cadre of officers, such officers were also permitted to compete with the outsiders for the direct recruitment. Accordingly, written examination was conducted for the candidates appearing from the open market as well as officers possessing the required qualification and as experience per the Rules. The appellants among others were successful in the examination and were called for the interview, then the appellants herein and six others were informed by letter, dated 01.03.1994 that they were selected for appointment to the post of Assistant Manager for the direct recruitment and they were intimated that orders of appointment would be sent separately. On 28.02.1994, orders were issued to the respondents 2 to 15 herein, promoting them as Assistant Managers with effect from 01.03.1994 and in that order, it was informed that the respondents 2 to 15 would be placed below the direct recruits, appellants herein following guidelines. Subsequently, on 10.03.1994, appointment orders were issued to the appellants herein, since they were selected for the appointment, by order dated 10.03.1994 and also informed that they were deemed to officiate as Assistant Managers with effect from 01.03.1994, without mentioning their inter-se seniority with respondents 2 to 15.
11. Aggrieved by the order, dated 28.02.1994 in fixing the seniority of the respondents 2 to 15 below the appellants, the respondents-promotee officers had made a representation to refix their inter-se seniority. Considering their representation, since the appointment order was issued to the appellants on 10.03.1994 with retrospective effect from 01.03.1994 and respondents 2 to 15 were promoted with effect from 01.03.1994, as per order, dated 28.02.1994, the first respondent decided that the respondents 2 to 15 were seniors to the appellants and accordingly, the impugned order, dated 08.03.1995 was issued to the appellants, modifying the earlier orders with reference to inter-se seniority between the promotees and the direct recruits. As per the impugned order, the appellants were informed that they were juniors to the respondents 2 to 15 herein.
12. In the counter filed by the first respondent, it has been clearly admitted that it had been decided by the first respondent Corporation to fill up the vacancy of the post of Assistant Manager during 1993 in the ratio 1:1, as per the Service Rules of the Corporation, i.e., one vacancy to be filled up on promotion from the cadre of officers and one vacancy to be filled up by recruitment on open market. However, the relevant rule 3.4 (7) of the Tamil Nadu Industrial Investment Corporation Limited Rules 1990 says that the post of Assistant Manager in the Corporation shall be filled, by direct recruitment and promotion in the ratio 1:1, which reads as follows :
"The ratio for direct recruitment and internal promotion to the post of Assistant Manager shall be 1:1"
Therefore, the relevant service rule clearly stipulates that the vacancy be filled up first by a direct recruit, selected from open market and then a promotee, then a direct recruit and then a promotee and so on. Therefore, though the first respondent has rightly stated, as per the Service Rules, the vacancy has to be filled up in the ratio of 1:1 from and out of the two categories, as per the Rule 3.4(7). Hence, it is clear that the first vacancy should be filled up only by direct recruitment and the second vacancy should be filled up by promotee and so on as per the Service Rules of the first respondent Corporation.
13. The Hon'ble Supreme Court by its Constitution Bench decision in Mervyn Continho vs. Collector of Customs, Bombay reported in AIR 1967 SC 52, has held as follows :
"5...It was further explained that a roster should be maintained based on the reservation for direct recruitment and promotion in the recruitment rules. Where, for example, the reservation for each method is 50 per cent, the roster will run as follows (1) promotion, (2) direct recruitment, (3) promotion (4) direct recruitment and so on. Appointments should be made in accordance with this roster and seniority determined accordingly. "
As per the Service Rules relating to the referred case for the cadre of appraiser in Customs Department, 50% quota each had been fixed between the promotees and direct recruits, wherein though the ration was 1:1, as per the Service Rules, as per roster, the rotation was started from promotion and direct recruitment.
14. In the instant case, as Rule 3.4 (7) of the first respondent's Service Rules clearly stipulates the ratio 1:1 between direct recruits and promotees, hence, it cannot be said that there is only 'quota' rule for the category in the appointment and that the 'rota' based seniority need not be followed. The ratio fixed in the Service Rules, 1:1 contemplates "Quota-Rota" method in appointing the two categories, out of which, the direct recruit comes first and promotion comes next.
15. The Hon'ble Apex Court in the decision, Suraj Prakash Gupta vs. State of J & K, reported in 2000 (7) SCC 561 has clearly ruled that in the absence of provision for rota in the services rules, rota cannot be claimed, merely on the basis of past practise. As rightly contended by the learned counsel for the appellants, we are of the view that the ratio 1:1 speaks the "Quota-Rota" method to be followed, while appointment is made for the post of Assistant Manager from the category of direct recruits and promotees.
16. It is not in dispute that the term "rota" is indicating the procedure in fixing the seniority following rotation between the two categories of same cadre officers, while fixing their inter-se seniority. Here in the instant case, the provision Rule 3.4(7) of the Corporation specifically stipulates the "Quota" as well as "Rota" that the vacancy for the post of Assistant Manager shall be filled in the ratio 1:1. The ratio clearly indicates the express provision that each of the category is entitled to 50% and the seniority should be given effect to 1:1 as held by the Hon'ble Apex Court in AIR 1967 SC 52 (cited supra).
17. It is not in dispute that in order to fill up 28 vacancies, for the post of Assistant Manager, in the first respondent Corporation, advertisement was made, as per terms of Service Rules in various newspapers on 17.01.1994 and circular dated 19.01.1994 was also issued, stating that the staff working in the first respondent Corporation in the cadre of officer who possess the qualification prescribed therein with completed five years of minimum service in the cadre of officer to be eligible to apply for selection to the post of Assistant Manager by direct recruitment. After conducting written examination and interview, the candidates selected for direct recruitment were informed by letter, dated 01.03.1994 that they were selected and separate appointment orders would be sent to them. However, the first respondent had issued orders promoting the respondents 2 to 15, for the promotion quota, by order, dated 28.02.1994, promoting them with effect from 01.03.1994 and however, appointment order to the appellants, who are the direct recruits, were issued only on 10.03.1994, stating that they were deemed to officiate as Assistant Managers with effect from from 01.03.1994.
18. Had the first respondent issued the orders of appointment to the appellants (direct recruits) and order of promotion to the respondents 2 to 15 (promotees) simultaneously, considering Rule 3.4(7) of the Service Rules, it would not have created the dispute of inter-se seniority between the two groups. But, the first respondent has improperly issued the order dated 28.02.1994 to the respondents 2 to 15, promoting them with effect from 01.03.1994 with prospective effect and issued appointment orders dated 10.03.1994 to the appellants, direct recruits with retrospective effect from 01.03.1994, stating that their appointment would be with effect from 01.03.1994, though the appellants had been selected on 27.02.1994 itself, prior to the issuance of the orders. In the order, dated 28.02.1994, the first respondent has informed the respondents 2 to 15 as follows:
"The inter-se seniority of the above officers will be as above and below that of the directly recruited Assistant Managers who were selected on 27.02.1994."
As per this order, the seniority of the 14 promotees, the respondents 2 to 15 is as per their seniority fixed in the order, but, it was informed that they would be placed below the 14 direct recruits, which is also against the Service Rules.
19. In the promotion order, dated 28.02.1994 itself the first respondent has intimated that the order is subject to the aforesaid inter-se seniority, however, as per the impugned order, dated 08.05.1995 passed by the first respondent, all the appellants were placed below the respondents 2 to 15, who were promotees to the post, ignoring the Service Rules, Rule 3.4(7), though, which says the ratio between the direct recruits and promotees 1:1.
20. As enshrined in Article 16 (1) of the Constitution, equality of opportunity in matters relating to public employment, i.e., one of the fundamental rights guaranteed under the Constitution, which cannot be tampered with arbitrarily by the authorities.
21. The Constitution Bench of the Hon'ble Supreme Court in the decision Mervyn Continho vs. Collector of Customs, Bombay, reported in AIR 1967 SC 52, has categorically ruled and given guidelines in fixing inter-se seniority, in order to safeguard the fundamental right guaranteed under Article 16(1) of the Constitution. The Constitution Bench further held as follows :
"The Government of India's Circular of 1955 emphasises the rotational system in the matter of fixing of seniority and all that it means is that vacancies should be filled either by direct recruits or by promotees according to the quota fixed. The plain meaning of the words 'seniority determined accordingly' appearing in explanation to principle relating to relative seniority of direct recruits and promotees appearing in circular of 1959 is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on. Where, therefore, recruitment to a cadre is from two sources, namely direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. There is no violation of the principle of equality of opportunity enshrined in Art.16 (1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in Government Service."
22. When the Service Rules specifically says the quota-rota rule between the two categories of officers, namely, direct recruits and the promotees, by stipulating the ratio 1:1, the first respondent having decided to fill up the vacancies of the post Assistant Manager during 1993, in order to adher the rule scrupulously, should have issued orders to both the categories simultaneously for the appointment as well as for promotion to the respective categories. The first respondent had issued orders of promotion to the respondents 2 to 15 on 28.02.1994 promoting them with effect from 01.03.1994, but issued orders of appointment to the appellants, direct recruits subsequently on 10.03.1994 with retrospective effect from 01.03.1994, ignoring the Service Rules, which shows only the arbitrary attitude of the first respondent.
23. As the service Rule provides 'quota-rota' method in filling up the vacancies of a particular cadre of officers in public employment, it is mandatory on the part of the authorities to follow scrupulously the rotational method in fixing inter-se seniority between the two cadres, as per the ratio stipulated in the Rules. It is an admitted fact that the Service Rules of the first respondent Corporation was not amended and the ratio is not under challenge. Hence, by the impugned proceeding of the first respondent, the ratio cannot be tampered with. Rule 3.4(7) of the Service Rules has prescribed inter-se seniority between direct recruits and the promotees in the ratio 1:1, which is a clear mandate of 'quota-rota' method to be followed in fixing the inter-se seniority.
24. Prior to the date of promotion and the appointment, both the appellants as well as respondents 2 to 15 were selected, which is not in dispute and therefore, they got accrued right in claiming inter-se seniority, as per the Service Rules of the first respondent. However, for no fault of the appellants as well as the respondents 2 to 15, merely by following erroneous procedures, contrary to the Service Rules, the first respondent had issued orders of promotion to the respondents 2 to 15 on 28.02.1994, promoting them with effect from 01.03.1994 and issued appointment orders to the appellants on 10.03.1994 by providing retrospective effect, stating that they were deemed to officiate as Assistant Managers from 01.03.1994. As per the order, dated 28.02.1994 issued by the first respondent to the respondents 2 to 14, it has been intimated that they will placed below the directly recruited Assistant Managers, who were selected on 27.02.1994. Then suddenly, by the impugned order, dated 08.03.1995, contrary to the aforesaid earlier order, the first respondent has placed all the direct recruits, appellants herein below the respondents 2 to 15, which is also totally erroneous and against Service Rules.
25. It is well settled that no authority has power to violate any provisions of law and act arbitrarily, in order to bye-pass any legal mandate, since "Rule of Law" is paramount to safeguard the fundamental right of equality before law and equal protection of law as enshrined under Article 14 of the Constitution.
26. In the promotion order, dated 28.02.1994, the first respondent has intimated the respondents 2 to 15 that their seniority will be fixed below the directly recruited Assistant Managers, who were selected on 27.02.1994. This intimation was also not in accordance with the relevant Service Rules, as discussed by us earlier, since neither group can claim seniority over the other group, as the Service Rules stipulates only the ratio 1:1, which is only a 'quota-rota' rule. In other words, the rule 3.4 (7) provides inter-se seniority to be fixed by rotational system among direct recruits and promotees. The learned Single Judge while passing the order has not properly considered the legal aspects, in the light of the decisions rendered by the Hon'ble Apex Court, while dismissing the writ petition.
27. On the facts and circumstances, we are of the considered view that the writ appeal has to be allowed on account of the illegal procedure being followed by the first respondent in fixing the inter-se seniority between the appellants and the respondents 2 to 15, accordingly, the writ appeal is allowed and the order passed by the learned Single Judge is set aside. Consequently, the impugned order, that was challenged in the writ petition, dated 08.03.1995 passed by the first respondent is also set aside. The first respondent is directed to fix the inter-se seniority between the appellants and the respondents 2 to 15 by strictly following Rule 3.4(7) of the Tamil Nadu Industrial Investment Corporation Limited Service Rules 1990, as per roster, which will run as follows (1) direct recruitment, (2) promotion, (3) direct recruitment, (4) promotion and so on within eight weeks from the date of receipt of a copy of this order. Consequently, connected C.M.P.No.16512 of 1998 is closed. No order as to costs.
tsvn To Tamil Nadu Industrial Investments Corporation Rep. by its Chairman & Managing Director 27, While Road, Chennai 14