Madras High Court
V. Kuppan vs P. Murali on 28 September, 2007
Author: N. Paul Vasanthakumar
Bench: S.J.Mukhopadhaya, N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28-9-2007 Coram The Honourable Mr.Justice S.J.MUKHOPADHAYA and The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.A.No.255 and 651 of 2005 W.A.M.P.No.655 of 2006 1. V. Kuppan 2. P. Shanmugaraj 3. N. Subramanian ... Appellants in W.A.No.255/2005 & RR-10 to 12 in W.A.No.651/2005 1. N. Jayaraman 2. S. Adaikala Samidoss 3. N. Ramachandra Shenoy 4. T. Udayakumar 5. P. Nageswaran Potty 6. M. Karuppiah 7. V. Dayalan ... Appellants in W.A.No.651/2005 Vs. 1. P. Murali 2. B. Gnanavelu 3. C. Elumalai 4. R. Jayaraman 5. R. Vijayalakshmi 6. M. Parandaman 7. M.P.Mohan 8. The Corporation of Chennai, rep.by its Commissioner, Rippon Buildings, Chennai - 600 003. 9. The State of Tamil Nadu, rep.by its Secretary, Municipal Administration and Water Supply Department, Fort St. George, Chennai - 600 009. ... RR-1 to 9 in both the writ appeals The above Writ Appeals have been filed under Clause 15 of Letters Patent against the order of the learned single Judge in W.P.No.13723 of 1997 dated 24.9.2004. For Appellants in W.A.No.255/2005 & : Mr.R.Gandhi, Senior Counsel RR-10 to 12 in W.A.No.651/2005 for Mr.R.G.Narendran For Appellants in W.A.No.651/2005 : Mr.C.Selvaraju, Senior Counsel, for Mr.S.Mani For Respondents 1 to 7 in both appeals : Mr.M.Sureshkumar For 8th Respondent in both appeals : Mr.Bharathidasan For 9th Respondent in both appeals : Mr.D.Srinivasan, Additional Government Pleader COMMON JUDGMENT
N. PAUL VASANTHAKUMAR, J.
W.A.No.255 of 2005 is filed by the respondents 3 to 5 in W.P.No.13723 of 1997 against the order dated 24.9.2004 allowing the writ petition. Some of the similarly placed persons as that of the respondents 3 to 5 in W.P.No.13723 of 1997, after obtaining leave of the Court to file appeal in WAMP.No.422 of 2005, filed W.A.No.651 of 2005.
2. The parties herein will be described according to their ranks in the writ petition.
3. The brief facts necessary for disposal of these writ appeals are as follows:
(a) The writ petitioners are Degree Holders (B.E.) in the category of Assistant Engineers (Electrical), appointed in the Electrical Department of the Corporation of Chennai. Some of them are directly recruited as Degree Holders and some of them have completed their B.E. Degree course while in service of the Chennai Corporation. In Chennai Corporation, the Electrical department is treated as a separate wing.
(b) As regards the method of appointment and promotion to the post of Assistant Executive Engineer in Civil and Mechanical Engineering Departments, the ratio of 3:1 is being adopted in respect of Degree Holders and Diploma Holders. Similarly, for the post of Assistant Engineer/Junior Engineer in Electrical Department, the ratio of 3:1 was introduced by way of resolution dated 1.3.1993. Several persons, who have acquired Diploma qualification were appointed in the Electrical Department in the post of Draftsman/Tester/Assistant Supervisor and they were subsequently promoted as Junior Engineer by following the rule of seniority and if a person acquires B.E. degree qualification at a later date, he will be designated as Assistant Engineer.
(c) As regards promotion to the post of Assistant Divisional Engineer (Electrical) is concerned, the post of Junior Engineer (Electrical) and Assistant Engineer (Electrical) are treated as feeder category. It is the further case of the petitioners that the Diploma Holders must have completed 15 years of experience in the cadre of Junior Engineer (Electrical) and for Degree Holders, they must have completed 5 years of service in the post of Assistant Engineer for promotion to the post of Assistant Divisional Engineer (Electrical).
(d) The respondents 3 to 5 have not put in 15 years of experience in the post of Junior Engineer (Electrical) and their service in the Electrical Department as Draftsman/Tester/Assistant Supervisor and in the post of Junior Engineer, were altogether taken and 15 years of service was calculated and by the impugned order dated 26.7.1997 pursuant to resolution dated 17.7.1997, they were sought to be promoted as Assistant Divisional Engineer (Electrical).
(e) The said order is challenged by the writ petitioners, who are Degree holders/Assistant Engineers on the ground that respondents 3 to 5 have acquired qualifications long after their entry in the service and they have not completed 15 years of service as Junior Engineers and therefore they are not qualified to be promoted as Assistant Divisional Engineer (Electrical).
4. The claim of the writ petitioners was resisted by the Corporation of Chennai by filing counter affidavit contending that the respondents 3 to 5 were appointed as Electrical Overseer from 1.6.1974, Assistant Supervisor from 4.6.1974, Assistant Supervisor from 17.9.1975 respectively and they were appointed as Junior Engineers on 9.9.1982, 9.6.1982 and 4.4.1983 respectively and considering their entry into the service and taking into consideration the fact that they have put in more than 15 years of service in the Electrical Department, their names were placed in the promotion panel for the post of Assistant Divisional Engineer (Electrical). It is further stated in the counter affidavit that Rule 4 of the Madras Corporation Engineering Service Rules, 1969, empowers the Corporation to promote respondents 3 to 5 as Assistant Divisional Engineer (Electrical).
5. Respondents 3 to 5 filed counter affidavit and stated that as per the above quoted rule, viz., Rule 4, fifteen years of total service in the Corporation is essential and the service need not be in the cadre of Junior Engineer alone. As per the said rule only, the Corporation empaneled the respondents 3 to 5 in the promotion list and the petitioners cannot challenge the said empanelment in this writ petition as they are coming under different stream viz., Degree Holders with five years of service in the post of Assistant Engineers. It is also contended in the counter affidavit that 3:1 ratio for promotion to the post of Assistant Divisional Engineer (Electrical) with Degree and Diploma Holders cannot be pressed into service at the instance of the petitioners as the petitioners 1, 2 and 3 filed W.P.Nos.6057, 6058 and 6059 of 1990 and raised the very same issue and sought for fixing the ratio of 5:1 in the matters of promotion of Degree and Diploma Holders. The said writ petitions were dismissed by this Court by a common order dated 21.3.1991 along with other batch of cases. In the said judgment it is held that the ratio of 3:1 is not applicable to Electrical Department of Chennai Corporation. The rule also nowhere prescribes any ratio in respect of promotion to the post of Assistant Divisional Engineer (Electrical). The rule making authorities having omitted to include the said ratio, the petitioners cannot seek for direction to amend the rule and as per rules, a Diploma Holder in Electrical Engineering would be eligible to be promoted as Assistant Divisional Engineer, if he has put in minimum period of 15 years of service and insofar as the Degree Holders are concerned, they must possess not less than five years of service as Assistant Engineers in the Corporation Engineering Subordinate Service. Pointing out all these things, the respondents 3 to 5 contend that Rule 4 is strictly followed and the petitioners have no right to challenge the said order giving promotion to respondents 3 to 5.
6. The learned single Judge allowed the writ petition on the basis of the Madras Corporation Engineering Subordinate Service Bye-laws, 1981, and under the bye-laws, the constitution of various categories in services are enumerated. The posts of Electrical Overseer and Assistant Supervisor come under category 12; Junior Engineer comes under category 4; and the post of Assistant Engineer comes under category 2. The category No.2 viz., Assistant Engineer is by direct recruitment of a person having Degree in Electrical Engineering or its equivalent. The other mode of recruitment is by transfer from category 4 on acquiring qualification prescribed for recruitment, which means Junior Engineers (Electrical) coming under category 4 can also be appointed as Assistant Engineers (Electrical) (Category 2) by transfer. By applying the said bye-laws, the learned single Judge found that the post of Assistant Engineer (Electrical) and the post of Junior Engineer (Electrical) cannot be treated on par with each other. The learned single Judge having given such a finding held that for promotion to the post of Assistant Divisional Engineer (Electrical), the posts of Junior Engineer and Assistant Engineer (Electrical) are the feeder categories and for an Assistant Engineer, five years service is required and for Junior Engineer, 15 years service is required. By giving such an interpretation, the learned single Judge allowed the writ petition and quashed the order dated 26.7.1997 approving the panel for promotion of respondents 3 to 5 as Assistant Divisional Engineer (Electrical). As against the said order, the respondents 3 to 5 filed W.A.No.255 of 2005. Some of the Diploma Holders holding the post of Junior Engineer, after obtaining leave of the Court to file writ appeal, filed W.A.No.651 of 2005.
7. The learned Senior Counsel appearing for the Diploma Holders, who are having 15 years of total experience in the Electrical Department and not having 15 years of experience as Junior Engineer, submitted that when Rule 4 of the Madras Corporation Engineering Service Rules, 1969 specifically states that for promotion to the post of Assistant Divisional Engineer (Electrical), the learned single Judge was not right in giving an interpretation that 15 years of service must be possessed of after becoming Junior Engineer and not in the other categories of services. The learned senior Counsel also submitted that the Madras Corporation Engineering Subordinate Service Bye-laws, 1981, are only in the draft stage and the same is not approved by the Council and when a specific rule is available, the said bye-laws cannot be applied and the Corporation rightly applied the rule and empanelled the respondents 3 to 5.
8. The learned Senior Counsel appearing for the appellants in W.A.No.651 of 2005 also advanced his arguments on the above lines.
9. The learned counsel for the writ petitioners/respondents 1 to 9 herein contended that even though the Rule does not provide for 15 years of experience as Junior Engineer, it should be understood that 15 years of experience in the post of Junior Engineer to the Diploma Holders and five years of experience for those in the post of Assistant Engineer (Degree Holder) is necessary for promotion and therefore the learned Judge is justified in setting aside the impugned order in the writ petition holding that the Diploma Holders must have 15 years of experience in the post of Junior Engineer cadre for the purpose of getting promotion as Assistant Divisional Engineer (Electrical).
10. We have considered the rival submissions made by the learned Senior Counsels appearing for the appellants as well as the learned Counsels appearing for the respective respondents.
11. The point for consideration is whether Rule 4 of the Madras Corporation Engineering Service Rules, 1969, states that for getting promotion as Assistant Divisional Engineer (Electrical), a Diploma Holder must have 15 years of service in the post of Junior Engineer or one must be a Junior Engineer with 15 years of total service in the Electrical Department of the Corporation ?
12. The proceedings of the Commissioner of Corporation of Chennai dated 8.11.1978 clearly discloses the fact that in G.O.Ms.No.294 PWD, dated 22.2.1977, the Government re-designated all Supervisors (Diploma Holders) as Junior Engineers, the Junior Engineers (Degree Holders) as Assistant Engineers and all Assistant Engineers both Diploma and Degree Holders as Assistant Executive Engineers. Thus, the Supervisors in the Electrical Department (Diploma Holders) were re-designated as Junior Engineers and therefore the respondents 3 to 5 were re-designated as Junior Engineers. Paragraph 4 of the said Circular dated 8.11.1978 is extracted hereunder for proper understanding:
"4. Accordingly all the Supervisors and Assistant Engineers in Madras Corporation are re-designated as follows:-
(i) All the Supervisors (Diploma Holders) are re-designated as Junior Engineers on the existing scale of pay and with the existing status, powers and functions of Supervisors.
(ii) All the Supervisors (Degree Holders) are re-designated as Asst. Engineers on the existing scale of pay and with the existing powers and functions as Supervisors.
(iii) All the Asst. Engineers (both Diploma Holders) including (Upper Subordinate' Holders and Degree Holders) are re-designated as Asst. Executive Engineers on the existing scale of pay and with the powers and functions of Asst. Engineers."
13. Rule 4 of the Madras Corporation Engineering Services, 1969, prescribes the qualification for various posts in the Madras Corporation. Category 3(2) deals with Assistant Divisional Engineer (Electrical). The said post can be filled up either by direct recruitment or by promotion. For promotion, the following qualifications are prescribed:
Asst. Divisional Engineer (Elec.) By Direct recruitment By Promotion or by appointment on deputation (1) Must not have completed or will not complete 30 years of age on the 1st day of July of the year in which the selection for appointment is made;
(2) Must possess a Degree in Electrical Engineering of any University or Institution recognised by the University Grants Commission for purposes of its grant; and (3) Must have had practical experience in factory, workshop or Electrical undertaking for a period of not less than three years.
1(a). A degree in Electrical Engineering of any University or Institution recognised by the University Grants Commission for purpose of its grant or any other qualification considered equivalent thereto and in the case or promotion service as Asst. Engn., in the Corporation Engg. Subordinate service for a period not less than five years; or (G.O.Ms.No.907, RD and LA dt.20.5.81)
(b) Diploma in Electrical engineering of the State Board of Technical Education and Training or any other qualifications considered equivalent thereto and a minimum period of service and experience of 15 years; or
(c) Subject to the conditions specified below a pass in Sec.A and B of the A.M.I.E. (Ind.) Examination with Electrical Engineering (General) and any two of the following subjects under Section B as optional or additional subjects:
From the perusal of the above said rule it is amply clear that for the Diploma Holders in Electrical Engineering of the State Board of Technical Education and Training or any other qualifications considered equivalent thereto, a minimum 15 years of service is required and for the Degree Holders in Electrical Engineering, not less than five years of experience as Assistant Engineer in the Corporation Engineering Subordinate service is required. Nowhere in the said rule it is stipulated that 15 years of service is required for the Diploma Holders after they were designated as Junior Engineers. When the rule is very clear and the Corporation having acted upon on the basis of the rule as could be seen from the counter affidavit filed by the Corporation placing the respondents 3 to 5 who are appellants in W.A.No.255 of 2005 in the panel for promotion for the post of Assistant Divisional Engineer (Electrical) by seniority from the post of Junior Engineer (Electrical), no exception could be taken by the petitioners, who are Degree Holders.
14. The writ petitioners also cannot claim the benefit of 3:1 ratio for promotion to the post of Assistant Divisional Engineer (Electrical) in view of the order dated 21.3.1991 of this Court in W.P.Nos.6057 to 6059 of 1990. The claim of 3:1 ratio was rejected following the judgment of the Division Bench dated 21.12.1989, holding that it is only the Government which can fix the ratio. The Government having consciously omitted the feeder category for promotion to the post of Assistant Divisional Engineer (Electrical) from the application of 3:1 ratio, the writ petitioners cannot claim the said ratio as they are working in the Electrical Department of the Corporation. We are informed that the Government also not fixed any ratio to be followed while giving promotion to the post of Assistant Divisional Engineer (Electrical).
15. In the light of the above conclusion arrived at by us, we are of the view that the order of the learned single Judge is liable to be set aside and the writ petition filed by the writ petitioners is liable to be dismissed. We accordingly allow the writ appeals and set aside the order of the learned single Judge and dismiss the writ petition. No costs. Connected miscellaneous petition is closed.
Index : Yes/No. (S.J.M.,J.) (N.P.V.,J.) Website : Yes/No. 28-9-2007 vr S.J.MUKHOPADHAYA, J. and N.PAUL VASANTHAKUMAR, J. vr/ Pre-Delivery Judgment in W.A.No.255 & 651 of 2005 28-9-2007