Madras High Court
Dr.M.Kannan vs Secretary To Government on 7 June, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.27198 of 2010 and M.P.Nos.1 and 2 of 2010 Dr.M.Kannan .. Petitioner Vs. 1.Secretary to Government, Tamil Development Culture Department, Fort St. George, Chennai-9. 2.The Director (Honorary), Tamil Etymological Dictionary Project, C-48, TNHB Office Complex, Anna Nagar, Chennai-40. 3.Kalilur Rahman, Assistant Director, C-48, TNHB Office Complex, Anna Hagar, Chennai-40. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in connection with G.O.Ms.No.499 dated 20.12.2007 and G.O.Ms.No.401, dated 05.10.2010 passed by the Secretary the first respondent herein and quash the same, and consequently, to direct the first respondent to appoint the petitioner in the post of Assistant Director. For Petitioner : .Dr.R.Sampathkumar For Respondents : Mr.A.Suresh, GA for RR1 and 2 Mr.Vijay Narayanan, SC for Mr.R.Parthiban for R-3 - - - - ORDER
The petitioner has come forward to file the present writ petition, seeking to challenge an order in G.O.Ms.No.499, Tamil Development Religious Endowment and Information Department, dated 20.12.2007, wherein and by which the third respondent was appointed as an Assistant Director of Tamil Etymological Dictionary Project and also challenges the order in G.O.Ms.No.401, Tamil Development Religious Endowment and Information Department, dated 05.10.2010, wherein and by which adhoc rules were framed for the upgraded post of Assistant Director of Tamil Etymological Dictionary Project and after setting aside both the orders seeking for a direction to appoint the petitioner in the post of the Assistant Director.
2.When the writ petition came up on 01.12.2010, this Court had directed issuance of private notice. On such private notice, the first and second respondents have filed a counter affidavit, dated 08.04.2011 and the third respondent has filed a counter affidavit, dated 12.01.2011.
3.Heard the arguments of Dr.R.Sampathkumar, learned counsel appearing for the petitioner, Mr.A.Suresh, learned Government Advocate appearing for respondents 1 and 2 and Mr.Vijay Narayan, learned Senior Counsel leading Mr.R.Parthiban, learned counsel for the third respondent.
4.It is the case of the petitioner that the petitioner was appointed in the year 1983 in the post of Compiler in the Tamil Etymological Dictionary Project. He has been working in the said post without promotion since the last 27 years. He had obtained a Degree in M.O.L Tamil, M.A. History, B.Ed and Ph.D.(Tamil). He is also fully eligible to hold the post of the Assistant Director as per the Government Order in G.O.Ms.No.282, Tamil Development and Culture Department, dated 18.8.1989. By the said G.O., the State Government had framed adhoc rules for filling up the post of the Assistant Director under the Tamil Etymological Dictionary Project. The rules were framed under Article 309 of the Constitution and had applied to the temporary post of Assistant Director in the office of the Director of Tamil Etymological Dictionary Project. It is made subject to modification as specified in the rules. Under the said rules, appointments can be made by direct recruitment or by transfer from any other class or by recruitment by transfer from among the holders of the post of Compilers in the office of the Director of Tamil Etymological Dictionary Project. Under Rule 4, qualifications have been prescribed. Rule 4(a) prescribed minimum age for entry into the post by direct recruitment. But, in the present case, Rule 4(b) prescribes educational qualifications, which is as follows:
"(b)Other Qualifications:-No person shall be eligible for appointment to the post, unless he possess the following qualifications namely:-
(1)M.A., or M.O.L. Degree in Tamil recognised by the University Grants Commission for the purpose of its grant, and (2)Proficiency in the other three main Dravidian Language namely Telugu, Kannada and Malayalam."
5.It is also the case of the petitioner that a seniority list was published on 25.01.1996 in respect of Compilers working in the Department. The petitioner's name finds second in the seniority list. It was stated in the said order that if any one has grievance in the seniority list, he may make an appeal with the appropriate authority. It is also the case of the petitioner that no appeal has been filed and that the seniority list as such stood in the position as indicated above. The petitioner also stated that after the death of Paavanar, who is a well known Tamil Scholar and was holding the post of Director of the Department, one R.Mathivanan had taken charge as a Chief Editor and Director of the Department. The said Mathivanan retired on superannuation and that he handed over the charge to one Muthupichai, who was a senior most Compiler. Therefore the practice in the department was that a senior most Compiler who is a graduate and who has knowledge of Tamil immediately takes charge the post of the Director. This practice was continued till 2007. This goes without saying that only the senior most Compiler can become eligible to hold the post of the Assistant Director. Even when an inspection was made in the department by the Personnel and Administrative Reforms committee on 25.4.2006, it was recorded that a second line of officer was necessarily required below the Director. Therefore, the then Director of Tamil Etymological Dictionary Project, i.e., the second respondent had sent a proposal to the first respondent State Government for creation of the post. In that note, it was stated that the project desperately requires an Assistant Director immediately below the post of the Director. Since all the posts which are entrusted to the Directorate are all temporary establishment and granted year to year extension, even the post of the Assistant Director also be created on temporary basis.
6.However, it was stated that in the absence of a regular Director, the first respondent Secretary to Government, Tamil Development Department was also holding the post of the Director of Tamil Etymological Dictionary Project. At the time when the first respondent holding the office of the second respondent the third respondent was only an Office Superintendent in the Tamil Etymological Dictionary Project. When a proposal for creation of an Assistant Director was sent, it was only a general proposal. The third respondent was nowhere in the zone of consideration. He is also not having educational qualification to hold the said post . He belongs to ministerial side and his post was not even mentioned in the feeder category.
7.It was stated that on the proposal sent by the second respondent, certain clarifications were sought for from the first respondent. At that time, the Office Superintendent, i.e., the third respondent without any authority and without consulting any of the persons in the office, sent a reply stating that no one other than the third respondent had applied for the post of the Assistant Director. Even the proposal for appointment of the Assistant Director was not circulated. Therefore, the note put up by the third respondent was self serving and made with malafide motive to get promotion without reference to the rule position. Since he was helping the then Secretary to Government, who was acting as honorary Director, the Government had issued G.O.Ms.No.499, Tamil Development Religious Endowment and Information Department appointing him in the post of the Assistant Director. It was stated that he was working in the Directorate for 18 years as a Superintendent. Therefore, considering his service experience and seniority, the post of Superintendent was upgraded as Assistant Director and he was appointed as the Assistant Director. The post was personal and after his retirement, the post will be downgraded as Superintendent. Before making appointment, it was considered that the third respondent was looking after administration, preparing budgets, maintaining accounts and working as a Nodal Officer. He is also acting as a Nodal Officer for the Court cases and also as Public Information Officer of the Department. Therefore, it was found that since no other person in the Directorate had applied for the post of the Assistant Director and had he continued in the parent department, he would have got promotion and in the light of the Government policy, since he was not having any promotional chance, his post was upgraded.
8.It was stated that while issuing the said order, the Government did not amend the earlier adhoc rules. In the guise of upgraded post of Superintendent to that of Assistant Director, they had given promotion to the third respondent without there being any rule in this behalf. In fact, the finding that he was holding important post is irrelevant, because the third respondent was only in the ministerial side and not directly concerned with the academic works of Tamil Etymological Dictionary Project. The other statement that no one was aspiring for the post of Assistant Director in the Directorate was mischievously made by the third respondent, who without notifying the vacancy and without any authority had forwarded such proposal using his proximity to the Government Secretary. It must also be noted that public employment cannot be secretly filled up and promotions cannot be granted as a matter of right or privilege. Any promotion must be in consistent with Articles 14 and 16 of the Constitution. If the third respondent suffers without any promotion, nothing prevented reverting him to his parent department to avail the so-called promotional avenue. On the other hand, when the adhoc rules are in force from the year 1989 specifically providing for promotional avenues to Compilers, who are involving in the academic works of the Project and when persons working in the project are more seniors than the third respondent and those candidates are also having the same grievance, i.e., not having promotion chance and stagnating in the very same post for more than 27 years and that if promotions as indicated by the Government are applied, it is only the petitioner who should have got promotion as he was senior to the third respondent. But, however for the reasons best known to them, the Government Order came to be issued.
9.The petitioner aggrieved by the said order sent a representation to the first respondent dated 2.2.2008 and questioned the promotion of the third respondent. He also sent a reminder dated 16.7.2008. He further sent a letter dated 8.4.2008. The second respondent by a communication, dated 3.3.2009 informed the petitioner that since printing work of Tamil Etymological Dictionary has to be done urgently, his representation has been kept in abeyance. Thereafter, by a communication, dated 16.3.2009, the Honarary Director had informed the third respondent and took exception to the petitioner forwarding his name as a only candidate who is aspiring to become the Assistant Director. He had also pointed out that he had suppressed the Government Order creating the post of Assistant Director in the year 1981 and also the fact that adhoc rules were framed for filling up the said post. He also does not have any educational qualification to hold the post of Assistant Director. The Honarary Director further sent a letter dated 6.4.2009 to the Additional Secretary of the first respondent and had requested that it was improper to have promoted the third respondent as Assistant Director, who does not have Tamil knowledge or qualification and his services were nowhere required for the Directorate and that no post of Assistant Director relating to administration was required for the department. The third respondent had misled the Government by sending a false information.
10.The Honarary Director also sent a further report, dated 6.4.2009 stating that the Government should cancel the upgradation of post of the Assistant Director and repatriate the third respondent to some other department including to his parent department. A further representation was sent by the second respondent, dated 12.4.2007 stating that the post of the Assistant Director should be created for filling up the post and if necessary the third respondent can be made as a special grade superintendent. In the meanwhile, an inspection was done about the project and a report was sent by the inspecting officer stating that the department requires an intermediary post between the Directorate and the office. The third respondent sent his own proposal. Acting upon the said recommendation, the Government had issued an order in G.O.Ms.No.344, Tamil Development, Culture and Endowment Department, dated 12.12.2006 agreeing the proposal to create the post of the Assistant Director. Thereafter, the first respondent had mischievously sent a letter to the second respondent stating that the third respondent can be appointed as a Nodal Officer. A further letter dated 6.8.2009 was sent stating that there was no scope for repatriating the third respondent to any other department. Thereafter, the petitioner was informed that the Government had issued G.O.Ms.No.401, Tamil Development Religious Endowment and Information Department, dated 5.10.2010 and also issued adhoc rules with retrospective effect from 20.12.2007, wherein and by which the third respondent was allowed to continue in the post of the Assistant Director and the post was made personal. He was moved from the post of the Superintendent to that of the Assistant Director. Nowhere in the said order, there was any reference to the earlier adhoc rules made by G.O.Ms.No.282, Tamil Development and Culture Department, dated 18.8.1989. On the contrary, the only purpose of issuance of the Government order was to some how grant legal backing to the appointment made in favour of the third respondent and that was why the retrospective effect of three years was made and qualifications prescribed were also tailor-made to suit the third respondent.
11.It was rather shocking to note that a person was made to hold the post of Assistant Director, provided he has a degree from any one of the University recognised by the UGC with Tamil as one of the subject. It only means if any person having degree in Tamil as a second language will also be made eligible, whereas the project of which such appointment is made is highly an advanced project creating etymological dictionary project. It is not clear as to how the third respondent could hold the post of the Assistant Director overlooking the claims of all the Compilers, who are having Post Graduate degree in Tamil, research degree in Tamil. The earlier adhoc rules clearly stipulated that educational qualification for the post of Compiler is that of M.A. or MOL degree in Tamil and proficiencies in three main Dravidian languages, i.e., Telugu, Kannada and Malayalam. Even as pe the bio-data sent by the third respondent, he only claimed that he is having M.A. History and nowhere there was any reference to his having any degree in Tamil. The attempt by the first respondent in making the third respondent to be promoted as Assistant Director by some means even without regard to the existing rules framed under Article 309 of the Constitution clearly shows the ulterior motive of the first respondent. If the works of the Assistant Director is to be intermediary between the Director and the department, then it can only be an academic oriented person. Because intermediary will have to cooperate between the Compilers who are having advance degree in Tamil with that of the Director. Aggrieved by this order, the petitioner has filed the present writ petition.
12.On notice from this court, the first respondent in the counter affidavit attempted to sidetrack the issue and make it appear that the impugned order is one of upgradation of the Superintendent post to that of the Assistant Director since the Administrative Reforms Committee had recommended creation of an intermediary post. This overlooks the fact that even before the so-called recommended post of the Assistant Director was created by adhoc rules and was temporarily sanctioned by the Government. Further, the third respondent sent the proposal, which was accorded by the Government, that no one had expressed willingness to hold the post of the Assistant Director was a self serving statement. He being the in-charge of the office had suppressed several information. On the contrary, it is now claimed that the office of the Assistant Director earlier created had been re-designated as Chief Editor-cum-Director. If the petitioner was interested, he should only claim for Chief Editor/Director post. The reasons to make promotion to the post of the Assistant Director are set out in paragraphs 16 and 17 of the counter affidavit, which is as follows:
"16.It is further submitted that the Government in their letter No.15195/TD 2.2/2008-9, Tamil Development, Religious Endowments and Information Department dated 6.8.2009 have informed the 2nd respondent that the appointment of Thiru S.Khaleelur Rahman, the 3rd respondent as Assistant Director was made in accordance with the report of the Personnel and Administrative Reforms (Inspection) Department when the matter was raised by the 2nd respondent. A copy of the Government letter was served to the petitioner along with the Memo of the 2nd respondent issued in Memo No.174/2008 dated 20.8.2009.
17.As regards the averment of the petitioner in para 8 of the Affidavit stating that filling up of the post of Assistant Director was not circulated among the Compilers, including the petitioner, it is submitted that there was no necessity to call for the applications, since the post of Assistant Director to be created as per the Inspection report of the Government in Personnel and Administrative Reforms (Inspection) Department is meant exclusively for administrative purpose and the Compilers including the petitoner are only dictionary staff not eligible for this. Hence there is nothing wrong on the part of the recommendation of the Director (Full Additional Charge) to appoint the 3rd respondent Thiru.S.Khaleelur Rahman who is the senior most Superintendent having put in totally 27 years of flawless service with 18 years of experience in administrative and accounts matters in the Directorate of Tamil Etymological Dictionary Project. Hence it is quite clear that the petitioner has filed this Writ Petition on totally wrong and mischieved presumptions."
By stating that the post was given to the third respondent by upgradation and after his retirement, that post will be downgraded, the respondents cannot hoodwink the world.
13.The third respondent in his counter affidavit had merely repeated the same arguments. The Honorary Director who sent a detailed report against the third respondent and who opposed the appointment of the third respondent as an Assistant Director for legitimate reason was also warned by the first respondent by a communication, dated 5.4.2011. It was stated in the communication in paragraph 4 that the Honarary Director should not indulge in criticizing the Government Order and Government policies, especially when the Hon'ble Chief Minister (the previous Chief Minister) had approved the upgradation post of Superintendent to that of the Assistant Director and also had issued appropriate order. It clearly shows upto what extent the first respondent will support the promotion of the third respondent, who is nothing to do with the Tamil Etymological Dictionary Project. But, they were bent upon the promotion of the third respondent to the higher post and make it personal and also had issued the Government Order after three years knowing fully well that it will get exposed. It is a clear abuse of process. This Court has no hesitation to hold impugned orders are arbitrary and violative of Articles 14 and 16 of the Constitution of India. The Government cannot in the name of policy confer a largess for any individual contrary to the statutory rules framed under Article 309 of the Constitution and also confer higher benefits without there being any eligible qualification. In essence, they cannot create largess in favour of one individual and tailor-made the rules including qualifications to make a person fit into the post created only for him.
14.The first respondent must consider that Tamil Etymological Dictionary Project is an academic project to be influenced by Tamil Scholars, who have proficiency in several languages. It is unthinkable the third respondent who did not have any degree or diploma in Tamil, as to how he could be promoted as Assistant Director and make him sit over the heads of Tamil Scholars who are having higher qualifications in Tamil and working as Compilers. If the Government wants to create promotional opportunity for an Office Superintendent, then they can very well revert him to his parent department and there he could have tried his luck. If the Government's intention was to confer promotional avenues, the same logic will also apply to Compilers, who were by adhoc rules eligible to be promoted as Assistant Director. These rules have not been revoked. Despite rules, Compilers have not been promoted to the higher posts.
15.In the light of the above, the writ petition will stand allowed. The impugned orders will stand set aside. The first and second respondents are directed to consider the case of eligible Compilers for promotion to the post of Assistant Director as per the original adhoc rules made in G.O.Ms.No.282, Tamil Development and Culture Department, dated 18.8.1989. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
07.06.2011 Index : Yes Internet : Yes vvk To
1.The Secretary to Government, Tamil Development Culture Department, Fort St. George, Chennai-9.
2.The Director (Honorary), Tamil Etymological Dictionary Project, C-48, TNHB Office Complex, Anna Nagar, Chennai-40.
K.CHANDRU, J.
vvk PRE DELIVERY ORDER IN W.P.NO.27198 of 2010 07.06.2011