Madras High Court
The Engineer-In-Chief vs C.L.Pasupathy on 15 February, 2013
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-2-2013 CORAM THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MRS. JUSTICE M.M.SUNDRESH W.A.No.956 of 2011 M.P.No.1 of 2011 1. The Engineer-in-Chief, W.R.O., and The Chief Engineer (General), Public Works Department, Chepauk, Chennai 600 005. 2. The Secretary to Government, Public Works Department, Government of Tamil Nadu, Fort St.George, Chennai 600 009. ... Appellants Versus C.L.Pasupathy ... Respondent Prayer: This writ appeal is preferred under Clause 15 of the Letters Patent against the order of the learned Single Judge of this Court made in W.P.No.3002 of 2007 dated 29.8.2008. For Appellants : Mr.K.V.Dhanapalan, Special Government Pleader For Respondent : Mr.G.Elancheziyan J U D G M E N T
N.PAUL VASANTHAKUMAR, J.
This writ appeal is directed against the order of the learned Single Judge made in W.P.No.3002 of 2007 dated 29.8.2008 giving directions to the appellants herein to promote the respondent herein as Assistant from 1981 and consequently promote him to the post of Superintendent with effect from 16.6.2000 and extend all monetary and service benefits retrospectively.
2. The case of the writ petitioner/respondent herein before the learned single Judge was as follows:
(a) The writ petitioner/respondent herein was appointed as Junior Assistant in the Public Works Department on 12.11.1973 after being selected by the TNPSC and was promoted as Assistant on 10.8.1983. He continued in the said post and while serving at the office of the Executive Engineer, Public Works Department, North Presidency Division, Chepauk, Chennai-5 he filed the original application before the Tamil Nadu State Administrative Tribunal and during pendency of the same, he retired from service in August, 2008.
(b) The petitioner has passed all the tests viz., District Office Manual Test (DOM) in November, 1975 and also the Account Test for PWD Officers and Subordinates in November, 1980, which are the prescribed pre-requisite qualifications as per Rule 30B of the Tamil Nadu Ministerial Services. According to the petitioner, he was eligible to be included in the panel of Assistants, however his name was not included, though there is a provision under Rule 4(a) of the Tamil Nadu State and Subordinate Service Rules, which provides periodical preparation of panel for promotion every year and he was promoted as Assistant only on 1.6.1983 and he joined duty as Assistant on 10.8.1983.
(c) Seniority list was made only in the year 1988 and one of his collegue P.A.S.Ameerudeen submitted representation on 20.8.1988 and prayed for revision of seniority suitably by placing him above his immediate juniors. Petitioner also submitted representation on 15.3.1989 and requested for fixing seniority at the appropriate place above his juniors.
(d) No action being taken against the said representation submitted by the said P.A.S.Ameerudeen, he filed original application before the Tamil Nadu State Administrative Tribunal in O.A.No.7331 of 2001 and the said original application was allowed by the Tribunal on 7.5.2002.
(e) The Tribunal held that the said P.A.S.Ameerudeen's name should be added in the panel for the year 1988-1989 for promotion to the post of Superintendent published by the Principal Chief Engineer in his proceedings dated 21.7.1998 by including his name at Sl.No.128-A above the name of one S.Nizamudeen and below the name of one S.A.Sebastian with a further direction to give promotion to him from the date on which S.Nizamudeen and other juniors in the said list were given promotion. Tribunal also held that he was also entitled to seniority from the date of promotion given to his juniors with monetary benefits.
(f) After the said order was passed, petitioner again submitted a representation on 15.7.2002 and claimed promotion from the date of promotion of his junior viz., V.R.Sujana, who was promoted as Superintendent from 16.6.2000. A further representation was submitted on 22.1.2003 and claimed promotion by citing the said order dated 7.5.2002 passed in favour of the said P.A.S.Ameerudeen.
(g) The department sent a reply on 17.3.2003 stating that the petitioner's claim will be considered after getting clarification from the Government. However, the request was rejected by order dated 26.2.2004 and the same was challenged before the Tamil Nadu State Administrative Tribunal by filing O.A.No.1083 of 2004, which was transferred to this Court and numbered as W.P.No.3002 of 2007. The writ petition was heard by the learned single Judge, who allowed the same by the impugned order dated 29.8.2008. The said order of the learned single Judge is challenged in this writ appeal by the Department.
(h) It is the contention of the writ petitioner that not preparing panel after 1976 is breach of Rule 4(a) of the Tamil Nadu State and Subordinate Service Rules and the persons, whose names are found in the panel prepared for the year 1976, were given promotion till 19.3.1981. The petitioner was fully qualified for inclusion of his name in the panel for the year 1981 and thus, the writ petitioner was denied promotion as Assistant upto 1.6.1983 and he lost his chance of getting further promotion as Superintendent, though his juniors, who entered into service later were given promotion as Superintendent on 16.6.2000.
3. The said contention was resisted by the appellants/respondents in the writ petition stating that due to belated passing of prescribed tests, writ petitioner could not be promoted as Assistant prior to 24.7.1979 and his name could be considered for promotion in the panel prepared for the year 1982-83 and he was given promotion in the year 1983 and he joined duty as Assistant on 10.8.1983. The order passed by the Tribunal in favour of the said P.A.S.Ameerudeen will not support petitioner's case as it was only an individual case, which was implemented. Insofar as comparison of the petitioner with V.R.Sujana, she passed DOM test in May, 1974 and Account test in November 1974, who was promoted during the year 1981 and at best petitioner could be considered on par with his juniors for promotion as Assistant only from 16.7.1981. Persons promoted as Assistants during the said period were promoted as Superintendents in the year 2000 and therefore petitioner's contention to treat him alike and promote him as Superintendent as in the case of P.A.S.Ameerudeen is not sustainable.
4. The learned single Judge, taking note of the order passed in O.A.No.7331 of 2001 dated 17.5.2002, allowed the writ petition and directed the respondents to promote the petitioner as Assistant from 1981 and consequently promote him to the post of Superintendent with effect from 16.6.2000 and extend all monetary and service benefits retrospectively.
5. The point for consideration in this writ appeal is as to whether the appellants were duty bound to prepare panel for promotion every year, considering the crucial date as 15th March, from among the persons fulfilling the required qualifications, and what relief the respondent herein is entitled to.
6. The case involves implementation of Rule 4(a) of the Tamil Nadu State and Subordinate Service Rules. The said rule is extracted hereunder:
"4. Approved Candidates (a) All first appointments to a service or class of category or grade thereof State or Subordinate, whether by direct recruitment or by recruitment by transfer or by promotion, shall be made by the appointing authority from a list of approved candidates. All appointments made by transfer, from one class to another class and from one category to another category, in the same service carrying identical scale of pay shall be made by the appointing authority from a list of approved candidates. Such list shall be prepared in the prescribed manner by the appointing authority or any other authority empowered in the Special rules in that behalf and shall be displayed in the Notice Board in the Office of the appointing authority. The list shall also be communicated to all persons concerned by Registered post whose names are found in the list as well as to persons senior to the Junior most person included in the list whose names have not been included in the list. Where the candidates in such list are arranged in their order of preference appointments to the service shall be made in such order.
Provided that the list of approved candidates for appointment by promotion and by recruitment by transfer to all the categories of posts in the Tamil Nadu State and Subordinate services shall be prepared annually against the estimated number of vacancies expected to arise during the course of a year. The estimate of vacancies shall be prepared taking into account the total number of permanent post in a category, the number of temporary posts in existence; the anticipated sanction of new posts in the next year; the recruitment post of leave reserves; the anticipated vacancies due to retirement and promotion, etc., in the course of the year and the number of candidates already in position in that category. The list of approved candidates so prepared, shall be in force for a period of one year only and shall lapse at the end of the year. The candidates whose names were included in the previous list, but were not appointed, shall be considered, if eligible for inclusion in the list of next year along with their seniors if any whose names were not included in the previous list either because they were found not suitable or because they were not technically qualified when the previous list was drawn up. ..................." (Emphasis Supplied)
7. Rule 4(a) of the Tamil Nadu State and Subordinate Service Rules mandates preparation of panel for a particular year and the said panel so prepared will be valid for one year and lapse at the end of the year. Writ petitioner has passed all the departmental tests as early as in November, 1980 and he was fully eligible to be included in the panel to be drawn for the year 1981 fixing the crucial date as 15.3.1981. Admittedly no panel was prepared after the year 1976 and further panel was prepared only for the year 1983 and the writ petitioner was given promotion on 10.6.1983 based on the said panel prepared and he joined on 10.8.1983. Thus, it is evident that the appellants have not followed the statutory Rule 4(a), which governs the preparation of list of approved candidates for appointment by promotion annually against the estimated number of vacancies expected to arise during the course of an year.
8. Petitioner's junior V.R.Sujana, who was placed in Sl.No.275 in the TNPSC Select List-1972, was promoted as Assistant on 16.1.1981 and subsequently as Superintendent on 16.6.2000. Petitioner's seniority in TNPSC Select List-1972 is 274. One of the petitioner's senior viz., P.A.S.Ameerudeen, who was denied appropriate seniority and consequent promotion, submitted representation earlier and petitioner also submitted representation seeking revision of seniority and consequential promotion. Against the rejection order passed insofar as P.A.S.Ameerudeen is concerned, he filed O.A.No.7331 of 2001 and the Tribunal allowed the same by order dated 7.5.2002 and the said order was also implemented. Petitioner having not been treated alike, even though the issue raised by him was similar, approached the Tribunal with a request for revision of seniority and consequential promotion from the date of giving promotion to his juniors. It is to be noted here that even though the said V.R.Sujana passed the departmental tests earlier than the petitioner, she was given promotion only on 16.1.1981. The panel prepared for the year 1976 will be valid only for one year and thereafter it must lapse as per the above quoted statutory rule. Thus, the appellants were duty bound to prepare a fresh panel for 1981 and should have included petitioner's name in the panel above the said V.R.Sujana and should have promoted him as Assistant along with the said V.R.Sujana.
9. As already stated, action of the appellants in not preparing the panel every year, and in particular for the year 1981, has caused this anomaly and he was denied promotion as Assistant at the appropriate time and was not promoted as Superintendent. Petitioner, even though was eligible to be promoted in the year 1981 as Assistant, was given promotion only with effect from 10.8.1983.
10. The mandatory duty on the part of the Government in considering the promotion of Government servants at the relevant time was held to be a fundamental right guaranteed under Article 16 of the Constitution of India. The Supreme Court in the decision reported in (2010) 4 SCC 290 (Union of India v. Hemraj Singh Chauhan) in paragraphs 35 and 36 held as follows:
"35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."
(Emphasis Supplied)
11. The duty cast upon the Government to make promotion for year-wise vacancies was also emphasised by the Hon'ble Supreme Court in the decision reported in 2011 AIR SCW 4449 : (2011) 7 SCC 789 (Jagdish Prasad v. State of Rajasthan). Not holding examinations for more than ten years for giving promotion to 50% quota of Motor Vehicles Sub-Inspectors on the basis of seniority-cum-merit was condemned by the Hon'ble Supreme Court. In paragraphs 28 to 30 (in SCC) the Hon'ble Supreme Court held thus, "28. Rule 24(6) of the Rules, 1979 mandates that selection for promotion to all other higher posts or higher categories of posts in the service shall be made on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50:50. In other words, 50% vacancies are to be filled up on the basis of merit while the remaining 50% vacancies in the promotion quota are to be filled up by seniority-cum-merit. The persons have to be within the appropriate position in the seniority list before they can be considered for promotion under the latter category. Eligibility requirements have been specified under the Rules, 1979 which candidates must satisfy to be considered under the seniority-cum-merit category. The other persons who are to be promoted to the post of DTO are on the basis of merit alone. Even if Schedule II of the Rules, 1979 does not exist, it is obligatory on the part of the respondent to evolve a methodology to make promotions purely on merit. Once the framers of the Rules have intended to provide merit as the sole criterion of promotion, the appointing authority is not vested with the jurisdiction to waive the same or completely wipe out the same, on a flimsy excuse such as the one proposed in the present case.
29. In light of this, we now come to the conduct of the Government which we cannot but help to comment upon. Right from 1983-1984 till 1993-1994 no examination has been conducted by the appropriate authority despite the fact that they also issued notifications for holding exams on a few of these occasions. If there was a representation from the Rajasthan Transport Inspectors Union, it cannot be considered as a sufficient cause or reason for not holding the examinations for more than ten years and causing serious prejudice to the candidates who might have been sufficiently meritorious to qualify in the exams and be considered for promotion to 50% of the posts under the promotion quota. It is a matter of regret that a Government can take such a stand before a court of law and expects the Court to accept such a submission. It is ex facie untenable. Once the rules stand clear, the authority concerned is expected to act in accordance with law and not to defeat the law. One who defeats the law by his unjustifiable and unsustainable acts is liable for the consequences of such default. We fail to understand why the Government and its entire hierarchy had shut its eyes to this gross violation of statutory rules over such a long period.
30. It is a matter of concern that any rule of good governance that an obligation is imposed upon the State to select the best candidates to higher posts and not to frustrate rules which prescribe merit as this is essential to the process of selection. It is painful to note that the Government has put forward such a flimsy excuse for its inaction and unfortunately the same has weighed with the High Court to some extent, though it has dismissed the appeal of the State. We have no hesitation in observing that the Government has no justification whatsoever in not holding the qualifying test for a long period of ten years and this is a matter which the hierarchy of the State Government needs to examine and fix responsibility." (Emphasis Supplied)
12. The above cited Judgments of the Hon'ble Supreme Court strengthens the case of the writ petitioner/respondent herein. However, one aspect that can be put against the respondent herein is that he has not approached the Court at the right time to redress his grievance. Though seniority list was issued in the year 1988, by virtue of the said delay, he has lost his chance of getting promotion as Superintendent before his retirement. The Department also delayed preparation of panel between 1976 and 1982. Thus, there is no justification in contending that the writ petitioner has chosen to agitate his right belatedly. The said delay on the part of the writ petitioner can be stated as a reason for denying salary in the promotion post as the same will advance the cause of justice. If promotion is granted notionally, the writ petitioner will get revision of pension. Hence continuous cause of action is available to the writ petitioner to agitate his rights.
13. The writ petitioner/respondent had retired from service on 31.8.2008. He had not served in the promoted post and not discharged his functions as Superintendent. Hence, the only modification that could be made in the order of the learned single Judge would be, the petitioner's promotion in the cadre of Assistant and Superintendent can be given notionally from the date of promotion given to his junior viz., V.R.Sujana, for the purpose of re-fixing pension and retirement benefits. Consequently, the impugned order of the learned single Judge dated 29.8.2008 is confirmed insofar as the grant of seniority and consequential promotion are concerned. However, the order of the learned single Judge stands modified in respect of extending monetary benefits retrospectively. The appellant department is directed to notionally promote the writ petitioner and order revision of pension from 1.9.2008. The arrears of pension/difference of pension payable to the writ petitioner/respondent herein is directed to be calculated and paid within a period of three months from the date of receipt of copy of this judgment.
The Writ appeal is disposed of with the above modification. No costs. Connected miscellaneous petition is closed.
Index : Yes/No. [N.P.V.,J] [M.M.S., J.]
Internet : Yes/No. 15-2-2013
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N. PAUL VASANTHAKUMAR, J.
and
M.M.SUNDRESH, J.
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Pre-Delivery Judgment in
W.A.No.956 of 2011
15-2-2013