Madras High Court
C.Subramani vs The Government Of Tamil Nadu on 6 December, 2013
Author: R.Mahadevan
Bench: N.Paul Vasanthakumar, R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.12.2013
CORAM
THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR. JUSTICE R.MAHADEVAN
W.A. NO.2215 OF 2011
& M.P.NOS.1 & 2 OF 2011
C.Subramani .. Appellant
Versus
1.The Government of Tamil Nadu,
Rep.by its Secretary,
Transport Department,
Fort St.George,
Chennai 600 009.
2.The Managing Director,
Tamil Nadu State Transport
Corporation (Cbe) Limited,
No.37, Mettupalayam Road,
Coimbatore 43
3.The General Manager,
Tamil Nadu State Transport
Corporation (Cbe) Limited,
No.45, Chennimalai Road,
Erode Region, Erode.
4.M.G.Sadaiappan,
Assistant Manager (Disciplinary Cases),
Tamil Nadu State Transport
Corporation (Cbe) Limited,
Erode Region,
No.45, Chennimalai Road,
Erode 1.
5.K.T.Govindarajan,
Deputy Manager (Personnel and Legal),
Tamil Nadu State Transport
Corporation (Cbe) Limited,
Erode Region,
No.45, Chennimalai Road,
Erode 1. .. Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent to set aside the order of the learned single Judge dated 28.09.2011 in W.P.No.27050 of 2009 and direct the respondents to appoint Senior Superintendent (Legal) and Assistant Manager (Legal) among the B.L. qualified persons.
For Appellant : Smt.Chitra Sampath
Senior Counsel
for M/s.S.Rajeni Ramadass
For Respondent-1 : Shri.R.Ravichandran
Additional Government Pleader
For Respondents-2 & 3 : Shri.P.H.Arvindpandian
Additional Advocate General
Asst.by Shri.S.S.Swaminathan
For Respondents-4 & 5 : Shri.A.S.Balaji
* * * * *
J U D G M E N T
R.MAHADEVAN, J This Appeal has been filed against the order dated 28.09.2011 passed by the learned Single Judge in W.P.No.27050 of 2009 dismissing the Writ Petition, wherein the order dated 15.10.2009 made in 3700 and 3701 /E3/PD-1/TNSTC(CBE)2009 passed by the Managing Director of Tamil Nadu State Transport Corporation (Coimbatore) Ltd, the second respondent herein was challenged.
2. The main grievance of the appellant is that the appointment to the post of Assistant Manager (Legal) and Senior Superintendent (Legal) must be filled only by appointing persons with B.L. Qualification, which is contemplated under Rule 97 of the Tamilnadu State Transport Corporation Common Service Rules. On that basis appellant had sought to quash the appointments of the respondents 4 and 5 which according to him was made contrary to the Rules and also to declare the appointments made to the above posts without Legal qualification, as null and void.
3. The second respondent had filed a counter affidavit stating that there is no post as Assistant Manager (Legal) and the posts are filled by promotion and in the absence of qualified candidates, according to the Rules direct recruitment would be made. The organizational chart was approved by the Board on 19.04.1986 and after approval, the posts of Assistant Manager (MACT) and Assistant Manager (Disciplinary Cases) only exist, which do not require any B.L. qualification. It was also contended that as per the existing seniority list, the petitioner is not in the feeder category and he had suffered many punishments and therefore he cannot be considered for promotion.
4. The learned Single Judge by an order dated 28.09.2011 dismissed the Writ Petition holding that the claim of the appellant cannot be entertained as it would pave way for overlooking more than 100 seniors, and it would also be contrary to the Recruitment Rules, which provides for feeder category. The learned Single Judge further went on to hold that just because he possesses academic qualification attached to the post, he cannot be given preference. As against the said order, the present Writ Appeal has been preferred.
5. The learned Senior Counsel appearing for the appellant contested that the post of Assistant Manager (Legal) should be handled only by persons with legal acumen and even according to the new organizational chart the post of Senior Superintendent (Legal) should mandatorily be filled only by persons with B.L. qualification. The learned Senior Counsel assailing the order further argued that the learned Single Judge ought to have considered the powers vested with the second respondent under the Rules to relax any condition, and even appoint a junior to the higher post. The learned Senior Counsel placed reliance upon instances where juniors have been promoted to higher posts overlooking the seniority. The learned Senior Counsel also placed reliance on various Government Orders, Government Letters and also the Common Service Rules and argued that since the time bound promotion system was abolished, persons with necessary qualifications must be promoted and the claim of the appellant ought to have been considered.
6. Per contra, the learned Additional Advocate General appearing for the second respondent argued that since the petitioner is not eligible for promotion despite possessing B.L. qualification, the Learned Single Judge has rightly dismissed the Writ Petition. He further argued that the post of Assistant Manager (Legal) does not exists after modification of the Organizational Chart and therefore the Appendix III of the Common Service Rules will have no significance, and that, since the appellant is not in the grade of Senior Superintendent, he cannot be transferred and posted as Senior Superintendent (Legal).
7. In reply, the learned Senior Counsel for the appellant pressed into service the necessity of having legal knowledge even to deal with cases relating to Accident Claims and Disciplinary Proceedings and submitted that if the petitioner is not entitled as per the Rules, sought for issuance of guidelines relating to appointments requiring legal background.
8. The factual particulars regarding the appointment of the appellant and his current designation is not disputed. Admittedly, the appellant is not entitled to be promoted to any of the posts requiring legal qualification, as he is not in the feeder category and only because of the same, he has sought for a direction to the respondent to exercise the discretion under Rule 59. As rightly held by the learned Single Judge, such a direction cannot be given by this Honble Court as mere possession of Legal Degree alone will not entitle him to be promoted to the posts of Assistant Manager or Senior Superintendent (Legal) and further such a direction would lead to misuse of power by the second respondent in future. The discretion can be exercised by the second respondent only when no other mode of recruitment with qualified personnel is possible.
9. Even though the Writ Petition was filed challenging the order of appointment of the respondents 4 and 5, we find that the main issue in the Writ Petition and the appeal herein involves public interest. Therefore, exercising the discretionary power under Article 226 of the Constitution of India, we go into the issue of whether the persons occupying certain posts dealing with legal claims or potential legal claims in the respondent Corporation must have Law Degree as a qualification or not ?
10. The Various Government Orders and Letters issued by the Government regarding the Transport Department, though were not placed before the learned Single Judge, have been placed before us. The second respondent has filed a counter affidavit stating that since the same were not produced by the appellant before the learned Single Judge, the same cannot be considered by this Hon'ble Court. This is not a Civil Appeal to raise such objections. Even if the appellant had not produced the applicable Government Orders and Letters before the learned Single Judge, the second respondent ought to have produced the same. Only if all the facts and records are brought to the notice of the Court, justice as it means in the real sense, can be delivered. Therefore, we reject the above objection and go into the merits of the case.
11. Upon perusal of the Tamilnadu State Transport Corporation Common Service Rules, which was introduced in 1985, we find that for the posts of Assistant Manager (Legal) and Senior Superintendent (Legal), as per Appendix-III, the qualification of B.L. Degree is mandatory.
12. In the Organizational Chart approved, it is found that at the corporate level, there is a post for Senior Deputy Manager, Administration/Legal. Whenever any vacancy arises in the category of Manager-Human Resource Development or Senior Deputy Manager/Manager, it is to be filled up by promoting Senior Deputy Manager, Administration or Legal. At the Lower level, there is a post called Deputy Manager, Personnel & Legal, who will be promoted as Senior Deputy Manager at the Corporate Level. The post of Deputy Manager, Personnel and Legal is to be filled up by persons employed as Assistant Manager/Senior Grade Assistant Manager (Disciplinary Cases/MACT/Personnel & Wages Welfare).
13. The Government of Tamilnadu has issued G.O.Ms.No.63 dated 05.02.2010 subsequent to the approval of the Organization Chart. In the Government Order, the Government has clearly stated that Regarding Promotion the system prevailing for the Government servants will be followed for Managerial Cadre Officers, subject to the availability of vacancy and qualifications prescribed in the Common Service Rules. The existing time bound promotion will not be continued. Therefore, it is clear that the qualifications prescribed in the Common Service Rules are still binding and any recruitment either by way of promotion or direct shall be subject to the conditions prescribed in the Rules.
14. Proceeding further, from the organizational chart, we find that the grade of Assistant Manager (Legal) has been done away with and new posts for handling Disciplinary Cases, MACT, Personnel & Wages Welfare in the same cadre have been created. The above according to us can only be termed as bifurcation of work and would not amount to dilution of the qualification.
15. What we find in common among all the three Departments at the Assistant Manager Level is that persons employed as Assistant Manager will have to deal with legal issues. In case of Disciplinary cases, Personnel & Wages Welfare Departments, one may have to handle the cases relating to different branches of labour and welfare legislations. In the case of accident claims, one deals with the insurance policies, the Central and State Motor Vehicle Laws, amongst other laws relating to procedure and evidence. Further, the promotion to the next category is Deputy Manger (Personnel & Legal). In all the above categories, the person concerned may not only have to deal with inter departmental legal issues, but may also be entrusted with the work of handling Court cases. The bifurcation of the Department of Assistant Manager (Legal) has not taken away the necessity of legal background as in all the three Departments, the Assistant Manager is entrusted only with the task of handling legal issues or potential legal issues. In that process, he may have to take important decisions as to whether the claim of any person relating to violation of service rules, domestic enquiry, promotion, revision of seniority, punishment, eligibility for increment, insurance claims, etc., requires to be contested, appealed or not.
16. A person without legal qualification would definitely have to depend on another person with legal background. Similarly, when a person without legal qualification is permitted to handle legal issues, if a wrong decision is taken because of ignorance of law, it will end up in a legal case and cause revenue loss to the Government.
17. At times, the Courts have also come across cases, where the claims are being contested only to settle personnel scores, without any legal basis particularly on settled issues. Time and again, this Court and the Honble Apex Court have enunciated the Government Departments to refrain from contesting or filing appeals in all the cases, as it would not only save the time of the Court, but would also save the Government revenue and avoid the harassment that a litigant is put to. Ignorance of fact is excusable, but not of law. The same is the litigation policy of the State Government and the Central Government. The issue raised in a case is settled issue or not and any arguable point is available, if an appeal is filed, can be decided prima facie only by a legally trained person, who is possessing B.L. Degree. Therefore, whenever a vacancy of Assistant Manager in the Department of Disciplinary Proceedings, MACT, Personnel and Wages Welfare Department arises, person who possess a Law Degree must be appointed, if he is otherwise qualified. As the Common Service Rules itself provides that when the post cannot be filled by promotion, it shall be filled up only by direct recruitment. It goes without saying that a direct recruitee shall also possess a B.L. Degree. With regard to the filling up of the post of Senior Superintendent( Legal), the same analogy shall be applied and only persons with legal background shall be appointed.
18. Considering all these factors, the first respondent is hereby directed to ensure that only persons with legal qualifications are promoted/appointed to posts that handle legal or potential legal claims, by issuing appropriate orders to the effect. We hereby make it clear, that the promotions and appointments already made shall not be disturbed.
19. With the above directions, the Writ Appeal is disposed of. No Costs. Consequently, connected miscellaneous petitions are closed.
(N.P.V.,J.) (R.M.D.,J.)
06.12.2013
Index : Yes
Internet : Yes
sri
N.PAUL VASANTHAKUMAR, J.
AND
R.MAHADEVAN, J.
sri
To
1.The Secretary,
Government of Tamil Nadu,
Transport Department,
Fort St.George, Chennai 600 009.
2.The Managing Director,
Tamil Nadu State Transport
Corporation (Cbe) Limited,
No.37, Mettupalayam Road,
Coimbatore 43.
3.The General Manager,
Tamil Nadu State Transport
Corporation (Cbe) Limited,
No.45, Chennimalai Road,
Erode Region, Erode.
PRE-DELIVERY JUDGMENT MADE
IN W.A. NO.2215 OF 2011
06.12.2013