Madras High Court
T.Shanmugam vs Union Of India on 6 November, 2012
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.11.2012 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.8469 of 2012 and M.P.No.3 of 2012 T.Shanmugam .. Petitioner Vs. 1.Union of India, rep. by Secretary to Government, Ministry of Shipping, No.1, Parliament Street, New Delhi-110 001. 2.Union of India, rep. by Secretary to Government, Ministry of Finance, New Delhi- 110 001. 3.The Chairman, Chennai Port Trust, Rajaji Salai, Chennai-600 001. 4.The Chief Medical Officer, Chennai Port Trust Hospital, Chennai-600 001. .. Respondents PRAYER: This Writ Petition is filed under Article 226 of the Constitution of India praying for issue a writ of certiorarified mandamus, calling for the connected records pertaining to the impugned order bearing No.A-11013 /09/2007-PE-II Dt:30.08.2011 issued by the first respondent and to quash the same and consequently direct the respondents 1 to 3, to implement the resolution of the Board of Trustees dated 30.05.2007 and the subsequent resolution dated 11.12.2009 by creating/upgrading Physiotherapist (UG), Class-III post, as Senior Physiotherapist, Class-I, in the scale of pay of Rs.9100-15100(pre-revised) w.e.f. the date of first proposal which was approved by the Board of Trustees on 30.05.2007 and to grant promotion to the petitioner to the aforesaid post w.e.f. 30.05.2007 with all consequential benefits both monetary and otherwise. For Petitioner : Mr.N.G.R.Prasad for M/s.Row and Reddy For Respondents : Mrs.Bhavani Subbarayan for R1 & R2 Mr.Krishna Ravindran for R3 and R4 O R D E R
The petitioner joined Chennai Port Trust, the 3rd respondent, as Physiotherapist on 02.08.1984. It was a Class-III post. Chennai Port Trust passed resolutions twice, one on 30.05.2007 and the other on 11.12.2009, approving upgradation of one post of Physiotherapist, Class-III post, as Senior Physiotherapist, Class-II post. The 3rd respondent sought approval for its decision from the first respondent. The first respondent concurred with the decision taken by the 3rd respondent. However, the first respondent passed the order dated 30.08.2011, refusing approval to the proposal for upgradation, in view of the decision of the second respondent. The order dated 30.08.2011 of the first respondent is questioned in this writ petition. While, seeking to quash the order dated 30.08.2011, the petitioner has sought for a direction to the respondents 1 to 3 to upgrade Physiotherapist, Class-III post, as Senior Physiotherapist, Class-I post, in the scale of pay of Rs.9100-15100 with effect from the date of first proposal which was approved by the Board of Trustees of 3rd respondent on 30.05.2007 and with all the consequential benefits.
2. Except the second respondent, the other respondents filed their counter affidavit setting out their stand.
3. Heard.
4. The issue that arises for consideration is as to whether the first respondent is correct in refusing to approve the decision of the 3rd respondent to upgrade one post of Physiotherapist, in the scale of pay of Rs.5500-11380(Class-III) post to Senior Physiotherapist in the scale of pay of Rs.8600-14600(Class-II) post.
5. The petitioner joined service on 02.08.1984 as a Physiotherapist. At the time of joining the service, he was a Diploma holder in Physiotherapy. It was a Class-III post. There are three posts of Physiotherapist in the Chennai Port Trust Hospital at Chennai. The Post of Physiotherapist is an isolated category and there was no avenue of further promotion. In these circumstances, the Chairman of the Chennai Port Trust put up a proposal before the Board for upgradation of one of the posts of Physiotherapist in Class-III as Senior Physiotherapist in Class-II. The Class-III post of Physiotherapist carries a scale of pay of Rs.5500-11380. The proposed upgraded Senior Physiotherapist post carries a scale of pay of Rs.8600-14600. The Board passed the following resolution on 30.05.2007.
"Resolved after discussion to approve the Chairman's proposal dated 19.05.2007 to upgrade one post of physiotherapist (UG) in the scale of pay of Rs.5500-11380 (Class-III) as Senior Physiotherapist in the scale of pay of Rs.8600-14600 (Class-II) by abolishing one post of Physiotherapist vacated by the incumbent to the post of Senior Physiotherapist and by abolishing one post of Mazdoor(Shore Labour) in Traffic Department, to offset the matching savings. Resolved further to seek Government's sanction for the said upgradation."
6. After passing the resolution, the same was forwarded to the first respondent for approval. The first respondent returned back the same vide letter dated 03.12.2009, stating that the proposal requires to be modified as per the provisions contained in the Recruitment, Seniority and Promotions(RSP) Regulations notified on 07.01.2009. It is further stated that the proposal to be submitted to the Ministry in this regard should have fresh approval of the Board. In these circumstances, the matter was again considered by the Board and the Board passed the following resolution on 11.12.2009:
Resolved to approve the Chairman's proposal dated 10.12.2009 on the following:-
1. for upgrading one of the three posts of Physiotherapist in the scale of pay of Rs.5000-10850 as Senior Physiotherapist in the scale of pay of Rs.8600-14600.
2. Manner of Appointment for the post of Senior Physiotherapist (Rs.8600-14600) as per the powers delegated to the Board under the Chennai Port Trust Employees' (Recruitment Seniority and Promotion) Regulations, 2008.
3. Abolition of the resultant vacancy of Physiotherapist and one live post of Mazdoor(Shore Labour) from the Traffic Department as matching savings.
Resolved further, to seek sanction of the Government in this regard. That is, again, the Board resolved to upgrade one of the three posts of Physiotherapist in the scale of pay of Rs.5000-10850, as Senior Physiotherapist in the scale of pay of Rs.8600-14600.
7. The 3rd respondent sought approval of the resolution dated 11.12.2009, from the first respondent. In the meantime, the petitioner filed W.P.No.9440 of 2011 before this Court seeking for a direction to the first respondent to sanction the upgradation of the post of Physiotherapist(UG) in Class-III post, as Senior Physiotherapist in Class-I post and to consequently promote the petitioner by upgradating him as Senior Physiotherapist in Class-I Post with effect from 30.05.2007, with all consequential service and monetary benefits. The said W.P.No.9440 of 2011 was disposed of on 24.01.2012, giving liberty to the petitioner to question the order dated 30.08.2011 of the first respondent refusing to upgrade the post of Physiotherapist as Senior Physiotherapist. The order of the first respondent dated 30.08.2011 is as follows:-
"I am directed to refer to your letter No.P1/2137/2007/H dated 04.01.2011 on the subject cited above and to say that the matter has been examined in consultation with Integrated Finance Wing of this Ministry and Department of Expenditure, Ministry of Finance. In this regard it is informed that the proposal for upgradation of one post of physiotherapist in the pay scale of Rs.5500-11380(Class-III)(Pre-revised) to Sr. Physiotherapist in the pay scale of Rs.8600-14600(Class-II) (Pre-revised) in the Medical Department of Chennai Port Trust has not been agreed to by Ministry of Finance Department of Expenditure."
The above narration of facts makes it clear that the 3rd respondent decided to upgrade the post of Physiotherapist in Class-III post to Senior Physiotherapist in Class-II post.
8. From the reading of the counter affidavit filed by the first respondent, it is clear that he has also concurred with the decision taken by the third respondent. However, since the second respondent refused to approve the action, the proposal of the third respondent was rejected. The impugned order does not disclose any reason for rejection of the proposal by the second respondent. But, it is simply stated that the second respondent has not agreed the proposal. However, in the counter affidavit filed by the first respondent, the following are stated as the reasons given by the second respondent:
"As per prevailing norms, all proposals having financial implications are referred to the Ministry of Finance for approval. Since the request made by the petitioner involved Financial Implications, the matter was referred to the Ministry of Finance for consideration. The Ministry of Finance has turned down the proposal on the ground that the proposal lacks functional justification. Moreover, the posts are not upgraded to give promotional prospects to the incumbents. Also, the acceptance of the instant proposal may attract similar demands from other posts as well."
It is stated in the counter affidavit of the first respondent that the second respondent (Ministry of Finance) rejected the proposal on the ground that the proposal lacks functional justification. But, the second respondent has not chosen to file any counter affidavit explaining the reasons for rejecting the proposal sent by the third respondent.
9. At the time of passing the resolution, the Board, considered in detail all the aspects of the matter. One of the aspects considered by the Board is Functional Justification. The following is the consideration of the functional justification by the Board:
"5. Functional Justification (For each of the category separately).
In ChPt, the other Paramedical staffs(In the Nursing and Pharmacist categories) of Medical Department have promotional avenues upto Class-II post as Matron and Asst. Controller of Stores respectively. Whereas, the Physiotherapist do not have such promotional avenues. The post of Physiotherapist is an isolated category and there is no avenue for further promotion. At present, there are 3 physiotherapists working in ChPT Hospital of which 2 Physiotherapists having more than 20 years of service. Keeping in mind, the size of the Hospital and population catered to and the nature of disease profile, there is adequate justification to upgrade one post of Physiotherapist."
Therefore, the view of the second respondent on functional justification has no basis.
10. At this juncture, it is also relevant to note the fact that in Mumbai Port Trust Hospital, the post of Senior Radiologist in Class-I grade is available. Para 14 of the counter affidavit of the third respondent is extracted in this regard.
I state that averment stated in Ground(e) is misleading. There are 10 Major Port Trusts in India of which Mumbai Port Trust alone has the post of Senior Physiotherapist in Class-I and the same is for the reasons best known to them.
11. Further more, the post of Senior Physiotherapist in Class-I at Mumbai Port Trust Hospital carries the scale of pay of Rs.20600-46500 as per the letter of the Mumbai Port Trust dated 27.10.2010 to the petitioner herein. The said letter was obtained by the petitioner under the Right to Information Act,2005.
12. Among the three Physiotherapists in Chennai Port Trust Hospital, the petitioner is the senior most person. The third respondent has decided to upgrade one of the three posts of Physiotherapist as Senior Physiotherapist in Class-II post. The third respondent has also considered the financial implications. While, upgrading one of the three posts of Physiotherapist as Senior Physiotherapist, the Board decided to abolish the resultant vacant post of Physiotherapist. Besides, the Board has decided to abolish one post of Mazdoor (Shore Labour) from the Traffic Department. The abolition was for the purpose of maximum savings due to upgradation. Therefore, the upgradation would not have any financial implications. The second respondent is thus not justified in refusing to approve the resolution of the third respondent. The third respondent has taken into account the relevant facts such as absence of promotional avenue for the post of Physiotherapist and the same falling under an isolated category, etc. There is no reason to apprehend that similar demand could come from other posts. If other posts are similarly situated like that of Physiotherapist, wherein also there is no avenue of promotion and also belongs to an isolated category, it is for the third respondent to take a decision based on the facts and circumstances of the case. The second respondent cannot refuse to approve the decision of the third respondent on the ground that similar demands may emanate from other posts. While, the third respondent has decided to upgrade one of the three posts of Physiotherapist in Class-III post to Senior Physiotherapist in Class-II post, the petitioner seeks direction for upgradation as Senior Physiotherapist in Class-I post. In my view, such a request can not be acceded to. He could at the most seek for implementation of the resolution of the third respondent. Even the resolution of the third respondent is not implemented due to the withholding of approval by the second respondent.
13. At this juncture, the learned counsel for the petitioner has relied on the following judgment in COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARH AND ANOTHER VS. K.G.S. BHATT AND ANOTHER reported in AIR 1989 SC 1972. In that case, the respondent therein was granted a benefit of promotion by the Administrative Tribunal and the same was questioned before the Apex Court. The Apex Court held that since the respondent therein did not have any avenue of promotion, the Apex Court was not inclined to interfere with the matter. The relevant passage in para 9 of the said judgment is extracted hereunder:-
9.......Respondent I is not a lay-man. He is a highly qualified engineer. Although joined service with a diploma in Engineering, he later passed Bachelor of Engineering(B.E) and also acquired M.Tech. degree and one more diploma (D.P.M.). He was, however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personal development as well.........
14. For all the aforesaid reasons, the impugned order is liable to be quashed. Accordingly, the same is quashed. The 3rd respondent is directed to upgrade the petitioner as Senior Physiotherapist from 30.05.2007 in Class-II post with the scale of pay of Rs.8600-14600 with subsequent revisions and with all monetary benefits. Consequently, connected M.P.No.3 of 2012 is closed. No costs.
rrg To
1.Secretary to Government, Union of India, Ministry of Shipping, No.1, Parliament Street, New Delhi-110 001.
2.Secretary to Government, Union of India, Ministry of Finance, New Delhi- 110 001.
3.The Chairman, Chennai Port Trust, Rajaji Salai, Chennai-600 001.
4.The Chief Medical Officer, Chennai Port Trust Hospital, Chennai 600 001