Madras High Court
Dr.R.Ramasamy vs The State Of Tamilnadu on 8 December, 2010
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :08.12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Ns.31064 of 2005 and WPMP.No.34045 of 2005 .. Dr.R.Ramasamy .. Petitioner vs. The State of TamilNadu rep. By its Secretary to Government Tamil Development Culture & Endowment Department Fort St.George, Chennai 600 009. .. Respondent Writ Petition filed under Article 226 of the Constitution of India praying for issuance of writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.G.Masilamani,Sr.Counsel for Mr.G.Ramanujam For respondents :Mrs.Malarvizhi Udayakumar Spl.Govt. Pleader .. ORDER
The writ petition is directed against the order of the Government in G.O.(Per.)No.219, Tamil Culture and Development Endowment (TD2.1) Department, dated 28.10.2003, by which the claim of the petitioner to be promoted as the Director of Tamil Development-cum-Public was rejected by the Government.
2. The petitioner was appointed as a Project Officer in the erstwhile Tamil Culture Department on 21.05.1979, which was merged with the Tamil Development Department in the year 1980 and after the constitution of the said Tamil Development Department, the petitioner was transferred along with the post as Project Officer. The petitioner is stated to have obtained Ph.D in the year 1983 in History and Archaeology based on his research in Tamil inscription and literature.
a) It is stated that the Government in G.O.Ms.No.296 dated 6.9.1989 ordered that the Project Officer in the Tamil Culture Department is equivalent to the Assistant Director in Tamil Development Department with identical scale of pay. The petitioner was senior in the cadre of Assistant Director eligible for the next avenue of promotion to the post of Deputy Director. While the petitioner was appointed as Project Officer in the cadre of Assistant Director on 21.5.1979, his juniors M/s. Selvaraj and Duraisamy were appointed as Assistant Directors on 10.12.1979 and 25.8.1981 respectively.
b) When the said Mr.Selvaraj was promoted as Deputy Director ignoring the claim of the petitioner, the petitioner approached the Tamil Nadu State Administrative Tribunal by filing O.A.632 of 1993. The O.A. filed by him came to be dismissed by the Tribunal against which the Special Leave Petition was filed before the Supreme Court, wherein it was held that the petitioner was senior to other two persons in the cadre of Assistant Director in the judgment dated 11.8.1995. The petitioner was subsequently promoted as Deputy Director of Tamil Development Department from the date of promotion of his junior Mr.Selvaraj viz., 9.1.1992, as per G.O.Ms.No.36, dated 25.2.1998.
c) The said Selvaraj was subsequently promoted as Director and retired from service on 30.4.1995 during the pendency of the above O.A. filed by the petitioner. However, the claim of the petitioner for further promotion as Director was rejected on the ground that the petitioner did not possess necessary qualifications for the post of Director. It was, in those circumstances, the petitioner again approached the Tribunal by filing O.A.No.3922 of 1998 challenging the appointment of Mr.Selvaraj as Director and for a direction that the petitioner should be deemed to have been promoted as Director from the date of promotion of his junior Mr.Selvaraj.
d) The petitioner possesses Master Degree in History and Archaeology and Ph.D. in History and Archaeology based on Tamil inscriptions and Tamil literature. The petitioner is stated to have contributed many articles, journals, poems, presentation of papers, etc. to Tamil literature. He has claimed that as per clause 3 of the Special Rules for Tamil Nadu General Service, he is qualified to the post of Director. The Tribunal set aside the G.O.Ms.No.36 dated 25.2.1998 in respect of paragraph-4 by which the claim of the petitioner to confer the post of Director on him on par with his junior Mr.Selvaraj came to be rejected.
e) The Tribunal in the order dated 3.7.2002, while setting aside the said paragraph-4, directed the Government to reconsider the claim of the petitioner to the post of Director of Tamil Development Department. It was, against the said order, the Government filed W.P.No.5647 of 2003 and a Division Bench of this Court in the order dated 24.2.2003 dismissed the writ petition with the result, as per the order of the Tribunal, the respondent Government has to consider the petitioner for the post of Director.
f) In fact, it was the stand of the Government that the rule 3 of the Special Rules prescribes qualifications for the post of Director stating that no persons shall be eligible for appointment to this class unless he possesses Master Degree in Tamil or he is a scholar of Repute in Tamil and in respect of the term, 'Scholar of Repute it was equated to 'eminent scholar' which is used for admission to professional courses under special reservation for sons and daughters of eminent scholars in Tamil.
g) The Division Bench has held that Ph.D. conferred on the petitioner is mainly based on Tamil Inscription and literature and therefore, it cannot be said that the petitioner is not a person of reputed Scholar in Tamil and that the said order of the Division Bench has become final. Thereafter, the petitioner has made a representation on 19.3.2003 requesting the Government to comply with the order of the Tribunal, as confirmed by the Division Bench of this Court with effect from 28.10.1993 with service benefits.
h) It was, thereafter on the petitioner initiating contempt proceedings, the impugned order came to be passed by the Government again rejecting the claim of the petitioner against which the present writ petition has been filed on various grounds including that the petitioner is qualified to be promoted to the post of Director of Tamil Development Department; that the respondent has been inventing new reasons for the purpose of denying the said right to the petitioner; that the term, eminent scholar has nothing to do with the reputed skill and therefore, G.O.Ms.No.81, Higher Education dated 31.5.2001 relating to admission of students to professional courses by giving reservation to the sons and daughters of eminent scholars in Tamil has no application; that even after the Court declared that the petitioner is fully qualified, the respondent has chosen to reject the claim of the petitioner again on the basis that the petitioner is not a reputed scholar; and that the genuine right of the petitioner for the promotion to the next post of Director came to be rejected which is arbitrary and illegal, apart from raising other grounds.
3. Mr.G.Masilamani, learned senior counsel appearing for the petitioner, by narrating the facts, would submit that when the Division Bench has categorically held that Ph.D obtained by the petitioner in Tamil Inscription has to be construed to the effect that the petitioner is a Tamil Scholar and in spite of it, the impugned order states otherwise. It is his submission that the term, eminent scholar under G.O.Ms.81, Higher Education dated 31.5.2001 relates to the guidelines issued for admission of students which can have no application at all and that cannot be imported to the statutory rules framed under Article 309 of the Constitution of India. Therefore, according to him, when the petitioners Ph.D in Archaeology is in respect of Tamil inscriptions, it cannot be said that the petitioner is not a scholar of repute. According to him, the eminency is different from reputation. It is his submission that considering the order of the Division Bench which has become final and the repeated conduct of the respondent in rejecting the claim of the petitioner under one pretext or the other, a positive direction should be given to the respondent to confer the post of Director on the petitioner. He would rely upon the judgment in Shreedharan Kallat vs. Union of India [(1995) 4 SCC 207].
4. On the other hand, it is the contention of the learned Special Government Pleader that as per the Special Rules, the petitioner is not eligible, especially when the post is a selection post and the petitioner cannot claim it as a matter of right. She would also submit that it is for the Government to decide as to whether the petitioner is a person having skill of repute. According to her, for a selection post, merit is the rule and not the seniority, by relying upon the judgment in R.Veerabhadram vs. Government of Andhra Pradesh [(1999) 9 SCC 43].
5. I have heard the learned senior counsel for the petitioner and the learned Special Government Pleader and given my anxious thoughts to the issue involved in this case.
6. On the admitted fact that the appointment to the post of Director is governed by rule 3 for which qualification is prescribed as elicited above, it is clear that a Master Degree in Tamil or Scholar of Repute in Tamil is the qualification for the said post. It is by virtue of the rule framing powers of the Government under the Special Rules of Tamil General Service Rules, framed under Article 309 of the Constitution of India. As per the amendment effected in G.O.Ms.No.71, Tamil Development and Culture Department, dated 18.4.1990, the qualification stated is as follows:
" 3.Qualification:- No person shall be eligible for appointment to this class unless he possesses a master's degree in Tamil or he is a Scholar of Repute in Tamil."
7. It is seen that when there was some discrepancy regarding promotion stated to have been given to the junior of the petitioner, viz., Mr.Selvaraj in the cadre of Deputy Director from the post of Assistant Director, the matter was ultimately decided by the Supreme Court wherein, undoubtedly, the Supreme Court held that the petitioner is senior to the said Selvaraj. Of course, it was based on the said recognition, the petitioner was promoted as Deputy Director with effect from the date of promotion of his junior viz., 9.1.1992 and that order of promotion was issued on 11.1.1996.
8. In the meantime, the said Selvaraj was given further promotion as Director. The petitioner made representations on 8.5.1995 and 12.3.1996, based on which the Government passed G.O.Ms.No.36 Tamil Development Culture Department dated 25.2.1998, in which while confirming the post of Deputy Director in favour of the petitioner with effect from 9.1.1992, the Government rejected the claim of the petitioner for the post of Director on par with his junior on the ground that the petitioner was not having the required qualification, as per the statutory requirements incorporated by way of amendment in G.O.Ms.No.71, Tamil Development and Culture Department, dated 18.4.1990, as stated above. When the relevant portion of the said G.O. was challenged by the petitioner, the Tamil Nadu State Administrative Tribunal, in an elaborate order dated 3.7.2002, by referring the qualifications and achievements of the petitioner and noting that his Ph.D was on his research in Tamil inscription and literature, held as follows:
" He has stated that he has obtained Ph.D. based on his research in Tamil Literature and inscriptions. These facts are not denied, in the impugned order dated 25.02.1996, it has been admitted that due seniority has been given to him as per the judgment in civil appeal No.7586/95, dated 11.08.1995. He has also been placed above one C.Selvaraju, the 4th respondent herein. But in paragraph 4 of the impugned order, the reason for not promoting the applicant is stated as that he is not possessing the educational qualification. We have already seen as per Rule 3 of the Special Rules for Tamil Nadu General Service, the qualification is a Master's degree in Tamil or a scholar of repute. This aspect has not been considered properly.
5. Therefore, paragraph 4 of the impugned order dt.25.02.1998 is set aside and the 1st respondent is directed to reconsider the claim of the applicant for promotion to the post of Director of Tamil Development, in the light of the other qualification viz., that he can be considered to be a scholar of Repute. The original application is ordered as above."
9. When the Government challenged the validity of the order of the Tribunal before this Court, in W.P.No.5647 of 2003, mainly it was the stand of the Government on the basis of the term eminent Tamil Scholar as per G.O.Ms.No.81, Higher Education dated 31.5.2001. That relates to the guidelines for selection of candidates for engineering and medical courses under special reservation for sons and daughters of eminent Tamil scholars. The criterion mentioned for scholar is stated as follows:
"5.2 National Level awards received for Tamil and Number of such awards (K.K.Birla Foundation Award, Gnana Peet Award, Sakithya Academy Award, Akil Bharath Parishat Award).
5.3State level Award received and number of such awards (Kural Peed Award, Thiruvalluvar Award, Thiru Vi.Ka.Award, Bharathidasan Award, Bharathiyar Award, Thirukural Peeda Parisu, Tamil Nadu Government's awards for best books written in Tamil under various categories and any other awards given by the State Government for Tamil Development.
5.4University Awards received and number of such awards (Raja Raja Chozhan Award, Tamil Chemmal award) and any other University award given for Tamil Development.
5.5Contributions in the form of creative works, critical works, translations, scientific writings/books shall be assesses by the common committee upon verification of the materials placed before them and marks will be awarded commensurate with the nature and quality. Marks will be awarded out of a maximum of 10 per each contribution. Total marks awarded under this category shall not exceed 50."
10. The same was specifically averred in the affidavit filed by the Government in the writ petition filed against the order of the Tribunal. In the said W.P.No.5647 of 2003, the Division Bench passed the following order on 24.2.2003:
" The Government has come up against the order passed by the Tribunal has directed the Department to consider the case of the First respondent for promotion to the post of Director of Tamil Development. That promotion was denied to him, perhaps on the reasoning that he is not M.A. in Tamil and he is also not a Tamil scholar. In fact, there seems to be a previous history to all this, because the first respondent had one right up to the Supreme Court to establish his seniority over Thiru Selvaraj, fourth respondent before the Tribunal. It is therefore that the question fell for the post of Director of Tamil Development, wherein the government has tilted in favour of Thiru Selvaraj holding that the first respondent did not have the proper qualification.
2. It is an admitted position that the first respondent is M.A. It is also admitted position that he is also holding a Doctorate. There is also a list of articles and journals, which papers include the papers read in world Tamil conference and south Indian History Congress. These are also the materials provided by the first respondent in his Original Application to suggest that he has composed poetry on the works of M.Ve.Venugopala Pillai, Thiruvalluvar and Deveneyappavanar. Considering all these the Tribunal has given a direction to consider his case also as a Tamil Scholar of Repute.
3. We do not think anything is wrong in this approach of the Tribunal. If the Ph.d is earned by the respondent on the Tamil inscriptions, it cannot be said that he is not a Tamil Scholar. However, the Government would reconsider the decision in the light of the reasons given by the Tribunal. The Writ Petition has no merits and it is dismissed in limne. The writ petition is also not maintainable due to the nonjoinder of Thiru Selvaraj to this petition. No costs. ...."
The said order has become final, admittedly, since no appeal has been filed against the said order and in the said order, there is a finding that the petitioner is a Tamil scholar and therefore, there is a direction to the Government to reconsider the case of the petitioner in the light of the observations.
11. It is thereafter, the petitioner has claimed that he should be notionally promoted as Director from the date of promotion of his junior, Mr.Selvaraj as Director on 28.10.1993. The petitioner has since attained the age of superannuation and as on date. Even if he succeeds, he would only be entitled to notional promotion and monetary benefits only.
12. Now, while looking into the reasons assigned in the impugned Government Order, the Government took a stand saying that the petitioner must be a reputed Tamil scholar called, jkpH; bkhHpapy; g[fH; bgw;w mwp"u; . The Government has now chosen to take a stand that for deciding as to whether the petitioner is a Tamil scholar of repute, the guidelines are that he should have got an award in national level for working for Tamil and there should be a State award for having written good, reputed Tamil books and literature, translation or any other science books based on Tamil and on the ground that no such proof is available by referring to documents filed, the Government rejected the request of the petitioner stating that the petitioner is not a reputed Tamil scholar.
13. In fact, the impugned order in effect contradicts the final order of the Division Bench of this Court indirectly. In the light of the order of the Division Bench which is allowed to become final by the respondent, certainly it is not open to the respondent to take a different decision. It was held in Shreedharan Kallat vs. Union of India [(1995) 4 SCC 207] as follows:
" 5. Assuming that the respondents could challenge fixation of seniority of the appellant as the order which furnished foundation for the determination of seniority, was passed without impleading the respondents, the scope of such petition could be limited. In service matters where validity or interpretation of rule is concerned any order passed by the courts which achieves finality is binding on the department. If the court is satisfied that any employee has been prejudiced or his right under Article 14 has been violated it may interfere in his favour. But the department is precluded from challenging the interpretation given by the court. Since the earlier order has been upheld by this Court the order could be set aside by this Court. The Tribunal could not have passed an order which resulted in disturbing the finality about interpretation of rule specially when the SLP had been dismissed by this Court."
14. In such view of the matter, the contention of the learned Special Government Pleader by relying upon the judgment in R.Veerabhadram vs. Government of Andhra Pradesh [(1999) 9 SCC 43] and more particularly, paragraph-10 of the said judgment which is as follows:
" 10. It is next contended that the appellant should be granted a deemed promotion to the post of Joint Secretary prior to his retirement. The promotion to the post of Joint Secretary is a promotion by selection and not by seniority. The appellant, therefore, cannot claim any promotion from the date on which his junior was promoted, since the basis for promotion is selection and not seniority. The appellant, however, has relied upon a decision of this Court in Sulekh Chand & Salek Chand v. Commr. of Police (1995 SCC (L&S) 196. In that case also, the appellant had been charged with an offence under the Prevention of Corruption Act and he was kept under suspension. However, when his turn came for promotion, he was considered for promotion but he was promoted at a later date in view of the criminal proceedings which ultimately ended in his acquittal. The Court held that once there was an acquittal, he was entitled to reinstatement as if there were no blot on his service. The material on the basis of which his promotion was denied did not now subsist and he should be promoted on the basis of the Departmental Promotion Committees findings. In the present case the appellant was not considered for selection because of the pending criminal proceedings. Since the promotional post is a selection post, there is no basis on which he can now claim that he must be deemed to have been selected and hence he should be granted the promotion. There is no basis on which we can hold that he would have been selected when he was eligible for promotion. The decision, in the above case, has no application here. The only other judgment on which the appellant relied, in this connection is the judgment of the Rajasthan High Court in Mohan Singh Bhati v. State of Rajasthan (1998) 1 SLR 684 (Raj) where the Court said that after acquittal, the respondent was entitled to reinstatement and all consequential monetary benefits. We fail to see how this decision will help the appellant in the present case. On the contrary, in the State of Mysore v. C.R. Sheshadri (1974 SCC (L&S) 264), this Court has held that if the rule of promotion is one of sheer seniority, it may well be that promotion is a matter of course. On the other hand, if merit is the rule, promotion is problematical and it would be hazardous to assume that by the efflux of time, the petitioner would have got the promotion. The Court cannot speculate in retrospect whether the petitioner would have been selected on merit and on the strength of such dubious hypothesis direct retroactive promotion and back pay.
is misconceived. It is not as if the petitioner has claimed his right only based on his seniority. The seniority of the petitioner above the said Mr.Selvaraj has been admitted by the respondent which is evident from the fact that after the legal battle, the Government itself has conferred the promotion of the post of Deputy Director on the petitioner retrospectively with effect from 9.1.1992, by way of notional promotion.
15. Further, it is relevant to point out that earlier the Government had taken a different stand on the claim of the petitioner, as evident from the G.O.(Per.)No.36 Tamil Development-Culture Department, dated 25.2.1998 where, while rejecting the claim of the petitioner to the post of Director stating that the petitioner was not having educational qualification. The relevant portion is as follows:
VERNACULAR (TAMIL) PORTION DELETED
16. Even though the said paragraph of the Government Order was set aside by the Tribunal which was later confirmed by the Division Bench of this Court, in the present impugned order, the Government has chosen to give a different reason which is as follows:
VERNACULAR (TAMIL) PORTION DELETED Therefore, it is clear that the impugned order is against the judgment of the Division Bench. I am therefore of the view that by merely setting aside the said order, no useful purpose will be served and I am inclined to issue a direction to the respondent to confer the notional promotion to the petitioner as Director.
Accordingly, the writ petition stands allowed. The impugned order stands set aside with direction to the respondent to confer the notional promotion to the post of Director on the petitioner from the date on which his junior, Mr.Selvaraj was promoted viz., 28.3.1993, with all monetary and other benefits due to him, by passing necessary orders which shall be complied with within a period of eight weeks from the date of receipt of a copy of this order. No costs.
kh To The Secretary to Government State of TamilNadu Tamil Development Culture & Endowment Department Fort St.George, Chennai 600 009