Madras High Court
P.Suresh vs The Government Of Tamil Nadu on 27 October, 2017
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.10.2017 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.15166 of 2017 P.Suresh ... Petitioner Vs. 1.The Government of Tamil Nadu, Rep. By Addl. Chief Secretary/Secretary to Govt., Home (Transport-II) Department, Fort St. George, Secretariat, Chennai 9. 2.The Principal Secretary-cum-Transport Commissioner, State Transport Authority, Ezhilagam, Chepauk, Chennai 5. 3.A.A.Muthu ... Respondents PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records relating to the proceedings of the first respondent in G.O.(D) No.739, Home (Transport-II) Department, dated 09.06.2017 and quash the same and pass such further orders. For Petitioner : Mr.L.Chandrakumar For R1 & R2 : Mr.K.Venkataramani, AAG Assist. By R.A.S.Senthilvel, AGP For R3 : Mr.G.Masilamani, SC for Mr.S.N.Ravichandran ORDER
Challenging impugned order passed by the first respondent / Secretary to Government, Home (Transport-II) Department, Chennai, in G.O.(D).No.739, Home (Transport-II) Department, dated 09.06.2017, in promoting the third respondent/A.A.Muthu as Deputy Transport Commissioner, the petitioner/P.Suresh has filed this writ petition.
2. Mr.L.Chandrakumar, learned counsel appearing for the petitioner submitted that the petitioner was appointed as Motor Vehicle Inspector Grade-II on 09.08.1993 through the direct recruitment conducted by the Tamil Nadu Public Service Commission (TNPSC). The third respondent was appointed temporarily as Motor Vehicle Inspector Grade-II under Rule 10(a)(1) of the Tamil Nadu State and Subordinate Service Rules on compassionate ground on 24.08.1987 and thereafter, after 6 years of his services, he was regularised through the Government Order in G.O.Ms.No.697, dated 22.06.1997, with effect from 16.07.1993. It is also stated that in the seniority list published by the second respondent / the Principal Secretary-cum-Transport Commissioner, Chennai, vide his proceedings dated 07.08.2013, the name of the petitioner was shown at serial No.9, whereas the third respondent was placed at Serial No.66 and other appointees who were regularised on the same day i.e. 16.07.1993, were placed at Serial Nos.67 to 70, below the direct recruits. The said seniority list was not questioned by the third respondent.
3. However, one Mr.S.K.M.Sivakumaran filed a Writ Petition No.15889 of 2013 challenging the above said seniority, whereby, this Court, by order dated 19.02.2014, allowed the said writ petition. As against the same, when writ appeals were filed in W.A.Nos.302, 425 and 855 of 2014, learned Division Bench of this Court, by judgment dated 28.05.2015 dismissed the said writ appeals confirming the order passed by the learned Single Judge of this Court. Aggrieved by the same, the Government of Tamil Nadu and 1989 direct recruits, who are batch-mates of the petitioner, preferred Special Leave Petition in SLP (Civil) Nos.28670 and 22717 to 22719 of 2015 and the said matter is pending before the Hon'ble Apex Court without there-being any order of interim stay.
4. In the above said background, it is submitted, on the basis of the order passed by the learned Division Bench of this Court in W.A.Nos.302, 425 and 855 of 2014, dated 28.05.2015, confirming the order passed by the learned Single Judge of this Court in W.P.No.15889 of 2013, dated 19.02.2014, Mr.S.K.M.Sivakumaran got promotion to the post of Regional Transport Officer and further promotion to the post of Deputy Transport Commissioner. It is also stated that no permanent panel has been drawn for promotion to the post of Regional Transport Officer since 2007 and all those promotions have been made only on the basis of such temporary list, from which, the petitioner has been promoted as Regional Transport Officer on 29.03.2008, whereas the third respondent has been promoted as RTO on 17.08.2016 only. The next avenue of promotion for Regional Transport Officer is to the post of Deputy Transport Commissioner. As three vacancies in the post of Deputy Transport Commissions have not been filled up, he made a representation dated 30.06.2016 requesting the concerned authorities to promote him to the post of Deputy Transport commissioner. Thereafter, finding no response, he filed a Writ Petition No.28461 of 2016 praying for issuance of a writ of mandamus to direct the respondents therein to consider the above said representation and promote him to the post of Deputy Transport Commissioner, whereby, this Court, by order dated 16.08.2016, directed the respondents therein to consider his representation on merits and pass appropriate orders in accordance with law.
5. Likewise, it is submitted, the third respondent also, finding no response on his representation dated 29.08.2016 requesting the authority concerned to promote him to the post of Deputy Transport Commissioner, filed a Writ Petition No.38836 of 2016, whereby, this Court, by order dated 08.11.2016, directed the second respondent therein to consider the said representation with regard to his promotion and pass appropriate orders on merits and in accordance with law. In the meanwhile, the third respondent suffered a departmental proceedings in a charge memo dated 27.03.2008 issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in a Vigilance and Anti-Corruption case and therefore, his name was deleted from the list of Motor Vehicle Inspector Grade-I for promotion to the post of Regional Transport Officer and he was not considered for promotion. Finally, the disciplinary proceedings ended vide proceedings dated 29.02.2012 with a punishment of stoppage of increment for three months without cumulative effect and he suffered the said punishment from 01.01.2013 to 31.03.2013.
6. Moreover, for promotion to the post of Deputy Transport Commissioner under the Tamil Nadu Transport Service Rules, a candidate must have served for a total period of not less than 5 years in Category 2, out of which, he should have served at least one year as Assistant Secretary, State Transport Authority or Secretary, State Transport Appellate Tribunal or Departmental Representative, State Transport Appellate Tribunal. Therefore, it is submitted that since the petitioner neither suffered any disciplinary proceedings at any point of time nor received any adverse remarks, he made representations dated 02.05.2017 and 20.05.2017 to the first respondent requesting to consider his claim for promotion to the post of Deputy Transport Commissioner. However, the first respondent, without considering his claim, vide G.O.(D) No.739, Home (Transport-II) Department, dated 09.06.2017, by exercising the powers conferred under Section 58 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (in short Act) relaxing the Explanation III to Section 7 of the Tamil Nadu Government Servant (Conditions of Service) Act 2016 and Rule 3 of the Tamil Nadu Transport Service in favour of the third respondent, temporarily promoted the third respondent as Deputy Transport Commissioner under Section 47 of the Act, subject to the outcome of the Special Leave Petition pending before the Hon'ble Apex Court. Such approach of the first respondent is arbitrary and unsustainable in law.
7. Learned counsel for the petitioner further submitted that when the temporarily lists are not finalized and the panel has not been drawn-up, the promotions, if any, to meet the exigency of circumstances are given, due protection should be given to the persons, who are seniors in the temporary list. This apart, persons, who are shown in the bottom of temporary seniority list or who are appointed at a later point of time in the feeder category, cannot be allowed to supersede the persons who are senior to them as per Section 7(1) in Explanation II of the Tamil Nadu Government Servant Act 14 of 2016 with effect from 15.09.2016. In this context, it is further stated that although the petitioner was appointed as Regional Transport Officer on 29.03.2008, the third respondent was appointed in the said post only on 17.08.2016, therefore, while exercising the powers on the temporary promotions under Section 47 of the said Act, the respondent ought to have given due weightage to the longer services rendered by the petitioner in the feeder category, which is more than 8 years in comparison to the third respondent.
8. It is further argued by the learned counsel for the petitioner that the third respondent had suffered punishment of increment cut without cumulative effect for a period of 3 months vide proceedings dated 29.02.2012 and the same was given effect to from 01.01.2013 to 31.03.2013. In addition to this, the third respondent does not possess the qualification prescribed for the post of Deputy Transport Commission, for, he did not serve for 5 years as RTO, besides, he did not have one year experience as Assistant Secretary, State Transport Authority, or Secretary, State Transport Appellate Tribunal or Departmental Representative, State Appellate Tribunal. However, the petitioner possesses all those above qualifications prescribed under the Act for the post of Deputy Transport Commissioner. Therefore, it is not known as to why the respondent has not considered the claim of the petitioner for promotion to the post of Deputy Transport Commissioner. Hence, it is contended, such an approach of the official respondents is in violation of Articles 14 and 16 of the Constitution of India.
9. Arguing further on the power of the Governor under Section 58 of the Act, he has contended that under Section 58 of the Act, the power of relaxation of any Section has to be exercised only by the Governor, but, in the present case, the impugned order states that it is only by the order of the Governor the Secretary to Government has passed the impugned order promoting the third respondent to the post of Deputy Transport Commissioner under Section 47 of the Act by relaxing the explanation III to Section 7 of the Act and Rule 3 of the Tamil Nadu Transport Service Rules. However, the said impugned order does not mention about the delegation of power for relaxation from His Excellency, the Governor, to the Secretary to Government/first respondent herein. Besides, he contended, the files have not been placed before the Governor for consideration as to whether it is a fit case for exercising the power under Section 58 of the Act to grant relaxation.
10. Again, by referring to the power of relaxation exercised in Explanation No.III to Section 7(1) of the Act, learned counsel for the petitioner contended that since the post of RTO has not been regularised since 2007 and all those promotions have been made based on the temporary list only as per Section 7(1) of the Explanation II of the Act, 14 of 2016, Section 7(1) of Explanation III cannot be made applicable to the case on hand. Hence, for all these reasons, the case of the third respondent cannot be considered with the case of S.K.M.Sivakumaran, who had not suffered any punishment, therefore, the appointment of the third respondent to the post in question is illegal, unjust and unsustainable in law.
11. Per contra, Mr.K.Venkataramani, learned Additional Advocate General submitted that at the time of entry into the services in the post of Motor Vehicles Inspector Grade-II in Transport Department, the petitioner was junior to the third respondent, as he had joined the duty as Motor Vehicle Inspector Grade-II on 09.08.1993, whereas the third respondent had joined the duty on 24.08.1987 and his services were regularised with effect from 16.07.1993 and further promoted as Motor Vehicle Inspector Grade-I on 11.03.1998. Moreover, the third respondent and the petitioner came into the zone of consideration for inclusion of their names in the temporary list of Motor Vehicles Inspector Grade-I fit for promotion as Regional Transport Officer for the panel year 2006-2007 and the petitioner was promoted as Regional Transport Officer and joined the duty on 28.03.2008. While drawing the panel for promotion to the post of Regional Transport Officer for the panel year 2006-2007, the name of the third respondent was included at Serial No.5 and the said panel was issued in G.O.(2D) No.197, Home (Tr-II) Department, dated 28.03.2008. However, before the actual promotion, the third respondent was issued with a charge memo dated 27.03.2008, which was served on 31.03.2008, hence, his promotion was deferred and subsequent to this, his name was not included for the panel year 2008-2009 also, besides, passing over of his name in the subsequent panel years as well. Finally, the disciplinary proceeding against the third respondent was concluded with a punishment of stoppage of increment for 3 months without cumulative effect by the second respondent vide his proceedings dated 29.02.2012. In view of this, the third respondent was not considered for inclusion in the panel year 2012-2013 as the crucial date for the said penal was on 01.07.2012. Subsequent to the completion of the above said punishment, the third respondent became eligible for inclusion in the subsequent panels. However, due to administrative reasons, NIL panel was drawn for the post of RTO for the panel year 2013-2014, but, only for the year 2014-2015, a panel was drawn up for the said post only in the year 2017. In the meanwhile, seniority of 6 Motor Vehicle Inspectors, Grade-II, who were appointed during the year 1987 on compassionate grounds including the third respondent, were placed below the names of 65 directly recruited Motor Vehicles Inspectors, Grade-II, who were appointed during the year 1992-93.
12. Aggrieved by the above said seniority list, one of the compassionate appointees, namely, Mr.S.K.M.Sivakumaraly, who is junior to the third respondent, filed W.P.No.15889 of 2013 with a prayer to quash the seniority list published by the Joint Transport Commissioner and prepare a seniority list of Motor Vehicle Inspector, Grade-II and Grade-I by placing him above the direct recruits and promote him as Deputy Transport Commissioner on that basis and till then not to make promotion to the post of Deputy Transport Commissioner. This Court, by order dated 19.02.2014, allowed the said writ petition with a direction to the respondents 1 and 2 therein to prepare a seniority list of eligible Motor Vehicle Inspector Grade-I and Grade-II by placing the petitioner above the direct recruits, namely, respondents 4 and 5 therein (Mr.D.Venkatraman and Mr.K.R.Krishnamurthy), and promote him as Deputy Transport Commissioner on that basis. The said order was also further appealed in Writ Appeal Nos.855, 302 and 425 of 2014 by the State as well as by some of the direct recruits, whereby, the Hon'ble Division Bench of this Court, by judgment dated 28.05.2015, upheld the order passed by the learned Single Judge. Against which, SLP (Civil) No.28670 of 2015 filed before the Hon'ble Apex Court is pending without there-being any order of interim stay. In the meantime, the said Mr.S.K.M.Sivakumaran filed Contempt Petition No.231 of 2016 for non-compliance of the order passed by this Court in W.P.No.15889 of 2013 and only thereafter, the said S.K.M.Sivakumaran, junior to third respondent, was temporarily promoted to the post of Deputy Transport Commissioner vide G.O.(D) No.328, Home (Tr-II) Department, dated 20.04.2016, without fixing the seniority, subject to the outcome of the SLP filed before the Hon'ble Apex Court.
13. It is further stated by the learned Additional Advocate General that the third respondent is admittedly senior to both the petitioner as well as the said S.K.M.Sivakumaran. Therefore, the third respondent, on taking note of the promotion of S.K.M.Sivkumaran, who is junior to him, had filed a Writ Petition No.28378 of 2012, whereby, this Court, by order dated 18.07.2014, by observing that on the date when the panel was prepared i.e. on 15.03.2007, no charge memo was pending, directed the official respondents therein to promote him to the post of Regional Transport Officer. However, finding non-compliance, when the third respondent filed a Contempt Petition No.1577 of 2016, the first respondent, vide G.O.(D) No.653, dated 27.07.2016, granted promotion to him as RTO on par with his junior and thereby, his name was also included in the approved panel of the year 2006-2007. Therefore, it is contended, the promotion given to the third respondent pursuant to the order passed by this Court in W.P.No.28378 of 2012, dated 18.07.2014, cannot be questioned by the petitioner by way of filing this writ petition.
14. Arguing further, it is submitted by the learned Additional Advocate General that in obedience to the order passed by this Court in W.P.No.38836 of 2016, dated 08.11.2016, the third respondent was temporarily promoted as Deputy Transport commissioner under Section 47 of the Act, in relaxation of Explanation III to Section 7 of the Act and Rule 3 of Special Rules for Tamil Nadu Transport Service, subject to the outcome of SLP filed before the Hon'ble Apex court in SLP.No.28670 of 2015 by the State against the order passed by the Hon'ble Division Bench of this Court in W.A.Nos.302, 425 and 855 of 2014. Therefore, it is contended, the petitioner, who is junior to third respondent, cannot have any grievance at all against the promotion given to the third respondent.
15. Supporting the arguments of the learned Additional Advocate General, Mr.G.Masilamani, learned Senior counsel appearing for the third respondent submitted that the petitioner is six years junior to the third respondent, since the third respondent was appointed as Motor Vehicle Inspector, Grade-II, on 24.08.1987 on compassionate ground, whereas the petitioner was appointed only on 04.08.1993. Likewise, the services of the third respondent were regularised in the post of Motor Vehicle Inspector Grade-I on 11.03.1998, whereas in the case of the petitioner, it was regularised on 19.06.1998. However, the third respondent had suffered the departmental proceedings with issuance of charge memo dated 27.03.2008, which was served to him on 31.03.2008. Since the crucial date for promotion to the post of RTO for the panel year 2006-07 was on 01.07.2006 and on the date of preparing the temporary list of eligible candidates for promotion to the post of RTO i.e. on 28.03.2008, the third respondent had not suffered any order of punishment, he was illegally denied his rightful promotion as RTO. However, on completion of the enquriy, the Enquiry Officer submitted his report holding that the charge is partly proved and partly not proved. The second respondent, by proceedings dated 29.02.2012, passed an order of punishment of stoppage of increment for a period of 3 months without cumulative effect. Thereafter, the third respondent filed a Writ Petition No.28378 of 2012 seeking a direction to the respondents therein to promote him as RTO by including his name in the panel of the year 2006-2007 on par with his juniors, whereby, this Court, by order dated 18.07.2014, by allowing the writ petition, directed the respondents therein to promote him as RTO along with others and place him in the appropriate place on par with his juniors. Finding non-compliance, on filing of the Contempt Petition No.1577 of 206, the first respondent, vide G.O.(D) No.653, dated 21.07.2016, given promotion to him as RTO on par with his juniors and included his name in the approved panel of the year 2006-2007.
16. Dealing with the seniority of the petitioner and the third respondent, learned Senior counsel for the third respondent submitted that when the second respondent issued a proceeding dated 07.08.2013 fixing the inter-se seniority among the compassionate ground appointees and direct recruits in Motor Vehicle Inspector Grade-II, the name of the petitioner was shown at Serial No.9, whereas the names of third respondent and S.K.M.Sivakumaran were shown at Serial Nos.66 and 69 respectively. It is also contended by the learned Senior counsel that when the services of the third respondent were regularised in the post of Motor Vehicle Inspector, Grade-II, on 16.07.1993, the petitioner was not born in the said cadre, as he was appointed only on 09.08.1993. Therefore, aggrieved by this inter-se seniority list, the third respondent's junior Mr.S.K.M.Sivakumaran filed a Writ Petition No.15889 of 2013, whereby, this Court, by order dated 17.02.2014, quashed the said inter-se seniority list with a direction to the respondents 1 to 3 therein to prepare the seniority list of eligible Motor Vehicle Inspector Grade-II and Grade-I, by placing the said S.K.M.Sivakumaran/the petitioner therein above direct recruits viz. Respondents 4 and 5 therein (D.Venkatraman and K.R.Krishnamurthy), and then promote him as Deputy Transport Commissioner. As against this order, when the State as well as other directly recruited employees filed W.A.Nos.302, 425 and 855 of 2014, learned Division Bench of this Court, by judgment dated 28.05.2015, disposed of the said writ appeals observing that no reason can be found to interfere with the order passed by the learned Single Judge. Aggrieved by this judgement, SL.P.Nos.22719, 28670 of 2015 filed by the State as well as other direct recruits are pending before the Hon'ble Apex Court without there-being any order of interim stay. Hence, finding non-compliance, after filing of the contempt Petition No.231 of 2016 by the said S.K.M.Sivakumaran, the official respondents promoted the said person, who is admittedly junior to third respondent, to the post of Deputy Transport Commissioner, vide G.O.(D).No.328, dated 20.04.2016, subject to the outcome of SLP filed before the Hon'ble Apex Court and the seniority for the said post will be fixed only after the disposal of the said SLP.
17. Thus, in view of the above, it is contended that the third respondent made a representation dated 29.08.2016, requesting the authorities to promote him as Deputy Transport Commissioner on par with his junior S.K.M.Sivakumaran, who was promoted on 20.04.2016, in obedience to the order passed by this Court in W.P.No.15889 of 2013, dated 17.02.2014. Since he did not receive any reply from them, he filed a Writ Petition No.38836 of 2016 for a direction to dispose of his representation dated 29.08.2016 requesting to promote him to the post of Deputy Transport Commissioner from the date on which his Junior S.K.M.Sivakumaran was promoted in the said post, whereby, this Court, by order dated 08.11.2016, directed the second respondent therein to consider said representation with regard to his promotion to the post of Deputy Transport Commissioner and to pass appropriate orders on merits and in accordance with law. Therefore, pursuant to the order of this Court, the third respondent has been promoted to the post of Deputy Transport Commissioner through the present impugned order.. Thus, it is contended, the writ petition filed by the petitioner questioning the impugned order promoting the third respondent to the post of Deputy Transport Commissioner in obedience to the order of this Court as stated above is totally misconceived and deserves to be dismissed.
18. Concluding his argument, learned Senior counsel contented that, in view of the ratio laid down by the Hon'ble Full Bench of this Court in the case of Deputy Inspector General of Police V. V.Rani [(2011) 3 CTC 129] holding that the check period of five years in the case of minor punishment as illegal and impermissible under the Statutory Rules, the challenge made by the petitioner on the ground of check period also cannot stand to any good reason.
19. Heard the learned counsel appearing on either side and perused the materials available on record.
20. Given the facts and circumstances of the case, it has to be seen whether the petitioner is junior to third respondent and if so, whether the promotion given to the third respondent as Deputy Transport Commissioner as questioned by the petitioner is justifiable in law or not? To find out the answer to this issue, it is better to extract the comparison statement of the service particulars of the petitioner as well as the third respondent, which are stated below in the tabular column:
Sl.No. Name Date of appointment Date of regularisation MVI Gr.II Date of regularisation MVI Gr.I RTO w.e.f.
DTC Promotion
1. A.A.Muthu (compassionate appointment) 24.08.1987 16.07.1993 11.03.1998 17.08.2016 w.e.f 28.03.2008 09.06.2017
2. S.K.M.Sivakumaran (compassionate appointment) 28.12.1992 16.07.1993 11.10.1999 01.12.2010 12.08.2016
3. K.R.Krishnamurthi (direct recruit) 04.08.1993 04.08.1993 12.03.1998 17.08.2016 03.02.2017
4. Pon Senthilnathan 04.08.1993 04.08.1993 12.03.1998 29.03.2008 03.02.2017
5. Jeyashankaran 04.08.1993 04.08.1993 12.03.1998 01.12.2010 03.02.2017
6. K.Umasakthi 04.08.1993 04.08.1993 12.03.1998 30.03.2008 03.02.2017
7. P.Suresh 04.08.1993 04.08.1993 19.06.1998 29.03.2008
--
21. From the above said tabular column, it is clear that the third respondent was temporarily appointed on compassionate ground on 24.08.1987 as Motor Vehicle Inspector Grade-II, which is six years prior to the appointment of the petitioner in the said post on 04.08.1993. Likewise, in the post of Motor Vehicle Inspector Grade-I, the services of the third respondent were regularised on 11.03.1998, whereas, in the case of the petitioner, it was only on 19.06.1998, which is also admittedly later to the third respondent. However, the petitioner was given promotion in the post of RTO on 29.03.2008, whereas the third respondent was given promotion only on 17.08.2016, in view of pendency of a charge memo dated 27.03.2008 which is served to him on 31.03.2008.
22. At this juncture, it is the contention of the learned Senior counsel for the third respondent that on the crucial date i.e. 01.07.2006 for the panel year 2006-2007 to the post of RTO, the third respondent did not suffer any order of punishment, therefore, it is stated that the official respondents ought to have included the name of the third respondent in the panel year 2006-2007 itself, but, since that has not been done, after the conclusion of the disciplinary proceedings which ended with a punishment of stoppage of increment for a period of 3 months without cumulative effect, the third respondent filed a Writ Petition No.28378 of 2013 seeking for a direction to the respondents therein to promote him as RTO by including his name in the panel of the year 2006-2007 on par with his juniors. This Court, by order dated 18.07.2014, allowed the said writ petition with a direction to consider the claim of the petitioner therein/the third respondent herein and promote him as RTO on par with his juniors, that too with effect from 28.03.2008 by granting all other benefits. In this context, it is relevant to extract the operative portion of this order:
5. From the aforesaid narration of facts and relying upon the decision of this court, this court is of the view that the Writ Petition has got to succeed. The contention of the respondents are that there was charge-sheet against the petitioner on 27.03.2008 and there was a disciplinary proceedings against him cannot be accepted, as the Government admitted that the charge-sheet was served only on 31.03.2008. While rejecting the plea of the Government and accepting the case of the petitioner, this court while allowing the writ petition, directs the respondents to consider the case of the petitioner and promote him as Regional Transport Officer along with others and place him in the appropriate place when his colleagues/juniors have been promoted with effect from 28.03.2008, grant all other benefits.
6. The fact that the petitioner faced punishment of stoppage of increment for a period of three months without cumulative effect subsequently cannot stand in the way of the petitioner in getting the promotion as on the date of crucial date. The date of consideration of his name for promotion to the higher post and the actual date of promotion granted to his juniors/colleagues are supporting the contention of the petitioner and hence, the relief sought for by the petitioner has got to be allowed and the writ petition is ordered accordingly. No costs. The time for granting the monetary benefits is three months from the date of receipt of the order. For issuing the order of promotion to the petitioner, five weeks time from the dat eof receipt of the order is granted.
23. Despite the above said order of this Court, since his claim was not considered, he filed a contempt petition No.1577 of 2016. Only after the filing of this contempt petition, the first respondent, vide G.O.(D) No.653, dated 21.07.2016, complied with the order passed by the learned Single Judge of this Court in W.P.No.28378 of 2012, dated 18.07.2014, and given a promotion as RTO on par with his juniors and thereby included his name in the approved panel of the year 2006-2007.
24. Secondly, Mr.S.K.M.Sivakumaran, junior to third respondent, who is also compassionate appointees like the petitioner, filed a Writ Petition No.15889 of 2013 challenging the inter-se seniority list dated 07.08.2013 among the compassionate ground appointees and direct recruits in the post of Motor Vehicle Inspector Grade-II, published by the second respondent. This Court, by order dated 17.02.2014, set aside the said inter-se seniority list, with a direction to the respondents 1 to 3 therein to prepare the seniority list of eligible Motor Vehicle Inspector Grade-II and Grade-I by placing the said S.K.M.Sivakumaran, above the direct recruits, namely, respondents 4 and 5 therein (D.Venkatraman and K.R.Krishnamurthy). As against the same, the State as well as other direct recruits have filed Writ Appeal Nos.302, 425 and 855 of 2014, whereby, the Hon'ble Division Bench of this Court, by judgment dated 28.05.2015, confirmed the order passed by the learned Single Judge of this Court. Thereafter, although the State as well as other direct recruits have filed SLP.Nos.22717 to 22719 of 2015 and 28670 of 2015 before the Hon'ble Apex Court, the same are pending without there-being any order of interim stay. Subsequently, on filing of the Contempt Petition No.231 of 2016 by the said S.K.M.Sivakumaran, the first respondent, vide G.O.(D).No.328, dated 20.04.2016, promoted the said person temporarily as Deputy Transport Commissioner, subject to the outcome of the SLP filed before the Hon'ble Apex Court and it was also stated in the said GO that the seniority for the said post will be fixed only after the disposal of the SLP.
25. In view of the aforesaid developments, the third respondent, by taking note of the fact that the said S.K.M.Sivakumaran, who is junior to him, got promoted to the post of Deputy Transport Commissioner, made a representation dated 29.08.2016 requesting to promote him on par with the said S.K.M.Sivakumaran. However, his representation was not considered, therefore, he filed a Writ Petition No.38836 of 2016, whereby, this Court, by order dated 08.11.2016, directed the second respondent therein to consider his claim with regard to his promotion to the post of Deputy Transport Commissioner. Even thereafter, his grievance was not considered and therefore, he was constrained to issue notice of contempt for non-compliance of the order passed by this Court. Finally, on receipt of the contempt notice only, the first respondent passed the present impugned order promoting the third respondent herein as Deputy Transport Commissioner vide G.O.(D) No.739, dated 09.06.2017, by relaxing the Explanation II to Section 7 of the Act and Rule 3 of the Tamil Nadu Transport Service Rules.
26. Learned counsel for the petitioner strenuously contended that as per the provisions of the Act 2016, the third respondent, having suffered the punishment of stoppage of increment for a period of three months without cumulative effect vide proceedings dated 29.02.2012 is not entitled to get the promotion through the impugned order, for the reason that even though, he has completed the punishment by undergoing the above said penalty, he would further suffer the embargo of 5 years check period consequent to the issuance of the said punishment dated 29.02.2012, since the promotion order dated 17.08.2016 falls within the check period.
27. Refuting this contention, learned Senior counsel for the third respondent argued that the petitioner was shown at Sl.No.13 in the seniority list, whereas the name of the third respondent was found at Sl.No.5 in the seniority list published in the cadre of Motor Vehicle Inspector Grade-I, therefore, even if the promotion given to the third respondent is cancelled, the said promotion cannot be given to the petitioner, hence, he is disqualified to question the promotion given to the third respondent. In support of his contentions, learned Senior counsel has also referred to the judgment of the Hon'ble Apex Court in the case of Dr.N.C.Singhal Vs. Union of India and others [(1980) 3 SCC 29], wherein it is held as follows:
21. Having examined the challenge to the promotion of respondents 4 to 24 on merits, it must be made clear that the appellant is least qualified to question their promotions. Each one of them was promoted to a post in supertime grade II in a speciality other than ophthalmology and appellant admittedly was not qualified for any of these posts. Even if their promotions are struck down appellant will not get any post vacated by them. Incidentally High Court also upheld their promotions observing that by the time the petition was heard each one of them had requisite service qualification and, therefore, the promotions could not be struck down. Once the challenge on merits fails the second string to the bow need not be examined. Having said all this, appellant is least competent to challenge their promotions. In a slightly comparable situation this Court in Chitra Ghosh and Anr. v. Union of India and Ors. observed as under:
The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded. The above ratio of the Hon'ble Apex Court clearly covers the case on hand. As rightly pleaded, the petitioner was shown at Sl.No.13, whereas the name of third respondent was shown at Sl.No.5 in the seniority list published in the cadre of Motor Vehicle Inspector Grade-I and Grade-II, therefore, the petitioner has no locus-standi to question the promotion given to the third respondent. Secondly, Schedule IX of Section 7(1) of II Consideration of Members of Inclusion in Clause 13, states as follows:
If a member of service is imposed with punishment for irregularity or delinquency that were committed 5 years prior to the crucial date shall be considered for promotion or appointment to the post, if the member of service is not undergoing such a punishment on the crucial date or on the date of consideration for actual punishment. The above provision makes it clear that prior to the crucial date i.e. 01.07.2006, there was no misconduct committed by the third respondent. The order of minor punishment dated 29.02.2012 against the third respondent with stoppage of increment for a period of three months without cumulative effect, would come to an end on 31.05.2012. However, contrary to the orders passed by this Court in W.P.No.10950 of 2012, dated 14.09.2012, as confirmed by the Hon'ble Division Bench of this Court in W.A.No.921 of 2015, dated 29.07.2015, the said punishment order was implemented by the second respondent only with effect from 01.01.2013 to 31.03.2013. Had the authorities implemented the order of punishment in a timely manner against the third respondent, the question of applying the check period of five years would not have arisen, as it would have ended up by 31.05.2017 itself and therefore, in such a scenario, the challenge made by the petitioner against the impugned order dated 09.06.2017 on the ground of five years check period would not stand to logic. Therefore, for the mistakes committed by the authorities, which has been fairly admitted by the learned AAG, the third respondent cannot be punished by way of applying the check period. Thus, the contention of the petitioner that the embargo of five years check period would stand against the third respondent also falls to ground.
28. Further, as highlighted above, this Court has already given a direction in W.P.No.28378 of 2012, dated 18.07.2014, to the official respondents therein to promote the third respondent as RTO, with a further direction to place him on par with his juniors with effect from 28.03.2008, by observing that the punishment of stoppage of increment for a period of three months without cumulative effect faced by him subsequently, cannot stand in the way of him getting the promotion as on the date of crucial date. The above said order of this Court admittedly has not been questioned either by the petitioner herein or by the respondent department. Besides, the present impugned order passed by the first respondent promoting the third respondent as Deputy Transport Commissioner is only subject to the outcome of the SLP pending the before the Hon'ble Apex Court. Thus, the contention of the petitioner that the third respondent was illegally given promotion cannot be sustained.
29. In fine, for the reasons stated above, the writ petition fails and the same is dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.
27.10.2017
Index : Yes/No
Internet:Yes/No
rkm
To
1.The Addl. Chief Secretary/Secretary to Govt.,
Home (Transport-II) Department,
Fort St. George, Secretariat,
Chennai 9.
2.The Principal Secretary-cum-Transport Commissioner,
State Transport Authority,
Ezhilagam, Chepauk,
Chennai 5.
T.RAJA,J.
Rkm
W.P.No.15166 of 2017
27.10.2017