Madras High Court
G. Ramesh vs State Of Tamil Nadu And Others on 3 January, 1990
Equivalent citations: (1991)IILLJ516MAD
Author: M. Srinivasan
Bench: M. Srinivasan
ORDER
1. On notice of motion, the respondents have entered appearance. In addition to counsel for the respondents on record, Mr. R. Thiagarajan, Senior Advocate representing the Diploma-holders, Junior Engineers appeared in this Court and argued that the Diploma-holders have not been impleaded as parties deliberately in this writ petition and they are the persons who will be affected by any order that may be passed in this writ petition. Hence I heard Mr. Thiagarajan also though formally his clients are not parties in this writ petition.
2. The main contention on which the relief is sought in this petition is that under Section 86 of the Madras City Municipal (Corporation) Act, 1919, the classification, methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the Corporation establishment shall be regulated by rules made by the State Government in that behalf in the case of Class I-A and B and Class II officers. Other portion of the section is not relevant for the purposes of this case.
3. Reliance is placed by the petitioner on G.O.Ms. No. 1669 Personnel and Administrative Reforms (Personnel-N) Department dated October 13, 1984. In that Government Order, the Government has directed that if the scales of pay of feeder categories to any particular higher post are different, then persons holding posts carrying a higher scale of pay in the feeder category should be considered first and if no qualified and suitable persons are available in that category, persons holding posts carrying the next higher scale of pay in the feeder category should be considered. I am informed that the Government has framed rules for the Tamil Nadu State and Subordinate Services on the basis of the said notification.
4. The contention of the learned counsel for the petitioner is that the above Government Order as well as the rules framed pursuant to the Government Order for Tamil Nadu State and Subordinate Services will apply ipso-facto to the services under the Corporation of Madras by virtue of Section 86(1). I do not agree with this contention. The significant words in Clause (1) of Section 86 are 'in this behalf'. Hence the State Government should make rules with reference to Class I-A, I-B and Class II officers of the Corporation of Madras which alone will govern the services of such officers. If the State Government has framed rules for State and Subordinate Services or any other general rules pertaining to State Services, they will not automatically apply to the services in the Corporation in view of the language of the section. In my view neither the Government Order nor the rules framed for Tamil Nadu State and Subordinate Services will be applicable to the services under the Corporation of Madras so long as there is no rule framed by the Government expressly for the said Classes of officers. Hence the first contention of learned Counsel for the petitioner fails.
5. It is next contended by learned Counsel that even assuming that the Tamil Nadu State and Subordinate Services Rules are not applicable, under the Corporation rules themselves an Assistant Engineer with five years' experience is eligible for promotion to the post of Assistant Executive Engineer and a Junior Engineer with ten years of service is eligible for promotion to the very same post. A graduate is designated as Assistant Engineer and a Diploma-holder is designated as Junior Engineer. Learned Counsel contends that when the rule says, that a Junior Engineer with ten years' experience becomes eligible for promotion to the higher post of Assistant Executive Engineer, then there will be no chance for any Assistant Engineer who has got five years' experience to claim seniority over and above the Junior Engineers. According to him the relevant date has been fixed to be the date of entry into the cadre of Junior Engineers and Assistant Engineers respectively. Hence it is contended that any Junior Engineer who has completed ten years of service will automatically be senior to the Assistant Engineers who have completed only five years of service. Learned Counsel submits that it is not only arbitrary but also violative of the principles of equality enshrined in Article 14 of the Constitution of India to combine all the Assistant Engineers with five years of service and junior Engineers with ten years of service into one group and prepare a common seniority list on the basis of which promotions are to be granted. I cannot agree with this contention also.
6. So long as there is no rule prescribing any ratio or proportion for the purpose of promotion, it cannot be said that there shall not be a common seniority list. Once the Junior Engineers with ten years of service are equated to Assistant Engineers of five years of service, there cannot be any disparity as between them for the purpose of promotion or any other benefit like upgradation etc.
7. In fact this position has been made clear by a Division Bench of this Court in Writ Appeal Nos. 990 of 1984 and 154 to 158 of 1985 by Judgment dated December 21, 1989. That appeal arose out of a case in which the prescription of ratio of 3 : 1 as between Degree-holders and Diploma-holders was challenged. The challenge was upheld by the Division Bench and it was held that there is no basis for prescribing such a ratio in the absence of any specific rule by the Government to that effect. The Division Bench observed as follows :-
"The statutory Rules prescribe the qualifications and the length of the qualifying service for these feeder categories of promotion to the post of Assistant Executive Engineer. It could well be, that the State Government thought that by prescribing a longer qualifying service for diploma-holders, the initial difference in the educational qualification between them and the degree-holders would get destroyed and both would thereafter, be equally eligible for promotion to the higher grade and the only rule that should cover this field thereafter, is the rule of strict seniority."
Ultimately the Bench allowed the writ appeals and directed the Corporation of Madras to re-fix seniority and consider promotions strictly in accordance with the statutory rules framed under Section 86 of the Act. The direction given by the Bench does not leave any matter in doubt and the present contention of the learned Counsel for the petitioner has to fail simply because of the direction given by the Bench.
8. Even otherwise, I am of the view that in the absence of any rule framed by the Government prescribing ratio or proportion, the contention that there shall not be a common seniority list is without any substance. Once it is held that the Diploma-holders with ten years of service are equal to Degree-holders with five years of service, the only course which can be adopted in the absence of any other rule is to fix a common seniority list of eligible persons from all the posts.
9. Mr. Thiagarajan, learned senior Advocate, relies on a Judgment of mine in Writ Petition Nos. 4115 of 1986 and 4190 of 1984, dated October 25, 1988. The relevant observation in that Judgment is as follows :-
"When once the Diploma-holder is treated as equal to a Degree-holder for the purpose of promotion, then, there cannot be any discrimination between him and a Degree-holder for the purpose of upgradation."
That principle will apply with equal force to the present case.
10. It is also brought to my notice by Mr. Thiagarajan that common seniority list has been prevailing from as early as 1962. The first list was prepared in 1962 and the second one was prepared in 1979. The present list was prepared in 1985. Thus, in practice, the Corporation of Madras has been adopting common seniority list which is the only possible course as at present in accordance with the rules now in existence.
11. In the result, the writ petition fails and is dismissed. There will be no order as to costs.