IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.11.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No. 2171 of 2009 and M.P.No.1 of 2010 1. S.Muthu 2. P.Thirumoorthy 3. K.K.Thangaval 4. K.Shanmugham 5. S.Ramachandran 6. P.P.Murugesan 7. G.M.Shanmugham 8. V.Subramaniam 9. K.Balasubramaniam 10. S.Neelamegam 11. N.Saravanan 12. E.Palanisamy 13. M.Karthikeyan 14. P.Pillayarsamy 15. P.K.Shanmugham 16. A.Sellamuthu 17. M.Madhu 18. M.Manickam 19. V.T.Sundaram 20. S.Shanmugham 21. R.Chandrasekaran 22. M.Raja 23. G.Rajendran 24. K.A.Nagarajan 25. M.Selvam 26. T.Natraj 27. K.Karunakaran 28. K.Raja .. Petitioners Vs. 1. The Tamil Nadu State Transport Corporation, (Coimbatore) Ltd., rep.by its Managing Director, 37, Mettupalayam Raod, Coimbatore-641 043. 2. The General Manager, The Tamil Nadu State Transport Corporation, (Coimbatore) Ltd., Erode Region, Chennimalai Road, Erode-638 001. 3. A.Kailasam 4. A.SUbramanian 5. G.Manaharan 6. V.Madheswaran 7. S.Shanmugham 8. T.Karunanithi 9. T.Arunagiri .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records of the second respondent culminating in the impugned order in Ref.No.2395/P4/PD1/TNSTC(CBE)/ERD/08 dated 06.08.2008, to quash the same and to direct the respondents 1 and 2 to promote the Senior Assistants/ the petitioners herein as per the seniority list for the post of Superintendents. For Petitioners : M/s.N.Karthikeyan For Respondents : M/s. Rita Chandrasekaran for RR 1 and 2 M/s.M.Selvam for RR3 to 8 ORDER
The writ petition is filed to quash the order of the second respondent in Ref.No.2395/P4/PD1/TNSTC(CBE)/ERD/08 dated 06.08.2008 and to direct the respondents 1 and 2 herein to promote the petitioners in the cadre of Senior Assistants to the post of Superintendents as per the seniority list.
2.The brief facts which are relevant for consideration herein are as follows:
The petitioners were originally appointed as Conductors in erstwhile Cheran Transport Corporation Limited during 1974. In pursuance of merger of all Transport Corporations in Tamil Nadu, the activities of all transport Corporations, are now vested with the first respondent. While so, the conductors were called for interview and then selected and re-designated as Clerk in the administrative side during 1975. In the administrative cadre designation of various posts, seniority and promotion are governed by Common Service Rules. During 1975, Longevity Pay Scheme Settlement was introduced, as per which, the employees in Working Group/Miscellaneous groups shall be entitled to, after completing the length of service prescribed for each category, review of their performance by the competent authority and for advancement to the next higher scale on the basis of such review and there are totally 3 reviews for any category in a working group and the length of service for 3 reviews is 6 + 8 + 10 years respectively.
3.The combined reading of relevant common service rules and appendix II would show that the feeding category for Assistant is Senior Clerks and Junior Assistant and while Senior clerks are in the promotional cadre from the post of clerks and Junior Assistants are appointed by direct recruitment. While the educational qualification for clerks is only S.S.L.C, the educational qualification for Junior Assistant is minimum degree. From the facts made available herein, the stages of promotion for the posts of Clerk and Junior Assistant are as follows:
cadre
First review
Second review
Third review
Clerks
6 years
Senior Clerks
8 years
Assistant
10 years
Senior Assistant
cadre
First review
Second review
Third review
Junior
Assistant
6 years
Assistant
8 years
Senior Assistant
10 years
Selection Grade Senior Assistant
The above tabular Column would show that the employees in the cadre of Clerks would reach the cadre of Senior Assistant after completing three reviews of 24 years (6 + 8 + 10 years) of total length of service. Whereas, the employees who are directly recruited as Junior Assistant would reach the cadre of Senior Assistant after two review of 14 years ( 6 + 8) of total length of service and after completing third review of 10 years would reach the cadre of selection grade Senior Assistant.
4.It is not in dispute that the Superintendent cadre is supervisory in nature and Rule 60 deals with promotions to posts in supervisory groups, as per which, the promotions to any category of post in the managerial cadre or supervisory group shall be based on merit, ability, regularity of attendance, past performance and general suitability and shall be filled up from among those in the highest level in the working groups under the respective department, who possess the prescribed qualification and experience and have acquired the special qualification and/or passed the tests, if any, prescribed for such promotion. As far as the Superintendent Post is concerned, the mode of appointment to the same is by way of promotion from and among Senior Assistants.
5.The petitioners have in this writ petition challenged the promotion given to the respondents 3 to 8. According to the learned counsel for the petitioners, the respondents 3 to 8 were in the seniority list drawn during 2008, below the petitioners, whereas, they are by the impugned order promoted as Superintendent by overlooking the petitioners’ seniority and such promotion given to the respondents 3 to 8 is contrary to Longevity Pay Scheme and Common Service Rules and is arbitrary, unfair and is in violation of Article 14 of the Constitution of India.
6.Per contra, the learned standing counsel for the respondents would strenuously argue that the petitioners having been appointed directly as Junior Assistants reached the cadre of Senior Assistant much before the petitioners and they are designated as Special Grade Senior Assistant after three reviews and were hence suitably considered to the post of Superintendent which is supervisory in nature.
7.I have heard the rival submissions made on both sides and perused the materials available on record.
8.Both the learned counsel for the petitioners and the learned standing counsel for the respondents have produced two seniority lists relating to the petitioners and the respondents 3 to 8 in the cadre of Senior Assistant in support of their respective contentions that the petitioners on one hand and the respondents 3 to 8 on other hand are seniors to each other. Before going into the correctness of their claim on the basis of the above documents, the nature of the claim made in the writ petition is to be appreciated first.
9.In this writ petition, the petitioners have not challenged the relevant common service rules relating to review for advancement from one scale to next higher scale, length of service prescribed for such advancement, educational qualification for the post of clerks and number of levels and number of reviews, length of service prescribed for each review for advancement for two different Cadres from clerks and Junior Assistant to the next higher scale of Assistant and Senior Assistant.
10.As a matter of fact, the petitioners have in para 3 at page 6 of the affidavit sworn in by the first petitioner furnished the particulars regarding the number of reviews, the date on which he became eligible for each review and the next higher cadre in so far as the first petitioner is concerned. As per the particulars so furnished, the first petitioner who was one among the employees originally appointed as Conductors during 1974 and re-designated as Clerks on 1975 onwards reached the cadre of Senior Clerk, Assistant and Senior Assistant respectively after completing 1 to 3 reviews of 6 years on 1.2.1981, 8 years on 1.2.1989 and 10 years on 1.2.1999 respectively and thus, he became eligible for promotion to the post of Superintendent as on 1.2.1999. That being the claim made in the writ petition, the argument advanced by the learned counsel for the petitioner that the petitioners’ seniority is to be counted not from the date on which they became clerks, but the date on which they entered in service, is totally contrary to the stand taken by the petitioners in the writ petition and cannot at all be entertained. The categorical stand made in the writ petition is that they are eligible to be considered for promotion as per common service rules after completing three reviews of 6+ 8 +10 years. Only in this factual matrix, the claim of the petitioners for promotion to the post of Superintendent over and above the respondents 3 to 8 is to be considered.
11.As already referred to, two sets of seniority list is made available before this Court. The seniority list styled as Administration Staff Seniority List TNSTC (CBE) -Erode Region relied upon by the petitioners is enclosed at pages 57 to 61 of typed set of papers. The other seniority list styled as Seniority List (combined graduates and non-graduates) pooled Seniority at Senior Assistant level is produced on the side of the respondents during the course of hearing. Both the seniority lists contained the particulars of name of the employees, designation, date of entry into service, date of regularisation, date of first review, second review and third review and their respective cadre after each review etc. The seniority list produced on the respondents among other particulars shows in the last column the date on which the petitioners and the respondents reached the level of Senior Assistants. In the seniority list relied on by the petitioners, the petitioners are placed first and the respondents 3 to 8 are placed below the petitioners as sl.nos 56 to 60 and 62. However, the designation of the petitioners and the respondents 3 to 8 and few others are given as Senior Assistant and Selection Grade Senior Assistant. Whereas, in other seniority list produced on the side of the department, which is drawn as on 1.6.2008 the respondents 3 to 8 are shown as sl.nos.4 to 9, whereas, the petitioners are shown as sl.nos.12, 32, 36, 39, 41, 42, 61, 62, 64, 68, 69, 70, 73, 87, 121, 154, 170, 189, 197, 229, 241, 244, 248, 249, 250, 254, 258 and 268. As rightly pointed out by the learned counsel for the respondents, the claim of the petitioners cannot be decided merely on the basis of sl.nos. given in the list produced on the side of the petitioners and the same is to be considered depending upon the date on which the petitioners and the contesting respondents reached the cadre of Senior Assistants. It is also pointed out by the learned standing counsel for the respondents that though the list produced on the side of the petitioners is given the caption seniority list, it is not actually seniority list, but it is only a list showing the list of Administration Staff List in Erode Region. I find considerable force in the argument so advanced on the side of the learned counsel for the respondents.
12.The stand admitted on both sides is that feeder category for promotion to the post of Superintendent is Senior Assistant. It is equally not in dispute that the employees like that of the petitioners were originally re-designated as clerks reached the stage of Senior Assistant after completing 24 years of length of service and after three reviews, whereas the employees like that of the respondents 3 to 8 who are directly recruited as Junior Assistant reached the cadre of Senior Assistant after completing 14 years and after two reviews. The perusal of both seniority lists would reveal that the particulars furnished in both seniority lists, number of reviews with regard to the petitioners and the respondents 3 to 8 are one and the same and based on such particulars, the date on which the petitioners and the respondents 3 to 8 reached the Senior Assistant cadre are given in two separate tabular column as follows:
Junior Assistant
First review
Second review
Third review
6 years Assistant
8 years Senior Assistant
10 years Selection Grade Sr. Assistant
1.11.1988
1.11.1988
1.11.1988
1.11.1988
1.11.1988
1.11.1988
1.11.1996
1.11.1996
1.11.1996
1.11.1996
1.11.1996
1.11.1996
1.11.2006
1.11.2006
1.11.2006
1.11.2006
1.11.2006
1.11.2006
Clerks
First review
Second review
Third review
6 years Senior Clerks
8 years Assistant
10 years Senior Assistant
1.02.1981
1.02.1981
1.02.1981
1.02.1981
1.11.1981
1.11.1981
1.02.1982
1.02.1982
1.08.1982
1.08.1982
1.08.1982
1.08.1984
1.02.1983
1.08.1983
1.11.1983
1.08.1984
1.11.1981
1.02.1985
1.11.1984
1.08.1987
1.02.1988
1.02.1988
1.02.1988
1.02.1988
1.08.1988
1.02.1988
1.08.1988
1.11.1988
1.05.1987
1.02.1989
1.05.1989
1.02.1989
1.11.1989
1.11.1989
1.05.1990
1.05.1990
1.08.1990
1.11.1990
1.11.1990
1.11.1992
1.02.1991
1.08.1991
1.02.1992
1.08.1992
1.11.1992
1.02.1993
1.11.1992
1.08.1995
1.02.1996
1.02.1996
1.05.1996
1.05.1996
1.08.1996
1.08.1996
1.08.1996
1.02.1997
1.05.1997
1.02.1999
1.08.1999
1.11.1999
1.11.1999
1.11.1999
1.05.2000
1.05.2000
1.08.2000
1.11.2000
1.11.2000
1.11.2000
1.02.2001
1.08.2001
1.05.2002
1.11.2002
1.02.2003
1.05.2003
1.08.2003
1.08.2005
1.02.2006
1.05.2006
1.08.2006
1.08.2006
1.08.2006
1.11.2006
1.11.2006
1.05.2007
13. Thus the combined study of dates on which the promotees/respondents 3 to 8 and the petitioners reached the stage of Senior Assistant would reveal that the respondents 3 to 8 reached the cadre of Senior Assistant during 1996 and they reached the cadre of Selection Grade Senior Assistant during 2006, whereas the petitioners reached the cadre of Senior Assistant between 1997 to 2007. As rightly argued by the learned counsel for the respondents, as the promotion to the post of Superintendent cadre is based on qualification, experience and special qualification and as the respondents 3 to 8 have reached the feeder category and reached next special category much before the petitioners reaching feeder category, they are rightly considered first for promotion to the post of Superintendent. As the respondents 3 to 8 become seniors, then the petitioners in the cadre of Senior Assistant as well as in the cadre of selection grade senior Assistant, they are first considered for promotion over and above the petitioners, as such, the contention of the learned counsel for the petitioners that the respondents 3 to 8 were given promotion overlooking the seniority of the petitioners is quite baseless and unfounded. The promotion given to the respondents 3 to 8 is strictly in accordance with the common service rules and no reason much less valid reason available to entertain the grievance raised by the petitioners in the writ petition.
14.The learned counsel for the petitioners has also sought to justify the claim on the basis of unreported judgment dated 13.10.1999 made in batch of W.P.No.17096 to 17104 of 1994 following the earlier Division Bench judgment in W.A.No.363 of 1998 dated 13.8.98, wherein, the Hon’ble Division Bench and the learned Single Judge of our High court upheld the claim of the petitioners therein for being considered to the post of Superintendent after two reviews of 6 + 8 years. As rightly argued by the learned standing counsel for the respondents, the claim made in the earlier writ petitions and writ appeals are factually distinguishable. The reading of the judgment would reveal that the petitioners in the earlier cases were re-designated as Junior Assistant. When they are denied the benefit of first two reviews, on the ground of mode of entry into the service as Junior Assistant, the same was challenged before our High court and our High court has held that irrespective of mode of entry, the persons on equal cadre and similarly placed persons shall be entitled for similar benefits and the conductors who have re-designated as Junior Assistants after having successfully completing the selection process, are hence entitled to the benefit of reviews as that of the directly recruited Junior Assistants and for being considered for promotion as Superintendent after completing two reviews of 6 + 8 years. Whereas, the petitioners herein are re-designated as clerks and have to complete 6 years, before their first review to be promoted as senior Clerks and their claim cannot be equated to the claim made in the earlier writ proceedings by the employees in the cadre of Junior Assistant. As a matter of fact, the orders made in the earlier writ petitions would only support the claim of the respondents 3 to 8 herein. Thus, when the petitioners based their claim for promotion only as per common service rules and when the promotion given to the respondents 3 to 8 is also in strictly in accordance with common service rules, the petitioners cannot be allowed to challenge the promotion given to the respondents 3 to 8 and the petitioners are hence dis-entitled to get any relief in this writ petition.
15.In the result, the writ petition stands dismissed. No costs. Consequently, connected Miscellaneous petition is closed.
1-11-2010
Internet : Yes
Index : Yes
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To
1.The Managing Director,
Tamil Nadu State Transport Corporation,
(Coimbatore) Ltd.,
37, Mettupalayam Raod, Coimbatore-641 043.
2.The General Manager,
The Tamil Nadu State Transport Corporation,
(Coimbatore) Ltd., Erode Region,
Chennimalai Road, Erode-638 001.
K.B.K.VASUKI, J.
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W.P.No.2171 of 2009
01-11-2010