PETITIONER: K. RAJAN Vs. RESPONDENT: STATE OF T.N. DATE OF JUDGMENT03/03/1993 BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1994 SCC Supl. (1) 119 JT 1993 Supl. 80 1993 SCALE (1)764 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
G.N. RAY, J.- Leave granted.
2.Pursuant to the notice given on the special leave
petition, the learned counsel for the respondent-State of
Tamil Nadu and another have appeared and have also filed
counter-affidavit. At the hearing, the learned counsel for
the parties have also made submissions. The appeal is
directed against the decision of the Tamil Nadu
Administrative Tribunal on September 17, 1991 disposing of
the Writ Petition No. 5717 of 1988 received from the High
Court of Tamil Nadu Section 29 of the Administrative
Tribunals Act and renumbered as T.A. No.11 of 1988.
3.The appellant, Shri K. Rajan, joined the Commercial
Taxes Department as a Joint Commercial Tax Officer in the
year 1966. He was promoted as Commercial Tax Officer in
1972. It is the case of the appellant that right from 1972
he was denied further promotions although his juniors were
given promotion. The appellant has also contended that in
the selection test for appointment to the post of Joint
Commercial Tax Officer he topped the list and he has a good
academic career but his promotion was unjustly denied as he
incurred the displeasure of the higher authorities. In
1978, he moved Writ Petition No. 4599 of 1978 in the High
Court of Madras praying for a writ of mandamus directing the
respondents to promote him to the post of Deputy
Commissioner. The learned Single Judge, however, dismissed
the writ petition and the appellant thereafter preferred an
appeal before the Division Bench being Writ Appeal No. 315
of 1982. Such appeal was allowed by the Division Bench of
the Madras High Court on July 17, 1986 and the Division
Bench directed the respondents to give the appellant
retrospective promotion from 1976 with all attendant
monetary benefit and to give further promotion to the
appellant if such promotion had been due to him. In view of
such direction of the High Court, the administration passed
necessary orders of promotion with retrospective effect from
1976 promoting the appellant as Assistant Commissioner and
thereafter as Deputy Commissioner with effect from December
3, 1986 without prejudice to the rights and contentions of
the State Government to take appropriate course of action on
the basis of the decision to be rendered by this Court in
the special leave petition moved against the decision of the
Division Bench of the Madras High Court. It appears that
this Court passed an ex parte stay in favour of the
department in the special leave petition. Such special
leave petition was disposed of on March 12, 1987 by
directing that the State Government should consider the
question of promotion of the said Shri Rajan to such
promotional post to which he would be eligible and that the
promotion would take effect prospectively. It was further
indicated in the judgment of this Court that in modification
of the judgment of the High Court the promotion would take
effect from the date on which the necessary orders would be
passed. This Court also gave liberty to the appellant, Shri
Rajan, to make representation to the State Government in the
matter of inter se seniority when he would be given
promotion.
4.The appellant thereafter moved another writ petition in
the Madras High Court being Writ Petition No. 5717 of 1988
inter alia contending that despite the
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decision of the Division Bench of the Madras High Court
since modified by this Court in the special leave petition
as stated hereinbefore the respondents failed and neglected
to give effect to the said decisions rendered in his favour
by denying him due promotions and appropriate seniority.
Such writ petition, however, was transferred to the Tamil
Nadu Administrative Tribunal and the said writ petition was
renumbered as T.A. No. 11 of 1988. The appellant’s main
contention before the Administrative Tribunal was that since
the post of Commercial Tax Officer was upgraded as Assistant
Commissioner of Commercial Taxes, he automatically became
Assistant Commissioner of Commercial Taxes. Thereafter, if
any promotion was due to him, such promotion was to be given
to the post of Deputy Commissioner which is a promotional
post from the post of Assistant Commissioner of Commercial
Taxes. The appellant contended that despite his brilliant
performances and securing the first position in the merit
list at the time of entering the service as Joint Commercial
Tax Officer, he had been denied his promotion and had been
compelled to work in the department as Commercial Tax
Officer although a large number of officers who were junior
to the appellant, had been promoted as Assistant
Commissioner of Commercial Taxes and thereafter many of them
had also been promoted as Deputy Commissioner of Commercial
Taxes. The appellant contended that some departmental
proceedings were mala fide initiated against him and such
proceedings were deliberately kept pending against him so as
to deny him his due promotion. The respondents, however,
contended that the appellant, Shri Rajan, had been laboring
under a misconception and had been erroneously contending
that the post of Commercial Tax Officer has been re-
designated as Assistant Commissioner of Commercial Taxes and
as such he had also been redesignated as Assistant
Commissioner of Commercial Taxes. Hence, if any promotion
is to be given to the said appellant, he is to be promoted
to the post of Deputy Commissioner. The respondents
contended that the posts of Commercial Tax Officers were not
redesignated as Assistant Commissioner of Commercial Taxes.
Out of 47 posts of Commercial Tax Officers only 37 posts
were upgraded to the post of Assistant Commissioner of
Commercial Taxes. Such post of Assistant Commissioner of
Commercial Taxes is a higher post with higher pay scale
attached to it. The cases of the eligible Commercial Tax
Officers were considered and on such consideration they were
promoted to the said 37 upgraded posts. Since there were
number of allegations against the appellant Shri Rajan, and
enquiries had been pending against him, he was not
considered fit for promotion to the said upgraded post. It
was contended by the respondents that pursuant to the
direction of this Court in disposing of the said special
leave petition, the case of the appellant was taken into
consideration and he was given promotion to the post of
Assistant Commissioner of Commercial Taxes. In the
aforesaid circumstances, there was no occasion to give him a
further promotion of Deputy Commissioner automatically and
the question of promotion to the higher post of Deputy
Commissioner would be considered as and when the promotion
would be due to the appellant.
5.The Administrative Tribunal, Tamil Nadu accepted the
said contention of the respondents and dismissed the said
T.A. No. 11 of 1988, vide judgment passed on September 17,
1991. The Tribunal held that the appellant was not
justified in contending that the post of Commercial Tax
Officer held by him had
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been upgraded as the Assistant Commissioner of Commercial
Taxes and because of such upgradation he automatically
became Assistant Commissioner of Commercial Taxes and
consequently eligible for promotion to higher post. As
aforesaid, this appeal is directed against such decision of
the Administrative Tribunal.
6.Mr S.K. Patri, learned counsel for the appellant, has
submitted that the directions of the Division Bench of the
Madras High Court were not set aside but this Court in
disposing of the special leave petition has only modified
the decision of the Division Bench of the Madras High Court
to the extent that promotion of the appellant was not to be
given with retrospective effect from 1976, but such
promotion was to be given prospectively with effect from the
date when the order will be passed. This Court has not held
that the appellant was not entitled to get the promotion to
the post of Deputy Commissioner and it has also not been
indicated by this Court that he was only entitled to get
promotion to the post of Assistant Commissioner of
Commercial Taxes from a prospective date. The learned
counsel has contended that the decision of this Court in
disposing of the special leave petition is sought to be
wrongly construed by the department in order to deny the
legitimate promotion due to the appellant. He has submitted
that the Division Bench of the High Court of Madras clearly
held that in order to deny legitimate promotion due to the
appellant, the question of promotion of the appellant had
been kept pending for years and the High Court also held
that there was no bar in giving promotion to the appellant
despite the pendency of such departmental enquiry. Such
finding of the High Court not having been specifically
reversed by this Court, it must be held that the said
finding has been upheld by this Court. Therefore, the
appellant was entitled to be treated as Assistant
Commissioner of Commercial Taxes in view of the upgradation
of Commercial Tax Officer. The appellant is, therefore,
entitled to get further promotion as Deputy Commissioner of
Commercial Taxes, more so, when a number of juniors to the
appellant had been given such promotion. Mr Patri has
contended that even assuming that all the 47 posts of
Commercial Tax Officers were not upgraded to the posts of
Assistant Commissioner of Commercial Taxes, in the facts and
circumstances of the case, the denial of promotion to the
appellant to the upgraded post of Assistant Commissioner of
Commercial taxes on the footing of pendency of enquiry
proceedings was unjust and mala fide as held by the High
Court and the respondents are, therefore, under an
obligation to give the appellant the promotion to the post
of Assistant Commissioner of Commercial Taxes when his
juniors were promoted in order to do justice to the
appellant. He has submitted that the learned Tribunal has
misconceived the facts and circumstances of the case and the
decision rendered by the learned Tribunal has resulted in a
gross miscarriage of justice to the appellant.
7.The learned counsel for the respondents has, however,
submitted that the appellant had been laboring under a
misconception that the post of Commercial Tax Officer had
been upgraded to the post of Assistant Commissioner of
Commercial Taxes and in view of such upgradation he
automatically became Assistant Commissioner of Commercial
Taxes. Such assertion is factually incorrect. Only 37
posts of Commercial Tax Officers were upgraded to the
superior post of Assistant Commissioner of Commercial Taxes
drawing higher scale of pay. The post of Assistant
Commissioner of
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Commercial Taxes is superior post to the post of Commercial
Tax Officer and the said post is the promotional post for
the Commercial Tax Officer. He has also contended that the
appellant cannot claim promotion to a higher post as a
matter of right simply because he was senior in the grade or
had done better in the selection test for being recruited in
the grade.
8.When 37 posts of Commercial Tax Officers were upgraded
the case of eligible officers were considered by the
department but as there were complaints against the
appellant and enquiries on such complaints were pending, he
was not considered fit for promotion to the upgraded post.
Learned counsel for the respondent has submitted that the
departmental proceedings have since been concluded and minor
punishment has been awarded to the appellant. The question
of promotion has been considered and the appellant has been
given promotion to the next higher grade, namely to the post
of Assistant Commissioner of Commercial Taxes. He has
submitted that the decision of the Division Bench of the
High Court has not been approved by this Court in the
special leave petition. It was only directed by this Court
that the appellant should be given promotion with effect
from prospective date. Such direction of this Court has
been complied with. The appellant is not entitled to any
further promotion, as claimed by him. He has submitted that
the learned Tribunal has correctly appreciated the facts of
the case and has dismissed the case of the appellant on
cogent reasons. Hence, no interference is called for by
this Court against the impugned decision of the learned
Tribunal.
9.After giving our anxious consideration to the facts and
circumstances of the case it appears to us that the
contention of the appellant that he became Assistant
Commissioner of Commercial Taxes in view of the upgradation
of the post is not correct. All the posts of Commercial Tax
Officers had not been upgraded but only 37 posts of
Commercial Tax Officers were upgraded and promotions to the
upgraded posts of Assistant Commissioner of Commercial Taxes
were given to eligible officers on considering their service
records. It appears that as there were various complaints
against the appellant and enquiries had been pending against
him, the concerned authority did not consider him fit to be
promoted to the upgraded posts. There is force in the
contention of the learned counsel for the respondent that
the appellant cannot claim promotion as a matter of right.
It is true the appellant has a good academic record and he
also secured the first position in the selection test for
entering the service of the Joint Commercial Tax Officer but
such fact by itself does not entitle the appellant to claim
departmental promotion as a matter of course because such
promotion is to be given in consideration of merit and
performance. It is unfortunate that the departmental
proceedings against the appellant had been kept pending for
long. Such proceedings have since been concluded and the
appellant has been given minor punishment in such
departmental proceedings. The case of the appellant has
been considered for the promotion to the next higher post
and he has been given promotion as Assistant Commissioner of
Commercial Taxes which is the higher post. The department
has contended that the question of further promotion of the
appellant to the next higher post namely the post of Deputy
Commissioner will be considered. In the aforesaid facts the
direction of this Court has been complied with. As the
appellant was not found eligible to be promoted to the
upgraded post of Assistant Commissioner of Commercial Taxes
the question of giving promotion
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to next higher grade to the petitioner as a matter of
course did not arise. No interference is therefore called
for against the decision of the Tribunal and the appeal
therefore fails and is dismissed without any order as to
costs.
10.We may however observe that the appellant has suffered
substantial prejudice because the departmental proceeding
had been kept pending for long as a result of which he was
not considered fit for promotion to the post of Assistant
Commissioner. In the facts of the case, it appears to us
that it is only desirable that the concerned authorities
should consider the case of the appellant for further
promotion to the post of Deputy Commissioner as early as
practicable with such sympathy as the appellant may deserve.
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