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M.Balamurugan vs The Commissioner on 12 November, 2011

Madras High Court
M.Balamurugan vs The Commissioner on 12 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 12/11/2011

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.(MD)No.10802 of 2006
and
M.P.(MD)Nos.2/2006 and 1/2010

M.Balamurugan,
Assistant Engineer			... Petitioner

vs.

1.The Commissioner,
   Madurai City Municipal Corporation,
   Madurai-625 001.

2.The Commissioner of Municipal
   Administration, Chepauk,
   Chennai-600 005.

3.The Secretary to Government,
   Municipal Administration and Water
   Supply Department,
   Fort St. George,
   Chennai-600 009.
4.M.R.Samy
5.S.Sethuramalingam
6.S.Chandrasekar
7.S.M.Rajendran
8.S.Arasu
9.K.Mohamed Asaraf Ali
10.L.Murugesan
11.K.Ganesan
12.Thirugnanasambandan
13.B.Baliah
14.R.Alexander
15.M.Muniyandi
16.S.Kulandaivel
17.P.Maharaja
18.M.P.Manoharan
19.M.Kamaraj
   [R-4 to R-19 impleaded  as per order of this Court
    dated 21.04.2007 made in M.P.(MD)No.2 of 2007]					
					... Respondents

PRAYER

Writ Petition is filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus, to call for
the records relating to the impugned proceedings in Ma.Ni.No.1/35042/2005, dated
28.02.2006 and also the consequential order passed by him in proceedings
Ma.Ni.No.1/35042/2005, dated 13.11.2006 and the proceedings dated 12.01.2007 and
18.01.2007 in Ma.Ni.No.35042/2005 of the first respondent herein, quash the same
and consequently, direct the first respondent herein to place the petitioner as
serial No.3 in the final seniority list dated 12.01.2007 and promote the
petitioner as Assistant Executive Engineer.
[Prayer amended as per order of this Court dated 09.06.2007 made in
M.P.(MD)No.3 of 2007]

!For Petitioner	  	... Mr.D.Rajendiran
^For Respondent No.1	... Mr.M.Ravi Shankar
For Respondents 2&3	... Mr.T.S.Mohammed Mohideen
			    Additional Government Pleader
For Respondents 4to9	... Mr.T.Lajapathi Roy
For Respondent No.11	... Mr.R.Rajaraman
For Respondents 15&18   ... Mr.B.Saravanan
For Respondent No.14	... Mr.Mayil Vahana Rajendran
For Respondent No.19	... Mr.S.Visvalingam
For Respondents 10,12,
13,16,17		... No Appearance
	
				             ******
:ORDER

*******
The Writ Petition is filed by the petitioner seeking to challenge an
order passed by the Commissioner, Madurai City Municipal Corporation, Madurai,
dated 13.11.2006. By the impugned communication, the petitioner was informed
that his request for considering his case for the post of Assistant Executive
Engineers cannot be considered, as the petitioner was not senior to two persons,
who were considered for the said post and he has no right to claim any seniority
over those persons whose names were included in the panel for the post of
Assistant Executive Engineers. Challenging the same, the present Writ Petition
came to be filed.

2. When the Writ Petition came up for admission on 04.12.2006, this
Court ordered notice of motion and private notice was also ordered. Pending the
notice of motion, though the petitioner sought for an order of interim stay of
the impugned proceedings, this Court, vide order dated 27.07.2009, granted an
interim order to the effect that any promotion made out of impugned panel of
seniority is, subject to the result of the Writ Petition and considering the
facts and circumstances, Registry was directed to list the matter for final
disposal on 19.08.2009. Subsequently, the petitioner filed applications to amend
the prayer and also to implead the contesting respondents as parties to the main
Writ Petition. Both the applications were allowed. As the matter was not listed
within a reasonable period, the petitioner also filed an application for fixing
an early date. For the reasons best known, the matter was not listed.

3. In the meanwhile, the first respondent has filed a counter-
affidavit dated 02.01.2007 and the fourteenth respondent by name R.Alexandar has
also filed a counter-affidavit dated 13.08.2007 together with the typed-set of
papers containing the relevant documents in support of his counter-affidavit.

4. Heard the arguments of the learned counsel appearing on either
side.

5. The contention of the petitioner was that the post in the
Municipal Corporation is governed by the provisions of the Tami Nadu Municipal
Corporation Service Rules, 1996, which are framed in terms of Section 106 of the
Madurai City Municipal Corporation Act, 1971. Under the said rules, a person,
who was appointed in service, must complete a probation and his work should be
satisfactory for a period of two years on duty within a continuous period of
three years. Rule 4 also states that a temporary promotee to higher post cannot
be authorised by virtue of promotion, if he does not possess the qualification
prescribed for such promotion.

6. The learned counsel also produced the Special Rules relating to
Tamil Nadu Municipal Corporations Engineering and Water Supply Service Rules,
1996, by which, in Clause-I and Clause-II, posts are constituted and the post of
Assistant Engineer and Assistant Executive Engineer comes under clause-II. While
the post of Assistant Executive Engineer is in Category-1 in Group-1, the post
of Assistant Engineer is in Category-1 in Group-II. The post of Assistant
Executive Engineer is filled by promotion and the qualification prescribed was a
person must have worked as an Assistant Engineer, Junior Engineer for not less
than one year in the Engineering Department of the Corporation main Office and
not less than for a period of three years in the Ward Offices. Insofar as any
ratio for promotion to the post of Assistant Executive Engineer is concerned,
Rule 5 of the Special Rules do not prescribe any ratio and it merely states that
the Assistant Engineers and Junior Engineers shall be considered as a single
category and under Rule 6, promotion to the posts shall be made in accordance
with seniority and appointment on deputation shall be made only when no
qualified person is available in the Corporation.

7. According to the counsel, the contesting respondents, who were
shown as seniors to him for promotion to the post of Assistant Executive
Engineer, did not pass the departmental tests and did not complete their
probation, within a reasonable time. While the petitioner had passed the test as
early as on 03.06.2003, some other have passed the tests only in the year 2005.
But the Corporation, for reasons best known, did not prepare any panel for
promotion to the higher posts. If only a panel was prepared in respect of each
year, in which, vacancy will arise, then there is a possibility of the
petitioner being included in the panel. Even though he might have been shown as
junior in the earlier list, he was only a qualified person at the relevant time
for the year 2003 to be included in the panel.

8. The contention that the reason given by the Corporation for not
preparing the panel was due to the ban order by the State Government cannot be
accepted, since G.O.(Ms)No.212, Personnel and Administrative Reforms (P)
Department, dated 29.11.2001, is applicable only to direct recruitment and not
to promotion and the letter following the said Government Order dated 19.12.2001
was relied upon to state that there was a specific exclusion of promotion from
the ban order and, therefore, the Corporation’s action in not preparing the
panel for the years 2003 and 2004 ought not to be accepted and the respondents
should be directed to prepare a panel in respect of those years and if there is
any vacancy for the said post, then the petitioner should be accommodated
against the said post.

9. Reliance was only placed upon a consequential letter followed by
the Government Order. But the intention of the Government Order itself was to
effect economy in expenditure and also in filling up of vacant posts to be
avoided and only exemption was granted to the post of teachers, doctors and
police. Therefore, the Corporation, either on correct understanding or on an
extended understanding of the said Government Order, decides not to fill up the
posts at the relevant time. The petitioner cannot be heard to contend all those
things. In essence, he cannot direct the Corporation to create a vacancy to
accommodate the petitioner, if there was no vacancy at the relevant time or if
the Corporation chooses not to fill up the post in a particular year, for the
reasons best known to them.

10. The contention that subsequently the persons, who were shown
above in the seniority list, had completed the probation is not a relevant
factor for the purpose of deciding as to whether the petitioner was a senior or
junior to the contesting respondents. On the other hand, Rule 5 cited by the
learned counsel for the petitioner clearly states that in the matter of filling
up the posts of Assistant Executive Engineers, all the posts of Assistant
Engineers and Junior Engineers will be considered as single category and Rule 6
clearly states that the posts shall be filled up in accordance with seniority.
Therefore, the only question to be decided was whether the petitioner was senior
to the persons, who are shown in the seniority list prepared and exhibited on
12.01.2007. The list produced by the fourteenth respondent clearly shows that
the fourteenth respondent was in serial No.12, while the petitioner is in serial
No.18. Even though both the persons were appointed on the same day, the
seniority list that has been exhibited right from the date of appointment shows
that the fourteenth respondent was senior to the petitioner, who is only in the
eighteenth rank. In the present case, the petitioner does not contend that at
the time of appointment when the Corporation prepared seniority list, such
persons have been shown as senior to him. Such questions cannot be gone into in
this Writ Petition and that is not a prayer of the petitioner.

11. On the other hand, the ground urged by the petitioner was that
he had completed probation much earlier to others and, therefore, he should be
shown as senior. This argument does not hold good. The preparation of seniority
list is different from the preparation of the panel for higher posts. The
completion of probation or otherwise will have no relevance in the matter of
preparation of seniority list, whereas in the preparation of panel for higher
posts, completion of probation may have a bearing on the said panel. In this
context, the counter-affidavit filed by the Corporation clearly refers to Rule
17 of the Tamil Nadu Municipal Corporation Service Rules to the effect that any
delay in passing of orders of completion of probation shall not monetarily
affect the approved probationers and all individuals, who have passed
departmental tests within the time provided under the Service Rules, were
declared as approved probationers by the Council of the Corporation. Therefore,
the question is whether the petitioner or the contesting respondents were
approved probationers on the day when the panel was prepared. Therefore,
promotion can be effected only in terms of the relevant rules and the contention
of the petitioner cannot be accepted.

12. In paragraph No.9 of the counter, it is stated that on
01.04.2006, which was a crucial date for preparing the seniority list for the
post of Assistant Executive Engineers, three persons are eligible, viz.,
V.Mohandoss, K.N.Damotharan and A.Mathuram and the remaining two posts were
vacant. Since the above said Mohandoss and Damotharan were included in the panel
for the existing two vacancies for the post of Executive Engineer and there was
a proposal for sanctioning five additional posts under Jawaharlal Nehru Urban
Renewal Mission Scheme, the Corporation prepared a panel containing nine
eligible members for the post of Assistant Executive Engineers from the final
seniority list of Assistant Engineers and Junior Engineers dated 18.07.2006. It
was sent to the State Government for approval. It was also stated that the
fourteenth respondent by name Alexander had passed the departmental test in the
year 2003. Therefore, his name could not be included in the panel for the post
of Assistant Executive Engineer without complying with the pre-condition of
working as Assistant Engineer in the main office for a period of minimum one
year.

13. The contention that the Corporation did not prepare the panels
deliberately for the year 2003, 2004 and 2005 was denied. It was stated that
even at the relevant time, two posts of Assistant Engineers were vacant. But, at
the relevant time, the petitioner was not eligible for being included in the
panel for the post of Assistant Executive Engineers. For the period from 2003 to
2006, there was a ban order by the State Government and even if any panel is
prepared, it could not have been given effect to, in view of the ban order. The
similar stand was taken by the fourteenth respondent in his counter affidavit.
The fourteenth respondent also additionally stated that at the relevant time,
the petitioner was kept under suspension for certain misconduct. However, it is
unnecessary to go into the other details, since the petitioner has not made out
any case either for altering the seniority list or for inclusion of his name in
the panel on the earlier years.

14. In view of the reasons stated above, the Writ Petition cannot be
countenanced by this Court. Hence, the Writ Petition stands dismissed.
Consequently, the connected miscellaneous petitions are closed. No costs.

SML

To

1.The Commissioner,
Madurai City Municipal Corporation,
Madurai-625 001.

2.The Commissioner of Municipal
Administration, Chepauk,
Chennai-600 005.

3.The Secretary to Government,
Municipal Administration and Water
Supply Department,
Fort St. George,
Chennai-600 009.

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