?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 12/11/2010 *CORAM The Honourable Mr.JUSTICE K. MOHANRAM and The Honourable Mr.JUSTICE S. PALANIVELU +WA.1103 of 2002 #TTDC Ltd $S.Purushothaman !FOR PETITIONER : Mr.V.Karthik ^FOR RESPONDENT : V.Ajay Khose :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.11.2010
Coram :-
The Honourable Mr.JUSTICE K. MOHANRAM
and
The Honourable Mr.JUSTICE S. PALANIVELU
W.A.Nos.1103 and 1104 of 2002
and W.A.M.P.Nos.1148 of 2006
and
W.A.Nos.3401 to 3403 of 2004
and W.A.M.P.Nos.6392 to 6394 of 2004
1. Tamilnadu Tourism Development
Corporation Limited
Rep.by its Managing Director,
2. The Secretary-cum-Administrative Officer,
Tamil Nadu Tourism Development
Corporation Limited .. Appellants
[in W.A.No.1103/2002]
1. Tamilnadu Tourism Development
Corporation Limited
Rep.by its Managing Director,
2. The General Manager,
Tamil Nadu Tourism Development
Corporation Limited .. Appellant
[in W.A.No.1104/2002]
Tamilnadu Tourism Development
Corporation Limited
Rep.by its Managing Director .. Appellant
[in W.A.Nos.3401, 3405 and 3406/2004]
vs
1.S.Purushothaman
2.S.U.Syed Ahamed
3.Tmt.M.Geetha
4.Tmt.R.Mala
5.P.Durairaj
6.Tmt.G.K.Vaijayanthimala
7.R.Chandrasekaran
8.S.Seshakumar
9.S.Antony
10.V.Kubendran
11.T.Packianathan Jerome
12.Tmt.Esther David .. Respondents
[in W.A.No.1103/2002]
1.K.Anamalai
2.S.U.Syed Ahamed
3.S.Purushothaman
4.G.Ranganathan
5.S.V.Abiraman
6.S.Baskaran
7.S.Bosco
8.G.Suryanarayanan
9.A.Muthukrishnan
10.S.Rathinakumar
11.R.Babu Singh
12.S.Sivaraj
13.N.Devaaprakash Babu
14.B.Nagaraju
15.N.Ravi
16.A.Thirunavukkarasu
17.M.Thilagaraj
18.R.Pattabiraman
19.Tmt.P.R.Vimala
20.J.Haridoss
21.K.Sivaraman
22.V.Varadarajan
23.S.Jayaprakash
24.R.Muthukrishna Achari
25.Tmt.M.Geetha
26.R.Mala
27.P.Durairaj
28.Tmt.G.K.Vaijayanthimala
29.R.Chandrasekaran
30.S.seshakumar
31.S.Anthony Ravichandran
32.V.Kubendran
33.T.Packianathan
34.Tmt.Esther David .. Respondents
[in W.A.No.1104/2002]
S. Purushothaman .. Respondent
[in W.A.No.3401/2004]
K.Annamalai .. Respondent
[in W.A.No.3402/2004]
S.Syed Ahmed .. Respondent
[in W.A.No.3403/2004]
Writ Appeals filed under Clause 15 of the Letters Patent against the common order passed in Writ Petition Nos.12904 and 12905 of 1991 dated 09.08.2001 and W.P.Nos.10447 to 10449 of 2003 dated 22.10.2003.
For Appellant : Mr.V.Karthik [in all W.As.] for M/s.T.S. Gopalan & Co For Respondents : Mr.V. Ajay Khose for sole respondent in W.A.No.3401 to 3403/02 for R1 & R2 in W.A.No.1103/02 for R2 & R3 in W.A.No.1104/02 Mr.A.Jenasenan for R12 & R15 in W.A.No.1104/02 and for R1, R4 to R11, R13, R14, R16 to R34 in W.A.No.1104/02 given up. COMMON JUDGMENT (Judgment of the Court was delivered by S.PALANIVELU,J.) 1. The factual back ground leading to the filing of these writ appeals is recounted as under:-
1.(a) The respondents/writ petitioners were appointed in the appellant’s Corporation in the Posts which form feeder category for promotion as Assistant. The writ petitioner by name Syed Ahmed in W.P.No.10449 of 2003 was initially appointed as Workshop Clerk on consolidated pay from 15.07.1976. Afterwards, he was promoted and his scale of pay from 01.12.1979 was on par with Junior Assistant. He was promoted to the category of Assistant. Another writ petitioner by name Purushothaman was inducted as Sales Assistant on 25.01.1977 on consolidated pay. Time Scale of Pay was given to him with effect from 01.12.1979 on par with Junior Assistant. He was made as Assistant in March 1985. Annamalai yet another writ petitioner joined as Typist which is in the equal cadre of Junior Assistant, on 21.9.1972. He was promoted to the cadre of Assistant on 27.9.1984. They were not graduates at the time of promotion to the cadre of Assistant. They did not possess the qualification of graduation at the time of promotion as per the existing rules. The service rules were amended on 3.9.1994 to the effect that the post of Assistant shall be filled up by promotion from Junior Assistant, Stenographer, Typist and Telephone Operator, provided the individual possesses a degree. The post of Junior Assistant also should be filled up either by direct recruitment or by promotion from Record Assistant provided the individual possesses a degree.
1.(b) Even though, the prescribed minimum general educational qualification was acquiring a decree, in the case of the petitioners, they were relaxed and were promoted to the post of Assistant. On 22.3.1988, the Appellant published a provisional Seniority List of staff members in the cadre of Assistant and the same was communicated to the writ petitioners. The writ petitioners Annamalai, Syed Ahmed and Purushothaman were ranked as 9,11 and 12 respectively, in the list. The total number of employees in the list is 29. Thereafter, the seniority list dated 1.6.1988 was communicated to them by means of which the writ petitioners were placed in Sl.No.9, 17 and 21 respectively. It is their grievance that the rest of the employees who were juniors to them, were placed above them. It is also contended that as per the revised seniority list, candidates upto serial No.5 were promoted as Assistant Managers. There is no reason to place the above said persons above the writ petitioners and in all respects they are seniors to them. It is their further contention that there shall be no distinction between the graduate and non graduate who were available at the relevant point of time for promotion in the cadre of Assistant, since, decision has already been taken while they were promoted to the post of Assistant after relaxing the existing rules.
1.(c) In W.P.Nos.10447 to 10449 of 2003 from which W.A.Nos.3401 to 3403 of 2004 have been preferred, it is prayed that a writ of mandamus be issued to promote the petitioners as Manager on the date on which the petitioners juniors were promoted and also to pay the petitioners monetary benefits from the date of such notional promotion. Earlier 2 Writ Petitions in W.P.12904 and 12095 of 1991 were filed for a writ of certiorarified mandamus to quash the impugned order of the second appellant and direct him to promote them as Deputy Manager and also quashing the seniority list of Assistants in accordance with the seniority alone. Both the writ petitions in W.P.No.12904 and 12905 of 1991 were disposed of by a common order dated 09.08.2001, by means of which, this Court directed the appellants to pass orders within 2 months from the date of communication of the order promoting the writ petitioners on par with their immediate juniors and give them notional increment and place them in the appropriate scale, but they shall not be entitled to arrears of monetary difference for all these years.
1.(d) Insofar as W.P.Nos.10447 to 10449 of 2003 are concerned, this Court by means of a common order dated 22.10.2003 directed the appellants to implement the directions issued in W.P.Nos.12904 and 12905 of 1991 and settle necessary monetary benefits to the petitioners within a period of twelve weeks from the date of receipt of a copy of the order. The above said orders of the learned single Judge have been challenged in these appeals.
2. The writ petitioners referred to a case of one Babu Singh, who was junior to them, was promoted to the cadre of Assistant after relaxing of educational qualification, who did not possess a decree. He was promoted to the cadre of Assistant Manager. It is quintessence of their contention that while Babu Singh, a similarly placed employee was considered for promotion in the post of Assistant Manager, there could have been no legal or procedural prohibition for appellants to promote the writ petitioners also. It is contended by the writ petitioners that the action in this regard by the appellants is arbitrary and violation of Article 14 of the Constitution. Babu Singh was posted as Record Assistant on 1.10.1971 and was promoted as Junior Assistant on 16.05.1977 and further he was promoted as Assistant on 17.10.1981. He became Section Officer in 1986 and made as Assistant Manager in 1988 and thereafter as Deputy Manager.
3. The learned single Judge has observed that there was no justification or reason or rhyme to relax the qualification only in favour of Babu Singh and ratify the promotion in his favour while ignoring the claims of the petitioners who were far seniors and were eligible in every respect to be promoted and the petitioners had been singled out and treated differently, and discriminated arbitrarily.
4. It is the bottomline contention of the appellants in their counter to the writ petitions and also before this Court that during the year 1988, the irregular appointment of R.Babu Singh as Assistant in the year 1981 was brought to the notice of the Board of Directors on the ground that he did not possess the requisite qualification when his appointment as Junior Assistant was made. With a view not to cause any prejudice to the incumbent and at the same time, to rectify the anamoly, the Board was left with no option than to ratify his appointment, which the board did in the meeting held on 24.6.1988, that in respect of any postings which involve monetary considerations, the Corporation has to obtain permission of the Government of Tamil Nadu that the Government imposed a ban on creation of any new post and in view of the ban in force, pursuant to the resolution of the Board of Directors, the Corporation has written to the Government on 29.10.2002, seeking approval for creating supernumerary post in accordance with the order of this Court dated 9.8.2001 and as and when the approval obtained, the petitioner should be paid the monetary benefits and the Writ Petitions in W.P.No.10447 to 10449 of 2003 are nothing but ruse by the petitioners as a legal thumbscrew to pressurise the Corporation to realise the monetary benefits without the approval of the Government which these appellants cannot do.
5. The learned counsel for the appellants would garner support from a decision of the Supreme Court in 2002 (1) SCC 261 [Jaswant Singh v. Punjab Poultry Field Staff Association and others] in which Their Lordships dealt with a case of an employee, who was promoted to the higher cadre who was discharging his function of such cadre and confirmed the direction of the High Court but directing the authorities to pay him for the period he rendered service in the promotion post. The relevant portion in the judgment is as under:-
“10. Even assuming that the appellant is correct in this contention, nevertheless the order of promotion dated 22.8.1996 cannot be upheld. The basis of the appellant’s claim for promotion is the order of the Additional District Judge. It is the case of the respondent Authorities also that the order of promotion was passed pursuant to the Additional District Judge’s directive. As already noted, the directive to grant the appellant benefits etc. was conditional upon the respondent Authorities determining whether the appellant had been working as a Chick Sexer. We may, therefore, assume that the respondent Authorities passed the order of promotion only after being satisfied that the appellant had in fact worked as a Chick Sexer. There is also ample uncontroverted evidence on record in support of this. However, such a conclusion would not necessarily result in the benefit of promotion being granted to the appellant unless promotion was permissible according to law. The promotional Rules whether prior or subsequent to 1992, both of which have been quoted earlier, do not permit the promotion of the appellant. The 1980 rules were amended in 1983 so that the three months’ Poultry Training Course required in order to qualify for the post of Chick Sexer was changed to a twelve months’ Poultry Training Course. Admittedly, the appellant had not undergone training for one year. As far as the 1992 Rules are concerned, Respondent 1 correctly submitted that the appellant could not have been promoted as a Chick Sexer in terms thereof as he was not holding any of the feeder posts.
11. The High Court’s decision in Gobind Singh Case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of Chick Sexer since Gobind Singh had been discharging the duties of that post. Therefore, while the appellant’s promotion to the post of Chick Sexer cannot be upheld, given the fact that the appellant had discharged the duties of a Chick Sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties.”
6. The appellant in that case was initially posted as Bird Attendant/Hatchery Man in the Department of Animal Husbandry of Government of Punjab on 24.11.1981. He had also undergone training as Chick Sexer and was appointed as Chick Sexer at various places. In the said case the promotion rules provided that unless necessary training is undergone there shall be no promotion as Chick Sexer. But admittedly he had undergone training for one year which is the qualification provided for promotion as Chick Sexer. It was argued by the Department that there were no vacant post earlier to 1992 Rules and he had to be governed by 1992 Rules. The Supreme Court has observed that the promotion rules whether prior or subsequent to 1992, both do not permit the promotion of the appellant. In such a situation it was held by the High Court that his promotion to the cadre of Chick Sexer post was not sustainable. While upholding the order of the High Court, setting aside the order of the appellant’s promotion, the Supreme Court directed the department to pay the appellant for the period he rendered service as Chick Sexer at the scales of pay together with all allowances to which Chick Sexer were entitled at the relevant time. The Supreme Court has made it clear that unless promotion was permissible according to law, the benefit of promotion to the appellant could not have been made.
7. But the facts available in the presence case are distinguishable. Here, already relaxation of Educational Qualification was given to the writ petitioners while they were promoted as Assistants. Further, when the appellant has given promotion to Babu Singh, there could have been no embargo for them to consider the promotion of the writ petitioners to a higher cadre.
8. It is strongly contended on behalf of the respondents 1 to 3/writ petitioners and their learned counsel Mr.Ajoy Ghosh that once relaxation was given, it is no longer open to the appellant to refuse promotion. In this context, we indicate that the relevant rules or procedures do not provide that in case, if the educational qualifications was relaxed on earlier occasion, the incumbent would not be considered for promotion. In the absence of any such rules or procedure, the appellant can not contend that they were not qualified to be promoted. Once they were given relaxation and permitted to hold the promotion post, then for higher promotions, the requirement of educational qualification, which was already relaxed, is not sustainable.
9. The learned counsel for the respondents 1 to 3 draws attention of this Court to various Division Bench decisions of this Court on this point. It is his main stress that once they were regularly appointed as Assistants after relaxation of required qualification, it will enure and also ensure for promotion and confirmation in higher posts. The following are the decisions of the Division Benches of this Court on this subject:
(i). 1982 (1) M.L.J. 294 [The Government of Tamilnadu v. M.N. Raghunathan]:-
“8. We are already of opinion that when the exemption was granted, the authorities had taken into consideration his experience and capacity and then only such exemption was granted on merits which exemption must be deemed to have exempted the respondent fully from passing the Revenue Tests parts I and III for any post which requires such qualification, in the said department. A reading of the G.O.Ms.No.2247, Revenue would further indicate that exemption granted in favour of the respondent from passing the Revenue Tests, Part I and III is with immediate effect and for all purposes though in order to enable him to be appointed as an Assistant in the Board of Revenue immediately. The other reason given by the Government to the effect that the appellant ought to have served as an Assistant for a period of one year is not supported by any provision or rules and as such this will not be a disqualification for the respondent to become the Superintendent.”
(ii). Judgment of this Court in W.A.No.211 of 1986 dt: 26.4.1981 [The Collector of Salem and others v. S.Kuppusamy]
“The point involved in this appeal is covered by the decision in W.A.No.106 of 1979 (State of Tamil Nadu by Secretary C.T. and Religious Endowments Department, Madras and another v. M.N. Raghunathan). Yet what is contended by the Government Pleader is that, pass in S.S.L.C. being one of essential qualification for the superior post ; it being exempted for the lower category of posts to which the respondent had been appointed; it will not be available to him when he gets promotion. For both the entry post and the promotional post, it being a common qualification; once it is exempted at the time of entry into service; it has been repeatedly held that it is available to the employee when he is later on promoted to superior post. No decision contra to what had been held in W.A.No.106 of 1979 having been placed, this appeal is dismissed.”
(iii). Judgment of this Court in W.A.No.327 of 1990 dated 25.04.1990 [R. Thiruvenkadam v. Government of Tamil Nadu and others]
” 2. … … … In our opinion, this would not be the correct way of looking at things. Undoubtedly, the post of Principal is a selection post. Once the disability of not possessing 50 percent of marks for appointment as Assistant Professor was removed by the Order dated 9.9.1976, it would imply that the exemption granted by that order was to enure during the service carrier of the members of the teaching staff to whom exemption was granted. The qualification of not possessing 50 per cent of marks in M.A. would be deemed to have been removed by the grant of exemption on 9.9.1976, and that removal would continue for the benefit of the concerned employee during his service career, and cannot be held against him at any subsequent stage of promotion as a professor or principal. He would, therefore, come within the zone of consideration for eligibility for appointment as principal. In taking this view, we are fortified by the judgment of a Division Bench of this Court in W.A.No.106 of 1979 (The Government of Tamil Nadu v. M.N. Raghunathan decided on 5-1-1982) and the opinion expressed by the Superme Court in Jagdish Pandey v. Chancellor, Bihar University (A.I.R. 1968 Supreme Court 353). The answer to the question proved in the earlier part of the judgment has to be that the exemption would enure during the service career of the concerned employee.”
Special Leave Petition was preferred from the judgment passed in W.A.No.327 of 1990 and the Honourable Supreme Court dismissed the S.L.P. at the admission stage in S.L.P.(Civil)No. 9479 of 1990 on 25.4.1990.
10. In view of the above said consistent view taken by this Court, it has to be necessarily held that when the exemption was granted on an earlier occasion, the same would continue for the benefit of the concerned employee throughout his service career and cannot be held against him at any subsequent stage of promotion. Once it is exempted, at one point of time in service, the said exemption is available to the employee in future for all the promotion posts, which require such qualification.
11. We are fortified in our view with the above said Division Bench decisions of this Court in the matter of relaxation of educational qualification for promotion to the higher cadre. Once the prescribed qualification is exempted in a particular stage of service career of an employee, the same exemption would be continuing to the subsequent future promotion of that employee and there could be no refusal on the part of the employer to deny the promotion under the guise of requiring such qualification.
12. In these circumstances, we do not find any valid ground either to modify or to set aside the orders passed by the learned single Judges, which deserve to be confirmed and accordingly confirmed. These appeals are devoid of merits, which suffer dismissal.
In fine all the Writ Appeals are dismissed. No costs. Connected W.A.M.Ps are closed.
(K.M.,J.) (S.P.V.,J)
[ .11.2010]
Index :Yes/No
Internet :Yes/No
ggs
K. MOHANRAM.J
and
S. PALANIVELU.J
ggs
Common Judgment in:
W.A.Nos.1103 and 1104 of 2002
and W.A.M.P.Nos.1148 of 2006 and
W.A.Nos.3401 to 3403 of 2004
and W.A.M.P.Nos.6392 to 6394 of 2004
12.11.2010