Madras High Court
R.Ravichandran vs The Principal Secretary To ... on 21 April, 2021
W.A.No.648 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:21.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE P.RAJAMANICKAM
W.A.No.648 of 2021
R.Ravichandran ....Appellant
Vs
1.The Principal Secretary to Government
Commercial Taxes and Registration Department,
Secretariat, Chennai 600 009.
2.The Principal Commissioner / Commissioner
of Commercial Taxes, Ezhilagam, Chepauk,
Chennai 600 005.
3.The Joint Commissioner of Commercial Taxes,
Chennai (North) Division,
Chennai. ..Respondents
Prayer:- Writ Appeal filed under Clause 15 of the Letters Patent against
the order passed in W.P.N0.25188/2010 dated 17.02.2020 passed by this
Court.
For Appellant : Mr.L.Chandrakumar
For Respondent : Ms.A.Srijayanthi
https://www.mhc.tn.gov.in/judis/ 1
W.A.No.648 of 2021
Special Government Pleader
JUDGMENT
[Order of the Court was made by M.SATHYANARAYANAN, J.]
The writ petitioner is the appellant and he filed W.P.No.25188 of
2010, praying for issuance of Writ of Certiorarified Mandamus calling
for the records of the proceedings bearing letter dated 05.08.2010, on the
file of the 1st respondent, and quash the same with consequential
direction, directing the official respondents to refix seniority of the
petitioner in the cadre of Assistant in the Commercial Taxes and
Registration Department, with reference to his date of passing the
Gujarathi Language Test with effect from 13.10.1999.
2. The Writ Petition after contest, came to be dismissed, vide
impugned order dated 17.02.2020 and challenging the legality of the
same, the present Writ Appeal is filed.
3. Mr.L.Chandrakumar, learned counsel appearing for the appellant
/ writ petitioner would submit that the writ petitioner while working as
Typist has passed examination prescribed under Rule 30(a) of Tamil
W.A.No.648 of 2021
Nadu Ministerial Service for appointment for the post of Gujarathi
Assistant (Category 13-A) in Commercial Taxes Department and it was
followed by a representation dated 29.10.1999 to the Commissioner of
Commercial Taxes with a request to appoint him as Gujarathi Assistant in
the existing vacancy in Chennai (North) Division and in the interregnum,
he was promoted as Assistant (Category 12) and joined in the office of
the Commercial Tax Officer, Vellore (North) on 20.10.2001.
4. The primordial ground taken by the petitioner was that since he
passed the examination for appointment to the post of Gujarathi Assistant
(Category 12-A) and that there were vacancies also existing during the
year 1999, he would have granted promotion as Gujarathi Assistant right
from 13.10.1999 and even for the sake of argument, subsequently he got
his promotion on 20.10.2001 and he should have been provided with
consequential benefits right from 13.10.1999. The respondents had filed
the counter affidavit and took a stand that the State wide seniority of
Gujarathi knowing Assistant should be maintained only for persons
recruited by Tamil Nadu Public Service Commission through direct
recruitment. The petitioner was originally appointed as Typist, promoted
W.A.No.648 of 2021
as Assistant and then got converted as Gujarathi Assistant and hence, he
cannot be treated as direct recruit Gujarathi Assistant and it is also
submitted that during the year 1999, he was only working as Typist in
Vellore Division and there was no post of Gujarathi Assistant in Vellore
Division and it exists only in Chennai, Trichy, Madurai and Coimbatore
Division and on his request, it was considered and was transferred to
Chennai (North) Division and as such he is not entitled to any relief.
5. The primordial submission made by the learned counsel
appearing for the appellant / writ petitioner is that in the light of the
above factual aspect and coupled with the fact that there was availability
of Gujarathi Assistant at Chennai, even in the year 1999, despite the fact
that he got his promotion as Assistant on 20.10.2001, he would have
been granted with all consequential benefits right from 13.10.1999 and
the learned Judge without taking note of the factual aspects and rule
position has erroneously dismissed the Writ Petition and hence prays for
interference.
W.A.No.648 of 2021
6. This Court paid it's best attention to the arguments advanced by
the learned counsel appearing for the appellant / writ petitioner and also
perused the materials placed before it.
7. Facts leading to the present round of litigation is narrated in
detail and in extenso in the impugned order, which is the subject matter
of challenge in the Writ Appeal and for the sake of brevity, it is
unnecessary to restate the facts once again.
8. The petitioner is under the impression that since he acquired
proficiency in Gujarathi language, he should have been promoted as
Gujarathi Assistant, in the light of the fact that there were existing
vacancies for filling up the said post even in the year 1999.
9. The attention of this Court has also been invited to Rule 3(q) of
the Tamil Nadu Ministerial Service Rules and it is relevant to extract the
same:
''(q)(i) Besides promotion, as provided in rule 4,
appointment to the post of Assistant in the Office of the
Commissioner of Commercial Taxes may be made by
W.A.No.648 of 2021
transfer from among the persons of the District
Establishment of the Commercial Taxes Department upto a
limit of 25 percent of the Vacancies permanent or
temporary;
(ii) Appointment of Junior Assistant in the Office of
the Commissioner of Commercial Taxes may be made by
transfer from among the persons of the District
Establishment of the Commercial Taxes Department upto a
limit of 25% of the vacancies permanent or temporary;
(iii) Besides direct recruitment as provided in rule 2,
appointment to the post of Gujarathi knowing Assistant in
Commercial Taxes Department shall be made by promotion
from Junior Assistants, and Typists in the Commercial Taxes
Department qualified in the Gujarathi language and by
transfer from among assistants in Commercial Taxes
Department, qualified in Gujarathi Language.''
10. It is a well settled position of law that it is the prerogative of
the employer to fill up the vacancy and this Court cannot issue a positive
direction to fill up the vacancy in particular manner within a particular
time frame. The appellant / writ petitioner is under the impression that
since he acquired proficiency in Gujarathi language by passing test and
that vacancies were available even in the year 1999, he should have been
W.A.No.648 of 2021
employed as Gujarathi Assistant even at the time of passing of the test
and in the light of the above fact that he got his promotion subsequently,
the said promotion should have retrospective effect from the date of
passing of the said test and he should have conferred with all
consequential benefits. In the considered opinion of this Court, the
submission made in this regard is per se unsustainable as it is against the
well established principles regarding service jurisprudence. As already
pointed out, it is a prerogative left with the employer to fill up the
vacancy / post, there cannot be any positive direction to fill up the post in
a particular manner, within a stipulated time frame.
11. Reading and understanding of the rule extracted in the earlier
paragraph may also disclose that there is no positive rule position by
directing the employer to fill up the post of Gujarathi Assistant, as and
when vacancies arise and in the absence of such mandate, it is always
open to the Administrative department to take an appropriate call. In the
considered opinion of this Court, the learned Judge has taken note of the
factual aspects and rule position and rightly reached the conclusion to
negate the relief, sought for by the appellant / petitioner.
W.A.No.648 of 2021
12. This Court, on an independent application of mind to the entire
materials, is of the considered view that there is no error apparent on the
face of the record or infirmity in the reasons assigned by the learned
Judge for dismissing the Writ Petition and finds no merit in this Writ
Appeal.
13. In the result, the Writ Appeal is dismissed, confirming the
order dated 17.02.2020 in W.P.No.25188 of 2010. No costs.
[M.S.N., J.,] [P.R.M., J]
21.04.2021
Index : No
Internet :Yes
sk
To
1.The Principal Secretary to Government
Commercial Taxes and Registration Department,
Secretariat, Chennai 600 009.
2.The Principal Commissioner / Commissioner
of Commercial Taxes, Ezhilagam, Chepauk,
Chennai 600 005.
W.A.No.648 of 2021
3.The Joint Commissioner of Commercial Taxes,
Chennai (North) Division,
Chennai.
W.A.No.648 of 2021
M.SATHYANARAYANAN, J.,
and
P.RAJAMANICKAM, J.,
sk
W.A.No.648 of 2021
21.04.2021
https://www.mhc.tn.gov.in/judis/ 10
