Madras High Court
V.Santhanakrishnan vs State Of Tamil Nadu on 25 April, 2022
W.P.(MD) Nos.11121 to 11127 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.04.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD) Nos.11121 to 11127 of 2019
and
W.M.P.(MD) Nos.8483 to 8489 of 2019
W.P.(MD) No.11121 of 2019 :-
V.Santhanakrishnan ... Petitioner
-vs-
1. State of Tamil Nadu,
Rep., by its Principal Secretary to Government,
Energy Department, Fort St. George, Chennai - 600 009.
2. State of Tamil Nadu,
Rep., by its Principal Secretary to Government,
Adi Dravidar and Tribal Welfare Department,
Fort St. George, Chennai - 600009.
3. TANGEDCO,
Rep., by its Chairman-cum-Managing Director,
TANGEDCO, 10th Floor, NPKRR Maligai,
144, Anna Salai, Chennai - 600 002.
4. The Chief Engineer (Personnel),
TANGEDCO, 10th Floor, NPKRR Maligai,
144, Anna Salai, Chennai. ... Respondents
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W.P.(MD) Nos.11121 to 11127 of 2019
Prayer:- Petition filed under Article 226 of the Constitution of India praying
for issuance of Writ of Mandamus directing the respondents to include the
name of the petitioner in the panel for promotion to the post of Assistant
Executive Engineer for the year 2018 issued in Letter No. 093166/375/G.
1/G.11/2018-4, dated 03.12.2018 by the fourth respondent within the time
stipulated by this Court.
In all W.Ps.
For Petitioner : Mr.S.Louis
for Mr.R.Alagumani
For RR1 & 2 : Mr.N.Satheesh Kumar
Additional Government Pleader
For RR3 & 4 : Mr.S.Arivalagan
******
COMMON ORDER
The relief sought for in the present writ petitions is to direct the
respondents to include the names of the petitioner in the panel for
promotion to the post of Assistant Engineer for the year 2018 in Letter No.
093166/375/G.1/G.11/2018-4, dated 03.12.2018 by the 4th respondent.
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W.P.(MD) Nos.11121 to 11127 of 2019
2. The petitioners are now working as Assistant Engineer and
aspiring to secure promotion to the post of Assistant Executive Engineer.
The petitioners state that their cases are to be considered for promotion by
way of implementing the Reservation Rules.
3. The learned counsel for the petitioners made a submission that
the shortfall vacancies in the promotional post is to be taken into
consideration for the purpose of promoting the petitioners to the post of
Assistant Executive Engineer. It is contended by the petitioners that there is
no adequate representation in the cadre of Assistant Executive Engineer and
therefore, the shortfall vacancies are to be calculated.
4. The learned counsel appearing for the Electricity Board raised
an objection by stating that reservation was scrupulously followed by
TANGEDCO while appointing persons. However, there is no reservation
for promotional post and thus, question of assessing the shortfall vacancies
does not arise at all. Once the persons are appointed by implementing the
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W.P.(MD) Nos.11121 to 11127 of 2019
rule of reservation, the promotions are granted subject to the eligibility and
other conditions. Therefore, an ineligible person cannot be promoted by
calculating the vacancy and there is no such rule in force in TANGEDCO.
In this regard, the learned counsel referred to para 9 of the counter filed by
the 4th respondent, which reads as follows:-
“9. The Supreme Court in Civil Appeal No.
1226 of 2010 judgment dated 07.02.2020 (Non
Reportable) held in Mukesh Kumar & Another vs. the
State of Uttarakhand & others held that reservation in
promotion is not a fundamental right and the states
cannot be compelled to makes laws in this regard for
Scheduled Castes (SC) and Scheduled Tribes (ST). In an
order passed on Friday, justice L.Nageswara Rao said
that “Article 16(4) and 16(4-A) are in the nature
enabling provisions, vesting a discretion on the State
Government to consider providing reservations, if the
circumstances so warrant,” he said in the order.
(i) The judgment says that it is settled law that
the state cannot be directed to give reservations for
appointment in public posts. The order further adds that
the state is not bound to make a reservation for SCs and
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W.P.(MD) Nos.11121 to 11127 of 2019
Sts in matters of promotions. However, if the state
wishes to exercise its discretion and make such
provision, it has to collect quantifiable date showing
'inadequacy of representation of that class in public
services,' the judgment reads.
(ii) There are several major Supreme Court
judgments that have, in the past, ruled that Articles
15(4) and 16(4) do not provide a fundamental right.
(iii) A five-judge apex court bench, as early as
1962 in the M.R.Balaji v. State of Mysore had ruled that
Article 15(4) is an “enabling provision”, meaning that
“it does not impose and obligation, but merely leaves it
to the discretion of the appropriate government.
(iv) The court was hearing a challenge to an
order passed by the erstwhile state of Mysore reserving
68 percent of seats in engineering and medical colleges
for educationally and socially backward classes and SCs
and STs.
(v) Five year later, in 1967, another five-judge
bench in C.A.Rajendran v. Union of India reiterated this
position, holding that the government is under no
constitutional duty to provide reservations for SCs and
STs, either at the initial stage of recruitment or at the
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W.P.(MD) Nos.11121 to 11127 of 2019
stage of promotion.
(vi) Article 16(4), it said, does not confer any
right on the citizens and is an enabling provision giving
discretionary power to the government to make
reservation.
(vii) The position went on to be reiterated in
several other decisions, including the nine-judge bench
ruling in Indra Sawhney v. Union of India (1992) and
the five-judge bench decision M.Nagaraj v. Union of
India (2006).
(viii) The top court, however, said that if the
decision of the state government to provide reservations
in promotion is challenged then the state concerned will
have to place before the court the quantifiable data that
reservations became necessary on account of
inadequacy of representation of SCs and STs without
affecting general efficiency of administrative as
mandated by Article 335.”
5. This Court is of the considered opinion that it is an admitted
fact that the rule of reservation has been followed at the time of appointment
and accordingly, adequate representation as per the rule of reservation has
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W.P.(MD) Nos.11121 to 11127 of 2019
been granted. Once the rule of reservation has been implemented in
appointment, promotions are to be granted in accordance with the rules in
force. Grant of further reservation for promotion is not contemplated under
the TANGEDCO services. The Hon'ble Supreme Court also reiterated that
State cannot be compelled to provide further reservation for promotion to
the higher post. The Hon'ble Supreme Court in C.A.No.1226 of 2010 dated
07.02.2020 (Mukesh Kumar & Another vs. State of Uttarakhand &
Others) held that reservation in promotion is not a fundamental right. If at
all any process of appointment is taken up for direct recruitment to the post
of Assistant Executive Engineer, then alone the question of calculating the
backlog vacancy would arise, but not otherwise.
6. As far as reservation for promotion is concerned, the Hon'ble
Supreme Court in unequivocal terms held that promotion can never be
claimed as a matter of right and further, there is no such Reservation Rules
in force for promotion in TANGEDCO and for these reasons, the cases of
the writ petitioners are to be considered in accordance with the promotion
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W.P.(MD) Nos.11121 to 11127 of 2019
rules in force. Whenever a decision is taken to fill up the promotional post
by way of promotion, then all the eligible persons who all are aspiring to
secure promotion are to be considered for inclusion of their names in the
panel including the names of the petitioner, if they are otherwise eligible.
7. With the above observations, these Writ Petitions stand
disposed of. No costs. Consequently, connected miscellaneous petitions are
closed.
25.04.2022
Internet:Yes
Index:Yes
abr
To
1. The Principal Secretary to Government,
The State of Tamil Nadu,
Energy Department,
Fort St. George, Chennai - 600 009.
2. The Principal Secretary to Government,
The State of Tamil Nadu,
Adi Dravidar and Tribal Welfare Department,
Fort St. George, Chennai - 600009.
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W.P.(MD) Nos.11121 to 11127 of 2019
3. The Chairman-cum-Managing Director,
TANGEDCO, 10th Floor, NPKRR Maligai,
144, Anna Salai, Chennai - 600 002.
4. The Chief Engineer (Personnel),
TANGEDCO, 10th Floor, NPKRR Maligai,
144, Anna Salai, Chennai.
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W.P.(MD) Nos.11121 to 11127 of 2019
S.M.SUBRAMANIAM, J.
abr
W.P.(MD) Nos.11121 to 11127 of 2019
25.04.2022
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