Madras High Court

K.Kalaichelvan vs Tamil Nadu Generation And on 14 October, 2022

                                                                                  W.P.No.17131 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 14.10.2022

                                                       CORAM:

                                  THE HONOURABLE MR. JUSTICE M.S. RAMESH

                                                W.P.No.17131 of 2014

                    K.Kalaichelvan                                            ...Petitioner

                                                          Vs

                    1.Tamil Nadu Generation and
                      Distribution Corporation Ltd.,
                      Rep. by its Chairman cum
                      Managing Director,
                      144, Anna Salai,
                      Chennai - 600 002.

                    2.The Chief Engineer/Personnel,
                      Tamil Nadu Generation and
                      Distribution Corporation Ltd.,
                      144, Anna Salai,
                      Chennai - 600 002.                                      ...Respondents

                    PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
                    praying to issue a Writ of Certiorarified Mandamus, calling for the records
                    relating to the order No.025811/275/G30/G301/2014-1 dated 17.04.2014
                    issued by the 2nd respondent and quash the same as being illegal, arbitrary and
                    unconstitutional and consequently issue a direction to the 1st and 2nd
                    respondents to grant notional promotion to the petitioner to the post of

                    1/10

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                                                                                     W.P.No.17131 of 2014

                    Assistant Accounts Officer on the basis of the panel dated 21.10.2008 on par
                    with his juniors, with all attendant service benefits, within a time frame.

                                          For Petitioner     : Mr.C.K.Chandrasekkar

                                          For Respondents    : Mr.P.Subramanian


                                                           ORDER

Heard Mr.C.K.Chandrasekkar, learned counsel for the petitioner and

Mr.P.Subramanian, learned counsel for the respondents.

2. The petitioner herein, who had superannuated on 30.06.2009 from the

post of Accounts Supervisor, seeks for notional promotion to the post of

Assistant Accounts Officer, by citing the cases of his juniors who were

extended with such promotions through Court orders. When the petitioner had

approached the respondents-Corporation, seeking for such notional promotion,

the same came to be rejected, predominantly on the ground that since the

petitioner had qualified his B.Com., Degree through an one year curriculum

from Osmania University, the same is ineligible, in view of the proceedings of

the Board in Memo No.20233/A3/A32/2006-24, Sectt.Branch dated

03.04.2010.

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3. The circumstance relating to the claim for notional promotion is that

the Board had prepared a promotional panel for the year 2008-2009 for the

post of Assistant Accounts Officer fixing the crucial date as 28.03.2009.

Though the petitioner's name found place in the promotional panel, the

promotion was denied, due to the intervention of the Lok Sabha Elections for

the year 2009 and the consequential imposition of the Code of Conduct.

4. When a similarly placed employee, who is junior to the petitioner

herein, had approached this Court seeking for notional promotion for the post

of Assistant Accounts Officer, this Court, in its order dated 14.03.2012 passed

in W.P.No.28673 of 2010 in the case of P.Chellan Vs. The Chairman, Tamil

Nadu Electricity Board and others, directed the Board to grant notional

promotion to the petitioner therein for the purpose of terminal and pensionary

benefits, since the employee had reached the age of superannuation by then. It

is seen that Thiru.P.Chellan's name was found in Serial No.216 in the

promotional panel, while the petitioner's name was found at Serial No.122.

This order, when taken up in an intra court appeal filed by the Board, was

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confirmed by the Hon'ble Division Bench, through an order dated 09.04.2013

passed in W.A.No.510 of 2013, in the following manner:-

"2. The appellants/Electricity Board have challenged the said impugned order by contending that even though the respondent's name was found in the panel, fixing the crucial date as 25.03.2008, because of the Code of Conduct imposed during the Lok Sabha Elections conducted in the year 2009, no appointment or promotion was made, as the Electricity Board has not approached the Election Commission of India for getting necessary clearance. Learned counsel, further, submitted that 33 similarly placed persons were also not given promotion because of the aforesaid reason and the respondent had also reached the age of super-annuation by 31.05.2009.

3. It is contended by the learned counsel appearing for the respondent that the respondent has passed all tests prescribed for promotion and he was rightly placed in the panel prepared for the year 2008-09 fixing the crucial date as 25.03.2008, and there were vacancies available and the respondent's name was placed in Sl.No.216 and that promotion was denied to the respondent due to the intervention of Lok Sabha elections for the year 2009. Learned counsel further submitted that

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the appellants themselves have admitted that they failed to get clearance from the Election Commission of India. In such a situation, the respondent cannot denied of his rightful promotion at the fault of the appellants- Electricity Board.

4. It is on admitted fact that the Tamil Nadu Electricity Board has not approached the Election Commission of India for getting clearance for promoting the eligible persons. Though, the respondent's name was including in the panel, he had reached the age of superannuation on 31.05.2009. The only reason stated in the counter affidavit is that after the retirement of the respondent, fresh panel was prepared fixing the crucial date as 25.03.2009 and the respondent's name was included, and he having retired on 31.05.2009 promotion was not given to him. Therefore, the respondent's right to get promotion was rightly considered by the learned single Judge, who ordered notional promotion for the purpose of pension and terminal benefits with effect from 15.05.2009. It is a well settled law that right to get promotion, if otherwise qualified, is a fundamental right available to a Government servant.

5. The Mandatory duty on the part of the Government in considering the promotion of Government servants at the relevant time was held to be a

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fundamental right guaranteed under Article 16 of the Constitution. The Supreme Court in the decision reported in Union of India vs. Hemraj Singh Chauvan, 2010 (4) SCC 290 in paragraphs 35 & 36 held as follows:-

"35.The Court must keep in mind that constitutional obligation of both the appellants/ Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a Welfare State.

36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of quality under Article 14 of the Constitution."

(Emphasis Supplied)

6.Applying the said principle to the facts of this case, and the judgment of the Apex Court, we are unable to differ from the view taken by the learned single Judge. The writ appeal, which has no merits, is hereby dismissed. No costs. Consequently, miscellaneous petition is closed."

The order of the Hon'ble Division Bench is said to have become final and that

the Board has also extended the benefits to the concerned employee.

5. While the learned counsel for the petitioner seeks the benefits of the

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order passed by this Court in the case of the petitioner's junior, the learned

counsel for the respondents submitted that in view of the Board proceedings

dated 03.04.2010, which prescribes the one year B.Com., Degree as ineligible

for the purpose of promotion to the post of Assistant Accounts Officer, no

interference is required to the impugned order.

6. The administrative orders of the Board will only have a prospective

effect. There cannot be any quarrel over this position. The Hon'ble Supreme

Court, in the case of Bharat Sanchar Nigam Limited and others Vs.

M/s.Tata Communications Ltd. passed in Civil Appeal Nos.1699 to 1723 of

2015, has upheld this proposition in the following manner:-

"30. The power to make retrospective legislations enables the Legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act, but at the same time, administrative/executive orders or circulars, as the case may be, in the absence of any legislative competence cannot be made applicable with retrospective effect. Only law could be made retrospectively if it was expressly provided by the Legislature in the Statute. Keeping in mind the afore-stated principles of law on the subject, we

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are of the view that applicability of the circular dated 12th June, 2012 to be effective retrospectively from 1st April, 2009, in revising the infrastructure charges, is not legally sustainable and to this extent, we are in agreement with the view expressed by the Tribunal under the impugned judgment."

7. By the time the Board proceedings dated 03.04.2010 was passed, the

petitioner herein had reached the age of superannuation and he was also

permitted to retire on 30.06.2009. Thus, citing this administrative order and

attempting to give a retrospective effect may not be permissible.

8. When the petitioner's junior, namely P.Chellan, who had also reached

the age of superannuation, had approached this Court, seeking for notional

promotion to the post of Assistant Accounts Officer, his claim was entertained

by the Writ Court and confirmed in the intra court appeal also. Admittedly, the

petitioner herein is senior to Thiru.P.Chellan in the promotional panel. While

that being so, the petitioner would also be entitled for the similar relief and for

grant of notional promotion. By applying the ratio laid down by this Court in

W.A.No.510 of 2013, I am inclined to allow the claim made by the petitioner