Madras High Court
T.Sundar vs The State Of Tamilnadu on 19 April, 2023
W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
and
W.M.P.(MD)Nos.18419 of 2017,
15518 to 15520 of 2020
W.P.(MD)No.22120 of 2017:
T.Sundar ... Petitioner
vs.
1.The State of Tamilnadu,
represented by its Additional Chief
Secretary to Government,
Forest and Environment Department,
Fort St.George, Chennai-9.
2.The Principal Chief Conservator
of Forest,
Head of Forest Force,
Jennis Road, Palagal Building,
Saidapet, Chennai-15. ... Respondents
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W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records pertaining to the impugned order passed by the 1st respondent in
his letter no.14545/FR.2/2013-13, dated 14.10.2016 and the 2nd
respondent passed the consequential order by his proceedings
Ref.No.AB2/1960/2013, dated 14.11.2016 and to quash the same as
illegal and consequently, to direct the respondents herein to consider the
case of the petitioner for promotion to the post of Forester by relaxing
the rules in Tamilnadu Forest Subordinate Service Rules.
For Petitioner : M/s.S.Ragaventhre
For Respondents : Mr.R.Suresh Kumar
Additional Government Pleader
W.P.(MD)No.18556 of 2020:
1.S.Joseph
2.N.Rajalingakumar
3.G.Velayutham
4.P.Swaminathan
5.N .Kaliswaran
6.C.Ravichandran
7.S.Murugan
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W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
8.R.Pandian
9.S.Sankar
10.P.Venkatesan
11.A.Georgemani
12.R.Srinivasan
13.M.Ganesan ... Petitioners
vs.
1.The State of Tamilnadu,
represented by its Principal
Secretary to Government,
Environment and Forests Department,
Secretariat, Chennai-600 009.
2.Principal Chief Conservator of Forests,
No.1, Jeenis Road,
Palagal Building,
Saidapet, Chennai-600 015. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records on the file of the 1st respondent in connection with the impugned
letter of rejection passed by him in Lr No.14545/FR.2/2013-13, dated
14.10.2016 and the consequential impugned order of rejection passed by
the 2nd respondent in his proceedings in Ref.No.AB2/1960/2013, dated
14.11.2016 and to quash both as arbitrary and unconstitutional and
thereby, to direct the respondents to consider the case of the Drivers like
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W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
the petitioners for promotion to the post of Forester by relaxing the rules
as one time measure within the time limit that may be stipulated by this
Court.
For Petitioners : Mr.G.Thalaimutharasu
For Respondents : Mr.R.Suresh Kumar
Additional Government Pleader
*****
COMMON ORDER
These writ petitions are filed to quash the impugned order, dated
14.10.2016, and consequently, to direct the respondents to consider the
case of the petitioners in both the writ petitions and promote them to the
post of Forester by relaxing the rules in Tamil Nadu Forest Subordinate
Service Rules.
2. The brief facts of W.P.(MD)No.22120 of 2017 are that the
petitioner is the President of the Forest Driver Association and has put in
17 years of service as Driver. Originally, he was appointed as Lorry
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Cleaner under the 2nd respondent through District Employment
Exchange. The post of Driver comes under Clause (v) of Tamilnadu
Forest Subordinate Services Rules.
3. The contention of the petitioner is that all the subordinate
service persons are eligible for promotion as per various orders of the
government in this regard. Even the persons who were appointed as a
Forest Watcher and Mali comes under Subordinate Services have been
promoted as Forest Guards on the basis of their respective experience.
Further contention of the petitioner is that the persons who joined as a
Watcher, Mali, Plot Watcher and like others have been appointed to
similar category, have been promoted depending on their respective
experience even though they have qualification of 2nd standard pass. The
persons who finished 4th or 5th standard are working in the post of Forest
Rangers by getting promotion. The petitioner had passed 10 th standard
and promoted from the post of Cleaner and working as Driver. The
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W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
petitioner is now subjected to work as a Driver under the Forest Rangers
who have completed only 4th and 5th standard of education.
4.The petitioner relied on G.O.Ms.No.162, dated 21.04.1992,
wherein it states that the appointment to the post of Foresters as made in
para 2 (ii):
"the post of Driver need not be made a feeder category for
appointment to the post of Foresters under recruitment by
transfer"
The above said G.O passed by the 2nd respondent ought to be amended so
as to promote the Drivers to the next higher grade.
5. The petitioner in W.P.(MD)No.22120 of 2017 had already filed
W.P.(MD)No.2026 of 2009 and the same was disposed on 16.07.2010
with a direction to reconsider the representation and to pass orders within
a period of four weeks. The petitioner filed another writ petition in W.P.
(MD)No.15350 of 2014 and this Court directed the first respondent to
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W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
consider the proposal within a period of 12 weeks and pass suitable
orders. But the 1st respondent herein without considering the merits of
the said proposal rejected the claim, vide letter, dated 14.10.2016 and the
2nd respondent passed the consequential order, dated 14.11.2016, wherein
it is stated that the said proposal was already considered and there is not
possibility to amend the Forest Rules. Aggrieved over the same the
present writ petitions are filed.
6. The contention of the petitioners are that the Drivers are
stagnating in the same work and are frustrated because there is no
opportunity of promotion. The Hon'ble Supreme Court has held that any
person working in any department is entitled to promotion atleast once in
their service, but the Drivers of the Forest Department are working
without any promotion.
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7. The learned Counsels appearing for the petitioners submitted
that the impugned order stating that there is no promotional opportunity
in other departments and the same is not correct. In Municipal
Departments, the Drivers are entitled to promotion. In fact, the Tamil
Nadu Basic Service Rules also states to consider by recruitment / by
transfer from the post of Driver to Office Assistant or Helper, in the case
of medically unfit persons. When the Government is having empathy for
medically unfit persons and for all other posts, the respondents declining
the same to the petitioners totally discriminatory. Moreover, in the said
proposal, it has been stated that only 1% of the Drivers are eligible to be
promoted. At least if 1% is granted, the petitioner and the similarly
placed Drivers would get an opportunity as and when the vacancy arises.
Therefore, the petitioners are praying to allow the writ petitions.
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8. The learned Additional Government Pleader appearing for the
respondents submitted that since no other department has granted
promotion to the post of Driver, if the petitioners are allowed, it will be
opening a flood gate and it will also have cascading effect which will
lead to confusion among various Government departments. Moreover,
the proposal for amending is also proposing to promote to the post of
Forester cannot be entertained. Under the Tamilnadu Forest Subordinate
Service Rules, Forester is the promotive post for other categories.
Therefore, the same cannot be considered. Hence, the learned Additional
Government Pleader for the respondents prayed to dismiss the writ
petitions.
9. Heard M/s.S.Ragaventhree, learned Counsel appearing for the
petitioner in W.P.(MD)No.22120 of 2017 and Mr.G.Thalaimutharasu,
learned Counsel appearing for the petitioners in W.P.(MD)No.18556 of
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W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
2020 and Mr.R.Suresh Kumar, learned Additional Government Pleader
appearing for the respondents in both cases and perused the records.
10. The Tamilnadu Forest Subordinate Service Rules states as
under:
“Class 1 category: Rangers, Foresters, Forest Guards,
Forest Watchers, Forest Apprentice and Mali.
Class III category: Senior Draughting Officer, Draughting
Officer, Junior Draughting Officer and Assistant Draughtsman.
Class IV category: PG Assistants and other Teachers
Class V category: Drivers of Jeeps, Vans, Estate Car,
Wagons and Lorries, Cleaners of Lorries”
The respondents submitted that the petitioners are coming under the
Class V, but straight away seeking promotion to Class I and hence the
petitioners’ plea cannot be considered.
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11. This Court is not able to accept the contention of the
respondents for more than one reason. When the respondents have
categorically considered from the post of Cleaner to a promotive post of
Driver, there should be avenue for the Drivers to climb up. Atleast the
respondents shall consider the petitioners in the post of Mali or Forest
Apprentice. Of course, the petitioners claiming to the post of Forester
which comes under Class I which will be steep jump. Therefore, this
Court is of the considered opinion that the claim of the petitioners ought
to be considered.
12.The learned Additional Government Pleader appearing for the
respondents vehemently opposed for such consideration and relied on
judgment made in State of Himachal Pradesh and others Vs. Satpal
Saini reported in (2017) 11 SCC 42, wherein the Hon'ble Supreme Court
has held that the directions of the High Court for amending the
provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972
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and the Rules made thereunder cannot be sustained. The learned
Additional Government Pleader also relied on another judgment made in
Union of India Vs. Pushpa Rani and others reported in (2008) 9 SCC
242 wherein the Hon'ble Supreme Court has stated as under:
“37. Before parting with this aspect of the case, we consider it
necessary to reiterate the settled legal position that matters relating
to creation and abolition of posts, formation and
structuring/restructuring of cadres, prescribing the source/mode of
recruitment and qualifications, criteria of selection, evaluation of
service records of the employees fall within the exclusive domain of
the employer. What steps should be taken for improving efficiency of
the administration is also the preserve of the employer. The power of
judicial review can be exercised in such matters only if it is shown
that the action of the employer is contrary to any constitutional or
statutory provision or is patently arbitrary or is vitiated due to mala
fides. The court cannot sit in appeal over the judgment of the
employer and ordain that a particular post be filled by direct
recruitment or promotion or by transfer. The court has no role in
determining the methodology of recruitment or laying down the
criteria of selection. It is also not open to the court to make
comparative evaluation of the merit of the candidates. The court
cannot suggest the manner in which the employer should structure or
restructure the cadres for the purpose of improving efficiency of
administration”.
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The judgment of the Hon'ble Supreme Court in State of Himachal
Pradesh and others Vs. Satpal Saini reported in (2017) 11 SCC 42, is
followed by the Hon'ble Division Bench of this Court in the case of
Abimani @ R.Chandrasekaran Vs. The Government of India and
others in W.P.(MD)No.1290 of 2018, vide order, dated 25.01.2018. The
learned Additional Government Pleader further relied on the judgment
rendered in W.P.No.11735 of 2014 by the Hon'ble Division Bench of this
Court, dated 10.02.2017, wherein it is stated as under:
“10. The Supreme Court in P.U.Joshi and ors. vs. Accountant
General, Ahmedabad and ors., (2003(2) SCC 632), indicated the
extent of judicial review in matters relating to conditions of
service. The Supreme Court said :-
“10 ... Questions relating to the constitution, pattern,
nomenclature of posts, cadres, categories, their creation /
abolition, prescription of qualifications and other conditions of
service including avenues of promotions and criteria to be
fulfilled for such promotions pertain to the field of policy is
within the exclusive discretion and jurisdiction of the State,
subject, of course, to the limitations or restrictions envisaged in
the Constitution of India and it is not for the statutory tribunals,
at any rate, to direct the Government to have a particular method
of recruitment or eligibility criteria or avenues of promotion or
impose itself by substituting its views for that of the State.
Similarly, it is well open and within the competency of the State
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to change the rules relating to a service and alter or amend and
vary by addition/substraction the qualifications, eligibility
criteria and other conditions of service including avenues of
promotion, from time to time, as the administrative exigencies
may need or necessitate. Likewise, the State by appropriate rules
is entitled to amalgamate departments or bifurcate departments
into more and constitute different categories of posts or cadres by
undertaking further classification, bifurcation or amalgamation
as well as reconstitute and restructure the pattern and
cadres/categories of service, as may be required from time to
time by abolishing the existing cadres/posts and creating new
cadres/posts. There is no right in any employee of the State to
claim that rules governing conditions of his service should be
forever the same as the one when he entered service for all
purposes and except for ensuring or safeguarding rights or
benefits already earned, acquired or accrued at a particular
point of time, a government servant has no right to challenge the
authority of the State to amend, alter and bring into force new
rules relating to even an existing service”.
11. The petitioners have no statutory or constitutional right to
seek direction to the State to amend the recruitment rules to suit
their convenience. We are therefore of the view that the Tribunal
was perfectly correct in dismissing the original application. We
do not find any error or illegality in the said order, warranting
interference, by exercising judicial review. However, we make it
clear that this order would not stand in the way of the
Government initiating action to revise the recruitment rules, in
accordance with law.”
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This Court is absolutely agreeing with the judgments stated supra that
Mandamus will not lie directing the Government to amend the Rules.
But, in the present case, it is not a straight way amendment which is
being sought. The higher authority of the said Department had already
submitted a proposal for granting 1% reservation for the Drivers to be
promoted. In such circumstances the judgment relied on by the
respondents is not applicable to the present case.
13. The learned Additional Government Pleader submitted that
Drivers are eligible for selection grade and special grade, if they are not
getting any promotion. Therefore, there is no question of stagnation of
Drivers in the same post. The Learned Counsel for the petitioners
submitted that if the plea of the respondents is accepted then the
Government will not be at loss in terms of finance, when the respondents
are paying selection grade and special grade in the post of driver, then
only the designation alone would change and there will not be any
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difference in the salary. Moreover, it is submitted that the government
would not be at loss because the salary drawn by the Driver as well as the
promoted post is one and the same and, on this count, also the petitioner
stands to gain.
14. The contention of the respondents is that if a Driver is
promoted in Forest Department, then the Drivers in other Departments
would also seek the same. The respondents are having ample power to
restrict the same to the Forest Department alone. Therefore, the
contention of the respondents that other Departments will claim the same
cannot be a ground to reject the claim of the petitioners.
15. Therefore, the reasons stated by the respondents are not
sustainable. The impugned orders in both the writ petitions are quashed.
The respondents shall consider the proposal, dated 04.06.2013, positively
within a period of eight weeks from the date of receipt of a copy of this
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order.
16.With the above said observation, the writ petitions are allowed.
No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 19.04.2023
Internet : Yes
NCC : Yes / No
Tmg
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W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
S.SRIMATHY, J
Tmg
W.P.(MD)Nos.22120 of 2017 and 18556 of 2020
19.04.2023
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