Madras High Court
C.V.Viswanathan vs The State Of Tamilnadu on 8 December, 2023
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
W.P.No.29949 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 01.12.2023
ORDERS PRONOUNCED ON : 08.12.2023
CORAM
THE HON'BLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.29949 of 2011
and M.P.Nos.2 & 3 of 2011
C.V.Viswanathan ... Petitioner
Vs.
1.The State of Tamilnadu
Represented by Secretary to Government
Tourism and Culture Department
Fort St.George, Chennai – 600 009.
2.The State of Tamilnadu
Represented by Secretary to Government
P & A.R. Department
Fort St.George, Chennai – 600 009. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus calling for the records comprised
in the proceedings of the 1st respondent dated 09.02.2011 in Letter
No.11287/OP/2010 and dated 24.03.2011 in Letter No.1871/OP-II/2011/2
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W.P.No.29949 of 2011
and quash the same and consequently direct the respondents to reconsider the
claims of the petitioner and grant all the benefits under and arising out of the
Scheme “stepping up pay of the petitioner on par with his junior counter part
in Finance” (Mr.Ayyavoo), and the consequential promotion, refixation of pay
and revision of pensionary and other benefits as on the date of voluntary
retirement of the petitioner namely 31.03.2003 including if necessary, by
reference to his Excellency the Governor, in terms of Rule 48 of the General
Rules for Tamilnadu State and Subordinate Service.
For Petitioner : Mr.C.V.Subramanian
For Respondents : Mrs.M.Geetha Thamarai Selvan
Special Government Pleader
ORDER
A. The Question :
1. The Core Question that begs the answer in this case is, when the
right to be considered for promotion is a fundamental right, whether the
relinquishment thereof can be put against the person for denying service
benefits ?
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B. Factual Matrix:
2. The case of the petitioner is that he joined the Tamilnadu
Secretariat Service in the year 1979. He was further promoted as Senior
Typist and in the year 2003 he voluntarily retired from service. In the year
1996, when the petitioner was within the zone of consideration for promotion
to the next higher post of Assistant Section Officer, without understanding the
implications, due to health problems that were only temporary, the petitioner
permanently relinquished promotion. It was due to misunderstanding. As a
matter of fact, the petitioner’s turn did not even reach in the year 1996. An
order of acceptance of relinquishment seems to have been passed on
18/12/1996, but the petitioner is not aware of the same.
2.1 Whileso, the Government issued G.O. Ms. No. 121 P & AR
dated 26/05/1998 in which a scheme of stepping up of pay of various
employees of the secretariat on par with their juniors. The petitioner therefore
claimed pay parity by citing the case of one Ayyavoo, who was two years
junior to the petitioner. However, the same is rejected by the impugned order
dated 09/02/2011. On further representation, the same stand is reiterated by
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letter dated 24/03/2011. Hence the present writ petition is filed challenging
the above two orders , with consequential prayers for promotion, refutation of
pay and pensionary benefits by making a reference to the Governor in terms
of Rule 48 of the General Rules for Tamilnadu State and Subordinate Service
(hereinafter referred as 'the General Rules').
2.2 The case of the respondents is that the petitioner entered service
as Typist with effect from 03/11/1979 and voluntarily retired from service as
per General Rule 47 of the Tamilnadu Subordinate Service Rules, withe effect
from 19/03/2003. During service, he exercised the option of permanent
relinquishment of promotion to the post of Assistant Section Officers and
upon his request due orders were passed on 18/12/1996 and necessary entries
were also made in his service records. G.O. Ms. No. 126 dated 29/05/1998
was passed for stepping up of pay of seniors where it arose due to
administrative reasons as some of the Senior Typists who did not relinquish
further promotion as Assistant Section Officer, but were not promoted for
want of vacancies, were put to prejudice on account of juniors in the other
departments of the Secretariat drawing more pay. The same could not be
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applicable to the petitioner as he permanently relinquished promotion. By
letter dated 26/11/1998, the same was expressly clarified by the government.
Thus, when the petitioner claimed stepping up of pay, suitable replies were
given, which are impugned in the writ petition. A reply affidavit is also filed
denying the various averments in the Counter affidavit and furnishing detailed
list of dates claiming that it was an error not consider the case of the petitioner
under General Rule 48.
C. The Arguments :
3. Mr. Subramanian, the Learned Counsel for the petitioner, duly
reiterating the case as aforesaid, would submit that admittedly the petitioner’s
junior was drawing more pay than him. The only ground of denial of
stepping up of pay was the relinquishment. He would submit that a Division
Bench of this Court in S. Padmavathi -Vs- Registrar General, High Court,
Madras 1 has held that the right to be considered for promotion is a
fundamental right and therefore there cannot be any waiver in respect
thereof. Paragraphs 10 and 14 which are very relevant are as follows:
1 2018 (1) CWC 328
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“10. In the above back drop we need to notice as to the nature
of right an Employee would possess. Article 14 of our
Constitution provides for equality before law by granting an
Injunction against the State by setting forth not to deny any
person equality before law and equal protection of laws.
Article 16(1) has positively conferred a right to equality of
opportunity for all citizens in matters relating to employment
or appointment to any office under the State. That while both
Articles 14 and 16 one confer fundamental rights but in their
content and context, they might operate in two different areas.
While Article 16 (1) holds a right for equal opportunities to
public employment, Article 14, only ensure fairness in action
and application of all relevant principles equally to all
similarly situated persons. It is very well recognised principle
of law that there is no fundamental right of promotion held
out by Article16 (1) of the Constitution, but what the said
Article holds out is an assured right of consideration for such
promotion. Thus the right to be considered for promotion
came to be recognised as a fundamental right. What is to be
noted is the right to be considered for such promotion being a
fundamental right, such a fundamental right cannot be
relinquished voluntarily by a citizen in this country.
Fortunately, in our country, there is no principle which
recognises the right of relinquishment of a fundamental right
by a citizen.
……
14. Therefore, we are of the clear opinion that right to be
considered for promotion being a Fundamental Right
emanating both from Article 14 and 16(1) cannot be
permitted to be waived at all. … ”
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3.1 Mr. Subramanian, the Learned Counsel also would stress upon
the right of the petitioner to have his case considered as per Rule 48 of the
General Rules, given the extra-ordinary and unique case of hardship faced by
the petitioner. He would submit that the writ petition is liable to be allowed
on the other grounds extensively raised in the writ petition also.
3.2 Per Contra, Ms. Geetha Thamaraiselvan, the learned Special
Government Pleader would submit that when the petitioner has voluntarily
relinquished the promotion as per rules, he cannot call the same in question
after a period of more than 15 years, that too, well after his voluntary
retirement. The Government Order of stepping up of pay is only for
anomalies that arise out on account of administrative reasons and not on
personal reasons where it is due to non availing of promotion.
D. The Discussion:
4. I have considered the rival submissions made and perused the
material records of the case. It is trite that in matters of stepping up of pay due
to pay anomaly, if the higher pay of the Junior is because of his any personal
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qualifications etc., or if it is on account of any lack or omission on the part of
the senior, then the principle may not apply. As a matter of fact, this position
has been specifically clarified by the letter of Government dated 26/11/1998
in respect of the very G.O. No. 126 dated 29/05/1998. Therefore, if he pay
anomaly is because of the Senior relinquishing his promotion, then his pay
cannot stepped up.
4.1 The contention of the petitioner that right to be considered for
promotion being a fundamental right, it cannot be relinquished by the
petitioner and as such his case should be considered. Strong reliance is made
on the Division Bench judgment in S. Padmavathi's case (cited supra).
While, there cannot be no two opinion that right to be considered for
promotion is held to be a facet of Articles 14 and 16(1) of the Constitution of
India, the import of the same has to be understood by considering the
categorical pronouncements of the Hon’ble Supreme Court of India.
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4.2 The Hon’ble Supreme Court of India in Director, Lift
Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty,2 held as follows :
“4. ……There is no fundamental right to promotion, but an employee
has only right to be considered for promotion, when it arises, in
accordance with the relevant rules. From this perspective in our view
the conclusion of the High Court that the gradation list prepared by
the corporation is in violation of the right of the respondent/writ
petitioner to equality enshrined under Article 14 read with Article 16
of the Constitution, and the respondent/writ petitioner was unjustly
denied of the same is obviously unjustified.”
4.3 Thereafter in Ashok Kumar Gupta v. State of U.P.,3 the right
to promotion was held to be a statutory right and the it is held that right to
promotion for Dalits and Tribes is guaranteed under Article 16(1) and 14 of
the Constitution of India. The relevant portion of the judgment reads as
follows:
“ 43. It would thus be clear that right to promotion is a statutory
right. It is not a fundamental right. The right to promotion to a post or
a class of posts depends upon the operation of the conditions of
service. Article 16(4-A) read with Articles 16(1) and 14 guarantees a
right to promotion to Dalits and Tribes as fundamental right where
they do not have adequate representation consistently with the
efficiency in administration.”
2 (1991) 2 SCC 295
3 (1997) 5 SCC 201
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4.4 However, the matter came to be considered by the Constitution
Bench of the Hon’ble Supreme Court of India, in Ajit Singh and others v.
State of Punjab4 and the above position was over ruled and it was
categorically held that the right to be considered for promotion in accordance
with rules and criteria is a fundamental right and not the right to promotion as
such. It is essential to reproduce paragraphs 22 and 27 which read as
hereunder :
“22. Article 14 and Article 16(1) are closely connected. They deal with
individual rights of the person. Article 14 demands that the ‘State shall
not deny to any person equality before the law or the equal protection
of the laws’. Article 16(1) issues a positive command that:
‘there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State’.
It has been held repeatedly by this Court that clause (1) of Article 16 is
a facet of Article 14 and that it takes its roots from Article 14. The said
clause particularises the generality in Article 14 and identifies, in a
constitutional sense “equality of opportunity” in matters of
employment and appointment to any office under the State. The word
“employment” being wider, there is no dispute that it takes within its
fold, the aspect of promotions to posts above the stage of initial level of
recruitment. Article 16(1) provides to every employee otherwise eligible
for promotion or who comes within the zone of consideration, a
fundamental right to be “considered” for promotion. Equal
opportunity here means the right to be “considered” for promotion. If
a person satisfies the eligibility and zone criteria but is not considered
for promotion, then there will be a clear infraction of his fundamental
right to be “considered” for promotion, which is his personal right.
“Promotion ” based on equal opportunity and seniority attached to
such promotion are facets of fundamental right under Article 16(1)
4 (1999) 7 SCC 209
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……
27. In our opinion, the above view expressed in Ashok Kumar Gupta
[Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 : 1997 SCC
(L&S) 1299] and followed in Jagdish Lal [Jagdish Lal v. State of
Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and other cases,
if it is intended to lay down that the right guaranteed to employees for
being “considered” for promotion according to relevant rules of
recruitment by promotion (i.e. whether on the basis of seniority or
merit) is only a statutory right and not a fundamental right, we cannot
accept the proposition. We have already stated earlier that the right to
equal opportunity in the matter of promotion in the sense of a right to
be “considered” for promotion is indeed a fundamental right
guaranteed under Article 16(1) and this has never been doubted in any
other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of
U.P., (1997) 5 SCC 201 : 1997 SCC (L&S) 1299] right from 1950.”
(Emphasis supplied)
4.5 This position has recently been reiterated by the Hon’ble
Supreme Court of India, in Ajay Kumar Shukla v. Arvind Rai,5 and
paragraphs 40 and 42 are as under:
“40. ……Right to promotion is not considered to be a fundamental
right but consideration for promotion has now been evolved as a
fundamental right.
42. A Constitution Bench in Ajit Singh (2) v. State of Punjab [Ajit
Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S)
1239] , laying emphasis on Article 14 and Article 16(1) of the
Constitution of India held that if a person who satisfies the eligibility
and the criteria for promotion but still is not considered for
promotion, then there will be clear violation of his/her's fundamental
right.”
(Emphasis supplied)
5 (2022) 12 SCC 579
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4.6 Thus, a careful reading of the above, it would be clear that right
to consideration for promotion will be violated if only he is eligible and as per
criteria for promotion his consideration not made. Apart from eligibility such
as holding for feeder post, clearing of requisite examinations or having such
educational qualifications as per the rules, ‘willingness’ and coming within
the zone of consideration are all criteria for promotion as per the rules. Thus,
the General Rule 47 which allows relinquishment of promotion is regarding
the ‘right of promotion’ which he is entitled to forego and not relating to ‘right
to be considered for promotion’. To elaborate, if a person relinquishes
promotion, still when the names are called for, his name will also be shown by
further holding as ‘relinquished’. In view of his relinquishment, the next
person will come within the zone of consideration, while the person
relinquished will not be further considered on merits . Thus, when the person
does not fulfil the criteria of ‘willingness’ there can be no fundamental right to
be considered for promotion and in that sense, the relinquishment of
promotion can never operate as a relinquishment of fundamental right.
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4.7 Even in Padmavathi's case (cited supra) this position is
clarified in paragraph 15, whereunder the operation of the General Rule 49
was considered and held that the employee for his own health considerations
etc., can relinquish promotion and the General Rule 49 will have applicability
only for the purpose of foregoing/waiving the promotion but not for
consideration of promotion altogether.
4.8 Accordingly I answer the question that there is no violation of
any fundamental right to be considered for promotion merely because the
petitioner’s option to relinquish promotion has been accepted and acted upon
by the respondents.
4.9 The further contention is that the case of the petitioner ought to
have been considered by the Governor under General Rule 48. In this regard,
it is considering his own health conditions the petitioner in his wisdom chose
to relinquish promotion. Similarly, in his own wisdom for his personal reasons
he chose to voluntarily retire from service. Thereafter, just because the
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petitioner feels that more service benefits are flowing to his juniors, he cannot
have any after thought and definitely for that purposes, the extraordinary
powers cannot be exercised. The other grounds raised in the writ petition are
also equally without merits.
E. The Result:
5. In the result, the Writ Petition in W.P. No.29949 of 2011 is
dismissed. No costs. Consequently connected miscellaneous petitions are
closed.
08.12.2023
Jer
Index:Yes
Speaking Order: Yes
Neutral Citation: Yes
To
1.The Secretary to Government
State of Tamilnadu
Tourism and Culture Department
Fort St.George, Chennai – 600 009.
2.The Secretary to Government
State of Tamilnadu
P & A.R. Department
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Fort St.George, Chennai – 600 009.
D.BHARATHA CHAKRAVARTHY, J.,
Jer
Pre-Delivery Order made in
08.12.2023
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