Madras High Court
S.Kajamydeen vs The Managing Director on 7 July, 2023
W.P.(MD).No.20081 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25.01.2023
DELIVERED ON : 07.07.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.20081 of 2018
and
W.M.P(MD)Nos.17838 and 17839 of 2018
S.Kajamydeen ... Petitioner
Vs.
1.The Managing Director,
Tamilnadu State Transport Corporation (Madurai) Limited,
Byepass Road,
Madurai-16.
2.The General Manager,
Tamilnadu State Transport Corporation (Madurai) Limited,
Virudhunagar Region,
Virudhunagar District.
3.The Tamil Nadu Arasu Pokkuvarathu Oozhiyar,
Sammelanam Affiliated with CITU,
V.P.Chinthan Memorial Hall,
Represented by its,
General Secretary K.Arumuga Nainar,
52, Cooks Road,
Perambur,
Chennai. ... Respondents
(R-3 is impleaded vide Court Order dated 07.07.2023 in W.M.P.(MD).No.
21509 of 2018 in W.P.(MD).No.20081 of 2018)
1/18
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W.P.(MD).No.20081 of 2018
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, calling for the
records connected with impugned order in Parvai:Virudu/Nir/A2/2018, dated
18.01.2018 passed by the second respondent and quash the same and
consequently direct the second respondent to prepare the Revised Seniority List
of Drivers for Graduates and Non-Graduates for promotion to the post of
Driving Instructor and to place the petitioner in the appropriate place of
seniority list of Graduate Drivers.
For Petitioner : Mr.S.Govindan
For R-1 and R-2 : Mr.J.Senthil Kumaraiah,
Standing Counsel.
For R-3 : Mr.B.Saravanan,
Senior Counsel.
Amicus Curiae : Mr.A.Rahul
ORDER
This Writ Petition is filed to quash the impugned order dated 18.01.2018
and consequently direct the second respondent to prepare the Revised Seniority
List of Drivers for Graduates and Non-Graduates for promotion to the post of
Driving Instructor and to place the petitioner in the appropriate place of
seniority list of Graduate Drivers and pass orders.
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W.P.(MD).No.20081 of 2018
2. The petitioner joined the service as Driver on 26.09.2007 and was
promoted as Senior Grade Driver on 01.08.2014. The petitioner is possessing
M.A. Degree and his next avenue of promotion is Driving Instructor / Time
Keeper as per the Common Service Rules and as per G.O.Ms.No.38 dated
13.02.1997. The first respondent is a Corporate Office and the second
respondent’s region is functioning under the control of the first respondent.
There are 7 Transport Corporations functioning under the control of the
Government of Tamil Nadu and a Common Service Rules is applicable to all
the Transport Corporations, which came into force from 22.05.1987.
Subsequently, G.O.Ms.No.38 Transport Department dated 13.02.1997 was
passed extending the benefit of 25% quota for promotion of Senior Grade
Drivers with Graduate Degree for promotion as Driving Instructor / Time
Keeper. According to SI.No.4(a) of “Part C” of Appendix of the Common
Service Rules, the promotion to the post of Checking Inspector shall be filled
up from among the Selection Grade Conductors to the extent of 75% who are
having prescribed qualification and remaining 25% shall be filled up from the
among Senior Grade Conductors who possessed Degree qualification.
Subsequently, G.O.Ms.No.38 Transport Department dated 13.02.1997 was
issued extending the benefit of 25% quota for Graduate Conductors to the
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W.P.(MD).No.20081 of 2018
Drivers also who are having degree qualification. Hence, the contention of the
petitioner is that he is entitled to be promoted as Driving Instructor. The Tamil
Nadu State Transport Corporation, Villupuram is a sister concern has allotted
25% quota promotion to the Drivers who are having degree qualification. One
such Senior Grade Driver namely S.Murugan who is having degree
qualification was promoted under 25% quota by an order dated 03.02.2014. The
petitioner is aggrieved since the said promotion was not granted to him. The
contention of the petitioner is that the respondents ought to have prepared a
separate seniority list of Drivers both under 75% category and under 25%
category intended for Graduate Drivers. But the respondent had prepared only
one seniority list which is violative of Rules. In the seniority list as on
01.10.2017, wherein, 7 Drivers were shown as eligible to be promoted as
Driving Instructor. But only 2 Drivers had passed S.S.L.C and other 5 Drivers
were having 8th standard qualification. Hence, the respondents have violated the
Rules by showing the ineligible Drivers to be considered for promotion as
Driving Instructor. Subsequently, the respondent had published the seniority
list dated 18.01.2018 fixing the cutoff date as 01.01.2018 in which only names
of 28 persons were shown as eligible Drivers for promotion as Driving
Instructor, but most of the Drivers were having 8th standard qualification which
is violative of Rules. In this list the petitioner's name was not in the seniority
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W.P.(MD).No.20081 of 2018
list exclusively prepared for Graduate Drivers. Moreover, the respondents have
not circulated the list of seniority, thereby depriving the petitioner from
submitting any objection. The petitioner had submitted several representations
dated 22.01.2018, 05.04.2018, 07.07.2018, 12.07.2018 and 23.08.2018. Since
the same was not considered, the petitioner has challenged the impugned
seniority list.
3. The Tamil Nadu Arasu Pokkuvarathu Oozhiyar Sammelanam
Affiliated with CITU, V.P.Chinthan Memorial Hall has filed the impleading
petition in this Writ Petition in W.M.P.(MD).No.21509 of 2018. The petitioner
has filed his objection to the impleading petition stating that the impleading
respondent who is the third party has filed a Writ Petition in W.P.(MD).No.
14444 of 2012 on the very same issue and the same was dismissed by this
Court vide order dated 26.08.2014. Moreover, the impleading petition is not
maintainable as per the judgment of this Court in W.P.No.8870 of 2008 and
other batches vide order dated 08.09.2009, since the Association cannot
maintain Writ Petitions. However, this contention of the writ petitioner was
refuted by the impleading respondent by stating that Sammelanam is not
Association, but is affiliated to the recognized Union, hence, the impleading
petitioner has every right to contest the case. On perusal of the citations
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W.P.(MD).No.20081 of 2018
referred by the petitioner it is seen that this Court has held that Association
cannot maintain, since the impleading petition is affiliated to CITU union, this
Court is inclined to entertain the impleading petition and the same is allowed.
4. The respondents have filed a counter stating that the petitioner was
appointed as a Daily Wage Driver on 01.03.2008 and thereafter, his service was
regularized. Then he was redesignated as Senior Driver with effect from
01.08.2014. The writ petitioner has challenged the impugned seniority list of
Selection Grade Drivers as on 01.01.2018 dated 18.01.2018. As per the
Common Service Rules applicable to the respondent Corporation, Selection
Grade Drivers are entitled to get promotion to the post of Driving Instructor on
seniority basis. Since the petitioner is in the post of Senior Driver and not in the
post of Selection Grade Driver, hence, the petitioner is not eligible to get
promotion to the post of Driving Instructor and the writ petition is not
maintainable. As far as the allegations regarding G.O.Ms.No.38 Transport
Department dated 03.02.1997 as stated in paragraph no.7 of the affidavit is
concerned, the respondents deny the same. The said G.O. states that “Drivers
now recruited with S.S.L.C qualification may be treated on par with Conductors
while considering for promotion to posts like Time Keeper, Accident Inspector
etc. A ratio of 3:1 between Conductors and Drivers may be adopted for
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W.P.(MD).No.20081 of 2018
promotion”. As per G.O.Ms.No.64, Transport C1 Department on 23.02.1999,
10th Standard or SSLC pass is the educational qualification for the candidates
for appointment in the post of Drivers. Prior to this Government Order, 8th
Standard pass is the educational qualification for appointment to the post of
Driver. Subsequently, as per G.O.Ms.No.263, Transport C1 Department, dated
08.10.2010, the educational qualification has been refixed as 8th Standard pass
instead of 10th Standard or SSLC pass. Hence, the 8th Standard pass Drivers are
also eligible to get promotion to the post of Driving Instructor. Moreover, in
12(3) Settlement arrived between the Management and Unions there is no
mention with regard to promotion to the Drivers who acquired degree in
educational qualification. Even according to the Common Service Rules, there
is no provision to grant promotion to the Drivers who acquired degree
qualification. Therefore, the respondents have not violated the Common
Service Rules and Government Orders, 12(3) settlements under Industrial
Dispute Act, 1947 in awarding promotion to the Selection Grade Drivers to the
post of Driving Instructor. Since the petitioner has not attained the post of
Selection Grade Drivers, he is not eligible to get promotion to the post of
Driving Instructor. The impugned seniority list was prepared for the Selection
Grade Drivers for their promotion to the post of Driving Instructor. When the
petitioner attains the post of Selection Grade Driver, his name would be
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W.P.(MD).No.20081 of 2018
included in the seniority list of Selection Grade Drivers. If any vacancies arise
in the post of Driving Instructor, the Transport Corporation shall follow the
seniority list prepared as per the Common Service Rules and senior most
Selection Grade Drivers shall be promoted as Driving Instructors. Hence, the
Writ Petition is devoid of merits. Therefore, the respondents prayed to dismiss
this Writ Petition.
5. Heard Mr.S.Govindan, the Learned Counsel appearing for the
petitioner, Mr.J.Senthil Kumaraiah, the Learned Standing Counsel for the
respondents, Mr.B.Saravanan, the Learned Senior Counsel for the impleaded
respondent and Mr.A.Rahul, the Amicus Curiae and perused the records.
6. The first contention of the petitioner is that as per G.O.Ms.No.38 dated
13.02.1997, the Graduate Drivers are entitled to be considered for promotion.
The relevant portion of the said Government Order is extracted hereunder:
“Drivers now recruited with S.S.L.C Qualification may be treated on
par with Conductors while considering for promotion to posts like
time-keeper, accident Inspector etc. A ratio of 3:1 between
Conductors and Drivers may be adopted for promotion.
3. After careful consideration, the Government accept the
recommendation extracted in para 2 above for implementation after
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W.P.(MD).No.20081 of 2018
considering the service rule governing the Time-keeper / Accident
Inspector in State Transport undertakings”.
The said Government Order only states the persons can be considered to
the post like Time-Keeper, Accident Inspector and it has never ever stated that
they can be considered for Driving Instructor. Therefore, the very basis of
claim of the petitioner is on the wrong presumption. Moreover, the said
G.O.Ms.No.38 states that “Drivers now recruited with SSLC qualification”
since the said G.O.Ms.No.38 was issued on 13.02.1997 it will be applicable
from 13.02.1997 onwards and applicable to the Drivers who were recruited
thereafter. It is pertinent to note that the respondents have filed a counter stating
that the SSLC pass was fixed in G.O.Ms.No.64, Transport C1 Department dated
23.02.1999. Subsequently, G.O.Ms.No.263 dated 08.10.2010 was passed again
reducing the basic qualification from 10th Standard to 8th Standard. The said
G.O.Ms.No.38 dated 13.02.1997 and G.O.Ms.No.64 dated 23.02.1999 was
passed in the year 1997 and 1999 only, but the subsequent G.O.Ms.No.263
again reducing from 10th standard to 8th standard was passed on 08.10.2010.
Hence the G.O.Ms.No.263 ought to be applied be applied for fixing the
educational qualification of Drivers. Hence the G.O.Ms.No.38 dated
13.02.1997 ought to be read as, pass in 8th Standard and not SSLC qualification.
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W.P.(MD).No.20081 of 2018
7. The next contention that was raised by the petitioner is that the
Common Service Rule is applicable to all the Transport Department. On
perusing the Common Service Rules, for the post of Driving Instructor, the
qualification that is prescribed is, by promotion from among the holders of
Selection Grade Drivers who have passed 10th or SSLC and who have been
regular in attendance during the last 3 years. The relevant portion is extracted
hereunder:
S. No Name of the post Qualifications
5 Driving Instructor By promotion from
among the holders of the
post of Selection Grade
Drivers (HTV) who have
passed standard X or
SSLC and who have
been regular in
attendance during the last
three years
The said Common Service Rules specifically states that the candidates
who are holding the Selection Grade Drivers are eligible for the said post. As
rightly pointed out by the respondents in the counter that the petitioner has not
reached the Selection Grade Driver category and he is only Senior Driver.
Therefore, the petitioner cannot be considered for the promotion of Driving
Instructor.
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W.P.(MD).No.20081 of 2018
8. But the real issue that was raised by the petitioner is that the Graduate
Drivers should be considered ahead of other Drivers who is not having
Graduate degree. When the basic qualification prescribed for Driver is only
SSLC as per G.O.Ms.No.64 dated 23.02.1999, which was subsequently reduced
to 8th Standard in G.O.263 dated 08.10.2010. And when the Common Service
Rules had not distinguished the Graduates and Non-Graduates, the claim of the
petitioner to grant promotion to Graduate Drivers ahead of Non-Graduate
Drivers is erroneous. The only Government Order that is giving a preference to
the Graduate Drivers is G.O.Ms.No.38. But the said Government Order is not
granting the benefit to consider for the post of Driving Instructor at all. It only
states to consider for the post of Time-Keeper, Accident Inspector etc. As per
the Common Service Rules, for Time-Keeper, the qualification prescribed
under Rule 4 is extracted hereunder:
4. a) Checking Inspector/ i) By promotion from among the Selection
Grade Conductors (third level) and Senior
Time Keeper.
Conductors (second level) in the Working
Group, in the following manner:-
And a) 75% of the promotion, from among the
b) Junior Checking Inspector/ Selection Grade Conductors (third level) in
the Working Group to the post of Checking
Timekeeper. Inspector / Timekeeper (Second level) in the
Miscellaneous Group, as follows--
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W.P.(MD).No.20081 of 2018
(1) 50% from among the Selection Grade
Conductors who possess MGEQ or any
higher qualification, and
(2) 50% from among the Selection Grade
Conductors who have passed Form
III/Standard VIII or any higher qualification.
(b) 25% of the promotions from among the
Senior Conductors (second level) in the
Working Group, who possess a Degree in
Arts or Science or Commerce, to the post of
Junior Checking Inspector / Junior Time
Keeper (first level) in the Miscellaneous
Group.
OR
ii) By direct recruitment, to the post of Junior
Checking Inspector/Junior Timekeeper.
Note:- The ratio between appointment by
promotion and by direct recruitment shall be
3:1.
9. But the Common Service Rules states to provide the post of Time-
keeper to the Conductors and not to the Drivers. In none of the place, the word
Driver is used. It is not seen from records that G.O.Ms.No.38 was incorporated
in the Common Service Rules. Even it is taken that as per G.O.Ms.No.38
Driver is granted Time-Keeper post but there also a ratio of 3:1 (3 Conductors
and 1 Driver) ought to be followed. Therefore, the claim of the petitioner
cannot be considered, until the Common Service Rule is amended. There is no
12(3) Settlement to consider the Graduate and Non-Graduate claim. Therefore,
the petitioner has not made out any case.
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W.P.(MD).No.20081 of 2018
10. This Court appointed Mr.A.Rahul, as Amicus Curiae. The Learned
Amicus Curiae has submitted that as per the various settlements, the guidelines
for promotion to the higher post will be on the basis of merit cum seniority and
not on any other basis. Therefore, the claim of the petitioner to grant on the
basis of Graduate Degree is without any basis. Moreover, the Learned Amicus
Curiae also submitted that the seniority is the only criteria for certain posts in
the Transport Department for which he relied on the 12(3) Settlement entered
between the parties on 04.01.2018, where it is stated as under:
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K:g;g[ gl;oay; (Panel) jahhpj;J kw;Wk; ,ju jFjpfspd;
mog;gilapy; (jFjpfhz; gUtk; cl;gl) ghprPypj;J clDf;Fld;
gjtp cau;t[ tHq;fg;gLk;.
11. The Driver of TNSTC are entitled to Review benefits with scale of
pay. As per first settlement dated 01.09.1997, the review benefits are stated as
under:
TNSTC – Driver – Three Review – Pay Scale – Details.
1st Settlement 01.09.1997
As per 10th Settlement 01.09.2007 Driver Scale as detailed below:
i. First entry level Driver Scale 5335-90-6055-100-8255.
ii. First Review – 6 years – Senior Driver Scales 5455-115-8905.
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W.P.(MD).No.20081 of 2018
iii. Second Review – 8 years (14) Selection Driver Scale
5525-115-6675-120-9075.
iv. Third Review – 10 years (24) Special Grade Driver Scale
5525-135-6520-145-9855.
As per settlement condition – After getting 24 years Third Review Senior D.I.
Promotion given up to 2007 - 10th Settlement.
Pay Scale – 5645-135-6590-145-9925.
12. Subsequently, as per settlement from 01.09.2010, 01.09.2013,
01.09.2016, the review benefits are as follows:
TNSTC – Driver – Five Review – Pay Band – Details.
As per Settlement from 01.09.2010, 01.09.2013, 01.09.2016
First entry Driver Pay band 5200-20200-G.P. 1700-Level I
First six years Review – Senior Driver Pay band 5200 – 20200 – G.P. 1900 –
Level II
Second Seven Years (13) Review – Selection Grade Driver
Pay band 5200-20200-G.P.2100 - Level III
Third Seven Years (20) Review – Special Grade Driver
Pay band 5200-20200-G.P.2100 - Level IV
Fourth Seven Years (27) Review – Special Grade Driver
Pay band 5200-20200-G.P.2300 - Level V
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W.P.(MD).No.20081 of 2018
Fifth Five Years (32) Review – Special Grade Driver
Pay band 9300-34800-G.P.4200 - Level VI
Current Promotion method
After passing fourth review Driving Instructor promotion pay band goes
to 9300-34800-G.P.4300.
As per Common Service Rule If Driving Instructor promotion given in
the Third Review (Selection Grade Driver) Pay band goes to
9300-34800- G.P.4300.
13. The Selection Grade can be awarded from the senior Driver after 7
years. Therefore, the petitioner ought to wait until he attains the Selection
Grade Driver, which he can achieve after working as Senior Grade Driver for 7
years or more. In other words, the petitioner after entering into the basic Driver
post has to wait for 6 yeas to get into Senior Driver Grade, thereafter he has to
put in service for 7 years to reach the Selection Grade Service, altogether he has
to serve 13 years to reach the Selection Grade. Even if the petitioner has
reached the Selection Grade, he has to wait for his seniority. Therefore, the
petitioner has not made out any case. Hence, this Court is inclined to dismiss
this Writ Petition and hence the writ petition is dismissed.
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W.P.(MD).No.20081 of 2018
14. The services rendered by Mr.A.Rahul, the learned Amicus Curiae are
appreciated and this Court records the valuable assistance provided by him and
his fee is fixed as Rs.3,500/- (Rupees Three Thousand Five Hundred only) and
the same shall be paid by the High Court Legal Service Authority attached to
the High Court of Madras, Madurai Bench.
15. With the above observations, this Writ Petition is dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
07.07.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
Nsr
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W.P.(MD).No.20081 of 2018
To
1.The Managing Director,
Tamilnadu State Transport Corporation (Madurai) Limited,
Byepass Road,
Madurai-16.
2.The General Manager,
Tamilnadu State Transport Corporation (Madurai) Limited,
Virudhunagar Region,
Virudhunagar District.
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W.P.(MD).No.20081 of 2018
S.SRIMATHY, J.
Nsr
W.P.(MD).No.20081 of 2018
07.07.2023
https://www.mhc.tn.gov.in/judis
