Madras High Court

P.Rangasamy vs The State Of Tamil Nadu on 20 July, 2023

                                                                                   WP No.19437 of 2017

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 20.07.2023

                                                            CORAM


                                     THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN

                                                     WP No.19437 of 2017


                     P.Rangasamy                                                  ... Petitioner

                                                               -Vs-

                     1.           The State of Tamil Nadu
                                  Rep. by its Principal Secretary to Government
                                  Transport Department,
                                  Secretariat, Fort St. George,
                                  Chennai 600 009.

                     2.           The Managing Director
                                  State Express Transport Corporation Ltd.,
                                  No.2, Pallavan Salai,
                                  Chennai – 600 002.

                     3.           The General Manager (Administration)
                                  State Express Transport Corporation Ltd.,
                                  No.2, Pallavan Salai,
                                  Chennai – 600 002.                              ... Respondents




                     Page 1 of 13


https://www.mhc.tn.gov.in/judis
                                                                                    WP No.19437 of 2017

                     PRAYER: Writ Petition under Article 226 of the Constitution of India
                     praying for a Writ of Mandamus directing the respondents to consider the
                     petitioner for promotion to the post of Superintendent by migration from
                     Miscellaneous Group to Working Group as Miscellaneous Group
                     Administrative Employee for promotion to the post of Superintendent based
                     on G.O.Ms.No. 79 Transport (C1) Department dated 30.60.2015 as per
                     Seniority of the petitioner in Miscellaneous Group and to promote the
                     petitioner to the post of Superintendent on par with his junior with all
                     consequential and other attendant benefits by considering the representation
                     submitted by the petitioner dated 13.07.2015, 04.08.2016, 09.03.2017 and
                     01.06.2017 within a time frame to be fixed by this Hon'ble Court.
                                                              ***
                                  For Petitioner         :     Mr. J.Jayamalan
                                                               for Mr. G.Sankaran

                                  For Respondents        :     Mr.K. Kathiresan

                                                             ORDER

Writ Petition has been filed in the nature of Mandamus seeking a

direction to the respondents particularly the third respondent, the General

Manager (Administration), State Express Transport Corporation Ltd., at

Chennai, to consider the petitioner for promotion to the post of

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Superintendent by migration from Miscellaneous Group to Working Group

as Miscellaneous Group Administrative Employee for promotion to the post

of Superintendent. The petitioner places reliance on G.O.Ms.No. 79

Transport (C1) Department dated 30.60.2015.

2. The petitioner had been initially appointed as Store Keeper on

06.04.1982 in the erstwhile Thiruvallur Transport Corporation (TTC) now

renamed as State Express Transport Corporation. The service of the

petitioner had been regularised with effect from 01.09.1986 by an order

dated 01.12.1989 in order no.61907/A2/T.Po.Ka/88. After regularising the

service of the petitioner, a seniority list was also prepared and the petitioner

was placed at Serial No.7.

3. In the respondent organisation or corporation, there are two

separate groups of employees, one termed as working class and the other as

Miscellaneous class. The petitioner had all the time thought that he fell

under Miscellaneous class. The one distinction between the two classes of

workers was that there was a promotional avenue available for those in the

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working class and there was no corresponding promotional avenue for those

who belonged to Miscellaneous class.

4. There was a settlement under Section 12(3) of the Industrial

Disputes Act 1947 and it was then decided that promotion would be granted

on a proportional basis. This would mean that for every two employees of

the working class who are promoted to Superintendent or to the next higher

grade of office, one from the Miscellaneous class would be so considered.

For this, a comprehensive list of both classes was then prepared.

5. The petitioner's name did not find place in that particular list. It

is for that reason that the Writ Petition has been filed seeking to place the

petitioner in the Miscellaneous Group so that when the time comes and the

opportunity arises, the petitioner can be promoted as Superintendent.

6. In the counter affidavit, the respondents have justified not

choosing the petitioner under the Miscellaneous Group by stating that he

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was initially appointed as Store Keeper in the Canteen and therefore, could

not be categorised as being either under the working category or

Miscellaneous Category. It is contended that the petitioner belongs to what

the respondents term as Contingent category.

7. I hold that no employee can kept as a spare. No employee

could be kept aside and stated that his service would be called for only when

the need arise. He may be allotted work when the need arises. But he would

be a full time employee or an employee on daily wages.

8. The service of the petitioner had been regularised with effect

from 1986 by an order dated 01.12.1989. The petitioner had been absorbed

into the service of the respondents. It is not important whether he falls or

does not fall under the Miscellaneous category. He was claimed not to be

entitled for promotion since he was definitely not under the working

category. There cannot be a separate sub class formed by the respondents

to putting a group of employees merely because they worked as Store

Keepers as contingent category. This statement as stated in the counter

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affidavit is rejected by me. The petitioner should have been accommodated

in the Miscellaneous category and his seniority should have been fixed

accordingly.

9. The learned counsel for the respondents stated that the

petitioner had been appointed as Store Keeper and there were no guidelines

that the post of Store Keeper would fall under the Miscellaneous Group.

10. The one primary condition of any service is that when a

promotion avenue opens up every employee should be treated on par with

those similarly placed who are considered for promotion. The petitioner's

service having been regularised, he should have been treated on par with

those who had been similarly regularised.

11. The grievance of the petitioner further multiplied since his

juniors, had been promoted. This cannot be permitted.

12. I will have to necessarily interfere with the refusal of the

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respondents to consider the petitioner's claim to be placed in the

Miscellaneous Group and later to be considered for promotion as and when

the opportunity arises.

13. It is contended on behalf of the petitioner that by a letter dated

08.10.2003, the petitioner, who was working as Store Keeper, had been

transfered to work in the Disciplinary Action Section. He was then was

posted to PRO Section. This effectively means that the petitioner has not

been stagnated in the Canteen and his services has been utilised in various

Departments, atleast in the above two departments. Therefore, there is no

justification in excluding the petitioner from being categorised or being

included in the Miscellaneous category.

14. The learned counsel for the petitioner placed reliance on the

Judgment of the Hon'ble Supreme Court which also dealt with a class of

employees, who did not have promotional avenue open to them.

15. In (2004) 9 SCC 65 [ State of Tripura and others Vs.

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K.K.Roy), the Hon'ble Supreme Court has held as follows:-

“5. The matter came up for consideration again in Dr. Ms. O.Z. Hussain Vs. Union of India [1990 (Supp) SCC 688] wherein this Court in no uncertain terms laid down the law stating:

"...Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers..."

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6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of appointment, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is

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granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to herein before, it was expected that the Appellant should have followed the said principle.”

16. The Hon'ble Supreme Court had stated that it is the

Constitutional obligation on the part of the State to create promotional

avenue for every employee. Even if there are no promotional avenue, pay

protection has to be extended. It would create from anomalous situation if

juniors are promoted. The Court will have to necessarily come to the rescue

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of the petitioner.

17. The petitioner is directed to be included in the Miscellaneous

category and considered for promotion and he should be included in the

Miscellaneous category right from the date on which his service was

regularised and his seniority in the Miscellaneous Group should be refixed

and if promotion opportunity had opened up, he should considered for