Madras High Court
P. Dillibai vs The State Of Tamil Nadu on 13 March, 2023
W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.03.2023
CORAM
THE HON'BLE MR. JUSTICE D. KRISHNAKUMAR
and
THE HON'BLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
Writ Appeal No.1095 of 2017
and
C.M.P. No. 15342 of 2017
P. Dillibai .. Appellant
Versus
1.The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Finance Department,
Secretariat, Fort St. George,
Chennai – 600 009.
2.The Director of Pension,
DMS Complex, Teynampet,
Chennai – 600 006. .. Respondents
Writ Appeal filed under Clause 15 of Letter Patent, to set aside the
orders passed by this Court in W.P.No.12082 of 2017 dated 04.07.2017.
For Appellant .. Mr. A. Maheshnath
For Respondents .. Mr. S. Silambanan,
Additional Advocate General
Assisted by Mr.G.Ameedius,
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Government Advocate, and
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
Mr.Babu Barveez, Government Advocate
JUDGMENT
[Order of the Court was made by D. KRISHNAKUMAR, J.]
The appellant has come forward with this writ appeal assailing the order
dated 04.07.2017 dismissing the W.P. No. 12082 of 2017 filed by her.
2.The appellant was initially appointed as Record Clerk in the office of
the Deputy Director of Social Security on 02.09.1987 and she joined duty on
07.09.1987. Her service was regularised in the post of Record Clerk on
07.09.1987 and her probation was declared on 06.09.1988 as per the order
dated 30.08.1991. On 04.07.1997, the petitioner was promoted to the post of
Junior Assistant and as Assistant on 31.12.2001. On completion of ten years
of service in the cadre of Assistant, the petitioner was conferred with selection
grade on 30.12.2011 as per the proceedings dated 12.02.2013 of the Director
of Posts. On 13.11.2015, the petitioner was promoted to the post of
Superintendent and on 31.12.2017 she retired from service on attaining the age
of superannuation.
3.According to the petitioner-appellant, the Government issued orders in
G.O. Ms. No.531, Finance (Pension) Department dated 28.06.1994 for
formation of a separate Head of Department for pension and other retirement
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
benefits called as Department of Pension. Upon formation of such department,
all the posts in the office of Deputy Director of Social Security (Directorate of
Small Savings and Social Security) was brought under the administrative
control of Directorate of Pension with effect from 01.09.1994. However, no
separate Service Rules have been framed for the Directorate of Pension and no
inter se seniority has been ordered between the staff appointed in the
Directorate of Pension and those staff absorbed from the other departments.
Therefore, the staff absorbed from the Directorate of Social Security have been
considered for promotion based on Adhoc Rules framed for Directorate of
Small Savings and Social Security. According to the petitioner, the
Directorate of Small Savings and Social Security has requested to place the
incumbents working in their department on deputation but the staff have not
been absorbed periodically. It is contended that the petitioner had passed all
the departmental tests and is fully eligible for promotion to the post of
Assistant Treasury Officer from the post of Superintendent. Seeking
promotion to the said post, she had given a representation on 25.11.2016, but
it has not been considered.
4.The petitioner, aggrieved by the non-consideration of her
representation dated 25.11.2016, has filed WP No. 1473 of 2017 before this
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
Court for a Mandamus directing the Second respondent to pass orders
promoting her to the post of Assistant Treasury Officer, drafted from the
Directorate of Small Savings and Social Security, by considering her eligibility
as per the Adhoc Rules and Service Rules for the Directorate of Small Savings
and Social Security based on her representation dated 25.11.2016 with all
consequential benefits.
5.By order dated 20.01.2017, the writ petition was disposed of by
issuing a direction to consider the representation dated 25.11.2016 of the
petitioner on merits. Pursuant to such direction, an order dated 31.03.2017
was passed by stating that the claim of the petitioner will be considered as and
when vacancy in the post of Senior Superintendent arises in future on the basis
of seniority. Challenging the order dated 31.03.2017, the petitioner has filed
WP No. 12082 of 2017 before this Court.
6.The learned Single Judge, on considering the rival submissions,
refused to interfere with the order dated 31.03.2017 on the ground that none of
the junior of the petitioner have been given promotion to the higher post and
therefore, the department is right in not considering her claim for higher
promotion. It was also observed by the learned Single Judge that promotion
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
can never be claimed as a matter of right, but it is subject to availability of
vacancy, seniority and merits of the incumbents. Feeling aggrieved by the
order dated 04.07.2017, the present appeal is filed.
7.The learned counsel appearing for the appellant would contend that
the staff absorbed from the Directorate of Small Savings and Social Security
are governed by Adhoc Rules. The Directorate of Small Savings and Social
Security is no longer in existence after the formation of Department of Pension
by the Government vide G.O. Ms. No.707, Finance (Pension) Department
dated 22.08.1994. However, no separate Service Rules have been framed for
the Directorate of Pension and inter se seniority has not been fixed. The
promotion to the incumbents were given after getting permission from the
Government. Thus, the persons originally recruited in the erstwhile Social
Security Wing, who were subsequently absorbed in the Directorate of Pension,
are considered for promotion based on the order of permission issued by the
Government. Accordingly, the appellant was also given promotion to the post
of Assistant and further promotion to the post of Superintendent based on the
Adhoc Rules maintained for erstwhile Directorate of Small Savings and Social
Security. While so, the appellant is eligible for being promoted to the next
avenue of promotion to the post of Assistant Treasury Officer (ATO). In fact,
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
there was a post of Assistant Treasury Officer absorbed from the Deputy
Director of Social Security as per G.O. Ms. No.531, Finance (Pension)
Department dated 28.06.1994 and on merger, the said post has to be filled with
regular promotion with qualified person. But the further promotion to the post
of ATO has been denied inspite of the appellant possessing all the requisite
qualification. However, the promotion was denied on the specious plea that
there is no vacancy since the post of ATO/Senior Superintendent is held by
one Deva Narayanan on deputation from the Treasuries and Accounts
Department. According to the learned counsel, the post of ATO ought to have
been filled by conferring regular promotion and it cannot be filled by
deputation from the Treasuries and Accounts Department when eligible
persons are available for such promotion from among those who were
absorbed from the erstwhile Directorate of Small Savings and Social Security.
Even though the respondents in the counter affidavit have given certain facts
and figures, they have not mentioned anything in the impugned order about the
post held by Mr. Deva Narayanan or the ineligibility of the appellant to hold
the post. Further, in the impugned order, the second respondent has not
adverted to the fact as to whether the post of ATO retained by the erstwhile
Directorate of Small Savings and Social Security for being filled up by those
who were absorbed from that department or it was taken over by the newly
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
constituted Directorate of Pension. The second respondent also did not
consider the fact that the petitioner-appellant was due for promotion on
31.12.2017 and therefore, non-consideration of her claim for promotion to the
higher post is unsustainable. The learned Single Judge, without taking note of
the above facts, has dismissed the writ petition and it calls for interference by
this Court.
8.The learned Additional Advocate General appearing for the
respondents submitted that the qualification for promotion to the post of
Superintendent Grade-II and Assistant Treasury Officer are prescribed in G.O.
Ms. No.1305, Finance Department dated 25.11.1978. The appointment to the
posts shall be made by transfer from among the holders of the post of Sub-
Treasury Officer Grade-I/Accountant Grade-II in the Tamil Nadu Treasury
and Accounts Subordinate Service respectively. However, the Department of
Small Savings and Social Security, in which the petitioner was originally
appointed, got merged with the Directorate of Pension. As per the merger,
totally 117 posts got merged and they were ordered to be filled up by re-
deployment only. Therefore, the Director of Treasuries and Accounts as well
as the Director of Small Savings and Social Security were requested to place
the incumbents of the posts mentioned in annexure to G.O. Ms. No.531,
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
Finance (Pension) Department dated 28.06.1994 along with the work attended
to by them to the Directorate of Pension with effect from 01.09.1994 and they
will be treated as on deputation from their parent department. Therefore, the
posts from the various Departments merged with Department of Pension and
the employees working in these posts were also ordered to be redeployed in
the Directorate of Pension and the said posts had been filled by the Treasuries
and Accounts Department.
9.The learned Additional Advocate General further submitted that the
post of Superintendent will be filled up from the following post namely,
(i)Assistant Accounts Officer, (ii)Assistant Treasury Officer and (iii)Senior
Superintendent. He further submitted that the post of Senior Superintendent
exists only in Treasuries and Accounts Department and as per the Government
Order in G.O. Ms. No.531, Finance (Pension) Department dated 28.06.1994
and in G.O.Ms.No.707 Finance (Pension) Department dated 22.08.1994. The
post of Senior Superintendent in Directorate of Pension has to be filled by the
Treasuries and Accounts Department. He further stated that P. Devanarayanan
had continued in the post of Senior Superintendent even before and after the
retirement of the appellant. On transfer of P. Devanarayanan one P.Richard
Patrick, who is senior to the appellant had been posted from the Treasuries and
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
Accounts Department and he joined the Directorate of Pension on 26.07.2019
in the place of P.Devanarayanan, much after the retirement of the appellant.
Therefore, according to the learned Additional Advocate General, the
appellant was not considered for promotion for the post of Senior
Superintendent for the reasons that at the time, the said P.Devanarayanan has
been posted as Senior Superintendent, who is senior to her and when a senior
is very much available, the appellant cannot be considered for promotion. It is
further categorically stated by the learned Additional Advocate General that no
junior to the appellant had been promoted by depriving the promotion of the
appellant. Even the appellant has not stated in the affidavit that her juniors
were given promotion by overlooking her claim for promotion. Therefore, the
learned Single Judge is right in dismissing the writ petition filed by the
appellant and he prayed for dismissal of this writ appeal.
10.We have heard the learned counsel for the appellant and the learned
Additional Advocate General appearing for the respondents. At the outset, it
has to be pointed out that even in the affidavit filed in support of the Writ
Petition, the petitioner has not attributed any mala fide on the part of the
respondents in overlooking her claim for promotion or any of her junior was
conferred with promotion. When there is no vacancy to be filled to
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
accommodate the appellant, the respondents cannot be found fault with. In
fact, even in the order dated 31.03.2017, which was impugned in the writ
petition, it was only stated that the claim of the appellant will be considered as
and when vacancy to the post of Senior Superintendent arises in future. It is
an admitted fact that at the time when the order dated 31.03.2017 was passed
one Mr. Devanarayanan was holding the post of Senior Superintendent and he
is senior than the appellant. The further fact remains that on 31.12.2017 the
appellant retired and even as on the date of retirement, Mr. Devanarayanan
held the posts. Therefore, it is evident that there is no post available to
accommodate the appellant. In such circumstances, the learned Single Judge
is wholly justified in holding that the appellant cannot, as a matter of right,
seek for promotion and there is no illegality or infirmity in the order of
rejection dated 31.03.2017 passed by the second respondent.
11.In this context, we are fortified by the decision of the Delhi High
Court reported in 2013 SCC OnLine Del 1428, Union of India and Another Vs.
KL Taneja and Another wherein, in an identical circumstances, it was held
that unless the appellant satisfies that his or her right for promotion has been
denied by the respondents either by violating the specific rules or his or her
juniors have been promoted to the higher post, no relief could be granted.
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
Applying the ratio laid down by the Delhi High Court to the present case, we
are of the view that in the absence of any alleged malafide against the
respondents or any specific plea that the claim of the appellant for promotion
to the higher post was unduly overlooked by accommodating her junior, no
relief could be granted to the appellant. Moreover, the appellant retired from
service on 31.12.2017 and as on the date of her retirement, there is no vacancy
to accommodate her to the higher promotional post. At any angle, there is no
illegality or irregularity in the order passed by the writ Court in W.P.No.12082
of 2017 dated 04.07.2017. There is no merits in the writ appeal and the same is
liable to be dismissed.
12.Accordingly, the writ appeal fails and it is dismissed. No costs.
Connected Civil Miscellaneous Petition is closed.
(D.K.K.J) (K.G.T.J)
13.03.2023
Index:Yes/No
Internet:Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
smv
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W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
To
1.The Principal Secretary to Government,
Finance Department,
Secretariat, Fort St. George,
Chennai – 600 009.
2.The Director of Pension,
DMS Complex, Teynampet,
Chennai – 600 006.
https://www.mhc.tn.gov.in/judis
W.A.No.1095 of 2017 & C.M.P.No.15342 of 2017
D. KRISHNAKUMAR, J.
and
K. GOVINDARAJAN THILAKAVADI,J.
smv
W.A.No.1095 of 2017
and
C.M.P.No.15342 of 2017
13.03.2023
https://www.mhc.tn.gov.in/judis
