Madras High Court
Mohana vs The Secretary To The Government on 30 March, 2023
W.P.(MD).Nos.22760 to 22763 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.03.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).Nos.22760 to 22763 of 2018
and
W.M.P.(MD).Nos.9559, 16011, 16012, 16013, 16014 of 2019
W.P.(MD).No.22760 of 2018:
S.Balasubramanian (Died)
Mohana ... Petitioner
(Petitioner substituted as LRs vide Court Order dated 16.03.2023 in
W.M.P.(MD).No.5774 of 2021 in W.P.(MD).No.22760 of 2018)
Vs.
1.The Secretary to the Government,
Government of Tamil Nadu,
Highways and Minor Ports Department,
Secretariat,
Chennai – 600 009.
2.The Secretary to Government of Tamil Nadu,
Rural Development and Panchayat Department,
Secretariat,
Chennai – 600 009.
3.The Director General,
Highways Department,
H.R.S.Campus,
Guindy,
Chennai – 600 025.
https://www.mhc.tn.gov.in/judis
1/19
W.P.(MD).Nos.22760 to 22763 of 2018
4.The Director of Rural Development,
And Panchayat Department,
Panagal Building,
Saidapet,
Chennai – 600 015.
5.The Block Development Officer,
Panchayat Union,
Reddiarchatram,
Dindigul District – 624 622.
6.The Accountant General (A&E), Tamil Nadu,
No.361, Anna Salai,
Chennai – 600 018. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, directing the first respondent
to consider the representation of the petitioner dated 20.12.2017 for extending
the benefit of upgrading the post of Road Inspector Grade-II as Road Inspector
Grade-I on completion of 5 years of service by including the
Non-Provincialised pensionable service for the purpose of up-gradation and for
moving to the Selection Grade and Special Grade by issuing necessary
clarification sought for by the 6th respondent in his letter dated
PEN30/3/1-81/2016-17/103427 DT.31/1/17 within a reasonable time.
W.P.(MD).No.22761 of 2018:
S.Mohamed Mohideen ... Petitioner
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
Vs.
1.The Secretary to the Government,
Government of Tamil Nadu,
Highways and Minor Ports Department,
Secretariat,
Chennai – 600 009.
2.The Secretary to Government of Tamil Nadu,
Rural Development and Panchayat Department,
Secretariat,
Chennai – 600 009.
3.The Director General,
Highways Department,
H.R.S.Campus,
Guindy,
Chennai – 600 025.
4.The Director of Rural Development,
And Panchayat Department,
Panagal Building,
Saidapet,
Chennai – 600 015.
5.The Block Development Officer,
Panchayat Union,
Vadamadurai,
Dindigul District – 624 801.
6.The Accountant General (A&E), Tamil Nadu,
No.361, Anna Salai,
Chennai – 600 018. ... Respondents
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, directing the first respondent
to consider the representation of the petitioner dated 20.12.2017 for extending
the benefit of upgrading the post of Road Inspector Grade-II as Road Inspector
Grade-I on completion of 5 years of service by including the
Non-Provincialised pensionable service for the purpose of up-gradation and for
moving to the Selection Grade and Special Grade by issuing necessary
clarification sought for by the 6th respondent in his letter dated
PEN30/3/1-81/2016-17/103427 DT.31/1/17 within a reasonable time.
W.P.(MD).No.22762 of 2018:
M.Amaranathan (Died)
Muthulakshmi ... Petitioner
(Petitioner substituted vide Court Order dated 16.03.2023 in
W.M.P.(MD).No.18967 of 2021 in W.P.(MD).No.22762 of 2018)
Vs.
1.The Secretary to the Government,
Government of Tamil Nadu,
Highways and Minor Ports Department,
Secretariat,
Chennai – 600 009.
2.The Secretary to Government of Tamil Nadu,
Rural Development and Panchayat Department,
Secretariat,
Chennai – 600 009.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
3.The Director General,
Highways Department,
H.R.S.Campus,
Guindy,
Chennai – 600 025.
4.The Director of Rural Development,
And Panchayat Department,
Panagal Building,
Saidapet,
Chennai – 600 015.
5.The Block Development Officer,
Panchayat Union,
Vedasandur,
Dindigul District – 624 701.
6.The Accountant General (A&E), Tamil Nadu,
No.361, Anna Salai,
Chennai – 600 018.
7.Deepa ... Respondents
(R-7 is impleaded vide Court order dated 16.03.2023 in W.M.P.(MD).No.18969
of 2021 in W.P.(MD).No.22762 of 2018)
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, directing the first respondent
to consider the representation of the petitioner dated 20.12.2017 for extending
the benefit of upgrading the post of Road Inspector Grade-II as Road Inspector
Grade-I on completion of 5 years of service by including the
Non-Provincialised pensionable service for the purpose of up-gradation and for
moving to the Selection Grade and Special Grade by issuing necessary
clarification sought for by the 6th respondent in his letter dated
PEN30/3/1-81/2016-17/103427 DT.31/1/17 within a reasonable time.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
W.P.(MD).No.22763 of 2018:
S.Palanivelu ... Petitioner
Vs.
1.The Secretary to the Government,
Government of Tamil Nadu,
Highways and Minor Ports Department,
Secretariat,
Chennai – 600 009.
2.The Secretary to Government of Tamil Nadu,
Rural Development and Panchayat Department,
Secretariat,
Chennai – 600 009.
3.The Director General,
Highways Department,
H.R.S.Campus,
Guindy,
Chennai – 600 025.
4.The Director of Rural Development,
And Panchayat Department,
Panagal Building,
Saidapet,
Chennai – 600 015.
5.The Block Development Officer,
Panchayat Union,
Dindigul,
Dindigul District – 624 001.
6.The Accountant General (A&E), Tamil Nadu,
No.361, Anna Salai,
Chennai – 600 018. ... Respondents
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, directing the first respondent
to consider the representation of the petitioner dated 20.12.2017 for extending
the benefit of upgrading the post of Road Inspector Grade-II as Road Inspector
Grade-I on completion of 5 years of service by including the
Non-Provincialised pensionable service for the purpose of up-gradation and for
moving to the Selection Grade and Special Grade by issuing necessary
clarification sought for by the 6th respondent in his letter dated
PEN30/3/1-81/2016-17/103427 DT.31/1/17 within a reasonable time.
(In W.P.(MD).No.22760, 22761 and 22763 of 2018):
For Petitioners : Mr.R.Rengaramanujam
For R-1 to R-5 : Mr.P.Thambidurai
For R-6 : Mr.P.Gunasekaran,
Accountant General Standing Counsel.
(In W.P.(MD).No.22762 of 2018):
For Petitioner : Mr.M.E.Ilango
For R-1 to R-5 : Mr.P.Thambidurai
For R-6 : Mr.P.Gunasekaran,
Accountant General Standing Counsel.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
COMMON ORDER
The relief sought for by the petitioners in these Writ Petitions are one and
the same. Hence, common order is passed.
2. The Writ Petitions have been filed for Mandamus directing the first
respondent to consider the representation of the petitioner dated 20.12.2017. In
the representation the petitioners are praying to include the service of Road
Inspector under non provincialised work charged establishment for the purpose
of calculation of the Selection Grade and also promotion to the post of Road
Inspector Grade-I on completion of five years from the initial date of
appointment in terms of G.O.Ms.No.856 Public Works Department dated
01.06.1977. Also praying to extending the benefit of promotion to the post of
Road Inspector Grade-I on completion of five years as Road Inspector Grade-II
as held in W.P.(MD)No.7738 to 7749 of 2008 in respect of Retired Road
Inspectors of Highways, Ramanathapuram Division by order dated 12.12.2012
which was upheld by the bench of this Court in W.A.(MD)Nos.262 to 273 of
2016 and challenging the orders of the Hon'ble High Court, SLP was filed by
the respondents in SLP Diary No.22120 of 2017 and it was dismissed as
withdrawn on 01.09.2017. Therefore, the orders passed by the learned Single
Judge has attained finality.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
3. The brief facts of the case as stated in W.P.(MD)No.22760 of 2018 is
that the petitioner was appointed as Road Inspector Grade–II on 30.06.1971 in
terms of G.O.Ms.No.1856 Public Works Department dated 22.10.1969 and as
per the above G.O. the qualification for appointment to Road Inspector Grade-
II is a pass in IV form (9th standard) and one should not have completed 25
years of age and on completion of 10 years of service he can be promoted to
Road Inspector Grade-I. Thereafter the aforesaid period of 10 years was
reduced to 5 years. The contention of the petitioner is that though he is entitled
to promotion on completion of five years, he was not considered.
4. There is no promotional opportunities and one who was appointed as
Road Inspector and has to retire as Road Inspector. Hence in order to provide
promotional opportunities on completion of 10 years as Road Inspector Grade-
II the post was upgraded as Road Inspector Grade-I, which is subsequently
reduced to 5 years. There is no change in duties and responsibilities in respect
of upgradation and does not carry any higher responsibility than the post of
Road Inspector Grade-II, hence the pay was not fixed as per provisions of FR
22(b), but on contrary it is fixed in the next higher stage of the lower pay scale
or in the same stage of the higher pay scale intended for the post of Road
Inspector Grade-I as per the provisions of FR23.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
5. The said issue was already considered by the High Court in
W.P.(MD)Nos.7738 to 7749 of 2008, which was implemented by the
respondents. Hence based on the aforesaid order the revised pension proposals
were submitted to the 6th respondent through 5th respondent. But the same was
returned with an endorsement stating that “clarification from the government
has been sought for vide PEN30/3/1-81/2016-2017/103427, dated 31.01.2017
regarding the regularization of non provincialised service from the date of
appointment and it is still pending. Hence the petitioners are before this Court.
6. The respondents have not filed counter. However relied on the earlier
orders, especially the order passed in W.P.Nos.8036 and 8037 of 2013 in the
case of T.Ganesan and R.Natarajan Vs The State of Tamil Nadu, where it has
been specifically stated that the post of Road Inspector Grade-I is a promotive
post and it is not the post of upgradation. Therefore, the petitioners cannot seek
Selection Grade and Special Grade by counting the said 5 years (where it was
reduced from 10 years to 5 years) and seek Selection Grade and Special Grade
after completion of 10 years and 20 years. Moreover, in this case, one
S.Palanivelu in W.P.(MD).No.22763 of 2018, the Selection Grade in the post
of Grade-II post was granted on 01.01.1998, but on the same date, the said
Palanivelu was granted promotion to the post of Road Inspector Grade-I i.e. on
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
01.01.1998 itself. Therefore, the learned counsel appearing for the sixth
respondent submitted that fraud has been committed by the Highways
authorities. In fact, in the above stated Writ Petition in W.P.(MD).No.8036 of
2013, the learned Single Judge has also held that fraud has been committed
among the workers in the Highways Department. Therefore, the respondents
prayed to dismiss the Writ Petitions.
7. Heard Mr.R.Rengaramanujam and Mr.M.E.Ilango, learned counsel for
the petitioners, Mr.P.Thambidurai, learned Government Advocate, appearing for
the respondents 1 to 5 and Mr.P.Gunasekaran, learned Accountant General
Standing Counsel, appearing for the respondent no.6 and perused the records.
8. Pending Writ Petition, the writ petitioners in W.P.(MD).Nos.22760 and
22762 of 2018 died and their legal heirs are substituted vide order dated
16.03.2023.
9. The learned counsel appearing for the petitioners submitted that the
learned Single Judge in W.P.(MD).Nos.7738 to 7749 of 2008 dated 12.12.2012
has already granted relief sought for by the similarly placed persons and relied
on the relevant portion which is extracted hereunder:
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
7. A perusal of G.O.Ms.No.856, Public Works Department,
dated 01.06.1977 shows that it had dealt with the
qualification to the post of Road Inspectors Grade-II as
well as qualification to the promotion to the post of Road
Inspectors Grade-I. Therefore, there is absolutely no
quarrel with regard to the qualification prescribed to the
post of Road Inspectors Grade-II. When admittedly all
these petitioners have been appointed as Road Inspectors
Grade-II much earlier to the passing of G.O.Ms.No.856,
Public Works Department, dated 01.06.1977, the
qualification prescribed in the said G.O.Ms.No.856, Public
Works Department, dated 01.06.1977 cannot be applied to
the petitioners. But, while dealing with the qualification to
the post of Road Inspectors Grade -I by promotion, the said
G.O. has prescribed only 5 years of service as Road
Inspectors Grade-II and it does not make any distinction
between the persons who possess the qualification
prescribed as contemplated under the G.O.Ms.No.856,
Public Works Department, dated 01.06.1977 as well as the
persons who have been appointed prior to the said
G.O.Ms.No.856, Public Works Department, dated
01.06.1977. When such being the position, the petitioners
cannot be denied of their benefit under the said
G.O.Ms.No.856, Public Works Department, dated
01.06.1977 and consequently they are also entitled to be
considered for promotion to the post of Road Inspector
Grade-I, immediately after their completion of 5 years of
service as Road Inspector Grade-II.
8. The respondents are not justified in interpreting the said
G.O. only to say that the persons who are possessing the
said enhanced qualification alone are entitled to the
promotion to the post of Road Inspector Grade-I. As
already stated supra, the qualification prescribed to the
post of Road Inspector Grade-I are totally different and
distinguishable and therefore, the respondents cannot
confuse the issue and consequently, to deny the benefit of
the petitioners. Accordingly, by considering all the facts
and circumstances of the case, I find every force in the
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
claim made by the petitioners and consequently, I set aside
the impugned order passed by the first respondent and
direct the respondents to implement G.O.Ms.No.856, Public
Works Department, dated 01.06.1977 in the case of the
petitioners by giving communal promotion also and
disburse all the benefit available to them within a period of
12 weeks from the date of receipt of a copy of this order.
10. Pursuant to the aforesaid order, the respondents have preferred Writ
Appeal in W.A.(MD).Nos.262 to 273 of 2016. When the Writ Appeal was
taken up for hearing, the learned Additional Government Pleader submitted
before the Court that already order has been passed and the amount would be
released at the earliest. Recording the said submission, the Writ Appeals were
dismissed as infructuous. However, it was the contention of the Department that
such instructions were not given. Therefore, they preferred SLP before the
Hon'ble Supreme Court and the same was dismissed as withdrawn without
prejudice to any other remedy available in law to the respondents.
11. The contention of the respondents is that as against the order of
learned Single Judge, the respondents have preferred Review Petition and the
same is pending. However, this fact is refuted by the petitioners stating that
such review application is not pending before this Court.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
12. After hearing rival submission it is seen that there are two different
judgments rendered by Learned Single Judges, one is W.P.(MD).Nos.7738 to
7749 of 2008 (Thirunavukkarasan case) and other one is W.P.(MD).Nos.8036
and 8037 of 2013 (T.Ganesan case). The Learned Single Judge in
Thirunavukkarasan case has held that the respondents ought to have uniformly
applied the 10 years service to all the stake holders, but the respondents have
granted promotion to some of the employees on completion of 10 years of
service and to the other persons, the respondents have taken only 5 years of
service. The another Learned Single Judge in the case of T.Ganesan has held
that the 5 years service is one of the qualification prescribed for promotion to
the post of Road Inspector Grade-I and has held that the provisions of the Act
specifically uses the word “promotion” and has not used the word
“upgradation”. However, the higher officials in the Highways Department
however have treated the promotion as upgradation and has conferred
promotion to some of the employees by giving retrospective promotion. For
example, the writ petitioner in W.P.(MD)No.22760 of 2018 namely
Balasubramanian was appointed as Grade-II Road Inspector on 30.06.1971 and
he would be entitled to promotion on completion of 10 years as per old law that
is on 30.06.1981. But the respondents have granted promotion in the year 1990
but has given effect from 1981 which means the respondents are conferring
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
promotion by giving retrospective effect. The Learned Single Judge has come
down heavily on the respondents and held the respondent are virtually treating
the word “promotion” as “upgradation” and granted promotion to the stake
holders thereby wasted the Government money. Generally, the promotion
should be granted based on merit and ability, when merit and ability are equal,
seniority should be taken into account. However, promotion will be granted
based on the sanctioned post in availability of vacancies. Such policy was never
followed by the Highways Department at all. The learned Single Judge has
elaborately dealt with the legal provisions in T.Ganesan case. However, the
learned Single Judge in Thirunavukkarasan case has not dealt with the
provisions rather has not discussed the provisions at all. Therefore, this Court is
constrained to follow the judgment rendered in T.Ganesan and not on the
judgment of Thirunavukkarasan case, since it has not specifically taken into
account the provisions of law, more so when the word “promotion” is used and
not “upgradation”. Therefore, this Court is of the considered opinion that the
petitioners are not entitled to claim automatic promotion or automatic
upgradation.
13. Now, the respondents are facing Contempt proceedings in
Thirunavukkarasan case. In order to get over the same, the respondents are
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
filed Review Application and the same is in SR stage. This fact is simply
recorded.
14. The next contention of the petitioners are that as per G.O.Ms.No.893
Public Works (HM2) Department dated 22.08.1994, the non-provincialised
service has been taken into account for the purpose of pension and other
retirement benefits. Therefore, the petitioners are seeking to grant Selection
Grade and Special Grade in the post of Road Inspector Grade-I by taking into
the reduction of period from 10 years to 5 years. Also contended that the
similarly placed persons have already filed Writ Petitions and obtained an order
and that order has attained finality. Since the petitioners were similarly placed
person, the petitioners are seeking same benefits that was extended to 12 other
persons. This Court is of the considered opinion that as far as the Selection
Grade and Special Grade is considered, if the petitioners are stagnating in the
Road Inspector Grade-II post without promotion or upgradation, then they are
entitled to Selection Grade on completion of 10 years in the post of Road
Inspector Grade-II. Likewise entitled to Special Grade on completion of 20
years in the post of Road Inspector Grade-II. Since because the qualification
period was reduced from ten years to five years, the petitioners are seeking
Selection Grade on completion of five years and Special Grade on completion
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
of 10 years is totally against the concept of Selection Grade and Special Grade
and also against the rules and regulations. Therefore, this Court is not inclined
to grant any relief in this issue as well and the writ petition ought to be
dismissed.
15. With the above observations, the Writ Petitions are dismissed. There
shall be no order as to costs. Consequently, connected miscellaneous petitions
are closed.
30.03.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
Nsr
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
To
1.The Secretary to the Government,
Government of Tamil Nadu,
Highways and Minor Ports Department,
Secretariat, Chennai – 600 009.
2.The Secretary to Government of Tamil Nadu,
Rural Development and Panchayat Department,
Secretariat, Chennai – 600 009.
3.The Director General,
Highways Department,
H.R.S.Campus,
Guindy, Chennai – 600 025.
4.The Director of Rural Development,
And Panchayat Department,
Panagal Building,
Saidapet, Chennai – 600 015.
5.The Block Development Officer,
Panchayat Union,
Reddiarchatram, Dindigul District – 624 622.
6.The Block Development Officer,
Panchayat Union,
Vadamadurai, Dindigul District – 624 801.
7.The Block Development Officer,
Panchayat Union,
Vedasandur, Dindigul District – 624 701.
8.The Block Development Officer,
Panchayat Union,
Dindigul,
Dindigul District – 624 001.
9.The Accountant General (A&E), Tamil Nadu,
No.361, Anna Salai,
Chennai – 600 018.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.22760 to 22763 of 2018
S.SRIMATHY, J.
Nsr
W.P.(MD).Nos.22760 to 22763 of 2018
30.03.2023
https://www.mhc.tn.gov.in/judis
