Madras High Court
The Special Officer vs G. Muthamilselvan on 3 October, 2023
WA No. 1753 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.10.2023
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal No. 1753 of 2022
and
C.M.P. No. 12642 of 2022
---
1. The Special Officer
Greater Chennai Corporation
Ripon Buildings
Chennai - 600 003
2. The Commissioner
Greater Chennai Corporation
Ripon Buildings
Chennai - 600 003
3. The Regional Deputy Commissioner (Central)
Greater Chennai Corporation
No.36-B, 2nd Cross Street
Pulla Avenue, Shenoy Nagar
Chennai - 600 030
4. The Assistant Commissioner (GA & P)
Greater Chennai Corporation
Ripon Buildings
Chennai - 600 003 .. Appellants
Versus
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WA No. 1753 of 2022
1. G. Muthamilselvan
Assistant Executive Engineer
Co-ordinator
Office of Chief Engineer (General)
Greater Chennai Corporation
Chennai - 600 003
2. V. Gughan
Assistant Executive Engineer
Zone-IX
Greater Chennai Corporation
Chennai - 600 034
3. V. Radha
Assistant Executive Engineer
Mechanical Engineering Department
Greater Chennai Corporation
Chennai - 600 003
4. K. Prabhudass
Assistant Executive Engineer
Zone - IV
Greater Chennai Corporation
Chennai - 600 021
5. S. Gomathi
Assistant Executive Engineer
Zone - VII
Greater Chennai Corporation
Chennai - 600 053
6. A. Muthukumarasamy
Assistant Executive Engineer
Quality Control Department
Greater Chennai Corporation
Chennai - 600 003
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WA No. 1753 of 2022
7. K.M. Archana
Assistant Executive Engineer
Mechanical Engineering Department
Greater Chennai Corporation
Chennai - 600 003
8. R. Ashok Kumar
Assistant Executive Engineer
Bridges Department
Greater Chennai Corporation
Chennai - 600 003
9. P. Arivzhagan
Assistant Executive Engineer
Quality Control Department
Greater Chennai Corporation
Chennai - 600 003
10. M. Jegan
Assistant Executive Engineer
North Regional Office
Greater Chennai Corporation
Chennai - 600 021
11. S.V. Akilandeswari
Assistant Executive Engineer
Mechanical Engineering Department
Greater Chennai Corporation
Chennai - 600 003
12. S.K. Moorthy
Assistant Engineer
Zone - X
Greater Chennai Corporation
Chennai - 600 024
13. T.S. Saravanan
Assistant Engineer
Zone - X, Greater Chennai Corporation
Chennai - 600 082
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WA No. 1753 of 2022
14. S. Ashok Sudhakar
Son of Late. P. Sankara Moorthy
Old No. 70, New No.4
South Mada Street, Padi
Chennai - 600 050 .. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the
Order dated 23.03.2022 passed in Writ Petition No. 18770 of 2020 on the file
of this Court.
For Appellants : Mr. Ramanlal, Additional Advocate General
assisted by Mrs. Rama Devi
For Respondents : No appearance for RR2, 3, 4, 5, 6, 7, 8, 9, 10
and 11
Mr. C. Ravichandran for R14
JUDGMENT
(Judgment of the Court was delivered by R.MAHADEVAN, J)
This writ appeal is filed by the appellants, questioning the correctness
and validity of the order dated 23.03.2022 passed by the learned Judge in
allowing the writ petition No. 18770 of 2020 filed by the contesting 14th
respondent herein.
2. The above referred writ petition was filed by the 14th respondent/
writ petitioner by stating that on 07.02.2017, while he was working as
Assistant Engineer in the Corporation of Madras, a charge memo was issued to
him alleging that he failed to take action against the unauthorised construction
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WA No. 1753 of 2022
put up by some persons. He submitted his explanation on 15.02.2017.
Notwithstanding the explanation offered, an enquiry officer was appointed for
conducting disciplinary proceedings. After conducting enquiry, an order dated
09.03.2017 came to be passed by the disciplinary authority imposing the
punishment of stoppage of increment for a period of six months without
cumulative effect. Aggrieved by the order of punishment, the 14th respondent
/ writ petitioner filed a statutory appeal before the appellate authority, but it
was rejected on 10.08.2017. Thereafter, the punishment imposed on the 14th
respondent / writ petitioner was given effect to and it was in force from
01.04.2017 to 01.10.2017.
3. According to the 14th respondent / writ petitioner, three years
from the date on which his punishment was over, a tentative seniority list
dated 25.07.2020 was circulated, but to his surprise, his name was not
included therein. Subsequently, on 16.09.2020, the second appellant prepared
a panel for the year 2018-2019 for promotion to the post of Assistant
Executive Engineer and on the same day, issued the impugned proceedings
selecting the respondents 5 to 18 in the writ petition/respondents 1 to 13 herein
for promotion to the post of Assistant Executive Engineer. It was further
submitted by the 14th respondent / writ petitioner that the promotees are
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WA No. 1753 of 2022
juniors to him in the feeder category post of Assistant Engineer and there is no
justification to deny him promotion to the higher post. Questioning the
rationale in promoting his juniors, the 14th respondent / writ petitioner
preferred a statutory appeal to the fourth appellant, but the same was rejected
on 20.10.2020 by stating that the currency of punishment imposed on the writ
petitioner is in force. In other words, it was reasoned that the five year check
period operates as an embargo for conferring promotion to the writ
petitioner/14th respondent as contemplated under the provisions of the Tamil
Nadu Government Servants (Conditions of Service) Act, 2016, and therefore,
he is not entitled to promotion. Challenging the orders of rejection, the 14th
respondent / writ petitioner filed the writ petition.
4. Before the learned Judge, the foremost contention urged on behalf
of the writ petitioner was that the provisions of the Tamil Nadu Government
Servants (Conditions of Service) Act, 2016 has no application to his case and
that he is governed by Chennai Corporation Class-III and IV Service
(Discipline and Appeal) by-laws, 1983 and also the provisions of Chennai
Corporation Engineering Service Rules, 1969. It was therefore contended that
the five year check period contained in the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016 will not be a bar for conferring promotion to
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WA No. 1753 of 2022
the writ petitioner. It was also contended that denial of promotion to him by
citing the five year bar is arbitrary and it amounts to gross violation of the
rights guaranteed to him under Articles 14 and 21 of The Constitution of India.
Therefore, the writ petitioner/14th respondent herein prayed for allowing the
writ petition.
5. A counter affidavit was filed by the fourth respondent in the writ
petition viz., Assistant Commissioner (GA & P), General Department, Greater
Chennai Corporation, stating inter alia that the period of punishment imposed
on the writ petitioner ends on 01.11.2017. However, as per Schedule XI,
Part - A, Clause 11 (11) of the Tamil Nadu Government Servants (Conditions
of Service) Act, 2016, the writ petitioner is not eligible for promotion for a
period of five years prior to the crucial date. The crucial date for the panel
drawn to the post of Assistant Executive Engineer is 01.06.2019 and the
operation of five years check period against the writ petitioner commences
from 09.03.2017 till 08.03.2022. Therefore, the name of the writ petitioner in
the panel dated 01.06.2019 was not included. It was further stated that the writ
petitioner is seeking promotion to the post of Assistant Executive Engineer,
which is classified as Class II category and such promotion is governed by the
provisions of Tamil Nadu Government Servants (Conditions of Service) Act,
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WA No. 1753 of 2022
2016. Therefore, the claim of the writ petitioner was not considered for
promotion to the post of Assistant Executive Engineer.
6. On consideration of the rival submissions, the learned Judge
allowed the writ petition filed by the writ petitioner/14th respondent herein by
order dated 23.03.2022. The relevant portion of the same reads as follows:
"21. The fact that the petitioner herein belong to Class-III service
is not in dispute nor is it in dispute that he is seeking promotion to Class
II service (Assistant Executive Engineer). In this regard, two divergent
arguments have been advanced opposing each other. On behalf of the
petitioner, the learned counsel contended that since the petitioner
presently belongs to Class III service, the conditions of service as laid
down by the Corporation alone would be applicable. On the other hand,
the contention of the Corporation counsel is that the promotion being to
Class-II service, it is governed by the Government Rules and Regulation
as the Corporation Bye-laws are applicable only to Class III and Class
IV services.
22...........
23...........
24. The contention on behalf of the Corporation is that the
subject promotion being to Class II service (Assistant Executive
Engineer), the Act, 2016, any circular/order issued by the Government
governing all the Government servants alone are to be made
automatically applicable to such appointment by promotion and not the
by-laws of the Corporation. According to the counsel, the applicability of
the by-laws ought to be confined to appointment/promotions within Class
IV and Class III services. This Court is unable to appreciate the stand of
the Corporation as canvassed by the counsel in the teeth of the clear
provisions contained in Sections 85 and 86 of the Act, 1919. With a view
to explicate the position, for clearer understanding, sub-clauses 3(a) and
(b) of Section 85 of the Act, 1919 are once again extracted hereunder.
(a) Every appointment to any post included in class 1-A
shall be made by the State Government.
(b) Every appointment to any post included in class I-B
or Class II shall be made by the council and shall be subject to
confirmation by the State Government.
25. From the above, it could be clearly deduced that the
appointing authorities are different in respect of appointment to any post
included in Class 1-A and appointment to any post included in Class 1-B
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WA No. 1753 of 2022
or Class-II. In so far as the former, the appointing authority is the
Government. For the latter, it is the council, subject to confirmation by
the Government. The above provision must be read in conjunction with
Section 86 of the Act 1999 is reproduced hereunder once again for due
appreciation.
86. Conditions of service of corporation establishment:-
(1) Save as otherwise provided in this Act, the classification, methods
of recruitment, conditions of service, pay and allowances and
discipline and conduct of the corporation establishment shall be
regulated-
(i) in the case of Class I-A, Class I-B and Class II officers, by rules
made by the State Government in this behalf ;
(ii) in the case of the employees included in Class III and Class IV,
by by-law made by the council under section 349:
An officer said to be governed by the rules made by the State Government,
if he or she belongs to class I-A, Class I-B and Class II. Class III and IV
are governed by the by-laws made by the Council. The petitioner herein
can said to come within the grip of the Act, 2016 or any regulation that
are applicable to Government servants after the appointment to Class II
Service and not before.
26. In such circumstances, insofar as the subject appointment
for promotion is concerned, from Class III to class-II, the conditions of
service that are applicable to Class II service cannot be pressed into
service at all. Therefore, the contention on behalf of the Corporation by
the learned counsel is misplaced, erroneous and liable to be
discountenanced. On the other hand, this Court finds persuasive force in
the contention of the learned counsel for the petitioner that the conditions
of service as laid down by the Corporation Establishment covering
Class-III and IV services alone would be applicable. In such event, as
rightly contended by him the 5 year embargo as contemplated in the Act
2016 as relied on by the Corporation can have no application and
consequently, denial of promotion on that basis is legally unsustainable.
27. Although, the learned counsel for the Corporation argued
vehemently that the State Government is overall in charge of all services
and that included the Corporation Services therefore, the conditions of
service applicable to the Government servants in terms of the scheme of
the Act 2016 are automatically applicable to the services of the
Corporation employees, does not inspire this Court to be persuaded for
its acceptance. Such sweeping statement unsupported by any materials
demonstrating that the Corporation has indeed adopted the Act 2016 in
respect of its employees, particularly class III and IV services, being
admittedly governed by the by-laws of the Council, in terms of Section
86 of the Act, 1919. In the absence of a pari materia provision namely 5
year bar in the Madras (Chennai) Corporation Class III and Class IV
Service (Discipline and Appeal) By-laws, the petitioner herein cannot
stated to have suffered disqualification at the relevant point of time for
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WA No. 1753 of 2022
consideration of his promotion. As stated above, in the absence of any
material being produced before this Court that the respondent
Corporation has adopted the Act, 2016, for all its services, the argument
putforth on that basis is to be rejected as being devoid of merits and
substance.
28. As a matter of fact, the Corporation is governed by its own
Service Rules for recruitment/promotion and it is also governed by its
own Conduct Rules. It was framed in 1968 called Chennai Corporation
Servants Conduct Rules, 1968 and so is Disciplinary and Appeal Bye-
Laws which came into force in 1993. As referred to above, once, the
confirmation has been granted under Section 352 of the Act 1919 by the
State Government, the sanctity of the bye-laws cannot be questioned or
assailed. The confirmation comes from the Government only after
exercising power by the Corporation Council in terms of Section 349 and
in that view of the matter, it is not open to the Corporation to contend
that the promotion from Class III to Class II service is governed by the
provision relied upon by the Corporation in terms of the Act, 2016.
29. At the risk of repetition it is to be held that when a Class III
Service person claims promotion to Class II post, the claim of such
employee is to be considered within the framework of the provisions that
are applicable to Class III service. When the bye-laws are framed in
consonance with the provisions of the Chennai City Municipal
Corporation Act, 1919 as per Section 349, the same would have
precedence over any other provision or Act. As long as the by-laws are
in force, the same would have complete application in governing the
service conditions of Class III employees. Merely because the petitioner
is seeking promotion to Class II service, certain provisions of Act 2016
cannot be pitchforked into the claim of the petitioner, resulting in denial
of his rightful claim for his promotion to the post of Assistant Executive
Engineer along with his juniors.
30. As regards the two decisions cited by the learned counsel for
the Corporation, the first one W.A.No.546 & 620 of 2015 dated
05.10.2018. That was a case relating to the position held by the
petitioner therein, namely Zonal Head Officer which was a Class II post.
In that factual context, some discussion centred around applicability of
certain provisions of the Tamil Nadu State and Subordinate Service. This
Court after perusing the judgment does not see any relevance to the facts
and the controversy herein. The decision appears to have been rendered
on the entirety of the facts of that case. This Court is unable to
countenance the applicability of the decision herein at all.
31..............
32. For all the above reasons, this Court finds that the
foundational reason for rejection of the petitioner-s claim cannot be
countenanced in law. In the said circumstances, the Writ Petition is
allowed. The two impugned orders passed by the 2nd respondent in
Po.Thu.Na.Ka.No.E1/15211/2019 dated 16.09.2020 and the
consequential order passed by
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WA No. 1753 of 2022
Po.thu.Na.Ka.No.E1/21580/2020 dated 20.10.2020 are hereby set aside.
33. The respondents 1 to 4 are directed to pass consequential
order, promoting the petitioner as Assistant Executive Engineer in Class
II service category on par with his juniors who were promoted
(respondents 5 to 18) in the panel year 2019-20.
34. On such promotion being granted, the petitioner is also
entitled to all attendant benefits like pay fixation, allowances, arrears
and fixation of seniority etc.
35. The above encompassing directions are necessary in view of
the admitted stand of the Corporation itself that the petitioner was
otherwise eligible and senior to be considered for promotion in the
panel year 2019-20.
36. The official respondents are directed to pass appropriate
orders in this regard within a period of four weeks from the date of
receipt of a copy of this order. No costs. Consequently, connected
miscellaneous petitions are closed."
The aforesaid order dated 23.03.2022 passed by the learned Judge is assailed
herein.
7. Mr. Raman Lal, learned Additional Advocate General appearing
for the appellants would contend that the provisions of the Tamil Nadu
Government Servants (Condition of Service) Act, 2016 is applicable to the
case of the writ petitioner/14th respondent. The learned Additional Advocate
General, referring to Section 85(3)(a) of the Chennai City Municipal
Corporation Act, would contend that every appointment to any post included
in Class 1-A shall be made by the State Government. As per Section 85 (3) (b),
every appointment to any post included in Class 1-B or Class II shall be made
by the council and shall be subject to confirmation by the State Government.
Therefore, the provisions of the Chennai City Municipal Corporation Act are
not applicable to the case of the writ petitioner. It is also submitted that the
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WA No. 1753 of 2022
writ petitioner is seeking promotion to the post of Assistant Executive
Engineer, which is categorised as Class-II category. In other words, the writ
petitioner is presently holding a Class-III post viz., Assistant Engineer and the
post of Assistant Executive Engineer, to which, he sought promotion, is
classified as Class-II category and therefore, he is governed by the provisions
of the Tamil Nadu Government Servant (Condition of Service) Act, 2016.
That apart, Section 86 of the Chennai City Municipal Corporation Act, 1919
specifies that Class-1A and 1B Officers are regulated by the Rules made by the
State Government. According to the learned Additional Advocate General, the
writ petitioner/14th respondent, being an employee of the Corporation is a
public servant. On the other hand, if it is the argument of the writ
petitioner/14th respondent that he cannot be regarded as a public servant, then
the protection under Article 311 (1) of the Constitution of India will not enure
to his benefit. In such a situation, no employee of the local body or other
Corporations can invoke the provisions under Article 226 (1) of the
Constitution of India and file writ petition before this Court in the event of his
/ her termination on the ground of unconstitutionality. The Corporation is
under the administrative control of the Municipal Administration and Water
Supply Department. The Service Rules of the Government are very much
applicable to the employees working in the corporation. The writ petitioner,
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WA No. 1753 of 2022
on the other hand, relies on the Engineering Service Rules, 1969 which were
framed for classification of Engineers and the method of their appointment.
Thus, according to the learned Additional Advocate General, as per the
provisions of the Tamil Nadu Government Servants (Condition of Service)
Act, 2016, the check period is in force and hence, the writ petitioner/14th
respondent cannot be conferred with promotion to the higher post. The learned
Judge, without taking note of the above aspects, allowed the writ petition filed
by the 14th respondent herein. Therefore, the learned Additional Advocate
General prayed for setting aside the order of the learned Judge by allowing this
appeal.
8. Per contra, Mr. C. Ravichandran, learned counsel appearing for
the contesting 14th respondent would contend that the appointing authorities
are different in respect of appointment to the posts included in Class 1-A and
Class 1-B or Class-II. Insofar as the posts falling within Class 1-A, the
Government is the appointing authority. On the other hand, for the posts
falling under Class 1-B or Class-II, the appointing authority is the Council of
Corporation. However, such appointment by the Corporation Council is
subject to confirmation by the Government. Therefore, the question of
operation of check period against the writ petitioner will not arise. The period
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of punishment imposed on the writ petitioner was over and there was no
currency of punishment in force. This was rightly appreciated by the learned
Judge and the writ petition filed by the writ petitioner/14th respondent herein
was allowed. Hence, there is no requirement for this court to interfere with the
order of the learned Judge.
9. We have heard the learned Additional Advocate General
appearing for the appellants as well as the learned counsel for the contesting
14th respondent and also perused the records.
10. On analysis of the aforesaid facts, it is evident that during the
course of employment as Assistant Engineer in Corporation of Madras, the
14th respondent herein was subjected to disciplinary proceedings by issuing a
charge memorandum dated 07.02.2017. Ultimately, the disciplinary
proceedings culminated in an order dated 09.03.2017 passed by the
disciplinary authority, imposing the punishment of stoppage of increment for a
period of six months without cumulative effect. Admittedly, the period of
punishment was enforced between 01.04.2017 and 01.10.2017 and there was
no currency of punishment in force as against the 14th respondent as on
02.10.2017. However, when a panel was drawn for the year 2018-2019 for
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promotion to the post of Assistant Executive Engineer, the name of the 14th
respondent was excluded purportedly on the ground that five year check
period operates as an embargo for inclusion of his name in the panel for
promotion. Aggrieved by the same, the 14th respondent approached the writ
court.
11. The learned Judge held that the provisions of Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 has no application for
the 14th respondent who is holding the post of Assistant Engineer, which is
the feeder category post for promotion to the post of Assistant Executive
Engineer. Referring to the provisions of the Chennai City Municipal
Corporation Act, the Chennai Corporation Service Conduct Rules, 1968 as
well as the Tamil Nadu Government Servant (Conditions of Service) Act,
2016, the learned Judge concluded that the 14th respondent is holding a
Class III post in the Corporation of Madras and hence, he is governed only by
the provisions of the Corporation Service Conduct Rules, 1968 and
consequently, the check period of five years cannot be made applicable to the
post held by him. Aggrieved by the same, the appellants are before this court
with the present appeal.
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12. It is the specific contention of the learned Additional Advocate
General appearing for the appellants that the appointment to the post of
Assistant Engineer held by the 14th respondent, was admittedly made by the
Council of Corporation. However, after such appointment is made, it is for the
State Government to accord concurrence/approval for the same. In such
circumstances, it cannot be said that the provisions of the Tamil Nadu
Government Servant (Conditions of Service) Act, 2016 will not be applicable
to the post held by the 14th respondent insofar as it relates to the enforceability
of punishment imposed against him. Thus, the five year check period imposed
by the State Government is equally applicable to the 14th respondent and
consequently, his name cannot be included for further promotion to the post of
Assistant Executive Engineer.
13. It is not in dispute that the post of Assistant Engineer held by the
14th respondent falls within Class III category in the establishment of the
Corporation of Madras. This is fortified from Section 85 of the Chennai City
Municipal Act, 1919, wherein, it was clearly envisaged that the post of
Assistant Engineer appointed in the service of the Corporation, falls under
Class III. The service conditions of the employees so appointed under Class III
shall be regulated only by the by-laws made by the Council of Corporation.
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On the other hand, it is an admitted fact that the post of Assistant Executive
Engineer, to which promotion is sought by the 14th respondent, falls within
Class II category. The said post of Assistant Executive Engineer only falls
within the scope and ambit of the provisions of the Tamil Nadu Government
Servant (Service Conditions) Act, 2016, as is evident from Section 85 (b) of
the Chennai City Municipal Corporation Act, 1919. In other words, the
promotional post of Assistant Executive Engineer only will fall within the
rigour of the provisions of the Tamil Nadu Government Servant (Service
Conditions) Act, 2016 and the operation of check period of five years is
applicable. This was rightly appreciated by the learned Judge while allowing
the writ petition filed by the 14th respondent herein and hence, the same does
not call for any interference by this court.
14. In such view of the matter, the Writ Appeal fails and it is
accordingly, dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
(R.M.D., J) (M.S.Q., J)
03.10.2023
Index : Yes/No
Neutral Citation : Yes/No
Speaking/Non-Speaking Order
rsh
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WA No. 1753 of 2022
R. MAHADEVAN, J
and
MOHAMMED SHAFFIQ, J
rsh/rk
1. The Special Officer
Greater Chennai Corporation
Ripon Buildings
Chennai - 600 003
2. The Commissioner
Greater Chennai Corporation
Ripon Buildings
Chennai - 600 003
3. The Regional Deputy Commissioner (Central)
Greater Chennai Corporation
No.36-B, 2nd Cross Street
Pulla Avenue, Shenoy Nagar
Chennai - 600 030
4. The Assistant Commissioner (GA & P)
Greater Chennai Corporation
Ripon Buildings
Chennai - 600 003
WA No. 1753 of 2022
03.10.2023
https://www.mhc.tn.gov.in/judis
