Madras High Court
B.Suresh Kumar vs 3 The Secretary on 7 September, 2023
WP.No.23614/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 07.09.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.23614/2016
B.Suresh Kumar ... Petitioner
Versus
1 The Chairman cum Managing
Director, Tamilnadu Generation and
Distribution Corporation, No.144, Anna Salai
Chennai-2.
2 The Chief Engineer (Personnel)
Tamilnadu Generation and Distribution
Corporation, No.144, Anna Salai, Chennai-2.
3 The Secretary
Tamilnadu Generation and Distribution
Corporation, No.144, Anna Salai, Chennai-2. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorarified mandamus calling for the
entire records connected with the impugned order passed by the 2nd
respondent vide Memo No.040352/59/G.15/G.151/2014-1 dated 23.05.2015
and quash the same and consequently direct the respondents 1 and 2 to
1
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revise the seniority of the petitioner and place him in the appropriate place in
the seniority list in Memo No.770/E3/1/89-2 dated 02.09.1989 in the light
of the recommendation of the Chief Audit Committee dated 23.04.2010 and
by promoting the petitioner as Superintending Engineer/ Mechanical and
Chief Engineer/ Mechanical with monetary benefits on par with his Junior
Thiru.T.Sankarapandian.
For Petitioner : Mr.S.N.Ravichandran
For Respondents : Mr.K.Rajkumar
Standing Counsel
ORDER
(1) The writ petition has been filed in the nature of a certiorarified
mandamus seeking records relating to an order of the 2nd respondent,
Chief Engineer [Personnel], Tamilnadu Generation and Distribution
Corporation, Chennai, dated 23.05.2015 and to quash the same and to
direct the respondents 1 and 2 to revise the seniority of the petitioner
and to place him in the appropriate place in the seniority list in Memo
No.770/E3/1/89-2 dated 02.09.1989 in the light of the
recommendation of the Chief Audit Committee dated 23.04.2010 and
by promoting the petitioner as Superintending Engineer/ Mechanical
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and Chief Engineer/ Mechanical with monetary benefits on par with
his Junior Thiru.T.Sankarapandian.
(2) Even before proceeding to examine the affidavit filed by the petitioner,
it is to be noted that the junior of the petitioner namely,
Thiru.T.Sankarapandian, has not been made as a party to the writ
petition.
(3) The petitioner had been appointed through Employment Exchange as
Switch Board Operator in the respondent Electricity Board. He then
passed his AMIE examinations in the year 1984 and was appointed as
Assistant Engineer/Mechanical through internal selection by a draft
panel list of the Board in August 1989 and the seniority list in which
the petitioner was placed as Assistant Engineer in the year 1985 is the
subject matter of the present writ petition. The petitioner has serious
grievances over his placement in which he had been placed as
Assistant Engineer. Subsequently, however, it must also be noted that
the petitioner had been promoted to the post of Assistant Executive
Engineer on 23.05.1994 and as Executive Engineer on 27.4.2012 and
as Superintending Engineer/Mechanical on 17.9.2014 and at the time
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of filing of the writ petition, he was so working as Superintending
Engineer/Mechanical. There are no records to show that the
petitioner's promotion was to his disadvantage and that juniors had
been promoted ahead of him as Assistant Engineers or as Executive
Engineers or as Superintending Engineers. Documents to that effect,
that the petitioner had raised a protest at that particular stage about
the promotion being denied or rather, delayed and that the juniors had
been promoted ahead of him, had not been the bone of contention by
the learned counsel for the petitioner and arguments were also not
advanced on that particular ground.
(4) The petitioner however, claims that when he was initially posted as
Assistant Engineer in the year 1985 through internal selection
consequent to passing of the AMIE Examinations in the year 1984,
his seniority had been wrongly fixed. In this connection, reference is
made to the manner in which the promotion should be given as
between direct recruits and those selected through internal selection.
The ratio is 1:1. The first place should go to those who had been
selected through internal selection and the second place to those who
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had been selected through direct recruitment. During the course of
arguments, a comparison has been made with one another Assistant
Engineer by name A.Velmurugan, who had given a representation on
12.03.2007 and taking note of the fact that he had been appointed as
direct recruit to the post of Assistant Engineer/Mechanical, that
particular representation was considered. It is also to be noted that
the seniority list had been circulated and the petitioner does not deny
that he was not aware of the seniority list at the time when it was so
circulated way back in the year 1985. There has been no protest
raised by the petitioner at that particular point of time or when the
next promotional avenue came up for further promotion as Assistant
Executive Engineer on 23.05.1994.
(5) The learned counsel for the petitioner placed very strong reliance on
the amendment which had been brought in by the Board Proceedings
in BP.MS.[FB] No.3, Administrative Branch dated 18.01.1986. By
the said Board Proceedings wherein the ratio 1:1 had been fixed
between the internal selection and direct recruitment to the post of
Assistant Engineer / Electrical, Mechanical and Civil, the earlier
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Regulation 1997 of the Tamil Nadu Electricity Board Service
Regulations, had been re-examined and thereafter, the Board had
directed that appointments to the post of Assistant Engineer/Electrical,
Mechanical and Civil, by internal selection and by direct recruitment,
shall be in the ratio of 1:1. It had been stated that the cyclic order
should be first one should follow the cycle, internal selection and then
direct recruitment. It had also been stated that necessary amendments
to the Service Regulations should be issued. Accordingly, the said
amendment had also been issued and this had also been brought in as
Regulation/Rule for such promotion to the post of Assistant
Engineers, vis-a-viz., direct recruits to the post of Assistant Engineers.
As stated, this was in the year 1985. The first inclination when the
petitioner had raised a protest against the said seniority list as
prepared, was on 22.09.2008. On that particular date, the petitioner
had been subsequent promoted as Assistant Executive Engineer.
There is no grievance raised that his promotion had been directly
affected by the incorrect placement of his seniority in the post of
Assistant Engineer. This particular representation given by the
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petitioner on 22.09.2008 was replied by the Chief Engineer,
TANGEDCO, by a communication dated 24.11.2008 in Memo
No.099360/G.15/G.151/2008-1. The said communication issued by
the Chief Engineer is as follows:-
''With reference to the above, Thiru
B.Sureshkumar, Assistant Executive
Engineer/Mechanical/Kodayar Power House /
Generation Circle, Tirunelveli, is informed that his
request for revising his seniority and place his name
above the name of Thiru.T.Sankarapandian, [now
E.E./Mechanical/Kadamparai] who has joined in the
Board's service only on 27.11.1985 is not feasibile of
compliance.
[BY ORDER OF THE CHAIRMAN]
K.SELVARAJU
[CHIEF ENGINEER/PERSONNEL]''
(6) The petitioner had then given a further representation after that
particular rejection of his earlier representation. The second
representation given by him was on 10.06.2009. Much reliance is
placed on the internal proceedings of the Board among three separate
officials wherein the second representation given by the petitioner had
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been discussed. The learned counsel for the petitioner placed very
strong reliance on the following notings:-
''33.It is noticed that no uniform procedure has
been followed by the Administrative Branch in
preparation of seniority list for Assistant Engineer
during the year 1985. The Assistant
Engineer/Mechanical seniority list have been
prepared based on the guidelines issued with
reference to B.P.No.3 dated 18.01.1986. Whereas the
seniority list of Assistant Engineer/Electrical prepared
based on the prevailing guidelines available during
1985 [i.e.] ''determined by the rank obtained by the
employee in the list of approved candidates drawn
up''. For adopting two different procedure in the
Assistant Engineer seniority for those who have joined
during 1985 the Administrative Branch has not
offered any justification in the note file.
34.In this connection the Deputy
Secretary/Administration has clarified in this Letter
No.33788/A.22A/A.223/2009-2 dated 01.06.2009 that
B.P.Ms.[FB] No.3 [Admn.Br.] dated 18.01.1986 came
into force with effect from 18.01.1986 as it is an
executive order.
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35.In this same issue the legal cell has opined
on page [11] and [12] that the seniority has to be
fixed only based on the existing orders in force during
the year 1985 and recommended for considering the
revision of seniority if mistakenly fixed by Board.
36.Based on the above facts it is recommended
that the revision of seniority in respect of Thiru
B.Sureshkumar, Assistant Engineer/Mechanical may
be considered.
Sd/--- Sd/--- Sd/---
A.A.O/F.3 D.C.I.A.O C.I.A.O''
(7) It is therefore, insisted by the learned counsel for the petitioner that
the amendment has not been properly appreciated and no uniform
procedure had been followed by the Administrative Branch in
preparation of the seniority list for Assistant Engineers during the year
1985. It had been stated that it had been prepared on the guidelines
issued with reference to the Board Proceedings No.3 dated
18.01.1986, whereas, it had been stated that the seniority list of
Assistant Engineer / Electrical has to be prepared on the basis of the
prevailing guidelines available during 1985. It is thus seen that a
distinction was sought to be made as between Assistant
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Engineer/Mechanical and Assistant Engineer/Electrical and Assistant
Engineer/Civil, in the preparation of seniority list, though, right
through the stand of the respondents is that all Assistant Engineers
whether they are in electrical line or in the mechanical line or in the
civil line, were to be treated uniformly. In the proceedings above,
particularly, in paragraph No.33 extracted above, a noting had been
stated that there is a difference in the approach by the Administrative
section while determining seniority between Assistant
Engineer/Mechanical and Assistant Engineer/Electrical and Assistant
Engineer/Civil. The said noting had not been put into effect. It runs
contrary to the earlier stand of the respondents that all the three
categories should be treated equally and there cannot be a distinction
among the three. Finally, in the noting above, it had been stated that
the seniority with respect to the petitioner who was working in the
post of Assistant Executive Engineer/Mechanical, may be considered.
This cannot be taken as a binding recommendation or a binding order,
that it should be definitely considered and that the seniority should be
revised accordingly. If it is to be done so, then the entire seniority list
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will have to be revised. A fresh seniority list will have to be issued.
Remarks would have to be called for from everybody who will be
affected or whose seniority would be re-adjusted.
(8) The petitioner has sent a further representation on 23.05.2011 once
again seeking that his seniority may be revised by keeping the
Assistant Engineer/Mechanical appointed through internal selection
during August 1985 as a separate list. Thus, the grievance of the
petitioner is to distinguish between Assistant Engineer/Mechanical,
Assistant Engineer/Electrical and Assistant Engineer/Civil. There has
been no such distinction in the Regulations produced before this
Court. All the three Assistant Engineers have been placed in the same
category and there cannot be an internal division among Assistant
Engineer/Electrical, Mechanical and Civil.
(9) The petitioner seeks that particular distinction to be drawn which is
not feasible. There has been a further proceedings on 16.09.2014,
wherein, a representation of C.Veeramani who was the Executive
Engineer/Mechanical, had been examined. It had been only ordered
that the option format have to be once again submitted by the said
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C.Veeramani, Executive Engineer/Mechanical. But, however, the
petitioner does not seek equivalence with C.Veeramani. The relief
sought, it is only with T.Sankarapandian, who has not been made as a
party to the writ petition. There is a further document which is
enclosed dated 16.09.2014, wherein, the petitioner was proposed to
be promoted as Superintending Engineer/Mechanical. Again, there is
no grievance raised that the petitioner had been put to disadvantage
by this particular promotion owing to not putting him in the correct
position in seniority originally as the Assistant Engineer. The
petitioner had accepted the promotions, had reaped the benefits
thereof and after much time, had come before this Court claiming that
the seniority in the 1985 list should be revised.
(10) The learned counsel for the petitioner took umbrage at the Impugned
Order and stated that no sufficient reasons had been given. But the
only reason that had been given was that he had already been
informed by the earlier communication dated 24.11.2008 that the
seniority list dated 01.02.1985 was in order. The petitioner had again
given a representation of the same issue. That representation was
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again considered. There was an internal notes prepared and then, the
matter had been just kept at that and the further communication had
been received which is impugned, that it is not feasible of being
addressed. This was the communication addressed earlier also.
Therefore, reliance placed by the petitioner on the internal
communications will not take him anywhere.
(11) The learned counsel for the petitioner drew notice of this Court to the
judgment of the Hon'ble Supreme Court reported in 1976 [4] SCC
853 [Sualal Yadhav Vs. State of Rajasthan and Others] relating to
delay in taking up a cause relating to service. In that particular case,
the Sub Inspector of Police who was the appellant, had been
dismissed from service after necessary enquiry had been conducted.
The appellant / Sub Inspector of Police had appealed to the
appropriate authority which was also dismissed and then a review was
filed and the review was entertained by the Governor and he had
passed an order stating that the matter was not fit for review. That
was questioned before the High Court. The High Court held that the
challenge before the High Court was hit by considerable delay and
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therefore, dismissed the petition filed before the High Court on the
ground of delay. The Hon'ble Supreme Court had however, stated
that the issue of delay should not be put against the appellant. But the
Hon'ble Supreme Court had made a very significant statement in the
said judgment. It is as follows:-
''2.......Since the Governor had not dismissed the
review application on the ground of delay and having
entertained the same held it to be a case not fit for
review, we take the view that the Governor dismissed
the review application on merits.....''
(12) It had been very clearly stated that since the Governor therein had not
dismissed the review on the ground of delay and had entertained it, it
should have been taken that the Governor had dismissed the review
application on merits. This statement made by the Hon'ble Supreme
Court is directly applicable to the case on hand that even the first
communication sent by the respondents herein wherein they had
stated that the consideration of the request of the petitioner is not
feasible having entertained it has to be considered by the Court as
having been rejected on merits. That has been reiterated in the
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Impugned Order. They have not come up with any fresh reason. But,
have reiterated the earlier communication sent by them that the
request for seniority or refixation of seniority cannot be considered as
it is not feasible.
(13) The learned counsel for the petitioner placed reliance on the judgment
of the Hon'ble Supreme Court reported in 1978 [1] SCC 405
[Mohinder Singh Gill and Others V. The Chief Election
Commissioner, New Delhi and Another], which was referred to in a
Division Bench decision of this Court in WA.No.308/2022 dated
22.02.2022 for the proposition that parties cannot improve the case
which had not been the part of the Impugned Order. There has been
no improvement in the counter affidavit filed here. The counter
affidavit only states that the seniority had been already determined,
cannot be re-examined by the respondents and that is the only stand
which they had taken.
(14) In the counter affidavit, the portion probably which the learned
counsel claims is the extension of the Impugned Order, would be
paragraph No.11 and let me extract the same in entirety:-
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''11.I respectfully submit that even thought the
Chief Internal Audit Officer/Audit Branch on
23.04.2010 has recommended the revision of seniority
in respect of Thiru.B.Sureshkumar, the then
CMD/TANGEDCO has discussed with the Chief
Internal Audit Officer on 31.07.2010 and for getting
remarks the file was submitted to Legal Advisor.
Finally, the Legal Advisor has opined that as per
B.P.Ms.[FB] No.5 [Admn.Br.] dated 01.02.1985 read
with B.P.Ms.[FB] No.3 [Admn.Br.] dated 18.01.1986,
the senior of the Assistant Engineers [Electrical /
Mechanical / Civil] recruited through internal
selection and direct recruitment were made is a
particular year should be in the cyclic order in the
ratio of 1:1, namely, first person from internal
selection and the second person from direct
recruitment. Thiru B.Sureshkumar was one among the
internally selected person as Assistant
Engineer/Mechanical during 1985 and his seniority
was fixed in the ratio 1:1. Even though the said cyclic
order was order in B.P.Ms.[FB] No.3 [Admn.Br.]
dated 18.01.1986, it was only in a clarificatory nature
as such the effect of the same would reckon from the
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date of issue of B.P.Ms.[FB] No.5 [Admn.Br.] dated
01.02.1985, whereas it has been amended to service
Regulation vide B.P.Ms.[FB] No.66 [Sectt.Br.] dated
03.08.1987. The then CMD/TANGEDCO has once
again discussed with and approved that the said
seniority was fixed in accordance with the above B.Ps.
Therefore, Thiru.B.Sureshkumar, is not entitled to any
revision of seniority in the post of Assistant
Engineer/Mechanical as per rules in force.''
(15) The only aspect which had been stated in the counter affidavit is that
the earlier representation had been rejected and thereafter, it had been
again stated that the then CMD/TANGEDCO had again discussed
and had approved that the said seniority had been fixed in accordance
with the Board Proceedings. Therefore, when the petitioner relies on
an office note which puts up for recommendation various aspects
which had been considered on merits and it had been stated that the
seniority had actually been fixed in accordance with the Rules and
Guidelines, it is not open to the petitioner to seek review of that
particular order on the basis of the internal notes circulated among the
officials of the respondents. That would not be binding. They are not
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rule making authorities. It has no statutory value. It does not lay
down any obligation on the respondents to grant the relief sought for
by the petitioner in his representation to his advantage. They have to
take a decision. They had taken a decision that the representation
made, would not be feasible of being addressed. I am afraid that I
cannot come to the rescue of the petitioner.
(16) The writ petition stands dismissed. No costs.
07.09.2023
AP
Internet : Yes
To
1 The Chairman cum Managing
Director, Tamilnadu Generation and
Distribution Corporation, No.144, Anna Salai
Chennai-2.
2 The Chief Engineer (Personnel)
Tamilnadu Generation and Distribution
Corporation, No.144, Anna Salai, Chennai-2.
3 The Secretary
Tamilnadu Generation and Distribution
Corporation, No.144, Anna Salai, Chennai-2.
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WP.No.23614/2016
C.V.KARTHIKEYAN, J.,
AP
WP.No.23614/2016
07.09.2023
https://www.mhc.tn.gov.in/judis
