Madras High Court
C.N.Shanmugaraj vs The Secretary Of Government on 22 September, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2023
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
W.P.No.32896 of 2018
and
W.M.P.No.38118 of 2018
C.N.Shanmugaraj .. Petitioner
Vs.
1.The Secretary of Government,
Personal and Administrative Reforms Department (Training)
Secretariat
Chenna – 600 009.
2.The Director General of Training
163/1 Raja Annamalaipuram
P.S.Kumarasamyraja Salai
Chennai – 600 028. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records
relating to the impugned order passed by the 1st respondent in Letter
No.25279/Training-I/2017-3 Personnel and Administrative Reforms
(Training-I) Department dated 03.04.2018 and to quash the same and
consequently direct the 1st respondent to consider the claim of the petitioner
for the post of Principal in the State Civil Services Training Institute at
Bhavanisagar.
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2
For Petitioner .. Mr.T.Ranganathan
For Respondents .. Mr.S.Ravikumar, SGP
ORDER
This writ petition has been filed in the nature of Certiorarified
Mandamus seeking records relating to an order of the 1st respondent, the
Secretary to Government Personnel and Administrative Reforms
Department (Training) at Chennai in Letter No.25279/Training -I/2017-3
Personnel and Adminstrative Reforms (Training-1) Department dated
03.04.2018 and to quash the same and direct the 1st respondent to consider
the name of the petitioner for the post of Principal in the State Civil
Services Training Institute at Bhavanisagar.
2.The petitioner had been initially appointed as Typist in the office of
the Assistant Commissioner (Excise) at Kancheepuram on 30.04.1993. He
had been recruited during the Tamil Nadu Public Service Commission. He
was then promoted as Assistant in the year 1996 and posted in the office of
the Commissioner of Land Administration, Chennai. He was then appointed
on transfer of service as Lecturer in Computer -cum- System Analyst in the
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Civil Services Training Institute campus at Bhavanisagar on 01.06.1999.
This was on exercise of an option given by the petitioner. The petitioner
regrets and deeply regrets that particular decision and that particular
posting.
3.Originally when the petitioner was so appointed as Lecturer in
Computer -cum- System Analyst, one of the requisite qualification was
BCA or MCA with P.G Diploma in Computer Application. The petitioner
had qualified himself in M.Com with MCA and also with the P.G.Diploma
in Civil Computer Application. It had been stated that therefore he had been
so appointed in the Civil Services Training Institute Bhavanisagar. On such
appointed his lien with his parent department / Revenue Department had
been cut off. The petitioner is also of the opinion that had he continued in
the Revenue Department, he would have attained successive promotions.
4.The learned counsel for the petitioner states that the petitioner
today would have been promoted as District Revenue Officer. But that is
not the case. The petitioner has to accept the reality that he is still
functioning as Lecturer in Computer -cum- System Analyst at Civil
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Services Training Institute Bhavanisagar.
5.To be so appointed as Lecturer the process for which recuirtment
was made as originally stipulated in an order dated 13.05.1997 in
G.O.Ms.No.126 Personnel and Administrative Reforms Department, was
either through Direct Recruitment or through transfer from among the staff
of the Civil Service Training Institute, Bhavanisagar or by transfer from any
other service. The petitioner came under the third category namely,
recruitment by transfer from any other service / Revenue Department.
Thereafter the petitioner was also issued with appointment in the post
sanctioned in the Government order in G.O.Ms.No.126 referred supra. His
posting was in G.O.Ms.No.84 Personnel and Administrative Reforms
(TRG-I) Department dated 07.05.1999. His services were also regularized in
G.O.Ms.No.162 Personnel and Administrative Reforms (TRG-I)
Department dated 16.11.2009. The petitioner continued to work as Lecturer
in the same institute. It is seen that his probation was declared and services
were also regularized.
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6.Thereafter, the respondents came up with yet another policy
regarding appointment of Lecturers and when they did so, they remove the
category of transfer from any other allied service. The petitioner was also
deeply aggrieved by a further development namely, by passing of G.O.Ms.1
Personnel and Administrative Reforms (TRG-I) Department dated
03.01.2006 by which, the recruitment to the post of Lecturer was only either
by direct recruitment or recruitment by transfer from among the holders of
the post of Lecturers in Department of Technical Education in the Tamil
Nadu Educational Services. At that particular point of time, the petitioner
was left with neither a sanctioned post nor was his transfer from other
department recognized. This anomaly was rectified by the respondents by
G.O.Ms.No.68 Personnel and Administrative Reforms (TRG-I) Department
08.06.2009, whereby a saving clause was introduced as Rule No.8, which
was as follows:
"8.Saving clause – Nothing contained in these rules shall
adversely affect the holder of the post on the date of coming
into force of this rule."
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7.Thereafter on 26.08.2010 the Government had issued
G.O.Ms.No.339 Finance (Pay Cell) Department, whereby, on the
recommendation of the One Man Commission, with respect to prescribing
uniform designation in educational qualification and revised scale of pay to
employees in Information Technology, five cadres were established namely,
Data Entry Operator, Assistant Programmer, Programmer, System Analyst
and Senior System Manager.
8.The petitioner was fitted as System Analyst. The next promotional
post for the petitioner was Senior System Manager. The next promotional
post, if he was to be considered as Lecturer was Principal of the said
training institute. The petitioner reasonably expected that he would be
afforded either one of the two promotional post in due course of time. But,
however, further a Government order came to be passed in G.O.Ms.No.18
Personnel and Administrative Reforms (G) Department dated 15.02.2013,
wherein the respondents had upgraded the post of Computer Programmer to
that of Senior System Manager and the Computer Programmer who was
working namely, K.R.Venkatesan was fitted in as Senior System Manager.
With this particular Government order, the prospects of the petitioner to be
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promoted as Senior System Manager evaporated. The only option available
for him was to fall back to his post as Lecturer and seek promotion as
Principal of the said training institute. The petitioner had given a
representation seeking promotion to him as Principal of the said institute.
By the impugned order dated 03.04.2018 such request of the petitioner was
rejected. This has necessitated filing of the present writ petition.
9.In the order, by which the respondents had refused to accede to the
request of the petitioner to promote him as Principal, they had stated that
the post of Principal could be filled only by who could be considered as
holding equivalent post of District Revenue Officer. It was stated that the
petitioner had been posted on transfer when he was in the post of Assistant
in the Revenue Department. It was also stated that his service register does
not reflect his educational qualifications and therefore, it had been
contended that since he was not working as District Revenue Officer, he
could not be considered for the post of Principal.
10.The learned counsel for the petitioner however, contended that,
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had the petitioner continued in the Revenue Department by the long passage
of time, since he had been initially appointed in the year 1999 as Lecturer
for the post more than 23 years, he would have been definitely promoted to
the post of District Revenue Officer.
11.It is for this reason that I have stated at the right of the beginning
that on hindsight, the petitioner must have very deeply regretted having
chosen to move over to the said post of Lecturer in Computer -cum- System
Analyst in the Civil Services Training Institute campus at Bhavanisagar. He
could have very well remained in the Revenue Department and could have
led a more satisfying life, but as it is with the upgradation of the post of
Computer Programmer and posting of K.R.Venkatesan as Senior System
Manager and the rejection by the respondents to appoint the petitioner as
Principal, the entire promotional aspects of the petitioner had melted away
and the petitioner is now struck as Lecturer in Computer -cum- System
Analyst for the past 23 years. There is no protection of pay according to the
learned counsel for the petitioner also.
12.It is also contended that if, for instance the Principal was on leave,
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the petitioner was never be considered to be posted as in-charge Principal,
but other lecturers alone were considered and the others, according to the
petitioner, were his juniors. This is the main cause for the grievance of the
petitioner herein.
13.The respondents had filed a counter affidavit and also an
additional counter affidavit. In the counter affidavit it had been stated that
the petitioner was originally working as Assistant in the Revenue
Department and later had been posted as Lecturer in Computer -cum-
System Analyst in the Civil Services Training Institute campus at
Bhavanisagar. His services were also regularised and probation was also
granted and it had been stated that all this has been done only because he
had relinquished his parent post. It had also been contended that the post of
Principal could be filled only by those who hold an equivalent post of
District Revenue Officer and since the petitioner did not qualify for the
same, he could not be considered to be appointed as Principal of the said
training institute.
14.An additional counter affidavit had also been filed by the
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respondents, wherein, they stated about a subsequent event and stated that
the petitioner had sought permission to avail leave on every Saturday and
Sunday for treatment at Chennai. It was also stated that he had been deputed
to Computer Examination Coaching Centre at Chennai and was also
deputed to do the Election Commission work for a short period of time. It
had however been stated that since the petitioner himself had cited ill
health, he could not be appointed as Principal.
15.A reply affidavit refuting all these allegations have been filed by
the petitioner herein.
16.Heard arguments advanced by Mr.T.Ranganathan, learned counsel
for the petitioner and by Mr.S.Ravikumar, learned Special Government
Pleader for the respondents.
17.The facts are clear. The facts are straight forward. The petitioner
was working as Assistant in the Revenue Department. He was then, on his
own option appointed as Lecturer in Computer -cum- System Analyst in
the Civil Services Training Institute campus at Bhavanisagar. This was in
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the year 1999. At that particular point of time, the post would certainly have
been a grand opening to the petitioner herein to exhibit his talents, since he
had qualified himself with M.Com and MCA and also PG Diploma in that
particular field. He was categorized as an employee of the Information
Technology Department and as a specialist in that particular area as lecturer.
His post was regularized, his probation was also declared. This effectively
cut his lien with his parent department. He had no option to move elsewhere
except on deputation.
18.Thereafter, a One Man Commissioner was appointed to give a
nomenclature for the various post of employees in the Information
Technology Department and to grant revised scale of pay. Accordingly, five
separate posts were filled up and they were in the category of Data Entry
Operator, Assistant Programmer, Programmer, System Analyst and Senior
System Manager. The petitioner who was appointed as lecturer was
equivalent to the System Analyst in the pay scale of 15600 – 39100 + 5400.
He had the necessary educational qualifications to be so considered as
System Analyst. The next promotional aspect was Senior System Manager.
The petitioner had reasonably expected to be so promoted as Senior System
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Manager. But unfortunately, the respondents brought in a policy decision to
upgrade the post of Computer Programmer to the post of Senior System
Analyst and correspondingly also promoted the Computer Programmer
K.R.Venkatesan as Senior System Manager, promoting him over and above
the petitioner herein. As lecturer the petitioner reasonably expected to be
appointed as Principal of the Institute. He also had the requisite experience,
but unfortunately it had been contended by the respondents that to be
appointed as Principal one should be have the same qualification to be
appointed as District Revenue Officer. It is also contended that the
petitioner was not a District Revenue Officer and therefore could not be
appointed as Principal.
19.The lamentation of the petitioner is that, had he continued in the
Revenue Department, he would have got successive promotions and would
have been definitely appointed as District Revenue Officer by this date. In
this connection, the learned counsel for the petitioner placed strong reliance
on the judgment reported in (2004) 9 SCC 65, State of Tripura and others
Vs. K.K.Roy. In that particular case, the respondent had been selected by the
Tripura Public Service Commission and was appointed as Law Officer
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-cum- Draftsman in the Directorate of Cooperation, Government of Tripura.
It was a single stand alone post. There was no promotional avenue at all. He
therefore filed a writ petition that either the post should be upgraded or
some promotional avenue should be granted to him. The High Court of
Tripura had directed that the appellant / State of Tripura to provide
upgraded scale to the respondent therein namely, Grade – III, Grade – II and
Grade – I. That was questioned before the Hon'ble Supreme. The Hon'ble
Supreme Court had placed reliance on yet another judgment of the Hon'ble
Supreme Court reported in (1989) 4 SCC 635, Council of Scientific and
Industrial Research and Another Vs. K.G.S.Bhatt and Another and also of
yet another judgment of the Hon'ble Supreme Court reported in 1990
(Supp) SCC 688, Dr.Ms.O.Z.Hussain Vs. Union of India. In both the
aforementioned judgment the Hon'ble Supreme Court had examined the
status of a Government servant who had been appointed to a post which had
no promotion avenue and which had no upgradation in pay.
20.In the instant case, the petitioner had been appointed as Lecturer
and the respondents had denied him promotion to the post of Principal.
They had also upgraded the Computer Programmer to the next promotional
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post to the Senior System Manager. The petitioner was therefore struck for
ever as lecturer. The Court should come to his assistance by providing at
least the upgradation of pay.
21.In the judgment of the Hon'ble Supreme Court referred supra, it
had been observed and held as follows:
“2. Questioning the said direction, the appellants are
before us.
3. The learned counsel appearing on behalf of the
appellant would submit that the High Court went wrong in
issuing the aforementioned direction. The learned counsel
would urge that the respondent herein did not have any legal
right to be promoted to a higher post far less the right to get the
scale of pay of Grade I officer of the Tripura Judicial Service.
Such a direction by the High Court, the learned counsel would
contend, is wholly without jurisdiction. The learned counsel,
appearing on behalf of the respondent, however, has supported
the said order.
4. Indisputably, the post of Law Officer-cum-Draftsman
is a single-cadre post. It is also undisputed that there does not
exist any promotional avenue therefor. The respondent is
holder of a Master's degree as also a degree in Law. He was
appointed in the year 1982. If the contention of the appellant is
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to be accepted, the respondent would be left without being
promoted throughout his career. In almost an identical
situation, a Bench of this Court in Council of Scientific and
Industrial Research v. K.G.S. Bhatt [(1989) 4 SCC 635 : 1990
SCC (L&S) 45 : (1989) 11 ATC 880] held: (SCC pp. 638-39,
para 9)
“It is often said and indeed, adroitly, an organisation
public or private does not ‘hire a hand’ but engages or
employs a whole man. The person is recruited by an
organisation not just for a job, but for a whole career.
One must, therefore, be given an opportunity to advance.
This is the oldest and most important feature of the free
enterprise system. The opportunity for advancement is a
requirement for progress of any organisation. It is an
incentive for personnel development as well.
(See Principles of Personnel Management, Flipo, Edwin
B., 4th Edn., p. 246.) Every management must provide
realistic opportunities for promising employees to move
upward. ‘The organisation that fails to develop a
satisfactory procedure for promotion is bound to pay a
severe penalty in terms of administrative costs,
misallocation of personnel, low morale, and ineffectual
performance, among both non-managerial employees and
their supervisors.’ (See Personnel Management, Dr Udai
Pareek, p. 277.) There cannot be any modern management
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much less any career planning, manpower development,
management development etc. which is not related to a
system of promotions.”
5. The matter came up for consideration again in O.Z. Hussain
(Dr) v. Union of India [1990 Supp SCC 688 : 1991 SCC (L&S)
649 : (1991) 16 ATC 521] wherein this Court in no uncertain
terms laid down the law stating: (SCC pp. 691-92, para 7)
“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.”
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
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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 for promotion, 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 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 hereinbefore, it
was expected that the appellant should have followed the said
principle.
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7. We are, thus, of the opinion that the respondent herein is at
least entitled to grant of two higher grades, one upon expiry of
the period of 12 years from the date of his joining of the service
and the other upon expiry of 24 years thereof.
8.The learned counsel appearing for the appellant, is, however,
correct in his submission that the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India could
not have issued a writ of or in the nature of mandamus
directing the appellant herein to grant a scale of pay which
would be equivalent to Grade II or Grade I of the judicial
service of the State.
9. For the reasons aforementioned, we direct that the
respondent herein be paid two promotions in the next higher
scale of pay upon his completion of 12 years and 24 years in
service. This appeal is disposed of with the aforementioned
directions. No costs.”
22.It is thus seen that the Hon'ble Supreme Court had recognized the
plight of a person who had no promotion avenue available right throughout
his career.
23.The petitioner is one of them. Had he continued in the Revenue
Department, he would certainly have been promoted as District Revenue
Officer. Today he is not in a post equivalent to the post of District Revenue
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Officer. He is therefore stagnated in the post of lecturer. He can never be
promoted as Principal. He could be promoted as Senior System Manager,
but the Computer Programmer, who was junior to the petitioner had been
granted further promotion overlooking the petitioner as Senior System
Manager.
24.In those circumstances, it is only appropriate that the impugned
order is set aside and a direction as given by the Hon'ble Supreme Court is
also issued by this Court. Similar directions are issued to the respondents
herein to protect the service conditions of the petitioner herein.
25.Therefore, taking into consideration the long period of service put
in by the petitioner herein, I would direct the petitioner to give a fresh
representation seeking upgradation of pay. This is all the more so, because
even the Hon'ble Supreme Court had stated that in exercise of jurisdiction
under Article 226 of the Constitution of India, a Mandamus can never be
issued for granting of scale, which would be equivalent to Grade – II or
Grade – I of the State of Tripura as in that case, but the Hon'ble Supreme
had exercised its jurisdiction to direct the respondent to pay two promotion
in the next higher scale of pay.
26.The petitioner may give a fresh representation to the respondent
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and enclose a copy of the judgment referred above in State of Tripura Vs.
K.K.Roy. The petitioner may also seek a right of personal hearing. A
direction is issued to the 1st respondent to examine the representation
granting personal hearing, if sought for and pass appropriate orders with
reasons, particularly stating whether the petitioner would have been
promoted to the post of District Revenue Officer had he continued in the
Revenue Department, within a period of eight weeks from the date of
receipt of a copy of this order.
27.In view of the above observations, the impugned order is set aside.
This writ petition stands disposed of. No costs. Consequently, connected
writ miscellaneous petition is closed.
22.09.2023
smv
Index:Yes/No
Internet:Yes/No
Neutral Citation:Yes/No
Speaking order:Yes/No
C.V.KARTHIKEYAN,J.
https://www.mhc.tn.gov.in/judis
smv
To
1.The Secretary of Government,
Personal and Administrative Reforms Department (Training)
Secretariat
Chenna – 600 009.
2.The Director General of Training
163/1 Raja Annamalaipuram
P.S.Kumarasamyraja Salai
Chennai – 600 028.
W.P.No.32896 of 2018
22.09.2023
https://www.mhc.tn.gov.in/judis
