Madras High Court
V.Madeswaran vs The State Of Tamil Nadu Rep.By Its on 27 September, 2023
WP.Nos.23517 & 23523/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 27.09.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.Nos.23517 & 23523/2019 & WMP.Nos.23317 & 23328/2019
V.Madeswaran ... Petitioner in
WP.No.23517/2019
K.Eswaran ... Petitioner in
WP.No.23523/2019
Versus
1.The State of Tamil Nadu rep.by its
Principal Secretary to Government
Commercial Taxes and Registration
Department, Secretariat, Chennai 600 009.
2.The Additional Chief Secretary / Commercial
Tax Commissioner, Chepauk, Chennai 600005.
3.The Joint Commissioner of Commercial Tax
O/o.The Joint Commissioner of Commercial Taxes
Salem Division, Salem Post and District.
4.The Deputy Commissioner of Commercial Tax
O/o.The Deputy Commissioner of Commercial Tax
Dharmapuri Post, Dharmapuri. ... Respondents in
both the Writ Petitions
Prayer in WP.No.23517/2019: - Writ Petition filed under Article 226
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WP.Nos.23517 & 23523/2019
of the Constitution of India praying for issuance of a writ of certiorarified
mandamus to call for the records in pursuant to the impugned order passed
by the 4th respondent in his proceedings Na. Ka. 702 / 2018 / A1 dated
10.9.2018 and quash the same and consequently direct the respondents to
permit the petitioner to continue in the post of Office Assistant by transfer of
service as per promotion order made by the 4th respondent in proceedings
Na.Ka. 702/ 2018/ A1 dated 22.6.2018 and to grant all attendant and
monetary benefits to the petitioner in the cadre of Office Assistant.
Prayer in WP.No.23523/2019: - Writ Petition filed under Article 226
of the Constitution of India praying for issuance of a writ of certiorarified
mandamus to call for the records in pursuant to the impugned order passed
by the 4th respondent in his proceedings Na. Ka. 702 / 2018 / A1 dated
10.9.2018 and quash the same and consequently direct the respondents to
permit the petitioner to continue in the post of Office Assistant by transfer of
service as per promotion order made by the 4th respondent in proceedings
Na. Ka.702/ 2018/ A1 dated 22.6.2018 and to grant all attendant and
monetary benefits to the petitioner in the cadre of Office Assistant.
For Petitioners in both
Writ Petitions : Mr.M.Saravana Kumar
For Respondents in both
Writ Petitions : Ms.K.Vasantha Mala, GA
COMMON ORDER
(1) The issues raised in both the writ petitions are similar and both the
petitioners are also similarly placed and therefore, a common order is
passed.
(2) Both the writ petitioners seek a certiorarified mandamus seeking
records with respect to an order passed by the 4th respondent in both
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WP.Nos.23517 & 23523/2019
the writ petitions, Deputy Commissioner of Commercial Taxes,
Dharmapuri, in Na.Ka.No.702/2018/A1 dated 10.09.2018 in both
cases and to quash the same and to direct the respondents to permit
the petitioners in both the writ petitions to continue in the post of
Office Assistants by transfer of service as per promotion order earlier
made by the 4th respondent in proceedings dated 22.06.2018.
(3) The petitioners had been selected and appointed as Sweepers by the
respondents since their names had been sponsored by the District
Employment Exchange and the petitioners joined the service on
30.08.2012 in the office of the Assistant Commissioner of
Commercial Tax at Krishnagiri and Hosur respectively. The
respondents also granted special time scale of pay to the petitioners by
an order in G.O.Ms.No.385, Finance Department, dated 01.10.2010
with effect from 09.01.2017. Both petitioners claim that they are
eligible to be further promoted as Office Assistants. In this
connection, the petitioners had given separate representations in
January 2018 that they may be considered for promotion by transfer
of service or by promotion to the post of Office Assistant.
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(4) The 3rd respondent, Joint Commissioner of Commercial Taxes, Salem,
had directed the 4th respondent to examine the representations and
pass appropriate orders. The 4th respondent, Deputy Commissioner of
Commercial Taxes at Dharmapuri, had considered the said
applications and had granted promotion to the petitioners herein by
proceedings dated 22.06.2018. Thereafter, without issuing any
further notice to the petitioners herein, by the impugned proceedings
of the 4th respondent dated 10.09.2018, the petitioners were reverted
back to the post of Sweepers. This has been the immediate cause for
filing the present writ petitions.
(5) The learned counsel for the petitioners contended that the petitioners
had been appointed in accordance with G.O.Ms.No.68, Commercial
Taxes and Registration Department, dated 14.10.2016. It is thus
contended that their services have been protected and that since there
were no promotional aspects available, they were eligible to be
protected to the next immediate post as Office Assistants. It had been
contended that the only qualification required was seniority as
Sweepers and that the candidate should not have any Disciplinary
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Proceedings pending against him. It is therefore contended that
without notice, the Impugned Orders have been passed.
(6) When the writ petition came up for consideration, a learned Single
Judge of this Court, in the order dated 04.03.2022, examining the
reasons stated by the respondents that the petitioners had been
appointed on special time scale of pay and not on regular time scale
of pay and therefore, they are not eligible to be promoted as Office
Assistants since the post of Office Assistant would come under what
may be termed as 'regular time scale of pay', had observed as follows:-
''2.The reason stated by the Respondents was
that the Petitioners were appointed on special time
scale of pay and as it was not on regular time scale of
pay, their promotion, which has been made
inadvertently, has been cancelled by the impugned
orders. However, Learned Counsel for the Petitioners
points out that the persons similarly placed to the
Petitioners have been promoted earlier by Order in
Na. Ka. No. 6875/06(A1) dated 23.01.2007 passed by
the Assistant Commissioner (Commercial Taxes),
Dharmapuri and they continue to hold that post till
date and that there is no explanation as to how
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WP.Nos.23517 & 23523/2019
persons in special time scale of pay would not be
entitled to promotion when a bare reading of the
promotion rule does not contain any such prohibition
as claimed by the Respondents. Learned Government
Advocate appearing for the Respondents seeks time to
file additional Counter-Affidavit in that regard.''
(7) It is thus seen that a categorical observation had been made by my
learned Predecessor that there is no explanation as to how persons in
special time scale of pay like the petitioners herein would not be
entitled to promotion when a bare reading of the promotion Rules
does not contain any such prohibition. In this connection, my learned
Predecessor had also examined the case of persons similarly placed
who have been promoted in Order in Na.Ka.No.6875/06[A1] dated
23.01.2007 of the Assistant Commissioner [Commercial Taxes],
Dharmapuri. Thereafter, the respondents have filed an additional
counter affidavit wherein again they had reiterated that the petitioners
have been selected under the special time scale of pay and since the
post of Office Assistant would come under regular time scale of pay,
the petitioners cannot seek such promotion . It had been contended
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however that pay protection would be granted and the petitioners
would be granted increments as and when they fall due. But however,
it had been very seriously objected that promotion could never be
granted to the petitioners herein.
(8) In this connection, the learned Government Advocate appearing for
the respondents also referred to a judgment of a Division Bench of the
Madurai Bench dated 18.03.2021 in a batch of writ appeals in
WA[MD].No.576/20120 batch [The State rep.by the Additional
Chief Secretary, Commercial Taxes and Registration [A1]
Department and Others Vs. K.Mariappan and Others]. The
respondents therein had filed writ petitions claiming that G.O.[2D]
No.68, Commercial Taxes and Registration [A1] Department dated
14.10.2016, should be quashed.
(9) It must be kept in mind that the petitioners herein had been appointed
by the respondents under the said Government Order. Therefore, the
respondents therein stood on a different footing and cannot be equated
to the petitioners herein. The stand by the respondents therein was
that they sought parity with those who had been similarly placed in
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the School Education Department. A learned Single Judge of Madurai
Bench had allowed the writ petitions filed by the writ petitioners
therein, necessitating the Writ Appeals to be filed.
(10) The Division Bench had very specifically held that the respondents do
not belong to the Education Department and therefore, drawing a
parallel to that particular Department was not correct. The Division
Bench had held in paragraph No.18 as follows:-
''19. Each and every case should be decided on
its own merits. In the case on hand, the Writ
petitioners have not proved the main creteria that is
they are doing equal work. Only the employer has
rights to decide the salary. However, the Government
can consider the representations of the writ
petitioners, considering the present cost of living.
Though, the learned Single Judge of this Court gone
through the Judgment of Apex Court and pass an
Order in favour of the Writ petitioners, the ratio and
principles are not applicable to this case. ''
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(11) This particular reasoning was read with advantage by the learned
Government Advocate on behalf of the respondents. But however, a
perusal of the order granting promotion shows that on application of
mind and on examining the representation given, promotion had been
granted to the petitioners herein. It had been granted after examining
the Letter dated 15.02.2018 of the Additional Chief Secretary /
Commissioner and also the Letter of the Joint Commissioner, Salem
dated 28.02.2018, the Letter of the Assistant Commissioner, Hosur,
dated 13.02.2018 and the Letter of the Assistant Commissioner,
Krishnagiri dated 14.02.2018. Therefore, it cannot be stated that the
promotion granted was irregular or had been granted bypassing the
Rules and Regulations.
(12) The petitioners had continued to work in the promoted post from the
date of promotion, i.e., 22.06.2018 till the date of the Impugned
Order, namely, 10.09.2018. There is no reference in the Impugned
Orders that the petitioners had been put on notice before the reversion
from the post of Office Assistant to the post of Sweeper.
(13) Therefore, since there is a violation of principles of natural justice
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even though the promotion is termed as only temporary, but still,
since the petitioners are, as on date, working as Sweepers and there
has been no stay granted on such reversion, the Impugned Orders are
interfered with to the limited extent that the respondents should put
the petitioners on notice that they are ineligible to be promoted as
Office Assistants and on examination of that particular aspect, may
state reasons and the petitioners may give their explanation to such
reasons and thereafter, the explanations may or may not be considered
by the respondents.
(14) The Impugned Orders, are therefore, converted as show cause notices
as to why promotion to the petitioners should not be interfered and
the petitioners be reverted to the post of Sweepers. The petitioners
may submit their explanations in writing to the said show cause
notices and further orders may therefore be passed by the
respondents. Till such time, the petitioners may continue to work as
Sweepers, but if they are ever eligible to be promoted, their names
should be considered for such promotion in spite of the fact that they
had approached this Court by filing the present writ petitions.
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(15) The Impugned Orders, are therefore, converted as show cause notices.
The petitioners may give their explanations to the same and let further
orders be passed.
(16) The writ petitions stand disposed of. No costs. Consequently,
connected miscellaneous petitions are closed.
27.09.2023
AP
Internet : Yes
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WP.Nos.23517 & 23523/2019
To
1.The Principal Secretary to Government
State of Tamil Nadu
Commercial Taxes and Registration
Department, Secretariat, Chennai 600 009.
2.The Additional Chief Secretary / Commercial
Tax Commissioner, Chepauk, Chennai 600005.
3.The Joint Commissioner of Commercial Tax
O/o.The Joint Commissioner of Commercial Taxes
Salem Division, Salem Post and District.
4.The Deputy Commissioner of Commercial Tax
O/o.The Deputy Commissioner of Commercial Tax
Dharmapuri Post, Dharmapuri.
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WP.Nos.23517 & 23523/2019
C.V.KARTHIKEYAN, J.,
AP
WP.Nos.23517 & 23523/2019
27.09.2023
https://www.mhc.tn.gov.in/judis
