T.K.Sankaran v. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 600 003

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.07.1999PRESENTTHE HONOURABLE MR. JUSTICE S.NAGAMUTHUW.P.No.18799 of 1999T.K.Sankaran.... PetitionerVs.1.The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 600 003.2.M.Pandiarajan, Assistant, ACC., Corporation of Chennai.3.P.Gajalakshmi Assistant, Education Department, Corporation of Chennai.4.S.Sampath, Assistant Education Department, Corporation of Chennai.5.C.Esra, Assistant, Education Department, Corporation of Chennai.6.R.Narayanan, Assistant, A.C.C, Corporation of Chennai.7.C.Balaji Babu, Assistant, Zone 7, Corporation of Chennai.8.S.Ravanamma, Assistant, A.C.C., Corporation of Chennai.9.S.Kalavathi, Assistant, Education Department, Corporation of Chennai. https://hcservices.ecourts.gov.in/hcservices/

10.M.Rani, Assistant, Works Department, Private St., Town Planning, Temporarily Bridges Department, Corporation of Chennai.11.R.Janaki, Assistant, A.C.C., Corporation of Chennai.12.T.S.Sivakumar, Assistant, Zone 8, Corporation of Chennai.13.C.K.Sekar, Assistant, Revenue Department, Zone 8, Corporation of Chennai.14.R.Sekar, Assistant, Land and Estate Department, Corporation of Chennai.15.R.Ranganathan, Assistant, A.C.C., Corporation of Chennai.16.T.Purushothaman, Assistant , Zone 4, Corporation of Chennai.17.S.M.Kannagi, Assistant, A.C.C., Corporation of Chennai.18.K.Ramadevi, Assistant, Zone 5, Corporation of Chennai.19.S.Krishnaveni, Assistant, A.C.C., Corporation of Chennai.20.E.Hariharasubramani, Assistant, Works Department, Town Planning Sec., Corporation of Chennai.21.E.Fathima, Assistant, Buildings Department, Corporation of Chennai. https://hcservices.ecourts.gov.in/hcservices/

22.J.Venkatesan, Assistant, Legal Cell, (Education Department), Corporation of Chennai.23.S.Saidajabeen, Assistant, A.C.C., Corporation of Chennai.24.P.Deivasree, Assistant, Electrical Department, Corporation of Chennai.25.K.Sathyanarayanan, Assistant, Zone 8, Corporation of Chennai.26.V.Gunarajan, Assistant, Zone 2, Corporation of Chennai.27.R.Vanaja, Assistant, General Department, Corporation of Chennai.28.M.Sivakumar, Assistant, Zone 5, Corporation of Chennai.29.S.Jaganathan, Assistant, Revenue Department, Zone 5, Corporation of Chennai.30.D.Arumugam, Assistant, Zone 3, Corporation of Chennai.31.M. Anuradha, Assistant Zone 5, Corporation of Chennai.32.V.S.Umasekar, Assistant, Works Department, Town Planning, Corporation of Chennai.33.S.Suriabanu, Assistant, A.C.C., Corporation of Chennai. https://hcservices.ecourts.gov.in/hcservices/

34.P.Mohana, Assistant, A.C.C., Corporation of Chennai.35.T.A.Krishnamoorthy, Assistant, A.C.C., Corporation of Chennai.36.G.Annie Jayakumari, Assistant, Education Department, Corporation of Chennai.37.A.Gandhimathi, Assistant, Zone 3, Corporation of Chennai.38.P.Lakshmi, Assistant, A.C.C., Corporation of Chennai.39.S.S.Ranganathan, Assistant, Zone 8, Corporation of Chennai.40.K.Usha, Assistant, General Department, Corporation of Chennai.41.S.Samapth, Assistant, Land and Estate Department, Corporation of Chennai.42.Santha Thomas, Assistant, A.C.C., Corporation of Chennai.43.P.Baskar, Assistant, Zone 7, Corporation of Chennai.44.S.Vasudevan, Assistant, A.C.C., Corporation of Chennai.45.K.Sakthivelmurugan, Assistant, A.C.C., Corporation of Chennai.46.S.Kirubakaran, Assistant, Council Department, Corporation of Chennai. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution ofIndia, for issuance of a Writ of Certiorarified Mandamus,calling for the records relating to the proceedings of the 1strespondent in Circular G.D.C. Na.Ka. No.E4/39618/99, dated12.08.1999 and order of promotion awarded to the respondents 2to 46 in G.D.C. Na.Ka.No. E4/39618/99, dated 16.11.1999 andquash the same and consequently direct the 1st respondent toaward promotion to the petitioner as Assistant on the basis ofseniority.For petitioner: Mr.C.K.M.AppajiFor respondent (s): Mr.V.Bahathidasan for R1ORDERThe petitioner has been working as a Junior Assistant inthe 1st respondent Corporation from 28.11.1979 onwards. He wasawarded Selection Grade w.e.f. 14.03.1991. His next avenue ofpromotion is to the post of Assistant. A Seniority list ofJunior Assistants was prepared on 27.10.1984 in which thepetitioner was placed at Sl.No.166. Subsequently, the 1strespondent Corporation promoted the respondents 2 to 46 asAssistants on the basis of seniority. The said order ofpromotion issued by the 1st respondent Corporation in G.D.C.Na.Ka.No.E4/39618/1999 dated 16.11.1999 is now challenged inthis writ petition. 2. The main ground of challenge is that the petitionerhas not been promoted to the post of Assistant, though as perthe seniority he is eligible for the same, on the ground that hehad not passed the Account Test for Subordinate Officers Part-Ias well as the District Office Manual Test. 3. It is contended by the petitioner that as per theoriginal by-law of the Corporation, a pass in S.S.L.C. wasprescribed as necessary qualification for promotion to the postof Assistants. However, the by-law was amended by theCorporation Council as per the Resolution No.753, dated26.04.1982. As per the said amended by-law, a pass in AccountTest for Subordinate Officers Part-I as well as a pass inDistrict Office Manual Test are necessary for promotion to thepost of Assistant. The learned counsel for the petitioner wouldcontend that the said by-law was not approved by the Governmentas required under Section 352 of The Chennai City MunicipalCorporation Act, 1919 ( hereinafter referred to as "the Act")and therefore, it is not valid and enforceable. In view of thesame, according to the petitioner, he is entitled for promotionas per the original by-law. https://hcservices.ecourts.gov.in/hcservices/

4. A detailed counter affidavit has been filed, whereinit is stated that a pass in Account Test for SubordinateOfficers Part-I and a pass in District Office Manual were madeessential qualification for promotion to the post of Assistantas per the Resolution No.753/1981, dated 26.04.1982. It is,however, admitted that the said by-law was not approved by theGovernment so far. The learned counsel for the 1st respondentCorporation further submitted that approval from the Governmentis only formal and so the by-law is enforceable even in theabsence of approval from the Government. He further submittedthat under Section 85 (3) (c) of the Act, the Council has gotpower to issue a by-law prescribing a qualification for ClauseIII and IV employees of the Corporation. It is only in exerciseof such power, the said by-law dated 26.04.1982 was issuedprescribing pass in the above two tests as necessaryqualifications for promotion to the post of Assistants. Thoughthe said by-law has not been approved , according to him, thesaid by-law has all along been followed by the Corporation andso it has become enforceable.5. I have heard the rival submissions.6. Section 85 (3) (c) of the Act reads as follows:-"Appointments to all posts includedin Class III and in Class IV and to allother posts not so included shall be madeby the appointments committee consisting ofthe Mayor, the Commissioner and twocouncillors elected by the council, whichshall be established for the corporationsubject to the bye-laws , if any, made bythe council."7. A plain reading of the above provision would make itclear that the corporation council has got power to issue by-law prescribing qualifications for the posts included in ClauseIII and IV. At this juncture, a reference to Section 352 (1) ofthe Act is necessary which runs as follows:-"Confirmation of by-laws by StateGovernment – (1) No by-law made by thecouncil under this Act shall have anyvalidity unless and until it is sanctionedby the State Government."8. The above provision makes it mandatory that any by-law issued by the Council should get the approval of theGovernment to make it valid. The said provision declares thatunless such approval is obtained from the State Government the https://hcservices.ecourts.gov.in/hcservices/ by-law shall not be valid. In the case on hand, admittedly, theby-law prescribing additional qualifications issued by theCouncil on 26.04.1982 has not been approved by the Governmentand as per Section 352 (1) of the Act, the said by-law is notvalid and thus the same cannot be enforced.9. As per the original bye-law, which was issued priorto 26.04.1982, the qualification for promotion to the post ofAssistant is only a pass in S.S.L.C. Admittedly, the petitionerhad passed the same. He was denied promotion only because, hedid not pass the Account Test for Subordinate Officers Part -Iand District Office Manual Test. Since the said by-lawprescribing these two Tests as additional qualification is notvalid, the petitioner is entitled for promotion to the post ofAssistant.10. In this writ petition, though the petitionerchallenges the promotion of the respondents 2 to 46, at thislength of time, I do not want to disturb the promotions givento them. The learned counsel for the petitioner would fairlyconcede that the petitioner is not very particular in gettingthe promotion given to the respondents 2 to 46 set aside. Thelearned counsel for the petitioner would fairly concede that thepetitioner would be satisfied if a direction is issued to the 1strespondent Corporation to promote the petitioner to the post ofAssistant from the date on which his immediate Junior waspromoted and his seniority is fixed above the place of hisimmediate junior in the post of Assistant and all otherconsequential benefits are given to him.11. In view of the above position, the writ petition isdisposed of, however, without costs, in the following terms;(1) The petitioner shall be promoted to thepost of Assistant from the date on which hisimmediate junior was promoted.(2) The petitioner shall be given seniorityin the post of Assistant from the date of promotiongiven to his immediate junior and in the senioritylist of Assistants he shall be kept above hisimmediate junior.(3) However, the petitioner shall not beentitled for back wages in the post of Assistant.(4) His pay and other monetary benefits fromthe date of promotion to the post of Assistant shallbe calculated notionally for the purpose of fixation https://hcservices.ecourts.gov.in/hcservices/ of future pay in the post of Assistant and othermonetary benefits.kmkSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 600 003.+ 1 cc to Mr. C.K.M. Appaji, Advocate, SR No.30352+ 1 cc to Mr. V. Bharathidasan, Advocate, SR No.30042TM(CO)SR/23.7.2009W.P.No.18799 of 1999