Tamilnadu Tourism Development Corporation Limited v. NONE

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 12.11.2010Coram :-The Honourable Mr.JUSTICE K. MOHANRAMandThe Honourable Mr.JUSTICE S. PALANIVELUW.A.Nos.1103 and 1104 of 2002and W.A.M.P.Nos.1148 of 2006andW.A.Nos.3401 to 3403 of 2004 and W.A.M.P.Nos.6392 to 6394 of 2004 1. Tamilnadu Tourism Development Corporation Limited Rep.by its Managing Director, 25 Dr. Radhakrishnan Salai, Mylapore Chennai-4 2. The Secretary-cum-Administrative Officer, Tamil Nadu Tourism Development Corporation Limited 25 Dr. Radhakrishnan Salai, Mylapore Chennai-4 .. Appellants [in W.A.No.1103/2002]

Tamilnadu Tourism Development Corporation Limited Rep.by its Managing Director,25 Dr. Radhakrishnan Salai, Mylapore Chennai-4 2. The General Manager, Tamil Nadu Tourism Development Corporation Limited25 Dr. Radhakrishnan Salai, Mylapore Chennai-4 .. Appellants [in W.A.No.1104/2002]Tamilnadu Tourism Development Corporation LimitedRep.by its Managing Director Tamilnadu Tourism ComplexWallajah Road, Chennai-2 .. Appellant [in W.A.Nos.3401, 3402 and 3403/2004] https://hcservices.ecourts.gov.in/hcservices/ vs1.S.Purushothaman2.S.U.Syed Ahamed3.Tmt.M.Geetha4.Tmt.R.Mala5.P.Durairaj6.Tmt.G.K.Vaijayanthimala7.R.Chandrasekaran8.S.Seshakumar9.S.Antony Ravichander10.V.Kubendran11.T.Packianathan Jerome12.Tmt. Esther David .. Respondents [in W.A.No.1103/2002]1.K.Annamalai2.S.U.Syed Ahamed3.S.Purushothaman4.G.Ranganathan5.S.V.Abiraman6.S.Baskaran7.S.Bosco8.G.Suryanarayanan9.A.Muthukrishnan10.S.Rathinakumar11.R.Babu Singh12.S.Sivaraj13.N.Devaaprakash Babu14.B.Nagaraju15.N.Ravi16.A.Thirunavukkarasu17.M.Thilagaraj18.R.Pattabiraman19.Tmt.P.R.Vimala20.J.Haridoss21.K.Sivaraman22.V.Varadarajan23.S.Jayaprakash24.R.Muthukrishna Achari25.Tmt.M.Geetha26.R.Mala27.P.Durairaj28.Tmt.G.K.Vaijayanthimala29.R.Chandrasekaran https://hcservices.ecourts.gov.in/hcservices/

30.S.seshakumar31.S.Anthony Ravichandran32.V.Kubendran33.T.Packianathan34.Tmt. Esther David .. Respondents [in W.A.No.1104/2002]S. Purushothaman .. Respondent [in W.A.No.3401/2004]K.Annamalai .. Respondent [in W.A.No.3402/2004]S.Syed Ahmed .. Respondent [in W.A.No.3403/2004] Writ Appeals filed under Clause 15 of the Letters Patentagainst the common order passed in Writ Petition Nos.12904 and 12905of 1991 dated 09.08.2001 and W.P.Nos.10447 to 10449 of 2003 dated22.10.2003. W.P.12904/91:- Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamusafter calling records from the second respondent relating toproceeding No.2163/A2/88 dated 1.6.88 and to quash the samd anddirect the respondents 1 and 2 to finalise the seniority list of Assistants in accordanc with the senioerity alone.W.P.12905 of 1991:- Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamusafter clling for the records relating to the impugned orderNo.22362/A2/89 dated 13.7.1991 passed by the second respondent andquash the same and direct the second respondent to promote the firstpetitioner as Deputy Manager with effect from 28.3.1990 and secondand third petitioners as Assistant Manager with effect from17.12.1984 and 16.5.1986 respectively with consequential benefitsand to fix seniority at the appropriate place in the Deputy/Assistant Manager cadre and award cost.W.P.No.10447/03:- Petition filed under Article 226 of the Constitution of India to issue a writ of mandamus directing therespondent to promote the petitioner notionally as Deputy Manageron the date on which the petitioner's junior Mr.A. Muthukrishnan waspromoted and also to pay the petitioner monetary benefits from9.10.2001 as eopr the order dated 9.8.2001 in .P.12904 & 12905/01award costs. https://hcservices.ecourts.gov.in/hcservices/ W.P.10448/03:- Petition filed under Article 226 of the Constitution of India to issue a writ of mandamus directing therespondent to promote the petitioner notionally as Manager on thedate on whcih the petitioner's junior Mr.G. Ranganathan was promotedand also to pay the petitioner monetary benefits from 9.10.2001 asper the order dated 9.8.2001 in W.P.12904 & 12905/01 award costs.W.P.10449/03: Petition filed under Article 226 of the Constitution of India to issue a writ of mandamus directing therespondent to promote the petitioner notinally as Deputy Manager onthe date on which the petitioner's juniot Mr.A. Muthukrishnan waspromoted and also to pay the petitioner monetary benefits from9.10.2001 as per the order dated 9.8.2001 in W.P.12904 & 12905/91award costs.

For Appellant : Mr.V.Karthik [in all W.As.] for M/s.T.S. Gopalan & Co For Respondents : Mr.V. Ajay Khose for sole respondent in W.A.No.3401 to 3403/04 for R1 & R2 in W.A.No.1103/02 for R2 & R3 in W.A.No.1104/02Mr.A.Jenasenanfor R12 & R15 in W.A.No.1104/02and for R1, R4 to R11, R13, R14,R16 to R34 in W.A.No.1104/02 given up. COMMON JUDGMENT(Judgment of the Court was delivered by S.PALANIVELU,J.)1. The factual back ground leading to the filing of these writappeals is recounted as under:-1.(a) The respondents/writ petitioners were appointed in theappellant's Corporation in the Posts which form feeder category forpromotion as Assistant. The writ petitioner by name Syed Ahmed inW.P.No.10449 of 2003 was initially appointed as Workshop Clerk onconsolidated pay from 15.07.1976. Afterwards, he was promoted andhis scale of pay from 01.12.1979 was on par with Junior Assistant. He was promoted to the category of Assistant.

Another writpetitioner by name Purushothaman was inducted as Sales Assistant on25.01.1977 on consolidated pay. Time Scale of Pay was given to him https://hcservices.ecourts.gov.in/hcservices/ with effect from 01.12.1979 on par with Junior Assistant. He wasmade as Assistant in March 1985. Annamalai yet another writpetitioner joined as Typist which is in the equal cadre of JuniorAssistant, on 21.9.1972. He was promoted to the cadre of Assistanton 27.9.1984. They were not graduates at the time of promotion tothe cadre of Assistant. They did not possess the qualification ofgraduation at the time of promotion as per the existing rules. Theservice rules were amended on 3.9.1994 to the effect that the postof Assistant shall be filled up by promotion from Junior Assistant, Stenographer, Typist and Telephone Operator, provided the individualpossesses a degree. The post of Junior Assistant also should befilled up either by direct recruitment or by promotion from RecordAssistant provided the individual possesses a degree.1.(b) Even though, the prescribed minimum general educationalqualification was acquiring a decree, in the case of thepetitioners, they were relaxed and were promoted to the post of Assistant.

On 22.3.1988, the Appellant published a provisionalSeniority List of staff members in the cadre of Assistant and thesame was communicated to the writ petitioners. The writ petitionersAnnamalai, Syed Ahmed and Purushothaman were ranked as 9,11 and 12respectively, in the list. The total number of employees in thelist is 29. Thereafter, the seniority list dated 1.6.1988 wascommunicated to them by means of which the writ petitioners wereplaced in Sl.No.9, 17 and 21 respectively. It is their grievancethat the rest of the employees who were juniors to them, were placedabove them. It is also contended that as per the revised senioritylist, candidates upto serial No.5 were promoted as AssistantManagers. There is no reason to place the above said persons abovethe writ petitioners and in all respects they are seniors to them. It is their further contention that there shall be no distinctionbetween the graduate and non graduate who were available at therelevant point of time for promotion in the cadre of Assistant, since, decision has already been taken while they were promoted tothe post of Assistant after relaxing the existing rules.1.(c) In W.P.Nos.10447 to 10449 of 2003 from which W.A.Nos.3401to 3403 of 2004 have been preferred, it is prayed that a writ ofmandamus be issued to promote the petitioners as Manager on the dateon which the petitioners juniors were promoted and also to pay thepetitioners monetary benefits from the date of such notionalpromotion.

Earlier 2 Writ Petitions in W.P.12904 and 12095 of 1991were filed for a writ of certiorarified mandamus to quash theimpugned order of the second appellant and direct him to promotethem as Deputy Manager and also quashing the seniority list of Assistants in accordance with the seniority alone. Both the writpetitions in W.P.No.12904 and 12905 of 1991 were disposed of by a https://hcservices.ecourts.gov.in/hcservices/ common order dated 09.08.2001, by means of which, this Courtdirected the appellants to pass orders within 2 months from the dateof communication of the order promoting the writ petitioners on parwith their immediate juniors and give them notional increment andplace them in the appropriate scale, but they shall not be entitledto arrears of monetary difference for all these years.1.(d) Insofar as W.P.Nos.10447 to 10449 of 2003 are concerned, this Court by means of a common order dated 22.10.2003 directed theappellants to implement the directions issued in W.P.Nos.12904 and12905 of 1991 and settle necessary monetary benefits to thepetitioners within a period of twelve weeks from the date of receiptof a copy of the order. The above said orders of the learned singleJudge have been challenged in these appeals.

The writ petitioners referred to a case of one Babu Singh, who was junior to them, was promoted to the cadre of Assistant afterrelaxing of educational qualification, who did not possess a decree. He was promoted to the cadre of Assistant Manager. It isquintessence of their contention that while Babu Singh, a similarlyplaced employee was considered for promotion in the post of Assistant Manager, there could have been no legal or proceduralprohibition for appellants to promote the writ petitioners also. Itis contended by the writ petitioners that the action in this regardby the appellants is arbitrary and violation of Article 14 of the Constitution. Babu Singh was posted as Record Assistant on1.10.1971 and was promoted as Junior Assistant on 16.05.1977 andfurther he was promoted as Assistant on 17.10.1981. He becameSection Officer in 1986 and made as Assistant Manager in 1988 andthereafter as Deputy Manager.

The learned single Judge has observed that there was nojustification or reason or rhyme to relax the qualification only infavour of Babu Singh and ratify the promotion in his favour whileignoring the claims of the petitioners who were far seniors and wereeligible in every respect to be promoted and the petitioners hadbeen singled out and treated differently, and discriminatedarbitrarily.

It is the bottomline contention of the appellants in theircounter to the writ petitions and also before this Court thatduring the year 1988, the irregular appointment of R.Babu Singh as Assistant in the year 1981 was brought to the notice of the Board of Directors on the ground that he did not possess the requisitequalification when his appointment as Junior Assistant was made. With a view not to cause any prejudice to the incumbent and at thesame time, to rectify the anamoly, the Board was left with no optionthan to ratify his appointment, which the board did in the meeting https://hcservices.ecourts.gov.in/hcservices/ held on 24.6.1988, that in respect of any postings which involvemonetary considerations, the Corporation has to obtain permission ofthe Government of Tamil Nadu that the Government imposed a ban oncreation of any new post and in view of the ban in force, pursuantto the resolution of the Board of Directors, the Corporation haswritten to the Government on 29.10.2002, seeking approval forcreating supernumerary post in accordance with the order of this Court dated 9.8.2001 and as and when the approval obtained, thepetitioner should be paid the monetary benefits and the WritPetitions in W.P.No.10447 to 10449 of 2003 are nothing but ruse bythe petitioners as a legal thumbscrew to pressurise the Corporationto realise the monetary benefits without the approval of the Government which these appellants cannot do.

The learned counsel for the appellants would garner supportfrom a decision of the Supreme Court in 2002 (1) SCC 261 [JaswantSingh v. Punjab Poultry Field Staff Association and others] in which Their Lordships dealt with a case of an employee, who was promotedto the higher cadre who was discharging his function of such cadreand confirmed the direction of the High Court but directing theauthorities to pay him for the period he rendered service in thepromotion post. The relevant portion in the judgment is as under:-"10. Even assuming that the appellant is correctin this contention, nevertheless the order ofpromotion dated 22.8.1996 cannot be upheld. Thebasis of the appellant's claim for promotion is theorder of the Additional District Judge. It is thecase of the respondent Authorities also that theorder of promotion was passed pursuant to the Additional District Judge's directive. As alreadynoted, the directive to grant the appellant benefitsetc. was conditional upon the respondent Authoritiesdetermining whether the appellant had been workingas a Chick Sexer.

The appellant in that case was initially posted as BirdAttendant/Hatchery Man in the Department of Animal Husbandry of Government of Punjab on 24.11.1981. He had also undergone trainingas Chick Sexer and was appointed as Chick Sexer at various places. In the said case the promotion rules provided that unless necessarytraining is undergone there shall be no promotion as Chick Sexer. But admittedly he had undergone training for one year which is thequalification provided for promotion as Chick Sexer. It was arguedby the Department that there were no vacant post earlier to 1992 Rules and he had to be governed by 1992 Rules. The Supreme Courthas observed that the promotion rules whether prior or subsequent to1992, both do not permit the promotion of the appellant. In such asituation it was held by the High Court that his promotion to thecadre of Chick Sexer post was not sustainable. While upholding theorder of the High Court, setting aside the order of the appellant'spromotion, the Supreme Court directed the department to pay theappellant for the period he rendered service as Chick Sexer at thescales of pay together with all allowances to which Chick Sexerwere entitled at the relevant time. The Supreme Court has made itclear that unless promotion was permissible according to law, thebenefit of promotion to the appellant could not have been made.

But the facts available in the presence case aredistinguishable. Here, already relaxation of EducationalQualification was given to the writ petitioners while they werepromoted as Assistants. Further, when the appellant has givenpromotion to Babu Singh, there could have been no embargo for themto consider the promotion of the writ petitioners to a higher cadre. https://hcservices.ecourts.gov.in/hcservices/

It is strongly contended on behalf of the respondents 1 to3/writ petitioners and their learned counsel Mr.Ajoy Ghosh that oncerelaxation was given, it is no longer open to the appellant torefuse promotion. In this context, we indicate that the relevantrules or procedures do not provide that in case, if the educationalqualifications was relaxed on earlier occasion, the incumbent wouldnot be considered for promotion. In the absence of any such rulesor procedure, the appellant can not contend that they were notqualified to be promoted. Once they were given relaxation andpermitted to hold the promotion post, then for higher promotions, the requirement of educational qualification, which was alreadyrelaxed, is not sustainable.

The learned counsel for the respondents 1 to 3 drawsattention of this Court to various Division Bench decisions of this Court on this point. It is his main stress that once they wereregularly appointed as Assistants after relaxation of requiredqualification, it will enure and also ensure for promotion andconfirmation in higher posts. The following are the decisions ofthe Division Benches of this Court on this subject: (i). 1982 (1) M.L.J. 294 [The Government of Tamilnadu v.M.N. Raghunathan]:-"8. We are already of opinion that when theexemption was granted, the authorities had takeninto consideration his experience and capacity andthen only such exemption was granted on meritswhich exemption must be deemed to have exempted therespondent fully from passing the Revenue Testsparts I and III for any post which requires suchqualification, in the said department. A readingof the G.O.Ms.No.2247, Revenue would furtherindicate that exemption granted in favour of therespondent from passing the Revenue Tests, Part Iand III is with immediate effect and for allpurposes though in order to enable him to beappointed as an Assistant in the Board of Revenueimmediately.

In view of the above said consistent view taken by this Court, it has to be necessarily held that when the exemption wasgranted on an earlier occasion, the same would continue for thebenefit of the concerned employee throughout his service career andcannot be held against him at any subsequent stage of promotion. Once it is exempted, at one point of time in service, the saidexemption is available to the employee in future for all thepromotion posts, which require such qualification.

We are fortified in our view with the above said DivisionBench decisions of this Court in the matter of relaxation ofeducational qualification for promotion to the higher cadre. Oncethe prescribed qualification is exempted in a particular stage ofservice career of an employee, the same exemption would becontinuing to the subsequent future promotion of that employee andthere could be no refusal on the part of the employer to deny thepromotion under the guise of requiring such qualification.

In these circumstances, we do not find any valid groundeither to modify or to set aside the orders passed by the learnedsingle Judges, which deserve to be confirmed and accordinglyconfirmed. These appeals are devoid of merits, which sufferdismissal. In fine all the Writ Appeals are dismissed. No costs. ConnectedW.A.M.Ps are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.ggs https://hcservices.ecourts.gov.in/hcservices/ To1. The Managing Director, Tamilnadu Tourism Development Corporation Limited 25 Dr. Radhakrishnan Salai, Mylapore Chennai-42. The Managing Director Tamilnadu Tourism Development Corporation LimitedTamilnadu Tourism ComplexWallajah Road, Chennai-2 3. The Secretary-cum-Administrative Officer, Tamil Nadu Tourism Development Corporation Limited 25 Dr. Radhakrishnan Salai, Mylapore Chennai-44.The General Manager, Tamil Nadu Tourism Development Corporation Limited 25 Dr. Radhakrishnan Salai, Mylapore Chennai-42 cc to M/s. T.S. Gopalan and Co, Advocate, Sr. 81318, 813191 cc to Mr.A. Jenasenan, Advocate, Sr. 811601 cc to Mr.V. Ajoy Khose, Advocate, Sr. 81460 W.A.Nos.1103 and 1104 of 2002 and W.A.M.P.Nos.1148 of2006 and W.A.Nos.3401 to 3403 of 2004 and W.A.M.P.Nos.6392 to 6394 of 2004 VD (CO)kk 2/11