Francis v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.04.2008CORAMThe Honourable Mr. Justice ELIPE DHARMA RAOandThe Honourable Mr. Justice M.VENUGOPALW.A. No.755 of 2007A.Francis.. Appellant/Writ Petitioner Vs. 1. The State of Tamil Nadu rep. By its Secretary to Govt., Municipal Admn. & Water Supply Dept., Fort St. George, Chennai.2. The Chairman, Chennai Metropolitan Water Supply & Sewerage Board, Chennai.3. The Managing Director, Chennai Metropolitan Water Supply & Sewerage Board, Chennai.4. The Chief Controller of Finance Chennai Metropolitan Water Supply & Sewerage Board, Chennai... Respondents/Respondents Writ Appeal filed under clause 15 of the letters Patentagainst the order passed by Learned Single Judge of this Courtdated 23.4.2007 in WP.No.43454/2006: Petition presented to thisCourt to issue a writ of Mandamus, directing the respondents, toconsider the case of the petitioner for regular promotion asDeputy Controller of Finance against the existing vacancy in theInternal Audit Wing in view of his continuous service in the postof Senior Accounts Officer with due modification and relaxation ofRegulations of the respondent in the interest of justice. https://hcservices.ecourts.gov.in/hcservices/ For appellants : Mr.N.R.Chandran, Senior Counsel for Mr.D.SukumarFor Respondents : Mr.B.Shanthakumar for R2 to R4 Mr.S.Gopinathan, AGP for R1.-----J U D G M E N T(Judgment of the Court was delivered by ELIPE DHARMA RAO, J.)The writ appeal is directed against the order passed by alearned single Judge of this Court dated 23.4.2007 inW.P.No.43454 of 2006.2. Heard the learned counsel on either side and perused thematerials placed on record.3. The writ petitioner is the appellant herein. The writpetition was filed seeking a direction to the respondents thereinto consider the case of the petitioner/appellant for regularpromotion as Deputy Controller of Finance against the existingvacancy in the Internal Audit Wing with due modification andrelaxation of Regulations of the respondent.4. The case of the writ petitioner/appellant is that he wasappointed in the services of the Adhoc Board of the firstrespondent as Accounts Superintendent on 11.4.1978 andsubsequently re-designated as Junior Accounts Officer after theformation of the Board. Thereafter, he was promoted as AccountsOfficer in June, 1982 and then as Senior Accounts Officer on19.12.1985 and he continued to serve as Senior Accounts Officerand completed 22 years of service. Thereafter, he was posted andfunctioning as Deputy Controller of Finance (in-charge) w.e.f.22.11.2004 without any monetary benefit attached to the post.Therefore, he claims that since he was functioning as DeputyController of Finance (in-charge), he is entitled for promotion tothe above said post. However, the Special Regulations of theBoard introduced w.e.f. 10.8.1982 favour only professionals, viz.,ICWA/CA/MBA. The said Special Regulations of the Boardprescribing various qualifications for various posts were framedduring the infant stage of the Board and they have to be modified https://hcservices.ecourts.gov.in/hcservices/ taking into consideration the prevailing regulations in otherestablishments.5. The further case of the petitioner/appellant is that theprofessionals who were recruited in the Board have not completedtheir full period of service and they had voluntarily retired oncompletion of 20 years of their service. They are,V.Venkateswaran, Chief Controller of Finance, R.Sathiaseelan,Financial Analyst and Kamaraj, Controller of Finance (InternalAudit). It is further submitted that though his representationwas not considered, the cases of some other employees who were notqualified for promotion and who made representations to upgradetheir post were considered by the Board. The details of the sameare given hereunder:Sl.No.DateParticulars11/9/2005D.Narasimha Reddy, Industrial Relation Manager –Upgraded as Deputy General Manager21/3/2006V.K.Suresh Kumar, Assistant Public RelationsOfficer – Upgraded as Deputy Public RelationsManager34/6/2007S.Gunasekaran, IFO – Temporarily promoted as Manger(Customer Care)Regulation 6-B of the Chennai Metropolitan Water Supply andSewerage Board Special Regulations, 1982 empowers the Board torelax any of the special regulations in exceptional cases.However, the claim of the writ petitioner/appellant is that samewas not done in his favour, while exercising it in favour of otherpersons mentioned above. 6. It is pertinent to note that at one point of time, theBoard has taken into consideration the petitioner's seniority, hiswork experience and past service record and thereafter initiatedproposals vide its order dated 7.8.1998 by constituting aCommittee on Personnel Management Issues and recommended thepetitioner's name for promotion as Deputy Internal Auditor inGrade-IV from the post of Senior Accounts Officer on the ground ofhis stagnation in the same post/cadre for more than 13 years onaccount of not possessing professional qualification. His namewas also recommended for further promotion and the ManagingDirector, Metro Water, vide his note dated 24.4.2003, considering https://hcservices.ecourts.gov.in/hcservices/ his stagnation in the post of Senior Accounts Officer for 18years, has recommended him for promotion by relaxing theprofessional qualification prescribed before the PersonnelCommittee and approved upgradation to the post of DeputyController of Finance. It is further submitted that in the reportof the Re-Engineering Study conducted by Prof.V.Lakshmipathy ofthe Regional Centre for Urban and Environmental Studies, OsmaniaUniversity, Hyderabad, it has been proposed to reserve one post ofDeputy Controller of Finance to non-professionals and the same hadbeen placed before the Board in its 221st meeting held on16.9.2000. The petitioner/appellant also submitted that he wasassociated with M/s.OMF Consultants, M/s.A.F.Ferguson & Co., inconducting classes to the employees of the Corporation of Chennaiin various branches of accounts, introduction of formats andpreparation of opening balance sheet as Junior Accounts Officerin-charge of Supplies Section during the year 1979 and hasregistered the Board under Central Sales Tax, by which the Boardsaves crores of rupees by issuing CST Forms by paying only CST @4% for inter-State purchase. The questionnaire prepared has beenrevised for Area and Regional Offices for conducting TransactionAudit. As Senior Accounts Officer, Internal Audit in-charge forthe settlement of Accountant General and Internal audit parasduring the year 1991 and 1992, he has taken special efforts tobring down the pendency of both Accountant General and InternalAudit paras. The Board vide its Res.Nos.13/91, dated 23.1.1991 and20/92 dated 12.3.1992, had identified and appreciated his effortsto reduce pendency.7. Apart from the above, he is a Post-graduate in Commerce(M.Com.) and has rendered 28 years of service in supervisorycadre, more than 20 years as Senior Accounts Officer and from22.11.2004, he has been working as Deputy Controller of Finance(in-charge). Therefore, by virtue of promotion, he will receive abenefit of Rs.325/- only. Therefore, when his representation wasrejected, though he having vast experience in the field ofaccounts, the Board, by its Minutes dated 29.7.2003, rejected hisclaim stating as follows:-"The Committee after detailed examination observedthat the individual has entered into the service of theBoard as Accounts Superintendent and has been given twopromotions thereafter as Accounts Officer and SeniorAccounts Officer. In as much as the individual doesnot possess the prescribed qualification, viz.Chartered Accountant or MBA with Finance or CostAccountant for the post of Deputy Controller ofFinance, the Committee felt that the request of the https://hcservices.ecourts.gov.in/hcservices/ Officer is not reasonable and if we consider suchunqualified person for promotion, this will give roomfor similar requests from other categories also."Aggrieved, the writ petition has been filed seeking a direction tothe respondents therein to consider the case of thepetitioner/appellant for regular promotion as Deputy Controller ofFinance against the existing vacancy in the Internal Audit Wing inview of his continuous service in the post of Senior AccountsOfficer with due modification and relaxation of Regulations of therespondent.8. The learned single Judge, considering the facts andcircumstances of the case, has observed that the post of DeputyController of Finance will be filled up by direct recruitmenteither permanently or on contract, possessing the qualification ofChartered Accountant or M.B.A. with Finance or Cost Accounts withat least five years experience, of which a minimum of two yearsshould have been in a supervisory capacity by promotion fromSenior Accounts Officers in Grade-V and the candidates mustpossess the qualifications prescribed for direct recruitment andmust have put in not less than five years of service as SeniorAccounts Officer, and held that the appellant/petitioner does notpossess the educational qualification though he was having vastexperience of service and dismissed the writ petition asmisconceived. Aggrieved, the present writ appeal has beenpreferred.9. Mr.N.R.Chandran, learned Senior Counsel appearing for theappellant submits that the appellant/petitioner is having theeducational qualification prescribed in the Regulations and hasvast experience in the Accounts Department of the Board. He ishaving minimum five years of experience as Senior Accounts Officerand he was discharging his duties as in-charge of the DeputyController of Finance, which is a promotional post from 22.11.2004and he is also in-charge of a higher post of Deputy Controller ofFinance, i.e., Controller of Finance from 8.9.2007 as per theproceedings of the Chief Controller of Finance inProc.No.CMWSSB/CCOF/Spl/2007. Therefore, if the counter filed inthe writ petition by the third respondent is taken into account,i.e., he is not having the prescribed educational qualificationfor promotion to the post of Deputy Controller of Finance, thefact remains that the respondents are utilising his services inthe post of Deputy Controller and Controller of Finance, takinginto consideration his vast experience in the department, isnothing but an exploitation of the vast and rich experience of the https://hcservices.ecourts.gov.in/hcservices/ appellant/petitioner. Further, the Board in the case of threeother employees, considering their request, even though they werenot possessing the requisite educational qualification to hold thepost, taking into consideration their length of services in thepost, has upgraded the posts which they were holding equivalent tothe promotional post. In support of these submissions, thelearned Senior Counsel has relied upon a decision of the ApexCourt reported in B.N.Saxena v. New Delhi Municipal Committee (AIR1990 SC 2021) wherein the Supreme Court, while considering theclaim for promotion to the post of Head Draftsman of MunicipalCorporation, has held that a person having no diplomaqualification but having experience of service for six years asSenior and Junior Draftsman is entitled to be considered forpromotion to the post of Head Draftsman. This judgment wasfollowed in Bashir Ahmad v. State of Punjab reported in (1996) 8SCC 697 holding that for appointment to the post of driver by wayof direct recruitment in the Animal Husbandry Department of theState of Punjab, though the Rules prescribed the qualification ofpossessing a light vehicle driving licence and knowledge ofPunjabi languge up to middle standard and also by way of promotionof 10% drivers from the lower rank of cleaner, when the petitionertherein was asking for relaxation of the above Rule, the SupremeCourt held that in case of direct recruitment, the question ofrelaxation does not arise. 10. A Division Bench of this Court, in which one of us(E.D.R., J) delivered the judgment, in Union of India v. CentralAdministrative Tribunal reported in (2008) 2 MLJ 744, hasfollowed the ratio laid down in the judgment reported inB.N.Saxena v. New Delhi Municipal Committee (AIR 1990 SC 2021)and considering the length of service put in by the applicantstherein, quashed the Rule impugned to the effect of givingretrospective effect, causing prejudice to the applicants thereinand depriving their promotional avenues.11. In view of the above, the learned senior counselappearing for the appellant submits that when the respondentsBoard is utilising the vast experience of the appellant in thepromotional post, while denying his due promotion merely on theground that he is not having the requisite educationalqualification, the Board should have atleast upgraded the post ofSenior Accounts Officer to that of Deputy Controller of Finance,as he has already gained 25 years of experience in the above saiddepartment. https://hcservices.ecourts.gov.in/hcservices/

12. On the other hand, the learned Standing counsel for theBoard submits that when the Special Regulations prescribe theeducational qualification for the post of Deputy Controller andwhen the appellant is not possessing such requisite educationalqualification, the question of relaxing the same does not at allarise and the cases on which the appellant is relying upon are notin the Accounts Department, but are in the Public RelationsDepartment of the Board. The Board has considered the case of theappellant and rejected the same only on the ground of educationalqualification. In support of his contention, he has relied upon adecision of the Supreme Court in Rajasthan Public ServiceCommission v. Kaila Kumar Paliwal reported in 2007(6) SCALE 531wherein it is held that the Selection Committee, in the absence ofany express power conferred upon it, cannot relax such essentialqualification. It has also held that in order to be consideredfor promotion to a higher post, a person must possess theessential qualification. If he does not do so, he cannot beconsidered therefor. Even the selection committee, in the absenceof any express power conferred upon it, cannot relax suchessential qualification.13. The above decision cited by the learned Standing Counselfor the respondents Board cannot be applied to the present case onhand since it is not the request made to the Selection Committeeby the appellant/writ petitioner to relax his educationalqualification, but on the other hand, the request is made to theBoard, which is having the power conferred upon it by Regulation6-B of the Chennai Metropolitan Water Supply and Sewerage Board,Special Regulations 1982, which empowers the Board to relax any ofthe Special Regulations in exceptional cases. But, unfortunately,as seen from the order passed by the learned single Judge of thisCourt dated 23.4.2007, Regulation 6-B is not properly extracted.Instead of the Board having powers to relax any of these SpecialRegulations, it has been mentioned that the Board shall have nopowers to relax. Therefore, from any angle, the appellant/writpetitioner has a better stand to seek for considering his requestfor relaxation of the educational qualification, taking intoconsideration his vast experience in the department for about 28years.14. Secondly, in the case of similarly situated persons, theBoard has upgraded the post when they are not eligible forpromotion and thirdly, the Board is utilising his vastexperience in the higher post, viz., the Controller of Finance,which is above the posts of Senior Accounts Officer and DeputyController of Finance, instead of promoting him to the higher post https://hcservices.ecourts.gov.in/hcservices/ since he does not have the professional qualification. Therefore,we are not able to appreciate the contention raised by the learnedStanding Counsel for the Board that appellant/writ petitioner isnot having the essential qualification and therefore, the Boardhas rightly rejected the request for relaxation as regards theeducational qualification for the post of Deputy Controller ofFinance. 15. For all these reasons, the order of the learned singleJudge is liable to be set aside and accordingly set aside and thewrit appeal is allowed. The consequential resolution passed bythe Board is also set aside with a direction to therespondents/Board to exercise the power conferred under Regulation6-B of the Chennai Metropolitan Water Supply and Sewerage BoardSpecial Regulations, 1982 in relaxing the professionalqualification to promote the appellant/writ petitioner to the postof Controller of Finance, since we consider that he is alreadyworking in the promotional post and it only requires an usualorder to be passed by the Board under Regulation 6-B of the Board,thereby relaxing the professional qualification and issuing thepromotional order. No costs.gs. Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To1. The Secretary to Govt., Municipal Admn. & Water Supply Dept., Fort St. George, Chennai.2. The Chairman, Chennai Metropolitan Water Supply & Sewerage Board, No.1, Pumping Station Road, Chintadripet, Chennai. https://hcservices.ecourts.gov.in/hcservices/

3. The Managing Director, Chennai Metropolitan Water Supply & Sewerage Board, No.1, Pumping Station Road, Chintadripet, Chennai.4. The Chief Controller of Finance Chennai Metropolitan Water Supply & Sewerage Board, No.1, Pumping Station Road, Chintadripet, Chennai.1 cc to Mr.D.Sukumar, Advocate, SR.248611 cc to Mr.B.Shanthakumar, Advocate, SR.255511 cc to the Government Pleader, SR.24946rsy (co)dv/4.6.W.A. No.755 of 2007