| SooperKanoon Citation | sooperkanoon.com/1191870 |
| Court | Chennai High Court |
| Decided On | Mar-23-2016 |
| Case Number | W.A. Nos. 804 & 805 of 2008 |
| Judge | The Honourable Chief Justice Mr. Sanjay Kishan Kaul &Amp; M.M. Sundresh |
| Appellant | T. Manthiramoorthy and Others |
| Respondent | Tamil Nadu Water Supply and Drainage Board, rep. by its Managing Director, Chennai and Others |
(Prayer: W.A.No.804 of 2008 filed under Clause 15 of Letters Patent against the order dated 22.01.2008 in W.P.No.26885 of 2007 on the file of this Court.
W.A.No.805 of 2008 filed under Clause 15 of Letters Patent against the order dated 22.01.2008 in W.P.No.27555 of 2007 on the file of this Court.)
Common Judgment:
Sanjay Kishan Kaul, CJ.
1. Appellants claims to be Technical Assistants, all selected through the Employment Exchange and deployed with the first respondent/Tamil Nadu Water Supply and Drainage Board. The appellants are aggrieved by the manner of promotion to the post of the Assistant Engineer in the first respondent. They seek quashing of the resolution of the Selection Committee of the first respondent, being the second respondent, which met on 06.07.2007 and the consequential order issued by the said Selection Committee as Proceedings No.1 dated 06.07.2007 to the extent they relate to the selection of 67 departmental candidates for appointment as Assistant Engineers on transfer of service from lower categories with a direction to consider the claims of the appellants for promotion to the post on the basis of the length of service.
2. In order to appreciate the controversy, we turn to the Tamil Nadu Water Supply and Drainage Board Service Regulations, 1972 (hereinafter called Regulations ). Regulation No.19 deals with appointment to the posts specified in Column 1 and the post of Assistant Engineers is specified at Serial No.6 of Part (ii) of the same, which reads as under:-
| 6) Assistant Engineers | (i) Direct Recruitment |
|---|---|
| (ii) Recruitment by transfer.Recruitment between Direct recruitment and transferees shall be in the ratio of 1:2 (B.P.(Ms) No.140/E(per)Wing/Dated 06.12.2007. |
4. The grievance of the appellants is that a communal roster has been used for recruitment, while this was not so permissible under the Regulations. The relevant provision in this behalf being Regulation No.8 is as under:-
8. Reservation of Appointment. -The principle of reservation of appointments in laid down in rule 22 of General Rules for the Tamil Nadu State and Subordinate Service shall apply in case of direct recruitment to all posts. The reservation of appointment to the posts shall be made on the following basis:
5. A reading of the aforesaid makes it abundantly clear that the principle of reservation has to apply in the case of direct recruitment to all posts , which in turn would imply that it has no application to recruitment by transfer. In this behalf, we may also refer to the definition recruited direct in Regulation No.3, which is the definition clause, at Serial No.14, which reads as under:-
(14) Recruited direct excepting the cases of appointment by promotion, by transfer or by appointment from Government service on deputation or on foreign service terms from any other organisation or by appointment on contract, all other appointments directly made shall be deemed to be made by direct recruitment.
The aforesaid also makes it even more clear that the appointment by transfer is specifically excluded.
6. The surprising part is that not only the rules are quite clear, but that is how the rule making authority being the first respondent, itself understood the rules. In this behalf, our attention has been drawn to the counter-affidavit filed by the first respondent in W.P.No.12862 of 1997. It would suffice to reproduce paragraphs 15 and 20 of the counter-affidavit filed therein, which read as under:-
15. The respondent submits that in Tamil Nadu Water Supply and Drainage Board the rule of reservation is being adopted in the initial level recruitment. The rule of reservation does not arise in the case of appointment by transfer from the departmental candidate. The orders of Government dt. 13.10.84 were followed in the selection of 59 candidates in Tamil Nadu Water Supply and Drainage Board.
20. The rule of reservation has been adopted while appointing him as Technical Assistant in the regular category (Entry level post). The rule of reservation does not arise in the further promotional post.
7. The aforesaid stand was accepted by the learned Single Judge of this Court vide order dated 07.09.2006 passed in W.P.Nos.12862 of 1997 and 2763 of 2004, while referring to the submissions made on behalf of the first respondent herein as under:-
18. The contention of the respondents is that the feeder category for the post of Assistant Engineer on transfer of service are Draughting Officer, Junior Draughting Officer and Technical Assistant and accordingly those who have been put up 5 years of service are eligible for appointment as Assistant Engineers and the Selection of 59 departmental candidates was made on the basis of the same, And there is no rule or reservation in the appointment by transfer from the departmental candidates.
8. The matter does not rest at this, as even much later when the appellants sought information under the RTI Act, the Public Information Officer on 02.08.2011 furnished the following information:-
1) As per Regulation 8 of TWAD Board Service Regulation, the principal of reservation of Appointment as laid down in rule 22 of General rule for the Tamil Nadu State and Subordinate Service shall apply in the case of Direct Recruitment to all posts.
There is no provision in regulation to follow the rule of reservation in the appointment by transfer to higher post from the lower categories.
9. The learned Senior Counsel for the first two respondents and also the private respondents can hardly dispute the aforesaid position, though the learned counsels for the respondents contend that in the counter-affidavit filed in the present petitions, apparently the stand is different. However, on perusal of the counter-affidavit, we do not find so as all that is stated is that the appointment to the post of Assistant Engineer on transfer of service has been filled up by applying the principles of seniority, communal rotation and cadre strength . There is no justification given as to why the communal rotation principle has been applied. In fact, no such justification could have been given for the reason that the consistent stand of the first respondent has been that in case of appointment by transfer of service, there would be no application of this principle.
10. We may note that the settled law in this behalf is also quite clear there cannot be an application of communal roster for promotion, unless it is specifically specified in the rules.
11. Suffice to refer the following judgments:-
1. Bimlesh Tanwar v. State of Haryana and others [(2003) 5 SCC 604]
2. U.P. Power Corporation Limited v. Rajesh Kumar and others [(2012) 7 SCC 1]
3. Chairman and Managing Director, Central Bank of India and others v. Central Bank of India SC/ST Employees Welfare Association and others [2015 (1) SCALE 169]
12. In Bimlesh Tanwar's case (cited supra), the Hon'ble Supreme Court in paragraph 40 held as under:-
40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S.Gholaut [(1995) 5 SCC 625] does not lay down a good law.
13. In Rajesh Kumar's case (supra), the Apex Court in paragraph 7 re-produced the principles. The relevant principle (v) reads as under:-
(v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-A) will be governed by the two compelling reasons - backwardness and inadequacy of representation , as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.
14. In Central Bank of India SC/ST Employees Welfare Association's case (supra), the Hon'ble Supreme Court held as under:-
In the first instance, we make it clear that there is no dispute about the constitutional position envisaged in Articles 15 and 16, insofar as these provisions empower the State to take affirmative action in favour of SC/ST category persons by making reservations for them in the employment in the Union or the State (or for that matter, public sector/authorities which are treated as State under Article 12 of the Constitution). The laudable objective underlying these provisions is also to be kept in mind while undertaking any exercise pertaining to the issues touching upon the reservation of such SC/ST employees. Further, such a reservation can not only be made at the entry level but is permissible in the matters of promotions as wells. At the same time, it is also to be borne in mind that Clauses 4 and 4A of Article 16 of the Constitution are only the enabling provisions which permit the State to make provision for reservation of these category of persons. Insofar as making of provisions for reservation in matters of promotion to any class or classes of post is concerned, such a provision can be made in favour of SC/ST Civil Appeal No. of 2015 and Ors. (arising out of SLP (C) No. 4385 of 2010 and Ors.) category employees if, in the opinion of the State, they are not adequately represented in services under the State. Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. Of course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced. What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise.
15. The said decisions are quoted with approval by a recent judgment of the Hon'ble Supreme Court in Writ Petition (Civil) No.690 of 2015 (Suresh Chand Gautam v. State of Uttar Pradesh and others), decided on 11th March, 2016.
16. A perusal of the impugned order of the learned Single Judge dated 22.01.2008 by which the claims of the appellants were dismissed shows that the reasoning, if at all, is contained in paragraph 10. Other than saying that the principle of reservation has been followed and some Division Bench judgments would have no application to this case, nothing more seems to have been stated. In observing that since the appointment is by transfer of service and thus the communal roster would apply, the reasoning runs in the face of the rule itself. We have thus no hesitation in concluding that the impugned order cannot be sustained and has to be set aside with a direction quashing the selection process and requiring the selections to be made in accordance with the rule referred as aforesaid and the settled legal principles. This process be completed within a period of three months and till that time, no demotion be effected as some of the persons appointed may have become eligible by passage of time.
17. There is no other aspect urged before us.
18. The appeals are, accordingly, allowed, leaving the parties to bear their own costs.