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2007 DIGILAW 3175 (MAD)

P. Pazhanisamy v. The Chief Secretary to Government & Others

2007-09-28

M.CHOCKALINGAM

body2007
Judgment :- This order shall govern the above two writ petitions. 2. W.P.No.39676 of 2005 has been brought forth by the petitioner, seeking for the issue of a writ of certiorarified mandamus to call for the records relating to the order No.6-1-115/PASIC/ESTT/PF/96, dated 012. 2005 passed by the third respondent and to quash the same and consequently, to direct the third respondent to promote the petitioner as Assistant General Manager with effect from 11. 1998 and further consider him for promotion to the post of Deputy General Manager with all consequential monetary and other service benefits by providing promotion as method of recruitment for the post of Deputy General Manager, Karaikal and also to declare the Recruitment Rules for the post of DGM Karaikal in so far as the method of Recruitment by Deputation is concerned as illegal and consequently direct the respondents to amend the same on par with Recruitment Rules to the post of Deputy General Manager which provides for promotion from the grade of Assistant General Manager in the Corporation with five years service in Inputs/Seeds/Horticulture (OR) Transfer on deputation in the grade of Deputy Director in the Agriculture Department with five years experience in the field of Inputs/Seeds/Horticulture/Marketing. 3. W.P.No.824 of 2006 has been brought forth seeking for the issue of a writ of certiorari to call for the records relating to the order No.A/12017/12/2005/Ag/A1, dated 212. 2005 passed by the first respondent and to quash the same. .4. The gist of the case of the petitioner in short in these two writ petitions is that the petitioner, who was appointed in the year 1989 as Depot Manager on direct recruitment, was promoted as Manager Technical in the year 1995. He was eligible for promotion when he was completed three years regular service in the feeder category. There arose vacancy in the year 1998 due to repatriation of one G.Madhavan, but the promotion of the petitioner to the post of Assistant General Manager was delayed. The petitioner has filed W.P.No.9143 of 2001 seeking promotion to the post of the Assistant General Manager. Pending writ petition, an order came to be passed on 7. 2001, giving promotion as Assistant General Manager and hence, that writ petition was dismissed. But, the petitioner was denied promotion from the year 1998. Had it been done, he would have completed 7 years of service. Pending writ petition, an order came to be passed on 7. 2001, giving promotion as Assistant General Manager and hence, that writ petition was dismissed. But, the petitioner was denied promotion from the year 1998. Had it been done, he would have completed 7 years of service. The post of Deputy General Manager fell vacant from 30.9.2005 due to repatriation of Mr.T.A.S.Abdul Kader to his parent department. The petitioner made a representations in September, 2005 requesting them to offer additional charge of the post of Deputy General Manager on regular basis, but it was not given. The third respondent directed one S.K.Mastan to be in additional charge, but he is junior to the petitioner. He was also promoted as Assistant General manager on 15. 2003 nearly 2 years after the promotion of the petitioner as Assistant General Manager. The respondents 2 and 3 were not justified in delaying the promotion of the petitioner to the post of Assistant General Manager and thereby depriving his legitimate right to be considered for promotion to the post of Deputy General Manager. The petitioner filed W.P.No.35473 of 2005, challenging the order, dated 29. 2005 passed by the third respondent and further to direct the third respondent to promote him as Assistant General Manager with effect from 11. 1998. This court has passed an order on 11. 2005, directing the second respondent to consider the representations, but they were all rejected by the second respondent, stating that they were considered, but the petitioner was not entitled from 1998, but they have relied on Rules 11 and 12 of the Recruitment Rules for the post of Deputy General Manager, Karaikal. The respondents 2 and 3 have not published any recruitment rules in the Government Gazette. There has been change of rules frequently. In the instant case, after filing the writ petition, the petitioner has filed the amendment petition, seeking amendment of the prayer. 5. The respondents 2 and 3 have not published any recruitment rules in the Government Gazette. There has been change of rules frequently. In the instant case, after filing the writ petition, the petitioner has filed the amendment petition, seeking amendment of the prayer. 5. The learned counsel for the petitioner would submit that so far as the post of Deputy General Manager was concerned, it is one available at Pondicherry and the other is available at Karaikal; that as per the Rules from the time of constitution of Corporation, the post has been filled up all along in the past by way of deputation; that so far as the post of Deputy General Manager at Pondicherry was concerned, it could be filled up either by promotion or by deputation and thus, so long as both the posts are equal and the workloads and duties to be performed are equal, there is no need for filling up the post at Pondicherry either by promotion or deputation and filling up the post at Karaikal by way of deputation, which would deprive the right of the petitioner, who has been in service of the said department in the past and also there is no reason to continue the said rules. Hence, the rules have got to be struck down and both the Deputy General Manager posts either at Pondicherry or Karaikal are to be filled up by promotion and hence, the first writ petition has got to be ordered. 6. So far as the second writ petition is concerned, the learned counsel for the petitioner would submit that pending the first writ petition, which was pending before this court, one person by name Rajendran, who was originally working as Additional Director of Agriculture, was promoted as Deputy Director of Agriculture and he was also made as Deputy General Manager, Karaikal on the very day; that it would be quite clear that in order to defeat the right of the petitioner, it has been done and under these circumstances, suitable directions have got to be issued to enable the petitioner to be posted in that place, who is having better experience and hence, both the writ petitions have got to be ordered. .7. .7. The learned counsel for the respondents would submit that both the petitions have got to be dismissed; that the petitioner has no locus standi to challenge the same; that the petitioner is not at all eligible for promotion to the post of Deputy General Manager, Karaikal; that even if the impugned order, dated 212. 2005, appointing the fourth respondent to the said post on deputation, is quashed, he cannot be promoted; that the Corporation came to be constituted in the year 1987; that at Karaikal, there is a post of Deputy General Manager from that time onwards and it is only by way of deputation; that for the period of nearly 20 years, no one has challenged the same; that the Head Office is at Pondicherry, which is having the Managing Director post; that the Deputy General Manager post came into existence from May, 2003; that it is not correct to state that both the posts and the works are equal, but not so; and that the corporation is having its Head Office at Pondicherry and the Branch Office is at Karaikal. 8. 8. The learned counsel would further add that the Branch Office situated at Karaikal is outside the Pondicherry Region and the Government has appointed Deputy General Manager, Karaikal on deputation from the agriculture department to the said branch office; that the recruitment rules were framed to the post of Deputy General Manager in its Head Office at Pondicherry; that as per the said recruitment rules, the method of recruitment is by promotion from the grade of A.G.M. with 5 years service in Inputs/Seeds/Horticulture or by transfer or by deputation from the cadre of D.D.A., Department of Agriculture, Government of Pondicherry with 5 years of experience in the field of Inputs/Seeds/Horticulture/Marketing; that so far as the Deputy General Manager at Karaikal was concerned, he is the head and in-charge and responsible of/for the entire administration and management of the said Branch Office; that taking into consideration of the onerous nature of the said position, the duties and responsibilities assigned to it and also the consequential recruitment for appointment of a person possessing adequate qualification and competence to discharge the same, the Corporation has framed a separate recruitment rules with the approval of the Government of Pondicherry for recruitment to the said post; that Rules 11 and 12 of the Recruitment Rules for the post of Deputy General Manager, Karaikal would clearly indicate that the method of recruitment whether by direct recruitment or by promotion or by deputation/transfer and percentage of the vacancies to be filled up by various methods -by deputation; and that in case of recruitment by promotion/deputation/transfer grades from which promotion/deputation/transfer to be made - by deputation from the cadre of Joint Director of Agriculture or Deputy Director of Agriculture with 3 years of service in the grade and thus, both cannot be equated. .9. .9. The learned counsel would further add that so far as the petitioners request was concerned, he has been working as Assistant General Manager and when the Deputy General Manager post fell vacant, he could be considered for the post; that once there are separate recruitment rules and appointments are also made so far as Pondicherry are concerned, either by promotion or deputation and so far as Karaikal is concerned, it is only by way of deputation, both cannot be equated; that taking into consideration all the parameters and appraisement of the nature of duty and when there are separate recruitment rules available, they have to be followed in the post and under these circumstances, so long as there is no need, it cannot be said to be as discrimination made; that in both the Deputy General Man ager posts either at Pondicherry or Karaikal, the workloads and the performance of duties and responsibilities cannot be equated; that the Deputy General Manager at Karaikal requires more experience and competence also; that taking into consideration the same, the rule has been framed in such a way that the Joint Director or Deputy Director of Agriculture with 3 years of service in the grade has got to be deputed for that purpose and hence, the petitioner, who has been promoted as Assistant General Manager, now cannot come forward with the request that he should be promoted in the year 1998 itself and had he been promoted, he would have become the Deputy General Manager at Karaikal and under these circumstances, both the writ petitions are without merits and hence, they have got to be dismissed. 10. The court has paid its anxious consideration on the submissions made. It is not in controversy that the petitioner, who was working in the department, has been promoted as Assistant General Manager with effect from 7. 2001. From the submissions made and looking into the materials available, it would be quite clear that the Corporation came to be established in the year 1987 and from that time onwards till date, so far as the Deputy General Manager post at Karaikal was concerned, it has been only by way of deputation. Separate recruitment rules have been formulated and they have been followed in the past. It is pertinent to point out that the Deputy General Manager post at Karaikal is created only in the year 2003. Separate recruitment rules have been formulated and they have been followed in the past. It is pertinent to point out that the Deputy General Manager post at Karaikal is created only in the year 2003. The recruitment rules for the post of Deputy General Manager at Pondicherry and Karaikal are entirely different and one has nothing to do with the other and they are independent and separate. .11. Now, it would be quite clear that the petitioner, who was all along in the service, has been promoted as Assistant General Manager at Pondicherry. It is an admitted position that as on today, so far as Pondicherry is concerned, there is no vacancy to the post of Deputy General Manager. By an order, dated 7. 2001, the petitioner was promoted as Assistant General Manager. Now, after a period of 4 years, the petitioner cannot be allowed to say that had he been promoted in the year 1998 itself, he would have been in better position. Under these circumstances, so long as the recruitment rules 11 and 12 what he wants to struck down are available, he cannot have either of the reliefs. Now, the question would be whether Rules 11 and 12 have got to be amended or have got to be quashed. The court is of the considered opinion that the circumstances do not warrant so. 12. The contention of the learned counsel for the petitioner is that both the posts of Deputy General Manager and the persons, who are appointed, and their educational qualifications and experience are equal and under these circumstances, it would not be fit and proper to fill up the post of Deputy General Manager at Karaikal, by deputation from the cadre of Joint Director of Agriculture or Deputy Director of Agriculture with 3 years of service in the grade. According to the respondents side, the post of Deputy General Manager, Karaikal came to be filled up from the establishment of the Corporation in 1987 by way of deputation from the agriculture department, in view of the effective administration and management of the said Branch Office and that too taking into consideration the duties and responsibilities to be assigned to that post. Now, at this juncture, this court is unable to see any reason to struck down the Rules 11 and 12. Accordingly, both the writ petitions are disposed of. No costs.