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2025 DIGILAW 1059 (MAD)

B. Gopalakrishnan v. Government Of Tamil Nadu

2025-02-20

K.RAJASEKAR, S.M.SUBRAMANIAM

body2025
ORDER : S.M.SUBRAMANIAM, J. (i) W.M.P.No.17672 of 2024 seeking to permit the petitioners to file a single writ petition stands ordered on payment of separate Court fee. (ii) For the reasons stated in the affidavits, W.M.P.Nos.17677 & 28227 of 2024 are ordered. 2. This batch of writ petitions on hand has been instituted either to issue a writ of declaration declaring the amendment to Rule 7(3) of the 1st respondent in G.O.(Ms)No.11, Co-operation, Food and Consumer Protection Department dated 24.01.2024 and the consequential provisional seniority list dated 29.05.2024 bearing ref.No.Rc.No.12367/ 2024-25/CCS to be ultra vires as offending Article 14 and 16 of the Constitution of India or to issue a writ of certiorarified mandamus, calling for the records pertaining to the G.O.Ms.No.11, Co-operation, Food and Consumer Protection dated 24.01.2024 of the first respondent as notified in the Tamil Nadu Government Gazette dated 13.03.2024 and the consequential State Level Approved Seniority List of Managers of District Central Cooperative Bank as on 01.05.2024 and to quash the same and consequently direct the respondents to continue the district wise promotions, respectively. 3. The facts in brief as stated by the writ petitioners reveal that the petitioners have been employed in various District Central Cooperative Banks across the State of Tamil Nadu in the subordinate posts. The petitioners were promoted as Managers and the next avenue of promotion is to the post of Assistant General Manager. The Government issued the impugned Government Order incorporating the post of Assistant General Manager under Common Cadre Service, in exercise of the powers conferred on the Government under Section 75 of the Tamil Nadu Cooperative Societies Act, 1983 (for short, “the Act”). 4. The inclusion of the post of Assistant General Manager into Common Cadre Service caused prejudice to the promotional opportunities of the writ petitioners for securing promotion to the post of Assistant General Manager, since the State-wise seniority list of Managers is notified for grant of promotion to the post of Assistant General Manager. Thus the writ petitions came to be instituted challenging the amendment and/or inclusion of the post of Assistant General Manager in Common Cadre Service. 5. Thus the writ petitions came to be instituted challenging the amendment and/or inclusion of the post of Assistant General Manager in Common Cadre Service. 5. The learned Senior Counsel Mr.V.Prakash appearing on behalf of the petitioners in W.P.No.16132 of 2024 would mainly contend that an employee, who entered into the services of one central cooperative bank, is deprived of his length of service in his parent bank, in view of the amendment and the publication of the State-wise seniority list. For example, a junior employee, who was promoted to the post of Manager in one central cooperative bank, may overlook another senior employee, who was promoted to the post of Manager in another central cooperative bank. Therefore, the senior employees who were promoted as Managers, on account of non-availability of vacancy in the post of Assistant General Manager in their parent banks, are deprived of their further promotions to the posts of Assistant General Manager and General Manager, on account of inclusion of the post of Assistant General Manager in Common Cadre Service. The learned Senior Counsel further contended that merit assessment has not been made and the seniority alone is followed for grant of promotion to the post of Assistant General Manager. Rule 8 of the Tamil Nadu Central Co-operative Banks Common Cadre Service Rules, 2019 contemplates that educational qualifications and experience for the cadre personnel are to be taken into consideration for selection and appointment to the common cadre posts. The spirit of the said rule has been flouted by the Common Cadre Authority and thus the impugned Government Order is to be declared as ultra vires and unconstitutional. The learned Senior Counsel has relied on the following Supreme Court judgments in support of his contentions:- (i) S.B.Patwardhan and another v. State of Maharashtra and others, (1977) 3 SCC 399 . (ii) B.L.Goel v. State of Uttar Pradesh and others, (1979) 2 SCC 378 . (iii) Siraj Ahmad v. State of Uttar Pradesh and another, (2020) 19 SCC 480 . 6. The learned Senior Counsel Mr.V.P.Sengottuvel appearing on behalf of the petitioners in all the other writ petitions would also urge this Court by stating that the central cooperative bank employees, who are all promoted as Managers, are unable to get promotion to the post of Assistant General Manager on account of publication of the State-wise seniority list. 6. The learned Senior Counsel Mr.V.P.Sengottuvel appearing on behalf of the petitioners in all the other writ petitions would also urge this Court by stating that the central cooperative bank employees, who are all promoted as Managers, are unable to get promotion to the post of Assistant General Manager on account of publication of the State-wise seniority list. The Common Cadre Service Rules regarding assessment on merits are not being followed. The non-consideration of the relevant rules resulted in denial of promotional opportunity to the writ petitioners. Thus the impugned Government Order is discriminatory and violative of Articles 14 and 16 of the Constitution of India. 7. The learned Special Government Pleader Mrs.Geetha Thamaraiselvan would oppose by stating that the Common Cadre Authority is making merit assessment by conducting interview at the time of considering the names for promotion to the common cadre posts. Therefore, Rule 8 of the Common Cadre Service Rules has been followed by the Common Cadre Authority at the time of granting promotion. The seniority is followed based on the date of entry into service in the feeder post of Manager and therefore, the senior most officials employed in the cadre of Managers will be considered in the panel prepared for promotion to the post of Assistant General Manager. All the officials who are included in the panel, depending upon the availability of vacancies, will be considered on the basis of seniority-cum-merit and therefore, there is no infirmity in respect of the procedures followed for promotion to the common cadre posts. 8. This Court considered the arguments as advanced between the parties to the lis on hand. 9. The constitution of Common Cadre Service is provided under Section 75 of the Act. 8. This Court considered the arguments as advanced between the parties to the lis on hand. 9. The constitution of Common Cadre Service is provided under Section 75 of the Act. Sub-section (1) of Section 75 states that notwithstanding anything contained in this Act or the by-laws made thereunder and subject to the rules made by the Government in this behalf, the Government may, in the interest of the co-operative movement, constitute from time to time, by order, in respect of – (i) scheduled co- operative societies; or (ii) primary societies affiliated to such scheduled co- operative societies; or (iii) co-operative sugar mills, co-operative spinning mills, co-operative tea factories and such other registered societies prescribed for the purposes of sub section (4) of section 33; or (iv) such other class or category of registered societies in which the Government have taken shares or given financial or other assistance as may be notified by the Government, one or more common cadre of service in respect of the posts of secretaries, assistant secretaries, executive officers, assistant executive officers, general managers, assistant general managers, managers, assistant managers, purchase managers, purchase officers, assistant purchase officers, development officers, chief accountants, chief accounts officers, accounts officers and such other class or classes of posts as may be notified by the Government. The common cadre of 47 service under this section may be constituted either separately in respect of the said posts in any group of registered societies mentioned in item (i) or item (ii) or item (iii) or item (iv), as the case may be, or jointly for the aforesaid posts in one or more of the groups of registered societies mentioned in the said items (i), (ii), (iii) and (iv) or of two or more of the registered societies in any one of the groups mentioned in the said items. 10. Sub-section (2) of Section 75 in clear terms stipulates that on the date of constitution of such common cadre of service, all the employees shall be deemed to have been absorbed in the common cadre of service with effect on and from the date of constitution of such common cadre of service. Therefore, on notification by the Government under Section 75 constituting common cadre of service, all the employees holding such posts shall be deemed to have been absorbed in the common cadre services. Therefore, on notification by the Government under Section 75 constituting common cadre of service, all the employees holding such posts shall be deemed to have been absorbed in the common cadre services. However, the first proviso to sub-section (2) of Section 75 protects the service conditions of the officials. It states that the salary (including allowances) of any such employee shall not be varied to his disadvantage. Thus the service conditions relating to salary remains unaltered. 11. The second proviso to sub-section (2) of Section 75 enumerates that the employee may, within such period as may be prescribed, by notice in writing to the competent authority constituted under sub-section (3), intimate his option for not becoming a member of such common cadre of service. Therefore, an employee is given an option to promotion in the same cadre in his parent cooperative society by relinquishing his promotional opportunities to the common cadre posts. 12. Section 75 of the Act protects the service conditions of the employees who are all brought in the common cadre services. 13. Admittedly, Section 75 of the Act is not under challenge. The Government Order issued in G.O.Ms.No.11 dated 24.01.2024 and the notification issued in exercise of the powers conferred by sub-section (1) of Section 180 read with sub-section (1) of Section 75 of the Act, alone is under challenge. Therefore, this Court has to examine whether the impugned Government Order issued in G.O.Ms.No.11 contravenes any of the clauses under Section 75 of the Act. 14. The impugned order reveals that the post of Assistant General Manager is included in the common cadre services. It prescribes due maintenance of list of members of common cadre services and a list of employees in the feeder posts for the cadre posts of General Manager and Assistant General Manager, namely, Assistant General Managers and Managers respectively, working in all the central cooperative banks across the State of Tamil Nadu. Accordingly, the State-wise seniority lists of Managers and Assistant General Managers are notified. However, the present writ petitions have been instituted challenging the incorporation of the post of Assistant General Manager into common cadre services. The impugned Government Order reveals that the service benefits including salary and other allowances are protected and does not seem to be disadvantageous to the employees who are all brought into the common cadre services. 15. However, the present writ petitions have been instituted challenging the incorporation of the post of Assistant General Manager into common cadre services. The impugned Government Order reveals that the service benefits including salary and other allowances are protected and does not seem to be disadvantageous to the employees who are all brought into the common cadre services. 15. The only grievance of the writ petitioners is that their long services from the date of entry into the parent central cooperative banks are to be taken into consideration, since the employees who joined later in the services could secure promotion to the post of Assistant General Manager. 16. The said grievance arises on account of bringing the post of Assistant General Manager into the common cadre services. 17. This Court is of the considered opinion that promotion per se cannot be claimed as absolute right by an employee. All promotions are to be granted strictly in accordance with the service rules in force. Therefore, there is no assurance about the promotional opportunity to an employee at the time of entering into the services of a cooperative bank. Whenever vacancy arises and an administrative decision is taken to fill up the vacancy, then alone the consideration would arise. Thereafter, the competent authority has to prepare a panel of eligible candidates who are all waiting to secure promotion to the higher posts. Amongst the employees included in the approved panel, seniority-cum-merit is to be considered for grant of promotion and therefore an employee, who is working for long years in a particular central cooperative bank, has no vested right to claim promotion to the higher post. 18. So far as the judgments relied on by the learned Senior Counsel Mr.Prakash are concerned, the facts in those cases are distinguishable and more so, in the present cases, Section 75 of the Act has not been challenged. Section 75 confers power on the Government to include the post of Assistant General Manager in the common cadre services. Thus the said judgments are of no avail to the petitioners to secure the reliefs. 19. The principles in this regard have been enunciated by the Hon'ble Supreme Court in the case of Union of India and another v. Manpreet Singh Poonam etc., reported in 2022 LiveLaw (SC) 254. Paragraph-14 of the said judgment is extracted hereunder:- “14. Thus the said judgments are of no avail to the petitioners to secure the reliefs. 19. The principles in this regard have been enunciated by the Hon'ble Supreme Court in the case of Union of India and another v. Manpreet Singh Poonam etc., reported in 2022 LiveLaw (SC) 254. Paragraph-14 of the said judgment is extracted hereunder:- “14. The High Court also fell in error in taking note of the delay in considering the case of the respondents to the promotional post of JAG-I. No officer has a vested right to a promotional post, which is restricted to that of consideration according to law. The law on this aspect is settled by this Court in the case of Ajay Kumar Shukla and Ors. v. Arvind Rai and Ors., 2021 SCC OnLine SC 1195: “37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty [ (1991) 2 SCC 295 ] in paragraph 4 of the report which is reproduced below: “4… There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.” 38. A Constitution Bench in case of Ajit Singh v. State of Punjab [ (1999) 7 SCC 209 ], laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27: “21 : Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22 : Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27: “21 : Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22 : Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the “State shall not deny to any person equality before the law or the equal protection of the laws”. Article 16(1) issues a positive command that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”. It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right. “Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1) xxx xxx xxx 27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950.” 20. Therefore, the sequence of inclusion of the post of Assistant General Manager in common cadre services and the publication of State- wise seniority list would not provide any cause or right for the employees who are all holding the post of Manager in various central cooperative banks across the State of Tamil Nadu. 21. The argument advanced on behalf of the petitioners that if the post of Assistant General Manager has not been incorporated in the common cadre services, the employees working in the said cooperative bank will get promotion to the higher post in advance, deserves no merit consideration, since promotion per se cannot be claimed as a matter of right. 22. In the absence of any vacancy in the higher post, the employees are getting the benefits of higher scale of pay as per the pay rules or as per the Government Orders. It is brought to the notice of this Court that the cooperative bank employees are also getting the benefit of selection grade and special grade. Therefore, the employees are getting higher salary equivalent to the salary applicable to the higher post. That apart, none of the service conditions are violated. 23. The service rendered by the employees of the central cooperative banks is a contract and the service conditions cannot be altered to the disadvantage of the employees. Notifying the post of Assistant General Manager into common cadre service is a policy decision taken by the Government in exercise of the powers conferred under Section 75 of the Act. The Act itself contemplates that the service conditions of the employees are to be protected. While so, the petitioners have not established any cause or right so as to interfere with the impugned notification nor the impugned notification including the post of Assistant General Manager in common cadre of service can be declared as violative of Articles 14 and 16 of the Constitution of India. While so, the petitioners have not established any cause or right so as to interfere with the impugned notification nor the impugned notification including the post of Assistant General Manager in common cadre of service can be declared as violative of Articles 14 and 16 of the Constitution of India. The amendment and the incorporation of the post of Assistant General Manager is in consonance with Section 75 of the Act and therefore, this Court is unable to find any acceptable ground for the purpose of granting the relief of declaration and/or to quash the impugned Government Order as such sought for in this batch of writ petitions. Accordingly, all the writ petitions are dismissed. Consequently, W.M.P.Nos.17675, 17676, 24637, 24638, 23345, 23350, 23356, 23359, 24654, 24655, 24710, 24711, 24755, 24757, 28229, 28330 of 2024 are also dismissed. No costs.