The crucial period of ?one year of left over service? as eligibility criteria, for promotion as Chief Engineer (Regular) commences whether from the time of actual promotion or on the date of preparation of panel / panel approval or from the date on which the vacancy arose for promotion, is the issue raised in this writ petition.
2. This Writ of Mandamus has been filed to direct the first respondent to fill the existing vacancies, in the post of Chief Engineer (Regular), in Public Works Department, as per the panel notified by the first respondent, as approved in G.O.No.9, Public Works (A1) Department, dated 06.01.2016 and to appoint the petitioner, as a Chief Engineer (Regular).
3. By an interim order, dated 08.09.2016, this court has directed the first respondent to keep the one post of Chief Engineer (Regular) vacant and to fill-up the remaining seven vacancies, as it was represented that, on account of the vacancy there was tremendous work pressure, which had the negative impact in the discharge of official duties.
4. This Court, in Writ Petition No.18032 of 2016, filed by one K.Mohan Raj, with a similar prayer, has directed the first respondent to consider the representation of the petitioner therein, dated 04.05.2016, and to pass orders within a period of two weeks from the date of receipt of a copy of that order.
Brief facts:-
5. The petitioner, K.A.Abdul Hameed, has filed this petition while working as Superintending Engineer, Public Works Department, Thamaraibharani Basin Circle, Tirunelveli and also while anticipating his promotion as Chief Engineer (Regular). The petitioner entered into the service of Public Works Department as Assistant Engineer on 08.07.1991, having been selected through the Tamil Nadu Public Service Commission. He was promoted as Assistant Executive Engineer, on 22.09.1999, then as Executive Engineer, on 26.09.2007 and thereafter as Superintending Engineer on 08.11.2013.
5.1. The Department prepared the panel of eligible persons fit for promotion to the post of the Chief Engineer, in the year 2015-16 and such a penal was approved by the first respondent in G.O.Ms.No.9, (PWD) dated 06.01.2016.
5.2. To become eligible for promotion as Chief Engineer (Regular), apart from other qualifications, the main eligibility criteria, as mandated in G.O.Ms.No.440, Personnel and Administrative Reforms Department, dated 26.10.1990, is that, the minimum left over service must be one year. Those whose have less than one year of service would be appointed as Special Chief Engineer.
5.3. As per G.O.Ms.No.440, dated 26.10.1990 and G.O.Ms.No.631, dated 23.10.1997, the crucial date of one year left over service is the date of preparation of panel / approval. The relevant observation in G.O.Ms.No.440, dated 26.10.1990, reads as under:-
?.... to be eligible for promotion as Head of the Department, an Officer should have not less than one year minimum period of service before retirement.?
5.4. G.O.Ms.No.631, dated 23.10.1997, also reiterates the same. 5.5. In the panel prepared for the year 2015-16, there were thirteen persons, out of which, seven persons were found eligible for promotion as regular Chief Engineer, out of which, the petitioner is one among them. Remaining persons were found eligible for Special Chief Engineer.
5.6. Prior to the preparation and approval of the panel, dated 06.01.2016, the first respondent has approved the number of estimated vacancies for the post of Chief Engineer for the year 2015-16 as seven, vide G.O.Ms.No.298, Public Works Department, dated 13.10.2015. The said approval was also referred to in the approved panel dated 06.01.2016. Therefore, the petitioner has come forward with this writ petition, seeking direction to the first respondent to promote him as Chief Engineer (Regular), as his eligibility is approved in G.O.Ms.No.9, dated 06.01.2016.
6. The question raised is, when the number of vacancies is found to be seven and the persons found fit to fill-up those vacancies are also seven, which includes the petitioner's name, why promotion was not granted to the petitioner.
7. It is pointed out by the learned counsel for the petitioner that, out of seven persons, three of the Superintending Engineers were promoted as Chief Engineer (Regular), on 23.02.2016. Again on 30.04.2016, the person Ranking No.4, i.e., one S.Dhinakaran, was also promoted. Two vacancies have arisen on 30.04.2016, on account of the two retirements. Therefore, apart from the seven vacancies and including the two vacancies, the total number of vacancies became nine and when four posts alone were filled up, leaving five vacancies, but the eligible persons remaining were only three, there is no justification for the first respondent to have declined promotion to the petitioner, who was within the seven persons, who were found eligible for promotion.
7.1. It is the grievance of the petitioner that keeping aside the panel prepared for the year 2015-16, the respondents are trying to fit in new persons, by creating another panel / new panel, which is illegal.
7.2. It is also pointed out by the learned counsel for the petitioner that the persons, who have less than one year of left over service, though are designated colourfully as Special Chief Engineers, the nature of duty assigned to them is only befeting to the cadre of Superintending Engineers, and actually, they are made to under the juniors, after promoting them as Chief Engineer (Regular).
7.3. It is also contended that, on several occasions, those, who have less than one year of left over service had been promoted as Chief Engineer (Regular) and the conduct of the first respondent, in overlooking the panel will pave way to the first respondent to fill up the vacancies by promotion, according to the whims, wishes and choice of the first respondent.
7.4. It is also submitted by the learned counsel for the petitioner that the representation given by the petitioner was also not considered, thus compelling the petitioner to approach this Court, seeking necessary relief.
8. The writ petition filed by the petitioner is opposed by the respondents, by filing the Counter affidavit.
8.1. In the counter affidavit, it has been stated that, in G.O.Ms.No.298, dated 13.10.2015, the Government has approved the estimation of vacancies for the post of Chief Engineer, for the year 2015-16, as seven, as per Rule 4 (a) of the General Rules for the Tamil Nadu State and Subordinate Services; the Government in G.O.Ms.No.9 has approved the regular panel containing 13 names of the Superintending Engineer (Civil), 7 eligible for Chief Engineer (Regular) and 6 for Special Chief Engineer, as persons fit for promotion, for the year 2015-16. It is also admitted that the petitioner's name also find a place as person eligible for Chief Engineer (Regular) in S.No.13.
8.2. As per G.O.Ms.No.631 dated 23.10.1997 those who have less than one year of left over service at the time of actual promotion will be appointed only as Special Chief Engineer and not as Chief Engineer (Regular); the Government issued posting orders against the retirement vacancies till February 2016 and thereafter, during the month of March 2016, there was no retirement vacancy and the panel expired on 31.03.2016.
8.3. Two vacancies, which arose on 01.05.2016, on account of retirement of M.Sampath and Ashokan, the next person to be considered was K.Mohan Raj, who did not have one year left over service; similarly, persons included in S.Nos.12 and 13, K.Valarmathi, (Date of retirement ? 28.02.2017) and the petitioner, K.A.Abdul Hameed (date of retirement ? 30.04.2017) are also not eligible for Chief Engineer (Regular) as they did not have one year left over service on the date of consideration; hence, they are eligible only for Special Chief Engineer.
8.4. It is submitted by the learned Additional Advocate General appearing for the respondents that, amendments were issued to Rule 5 of the Special Rules for the Tamil Nadu Engineering Services, Branch-I (Public Works), prescribing the minimum period of left over service of one year, before retirement for promotion and appointment of Chief Engineer and it is deemed to have come into force on 26.10.1990. Rule 5 (after amendment), issued vide G.O.Ms.No.245, Public Works (A2) Department, dated 08.08.2007, reads as under:-
Category Method of Retirement Qualification 1 2 3 Chief Engineer Promotion Must have a minimum period of one year of left over service before retirement at the time of actual promotion.
8.5. The contention of the learned Additional Advocate General appearing for the respondents is that, the petitioner, who was not having one year left over service in accordance with the said amended Rule 5, cited supra, at the time of actual promotion, is not eligible for being considered for promotion as Chief Engineer (Regular) and therefore, the petition deserves to be dismissed.
9. The contention of the learned counsel appearing for the petitioner is that, the petitioner was having one year of left over service on the date of preparation of panel / approval and also on the date of vacancy, which arose, and therefore, the petitioner is eligible to be promoted. It is contended that if the eligibility criteria of one year left over service is considered, only at the time of actual promotion, then it will lead to arbitrariness and subjectiveness granting long rope in the hands of the promoting authorities to decide when to promote and whether to promote or not to promote at all; only if the date of vacancy from which the petitioner would become eligible would alone ensure equality of treatment and equal protection, which are the constitutional protections and therefore, the provision providing for eligibility criteria, at the time of promotion should be read down as 'on the date of occurrence of vacancy', which alone would ensure definiteness and fairness.
9.1. The above stand taken by the learned counsel for the petitioner is supported by a Full Bench judgment of the Kerala High Court, reported in the case of James Thomas v. Chief Justice (1977) KLT. 622 in which it has been held that the promotions are to be decided upon, with reference to time of occurrence of vacancies and not at the time of making the appointments; we think there is considerable force in the view that it is the time of occurrence of vacancy that should be relevant for determining the question of promotion and not the time, the order of promotion is passed; the relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary; if it were to be the date of promotion that is to be relevant for determining the title to such promotion the rule is capable of arbitrary exercise; even if it is honest exercise that would be arbitrary because the fate of the service career will depend in each instance upon the time taken by the concerned authority in passing the order of promotion; on the other hand, there is definiteness in treating the date of occurrence of the vacancy as that which would determine the title of the person to be considered for promotion; the view taken by the Division Bench in Ravindranath v. Calicut University (1977) Lab. I.C. 1127, appeals to us to be the rational view.
10. Further, it is contended that when the language used is ?not in terms of the days? but in terms of year, i.e., left over service of one year, the services available from the date of vacancy namely from 01.05.2016 to 30.04.2017, is well within time and therefore, the petitioner is eligible to be considered for promotion.
10.1. This contention is also acceptable.
11. It is further contended by the learned counsel for the petitioner that, even if it is considered as short of one day, the Court can consider directing the Government to consider the extension of one day in the service period of the petitioner, so that, the petitioner would enjoy the benefit of promotion. In support of this contention, the decision reported in (2014) 3 SCC 670 (Major General H.M.Singh, Vsm v. Union of India and another) is relied upon, where-under it has been held as follows:-
?33. Insofar as the present controversy is concerned, there is no doubt whatsoever, that a clear vacancy against the rank of Lieutenant General became available with effect from 1.1.2007. At that juncture, the appellant had 14 months of service remaining. It is not as if the vacancy came into existence after the appellant had reached the age of retirement on superannuation. The present case is therefore, not covered by the technical plea canvassed at the hands of the learned senior counsel for the respondents. The denial of promotion to the appellant mainly for the reason, that the appellant was on extension in service, to our mind, is unsustainable besides being arbitrary, specially in the light of the fact, that the vacancy for which the appellant was clamouring consideration, became available, well before the date of his retirement on superannuation. We have, therefore, no hesitation in rejecting the basis on which the claim of the appellant for onward promotion to the rank of Lieutenant General was declined, by the Appointments Committee of the Cabinet.?
12. It is also relevant to point out that the candidates, who have less than one year of left over service has been promoted, and the details have been furnished, which reads as under:-
?1. Pandiyarajan, Chief Engineer (Regular) ? 01.10.2005;
2. A.Natarajan, Chief Engineer (Regular) ? 11.09.2009;
3. R.Ganesan, Chief Engineer (Regular) ? 05.03.2003.?
12.1. These promotions are stated to have been done, while the amended Rule 5 was in force.
12.2. Thus, it is clear that the Rule that there should have been left over service of one year has not been treated as mandatory, but only directory / discretionary. In any event, the petitioner, having only one day short of service, should have been considered for promotion at appropriate time or at any rate by relaxing the Rule as has been done in other cases.
13. With reference to the promotion of those three candidates, in the counter affidavit it has been admitted that promotion to A.Natarajan was given in relaxation of Rule 5 of the Tamil Nadu Engineering Service, in his favour as a special case. However, it is not explained in what way it was a special case. When the case of Natarajan can be considered as a special case, why not, the case of the petitioner, is yet to be answered by the respondents.
14. In the light of the contentions raised and answered, this Court feels it appropriate to direct the first respondent to grant promotion to the petitioner as Chief Engineer (Regular), if need be, by relaxing Rule 5 as done in the case of Mr.A.Natarajan, as relaxation is required for only one day.
15. With the above direction, this writ petition stands disposed of. No costs. Consequently, the connected WMPs are closed. .