Heard both sides.
2.The petitioner was appointed as Maistry in the Public Works Department work charged establishment at Thiruchenthur Section on 01.04.1971 and after completing five years of his service, he was provincialised with effect from 01.04.1976 on the basis of G.O.Ms.No.450, PWD, dated 04.04.1974 and he was appointed as Head Mazdoor in the Department. In the year 1984, all Head Mazdoors including the petitioner were re-designated as Work Inspector Grade III. The petitioner has passed S.S.L.C examination in 1969 and according to the petitioner, as per the rules, then existing he ought to have been appointed as a Grade I Maistry, re-designated as Grade I Work Inspector. The petitioner also acquired L.C.E. Diploma qualification in 1990 and nevertheless, he was not even considered for promotion to Work Inspector Grade I and as a result of that, he was also not given promotion to the post of Technical Assistant. Therefore, the petitioner sent a representation, dated 11.02.2005 to the first respondent requesting him to promote him to the post of Grade I Work Inspector with retrospective effect from the date of provincialisation viz., 01.04.1976 and for re-fixing the salary.
3.It is further stated by the petitioner that not only he was denied due promotion, but his juniors who are having less qualification were given promotion. The respondents without considering the representation of the petitioner, passed an order, dated 11.12.2006 stating that as per G.O.Ms.No.461/PWD/dated 15.03.1980 and G.O.Ms.No.250, Finance (C.M.P.C) Department, dated 21.03.1994, the petitioner cannot be promoted to the post of Grade I Work Inspector and the impugned order is challenged in this writ petition.
4.The respondents filed a detailed counter stating that the petitioner was appointed as Head Mazdoor and not Maistry as claimed by him and the category of Head Mazdoor was rechristened as Work Inspector Grade III and on completion of 10 years, the petitioner was advanced to the higher category of Work Inspector Grade II, under flexible complementing system introduced in G.O.Ms.No.1050, Finance (Pay Commissioner) Department, dated 05.10.1978, and automatic elevation to higher categories were opened in lieu of Selection Grade under flexible complementing system on condition that the persons, who would be moving to higher categories under the flexible complementing scheme should possess all the qualifications prescribed for that post. The petitioner though passed S.S.L.C examination, could not claim any other post as he was initially appointed as Head Mazdoor and he has no right to have any claim to a post non est at the time of appointment, just because he was having the qualification prescribed for the post even more.
5.Further, there is no possibility to promote the petitioner as Working Inspector Grade I from 01.04.1976 as he had no prescribed qualification at the time out side the cadre strength and he has to wait for his turn for appointing him, by transfer, to the category of Technical Assistant until vacancy arises for his turn, which is common to every category. The petitioner was advanced to the higher post of Work Inspector Grade II on completion of 10 years from the date of provincialisation viz., 01.04.1976 under flexible complementing system and according to the schematic principles ordered in G.O.Ms.No.1050, Finance (Pay Commissioner Department, dated 10.05.1978 for provincialisation under flexible complementing system, the personnel must possess all qualifications prescribed for the higher post and as per G.O.Ms.No.461, Public Works Department, dated 15.03.1980, the qualification prescribed for the post is S.S.L.C with Bifurcated Engineering Course and as the petitioner did not have the bifurcated Engineering qualification, he was not eligible for advancing as Work Inspector Grade II and he became in-eligible for advancement to higher Grade, though acquired Diploma in D.C.E., which he passed in April 1990. In Short, in the counter filed by the respondents, they have stated that the petitioner has to wait for his turn for promotion to the post of Technical Assistant. Nevertheless, by the impugned order, they refused to consider the petitioner for promotion to Work Inspector Grade I and fixed salary in that scale.
6.It is contended by the learned counsel appearing for the petitioner that even according to the counter filed by the respondents, the petitioner is eligible to be promoted to the post of Grade I Work Inspector and thereafter to the post of Technical Assistant, but he has to wait for his promotion. Nevertheless, juniors to the petitioner were promoted and though the respondents admitted that promotions were given to his juniors, they have stated in the counter that due to mistake those people were given promotion and till date, no action has been taken by the Department against those persons, who were wrongly promoted.
7.The learned counsel appearing for the petitioner, therefore, submitted that when the respondents have admitted that his juniors were given promotion and the petitioner is also eligible to be promoted, but he has to wait for his chance, they should not have passed the impugned order stating that the petitioner is not eligible to be promoted for the post of Grade I Work Inspector, which is self-contradictory.
8.According to the petitioner, as per G.O.Ms.No.1107, Public Works Department, dated 07.05.1966, the qualification prescribed for Maistry Grade I & II was a pass in the lower grade in the Government Technical examination in surveying and levelling building drawing and estimating mearsuration and applied mechanics or must have completed the S.S.L.C. issued under the authority of Govt. of Madras with practical experience in Building & Irrigation works for a period not less than two years and as per G.O.Ms.No.461 Public Works Department dated 15.03.1980 for the post of Technical Assistant, the qualification required is L.C.E. or L.M.C. Diploma and for the post of Work Inspector Grade I, the qualification required is S.S.L.C with Bifurcated Engineering Course, practical experience in buildings or design works for a period of not less than two years.
9.According to the learned counsel appearing for the petitioner, the petitioner is qualified of being appointed as Work Inspector Grade I and also Technical Assistant and without promoting him to the post of Work Inspector Grade I, the respondents had kept him as Work Inspector Grade II.
10.The learned counsel appearing for the petitioner, further submitted that S.Maria Sundararaj , K.Shajatha Sheriff and S.Gurunathan were given promotion, though they were juniors to him and as a matter of fact, they did not have the qualification as that of the petitioner and hence, the case of the petitioner cannot be rejected as if he is not eligible to be given promotion for the post.
11.Mr.D.Gandhi Raj, the learned Government Advocate, submitted that in the case of petitioner, Rules were followed and the petitioner was given Selection Grade and he was promoted to the post of Grade II Work Inspector and it has been specifically stated in the counter that promotions to S.Gurunathan, M.Maria Sundararaj and Shajatha Sheriff were wrongly given and that cannot be taken advantage by the petitioner and according to G.O.Ms.No.250, Finance (CMPC) Department, dated 21.03.1994 and as per G.O.Ms.No.461 PWD (General), dated 15.03.1980, the petitioner is not eligible to be promoted to the post of Grade I Work Inspector.
12.In this writ petition, we will have to see whether the impugned order issued by the respondents can be sustained or not.
13.It is admitted that the petitioner has passed S.S.L.C and also obtained L.C.E qualification in the year 1990. It is also admitted that his service was provincialised with effect from 01.04.1976 and he was given promotion to the post of Grade III Work Inspector. In the impugned order, it has been stated that as per G.O.Ms.No.461 PW(General), dated 15.03.1980 and as per G.O.Ms.No.250 Finance (MPC) Dept/dt.21.03.1994, the petitioner cannot be promoted to the post of Grade I Work Inspector. Therefore, we will have to see the above two G.Os.
14.As per G.O.Ms.No.461 PW (General), dated 15.03.1980, ad-hoc rules were framed relating to certain temporary posts in provincialised work charged establishment of Public Works Department from 07.05.1965, by which certain posts will be made permanent by the Government upto date on which the sanction of certain posts will lapse due to the resignation, casual retirement etc. As per annexure to that G.O. the qualification for Technical Assistant is L.C.E or L.M.C and the Appointing Authority is the Superintending Engineer, for Work Inspector Grade I, the qualification is S.S.L.C with bifurcated Engineering course and practical experience in buildings of Design works for a period of not less than two years and the appointing authority is the Executive Engineer and for Work Inspector Grade II, the qualification is S.S.L.C with bifurcated Engineering Course and the appointing authority is the Executive Engineer. Therefore, in the year 1990, the petitioner had acquired L.C.E qualification and he had the experience for more than two years and therefore, he is eligible to be considered for the post of Technical Assistant.
15.As per G.O.Ms.No.250, Finance (MCPC), Department, dated 21.03.1994, clarifications were issued and they are as follows.
[i] Consequent on the introduction of revised scales of pay with effect from 02.06.2988, the Work Inspectors Grade -III (Head Mazdoor) who have been moved to next higher post of Work Inspectors, Grade-II on completion of 10 years of service under flexible complementing scheme in the pre-revised scale should be treated as in the Selection Grade of Grade-III and those who have completed 20 years of service and fitted in the Selection Grade of Grade-I post in the pre-revised scale should be treated as in the Specific Grade of Grade-III; and [ii]The Work Inspectors, Grade-II who have been moved to next higher post of Work Inspectors, Grade-I, on completion of 10 years of service under flexible complementing scheme in the pre-revised scale should be treated as Selection Grade of Grade -II and those who have completed 20 years of service and fitted in Selection Grade of Grade-I in the pre-revision scale should be treated as in Special Grade of Grade-II.
In the judgment delivered on 14.09.93 by the Tamil Nadu Administrative Tribunal in O.A.No.2113 of 92 filed by the Tamil Nadu Pubic Works Department employees' (formerly work charged establishment Association), it has been observed that it would be possibly more equitable if the pay of the post to which the concerned persons had been advanced already before 1.06.88 is promoted and the corresponding revised scales allowed and also directed the Government to reconsider the orders issued in Government Lr.No.6307/PC-II/92-1,Finance, dated 12.03.1992.
4.The above directions of the Tribunal has been examined by the Government and it has been decided to issue the following orders in respect of Work Inspectors, who have advanced to next higher post under flexible complementing scheme prior to 1.6.88 as personal in the incumbents:
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Work Inspector 800-1150 975-1660 1200 2040 Grade-III Pre-revised ( 610-1975) (705-1230) 505-845 Work Inspector, Grade-Ii 975-1660 1200-2040 2400-2600 (pre-revised 620-1075 (705-1230) (780-1385) Work Inspectors Grade-I 1200-2010 1400-2600 1640-2000
The work Inspectors who have completed 10 years of service in any of the above grades after 1.6.88, will be treated as holders of the Selection Grade/Special Grade of the respective grades and that there will no be any advancement in the nest higher grade after 1.6.88.
16.As per the said G.O., the Work Inspectors, who are completed 10 years of service in any of the above Grades viz., I,II III after 1.6.88 will be treated as holders of the Selection Grade, Special Grade of the respective Grades and there will not be any advancement to the next Grade after 1.6.1988. Therefore, it was contended by the learned Government Advocate that the petitioner is only entitled to the protection of pay and he was given Selection and his pay was protected and he is not eligible to be promoted to the higher Grade viz., Grade I Work Inspector as per the said G.O. and therefore, the Government has informed the petitioner that he is not eligible for promotion to the Grade I Work Inspector. Though as per G.Os. it was interpreted by the learned Government Advocate that the petitioner is not entitled for any higher promotion. It is admitted by the respondents that S.Maria Sundararaj, Shajatha Sheriff and S.Gurunathan were given promotion even after the passing of G.O.Ms.No.250 as stated above. In this connection, it is pertinent to refer to the counter of the respondents, made in para 18 . In that para, the respondent justified the promotion to the S.Maria Sundararaj on completion of 10 years, but stated that promotion given to K.Haja Sheriff was by mistake. They also admitted that the promotion to Gurunathan was wrongly given and he should not have been appointed as Work Inspector Grade II from Grade III. But till date, no order has been passed to set-right the promotion given to K.Haja Sheriff and Gurunathan.
17.It is also admitted by the respondents in the counter, in para 13 that under flexible complementing system, which was an automatic promotion from the lower category and according to the schematic principles ordered in G.O.Ms.No.1050, Finance (Pay Commissioner) Department, dated 10.05.1978, for advancement under flexible complementing system, the personnel must possess all qualification prescribed for the higher post and as per the G.O.Ms.No.461, Public Works Department, dated,15.03.1980, the qualification prescribed for the post is S.S.L.C with bifurcated Engineering course and the petitioner having only the qualification of S.S.L.C should not have been promoted as Work Inspector Grade II. This is contrary to the admitted facts as the petitioner had passed S.S.L.C and had practical technical qualification for more than two years and also passed L.C.E examination in 1990. Further, it has been stated in para 19 of the counter that the petitioner has to wait for his turn when there would be filling up of vacancies in the encadered strength of Technical Assistant and in para 20, it has been stated that if the petitioner wanted to be transferred by appointment as a Technical Assistant after possessing Diploma in the year 1990 then he has necessarily to wait for his turn like any other posts in all Departments of the Statement Government. This statement of the respondents is contrary to the impugned order and at one breath, the respondents would contend that the petitioner has to wait for his turn for promotion admitting that he is qualified to be promoted to the post of Technical assistant and in another breath, quoting G.O.Ms.No.250, Finance (CMPC) Department, dated 21.03.1994 and G.O.Ms.No.461, Public Works Department, dated 15.03.1980 that he is not eligible to be promoted to Grade I Work Inspector.
18.Further in para 22 of the counter, it is admitted that he had no prescribed qualification at the time out side the cadre strength and he has to wait for his turn for appointing him by transfer to the category of Technical Assistant until vacancy arises in his turn, which is common to every category.
19.Further in para 27 of the counter, it has been stated that though the petitioner has passed the Diploma in the year 1990, the Superintending Engineer could not straight-away appoint him without a vacancy for the post in the circle. In this regard, the vacancies in the category of Technical Assistant would be assessed from al wings of Public Works Department in centralized manner and the list of eligible candidates, who possessed the requisite qualification would be prepared and a panel would be drawn according to the seniority combined at State level and after approval of panel the promotion would be made. The petitioner, though acquired Diploma in the year 1990, he could not be included in the panel as there were many persons with the same qualification in different categories through out the State.
20.Therefore, from the averments made in the counter, it has been admitted by the respondents that though the petitioner is eligible to be considered for higher promotion he has to wait for his turn. when that is the stand taken by the respondents in the counter, the stand taken in the impugned order stating that the petitioner is not eligible for promotion to the higher grade cannot be sustainable.
21.Further, on 24.4.2000, several persons, by name R.Elangovan, M.Shanmugam, who were worked as Work Inspector Gr.I, C.Chandrabose, D.Muralidaran, worked as Head Mazdoor, N.Elavalagan, Nithiyanandam worked as Work Inspector, S.Ravindran, worked as Irrigation Assistant were recruited to the post of Technical assistant on their acquiring qualification of Diploma and posted as Technical assistant, by the letter of Engineering- in-Chief WRO, Chief Engineer (GI)PWD, Chenai by Lr. No.S4(4)2954002000/dt.24.04.2000. From the above letter, it has been made clear that those, who are working as Work Inspector Grade II or Head Mazdoor were promoted to the post of Technical Assistant after acquiring the qualification of LME or LMC and promoted those persons have not considered G.O.Ms.No.250, Finance (CMPC) Department, dated 21.03.1994.
22.As stated supra, the petitioner also acquired the qualification of L.C.E in the year 1990 and hence, he is also entitled to be considered for the above said post. Therefore, having given promotion to the juniors of the petitioner, who are less qualification and having given promotion to the other persons, by the proceedings of the Engineer-in-Chief, dated 24.04.2000 on acquiring of Diploma qualification, the petitioner ought to have been given promotion, having regard to the qualification and his promotion cannot be denied by quoting G.O.Ms.No.461, Public Works Department, dated 15.03.1980 and G.O.Ms.No.250, Finance (CMPC) Department, dated 21.03.1994.
23.Hence, the impugned order of the 3rd respondent is set aside and the respondents are directed to give promotion to the petitioner from Grade II Work Inspector to Grade I Work Inspector and further to the post of Technical Assistant. Accordingly this writ petition is allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.
er To, The Government Advocate, Madurai Bench of Madras High Court, Madurai.