IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.11.2010 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN WRIT PETITION NO.6473 OF 2006 & WPMP NO.6982 OF 2006 & WVMP NOS.1521, 1526 AND 1527 OF 2006 1. M.Ramalingam 2. M.Rangasamy 3. K.Marimuthu 4. V.Sekaran .... Petitioners Vs. 1. State of Tamilnadu by its Secretary to Government, Industries Department, Fort St. George, Chennai – 9. 2. The Director of Sugars, 439 – Anna Salai, Nandanam, Chennai – 35. 3. The Special Officer, Tamil Nadu Co-op. Sugar Federation Ltd., 439 – Anna Salai, E.V.R.Maligai, V Floor, Chennai – 35. 4. The Chief Executive, Arignar Anna Sugar Mills, Kurungulam Post, Thanjavur District. 5. The Special Officer, Dharmapuri District Co-Op.Sugar Mills, Dharmapuri. 6. The Chairman & Managing Director, Perambalur Sugar Mills Ltd., Eraiyur, Perambalur District. 7. The Administrator, M.R.K. Co-op. Sugar Mills Ltd., Sethiathoppu – 608 702. .... Respondents https://hcservices.ecourts.gov.in/hcservices/ PETITION under Article 226 of The Constitution of India praying for the issuance of writ of Certiorarified Mandamus calling for the records of the third respondent relating to News Paper Advertisement No.Nil in Dhina Thanthi dated 10.02.2006 for the post of Deputy Chief Engineers and to quash the same as illegal and consequently to direct the second respondent to fix the ratio between promotion and direct recruitment and also the communal roaster. For Petitioners : Mr.M.Govindaraj for Mr.V.Illanchezian For Respondents : Mrs.R.Anitha, AGP - R1 and R2 Mrs.G.Thilakavathi – R3, 5, 6 and 7 Mr.S.Jayaraman – R4 O R D E R The Writ Petition is filed by four petitioners seeking to quash the advertisement issued by the third respondent relating to News Paper Advertisement No.Nil in Dhina Thanthi dated 10.02.2006 for the post of Deputy Chief Engineers and consequently to direct the second respondent to fix the ratio between promotion and direct recruitment and also the communal roster. 2. It is stated by the learned counsel appearing for the petitioners that the second petitioner – K.Rangasamy and fourth petitioner – V.Sekaran had already retired from service on 31.5.2010 and 20.6.2010 respectively. The petitioners herein, who are Engineering graduates, were appointed as Assistant Engineers. According to them, the next level of promotion is to the post of Deputy Chief Engineer. All the four petitioners have put in service between 21 and 30 years. The grievance of the petitioners herein is that they were not considered for further promotion and their experience have not been given any weightage while considering further promotion to the post of Deputy Chief Engineer. 3. According to the petitioners, under Section 149(1) of the Tamil Nadu Co-operative Societies Rules, 1988, (hereinafter referred to as 'the Rules'), it is mandatory that each and every society has to have its own bye-laws taking into account its nature of business, volume of transaction and financial position covering the service conditions of its employees. The special bye-laws prescribe cadre strength and classification of various categories of posts and the qualifications required thereof for each of such posts; the method of recruitment for each of such posts; the scale of pay and allowances; conditions of probation; duties and responsibilities; leave of https://hcservices.ecourts.gov.in/hcservices/ various kinds admissible; penalties and disciplinary action. On the provision relating to promotion, the Rule has a proviso, which states that a minimum period of three years of satisfactory service shall be prescribed for eligibility for promotion from one category to the immediate next higher category of post. Sub-Rule (2) to Rule 149 of the Rules states that no appointment by direct recruitment to any post shall be made except by calling for a list of eligible candidates from the Employment Exchange and also by giving due publicity in the notice board of the Society and also of the affiliated societies, inviting application from the eligible employees of such societies. Where the Employment Exchange issues a non-availability certificate, the society shall invite applications by giving advertisement in more than one daily newspapers, of which one should be in regional language having wide circulation. 4. In the face of such provision, the petitioners contend that it is the duty of the respondents herein to provide in the service regulations, promotional avenues; that ignoring the service and status of the petitioners, there cannot be any appointment by a method of direct recruitment. It is further contended that the Regulations, although provide for a clause on promotion, yet, promotional avenues from the cadre of Assistant Engineer is not provided therein. Hence, this has resulted in miscarriage of justice. 5. It is seen from the averments in the affidavit filed that by an advertisement dated 08.02.2006, the Special Officer called for applications for the post of Deputy Chief Engineer. The advertisement prescribes the vacancies in ten of the Sugar Mills. In respect of those applicants who are already in service in any one of the Sugar Mills, the age limit as on 01.06.2005 was fixed at 50 years and for the rest, at 45 years. The petitioners submit that having regard to the fact that the petitioners were not considered to the further post of Deputy Chief Engineer, the advertisement issued calling for applications for appointment to the post of Deputy Chief Engineer is totally contrary to the rights of the petitioners and the bye-laws provided under Section 149(1) of the Rules, as the Notification failed to take note of the available hands already therein for further consideration for appointment in the post of Deputy Chief Engineer; consequently, the procedure of notifying the vacancies to the Employment Exchange ignoring the available hands, has to be set aside. The isolation of a post without further promotion, hence, is arbitrary and illegal and works against the morale of the staff therein. 6. It is further contended that by calling for applications from persons, who are already in Sugar Mills, the chance of juniors having march over the seniors, hence, cause serious prejudice to the petitioners. The administration has to prepare a year-wise panel, so https://hcservices.ecourts.gov.in/hcservices/ that there is no inequality in the matter of considering the eligible hands for further promotion. 7. On notice, the respondents have filed a counter contending that as evident from the circular of the Commissioner (Sugars) dated 26.8.1999, the present advertisement relates to a post, which does not fall under any of the feeder categories. When specific posts are created as not falling under feeder category, rightly, the respondents had gone in calling for applications to the post of Deputy Chief Engineer. 8. To a query from the Court as to what are promotional posts for the feeder category, learned counsel appearing for respondents-4 to 7 filed a copy of the circular dated 24.06.2000 from the Office of the Commissioner of Sugars indicating the different posts which come under the promotional category. The affidavit to that effect has also been filed on behalf of respondents-4 to 7, that in respect of four major departments functioning under each sugar mill, the promotional avenue available are enumerated under circular dated 24.6.2000. Hence, the further hierarchy of posts are referable to the proceedings of the Commissioner of Sugars and the rest of them do not come under the promotional post. 9. Countering such a view that the post that the petitioners are holding does not come for any promotional avenue, learned counsel appearing for the petitioners placed reliance on the decisions of the Apex Court reported in (2002) 10 SCC 432 (UT,Chandigarh and Others V. Avtar Singh and others); (2008) 5 SCC 100 (Food Corporation of India and others V. Parashotam Das Bansal and others) and 1986 (Supp) SCC 254 (Indravadan H.Shah V. State of Gujarat and another) only to impress on the fact that even though the employee does not have a fundamental right of promotion, yet, promotion being a normal incidence of service, the claim of the petitioners has to be considered. In these circumstances, learned counsel appearing for the petitioners submits that the petitioners be considered for further promotion and the notification be struck down. 10. Heard the learned counsel appearing for the petitioners and the learned Additional Government Pleader appearing for respondents 1 and 2; learned counsel appearing for the respondents 3, 5, 6 and 7 and the learned counsel appearing for fourth respondent. 11. It is seen from the order passed by this Court that while considering the interim application of stay, this Court passed an order on 09.08.2006 that as per the order dated 07.03.2006, the petitioners were permitted to make their applications and the authorities were directed to consider their applications on merits, be it as a post of selection or promotion; the same shall be subject https://hcservices.ecourts.gov.in/hcservices/ to the final order of this Court to be passed ultimately in the main Writ Petition. 12. Learned counsel appearing for the respondents pointed out that so far, no selection has been made in view of the pendency of the proceedings before this Court. Hence, depending on the outcome of the Writ Petition alone, further proceedings would be taken up. 13. Rule 149(1) of the Tamil Nadu Co-operative Societies Rules, 1988, provides for special byelaws to be formulated by every society issuing the service conditions of its employees with the prior approval of the Registrar of Cooperative Societies. Accordingly, in respect of each one of the Sugar Mills, which have become independent since 1997, Special Regulations were formulated covering the service conditions of the employees. As far as the present case is concerned, a perusal of the Regulations, which are placed before this Court, shows the various categories of appointing authorities; the categories of staff and the appointing authority; the method of recruitment; age limit and apart from other clauses, there is a clause on promotion too. Clause 6 of the Regulation states that no appointment to the post under several categories of service of the Society by direct recruitment shall be undertaken without notifying the vacancies through the Employment Exchange and if suitable persons are not sponsored by the Employment Exchange, inviting applications by advertisement could be considered for selection. It is further stated that in emergent case, appointment may be made for a temporary period of not exceeding six months. 14. As far as age limit is concerned, Clause 7 specifically provides for each category. Clause 18 provides for promotion from one category to another, not solely on the seniority, but on the basis of merit, experience, qualification and suitability. The Regulations provide for any modification to the said Regulations by the Commissioner. 15. It is seen from the proceedings herein that the Commissioner of Sugars passed a circular, wherein certain categories of posts were specifically reserved as one for direct recruitment as a one time appointment basis. One of the posts thus enumerated therein in the annexure to the circular dated 26.8.1999 is the Deputy Chief Engineer post. The additional typed set of papers filed by respondents-4 to 7 shows that the hierarchy of posts referable to the proceedings of the Commissioner of Sugars dated 24.6.2000 does not fall under feeder category, which means, the posts which are enumerated in the circular of the Commissioner, stand apart from what normally are construed as promotion posts under the feeder category. Being one time post, necessarily the selection process has to be taken as has been given under the Regulations. Rightly so, in this case, when the https://hcservices.ecourts.gov.in/hcservices/ respondents decided to go for appointment to the post of Deputy Chief Engineer, applications were called for from candidates, who satisfy the qualification as stated in the advertisement dated 08.02.2006. 16. Learned counsel appearing for the petitioners pointed out that when the post of Deputy Chief Engineer is a next immediate promotional avenue available for persons like the petitioners, denying such promotional avenue and instead going for direct recruitment, denies the very right of the petitioners. Hence, the respondents need to fix the proportion through direct recruitment and promotion for appointment to the post of Deputy Chief Engineer. The denial of an opportunity for further promotion and resorting to direct recruitment to the post of Deputy Chief Engineer, hence, has to be held as illegal. 17. A perusal of the circular issued by the Director of Sugars dated 26.8.1999, read along with the circular dated 24.6.2000, shows what are the feeder categories available, for which the question of going in for direct recruitment ignoring the promotional avenue does not arise. Thus when the Regulations formulated in exercise of Rule 149 gives the list of feeder categories for promotion to the posts mentioned therein and the circular issued under the Regulations creating and restricting certain posts for direct recruitment only, I do not find any justification in the challenge now before this Court on the notification issued calling for applications to the post of the Deputy Chief Engineer, without a challenge either to the circular or to the Regulation not providing for promotional avenue to these posts. 18. Equally, the mere fact that the Regulations do not provide for a ratio between the promotional post and direct recruitment to the post of Deputy Chief Engineer, by itself, cannot make the advertisement illegal or arbitrary. In any event, the creation of posts in the mill is purely a matter of decision for the respective mills to take, depending on its requirement. Thus when such a decision is taken, it is not for the Court to sit in appeal over it to interfere with the same. 19. The contention of the petitioners as regards the advertisement issued on the basis of a circular, hence, does not merit any acceptance. It is evident that the circular issued is in exercise of the power available to the Commissioner. In any event, if the petitioners have any grievance on the circular, the proper course for them would be to approach the Government for necessary direction to the Commissioner for amending the Regulations to provide for a ratio for appointment to the posts for which applications are called for pursuant to the circular. It is relevant to note herein that in the proceedings of the Director of Sugars dated 08.02.2006, it is specifically stated, referring to the circular dated 26.8.1999, https://hcservices.ecourts.gov.in/hcservices/ that the Special Officers/Administrators/Chief Executives have sent the vacancy particulars for filling up of the posts in the Cooperative and Public Sector Sugar Mills. While examining the need for filling up the post, it was further stated that the due to poor financial position of the Sugar Mills during the past, the Chief Executives did not go for any fresh recruitment for filling up the post. However, to improve the technical/production aspects of the sugar mills, it was decided to fill up some of the technical posts such as Deputy Chief Engineer, Deputy Chief Chemist, Cane Development Officer and Distillery Chemist in certain mills. Consequently, orders issued in the proceedings dated 14.9.1998 were amended vide circular dated 26.8.1999. To appoint persons for the post thus created, it was decided to call for suitable hands from professional and Executive Employment Exchange or by issuing paper advertisement in leading newspapers after getting non-availability certificate from the concerned authorities. In accordance with such a decision, Notification had been made on 08.02.2006 calling for eligible candidates to apply for the post of Deputy Chief Engineer. If that be the case, the mere absence in the Regulation to provide for a ratio for appointment to the particular post, does not, per se, result in the order now impugned in the Writ Petition either as arbitrary, illegal or bad in law. When the order thus issued is in tune with the circular issued, which is pursuant to the Rules available therein, it goes without saying that the correctness or otherwise of the impugned order has to be decided on the strength of the Regulations. If the petitioners' grievance is as regards the absence of any promotional avenue, the remedy is not by way of challenging the Notification calling for applications from the eligible candidates. 20. In this connection, the decision relied on by the learned counsel appearing for the petitioners reported in (2002) 10 SCC 432 (UT,Chandigarh and Others V. Avtar Singh and others) needs to be seen. The said case relates to a Panchayat Officer seeking further promotion to the post of Block Development Officer. Referring to the Rules and Regulations, the Apex Court pointed out to the role of the Block Development Officer and the Panchayat Officer as important in the administration of Panchayati Raj. However, the creation or abolition of post is a policy decision of the Government with which the Court does not interfere. However, having regard to the pattern or devolution of power and decentralisation of power as well as constitutional mandate engrafted in Articles 243 to 243-O, the appropriate authority should create a post of Block Development and Panchayat Officer, which is a statutory obligation of the authority, so that the incumbent of the said post would discharge his statutory duties as engrafted in the Act and the Rules made thereunder. 21. In the decision reported in (2008) 5 SCC 100 (Food Corporation of India and others V. Parashotam Das Bansal and others), the Apex Court pointed out the need for formulating a scheme, which https://hcservices.ecourts.gov.in/hcservices/ provides for promotion to the officers working in different Departments, so that the employee struck in a particular post have a further opportunity of promotion. The Apex Court pointed out that although an employee would be structured within the realm of the statutory authority, but by the same reason, it cannot tinker with his essential fundamental right. 22. The decision reported in 1986 (Supp) SCC 254 (Indravadan H.Shah V. State of Gujarat and another) also insisted on providing promotional avenue. In the decision reported in (2004) 9 SCC 65 (State of Tripura and others V. K.K.Roy), the Supreme Court pointed out that when there is no avenue for promotion, the State cannot take a stand that the employee knowing fully well that there was no avenue for promotion cannot resile therefrom. The Apex Court further pointed out that there is no question of applying the principles of estoppel or waiver, having regard to the constitutional functions of the State. Promotion being a condition of service and having regard to the requirements thereof as pointed out in a number of decisions, it was expected that the employer/State should follow the said principle in providing for a further promotional avenue. On the facts of the case, the Apex Court pointed out that the employees therein had put in nearly 24 years of service and they had not been promoted despite existence of promotional avenues. The Apex Court pointed out that the State should consider in terms of formulating Regulations which should provide for betterment of their service conditions. 23. It is no doubt true that as far as the petitioners are concerned, they have put in service of not less than 21 years and above. Given the fact that the Regulations do not treat the post of Deputy Chief Engineer as a promotional post but treated as one time selection and the Regulation does provide for promotional avenues for the posts mentioned therein, the decisions relied on are distinguishable and do not, in any manner, help the case of the petitioner. However, taking note of the submissions made, this Court feels that it is but necessary that in the interest of the institution, the Commissioner should consider measures which take note of the existing hands available for appointment to the post of Deputy Chief Engineer by fixing up a ratio which would not only promote the interest of the employees therein, but would ultimately go for the betterment of the Cooperative Sugar Mills. Given the fact that the Cooperative Sugar Mills function on democratic principles, it is a right time that the Commissioner thinks about formulating a scheme whereby proper ratio be fixed so that persons who are qualified but get stagnated at a particular level purely on account of a situation as one projected herein also get a chance to move forward in their career graph. However, as for the merits in the Writ Petition, I do not agree with the submission of the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 24. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, WPMP No.6982 of 2006 and WVMP Nos.1521, 1526 and 1527 of 2006 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sl To 1. The Secretary to Government, Industries Department, State of Tamilnadu Fort St. George, Chennai – 9. 2. The Director of Sugars, 439 – Anna Salai, Nandanam, Chennai – 35. 3. The Special Officer, Tamil Nadu Co-op. Sugar Federation Ltd., 439 – Anna Salai, E.V.R.Maligai, V Floor, Chennai – 35. 4. The Special Officer, Dharmapuri District Co-Op.Sugar Mills, Dharmapuri. 1 cc To Mr.Govindaraj, Advocate, SR.74648. 1 cc To Mr.G.Thilakavathi, Advocate, SR.79357. 1 cc To The Government Pleader, SR.79288. 1 cc To Mr.S.Jayaraman, Advocate, SR.79153. Writ Petition No.6473 of 2006 & WPMP No.6982 of 2006 & WVMP Nos.1521, 1526 and 1527 of 2006 RSY(CO) RVL 04.01.2011 https://hcservices.ecourts.gov.in/hcservices/