IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27.03.2007 THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.34848, 47408, 47891, 48111, 49107, 49109 of 2006 and M.P.Nos.1,2,3 & 4 of 2006 1. V. Kandasamy 2. P. Murugan 3.V. Kirubasankar 4. K. Palanivel 5. V. Subramani 6. P.S. Manoharan 7. A. Venugopalan 8. K . Ramalingam 9. P. Gunasekaran 10. M. Sureshbabu 11. P. Arivazhagan 12. S.A. Parthiban 13. V. Rajamohan 14. N. Harshababu 15. N.Ravi 16. T.A. Murugavel 17. R. Manivannan 18. K. Padmaraju 19. M. Ravichandran. .... Petitioners in W.P.No. 34848 of 2006 (All are working Assistant Engineers Tamil Nadu State Transport Corporation C/o Murugavel, No.6/23, B-3, Maragadam Illam, State Bank Colony Backside, Bharathipuram, Dharmapuri District. Tamil Nadu State Transport Engineers Association, Vellore, rep by its Secretary, R. Sivakumar, No. 170, Govindarajan Nagar, Arani Road, Bagayam, Vellore - 632 002. .... Petitioner in WP.No. 47408 of 2006 https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Arasu Pokkuvarathu Kazhagam, Poriyalargal Sammelanam, rep. by its President, Mannarpuram,Tiruchy. ..Petitioner in WP 47891/06 Engineer's Association of Metropolitan Transport Corporation Chennai II, Rep by its General Secretary R. Subramanian, New No.28, Madurai Pillai Street, Ayanavaram, Chennai 600 023. ...Petitioner in WP.No.48111 of 2006 1. Jaganathan 2.P. Natesan 3. S. Mani 4. P. K. Andasamy 5. R. Govindaraju, 6. G. K. Thennavan 7. R. Agilandam, 8.R. Jaganathan 9. K. P. Palanisamy 10. S. Chellamuthu ...Petitioner in WP.No.49107/06 1. M. Sadasivam Pillai 2. S. Rajagopal 3. M. Nazeer Ahmed ...Petitioner in WP.49109/06 Vs. 1. The State of Tamil Nadu Rep.by its Chairman/Secretary Transport Department, Fort St.George, Chennai.9 ... R1 in W.P.No.34848 & 47408/06 2. The Managing Director, Tamilnadu State Transport Corporation, No.12 Ramakrishna Road, Salem.7.... R2 in W.P.No.34848/2006 https://hcservices.ecourts.gov.in/hcservices/ The Managing Director, Tamilnadu State Transport Corporation, (Villupuram) Ltd, Villupuram District. .... R2 in WP.No. 47408/2006 1. The Government of Tamil Nadu, rep.by its Secretary, Transport Department, Fort St. George, Chennai.9 2.Metropolitan Transport Corporation Ltd., rep.by its Managing Director, Pallavan Salai,Chennai -2. 3.Sate Express Transport Corporation Ltd., rep. by its Managing Director, Pallavan Salai, Chennai-2. 4.Tamil Nadu State Transport Corporation (Villupuram) Ltd., rep. by its Managing Director, Rangapuram, Villupuram. 5.Tamil Nadu State Transport Corporation (Salem) Ltd., rep. by its Managing Director, 12, Ramakrishna Road, Salem. 6.Tamil Nadu State Transport Corporation (Coimbatore) Ltd., rep. by its Managing Director, 37, Mettupalayam Road,Coimbatore. 7.Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., rep. by its Managing Director, Railway Station New Road, Kumbakonam. 8.Tamil Nadu State Transport Corporation (Madurai) Ltd., rep. by its Managing Director, Bye-Pass Road,Madurai. ..Respondents in WP No.47891/2006 1. The State of Tamil Nadu, rep by the Secretary to Govt Transport Department, Secretariat, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Managing Director, Metropolitan Transport Corporation (Chennai Limitied, Pallavan House, Pallavan Salai, Chennai 600 002. ...Respondents in WP.48111/06 1. The Government of Tamil Nadu, rep by its Secretary, Transport Department, Fort St George, Chennai. 2. Tamil Nadu Transport Corporation, (Coimbatore) Ltd., rep by its Managing Director, 37, Mettupalayam Road, Coimbatore. ...Respondents in WP.49107/06 The State of Tamil nadu rep by the Secretary and Chairman, Transport Department, Fort St George, Chennai 9. 2. The Managing Director, State Express Transport Corporation, Tamil Nadu Limited, Pallavan Salai, Chennai 2. ...Respondents in WP.49109/06 PRAYER IN W.P.No.34848: This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus, calling for records relating to the first respondent's proceedings made in Letter No.31467/ DOI/97-1 Transport (DO.I) Department dated 08.01.1998, to quash the same, and consequently direct the respondents to implement G.O.Ms.No.268 Transport (G.O.I) department dated 14.11.1997 forthwith for the purpose of promotion to the Managerial Cadre. Writ of Declaration declaring that the Impugned clause IV of the Minutes issued in Lr.No.26/Cho/2006 dated 3.11.2006 and the ratio of 3:1 for promotion to the post of Assistant Manager amongst Degree holders and Diploma holders are discriminatory and null and void and consequently direct the respondents to accord promotion to the post of Assistant Manager in accordance with the security in the feeder category of selection Grade Senior Assistant Engineer (W.P.No.47408/2006) https://hcservices.ecourts.gov.in/hcservices/ Writ in the nature of Declaration, declaring that the ratio of 3:1 provided in S.Nos. 6 to 9 in Branch I: Part-A of Appendix-III to Common Service Rules of the respondent Corporations 2 to 8 among Degree holders and Diploma holders in the cadre of Assistant Engineers for promotion to the post of Asst.Managers as illegal, unjust arbitrary, irrational and unreasonable and consequently direct the respondents to promote the Assistant Engineers as Assistant Managers on selection on completion of 5 years of A.E. service. (WP 47891/2006) Writ of Prohibition of Prohibiting the ratio of 3:1 for promotion to the post of Assistant Manager from the cadre of Assistant Engineers, prescribed for degree holders and Diploma holders as discriminatory and null and void and consequently direct the respondents to accord promotion to the post of Assistant Manager in accordance with the seniority in the cadre of Selection Grade Senior Assistant Engineer (W.P.No.48111/06) Writ in the nature of Declaration declaring that the ratio of 3:1 Provided in S.Nos.6 to 9 in Branch I Part A of Appendix -III to Common Service Rules of the 2nd respondent Corporation among Degree holders and Diploma holders in the cadre of Assistant Engineers for promotion to the post of Assistant Managers as illegal, unjust arbitrary, irrational and unreasonable and consequently direct the respondents to promote the Assistant Engineers as Assistant Manager on selection on completion 5 years of A.E. service (W.P.NO.49107/06) Writ of Declaration declaring that the impugned Clause IV of the Minutes issued in Lr.No. 26/Cho/2006 dated 3.11.2006 and the ratio of 3 :1 for promotion to the post of Assistant Manager amongst Degree holders and Diploma holders are discriminatory and null and void and consequently direct the respondents to accord promotion to the post of Assistant Manager in accordance with the seniority in the feeder category of Selection Grade Senior Assistant Engineer.(W.P.NO.49109/06) For Petitioners : M/s.L.Chandrakumar W.P.No.34848 Mr.R.Thiagarajan, S.C. for S.M.Subramaniam - 47408 for D.Hariparanthaman- 47891 Mr.N.R.Chandran, S.C. for K.Rajasekar Mr.K.M.Vijayanarayanan S.C. for N.Subramanian Mr.Venkatachalapathy SC for M.Sriram https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.R.Viduthalai Advocate General Asst.by Mr.G.Sankaran A.G.P. (Writs) COMMON ORDER In all these Writ petitions the subject matter in question is in respect of the portion of the Common Service Rule originally created by the Pallavan Transport Corporation in so far as it relates to the promotion to the post of Assistant Manager from the cadre of Assistant Engineers in making the quota of 3:1 from the Degree holders and Diploma holders respectively on the basis that the discrimination among the Assistant Engineers for the purpose of promotion to the next post on the basis of Degree holders and Diploma holders as illegal. 2. The petitioners in these cases are either the Association of Engineers or individuals, who have been appointed as Junior Engineers in various Transport Corporations on the basis of their Diploma qualification in Engineering and thereafter promoted as Assistant Engineers which post is filled up either by direct recruitment from the holders of Degree in Engineering or promotion from the Junior Engineers, who were the Diploma holders. Their case is that after they were promoted to the post of Assistant Engineer either by promotion or persons appointed directly from the Degree holders there was no distinction and therefore according to them, for the nest post of Assistant Manager they have to be treated equally like the other Assistant Engineers who were appointed from Degree holders and there cannot be a further discrimination of restricting their rights as 3:1, namely, three fourth of the Assistant Engineers to be promoted from among the Degree holders in the post of Assistant Manager and one fourth of the Assistant Engineers from the Diploma holders to be promoted to the post of Assistant Managers. 3. It is admitted case that the Junior Engineers are appointed from Diploma holders and Assistant Engineers from Degree holders by way of direct recruitment. That apart as per G.O.Ms.No.13 Transport Department dated 14.01.2000, since there was stagnation of the Diploma holders appointed as Junior Assistants, the Government has enabled promotion to the next post of Assistant Engineers by a time bound scheme under which the Diploma holders, who were appointed as Junior Engineers after completion of 6 years were eligible to be promoted as Assistant Engineers in the scale of pay of 6000-150-8000. Likewise, the said Government Order also contemplated that persons holding the post of Assistant Engineers https://hcservices.ecourts.gov.in/hcservices/ after 6 years of service in the said category or Junior Engineers holding the said post for 12 years were granted senior scale pay of Assistant Engineers at Rs.5900-200-9000. Likewise, the said Government Order also contemplated that a person, who has completed 10 years as senior scale Assistant Engineer or 16 years as Assistant Engineer or 22 years as Junior Engineer granted selection grade Assistant Engineer salary at the rate of Rs.8000-275-13000. 4. According to the petitioners, there are 1150 Diploma holders in the level of Assistant Engineers in the various Transport Corporations and 250 Degree holders as Assistant Engineers. It is also their case that out of the said Diploma holders 200 of them have acquired B.E. Degree through part time course. Therefore, the Diploma holders in the level of Assistant Engineer constitute more than 75 percent. It is admitted that the next promotion post is in Managerial category, namely, the post of Assistant Manager. 5. According to the petitioners a person, who has completed 5 years as Assistant Engineer is eligible for the next post of Assistant Manager. There are 250 posts of Assistant Manager vacant in the various Transport Corporations. It is also admitted that in respect of Supervisory group there is a Common Service Rules as adopted by the respondent Corporations as per G.O.Ms.No.1373 dated 02.12.1985. As per the said Rules, Rule 59, contemplates the appointment to any category, which starts from the categories of post in working group and miscellaneous group in Traffic Department, Technical Department and Administrative Department and proceeds to the Supervisory groups in the Traffic Department, Technical Department and Administrative Department and ends with the Managerial cadre in the above said departments. Therefore, there are working groups, Supervisory groups and Managerial cadre, which are the hierarchy of posts in the department. 6. The Management cadre are mentioned in Part A of Appendix II and III which includes Manager (Technical), Manager (Materials), Deputy Manager (Technical) / Deputy Manger work, Deputy Manager (Materials) / Deputy Manager (Purchase) / Deputy Manager (Stores), Deputy Manager Civil, Assistant Manager (Technical) / Assistant Manager (Works), Assistant Manager Electrical, Assistant Manager Civil, Assistant Manager Purchase / Stores and Assistant Manager (Printing Press). Therefore, the post of Assistant Manager in respect of which the promotion is sought on quota basis, namely, 3:1 comes under the last of the Managerial cadre. 7. Likewise the Supervisory group is explained in Part B of Annexure II and III which includes Workshop Superintendent, General Foreman Electrical / Assistant Engineer Electrical, General Foreman https://hcservices.ecourts.gov.in/hcservices/ Mechanical, Assistant Engineer Mechanical, Foreman Mechanical / Junior Engineer Mechanical, Foreman Electrical / Junior Engineer Electrical, Senior Supervisor Wireless / Assistant Engineer Wireless, Foreman Wireless / Junior Engineer Wireless, Assistant Engineer / Senior Supervisor Civil, Senior Supervisor Civil / Junior Supervisor Civil, Superintendent Stores, Assistant Engineer (Stores) / Senior Store Keepers, Junior Engineer Purchase and Junior Engineers Stores - Store Keeper are all under the Supervisory group. 8. Therefore, the posts of Junior Engineer as well as Assistant Engineers are under the Supervisory group. The remaining posts called working group are mentioned in Part C of Appendix I and II which includes Cleaner / Helper / Junior Tradesmen, Junior Material Handler / Store Attender, Junior Wireless Operator (ITI), Junior Masdor (Civil), Junior Tracer / Surveyor, Assistant Draftsman (Civil) / Mechanical, Wireless Operator Diploma and Assistant Store Keepers. The said category is available in both the technical department as well as on the traffic department of the respondent Corporation. In these writ petitions of course we are not concerned about the working group, namely, Part C. 9. The Common Service Rules 59(b) contemplates the method of recruitment in Appendix II and qualification in Appendix III. In Appendix II in respect of the post of Assistant Manager recruitment is made either by 1) Transfer from the holders of Assistant Manager Purchase or Stores or 2) By promotion from the holders of Assistant Engineer who possess Degree or Diploma with 5 years of experience on ratio of three fourth of the said appointment from among the holders of Degree in Engineering and one fourth of Diploma in Engineering or 3) By direct recruitment, as it is seen in the Serial Nos.6,7,8,9 and 10 of Appendix II. There is also a note in respect of direct appointment in Serial No.6 stating that the ratio between the appointment by promotion and by direct recruitment shall be 3:1. Therefore, it is clear that for filling up of 4 vacancies of Assistant Manager, three shall be filled up by promotion and the remaining one by direct recruitment. Among the three posts to be filled up by promotion three fourth of them shall be from the holders of Degree and one fourth from Degree holders among the Assistant Engineers. 10. Likewise, Appendix III in respect of the said 3 categories and in accordance with Rule 59(c) of the Common Service Rules contemplates the qualifications that are applicable only for https://hcservices.ecourts.gov.in/hcservices/ direct recruitment. As far as the reading of the said Appendix III shows that in respect of the appointment of Assistant Managers on direct recruitment, which shall be on basis of 3:1 ratio between the appointment of Assistant Managers by promotion and direct recruitment respectively, the qualification prescribed in all these cases of direct recruitment is Degree in the concerned subjects of course with experience, etc. As far as the post of Junior Engineer is concerned the same can be filled up either by transfer from among the holders of the post of Junior Engineer or by direct recruitment and the same is admittedly under the Supervisory group, namely, Part B and qualification required for appointment of such Junior Engineers on direct recruitment is Diploma in Engineering. Admittedly, the petitioners have been appointed with Diploma qualification by way of direct recruitment as Junior Engineers, which is in the Supervisory group. 11. Rule 60 of the Common Service Rules provides for promotion to the post in the Supervisory group as well as Managerial cadre. It contemplates that the said promotion depends upon the availability of vacancies, based on merit, ability, regularity of performance, regularity of attendance, post performance and general suitability. That apart Rule 60(d) states, for appointment by promotion to the post of Managerial cadre, completion of a minimum service required, namely, 1) When the appointment is to the post in the grade of Assistant Manager, 5 years in the grade of Assistant Engineering, etc. 2) When the appointment is to the post of Deputy Manager, 6 years in the grade of Assistant Manager and 3) When the appointment is to the post of Manager, 7 years in the grade of Deputy Manager. The dispute involved as I have stated earlier in all these cases is only in cases of promotion from the Supervisory cadre of Junior Engineer to that of the Managerial cadre of Assistant Manager, which stipulates that while making such promotion three fourth of the appointment shall be from the holders of Degree in Engineering from among the Assistant Engineers and one fourth is from Diploma holders from among the Assistant Engineers. As far as the direct recruitment is concerned there is no dispute involved in this case. 12. The case of the petitioners is that while it is true that at the time when candidates were appointed as Junior Engineers. They were Diploma holders, as far as the post of Assistant Engineers is concerned, after completion of 6 years as Junior Engineers the said Diploma holders having become Assistant Engineers, they are equal to that of the Assistant Engineers directly recruited with Degree qualification. Thereafter, whether they are Degree holders or Diploma holders they are holding the same post of Assistant Engineers and they are not distinguished on https://hcservices.ecourts.gov.in/hcservices/ the basis of their Degree or Diploma. The contention of the petitioners is that when once a Junior Engineer has become an Assistant Engineer by way of promotion after completing 6 years, thereafter for the purpose of conferment of the senior scale and selection grade after 6 years of experience as Assistant Engineer and after 10 years in the senior scale as that of selection grade, there is no discrimination. It is only those persons who remain to be Junior Engineers with Diploma qualification are given special grade of scale or selection Grade of scale after 12 years or 22 years as Junior Engineers and therefore, once a Junior Engineer is promoted as Assistant Engineer, thereafter he cannot be discriminated for the purpose of next promotion as Assistant Manager only on the basis of the basic qualification of those Assistant Engineers. The strong reliance for this contention is based on the G.O.Ms.No.13. 13. Now that after 8 years the respondent Corporation are proceeding to fill up 250 vacancies of Assistant Managers in the Managerial cadre the decision of the respondents in drawing separate seniority list among the Assistant Engineers for graduates and diploma holders for promoting to the post of Managerial cadre, namely, Assistant Manager was objected to by the Diploma holders, who have been promoted as Assistant Engineers after completion of 6 years of service as Junior Engineers. 14. According to the petitioners, when once it is admitted by the respondent Corporation that when a Junior Engineer having Diploma has been promoted as Assistant Engineer and the post of Assistant Engineer is a feeder category for the post of Assistant Manager, the said post of Assistant Manager can also be filled up only by seniority because in the cadre of Assistant Engineer, as Assistant Engineers they belong to the same feeder category for the next post of Assistant Manager and there cannot be any distinction. According to the petitioners, there is no distinction in the services as Assistant Engineers between the Degree holders and Diploma holders either in performing the nature of duties or emoluments or there is no special treatment to an Assistant Engineer simply because he is a graduate and therefore, in such factual situation there cannot be a further distinction for the next promotion post of Assistant Manager on the basis that the Assistant Engineer is a Diploma holder or Degree holder and by imposing 3:1 in the promotion to the Assistant Manager between the Degree holders and Diploma holders is a gross discrimination and in effect the promotional avenue of the large number of Assistant Engineers, who have originally got Diploma and entered as Junior Engineers numbering 1150 cannot think about promotion to the post of Assistant Manger at all. https://hcservices.ecourts.gov.in/hcservices/ 15. According to the respondents giving of senior scale of pay or selection scale of pay does not amount to a promotion since there are no such posts as Senior Grade Senior Assistant Engineer or Selection Grade Senior Assistant Engineer. The concession was given only for the purpose of monetary benefits and not for giving any promotion. It is a time bound scale of pay, which is sought to be given, whether a person is made a Junior Engineer or Assistant Engineer or Senior Assistant Engineer or Selection Grade Senior Assistant Engineer they all form under the Supervisory category and when the promotion to the next managerial category to be made, the educational qualification is necessarily insisted, which is not discriminatory. It is also the case of the respondents that even the Junior Engineers having Diploma were permitted to undergo part time Degree course in Engineering and such persons, who have acquired degree qualification when they are posted as Assistant Engineers, are placed at the bottom of the seniority of the graduate Assistant Engineers on the date of acquisition of qualification even though his seniority will also be maintained among the Diploma holders list of Assistant Engineers. Therefore, according to the respondents, there has been 2 seniority lists among the Assistant Engineers of Diploma holders and Assistant Engineers of Degree holders and the Assistant Engineers of Diploma holders who obtained part time Degree in Engineering are placed in the bottom of the Assistant Engineers of Degree holders and while construing 3:1 ratio which ever is advantageous to him is conferred. It is also denied that Government Order in G.O.Ms.No.268 dated 14.11.1997 prescribes 3:1 ratio only in the initial recruitment level. 16. On the other hand, it is the case of the respondent Corporation as well as the Government that they are expected to follow the Common Service Rules. It is the specific case of the respondent Corporation that while making direct recruitment the required qualification for the post of Assistant Manger, which is of Managerial category is only Degree and not Diploma. It is only in cases of promotion, which is also recognized as another mode of appointment to the next post of Assistant Manger, a chance is given to Diploma holders along with the Degree holders from among the Assistant Engineers in the ratio of 3:1 between Degree and Diploma holders respectively. Therefore, it is only more on a concession since such Diploma holders even if they have become Assistant Engineers by virtue of 6 years of experience as Junior Engineers cannot expect themselves to be appointed in the Managerial category at all. It is always open to the respondents or the Government to impose educational qualification as a necessary ingredient for promotion. It is also the case of the respondents that the Diploma holders with prolonged years of service cannot be equated to that of Engineering graduates. It is also the further case of the https://hcservices.ecourts.gov.in/hcservices/ respondents that the purport of G.O.Ms.No.13 is not to give promotion but is only for the purpose of giving pay scale to avoid stagnation in payment. 17. Mr.R.Thiagarajan, learned Senior Counsel appearing for the petitioner in W.P.No.47891 of 2006 would rely upon the judgement of the Hon’ble Supreme Court reported in AIR 1974 SC 1 to substantiate his contention that there cannot be a distinction between Degree holders and Diploma holders. That apart he would also rely upon the judgement of the Supreme Court reported in 1989 Suppl.(2) SCC 344 that any quota prescribed in the promotion level will be invalid offending Article 14 and 16 of the Constitution of India since there cannot be discrimination among the equally situated people. The learned Senior Counsel also would submit that the judgement of the Hon’ble Supreme Court reported in 1993(2) SCC 340 P.Murugesan’s case is factually different since there has been a distinction maintained between the Degree holders and Diploma holders from the beginning and they were always treated as distinct, whereas in the present case when once either as Diploma holders or Degree holders by way of direct recruitment on promotion, a person is appointed in the respondent Corporation as Assistant Engineers they were all under the same category and therefore, for the purpose of further promotion, there cannot be further classification. 18. Mr.N.R.Chandran, learned Senior Counsel appearing for the petitioner in W.P.No.48111 of 2006 would submit that when once promotion has been given to a common cadre the qualification of the candidates, which were required for the feeder category merges and therefore, when once the Diploma holders become Assistant Engineers it becomes integrated and therefore, there cannot be two different streams thereafter. He would submit that the quota system can be possible only if the distinction is maintained. According to the learned Senior Counsel the person holding Assistant Engineer is given Senior Assistant Engineer and Selection Grade Senior Assistant Engineer not automatically but based on performance and on merit and therefore, it should be treated as a cadre. 19. According to the learned Senior Counsel, after a person has become Assistant Engineer he is made as a Senior Grade Assistant Engineer or Selection Grade Senior Assistant Engineer and these two cases are to be taken as new cadres before going to