IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02-09-2009 Coram THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 35906 of 2006 in OA.No.3526/98 P. Loganathan .. Petitioner Versus 1. The Director of Town Panchayat Kuralagam, Chennai 2. The District Collector Collectorate Kancheepuram District .. Respondents OA No. 3526 of 1998 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court and re-numbered as WP No. 35906 of 2006, which was filed praying to call for the records of the first respondent in proceedings R.C. No. 18594/97-1/B5 dated 15.04.1998 and the order of the second respondent in his proceedings R.C. No.4675/97-1/P1 dated 25.04.1998 in so far as the applicant is concerned and quash the same. For Petitioner : Mr. K. Raja For Respondents : Mr. R. Neelakandan Government Advocate ORDER The applicant was promoted to the post of Junior Assistant on 30.04.1985 and subsequently, he was promoted to the post of Executive Officer, Grade – II by order dated 29.01.1997 of the second respondent. The said order came to be passed on the basis of the order passed by the Tribunal in O.A.N o. 5134 of 1996 and O.A. No. 4223 of 1996 dated 20.09.1996. Subsequently, it was found that such a promotion is impermissible. It was also found that the Tribunal merely directed the respondents to consider the petitioner's representation and therefore, the promotion granted to the petitioner was cancelled by a subsequent order dated 13.09.1996. In the said order dated 13.09.1996, it was stated that without reference to the Rule, the petitioner was given promotion, though there is no Rule providing for promotion to the post of Executive Officer by reservation. It was also stated that any promotion made has to be approved by the Director of Town Panchayat, but in the present case, in the absence of any Rule, the promotion given to the petitioner is not legally permissible and therefore, he was reverted to the post of Junior Assistant. https://hcservices.ecourts.gov.in/hcservices/ 2. Aggrieved by the said order of reversion, the petitioner has filed O.A. No. 3526 of 1998. The Tribunal granted interim order on 28.04.1998. The only ground on which the Tribunal granted interim stay was the petitioner was not issued with any notice before reversion. Subsequently, the interim order came to be extended until further orders. Since the petitioner was not restored to his promotional post, inspite of the interim stay granted by the Tribunal, the petitioner filed Contempt Application No. 325 of 1998. The Tribunal, did not punish the respondents and passed an order holding that the said order will not apply to the case of the petitioner since he was already reverted to the lower post and disposed of the Contempt Petition on 05.07.2002. By virtue of the same, the petitioner was working only in the lower post. On notice from the Tribunal, the respondents filed Reply Affidavit dated 15.05.1998. In view of the abolition of the Tribunal, the matter stood transferred to this Court and re- numbered as WP No. 35906 of 2006. 3. In the reply affidavit, it was stated that against the persons who were responsible for granting promotion to the petitioner, action has been taken for violating the orders of the Government. With reference to the Rules of reservation being made applicable to such promotion, it was stated that there is no provision for promoting individuals working in Town Panchayat administration on the basis of Rules of reservation and all promotions and appointments should be made strictly on seniority and merit. Therefore, promotions were granted to certain persons, only on the basis of the interim order passed passed by the Tribunal and not having regard to the Service Rules framed under Article 309 of the Constitution of India. 4. It may be stated that by introduction of Article 16 (4) (A) of The Constitution of India (introduced with effect from 17.06.1995) by the Constitutional 77th Amendment Act, 1995, it may be possible to provide reservation in the matters of promotion for any class or classes of posts and service in favour of Schedule Caste and Schedule Tribe persons provided in the opinion of the State they were not adequately represented in the services under the State. Therefore, it pre-supposes the State Government to frame proper Rules and provide for promotional posts and Rules of Reservation. When a similar question came up for consideration in (Registration Department, SC/ST and MBC Employees' General Welfae Sangam vs. S. Chandrasekar and others) 2005 (2) CTC 36, the Division Bench of this Court, presided by Justice P. Sathasivam, as he then was, held that even Rules of Reservation will not apply to appointment by transfer and it was held that if a post involves higher salary and higher responsibility, it should be deemed as a promotional post and in the absence of any Rules providing for appointment by reservation, such promotion granted are invalid. In Para-20 of the said judgment, it was held thus. "20. .....We also hold that the reservation of appointments or post under Article 16 (4) is confined to initial appointment only and cannot extend to provide reservation in the matter of promotion. If the https://hcservices.ecourts.gov.in/hcservices/ Government feels that for ensuring adequate representation of Backward class of citizens in any service, class/category, it is necessary to provide for direct recruitment therein, it shall be open to do so. But the reservation in the matter of promotion was permitted for the period of 5 years from the date of judgment i.e., from 16.11.1992 to 15.11.1997. As rightly pointed out by the learned counsel for the respondents, all the ingredients of the meaning of promotion in Rule 13 are found and only the method is by way of recruitment by transfer in the same Department with higher scale of pay and all the norms of promotion are followed while appointments are made. Therefore, in the case on hand, the 'recruitment by transfer' in all these cases in the same department is deemed to be the promotion and for which the rules of reservation does not apply." 5. However, the same legal position may not survive now by introduction of Article 16 (4) (A) of the Constitution of India in respect of Schedule Caste and Schedule Tribes. As rightly contended by the respondents and also objections having been raised in the reply affidavit, in the absence of Rule, Article 16 (4) (A) of the Constitution is only an enabling provision and therefore, the petitioner, by any wrong interpretation of provision cannot get promotion. Even, the Division Bench of this Court held that such orders are unconstitutional and therefore the question of granting any opportunity before cancelling the promotion, as contended by the petitioner, does not arise. It is unnecessary to state that any promotion made contrary to the Rules or by fraud or wrong interpretation by the subordinate cannot enure to the benefit of an individual. 6. In the light of the above discussion, this writ petition is dismissed. No costs. Rsh Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Director of Town Panchayat, Kuralagam, Chennai 2. The District Collector, Collectorate Kancheepuram District + 1 cc to Government Pleader, SR No.44381 NSM(CO) SR/14.9.2009 WP No. 35906 of 2006 https://hcservices.ecourts.gov.in/hcservices/