A ABDUL KHADER Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE present writ petition has been filed for issuing a writ of certiorarified mandamus for quashing the order dated 11. 8. 2003 in O. A. No. 2588 of 2003 and directing the first respondent to promote and post the petitioner as a Joint Transport Commissioner with attendant, service and monetary benefits from 23. 5. 2003, the date on which the present Respondent No. 4 was promoted as Joint Transport Commissioner.

(2.) THE petitioner was initially appointed as Assistant Motor Vehicles Inspector in the year 1975. Subsequently, he was promoted as Motor Vehicles Inspector Grade-I in 1978, and thereafter, he was included in the panel for promotion as Regional Transport Officer (RTO in short ). There is no dispute that the present petitioner is senior to the present Respondent Nos. 3 and 4 in the cadre of RTO. The next promotional post from the cadre of RTO is the Deputy Transport Commissioner. From the post of Deputy Transport Commissioner, the next promotional post is the Joint Transport Commissioner, which is a selection post. The petitioner was promoted as Deputy Transport Commissioner as per G. O. Ms. No. 96 dated 14. 3. 2002, even though he was expecting his temporary/regular promotion to the post of Deputy Transport Commissioner in the year 2000-2001. Subsequently, the petitioner learnt that the present Respondent No. 4, who was admittedly junior to him in the rank of RTO, had been promoted as Deputy Transport Commissioner in March, 2001, pursuant to an order passed by the Tamil Nadu Administrative Tribunal. In course of time, Respondent No. 4 was again promoted as Joint Transport Commissioner in May, 2003. At that stage, by virtue of the impugned order passed by the Tribunal, the present Respondent No. 3 was also directed to be promoted as Joint Transport Commissioner with effect from the date on which the present Respondent NO. 4 was so promoted. The petitioner's case is that even though the aforesaid two persons are junior to him, his case for promotion was not at all considered and no notice had been issued to him and the petitioner has not been impleaded in any of the O. As filed by the Respondent No. 3 and Respondent No. 4. At that stage, the petitioner made a representation dated 4. 7. 2003 to the Government protesting about his non-promotion and also protesting against the promotion given to his juniors, namely, Respondent Nos. 3 and 4. The main contention of the petitioner is to the effect that since admittedly he is senior to the Respondent Nos. 3 and 4 in the cadre of RTO, he should have been promoted first as the Deputy Transport Commissioner and subsequently, as the Joint Transport Commissioner ahead of the Respondent Nos. 3 and 4. It is his further contention that as per the general rule, the list relating to the post of Deputy Transport Commissioner / Joint Transport Commissioner is required to be communicated to all the persons concerned by Registered Post, and the fact that the promotion of the Respondents 3 and 4 ahead of the petitioner was not communicated earlier, depriving him of an opportunity getting promotion. It is further contended that the promotion to the post of Joint Transport Commissioner is on the basis of merit and the question of seniority assumes importance only when the merit is found to be equal. It is contended that even assuming that the petitioner has become junior to Respondent Nos. 3 and 4 in the rank of Deputy Transport Commissioner, yet, his case for promotion to the post of Joint Transport Commissioner should have been considered on the basis of merit, irrespective of seniority, and this having not been done, he should be promoted against a vacant post of Joint Transport Commissioner.

(3.) FOR the purpose of deciding the questions raised in the present writ petition, it is unnecessary to refer to the stand of the Respondent Nos. 3 and 4. However, it is necessary to refer to the counter affidavit filed on behalf of the Respondents 1 and 2. In such counter affidavit, the respondents 1 and 2 have not disputed the fact that the petitioner was senior to Respondents 3 and 4 in the cadre of RTO. It is also not disputed that promotion to the post of Joint Transport Commissioner is to be made on the basis of merit and senior person is to be preferred when merit is found to be equal. It is however contended that promotion of Respondent No. 4 initially and Respondent No. 3 subsequently were only temporary promotions, and therefore, at that stage, it was unnecessary to consider the question of merit of the petitioner as the Respondents 3 and 4 were considered to be senior to him. In this connection, it is pointed out that there was a departmental proceeding against the writ petitioner, wherein a punishment of stoppage of one increment for a month without cumulative effect had been imposed and during currency of such punishment, the question of promotion to the post of Deputy Transport Commissioner had cropped up. At that stage, the case of the present Respondent No. 3 was ignored as a disciplinary proceeding was pending against him. Even though the present Respondent No. 4 was also punished, he had filed O. A. No. 3621 of 1999 against such punishment and an interim direction had been issued by the Tribunal directing to promote Respondent No. 4 notwithstanding the punishment, subject to the result of the pending O. A. . In view of such order, Respondent No. 4 was promoted as Deputy Transport Commissioner on 31. 3. 2001. The present petitioner was promoted to such post only in next year, after the currency of his punishment was over. At that stage, Respondent No. 3 was not considered for the promotion as disciplinary proceeding was pending against him. However, Respondent No. 3 had filed O. A. No. 1874 of 2003, wherein a direction had been issued by the Tribunal directing the Government to consider the name of Respondent No. 3 for inclusion in the panel of Deputy Transport Commissioner, as he was senior to the present Respondent No. 4. Accordingly, such order has been complied with and the name of Respondent No. 3 was included in the list of Deputy Transport Commissioner above the present Respondent No. 4. Subsequently, O. A. No. 2558 of 2003 was filed by the third respondent, wherein a direction was issued to promote him with effect from the date on which his junior, namely, the present Respondent No. 4, was promoted and only such order has been implemented by the Government.