N.S.Devendran, Vs The Managing Director

Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarfied Mandamus to call for the records in Letter No.1069/Pa.Pee (PO) 2/Ma.Po.Ka/ 2015 dated 29.07.2015 of the 2nd respondent herein passed on behalf of the 1st respondent and quash the orders passed therein and consequently, to direct the respondents to promote the petitioner to the post of Checking Inspector/ Time Keeper from the date on which his Junior were promoted on notional basis with all concomitant service pensionary and other benefits.

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https://www.mhc.tn.gov.in/judis

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W.P.No.16185 of 2016 For Petitioner : Mr.W.M.Abudl Majeed For Respondents : Mr.C.Gauthamaraj

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O R D E R

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The petitioner has challenged the communication in Letter

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No.1069/PA Pee(PO) 2/Ma. Po. Ka/2015 dated 29.07.2015 issued by the first respondent.

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By the said communication, the petitioner’s claim for promotion to

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the post of Checking Inspector from the post of Special Grade Conductor was rejected.

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The case of the petitioner, in brief, is as follows:

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i) The petitioner was appointed as a Conductor on 14.07.1980 and was

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granted an increment for having completed a Master’s Degree in M.A. (History). Thereafter, the petitioner was awarded Special Grade and continued to serve as a Special Grade Conductor until his retirement on attaining the age of superannuation on 30.06.2008.

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ii) The petitioner, on noticing that his junior, one Mr. D. Ramakrishnan,

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had been promoted to the post of Checking Inspector, submitted a

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W.P.No.16185 of 2016 representation dated 25.02.2014 seeking promotion to the said post on par with his junior. Since the said representation was not considered, the petitioner filed a Writ Petition in W.P. No.591 of 2015 before this Court. This Court, by order dated 19.02.2015, directed the first respondent to consider and dispose of the petitioner’s representation dated 25.02.2014 on merits and in accordance with law. Pursuant to the said direction, the first respondent passed the impugned order dated 29.07.2015. Aggrieved by the same, the present Writ Petition has been filed.

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The learned counsel for the petitioner assailed the impugned order denying promotion to the post of Checking Inspector on par with his junior, Mr. D. Ramakrishnan, primarily contending that the denial was made solely on the ground that the petitioner, while serving as Special Grade Conductor, had been imposed with a minor penalty. However, it was contended that even during the period when such adverse remarks were in force, the petitioner had been extended the benefits under the first, second and third reviews. The learned counsel also drew the attention of this Court to the Certificate of Appreciation issued by the respondent Transport Corporation, the translated English version of which is annexed at Page No.15 of the Typed Set of Papers, and submitted that the certificate was awarded to the 3/10

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W.P.No.16185 of 2016 petitioner in recognition of his sincere and commendable service rendered to the respondent Corporation. Therefore, it was contended that the impugned order stands vitiated.

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In reply, the learned State Counsel appearing for the respondents submitted that during the period from 01.08.1980 to 29.09.1992, penalties had been imposed on the petitioner and therefore he was not considered for promotion to the post of Checking Inspector. It was further submitted that the petitioner’s juniors had not faced any such penalties and therefore they were rightly promoted to the post of Checking Inspector. Hence, according to the learned State Counsel, the promotion granted to the petitioner’s juniors cannot be said to be arbitrary, illegal or discriminatory. It was also contended that the claim of the petitioner is barred by delay and laches.

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The submissions made by the learned counsel for the petitioner and

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the learned State Counsel for the respondents have been duly considered. This Court has also perused the materials placed on record, particularly the Service Book details of the petitioner.

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The petitioner was appointed as a Conductor in the respondent Transport Corporation on 14.07.1980. His junior, Mr. D. Ramakrishnan, was 4/10

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W.P.No.16185 of 2016 appointed as a Conductor on 01.09.1980. It is seen that the said Mr. D. Ramakrishnan was promoted to the post of Checking Inspector on 01.04.2008, whereas the petitioner was not granted such promotion on the ground that a minor penalty had been imposed on him.

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7.1 In the counter affidavit, the respondents have furnished the service details of both the petitioner and the said Mr. D. Ramakrishnan under the heading “Comparison Statement” at Page No.3. From the said comparison statement, it is evident that there were certain disparities in granting promotional and other service benefits to the petitioner and his junior. For instance, Mr. D. Ramakrishnan (the petitioner’s junior) was granted the first review benefit on 01.11.1986, the second review benefit on 01.11.1994 and the third review benefit on 01.11.2004. In contrast, the petitioner was granted the first, second and third review benefits belatedly, namely on 01.02.1987, 01.05.1995 and 01.08.2005 respectively.

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7.2 Further, in the impugned order dated 29.07.2015, the sole reason assigned by the respondents for denying promotion to the petitioner is that penalties had been imposed on him. However, upon perusal of the Service Book produced by the learned State Counsel for the respondents, it is evident that from 01.08.1980 to 06.04.2004 the petitioner had only been 5/10

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W.P.No.16185 of 2016 censured, warned and advised, and except for such advice, no minor or

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major penalty had been imposed on him. Despite such remarks, the petitioner was extended the benefits under the first, second and third reviews. The petitioner had also been awarded a Certificate of Appreciation for his sincere and commendable service as Special Grade Conductor. The translated English version of the Certificate of Appreciation issued by the respondent Transport Corporation, annexed at Page No.15 of the Typed Set of Papers, reads as follows:

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“Metropolitan Transport Corporation (Chennai) Limited

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Chennai – 600 002

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Certificate

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This Certificate of Appreciation is awarded to Mr. N.S. Devendran, Special Grade Conductor, Computer No. C11309 attached to the Head Office of the Metropolitan Transport Corporation (Chennai) Limited, in recognition of his sincere and commendable service in preparing and submitting inspector reports for 231 accidents.”

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7.3 As regards the second contention raised by the learned State Counsel for the respondents that the petitioner’s claim is barred by delay and laches, it is relevant to note that the petitioner had earlier agitated his rights 6/10

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W.P.No.16185 of 2016 with regard to regularisation of service along with similarly placed persons

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by filing W.A. No.1821 of 2003 before the Hon’ble Division Bench of this Court. The Hon’ble Division Bench, by judgment dated 19.08.2006, while dismissing the said Writ Appeal, observed as follows:

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“In so far as the contention of the appellants that they are trained in the field and consequently entitled to regularisation, it must be noted that the petitioners being Conductors are entitled to be promoted to the post of Checking Inspectors as per the Rules and their trained experience can very well be utilised in such promoted post. Merely because training was undergone by the appellants, the same cannot be a ground for regularisation of the appellants in a post which is not in existence. Hence, we do not find any error in the order passed by the learned Single Judge and the Writ Appeal is dismissed.”

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7.4 In view of the above observation of the Hon’ble Division Bench,

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the contention of the learned State Counsel for the respondents that the petitioner’s claim is barred by delay and laches cannot be accepted.

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In view of the above discussion, this Court is of the opinion that the impugned order denying promotion to the petitioner to the post of Checking

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W.P.No.16185 of 2016 Inspector on par with his junior, Mr. D. Ramakrishnan, is illegal, arbitrary, vitiated and legally unsustainable. However, in order to balance the equities between the parties, this Court deems it appropriate to direct the first respondent to grant notional promotion to the petitioner to the post of Checking Inspector on par with his junior, Mr. D. Ramakrishnan.

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Accordingly, the Writ Petition is allowed and the impugned communication dated 29.07.2015 issued by the first respondent is hereby quashed. The respondents are directed to promote the petitioner notionally to the post of Checking Inspector with effect from 01.04.2008 and revise his pensionary and other attendant benefits accordingly, and disburse the arrears of pension within a period of four months from the date of receipt of a copy of this order.

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