A division bench of the Madras High Court comprising of Justice V.M. Velumani and Justice R. Hemalatha was hearing an appeal filed by the petitioners aggrieved over the order passed by the Central Administrative Tribunal, Madras in a matter where the initial complainant, Mr. M. Saker alleged administrative bias in his promotion. The Madras HC held that there existed no bias and government policies are made keeping the welfare of the people at large in mind and if one starts pointing out holes in such policy decisions there would be no end to it.
Brief Facts:
The grievance of the first respondent, Mr. M Raje Saker, was that when he was deputed to the Puducherry Co-operative Sugar Mills Limited as Managing Director, one L. Kumar, a Puducherry Civil Services Officer who was Director of Information Technology, Government of Puducherry was posted as the Commissioner (CT) as Additional Charge vide orders dated 01.02.2012 and subsequently on 20.08.2014 the fifth respondent G. Srinivas, another Puducherry Civil Services Officer who was the Labour Commissioner, Government of Puducherry was posted as Commissioner (CT). Both of these officials were not holding analogous posts. The first respondent was aggrieved over these orders of deputation as they were in violation of the Recruitment Rules prescribed for the post of Deputy Commissioner (CT). The petitioners instead of filling up the vacancy by way of promotion from amongst the available Assistant Commissioners (CT), had filled up the only vacancy of Deputy Commissioner (CT) by way of a mere transfer and posting that too with ineligible officers of Puducherry Civil Service. The transfer/deputation of these officers of Puducherry Civil Service was not approved by Civil Services Board as mandated. The first respondent approached the Central Administrative Tribunal, Madras Bench, in O.A.No.1449/2016 against this unfair treatment meted out to him. In the order dated 13.11.2019 by the Central Administrative Tribunal, Madras Bench, the petitioners were directed to consider the name of the first respondent for the post of Deputy Commissioner (CT) as per the existing Recruitment Rules by treating the appointment to the post of Assistant Commissioner (CT) as regular and pass orders. This order was challenged in the present petition.
Contentions of the Petitioner:
The learned counsel for the petitioners (in W.P.No.5458/2020) contended that the first respondent, Mr. Raje Saker was never eligible for the promotion to the post of Deputy Commissioner (CT) and his first promotion to the post of Assistant Commissioner (CT) with effect from 25.06.2001 itself was purely on adhoc basis. The requirement of promotion to Deputy Commissioner (CT) was eight years of combined regular service as Commercial Tax Officer and Assistant Commissioner (CT). As he had not fulfilled this criterion, he was ineligible, it was contended. Furthermore, it was also contended that the Recruitment Rules had categorically stated that the post of Deputy Commissioner can be filled up by 'promotion failing which by transfer on deputation' and it was the prerogative of the petitioners to adopt a method and find a suitable officer. The first respondent was also junior to other Assistant Commissioners. It was also contended that since a Puducherry Civil Service Officer was posted as Deputy Commissioner (CT), Union Public Service Commission (UPSC) need not be consulted.
Contentions of the Respondent:
The first respondent, Mr. Raje Saker (in W.P.No.5458/2020), highlighted the following aspects:
- Both Kumar and Srinivas were posted as Deputy Commissioners (CT) one after another by way of a simple administrative order of transfer though there were other eligible Assistant Commissioners (CT) in waiting.
- The act of the petitioners was clearly a discriminating one violating the fundamental rights of the first respondent as enshrined in Articles 14 & 16 of the Constitution of India.
- Both Kumar and Srinivas did not hold analogous posts in the Puducherry Government and therefore, were ineligible to be considered right away for the post of Deputy Commissioner (CT).
- No consultation was made with the UPSC while posting them in the Deputy Commissioner (CT) post.
- The G.O.Ms.No.14/CT/17-18 dated 07.07.2017 and G.O.Ms.No.6 dated 16.01.2018 were issued only to circumvent the rules and the Lieutenant Governor was not empowered to create a new level in the pay matrix as defined by the Fifth Central Pay Commission.
- The newly created post of Commissioner of State Tax requires rules to be framed under Article 309 of the Constitution of India and without any rules it cannot be operated upon. Neither the concurrence of the UPSC nor the approval of the Council of Ministers was obtained for creation of posts and therefore, the two G.O. Ms fail.
According to him in such circumstances, the order of the Central Administrative Tribunal, Madras Bench, has to be upheld and besides that, the impugned G.O. Ms also need to be set aside, it was argued.
Observations of the Court:
After careful analysis of all the relevant papers and documents in this case, the court remarked that it was ironical that M. Raje Saker was claiming that only a Commercial Tax Officer cadre person can deliver and live up to the expectations of the Department. Very ironically, he himself functioned as Managing Director of Puducherry Co-operative Sugar Mills and subsequently as Deputy Director of Enforcement. The court further held that all the three assignments require different skills and therefore, the contention of M. Raje Saker can’t be accepted. As regards the equivalence of posts which Kumar and Srinivas were holding when they were asked to take charge as Deputy Commissioner (CT), the court acknowledged that nothing had been provided by the Mr. Saker, the first respondent to substantiate his contentions. The court further held that consultation with UPSC, according to the petitioners, was not required as both Kumar and Srinivas belong to Puducherry Civil Services cadre.
The court accepted the petitioners’ reasoning that Mr. Saker was excluded from the promotion since he had not completed the required service period as a regular Assistant Commissioner (CT). It appeared to the court that there was no discrimination against the first respondent. The court expounded that such policy decisions taken by the Government cannot be questioned if it does not find support amongst a section of employees. According to the judges, government policies are made keeping the welfare of the people at large in mind and if one starts pointing out holes in such policy decisions there would be no end to it.
Thus, the bench did not find any merit in the reasoning made out in the Central Administrative Tribunal’s order. As per the bench, it did not take a holistic view of the subject and instead harped on certain Court decisions questioning the prolonged status of the employees in the ad-hoc cadre.
The decision of the Court:
With the aforementioned observations, W.P.No.5458/2020 was allowed and W.P.No.8290/2020 was dismissed. The orders of the Central Administrative Tribunal, Madras Bench dated, 13.11.2019 made in O.A.No.1449/2016 were set aside.
Case Title: The Union Territory of Puducherry and anr. vs M. Raje-Saker and others;
M. Raja-Saker vs The Union of India and others (batch cases)
Coram: Justice V.M. Velumani and Justice R. Hemalatha
Case No.: W.P. Nos. 5458 & 8290 of 2020 and W.M.P. Nos. 6387 & 9933 of 2020
Advocate for the Petitioners:
In W.P. No. 5458 of 2020:
Mr. R. Syed Mustafa
In W.P. No. 8290 of 2020:
Mr. Satish Parasaran
Advocate for the Respondents:
In W.P. No. 5458 of 2020:
Mr. Satish Parasaran (R1)
Mr. V. Vijay Shankar (R4)
In W.P. No. 8290 of 2020:
Mr. K. Srinivasamurthy (R1)
Mr. R. Syed Mustafa (R2 and R3)
Mr. V. Vijay Shankar (R5)
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