K. Rajan
Vs. State of T.N [1993] INSC 115 (3 March 1993)
Ray,
G.N. (J) Ray, G.N. (J) Reddy, K. Jayachandra (J)
CITATION:
1994 SCC Supl. (1) 119 JT 1993 Supl. 80 1993 SCALE (1)764
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by G.N. RAY, J.- Leave granted.
2.Pursuant
to the notice given on the special leave petition, the learned counsel for the
respondent-State of Tamil Nadu and another have appeared and have also filed
counter-affidavit. At the hearing, the learned counsel for the parties have
also made submissions. The appeal is directed against the decision of the Tamil
Nadu Administrative Tribunal on September 17, 1991 disposing of the Writ
Petition No. 5717 of 1988 received from the High Court of Tamil Nadu Section 29
of the Administrative Tribunals Act and renumbered as T.A. No.11 of 1988.
3.The
appellant, Shri K. Rajan, joined the Commercial Taxes Department as a Joint
Commercial Tax Officer in the year 1966. He was promoted as Commercial Tax
Officer in 1972. It is the case of the appellant that right from 1972 he was
denied further promotions although his juniors were given promotion. The
appellant has also contended that in the selection test for appointment to the
post of Joint Commercial Tax Officer he topped the list and he has a good
academic career but his promotion was unjustly denied as he incurred the
displeasure of the higher authorities. In 1978, he moved Writ Petition No. 4599
of 1978 in the High Court of Madras praying for a writ of mandamus directing
the respondents to promote him to the post of Deputy Commissioner. The learned
Single Judge, however, dismissed the writ petition and the appellant thereafter
preferred an appeal before the Division Bench being Writ Appeal No. 315 of
1982. Such appeal was allowed by the Division Bench of the Madras High Court on
July 17, 1986 and the Division Bench directed the respondents to give the
appellant retrospective promotion from 1976 with all attendant monetary benefit
and to give further promotion to the appellant if such promotion had been due
to him. In view of such direction of the High Court, the administration passed
necessary orders of promotion with retrospective effect from 1976 promoting the
appellant as Assistant Commissioner and thereafter as Deputy Commissioner with
effect from December 3, 1986 without prejudice to the rights and contentions of
the State Government to take appropriate course of action on the basis of the
decision to be rendered by this Court in the special leave petition moved
against the decision of the Division Bench of the Madras High Court. It appears
that this Court passed an ex parte stay in favour of the department in the
special leave petition. Such special leave petition was disposed of on March
12, 1987 by directing that the State Government should consider the question of
promotion of the said Shri Rajan to such promotional post to which he would be
eligible and that the promotion would take effect prospectively. It was further
indicated in the judgment of this Court that in modification of the judgment of
the High Court the promotion would take effect from the date on which the
necessary orders would be passed. This Court also gave liberty to the
appellant, Shri Rajan, to make representation to the State Government in the
matter of inter se seniority when he would be given promotion.
4.The
appellant thereafter moved another writ petition in the Madras High Court being
Writ Petition No. 5717 of 1988 inter alia contending that despite the 121
decision of the Division Bench of the Madras High Court since modified by this
Court in the special leave petition as stated hereinbefore the respondents
failed and neglected to give effect to the said decisions rendered in his favour
by denying him due promotions and appropriate seniority.
Such
writ petition, however, was transferred to the Tamil Nadu Administrative
Tribunal and the said writ petition was renumbered as T.A. No. 11 of 1988. The
appellant's main contention before the Administrative Tribunal was that since
the post of Commercial Tax Officer was upgraded as Assistant Commissioner of
Commercial Taxes, he automatically became Assistant Commissioner of Commercial
Taxes. Thereafter, if any promotion was due to him, such promotion was to be
given to the post of Deputy Commissioner which is a promotional post from the
post of Assistant Commissioner of Commercial Taxes. The appellant contended
that despite his brilliant performances and securing the first position in the
merit list at the time of entering the service as Joint Commercial Tax Officer,
he had been denied his promotion and had been compelled to work in the
department as Commercial Tax Officer although a large number of officers who
were junior to the appellant, had been promoted as Assistant Commissioner of
Commercial Taxes and thereafter many of them had also been promoted as Deputy
Commissioner of Commercial Taxes. The appellant contended that some
departmental proceedings were mala fide initiated against him and such
proceedings were deliberately kept pending against him so as to deny him his due
promotion. The respondents, however, contended that the appellant, Shri Rajan,
had been laboring under a misconception and had been erroneously contending
that the post of Commercial Tax Officer has been re- designated as Assistant
Commissioner of Commercial Taxes and as such he had also been redesignated as
Assistant Commissioner of Commercial Taxes. Hence, if any promotion is to be
given to the said appellant, he is to be promoted to the post of Deputy
Commissioner. The respondents contended that the posts of Commercial Tax
Officers were not redesignated as Assistant Commissioner of Commercial Taxes.
Out of
47 posts of Commercial Tax Officers only 37 posts were upgraded to the post of
Assistant Commissioner of Commercial Taxes. Such post of Assistant Commissioner
of Commercial Taxes is a higher post with higher pay scale attached to it. The
cases of the eligible Commercial Tax Officers were considered and on such
consideration they were promoted to the said 37 upgraded posts. Since there
were number of allegations against the appellant Shri Rajan, and enquiries had
been pending against him, he was not considered fit for promotion to the said
upgraded post. It was contended by the respondents that pursuant to the
direction of this Court in disposing of the said special leave petition, the
case of the appellant was taken into consideration and he was given promotion
to the post of Assistant Commissioner of Commercial Taxes. In the aforesaid
circumstances, there was no occasion to give him a further promotion of Deputy
Commissioner automatically and the question of promotion to the higher post of
Deputy Commissioner would be considered as and when the promotion would be due
to the appellant.
5.The
Administrative Tribunal, Tamil Nadu accepted the said contention of the
respondents and dismissed the said T.A. No. 11 of 1988, vide judgment passed on
September 17, 1991. The Tribunal held that the
appellant was not justified in contending that the post of Commercial Tax
Officer held by him had 122 been upgraded as the Assistant Commissioner of
Commercial Taxes and because of such upgradation he automatically became
Assistant Commissioner of Commercial Taxes and consequently eligible for
promotion to higher post. As aforesaid, this appeal is directed against such decision
of the Administrative Tribunal.
6.Mr
S.K. Patri, learned counsel for the appellant, has submitted that the
directions of the Division Bench of the Madras High Court were not set aside
but this Court in disposing of the special leave petition has only modified the
decision of the Division Bench of the Madras High Court to the extent that
promotion of the appellant was not to be given with retrospective effect from
1976, but such promotion was to be given prospectively with effect from the
date when the order will be passed. This Court has not held that the appellant
was not entitled to get the promotion to the post of Deputy Commissioner and it
has also not been indicated by this Court that he was only entitled to get
promotion to the post of Assistant Commissioner of Commercial Taxes from a
prospective date. The learned counsel has contended that the decision of this
Court in disposing of the special leave petition is sought to be wrongly
construed by the department in order to deny the legitimate promotion due to
the appellant. He has submitted that the Division Bench of the High Court of
Madras clearly held that in order to deny legitimate promotion due to the
appellant, the question of promotion of the appellant had been kept pending for
years and the High Court also held that there was no bar in giving promotion to
the appellant despite the pendency of such departmental enquiry. Such finding
of the High Court not having been specifically reversed by this Court, it must
be held that the said finding has been upheld by this Court. Therefore, the
appellant was entitled to be treated as Assistant Commissioner of Commercial
Taxes in view of the up gradation of Commercial Tax Officer. The appellant is,
therefore, entitled to get further promotion as Deputy Commissioner of
Commercial Taxes, more so, when a number of juniors to the appellant had been
given such promotion. Mr Patri has contended that even assuming that all the 47
posts of Commercial Tax Officers were not upgraded to the posts of Assistant
Commissioner of Commercial Taxes, in the facts and circumstances of the case,
the denial of promotion to the appellant to the upgraded post of Assistant
Commissioner of Commercial taxes on the footing of pendency of enquiry
proceedings was unjust and mala fide as held by the High Court and the
respondents are, therefore, under an obligation to give the appellant the
promotion to the post of Assistant Commissioner of Commercial Taxes when his
juniors were promoted in order to do justice to the appellant. He has submitted
that the learned Tribunal has misconceived the facts and circumstances of the
case and the decision rendered by the learned Tribunal has resulted in a gross
miscarriage of justice to the appellant.
7.The
learned counsel for the respondents has, however, submitted that the appellant
had been laboring under a misconception that the post of Commercial Tax Officer
had been upgraded to the post of Assistant Commissioner of Commercial Taxes and
in view of such upgradation he automatically became Assistant Commissioner of
Commercial Taxes. Such assertion is factually incorrect. Only 37 posts of
Commercial Tax Officers were upgraded to the superior post of Assistant
Commissioner of Commercial Taxes drawing higher scale of pay. The post of
Assistant Commissioner of 123 Commercial Taxes is superior post to the post of
Commercial Tax Officer and the said post is the promotional post for the
Commercial Tax Officer. He has also contended that the appellant cannot claim
promotion to a higher post as a matter of right simply because he was senior in
the grade or had done better in the selection test for being recruited in the
grade.
8.When
37 posts of Commercial Tax Officers were upgraded the case of eligible officers
were considered by the department but as there were complaints against the
appellant and enquiries on such complaints were pending, he was not considered
fit for promotion to the upgraded post.
Learned
counsel for the respondent has submitted that the departmental proceedings have
since been concluded and minor punishment has been awarded to the appellant.
The question of promotion has been considered and the appellant has been given
promotion to the next higher grade, namely to the post of Assistant
Commissioner of Commercial Taxes. He has submitted that the decision of the
Division Bench of the High Court has not been approved by this Court in the
special leave petition. It was only directed by this Court that the appellant
should be given promotion with effect from prospective date. Such direction of
this Court has been complied with. The appellant is not entitled to any further
promotion, as claimed by him. He has submitted that the learned Tribunal has
correctly appreciated the facts of the case and has dismissed the case of the
appellant on cogent reasons. Hence, no interference is called for by this Court
against the impugned decision of the learned Tribunal.
9.After
giving our anxious consideration to the facts and circumstances of the case it
appears to us that the contention of the appellant that he became Assistant
Commissioner of Commercial Taxes in view of the upgradation of the post is not
correct. All the posts of Commercial Tax Officers had not been upgraded but
only 37 posts of Commercial Tax Officers were upgraded and promotions to the
upgraded posts of Assistant Commissioner of Commercial Taxes were given to
eligible officers on considering their service records. It appears that as
there were various complaints against the appellant and enquiries had been
pending against him, the concerned authority did not consider him fit to be
promoted to the upgraded posts. There is force in the contention of the learned
counsel for the respondent that the appellant cannot claim promotion as a
matter of right.
It is
true the appellant has a good academic record and he also secured the first
position in the selection test for entering the service of the Joint Commercial
Tax Officer but such fact by itself does not entitle the appellant to claim
departmental promotion as a matter of course because such promotion is to be
given in consideration of merit and performance. It is unfortunate that the
departmental proceedings against the appellant had been kept pending for long.
Such proceedings have since been concluded and the appellant has been given minor
punishment in such departmental proceedings. The case of the appellant has been
considered for the promotion to the next higher post and he has been given
promotion as Assistant Commissioner of Commercial Taxes which is the higher
post. The department has contended that the question of further promotion of
the appellant to the next higher post namely the post of Deputy Commissioner
will be considered. In the aforesaid facts the direction of this Court has been
complied with. As the appellant was not found eligible to be promoted to the
upgraded post of Assistant Commissioner of Commercial Taxes the question of
giving promotion 124 to next higher grade to the petitioner as a matter of
course did not arise. No interference is therefore called for against the
decision of the Tribunal and the appeal therefore fails and is dismissed
without any order as to costs.
10.We
may however observe that the appellant has suffered substantial prejudice
because the departmental proceeding had been kept pending for long as a result
of which he was not considered fit for promotion to the post of Assistant
Commissioner. In the facts of the case, it appears to us that it is only
desirable that the concerned authorities should consider the case of the
appellant for further promotion to the post of Deputy Commissioner as early as
practicable with such sympathy as the appellant may deserve.
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