T.N. Sankarasundaram vs The Director of Stationery and Printing and Others

S. Padmanabhan, J.—The petitioner was recruited as Assistant Works Manager in the Government Press, Madras on 26th September,

1969. The petitioner is senior to respondents 3 and 4. On 5th July, 1976, the 3rd respondent was promoted as Deputy Works Manager

overlooking the claims of the petitioner. At this stage it may be mentioned that certain adverse entries were made in the confidential file of the

petitioner for the period 10th November, 1969 to 31st March, 1972 and for the years ending 31st December, 1974 and 31st December, 1975.

The petitioner filed two writ petitions T.N. Sankarasundaram v. State of Tamil Nadu, represented by the Secretary to Government Transport

Department, Fort St. George, Madras-9 and Ors. W.P. Nos. 2429 and 2430 of 1976, on the file of this Court for directing the Director of

Stationery and Printing, Madras, to expunge the adverse remarks entered in his personal file for the particular period and to direct the State

Government to give effect to the list of Assistant Works Manager published by the Government no 1st April, 1976. These writ petitions were

dismissed in limine by Mohan, J., by his judgment, dated 18th June, 1976 holding that a petition under Article 226 would not be maintainable for

enforcing administrative instructions and for expunging the remarks made in the personal file. Thereafter, the petitioner made representations to the

Government for expunging the adverse remarks. By Memorandum No. 27537/D1/78-11, Transport, dated 26th August, 1978, the Government

rejected the representations filed by the petitioner on the ground that it saw no reason to expunge the adverse remarks. On 2nd September, 1978,

the Government issued memorandum No. 41235/D1/78-2, reverting the petitioner from the post of Temporary Deputy Works Manager to the

post of Assistant Works Manager. The petitioner then filed T.N. Sankarasundaram v. The Director of Stationery and Printing, Madras-1 and Anr.

W.P.No. 3597 of 1978 to quash the order of reversion, dated 2nd September, 1978 on the ground that the order of reversion amounted to a

punishment and therefore, bad inasmuch as the provisions of Article 311 of the Constitution of India had not been complied with. The writ petition

was allowed by Nainar Sundaram, J., by the judgment, dated 10th February, 1981. The learned Judge came to the conclusion that tm the facts

and circumstances placed before him the order of reversion amounted to an order of punishment and could not be equated to an order of reversion

simpliciter passed in the ordinary routine administration or because of exigencies of service. The petitioner has now filed this writ petition praying

for the issue of a writ of mandamus directing the 1st respondent-Director of Stationery and Printing and the 2nd respondent, the State

Government, to give regular promotion to the petitioner to the post of Deputy Works Manager with Seniority above his immediate junior, A.R.

Abdul Salam, third respondent herein.

Respondents 1 and 2 have filed a counter-affidavit in which they have stated that the counter-affidavit filed by the respondent in W.P. No. 3597

of 1978 disposed of by Nainar Sundaram, J., by his judgment, dated 10th February, 1981 might be treated as the counter-affidavit in this case as

well.

Mr. Ramalingam, the learned Counsel for the petitioner advances the following contentions : (1) The adverse entries made in the personal file of

the, petitioner were not properly communicated to him as required by the instructions issued by the Government. The authorities are bound to

communicate the adverse entries in the month of February every year. In the instant case, the adverse entries were merely shown to the petitioner

in April, 1976. The adverse entries that were shown were the entries made for the years 1969 to 1972, 1974 and 1975. The failure on the part of

the authorities to conform to the instructions issued by the Government in the matter of communication of adverse entries greatly prejudiced the

petitioner. If only he, had been informed of the adverse entries in the month of February each year according to the instructions of the Government,

he would have been in a position to make necessary representations to the Government at the appropriate time and obtain relief. By the time, the

adverse entries were shown to the petitioner, the authorities had already made up their minds to promoter the 3rd respondent as Temporary

Deputy Works Manager. The Government Order did not give any reasons why the representations made by the petitioner should be rejected. (2)

Assuming without admitting that the adverse entries were properly made in the personal file, argued Mr. Ramalingam, such entries would not in any

way stand as a bar to the promotion of the petitioner as Deputy Works Manager. The order of reversion of the petitioner as Assistant Works

Manager pursuant to the adverse entries has already been quashed by Nainar Sundaram, J. in W.P. No. 3597 of 1978. (3) The post of Deputy

Works Manager is not a selection post. Only in the matter of promotion to a selection post, the question of merit and ability will arise, and the

seniority of a person will come into play when merit and ability are equal in the matter of promotion to a non-selection post, and a Government

servant will be entitled to promotion as a matter of right by virtue of his seniority notwithstanding the fact that there are certain adverse entries in the

personal file. In such cases, promotions can be denied only as a matter of punishment. The other circumstance in which seniority can be

overlooked in such cases will be where a junior, officer is promoted on grounds of exceptional merit. These two conditions being absent in the

instant case, Mr. Ramalingam vehemently urges that the petitioner is entitled to be promoted as Deputy Works Manager, notwithstanding the

adverse entries in the confidential report.

Mr. Jagadeesan, the learned Government Advocate, no doubt, referred to the counter-affidavit filed by respondents 1 and 2 in W.P. No. 3597

of 1978 and stated that the post of Deputy Works Manager is a selection post. However, when confronted with the specific question from the

Court to point out as to the rule which made the post of Deputy Works Manager a selection post, the learned Government Advocate was not in a

position/ to point out any such rule. On the other hand, by the circumstances of the situation, he was compelled to admit that there was no such

rule. When once it is accepted that the post of Deputy Works Manager was not a selection post, then the learned Government Advocate found

himself unable to meet Mr. Ramalingam''s contention that in the case, of non-selection post promotion had to come on the basis of seniority without

reference to confidential report entries subject to the exceptions contained in Rule 36(b)(2) of the Tamil Nadu State and Subordinate Service

Rules.

Mr. Sukhandharaj, learned Counsel for respondents 3 and 4 contended that the petitioner was precluded from filing this writ petition by reason

of the, fact that he had filed W.P. No. 2429 of 1976 for expunging the adverse entries against him and for giving effect to the list of Assistant

Works Managers. The learned Counsel further argued that the post of Deputy Works Manager is a selection post and merit and ability alone

would be the criteria for a person being appointed as Deputy Works Manager. In the instant case, according to Mr. Sukhandharaj, the

comparative merits of the petitioner and respondents 3 and 4 had been assessed by the 1st respondent and respondents 3 and 4 have been

chosen. In the circumstances, this Court cannot sit in judgment over the assessment of merit and ability by the 1st respondent as respects

respondents 3 and 4.

I shall first take up for consideration the second of the contentions advanced by Mr. Ramalingam even though I am of the opinion that both the

contentions urged by the counsel are well-founded. My attention has not been drawn, as I have already stated, by the learned Government

Advocate to any rule in the Madras Stationery and Printing Service Rules to the effect that the post of Deputy Works Manager is a selection post

in the sense that promotion as Deputy Works Manager shall be made only on grounds of merit and ability, seniority being considered only where

merit and ability are approximately equal. Mr. Sukhandharaj, learned Counsel appearing for the respondents 3 and 4, however, invites my

attention to Rule 4(e) which reads as follows:

Promotion as Works Manager, Government Press, or as Junior Deputy Works Manager, Government Press shall be made on grounds of merit

and ability, seniority being considered only where merit and ability are approximately equal.

I am unable to understand how this rule has any application to the case of promotion to the post of Deputy Works Manager. In fact, it is seen from

the rules that have been given to me by Mr. Sukhandharaj that the posts of Deputy Superintendents have been designated as Junior Deputy Works

Managers. The rules therefore, make a clear distinction between a Deputy Works Manager and Junior Deputy Works Manager. Rule 4(e) cited

before us by Mr. Sukhandharaj does not refer to the Deputy Works Manager. My attention has not been drawn to any other rule which states that

promotion to the post of Deputy Works Manager shall only be on the basis of merit and ability, seniority being considered only where merit and

ability are approximately equal. This is precisely the reason why the learned Government Advocate found himself unaible to lay his finger on any

particular rule in the Madras Stationery and Printing Service Rules to the effect that the post of Deputy Works Manager is a selection post. 1,

therefore, hold that the post of Deputy Works Manager is not a selection post and that promotion to the post is by seniority. When once it is found

that the office of Deputy Works Manager is not a selection post, then we are driven to rule 36 of the Tamil Nadu State and Subordinate Service

Rules as regards promotion. Rule 36(b)(i) of the said Rules deals with promotion to Selection Category or Grade. Rule 36(b)(ii) deals with

promotion according to seniority. The said Rule reads as follows:

36(b)(ii). Promotion according to seniority.--AH other promotions shall be made in accordance with seniority unless-

(1) the promotion of a member has been withheld as a penalty; or

(2) a member is given special promotion for conspicuous merit and ability.

The learned Government Advocate was not able to show that the petitioner falls under Rule 36(b)(ii) of the Tamil Nadu State and Subordinate

Service Rules, and therefore, he is not entitled to promotion. Equally, neither the learned Government Advocate nor Mr. Sukhandharaj, learned

Counsel for the respondents 3 and 4, was able to convince me that once it is found that the office of Deputy Works Manager is non-selection post,

promotion can be denied to the petitioner merely on the basis of certain adverse entries in his personal file. I, therefore, further hold that

notwithstanding the adverse entries in the personal file of the petitioner, the petitioner will be, entitled to be considered for promotion on the basis

of his seniority as on the date the 3rd respondent who is admittedly the petitioner''s junior was promoted as Deputy Works Manager inasmuch as,

admittedly, the petitioner''s case does not fall within the exceptions under Rule 36(b)(ii) of the General Rules. This finding is subject to the reasons

on the basis of which I am rejecting the contention of Mr. Sukhandharaj that the writ petition is not maintainable by virtue of W.P. No. 2429 of

1976.

The contention of Mr. Sukhandharaj, learned Counsel for respondents 3 and 4 is the writ petition is not maintainable for the reason that the

petitioner filed Writ Petition Nos. 2429 and 2430 of 1976, for the identical reliefs and they were dismissed. In this connection, the learned Counsel

drew my attention to the averment in paragraph 10 of the affidavit. The prayers in the two writ petitions filed earlier by the petitioner were for

expunging the adverse remarks from his personal file and for directing the authorities to give effect to the list of Assistant Works Managers.

Mohan, J., dismissed the writ petitions at the stage of admission. According to the learned Judge, the contention that was urged before him was

that the executive instructions regarding the communication of adverse entries in the month of February every year had been violated and the

petitioner was shown a consolidated entry for the two periods in 1976. The learned Judge took the view that even though there was a violation of

the concerned Government Order, the failure on the part of the authorities to follow the executive instructions would not give the petitioner a cause

of action to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. In my opinion, the above decision does not bar the

petitioner from maintaining the present writ petition for two reasons. Firstly, respondents 3 and 4 herein were not parties to those writ petitions.

The right inter se between respondents 3 and 4 and the petitioner was not the subject-matter of the decision before Mohan, J. Secondly, the earlier

writ petitions were filed by the petitioner immediately after he came to know of the adverse entries in 1976. After the dismissal of the writ petition

by Mohan, J., the petitioner made his representation to1 the Government for expunging the adverse entries. The Government rejected the said

representation. The rejection of the representation filed by the petitioner gave him a fresh cause of action. This cause of action was not available to

the petitioner at the time when Mohan, J., dismissed1 the earlier writ petitions, because the representation was made by the petitioner and the

order of the Government was passed only subsequently. There is the further fact that in this writ petition, the petitioner does not specifically seek to

expunge the adverse entries. The prayer is that he should be directed to be promoted1 as Deputy Works Manager. Hence I find that the writ

petition is maintainable. One of the arguments advanced in support of the writ petition is that the order passed by the Government refusing to

expunge the remarks was bad and the adverse entries themselves cannot be taken into account against him because they were not communicated

according to the Government Order. In this connection, Mr. Ramalingam drew my attention to G.O.M.S. No. 3203, Public (Services)

Department, dated 25th November, 1968 and G.O.Ms. No. 2033, Public Services Department, dated 3rd September, 1970. A perusal of these

Government Orders will make it clear that the object which impelled1 the Government to issue the said Government Orders was that the

Government servants should be made aware of adverse entries against them at least once in every year so that they will not be adversely affected

in their career and that the future of their service may not be affected. Consequently, the procedure prescribed by the Government for

communicating the adverse entries is in the interest of the Government servants concerned. The Government is bound to follow its own instructions

and it will not be open to it to say that it has merely issued the administrative instructions and that the same can be violated even though the

violation of the procedure may adversely affect the Government servant. Therefore, there is great force in the argument of Mr. Ramalingam which

is based on the decision of the Supreme Court in Union of India (UOI) Vs. K.P. Joseph and Others, ., to the effect that it cannot be generalised

that no administrative order can be challenged which will adversely affect the Government servant. Mr. Ramalingam farther contended that

inasmuch as this writ petition is based entirely on a new cause of action, the finding of Mohan, J., in a judgment at the stage of admission that a

Government servant cannot invoke the jurisdiction of this Court under Article 226 of the Constitution in all cases where administrative instructions

are violated, is not correct and will not be binding on the petitioner as a precedent in this case. However, in view of the conclusion reached by me

that this writ petition, based entirely on a new cause of action, is not barred by the dismissal of the earlier writ petitions, and that the petitioner will

be entitled to promotion notwithstanding the adverse remarks against him, it is unnecessary for me to express a final opinion on the question as to

what extent the jurisdiction of this Court can be invoked when executive instructions are violated by the authorities concerned.

Before I conclude, one other aspect that has to be touched is that the appointment of respondents 3 and 4 was only temporary under Rule 39.

Therefore, respondents 3 and 4 cannot have any right to the post. The petitioner is certainly entitled to be considered to be promoted as Deputy

Works Manager as on the date respondents 3 and 4 were promoted in 1976. It will, of course, be open to respondents 1 and 2 to retain

respondents 3 and 4 if they are to do so after providing for the petitioner.

Subject to the above observations, the writ petition is allowed, and the rule nisi is made absolute. There will however, be no order as to costs.