R. Devaraju, v. The Management Of

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.09.2022

CORAM

THE HONOURABLE MRS.JUSTICE S.SRIMATHY and M.P.(MD)No.1 of 2014 R.Devaraju ... Petitioner vs.

1.The Management of Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Trichy-Region, represented by its Managing Director, Trichy.

2.V.Nagaraj ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Declaration, to declare that the action of the 1st respondent in giving 2nd renew / designation of Selection Grade Driver and 3rd review/designation of Special Grade Driver to the 2nd respondent with effect from 01.05.1998 and 01.05.2003 respectively by condoning the periods of his absence 1/16

from duty and LLPS and counting the same as his duty/service period for increments and review and also in giving him promotion to the post of Driving Instructor with effect from 22.03.2013 as illegal and consequently, to set aside the same and to direct the 1st respondent to give promotion to him and others to the post of Driving Instructor based on seniority of Special Grade DriversLevel-6/Special Grade Drivers-Level 5/Special Grade Drivers-Level 4 in accordance with the rules in force.

For Petitioner : No appearance For R1 : Mr.D.Sivaraman *****

O R D E R

This writ petition is filed for issuance of a writ of Declaration, to declare that the action of the 1st respondent in giving 2nd review / designation of Selection Grade Driver and 3rd review/designation of Special Grade Driver to the 2nd respondent with effect from 01.05.1998 and 01.05.2003 respectively by condoning the periods of his absence from duty and LLPS and counting the same as his duty/service period for increments and review and also in giving him promotion to the post of Driving Instructor with effect from 22.03.2013 as illegal 2/16

and consequently, to set aside the same and to direct the 1st respondent to give promotion to him and others to the post of Driving Instructor based on seniority of Special Grade Drivers-Level 6/Special Grade Drivers-Level 5/Special Grade Drivers-Level 4 in accordance with the rules in force.

2. The petitioner joined the first respondent corporation on 13.07.1989. The first respondent follows a scheme called "Longevity Pay Scheme or Time Bound Promotion Scheme". Under the scheme, 5 reviews along with grades/designations would be given at the interval of 6 + 7 + 8 + 8 + 3 years from the date of appointment of the employee. The time bound promotion would be decided by a committee consisting of 3 Officers and the committee will sit at the end of every 3 months and review the records of the employees. The contention of the petitioner is that the respondents have given 3 reviews designated special grade with effect from 01.05.2012. In spite of "three time bound promotions", the petitioner was still continuing as Driver. The second respondent herein was appointed on 10.10.1981 and belongs to a trade union called Anna Thozhirsanga Peravai. The 3/16

contention of the petitioner is that the vacancy in the post of Driving Instructor arose and the same were to be filled up. The petitioner and some other persons were eagerly awaiting to be promoted as Driving Instructor, but the first respondent neither issued seniority list nor issued a panel for promotion. Surprisingly, the first respondent promoted 4 Drivers, with respect of Driving Instructor from 22.03.2013. The second respondent was one among them and his promotion created bitter discontent among the workers and Trade Unions except the Union, the second respondent belongs to.

3. The further contention of the petitioner is that the second respondent was not at all qualified, since he was continuously absenting from duty for years together and he had not earned any review benefits. The minimum qualification to be considered to the post of Driving Instructor is the person should have at least 3 review benefits. For the second respondent, the second review was postponed and the was not given to him until 31.01.2013. The second respondent joined the service on 10.10.1981 and he could have earned the first review at the end of 4/16

1987 but he received the first review only on 01.05.1989 due to his absence from duty. He was on loss of pay for 140 days, therefore, the first review was postponed by one year. The second review ought to have been granted only in 1996 but the second review was also postponed because of loss of pay, thereby, the second respondent had not worked the required number of days within the review period of 7 years from 1989. The second respondent was continuously absenting from duty for years together from January 1998 onwards, hence the second respondent is not eligible. However, the first respondent has granted the said promotion and the first respondent has not considered the petitioners candidature and granted promotion. Aggrieved over the same, the present writ petition is filed.

4. The first respondent has filed a counter affidavit stating that the writ petition is not maintainable. On facts the respondents submitted that the petitioner joined the service from 13.07.1989 and the second respondent joined the service on 10.10.1981. The respondent had submitted a comparative chart and the same is 5/16

extracted hereunder:

Petitioner 2nd respondent Designation Date of appointment / review Appointment 13.07.1989 10.01.1981 Driver 1st review 01.08.1995 01.05.1989 Senior driver 2nd review 01.02.2005 01.05.1998 Selection Grade Driver 3rd review 01.05.2012 01.05.2006 Special Grade Driver The first respondent issued a seniority list of Special Grade Driver during the month of March 2013 containing the names of 28 drivers for the post of Driving Instructor for 4 vacancies in which the petitioner's name was in Serial No. 29 in the seniority list. The 1st respondent has extracted the first seven persons service details and the same is extracted hereunder:

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Sl.

No Name and St.No Date of Birth Date of Joining Date of Probation Date of Confirm Porbation Date of Rev-I Date of Rev-II Date of Rev-III Date of Rev-IV Date of Retirement Anbalagan.M St.No.3334 and PBR 79DR2034 05.06.1955 20.12.1979 01.01.1981 01.07.1981 01.02.1986 01.02.1994 01.02.2001 01.02.2009 30.06.2013 Rajendran.K.

St.No.3251 and MNP 79 DR 10.05.1955 01.06.1979 01.06.1980 01.12.1980 01.02.1986 01.08.1995 01.02.2004 31.05.2013 Palanikumar.

P.

St.No.3606 and HO 83DR2001 05.04.1955 19.01.1983 01.02.1984 01.02.1985 01.05.1989 01.05.1997 01.05.2004 01.05.2012 30.04.2013 Radhakrishna n.K.

St.No.3633 and DCN (T) 83 DR2015 20.09.1958 18.06.1983 01.07.1984 01.01.1985 01.08.1989 01.11.1997 01.02.2005 30.09.2016 Selvaraj.R St.No.4288 and HO84 DR 2020 21.06.1961 12.07.1984 04.05.1985 04.05.1985 01.11.1990 01 02.1999 01.02.2006 30.06.2019 Nagaraju.V St.No.3527 and TYR 81 DR 2062 05.01.1959 10.10.1981 01.02.1983 01.08.1983 01.05.1989 01.05.1998 01.05.2006 31.01.2017 Kandasamy.P S.No.3683 and KR-1 84 DR 29.05.1961 14.07.1984 14.07.1986 14.01.1987 01.11.1990 01.11.1998 01.08.2006 31.05.2019 7/16

Further, the first respondent submitted that the there are eligible persons above the petitioner. The petitioner is in serial number 29, there were eligible 28 persons in the seniority list and hence the petitioner is not even in the zone of consideration. Even if it is taken that the 2nd respondent is not entitled to, then there are other 27 persons who are in the zone of consideration and there was only 4 vacancies, in such circumstances the petitioner is not at all entitled to the promotion at all. Moreover, the Serial Nos. 1 and 4 were not willing to the said promotion. As far the person in Serial No. 2, the disciplinary proceedings were initiated against him and so he was disqualified. Hence, the selection committee recommended the remaining 4 employees whose names were in Serial Nos.

3, 5, 6 and 7 including the second respondent (who is in the Serial No.6) were granted promotion. The respondents further submitted that at the time of preparing the seniority list and the panel list for the Diving Instructor, there were only 2 Drivers who had received fourth review, of which the 1st person has expressed not willing. The third person received 4th review, remaining drivers received only 3rd review including the second respondent.

review, they were considered since there are no available persons who had received fourth review. But the petitioner was not even in the seniority list as he received 3rd review only in the year 2012. Therefore, the petitioner has no right to file this writ petition itself. As far as the allegation of long absence of the 2nd respondent is concerned, the 2nd respondent submitted an appeal to the appellate authority and the authority had condoned the absence and the period was regularized as duty period. The petitioner has alternative remedy to raise an industrial dispute before the appropriate forum. For all these reasons, the respondents prayed to dismiss the writ petition.

5. The petitioner had filed rejoinder to the Counter and has stated that the 2nd has not received any 2nd and 3rd review as on the date of 01.05.2006 and his name cannot be recommended. Moreover, the respondents admit that the petitioner was given 3rd review on 01.05.2012, but the petitioner's name was not found place in the seniority list for the month of 2013 is illegal and hence prayed 9/16

to allow the writ petition.

6. Heard Mr.D.Sivaraman, appearing for the first respondent and perused the records placed before this Court.

7. The 1st issue that was raised by the 1st respondent is that the petitioner is having an alternative remedy and he ought to raise an industrial dispute under Section 2(k) before the Industrial Tribunal. On perusing the records, it is seen that the writ petition is filed in the year 2014 and was kept pending all these years. Therefore, this Court is inclined to entertain this writ petition in the interest of justice.

8. The next plea that was raised by the 1st respondent is that the petitioner has no locus standi to file this writ petition. Since the petitioner is not an aggrieved party, he is absolutely stranger to the issue. For which the respondent relied on the seniority list containing 28 persons and in the said list, the 10/16

petitioner's name is in Serial No. 29. Even if the plea of the petitioner that the 2nd respondent is not eligible is accepted, then also the petitioner would not be eligible at all, because there are 27 other persons who are waiting in the seniority list and the petitioner is not in the zone of consideration. In such circumstances, the petitioner is a stranger to the issue raised in the writ petition and he is not an aggrieved person. For this the learned Counsel appearing for the 1st respondent relied on (1976) 1 Supreme Court Cases 671, wherein the Honourable Supreme Court has held as under:

37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons inter- fere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.

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38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of persons aggrieved'. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be "persons aggrieved".

39. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognized by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him title something or wrongfully refused him something, or wrongfully affected his to something?

Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?

9.On perusing the documents, the affidavit and the rejoinder of the writ petitioner and counter affidavit of the respondents and the judgment cited supra, this Court is of the considered opinion that based on the definition stated in the aforesaid judgment the petitioner will not fall under "person aggrieved". The petitioner is a stranger, the reason being the petitioner's name is in Serial No. 29 in the seniority list and the petitioner is not in the zone of consideration at all, hence he is not aggrieved at all and hence his claim cannot be considered.

10. The petitioner may claim that he has filed this petition as a Public Interest Litigation but it is a settled proposition that in service jurisprudence there cannot be a Public Interest Litigation and the same is not maintainable. Therefore this Court is of the considered opinion that on this count also, this petition is not maintainable and the petitioner has no locus standi to file this writ petition.

11. The next plea that was raised by the 1st respondent is on merits. The petitioner is not in the seniority list consisting of 28 persons. Even for argument 13/16

sake if it is taken that the 2nd respondent is not eligible, then also the petitioner will not be eligible, since there are 27 other persons before the petitioner in the seniority list. Therefore, on this count also the petitioner is not entitled to. Therefore, this Court is of the considered opinion that the petitioner fails on merits also.

12. The plea that the petitioner raised is that he received the third review on 01.05.2012 and he is eligible for consideration as on the date of consideration i.e. on 08.03.2013. This plea cannot be accepted since there are already 28 persons who received the third review prior to the petitioner. The Serial No. 3 received the third review on 01.05.2004, Serial No.5 received the third review on 01.02.2006, Serial No.6 received the third review on 01.05.2006 and Serial No.7 received the third review on 01.08.2006. Hence the plea of the petitioner that the petitioner had received the third review on the date of consideration is rejected.

13. The learned Counsel appearing for the 1st respondent submitted that 14/16

both the petitioner and the 2nd respondent retired from service in the year 2017. Therefore, this Court is of the considered opinion that the petitioner will not be entitled to any promotion notionally, since the petitioner has retired from service and he was not eligible at all at the time of his retirement as well. Therefore, this Court is of the considered opinion that no legal grounds were raised to consider the petitioner's plea.

14. For the above reasons, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Index : Yes / No 21.09.2022 Internet : Yes Tmg 15/16

S.SRIMATHY, J Tmg 21.09.2022 16/16