W.A.No.1334 of 2019

R.SURESH KUMAR, J.

and

K.KUMARESH BABU, J.

[Order of the Court was made by R.SURESH KUMAR, J.]

We have raised queries in our order dated 10.08.2023 to the following effect:

“6. If that being so, whether the 10 vacancies where under G.O.No.776 the first 10 people were given promotion on 29.02.2016 was from the already approved vacancies list and if so, such approved vacancy list shall be produced before this Court.  Thereafter, whether such approved vacancy list given within the meaning of Section 7 of the Tamil Nadu Government Servants (Conditions of Service) Act 2016 has been published also to be ascertained and reported before this Court.

7. For the aforesaid purpose, the learned Government Pleader seeks a week’s time. Post the matter on

18.08.2023.”

2. In response to the same, today when the case is taken up for hearing, Mr.R.Kumaravel, learned Additional Government Pleader appearing for the respondents has filed a written instructions given by the Section Officer, Public (Special-A) Department, Secretariat, Chennai –

600 009 dated 22.08.2023, where he has given the following instructions.

“The panel of Deputy Collectors fit for promotion as District Revenue Officers for the year 2015 consisting of 41 names was published in the G.O.Ms.No.226, Public (Special A) Department, dated 29.02.2026. The crucial date for the DRO panel for the year 2015 was 1.4.2015.

2. The petitioner, Thiru D.Jeyaram name was included as Sl.No.17 in the panel of District Revenue Officers for the year 2015 published in the G.O.Ms.No.226, Public (Special A) Department, dated 29.02.2026. The officers in the Sl.Nos.1 to 10 were promoted to DRO posts after obtaining orders from the Chief Minister and orders were issued in G.O.Rt.No.776, Public (Special A) Dept., dated 29.2.2016. No further promotion orders issued for the Deputy Collectors who have included in the DRO panel for the year 2015 up to 23.2.2017, due to election code of conduct in force for the Tamil Nadu State Assembly Election, 2016 up to May 2016 and for administrative reasons from June 2016.
3. The following Deputy Collectors who have included in the DRO panel for the year 2015 were retired from service on superannuation and not promoted to the level of DRO:-

   Date of Retirement

4. The remaining 23 Deputy Collectors in the DRO panel for the year 2015 were promoted to the posts of DRO vide G.O.Rt.No.663, Public (Special A) Department, dated 23.2.2017 after obtaining orders from the then chief

Minister. The petitioner was retired from service on superannuation on 30.06.2016.

5. In the Hon’ble High Court of Madras in its order dated 22.2.2019 in W.P.No.344 of 2018 has clearly stated that promotion is not a right and mere inclusion of the name of the writ petitioner in the panel will not confer any legal right on him to claim promotion. In the event of granting promotion to the juniors prior to the date of retirement of the writ petitioner, the claim of the writ petitioner can be sustained and not otherwise.

… The administrative decision to fill up the proposed posts are prerogative of the Administrative Authorities and simply because the posts are vacant, the employees cannot claim promotion based on the availability of the vacancies.”

3. In the said instructions, our query has not been answered. When the panel was prepared among the Deputy Collectors for the promotion to the post of District Revenue Officers for the year 2015, 41 people including the appellant were included. On the very same date i.e. on 29.02.2016, Government issued G.O.Rt.No.776 giving such promotion only to 10 people. Insofar as the remaining 31, no such promotion had been given, why it was restricted with 10 why not beyond 10 has not been explained so far. When that was so, last hearing it was argued on behalf of the respondents that, even though the panel consisting of 41 persons was issued on 29.02.2016, at that time there was approved vacancy of 10 only, therefore only 10 people have been given promotion on the said date. In this regard, we raised a pointed query as to the order of approval of such vacancies and that has not been produced and nothing has been whispered about the said query in the written

instructions referred to above. Like that, the reason for belated promotion that was given by issuance of G.O.Rt.No.663 Public (Special-A) Department, dated 23.02.2017 is, according to the respondents, because of Election Code of Conduct of the year 2016 and for administrative reasons.

4. In this context, the Election Code of Conduct was over by May 2016 as the general Election to the Assembly was over by then, thereafter there was no Election Code of Conduct from 1^st June 2016 onwards. In this context, it is further to be noted that, administrative reason is one of the other reason cited by the respondents, what kind of administrative reasons which prevented the Department from operating the panel depending upon the vacancy caused in the post of DRO has not been explained so far. In between the G.O.Rt.No.776 and G.O.Rt.No.663, almost there has been a period of one year, therefore for such a delayed or belated action in operating the panel for giving promotion to the post of DRO absolutely no reason has been given by the respondents earlier and even in the present written instructions.
5. Moreover, when this kind of important questions are raised,normally that would be answered by a responsible officer of the Department. Here both the Chief Secretary to Government of Tamil Nadu as well as the Secretary to Government, Public (Special-A) Department are parties in this appeal. If not the Chief Secretary to Government atleast the Secretary to Government of the Department concerned could have chosen to give answer to the query raised by this Court by way of giving any written instructions, but the 2^nd respondent also has not chosen to give it and only the Section Officer has given this written instructions. An employee of a State Government at the Section Officer level cannot be expected to be the right person to speak on behalf of the Department when queries were raised by this Court in a lis.
6. Therefore, when these kind of questions are posed to the State Departments, normally the expectation would be that, it would be properly responded either by the Head of the Department or by the Secretary to the Government. Here in the case in hand, the Secretary to Government of the Public Department already being a party, he should have filed the written instructions. Had it been filed by him, certainly these kind of issues would have been answered by him.
7. Since the Chief Secretary to Government also is a party in thisappeal, we feel that, a direction can be given to the Chief Secretary to issue Circular to the Secretaries to Government as well as the Heads of the Departments to respond to the queries raised by the Court on behalf of their Department whenever queries directly posed to the Department concerned.
8. Therefore, we feel that, in order to give complete answer to the query raised by this Court as discussed herein above, the Secretary to Government, Public (Special-A) Department, being the proper authority, to respond to the Court’s query, therefore we are inclined to give the following directions:
   • That the Secretary to Government, Public (SpecialA) Department, 2^nd respondent herein shall file a detailed statement/affidavit before this Court with substantive documents as to the reason for not acting upon the panel for nearly about one year and also the reason for not chosen candidates beyond Sl.No.10 even though the panel consisting of 41 Deputy Collectors for the year 2015, such statement/ affidavit shall be filed by the 2^nd respondent on or before the next hearing date.
   • The Chief Secretary, Government of Tamil Nadu shall issue necessary Circular to all the Secretaries to Government as well as the Heads of the Departments to respond by themselves to the queries raised by the Court on specific issues concerning the Department, apart from the regular counter affidavit, defence statements filed by the respondents or the parties to the

8. For the aforestated compliance, post the matter on 30.08.2023.

[R.S.K.J.]               [K.B.J.]

23.08.2023 Note : Issue today.

Sgl

R.SURESH KUMAR, J. and K.KUMARESH BABU, J.

Sgl

W.A.No.1334 of 2019

23.08.2023