judge baratha chakravarthi full order The further contention is that the case of the petitioner ought to have been considered by the Governor under General Rule 48. In this regard, it is considering his own health conditions the petitioner in his wisdom chose to relinquish promotion. Similarly, in his own wisdom for his personal reasons he chose to voluntarily retire from service. Thereafter, just because the petitioner feels that more service benefits are flowing to his juniors, he cannot have any after thought and definitely for that purposes, the extraordinary powers cannot be exercised. The other grounds raised in the writ petition are also equally without merits. E. The Result: 5. In the result, the Writ Petition in W.P. No.29949 of 2011 is dismissed. No costs. Consequently connected miscellaneous petitions are closed. 08.12.2023 Jer Index:Yes Speaking Order: Yes Neutral Citation: Yes To 1.The Secretary to Government State of Tamilnadu Tourism and Culture Department Fort St.George, Chennai – 600 009. 2.The Secretary to Government State of Tamilnadu P & A.R. Department Fort St.George, Chennai – 600 009. D.BHARATHA CHAKRAVARTHY, J., Jer Pre-Delivery Order made in W.P.No.29949 of 2011 08.12.2023 1 2018 (1) CWC 328 2 (1991) 2 SCC 295 3(1997) 5 SCC 201 4 (1999) 7 SCC 209 5 (2022) 12 SCC 579. For Respondents : Mrs.M.Geetha Thamarai Selvan Special Government Pleader

IN THE HIGH COURT OF JUDICATURE AT MADRAS

ORDERS RESERVED ON : 01.12.2023

ORDERS PRONOUNCED ON : 08.12.2023

CORAM
THE HON’BLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY

W.P.No.29949 of 2011
and M.P.Nos.2 & 3 of 2011

C.V.Viswanathan … Petitioner
Vs.

1.The State of Tamilnadu
Represented by Secretary to Government
Tourism and Culture Department
Fort St.George, Chennai – 600 009.

2.The State of Tamilnadu
Represented by Secretary to Government
P & A.R. Department
Fort St.George, Chennai – 600 009. … Respondents

PRAYER : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records comprised in the proceedings of the 1st respondent dated 09.02.2011 in Letter No.11287/OP/2010 and dated 24.03.2011 in Letter No.1871/OP-II/2011/2 and quash the same and consequently direct the respondents to reconsider the claims of the petitioner and grant all the benefits under and arising out of the Scheme “stepping up pay of the petitioner on par with his junior counter part in Finance” (Mr.Ayyavoo), and the consequential promotion, refixation of pay and revision of pensionary and other benefits as on the date of voluntary retirement of the petitioner namely 31.03.2003 including if necessary, by reference to his Excellency the Governor, in terms of Rule 48 of the General Rules for Tamilnadu State and Subordinate Service.

For Petitioner : Mr.C.V.Subramanian

For Respondents : Mrs.M.Geetha Thamarai Selvan
Special Government Pleader

O R D E R
A. The Question :
1. The Core Question that begs the answer in this case is, when the right to be considered for promotion is a fundamental right, whether the relinquishment thereof can be put against the person for denying service benefits ?

B. Factual Matrix:
2. The case of the petitioner is that he joined the Tamilnadu Secretariat Service in the year 1979. He was further promoted as Senior Typist and in the year 2003 he voluntarily retired from service. In the year 1996, when the petitioner was within the zone of consideration for promotion to the next higher post of Assistant Section Officer, without understanding the implications, due to health problems that were only temporary, the petitioner permanently relinquished promotion. It was due to misunderstanding. As a matter of fact, the petitioner’s turn did not even reach in the year 1996. An order of acceptance of relinquishment seems to have been passed on 18/12/1996, but the petitioner is not aware of the same.

2.1 Whileso, the Government issued G.O. Ms. No. 121 P & AR dated 26/05/1998 in which a scheme of stepping up of pay of various employees of the secretariat on par with their juniors. The petitioner therefore claimed pay parity by citing the case of one Ayyavoo, who was two years junior to the petitioner. However, the same is rejected by the impugned order dated 09/02/2011. On further representation, the same stand is reiterated by letter dated 24/03/2011. Hence the present writ petition is filed challenging the above two orders , with consequential prayers for promotion, refutation of pay and pensionary benefits by making a reference to the Governor in terms of Rule 48 of the General Rules for Tamilnadu State and Subordinate Service (hereinafter referred as ‘the General Rules’).

2.2 The case of the respondents is that the petitioner entered service as Typist with effect from 03/11/1979 and voluntarily retired from service as per General Rule 47 of the Tamilnadu Subordinate Service Rules, withe effect from 19/03/2003. During service, he exercised the option of permanent relinquishment of promotion to the post of Assistant Section Officers and upon his request due orders were passed on 18/12/1996 and necessary entries were also made in his service records. G.O. Ms. No. 126 dated 29/05/1998 was passed for stepping up of pay of seniors where it arose due to administrative reasons as some of the Senior Typists who did not relinquish further promotion as Assistant Section Officer, but were not promoted for want of vacancies, were put to prejudice on account of juniors in the other departments of the Secretariat drawing more pay. The same could not be applicable to the petitioner as he permanently relinquished promotion. By letter dated 26/11/1998, the same was expressly clarified by the government. Thus, when the petitioner claimed stepping up of pay, suitable replies were given, which are impugned in the writ petition. A reply affidavit is also filed denying the various averments in the Counter affidavit and furnishing detailed list of dates claiming that it was an error not consider the case of the petitioner under General Rule 48.

C. The Arguments :
3. Mr. Subramanian, the Learned Counsel for the petitioner, duly reiterating the case as aforesaid, would submit that admittedly the petitioner’s junior was drawing more pay than him. The only ground of denial of stepping up of pay was the relinquishment. He would submit that a Division Bench of this Court in S. Padmavathi -Vs- Registrar General, High Court, Madras1 has held that the right to be considered for promotion is a fundamental right and therefore there cannot be any waiver in respect thereof. Paragraphs 10 and 14 which are very relevant are as follows:

“10. In the above back drop we need to notice as to the nature of right an Employee would possess. Article 14 of our Constitution provides for equality before law by granting an Injunction against the State by setting forth not to deny any person equality before law and equal protection of laws. Article 16(1) has positively conferred a right to equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. That while both Articles 14 and 16 one confer fundamental rights but in their content and context, they might operate in two different areas. While Article 16 (1) holds a right for equal opportunities to public employment, Article 14, only ensure fairness in action and application of all relevant principles equally to all similarly situated persons. It is very well recognised principle of law that there is no fundamental right of promotion held out by Article16 (1) of the Constitution, but what the said Article holds out is an assured right of consideration for such promotion. Thus the right to be considered for promotion came to be recognised as a fundamental right. What is to be noted is the right to be considered for such promotion being a fundamental right, such a fundamental right cannot be relinquished voluntarily by a citizen in this country. Fortunately, in our country, there is no principle which recognises the right of relinquishment of a fundamental right by a citizen.

……

14. Therefore, we are of the clear opinion that right to be considered for promotion being a Fundamental Right emanating both from Article 14 and 16(1) cannot be permitted to be waived at all. … ”

3.1 Mr. Subramanian, the Learned Counsel also would stress upon the right of the petitioner to have his case considered as per Rule 48 of the General Rules, given the extra-ordinary and unique case of hardship faced by the petitioner. He would submit that the writ petition is liable to be allowed on the other grounds extensively raised in the writ petition also.

3.2 Per Contra, Ms. Geetha Thamaraiselvan, the learned Special Government Pleader would submit that when the petitioner has voluntarily relinquished the promotion as per rules, he cannot call the same in question after a period of more than 15 years, that too, well after his voluntary retirement. The Government Order of stepping up of pay is only for anomalies that arise out on account of administrative reasons and not on personal reasons where it is due to non availing of promotion.

D. The Discussion:

4. I have considered the rival submissions made and perused the material records of the case. It is trite that in matters of stepping up of pay due to pay anomaly, if the higher pay of the Junior is because of his any personal qualifications etc., or if it is on account of any lack or omission on the part of the senior, then the principle may not apply. As a matter of fact, this position has been specifically clarified by the letter of Government dated 26/11/1998 in respect of the very G.O. No. 126 dated 29/05/1998. Therefore, if he pay anomaly is because of the Senior relinquishing his promotion, then his pay cannot stepped up.

4.1 The contention of the petitioner that right to be considered for promotion being a fundamental right, it cannot be relinquished by the petitioner and as such his case should be considered. Strong reliance is made on the Division Bench judgment in S. Padmavathi’s case (cited supra). While, there cannot be no two opinion that right to be considered for promotion is held to be a facet of Articles 14 and 16(1) of the Constitution of India, the import of the same has to be understood by considering the categorical pronouncements of the Hon’ble Supreme Court of India.

4.2 The Hon’ble Supreme Court of India in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty,2 held as follows :
“4. ……There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with the relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of the respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.”

4.3 Thereafter in Ashok Kumar Gupta v. State of U.P.,3 the right to promotion was held to be a statutory right and the it is held that right to promotion for Dalits and Tribes is guaranteed under Article 16(1) and 14 of the Constitution of India. The relevant portion of the judgment reads as follows:

“ 43. It would thus be clear that right to promotion is a statutory right. It is not a fundamental right. The right to promotion to a post or a class of posts depends upon the operation of the conditions of service. Article 16(4-A) read with Articles 16(1) and 14 guarantees a right to promotion to Dalits and Tribes as fundamental right where they do not have adequate representation consistently with the efficiency in administration.”

4.4 However, the matter came to be considered by the Constitution Bench of the Hon’ble Supreme Court of India, in Ajit Singh and others v. State of Punjab4 and the above position was over ruled and it was categorically held that the right to be considered for promotion in accordance with rules and criteria is a fundamental right and not the right to promotion as such. It is essential to reproduce paragraphs 22 and 27 which read as hereunder :

“22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the ‘State shall not deny to any person equality before the law or the equal protection of the laws’. Article 16(1) issues a positive command that:
‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’.
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity” in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right.
“Promotion” based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1)
……
27. In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 : 1997 SCC (L&S) 1299] and followed in Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and other cases, if it is intended to lay down that the right guaranteed to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 : 1997 SCC (L&S) 1299] right from 1950.”
(Emphasis supplied)

4.5 This position has recently been reiterated by the Hon’ble Supreme Court of India, in Ajay Kumar Shukla v. Arvind Rai,5 and paragraphs 40 and 42 are as under:
“40. ……Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right.
42. A Constitution Bench in Ajit Singh (2) v. State of Punjab [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her’s fundamental right.”
(Emphasis supplied)

4.6 Thus, a careful reading of the above, it would be clear that right to consideration for promotion will be violated if only he is eligible and as per criteria for promotion his consideration not made. Apart from eligibility such as holding for feeder post, clearing of requisite examinations or having such educational qualifications as per the rules, ‘willingness’ and coming within the zone of consideration are all criteria for promotion as per the rules. Thus, the General Rule 47 which allows relinquishment of promotion is regarding the ‘right of promotion’ which he is entitled to forego and not relating to ‘right to be considered for promotion’. To elaborate, if a person relinquishes promotion, still when the names are called for, his name will also be shown by further holding as ‘relinquished’. In view of his relinquishment, the next person will come within the zone of consideration, while the person relinquished will not be further considered on merits . Thus, when the person does not fulfil the criteria of ‘willingness’ there can be no fundamental right to be considered for promotion and in that sense, the relinquishment of promotion can never operate as a relinquishment of fundamental right.

4.7 Even in Padmavathi’s case (cited supra) this position is clarified in paragraph 15, whereunder the operation of the General Rule 49 was considered and held that the employee for his own health considerations etc., can relinquish promotion and the General Rule 49 will have applicability only for the purpose of foregoing/waiving the promotion but not for consideration of promotion altogether.

4.8 Accordingly I answer the question that there is no violation of any fundamental right to be considered for promotion merely because the petitioner’s option to relinquish promotion has been accepted and acted upon by the respondents.

4.9 The further contention is that the case of the petitioner ought to have been considered by the Governor under General Rule 48. In this regard, it is considering his own health conditions the petitioner in his wisdom chose to relinquish promotion. Similarly, in his own wisdom for his personal reasons he chose to voluntarily retire from service. Thereafter, just because the petitioner feels that more service benefits are flowing to his juniors, he cannot have any after thought and definitely for that purposes, the extraordinary powers cannot be exercised. The other grounds raised in the writ petition are also equally without merits.

E. The Result:

5. In the result, the Writ Petition in W.P. No.29949 of 2011 is dismissed. No costs. Consequently connected miscellaneous petitions are closed.

08.12.2023
Jer
Index:Yes
Speaking Order: Yes
Neutral Citation: Yes
To
1.The Secretary to Government
State of Tamilnadu
Tourism and Culture Department
Fort St.George, Chennai – 600 009.

2.The Secretary to Government
State of Tamilnadu
P & A.R. Department
Fort St.George, Chennai – 600 009.

D.BHARATHA CHAKRAVARTHY, J.,
Jer

Pre-Delivery Order made in
W.P.No.29949 of 2011

08.12.2023
1 2018 (1) CWC 328
2 (1991) 2 SCC 295
3(1997) 5 SCC 201
4 (1999) 7 SCC 209
5 (2022) 12 SCC 579