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A. Mukyaprana Rao and M. Ebenezer Vs. the Government of Tamil Nadu Represented by the Chief Secretary to Government and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Reported in(1985)2MLJ9
AppellantA. Mukyaprana Rao and M. Ebenezer
RespondentThe Government of Tamil Nadu Represented by the Chief Secretary to Government and ors.
Cases ReferredJaisinghani v. Union of India
Excerpt:
.....of the court bringing in certain fresh facts as forming the basis for the reduction of the ratio of promotion complained of in the writ petitions and requested the bench to take those factors also into consideration. on the ground that having regard to the relative strength of technical and non-technical staff in the transport department which works out to be 1 :5 the ratio of 1 :4 fixed between non-technical and technical staff under rule 2(c) of the special rules for the transport service is fair and reasonable and that a higher proportion given to the technical personnel cannot also be taken exception to, having regard to the rational objective of achieving a better administration of the transport department which is in public interest. thereafter the government felt that as..........1461, home (transport ii) dated 26.6.1978 issued by the tamil nadu government under which the ratio of promotion to the post of regional transport officers has been reduced to 1 : 4 from 1 : 1 as between the administrative side and the technical side respectively of the transport department as unconstitutional as it contravenes articles 14 and 16 of the constitution of india. that writ petition was originally heard by padmanabhan, j. who by his order dated 2.4.1982 allowed the writ petition and declared the above clause 2(c) of the rules as unconstitutional. earlier in writ petition no. 2010 of 1979 filed by one m. ebenezer, superintendent, office of the regional transport officer, tiruchirappalli the same rule was challenged as being viotative of articles 14 and 16 of the.....
Judgment:
ORDER

G. Ramanujam, JJ.

1. Since the points involved are the same in all these cases, they are dealt with together.

2. Writ Appeal Nos. 854 and 855 of 1983 have been filed against the judgment rendered by Nainar Sundaram, J. in Writ Petition No. 1137 of 1980; the first one by the petitioner in the Writ Petition and the second by the 7th respondent therein. The appellant in Writ Appeal No. 854 of 1983 sought in Writ Petition No. 1137 of 1980 the issue a Writ of Declaration declaring Clause 2(c) of the Rules made in G.O.Ms.No. 1461, Home (Transport II) dated 26.6.1978 issued by the Tamil Nadu Government under which the ratio of promotion to the post of Regional Transport Officers has been reduced to 1 : 4 from 1 : 1 as between the administrative side and the technical side respectively of the Transport Department as unconstitutional as it contravenes Articles 14 and 16 of the Constitution of India. That Writ Petition was originally heard by Padmanabhan, J. who by his order dated 2.4.1982 allowed the Writ Petition and declared the above Clause 2(c) of the Rules as unconstitutional. Earlier in Writ Petition No. 2010 of 1979 filed by one M. Ebenezer, Superintendent, Office of the Regional Transport Officer, Tiruchirappalli the same rule was challenged as being viotative of Articles 14 and 16 of the Constitution. V. Ramaswamy, J. by his order dated 17th July, 1979, rejected the said contention and dismissed the Writ Petition. Writ Appeal No. 421 of 1979 was preferred as against the decision of V. Ramaswamy, J. While that Writ Appeal was pending respondents 1 to 3 in Writ Petition No. 1137 of 1980 which was disposed of by Padmanabhan, J. preferred Writ Appeal No. 375 of 1985 against the said order of Padmanabhan, J. There were other Writ appeals filed by the other respondents who have been brought on record subsequently and they were Writ Appeals Nos. 256 and 257 of 1982. All the said four writ appeals were heard by a Division Bench and at that stage the State Government filed as additional affidavit with the permission of the Court bringing in certain fresh facts as forming the basis for the reduction of the ratio of promotion complained of in the writ petitions and requested the Bench to take those factors also into consideration. The learned Counsel appearing for the petitioner in W.P.No. 1137 of 1980 and the respondent in Writ Appeal No. 375 of 1982 had submitted before the Bench that if these additional factors are to be taken into account, a reply affidavit has to be filed and there should be a re-hearing of the whole matter. At that stage the Division Bench felt that the correct course would be to set aside the orders of both Padmanabhan, J. in Writ Petition No. 1137 of 1980 and that of V. Ramaswami, J. in Writ Petition No. 2010 of 1979 and to remit the matter to the Writ Court for fresh and fuller consideration. It is in pursuance of the said remit order, Writ Petition No. 1137 of 1980 came to be heard afresh by Nainar Sundaram, J. Writ Petition No. 2010 of 1979 having been ordered to be posted for disposal after Writ Petition No. 1137 of 1980 is disposed of, it was not posted along with the other Writ Petition. Nainar Sundaram, J. after hearing the parties has chosen to dismiss the Writ Petition by his judgment dated 2.4.1982 on the ground that the grounds of attack put forward by the writ petitioner cannot legally be sustained. It is the said decision of Nainar Sundaram, J. which is under challenge in these two writ appeals.

3. The dispute between the parties relates to the procedure to be followed for making recruitment for the post of Regional Transport Officers (R.T.O. for short). In G.O.Ms.No. 566, Home, dated 18-2-1965 it was provided that recruitment to R.T.O. shall be made by transfer from the post of (1) Superintendents in the Secretariat in Home and Industries, Labour and Co-operation Departments. (2) Superintendents in the Office of the Transport Commissioner or in the Regional Transport Offices and (3) Motor Vehicles Inspectors. The said G.O. was made under Article 309 of the Constitution of India, and this amended the general and special rules applicable to the posts of Assistant Secretaries and Regional Transport Officers in Class II of the Madras Transport Service. These rules were again amended in G.O.Ms.No. 61, Home, dated 10.1.1968. As per the amended rules recruitment of Regional Transport Officers shall be by transfer from among (a) the Assistant Secretaries, State Transport Authority (Category 1) or (b) promotion from among the Joint Regional Transport Officers, (c) recruitment by transfer on tenure basis for a period of three years from among the Joint Regional Transport Officers, (d) recruitment by transfer on tenure basis for a period of three years from among the Deputy Collectors in the Madras Civil Service (Executive branch) or (d) recruitment by transfer from among the Superintendents in the Department of Secretariat. Thus in the said G.O. dated 10.1.1968 the Superintendents in the Office of the Transport Commissioner and in the Regional Transport Office have been taken out from the feeder categories of Regional Transport Officers. Thereafter, the Government passed G.O.Ms.No. 1461 Home dated 26-6-1978. which further modified the rules relating to the recruitment of Regional Transport Officers. Under the rules as amended in 1978 the recruitment to the posts of Regional Transport Officers shall be (1) by transfer from among Motor Vehicle Inspectors, Grade I in the Tamil Nadu Transport Subordinate Service or (2) Superintendents Selection Grade and Personal Assistants to Regional Transport Officers in the Tamil Nadu Ministerial Service and (3) for special reasons by recruitment by transfer from any other service on tenure basis. Clause 2(c) of the Rules made in G.O.Ms.No. 1461 Home (Transport II) Department dated 26-6-1978 has altered the ratio of promotion to the ' post of Regional Transport Officer from 1 : 1 to 1 : 4 as between the administrative side and the technical side respectively of the Transport Department. This has been attacked as unconstitutional as contravening Articles 14 and 16 of the Constitution. This attack was rejected by Nainar Sundaram, J. on the ground that having regard to the relative strength of technical and non-technical staff in the Transport Department which works out to be 1 : 5 the ratio of 1 : 4 fixed between non-technical and technical staff under Rule 2(c) of the Special Rules for the Transport service is fair and reasonable and that a higher proportion given to the technical personnel cannot also be taken exception to, having regard to the rational objective of achieving a better administration of the Transport Department which is in public interest. In this view, the learned Judge upheld the Rule 2(c) prescribing a ratio of 1 : 4 as between non-technical and technical staff for the purpose of promotion to the post of Regional Transport Officer. As against the said judgment of Nainar Sundaram, J. the present appeals have been filed.

4. It is not in dispute that till 18.2.1965 the ratio for promotion from among the Superintendents in the office of the Transport Commissioner, Madras and the Regional Transport Offices combined with the Superintendents in the Secretariat in Home, Industries and Labour and Co-operation Departments on the one side and the Motor Vehicles Inspectors on the other was 1 : 1. However, by G.O.Ms.No. 566 Home dated 18-2-1965, the post of joint Regional Transport Officer was created and promotion to the category of Regional Transport Officers was made from the posts of Joint Regional Transport Officers based on the seniority in the latter cadre. It cannot also be disputed that between 1965 and 1978 many changes have taken place in the staff pattern of the Transport Department. While previously the Junior Superintendents and Motor Vehicles Inspectors could be promoted straightaway as Joint Regional Transport Officers as per the ratio, posts of Personal Assistants to Regional Transport Officers and non-technical Motor Vehicles Inspectors were created which gave an avenue of promotion to the Superintendents to a higher category. The posts of Joint Regional Transport Officers were however, abolished in 1974. At that time there were 12 posts of non-technical motor vehicles Inspectors and 11 posts of Personal Assistants to the Regional Transport Officers, in between Superintendents and Regional Transport Officers, and it was considered not necessary to retain the old rule where Superintendents could straightaway be promoted to the cadre of Joint Regional Transport Officers or Regional Transport Officers and, therefore, the posts of Superintendents were deleted from the feeder category of Regional Transport Officers. Thereafter the Government felt that as the work of the Regional Transport Officers involves not only administrative work but also requires technical knowledge for the better performance of his work, the ratio of 1 : 4 between non-technical and technical staff in the matter of promotion to the post of Regional Trsnsport Officers should be fixed. It is said that such a policy decision which was taken in the larger interests of the administration cannot be questioned by the petitioners as the increase in the percentage is in the interest of the better administration of the Department, and the increase is not arbitrary or discriminatory, nor does it offend Articles 14 and 16 of the Constitution of India. Even according to the qualification, for appointment to the technical side that is as Motor Vehicles Inspector the requisite qualification is S.S.L.C. with diploma in Automobile Engineering or Mechnical Engineering whereas for the appointment to the administrative side the requisite qualification is only S.S.L.C It has been therefore felt by the Government that the persons on the technical side having a better qualification should be given more representation in the matter of promotion to the posts of Regional Transport Officers. This, according to respondents cannot be said to be unreasonable or amount to an unequal treatment as between equals.

5. Before us Mr. G. Ramaswami, learned Counsel for the appellants in the appeals contends that the functions of Regional Transport Officer are substantially administrative as seen from Sections 44(5), 44-A and Rule 133-A and 134-AA and it is idle to contend that the functions of the Regional Transport Officers are more technical than administrative and, therefore, the higher proportion given to the technical staff in the matter of promotion to the posts of Regional Transport Officers is arbitrary and discriminatory in nature. According to the appellants the functions of the Regional Transport Officer are purely administrative and he merely exercises the functions delegated by the Regional Transport Authority and the Transport Commissioner as per the provisions of the Motor Vehicles Act and the rules. He also exercises other functions which are purely of an administrative nature, and those functions should be traced to the statutory provisions referred to above. Even assuming that the functions of the Regional Transport Officer are more of the administrative nature before the fixation of the ratio of 1 : 4, it does not prevent the Government from deciding as a matter of policy to appoint more technical people to the post of Regional Transport Officers with a view to modernise or streamline the functions of the Department. As a matter of policy if the Government decides that the cadre of Regional Transport Officer should hereafter consist of mostly technical persons, it is not open to the appellant to question that policy and say that the posts of Regional Transport Officers should be held only by non-technical people. So long as the decision of the Government based on a policy is for the better administration of the department and in public interest, that policy cannot successfully be challenged on the ground that such a policy is neither warranted or expedient. It is no doubt true, earlier the ratio between non-technical and technical staff was 1 : 1. But the appellants have no vested right to have the same ratio continued for eternity. The ratio fixed at a particular point of time is always subject to alteration based on the modification of the policy of the Government, apart from the question that the alteration was based on the Government policy, to man the posts of Regional Transport Officers, by people with more technical knowledge. The existing structure of the staff pattern in the Transport Department was in the ratio of 1 : 5 between non-technical and technical personnel, and with a view to secure fair and proper treatment to everyone in the feeder category for the purpose of promotion to the posts of Regional Transport Officers, technical people who are five times the non-technical personnel are given a higher ratio, in the matter of promotion. Therefore the revision of the ratio as 1 : 4 as against 1 : 1 that existed before between non-technical and technical personnel appears to be fair and equitable even on merits. Nainar Sundaram, J. has held that the technical personnel and non-technical personnel are governed by two separate sets of service rules, the former being governed by the Tamil Nadu Ministerial Service Rules and the latter being governed by the Tamil Nadu Transport Service Rules. The requisite qualification for the non-technical side is only S.S.L.C. while the requisite qualification for the technical side is not only S.S.L.C. but also a Diploma in Automobile Engineering or Mechanical Engineering. Therefore non-technical personnel and' technical personnel cannot be treated as equals.

6. The learned Counsel for the appellants would, however, say that both non-technical and technical personnel were treated as equals all these years and it is only on that basis the ratio of 1 : 1 in the matter of promotion was fixed. Merely because the ratio of 1 : 1 as between non-technical and technical personnel was fixed in the matter of promotion, it cannot be said that the technical and non-technical personnel were treated alike. From the mere fact that the 'same ratio has been fixed in the matter of promotion as between the two feeder categories, it cannot be said that the two categories are equal. As already stated, in the matter of qualifications, they are not equals. Similarly there is a difference in the nature of their duties. Therefore, it is not possible to equate the technical personnel with the non-technical personnel in the matter of promotion. Providing for equal promotional opportunities to two distinct classes such as non-technical and technical personnel may not by itself make them equals, and any subsequent alteration in the ratio for the purpose of promotion will not attract Articles 14 or 16(1) of the Constitution, so long as the non-technical and technical personnel cannot be treated as equals. It has been held in Govind Dattatray v. Ch. Controller of Im ports and Exports : (1967)ILLJ691SC :

The relevant law on the subject Is well settled and does not require further elucidation. Under Article 16 of the Constitution of India there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from the office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicated only the promotees are drawn from the same source. If the preferential treatment to one source in relation to the other is based on the differences between the said two sources, and the said differences, have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification. There can be cases where the differences between the two groups of recruits may not be sufficient to give any preferential treatment to one against the other in the matter of promotions, and, in that event a Court may hold that there is no reasonable nexus between the differences and the recruitment.

The Supreme Court again reiterated the same principle in Jaisinghani v. Union of India : [1967]65ITR34(SC) ,

7. In this case, though originally equal treatment was given to the two feeder categories, non-technical and technical in the matter of promotion, the Government have changed their policy and adopted a higher ratio for one source, the technical category, compared to the other source, the non-technical category. As already stated, the classification is made between these two sources, technical and non-technical with a view to secure better administration of the Transport Department and also to see that people with technical qualification get more promotional opportunities as Regional Transport Officers. As pointed out by Nainar Sundaram, J. the set up of Transport Department was thoroughly re-organised in 1974. Under the re-organisation set up, the posts of Assistant Transport Commissioner, Assistant Engineer (Motor Vehicles) and Joint Regional Transport Officers were abolished and the posts of Regional Transport Officers were redesignated as District Transport Officers. The main theme of 1974 re-organisation was technical-oriented and it was felt that the technical function of the effective check and control of vehicles, conduct of traffic surveys, inspection of vehicles involved in accidents, liaison with Highways Department on matters relating to traffic engineering and police on traffic control will be more important than the desk work till then contemplated. The Motor Vehicles Inspector as head of the Unit office was made in charge of all work, technical and nontechnical. In order to have homogenity in the set up of the Transport department and as only a technical officer can over-check and supervise the work of another technical officer, it was decided to divide the posts as technical and non-technical based on the nature of the work and duties attached to them. Having regard to the said theme of re-organisation, the question of framing special rules for the Transport Service was taken up, and the rules were approved in G.O.Ms.No. 1461 Home dated 26-6-1978 which has been impugned in these proceedings. Rule 2(c) of the said Special Rules, taking into consideration (1) the necessity to have a technical officer to supervise the work of a technical officer like the Motor Vehicles Inspector and (2) the necessity to give due representation to the existing personnel both technical and non-technical, the previous ratio of 1 : 1 was altered as 1 : 4 between non-technical and technical. At the time of the issue of the impugned G.O. the relevant strength of the non-technical and technical side was found to be 16 on the non-technical side and 76 on the technical side, which works out to a ratio of 1:5 between non-technical and technical staff. To avoid an imbalance and at the same time not to shut out completely the non-technical personnel from having any chance of promotion the ratio was fixed at 1:4 as between nontechnical and technical personnel. As already stated, the classification of persons coming from two separate feeder categories in the matter of fixation of the ratio for promotion so long as it has a rational nexus with the object of securing better administration of the department, cannot be successfully challenged.

8. In this view of the matter, we agree with the decision of Nainar Sundaram, J. and dismiss the appeals as also the Writ Petition in which the same point is raised. There will be no order as to costs in any of these cases.


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