Madras High Court
R.Srinivasaragavan vs )Balusamy on 7 April, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.04.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Writ Appeal(MD)Nos.416 of 2016 and 434 of 2016 and 1285 of 2015
and
C.M.P(MD)Nos.2945 and 3106 of 2016 and M.P(MD)No.1 of 2015
W.A(MD)No.416 of 2016
R.Srinivasaragavan .... Appellant
Vs.
1)Balusamy,
Road Inspector,
Kadayanallur Panchayat Union,
Kadayanallur,
Tenkasi Taluk,
Tirunelveli District.
2)The Director,
Rural Development & Panchayat Raj Department,
Panagal Building,
Chennai-600 009.
3)The District Collector,
Tirunelveli District,
Tirunelveli.
4)M.S.Ganesan
5)A.Jevilthakumari ... Respondents
W.A(MD)No.434 of 2016
Mrs.Jevilthakumari ... Appellant
Vs.
1)Balusamy,
Road Inspector,
Kadayanallur Panchayat Union,
Kadayanallur,
Tenkasi Taluk,
Tirunelveli District.
2)The Director,
Rural Development & Panchayat Raj Department,
Panagal Building,
Chennai-600 009.
3)The District Collector,
Tirunelveli District,
Tirunelveli.
4)Mr.R.Srinivasaraghavan
5)Mr.M.S.Ganesan ... Respondents
W.A(MD)No.1285 of 2015
1)The Director,
Rural Development and Panchayat Raj Department,
Panagal Building,
Chennai-600 009.
2)The District Collector,
Tirunelveli District,
Tirunelveli. ....
Appellants
vs.
1)M.Balusamy
2)R.Srinivasaragavan
3)M.S.Ganesan
4)A.Jeilthakumari .... Respondents
Appeals filed under Clause 15 of Letters Patent, against the order made
in W.P(MD)No.8384 of 2015 dated 05.10.2015.
W.P(MD)No.416 of 2016
!For Appellant : Mr.A.Robinson
^For R1 : Mr.G.Thalaimutharasu
For R2 & R3 : Mr.A.K.Baskarapandian,
Special Government Pleader
For R4 : Mr.P.Santhakrishnan
For R5 : Mr.L.George Paul Anto
W.P(MD)No.434 of 2016
For Appellant : Mr.L.George Paul Anto
For R1 to R3 : Mr.A.K.Baskarapandian,
Special Government Pleader
For R4 : Mr.A.Robinson
For R5 : Mr.P.Santhakrishnan
W.P(MD)No.1285 of 2015
For Appellants : Mr.A.K.Baskarapandian,
Special Government Pleader
For R1 : Mr.G.Thalaimutharasu
For R2 : Mr.A.Robinson
For R3 : Mr.P.Santhakrishnan
For R4 : Mr.L.George Paul Anto
:COMMON JUDGMENT
(Judgment of the Court was made by Mr.Justice S.MANIKUMAR) Being aggrieved by the order, made in W.P(MD)No.8384 of 2015, dated 05.10.2015, setting aside the promotion panel dated 12.05.2015, for the post of Overseers 2015-16, in so far as respondents 3 to 5 in W.P(MD)No.8384 of 2015 are concerned, the Director of Rural Development and Panchayat Raj Department, Chennai and the District Collector, Tirunelveli District, appellants 1 and 2, have filed W.P(MD)No.1285 of 2015.
2.After setting aside the panel, in so far as respondents 3 to 5 in W.P(MD)No.8384 of 2015, are concerned, the Writ Court has directed to include the name of the writ petitioner/M.Balusamy, at the appropriate place and to promote him, with service and monetary benefits.
3.Mrs.Jevilthakumari, one of the Road Inspectors Grade-II, included in the promotional panel, dated 12.05.2015, which has been now set aside, by the Writ Court, in so far as respondents 3 to 5 in W.P(MD)No.8384 of 2015 are concerned. Similarly R.Srinivasaragavan, included in the promotional panel, has filed W.A(MD)No.416 of 2016.
4.As the above appeals arise out of an order, made in W.P(MD)No.8384 of 2015, dated 05.10.2015, setting aside the promotional panel for the post of the Overseers 2015-16, in so far as respondents 3 to 5 in W.P(MD)No.8384 of 2015 are concerned, with a consequential direction, they are heard together and disposed of by this common judgment.
5.The case of the writ petitioner/M.Balusamy is that he was appointed as Road Inspector Grade-II on 19.01.2007. He was not included in the promotional panel, dated 12.05.2015, issued by the District Collector, Tirunelveli District, for the post of Overseer, for the year 2015-16. His juniors/respondents 3 to 5 in the writ petition, have been included.
6.According to him, he had completed SSLC in the year 1987, ITI in Civil Draughtsman Course and registered the same, with the Employment Exchange in 1989. Based on the said qualification, he was appointed as a Techanical Assistant, on NMR basis, by the Block Development Officer, Kuruvikulam Panchayt Union, in proceedings No.A3/4009/98, dated 27.10.1999. Thereafter, on 19.01.2007, he was appointed as a Road Inspector Grade-II, by the District Collector, Tirunelveli District. After joining the said post, with the prior permission of the competent authority, he had pursued Diploma in Civil Engineering course, under the Lateral Entry Scheme (2 years) in Karnataka State Open University, which is approved by the University Grants Commission. He has successfully completed the course in 2013, and obtained a diploma certificate, which was also recognised, as equivalent to a regular diploma course, eligible for the purpose of employment and promotion by the Government, vide G.O.Ms.No.242, Higher Education (B1) Department, dated 18.12.2012. According to the 1st respondent/writ petitioner, though he was fully qualified, his name was not included in the panel for promotion, to the post of Overseer.
7.Before the Writ Court, the appellants in W.A(MD)No.1285 of 2015, have filed a detailed counter affidavit. They have submitted that the 1st respondent/writ petitioner has not passed the departmental tests, and hence he was not included in the panel for the post of Overseer 2015-16.
8.Adverting to the averments and submissions, the Writ Court, at paragraph 4 of the order made in W.P(MD)No.8384 of 2015, dated 05.10.2015, has ordered as follows:-
''4. This Court is not able to see any merits in the submission of the learned Additional Government Pleader for the following reasons:
The ground on which the name of the petitioner was withheld is that he obtained Diploma in Civil Engineering certificate from Karnataka State Open University. A perusal of the list of the Universities recognised by the UGC shows that Karnataka State Open University has been recognised as one of the Universities in the State of Karnataka. Secondly, the petitioner has also obtained prior permission from the Department to study Diploma in Civil Engineering course. Thirdly, in G.O.Ms.No.242, Higher Education (B1) Department, dated 18.12.2012, it has been specifically stated that the Diploma certificate obtained through Open University is equivalent to regular stream and the same is eligible for employment and promotion. Fourthly, a perusal of the copy of the Results of Departmental Examinations held in May, 2015 shows that the petitioner - Mr.M.Balusamy has passed the departmental examinations in Code No.204. Thus, the petitioner was fully qualified. When that be the position, the non consideration of the petitioner for promotion, in my considered view, is untenable. Therefore, the impugned promotion panel in Na.Ka.No.Nu13/20413/2015-1, dated 12.05.2015, is set aside insofar as the respondents 3 to 5 is concerned and the second respondent is directed to include the petitioner's name in appropriate place and promote him with service and monetary benefits, in accordance with law.''
9.Based on the memorandum of grounds and inviting the attention of this Court to the Recruitment Rules for the post of Overseer, issued in G.O.(Ms).No.70, Rural Development (E4) Department, dated 20.03.2000, Mr.A.K.Baskarapandian, learned Special Government Pleader, submitted that as per Rule 3 of the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules, for the purpose of drawing up of annual list of approved candidates, for appointment to the posts in the service, by direct recruitment or by promotion, the crucial date on which the candidate should have acquired the prescribed qualification shall be the 1st April of every year.
10.Further, inviting the attention of this Court to Rule 4 of the said Rules, which prescribes the qualification for promotion to the post of Overseer, learned Special Government Pleader submitted that to become eligible for promotion to the post of Overseer, besides, satisfying the educational qualifications and the number of years of service in the post of Road Inspector, one should have passed; (a)The Account Test for PWD Officers and Subordinates; (b)Paper-IV of the Departmental Test for Officers of the Panchayat Development Department namely, Tamil Nadu Panchayats Act, 1994 and the rules and orders issued thereunder. Learned Special Government Pleader further submitted that for inclusion in the panel, for promotion to the post of Overseer, one should satisfy all the prescribed qualifications before the crucial date i.e., 01.04.2015.
11.Inviting the attention of this Court, to the Hall Ticket for the departmental examinations issued by the Tamil Nadu Public Service Commission, Chennai, learned Special Government Pleader submitted that though 01.04.2015, has been fixed as the crucial date for preparation of panel, for the post of Overseer, before which a candidate should satisfy all the qualifications including pass in the abovesaid departmental tests, 1st respondent/Mr.M.Balusamy had appeared for the Account Test for PWD Officers and Subordinates, only on 30.05.2015, which is after the crucial date. He also submitted that in so far as the Account Test for PWD Officers and Subordinates, one of the departmental tests required to be passed by the Road Inspectors, the 1st respondent has cleared only Part-II of the Account Test for PWD Officers and Subordinates with Code No.204 and that the 1st respondent has not passed the Account Test for PWD Officers and Subordinates, Part-I, with Code No.187. As he had not cleared the departmental test, vide proceedings in Na.Ka.No.q13/20413/2015-2, dated 12.05.2015, the District Collector, Tirunelveli District, has informed the 1st respondent/writ petitioner and others similarly placed, that they were not included in the panel, for reasons contained therein. But he has not chosen to challenge the said proceedings. On the contra, he has challenged the panel, dated 12.05.2015.
12.Apart from the above, perusal of the counter affidavit shows that the 1st respondent/writ petitioner has been awarded with a punishment of stoppage of increment for a period of six months, without cumulative effect, vide proceedings Na.Ka.No.72117/2014/TPC3-2, dated 11.03.2015, by the Director of Rural Development & Panchayat Raj, Chennai, based on the charges framed by the District Collector, Tirunelveli District, vide charge memorandum No.5/48940/2012-5, dated 10.03.2013, under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
13.The main contention of the appellants is that when the 1st respondent/writ petitioner has not passed the departmental test, prescribed as an eligibility criteria, as per the rules for promotion to the post of Overseer, and therefore, non inclusion of his name is justified, but the Writ Court has failed to consider the abovesaid aspect, in proper perspective. It is also their contention that the observation of the Writ Court that perusal of the copy of the results of the departmental examinations held in May 2015, reflects that the 1st respondent/writ petitioner has passed the departmental examination in Code No.204 and therefore, he was fully qualified, is not correct.
14.In response to the abovesaid arguments, Mr.G.Thalaimutharasu, learned counsel for the 1st respondent/writ petitioner submitted that the number of years of service, as Road Inspector, for a period not less than 15 years, prescribed as one of the qualifications, has been reduced to 7 years. He further submitted that though the Account Test for PWD Officers and Subordinates has two parts, for promotion to the post of Overseer, it is suffice to pass Part-II paper alone. Learned counsel for the 1st respondent further submitted that Mr.M.S.Ganesan/4th respondent in the writ petition, though not passed the departmental test, has been included in the panel of Overseers, for the year 2015-16 and therefore, non inclusion of the 1st respondent/writ petitioner, is erroneous. According to him, the Writ Court had rightly interfered with, in setting aside the panel, with a consequential direction.
15.By way of reply, and inviting the attention of this Court, to the averments in paragraph 9 of the counter affidavit filed in the writ petition, learned Special Government Pleader submitted that all the four persons included in the panel for promotion to the post of Overseer, are fully qualified.
16.Mr.A.Robinson, learned counsel for the appellant/R.Srinivasaragavan in W.A(MD)No.416 of 2016, submitted that the above appellant had passed the test-Paper-IV of the Departmental Test for Officers of the Panchayat Development Department, namely, Tamil Nadu Panchayats Act, 1994 and the rules and orders issued thereunder, in May 2010. He had passed the Account Test for PWD Officers and Subordinates Part-I and II in May 2012. According to him, the appellant in W.A(MD)No.416 of 2016/R.Srinivasaragavan was fully qualified.
17.Mr.L.George Paul Anto, learned counsel for the appellant/Mrs.Jevilthakumari, in W.A(MD)No.434 of 2016, submitted that in so far as the departmental test, is concerned, the appellant in W.A(MD)No.434 of 2016/Mrs.Jevilthakumari had passed the departmental tests with Code Nos.156, 187 and 204 in December 2008 itself, and therefore, she was also fully qualified before the crucial date i.e., 01.04.2015.
18.Mr.A.K.Baskarapandian, learned Special Government Pleader submitted that Mr.M.S.Ganesan/4th respondent in the writ petition, had passed the Account Test for PWD Officers and Subordinates in December 2010 Examination, before the crucial date. He also submitted that the said individual has passed Paper-IV of the Departmental Test for Officers of the Panchayat Development Department, namely, Tamil Nadu Panchayats Act, 1994 and the rules and orders issued thereunder. Thus, he was fully qualified to be included in the panel for promotion to the post of Overseer 2015-16.
19.By way of reply, and placing reliance on the proceedings of the District Collector, Nagapattinam, in Na.Ka.No.4843/R.D.3/2015 dated 07.11.2015, and Rule 26 of the Tamil Nadu State and Subordinate Service Rules, called as General Rules, Mr.G.Thalaimutharasu, learned counsel for the 1st respondent/M.Balusamy, submitted that the District Collector, Nagapattinam has promoted 3 Road Inspectors, to the post of Overseers and placed them on probation. He further submitted that referring to G.O.Ms.No.168, Personnel and Administrative Reforms Department, dated 20.11.1981, the District Collector, Nagapattinam, has ordered that within the period of probation, the abovesaid promotees should pass the prescribed departmental tests. The District Collector, Nagapattinam, has also stated that if the abovesaid 3 promotees, do not pass the prescribed departmental tests, within the probation period, they will be demoted and further, the probation period will not be extended beyond 5 years.
20.According to the learned counsel for the 1st respondent/M.Balusamy, only in the event of not satisfying the requirements, within 5 years from the date of joining, they can be reverted, without notice, and such being the procedure followed in Nagapattinam District, for promotion to the post of Overseer, there cannot be a different yardstick in Tirunelveli District. He also added that there are many vacant posts of Overseer in Tirunelveli District.
21.By way of clarification, Mr.A.K.Baskarapandian, learned Special Government Pleader, submitted that the condition to pass (a)The Account Test for PWD Officers and Subordinates; (b)Paper-IV of the Departmental Test for Officers of the Panchayat Development Department namely, Tamil Nadu Panchayats Act, 1994 and the rules and orders issued thereunder, within a period of 5 years, would be applicable only, to direct recruits and not to promotees, namely, Road Inspectors Grade-II, who are required to satisfy the qualifications before the crucial date for inclusion in the panel. In this context, he drew the attention of this Court to Rules 6 and 7 of the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules and Rule 26 of the Tamil Nadu State and Subordinate Service Rules.
22.Heard the learned counsel for the parties and perused the materials available on record.
23.In exercise of the powers, conferred by the proviso to Article 309 of the Constitution of India, the Government have issued G.O.(Ms).No.70, Rural Development (E4) Department, dated 20.03.2000, framing the Special Rules for Tamil Nadu Panchayat Development Engineering Subordinate Service, which have come into force from 25th May 1998. The post of Overseer is in Category-1. As per Rule 2 of the said Rules, the method of recruitment to the post of Overseer is, (a)direct recruitment; or (b)promotion from Category-2, which is Road Inspector.
24.Rule 3 of the said Rules, deals with preparation of annual list of approved candidates, which is as follows:-
''For the purpose of drawing up the annual list of approved candidates for appointment to the posts in the service by direct recruitment or by promotion the crucial date on which the candidate should have acquired the prescribed qualification shall be the 1st April of the year.''
25.Rule 4 of the abovesaid Rules deals with qualification and age, which reads as follows:-
''(a) Age: No person shall be eligible for appointment for the posts of Overseer or Road Inspector by direct recruitment, if he has completed the age of 35 years on the first day of July of the year in which the selection for appointment to the posts are made.
(b) Other Qualifications : No person shall be eligible for appointment to the category specified in column(1) of the Table below by the methods specified in the corresponding entries in column(2) thereof, unless he possesses the qualifications specified in the corresponding entries in column(3) thereof.'' Category (1) Method of Appointment (2) Qualifications (3) Overseer Direct recruitment Promotion Must possess a Diploma in Civil Engineering (1) Must possess a Diploma in Civil Engineering and (2) Must have rendered service as Road Inspector for a period of not less than 15 years: Provided person appointed by promotion, must have passed the following tests.
(a) The Account Test for PWD Officers and Subordinates.
(b) Paper IV of the Departmental Test for Officers of the Panchayat Development Department viz. Tamil Nadu Panchayats Act 1994 and the rules and orders issued there under The ratio for appointment to the category of Overseer by promotion and by direct recruitment shall be 1:3 and the following rotation shall be followed, while making appointment to the vacancies arising in that category:
(1) Promotion (2) Direct recruitment (3) Direct recruitment (4) Direct recruitment Road Inspector Direct recruitment Must possess an I.T.I. Certificate in Civil Draughtsmenship from a Government recognized Institute.
26.The contention of the learned counsel for the 1st respondent/M.Balusamy that the period of service, rendered as Road Inspector, for promotion to the post of Overseer in Category-I, has been reduced to 7 years, is not disputed and the same, is also evident from the proceedings of the District Collector, Nagapattinam, in Na.Ka.No.4843/R.D.3/2015 dated 07.11.2015.
27.In Letter No.18824/S/2005-2, dated 07.10.2005, the Secretary to the Government, Personnel and Administrative Reforms Department, has issued instructions, to all the Secretaries to the Government, and Heads of the Departments, regarding preparation of panels, for appointment by promotion. As per the Special Rules applicable to the case of the parties, the crucial date, on which, a candidate should have acquired the prescribed qualification, is 1st April of the year. Besides the educational qualification and experience, a person to be appointed by promotion, must have passed the following tests:-
(a)The Account Test for PWD Officers and Subordinates; and
(b)Paper-IV of the Departmental Test for Officers of the Panchayat Development Department namely, Tamil Nadu Panchayats Act, 1994 and the rules and orders issued thereunder.
28.From the material on record, it could be deduced that the Account Test for PWD Officers and Subordinates has two parts. Code Number for the Account Test for PWD Officers and Subordinates Part-I, is 187 and 204 is for Part-II.
29.In so far as the appellant in W.A(MD)No.416 of 2016/R.Srinivasaragavan, is concerned, he has passed the Account Test for PWD Officers and Subordinates Parts I and II, in May 2010. The appellant/Mrs.Jevilthakumari, in W.A(MD)No.434 of 2016, has passed the departmental tests, with Code Nos.156, 187 and 204, in the departmental examinations held in December 2008. Mr.M.S.Ganesan/4th respondent in the writ petition, has passed the Account Test for PWD Officers and Subordinates Parts I and II, in the departmental examinations held in December 2010.
30.The Director of Rural Development and Panchayat Raj Department, Chennai and the District Collector, Tirunelveli District, appellants 1 and 2 in W.P(MD)No.1285 of 2015, in their counter affidavit, filed before the Writ Court, have specifically stated that all the persons included in the panel of Overseers, for the year 2015-16, have satisfied the eligibility criteria.
31.Out of the two parts of the Account Test for PWD Officers and Subordinates, the 1st respondent/M.Balusamy, has appeared for the Account Test for PWD Officers and Subordinates Part-I, with Code No.187, on 30.05.2015. On the next date, namely, 31.05.2015, he has appeared for the Account Test for PWD Officers and Subordinates Part-II, with Code No.204. The typed set of papers filed by the appellants in W.A(MD)No.1285 of 2015, shows that the results of the examinations conducted in May 2015, were published in September 2015. The 1st respondent/M.Balusamy, has passed only Account Test for PWD Officers and Subordinates Part-II paper, with Code No.204 and he did not pass the Account Test for PWD Officers and Subordinates Part-I with Code No.187.
32.Typed set of papers also discloses that on 15.09.2015, the 1st respondent has once again applied for TNPSC-Departmental Examinations for the Account Test for PWD Officers and Subordinates Part-I, with Code No.187. There are no materials, to indicate as to whether results have been published. However, the indisputed fact is that the 1st respondent/M.Balusamy has not cleared the test with Code No.187.
33.Though the learned counsel for the 1st respondent/M.Balusamy submitted that passing of both parts of the Account Test for PWD Officers and Subordinates, is not the requirement, for inclusion in the panel, for the post of Overseer 2015-16, and a pass in Account Test for PWD Officers and Subordinates Part-II, is sufficient, for inclusion in the panel, this Court is not inclined to accept the said contention. From the material on record, it could be deduced that Account Test for PWD Officers and Subordinates, comprises of two parts and both have to be cleared by a candidate.
34.Though Mr.A.K.Baskarapandian, learned Special Government Pleader for the Director of Rural Development and Panchayat Raj Department, Chennai and the District Collector, Tirunelveli District, appellants 1 and 2, in W.P(MD)No.1285 of 2015, submitted that vide proceedings in Na.Ka.No.q13/20413/2015-2, dated 12.05.2015, the District Collector, Tirunelveli District, had already communicated the reason, for non inclusion of the 1st respondent/M.Balusamy and that he has not chosen to challenge the same, instead, challenged only the promotion panel, dated 12.05.2015, for the post of Overseer 2015-16, and thus raised an objection, to the filing of the writ petition, challenging the panel, this Court is not inclined to accept the same, for dismissing the writ petition. Communication dated 12.05.2015 of the District Collector, Tirunelveli, addressed to the 1st respondent/M.Balusamy, citing the reason for non inclusion, though not challenged, would not take away his right, to challenge the panel for the post of Overseer 2015-16.
35.As regards the reliance of the 1st respondent/M.Balusamy to the proceedings of the District Collector, Nagapattinam, in Na.Ka.No.4843/R.D.3/2015, dated 07.11.2015, that in Nagapattinam District, 3 Road Inspectors have been promoted to the post of Overseer, subject to certain conditions, which includes that the said promotees have to pass the departmental tests, within five years, on the basis of G.O.Ms.No.168, Personnel and Administrative Reforms Department, dated 20.11.1981, and contentions have been made that the same yardstick ought to have been applied, in the case of Tirunelveli District also, this Court is not inclined to countenance the said contention. First of all, it is not known, as to how promotion has been ordered, to those who were not fully qualified as on 01.04.2015, when Rule 4 of the Special Rules mandates that no person shall be eligible for appointment to the category, unless he possesses the qualifications. Column No.3 of the Table to rule 4, specifically states that ''provided person appointed by promotion must have passed the tests''. We are not testing the correctness of the order of the District Collector, Nagapattinam. As regards Tirunelveli District, is concerned, all the persons included in the panel for the post of Overseer possess the qualifications mentioned in rule 4 of the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules. Merely because the writ petitioner/M.Balusamy is senior to the private respondents in W.P(MD)No.8384 of 2015, that would not confer any right to him, to seek for inclusion in the panel of Overseers for the year 2015-16, de hors and without possessing the qualifications prescribed for the post of Overseer. Road Inspector Grade-II, is the feeder category post in Category-II, of the Rules for promotion to the post of Overseer in Category-I. When fully qualified candidates in the feeder category are available, there is no need for the appointing authority, to empanel an ineligible candidate, for promotion to the post of Overseer. In the light of the Recruitment Rules, the procedure followed by the District Collector, Tirunelveli District, empanelling juniors, cannot be said to be faulty.
36.Rule 23 of the Tamil Nadu State and Subordinate Service Rules is as follows:-
''23. (a) (i) Date of Commencement of probation of persons first appointed temporarily - If a person appointed temporarily either under sub- rule (a) or sub-rule (b) of the rule 10 to fill a v vacancy in any service, class or category otherwise than in accordance with the rules governing appointment thereto, such vacancy being a vacancy which may be filled by direct recruitment, is subsequently appointed to the service, class or category in accordance with the rules, he shall commence his probation if any, in such category either from the date of his first temporary appointment or from such subsequent date, as the appointing authority may determine. If the post is one to which appointment may be made by transfer, and the person who had been appointed the there to either under General Rule 10(a) or 10(d) is subsequently recruited thereto by transfer and included in the list of approved candidates, the appointing authority may, in his discretion, allow such person to commence his probation if any, from the date of his first temporary appointment or from such subsequent date, as the appointing authority may determine:
Provided that the date so determined by the appointing authority to commence probation in this clause, shall not be earlier than the date of commencement of probation of the junior most person already in service. *Added in G.O.Ms.No.429, P&AR, dt.17-4-86 w.e.f. 23.9.1983.
Provided further that on the date so determined by the appointing authority to commence probation in this clause, the person shall not only possess all the qualifications prescribed for appointment to the service but also be fit for inclusion in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or the appointing authority, as the case may be.) *Added in G.O.Ms.No.429, P&AR, dt.17-4-86 w.e.f. 17.4.1986.
(ii) A person who commences probation under clause (i) shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of his probation. Where commencement of probation is ordered from a date earlier than the date of the order and if this had not been enabled by relaxation of any rule, he shall draw increments, including arrears, in this time-scale, of pay applicable to him from such earlier date.
The appointing authority shall include a provision to this effect while issuing orders in all such cases.
(b) Service in a different service counting for probation?A probationer in a service or a class or category of service shall be eligible to count for probation, his service, if any, performed otherwise than in a substantive capacity on regular appointment to another service in accordance with the rules if the normal method of recruitment to the latter service is, according to the rules, by transfer from the former service or the class or category thereof, as the case may be.
(c) Service in a higher category counting for probation?A probationer in any category of a service or class of a service shall be eligible to count for probation, his service, if any, performed otherwise than in substantive capacity on regular appointment to a higher category of the same service or class of service, as the case may be. Nothing contained in this sub-rule shall be construed as authorising the promotion of a probationer in a category to a higher category in contravention of rule 36.
(d) Temporary service counting for probation?A probationer in one service who is appointed temporarily to another service, Subordinate or State, under sub-rule (a) or sub-rule (d) of rule 10 shall be entitled to count towards his probation in the former service the period of duty performed by him in the latter service during which he would have held a post in the former service but for such temporary appointment.
(e) Service on temporary promotion counting for probation?A probationer in any category of a service who is promoted temporarily under the provisions of rule 39 to a higher category in the same service shall be entitled to count towards his probation, if any, in the former category the period of duty performed by him in the latter category during which he would have held a post in the former category but for such temporary promotion.
(f) Military duty to count for probation?The period of Military or a probationer shall count towards his probation in the post held by him prior to his joining military duty; it shall also count towards his probation in the post to which he may be appointed under rule 9.
(g) Service under foreign service to count for probation?A probationer in a category or class of a service who is or has been deputed to foreign service shall be entitled to count towards his probation in that particular category or class of the former service, the period of duty performed by him under foreign service during which he would have held a post in the former service; Provided that the scale of pay applicable to the post in foreign service is either equal or higher than that applicable to the post in the parent department and that the duties and responsibilities of the posts are comparable.''
37.Rule 26 of the Tamil Nadu State and Subordinate Service Rules, is as follows:-
''26. Termination or extension of probation - (a) Where the special rules of any service prescribe a period of probation for appointment as a full member of the service, or where such period of probation has been extended under General Rule 28, the appointing authority may, at any time before the expiry of the prescribed period of probation or the extended period of probation, as the case may be?
(i) discharge a probationer from the service for want of a vacancy; or
(ii) at its discretion, by order, either extend the period of probation of the probationer in case the probation has not been extended under General Rule 28 or terminate his probation and discharge him from service after giving him a reasonable opportunity of showing cause against the proposed termination of probation;
Provided that where a probationer has been given reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in clauses (iv), (vi), (vii) and (viii) of rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and at the conclusion of the disciplinary proceedings a tentative conclusion is arrived as to terminate his probation, a further opportunity of showing cause specifically against termination of his probation need not be given to him.
Explanation - An opportunity to show cause may be given after the appointing authority arrives at a provisional conclusion on the suitability or otherwise of the probationer for full membership of the service, either by such authority himself or by a subordinate authority who is superior in rank to the probationer.
(b) (i) If within the period of probation a probationer fails to acquire the special qualifications or to pass the special tests if any, prescribed in the Special Rules or to acquire such other qualifications as may be declared by the State Government or by the appointing authority with the approval of the State Government to be equivalent to the said special qualifications or special tests, the appointing authority shall, by order, discharge him from the service unless the period of probation is extended under rule 28.
(ii) If within the period of probation prescribed in the special rules for the service or within the extended period of probation, as the case may be, a probationer has appeared for any such tests or for any examinations in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has so appeared are not known before the expiry of such period, he shall continue to be on probation until the publication of the results of the tests or examinations for which he has appeared or the first of them in which he fails to pass, as the case may be. In case the probationer fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall, by order, discharge him from the service. *Explanation - The maximum period upto which the probation of a Government servant shall be extended so as to enable him to acquire the test qualification, be fixed as five years. If he does not acquire the test qualification even within the maximum period of five years, he shall be reverted and the qualified and eligible juniors shall be considered for promotion. If such a person is appointed by direct recruitment and has not acquired the test qualification even within the maximum period of five years, his probation shall be terminated.
*Added in G.O.Ms.No.1168, P&AR (Per.P), dt.20-11-81, w.e.f 3-3-81.
(iii) Any delay in the issue of an order discharging a probationer under clause (i) or clause (ii) shall not entitle him to be deemed to have satisfactorily completed his probation.''
38.Though Mr.G.Thalaimuthrasu, learned counsel for the 1st respondent/M.Balusamy, by referring to the Explanation to Rule 26 of the Tamil Nadu State and Subordinate Service Rules contended that the maximum period, the probation of a Government servant can be extended upto 5 years, so as to enable him to pass the tests and if such Government servant does not acquire the qualification, within the maximum period of five years, then only he shall be reverted and that qualified and eligible juniors can be considered for promotion, and if such person appointed by direct recruitment, does not acquire the qualification, within the maximum period of 5 years, his probation shall be terminated, as rightly pointed out by the learned Special Government Pleader, the said provision can be made applicable, only to direct recruits.
39.In this context, it is worthwhile to consider the provision in Tamil Nadu Panchayat Development Engineering Subordinate Service Rules, the Special Rules applicable to the case on hand. Rule 6 of the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules, deals with probation. It states that every person appointed to any other categories, by direct recruitment, shall from the date on which he joins duty, be on probation for a total period of two years on duty with the continuous period of 3 years. Rule 7 of the said Special Rules speaks about the tests to be passed by the direct recruits, which reads as follows:-
''(7) Tests : (a) Every person appointed to the post of Overseer by direct recruitment shall within the period of his probation, shall pass the Account Test for PWD Officers and Subordinates and Paper IV of the Department test for Officers of the Panchayat Development Department viz. TamilNadu Panchayats Act 1994 with the rules and orders issued there under conducted by the TamilNadu Public Service Commission.
(b) If the person appointed by direct recruitment as Overseer has failed to pass the above tests within the period of probation, further increments shall be stopped without cumulative effect to a maximum of five years within which the person has to pass the above tests, if failing which the person shall be terminated from service.''
40.As rightly contended by Mr.A.K.Baskarapandian, learned Special Government Pleader, passing of tests and also extension of probation upto a maximum of 5 years, apply, only to direct recruits to the post of Overseer, and not for a promotee from the category of Road Inspectors. For inclusion in the panel of Overseers, by way of promotion, Road Inspectors should not only possess the educational qualification and experience, but also should have passed, (a)The Account Test for PWD Officers and Subordinates;
(b)Paper-IV of the Departmental Test for Officers of the Panchayat Development Department namely, Tamil Nadu Panchayats Act, 1994 and the rules and orders issued thereunder.
41.Rules are very clear, which state that person to be appointed by promotion, must have passed the above tests and it is not after the appointment as Overseer, by promotion, he can pass the above tests.
42.The contention of the learned counsel for the 1st respondent/M.Balusamy, that there is no need to pass the Account Test for PWD Officers and Subordinates Part-I, for inclusion in the panel, is contrary to the statutory Rules and therefore, rightly, the name of the 1st respondent, has not been included in the panel, for the post of Overseer 2015-16.
43.As rightly pointed out by the learned Special Government Pleader, the conclusion of the Writ Court that the 1st respondent/M.Balusamy had passed the departmental tests and thus qualified for inclusion, in the panel for the post of Overseer 2015-16, is not correct.
44.In the light of the above discussion, we are of the view that the appellants in all the appeals, have made out a strong case for interference with the order made in W.P(MD)No.8384 of 2015, dated 05.10.2015. There is no manifest error, in the panel, dated 12.05.2015, for the post of Overseer 2015-16. Hence, the order made in W.P(MD)No.8384 of 2015 dated 05.10.2015 is set aside and consequently, W.P(MD)No.8384 of 2015 is dismissed.
45.Resultantly, instant appeals are allowed. No costs. Consequently, C.M.P(MD)Nos.2945 and 3106 of 2016 and M.P(MD)No.1 of 2015 are closed.
To
1)The Director, Rural Development and Panchayat Raj Department, Panagal Building, Chennai-600 009.
2)The District Collector, Tirunelveli District, Tirunelveli..