Madras High Court
N.Nagamuthu vs State Of Tamilnadu Represented By Its on 21 December, 2018
Equivalent citations: AIRONLINE 2018 MAD 2075
Author: C.Saravanan
Bench: C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.12.2018
CORAM
THE HONOURABLE MR. JUSTICE C.SARAVANAN
W.P(MD).No.14003 of 2014
and M.P.(MD).No.1 of 2014
N.Nagamuthu .. Petitioner
Vs.
1.State of Tamilnadu represented by its
Secretary to Government,
Housing Unit and Urban Development Department,
Fort St. George, Chennai.
2.The Managing Director, Tamilnadu Housing Board,
493, Annasalai,
Nandanam, Chennai.
3.The Executive Engineer and Administrative Officer,
Tamilnadu Housing Board,
Madurai Housing Unit, Ellis Nagar, Madurai – 16.
Madurai District. .. Respondents
PRAYER: Writ Petition is filed under Article 226 of Constitution of India
for issuance of Writ of Certiorari to call for the records pertaining to the
impugned order of reduction in rank in Executive Proceedings
No.Pa.Tho.Nu.A2/18518/07, dated 14.08.2014 on the file of the
respondent No.2 and quash the same as illegal.
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.A.Thiyagarajan for R1
Government Advocate
Mr.R.Janarthanan for R2 and R3
http://www.judis.nic.in
2
ORDER
Short Point for consideration in the present writ petition is whether the respondents were justified in reverting the petitioner to the post of Gardener after having promoted to the post of Junior Assistant on 26.06.2012. The promotion was subject to the following conditions:-
i. the candidates should produce their Educational certificates, ii. after production of the same, the salary will be fixed, and iii. thereafter they have to report.
2.The petitioner herein was appointed as gardener in the year 1982 and was promoted as a Junior Assistant since he completed Pre-
foundation Course from the Madurai Kamaraj University in the year 2000. As per G.O.Ms.No.528 dated 18.05.1985, the Government of Tamilnadu has considered and recognised a pass in foundation course of Madurai Kamaraj University (open university) equivalent to pass higher secondary course of Tamilnadu Government. This was issued after consultation with the Tamilnadu Public Service Commission, Madras and Madras University and the Director of School Education.
3.The grievance of the petitioner is that after having promoted as a Junior Assistant, he was unceremoniously reverted in the rank to Gardener by the impugned order, dated 14.08.2014 without following the principles of natural justice.
4.The learned counsel for the petitioner submitted that the issue is no longer Res-Integra in the light of the decision of the Division Bench http://www.judis.nic.in 3 of this Court, in W.A.253 of 2017, dated 14.07.2017, wherein it is held as follows:
“It is a well settled principle of law that a communication of the Government issued through a letter cannot over ride the Government order issued under Article 162 of the Constitution of India. There is something called hierarchy of laws. The constitution is the supreme law. Next would come Acts. That would be followed by Rules.
Similarly, a governmental communication or instruction would stand at a level lower than a formally issued Government Order. In this case, G.O.Ms.No.528, dated 18 May 1985 would certainly prevail over the communication, dated 08 August 2013 issued by the Secretary to Government, P & AR Department.”
5.The learned counsel also drew my attention to yet another decision of this Court in W.P.No.14658 of 2011. The petitioner therein had also passed S.S.L.C (11 years) and thereafter completed second year foundation course in the year 1983-1984 which was equivalent to 10+2 pattern. Thereafter, he completed three years B.Com. decree course from Madurai Kamaraj University during 1984-1987 through correspondence. He has not considered for being promoted on the ground that he did not possess the requisite qualifications. The Court held that the petitioner therein ought to have considered for being included in the panel of promotion to the post of Under Secretary to Government in the year 2010-2011.
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6.Countering the arguments advanced on behalf of the petitioner, the learned counsel for the respondents submitted that G.O.Ms.No.528 Personnel and Administrative Reforms (Per.R) Department, dated 18.05.1985 has been substituted by G.O.Ms.No.107, dated 18.08.2009, wherein it has been clearly specified that, 3/nkw;fz;l fUj;JUkPJ ,izf;fy;tp 3. The Secretary, Tamil Nadu Public eph;za ghprPypg;g[f; FGtpd; Service Commission was requested to ghpe;Jiuiag; bgw;W mDg;g[khW forward the recommendation made by jkpH;ehL muRg; gzpahsh;
Equivalence Committee on the
njh;thizaf;FGtpd; brayh; nfl;Lf;
bfhs;sg;gl;lhh;/ ,izf; fy;tpj;jFjp aforesaid proposal. The Equivalence
eph;zaf; FG. gs;sp nky;eiyf; fy;tpj; Committee recommended that the
njh;tpy; njh;rr; p bgwhky;. jpwe;j persons who have obtained B.Sc., B.A.
btspg; gy;fiyf;fHf';fspy; ,sk; degree in Open Universities without
mwptpay; kw;Wk; ,s';fiyg; (B.Sc., having passed the higher secondary
B.A.,) gl;lk; bgw;wth;fis. khepy school examination, cannot be
considered either for employment or
murpd; +2 njh;tpy; njh;r;rp bgw;wth;fs;
vdf; fUjp muRg; gzpfspy; gzp promotion in government service by
epakdj;jpw;nfh my;yJ gjtp considering them to have passed the
cah;t[fSf;nfh fUj ,ayhJ vdg; +2 examinations of the State
ghpe;Jiuj;jJ/ ,f;fUj;JUtpid ,i Government. Even when the said
zf;fy;tp eph;zaf; FGtpd; proposal was sent again for the
gph;eJiuf;fhf kPz;Lk; mDg;gpa recommendation of the Equivalence
nghJk;. Vw;fdnt vLj;j Committee, it insisted on the decision
jPh;khdj;ijna kPz;Lk; typa[Wj;jpaJ/ already taken.
4/,g;ghpe;Jiuapid muR ftdkhfg;
4. The Government carefully
ghprPypj;J. ,izf;fy;tp eph;za
ghprPypg;g[f; FGtpd; ghpe;Jiuapid examined this recommendation and
Vw;Wf; bfhs;s KobtLj;J. having decided to accept the
mjw;fpz';f. gs;sp ,Wjpj; recommendation of the Equivalence
njh;t[ (gj;jhk; tFg;g[) kw;Wk; gs;sp Committee issues an order recognizing
nky;eiyf; fy;tpj; njh;t[ (+2) the degrees in Diploma/Degree/Post-
Mfpaitfspy; njh;r;rp bgw;wg;gpd;. Graduate degree obtained through
jpwe;jbtspg; gy;fiyf;fHf';fspd; Open Universities only after having
tHpahfg; bgwg;gLk; gl;lak;-gl;lk;- passed secondary school examination
KJfiyg; gl;l';fis kl;Lk; (10th Std.) and higher secondary school
bghJg;gzpfspy; epakdk;-gjtp
cah;t[ bgw m';fPfhpj;J examination (+2) alone for
MizapLfpwJ/ appointment/promotion in Public
Services.
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7.The learned counsel for the respondent also drew my attention to Government letter, dated 03.12.2010, wherein the issue was considered and it was the view of the Government that a Degree awarded by the Open University after passing Pre-foundation course and two year foundation course through Open University cannot be recognised as a Degree for the purpose of appointment since such pre-foundation course and two years foundation course are not contemplated in the University Grants Commission.
8.It was further submitted that those who obtained Degree after passing the pre-foundation course and two years foundation course without passing 10th standard and +2 examination did not satisfy the conditions laid in G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department, dated 18.08.2009 and was in consonance with the issues of the Honourable Supreme Court of India.
9.Finally, learned counsel for the respondent submitted that the promotions were only based on conditions and did not guarantee promotion if a person did not possess the requisite qualification.
10.The respondent have also filed a counter, wherein similar defence has been taken.
11.I have gone through the facts of the case and considered the arguments advanced on either side. The petitioner was appointed as gardener in the year 1982 and was promoted as a Junior Assistant only in the year 2012 and thereafter reverted as a gardener on the ground that http://www.judis.nic.in 6 he did not possess requisite qualification.
12.The impugned order has been passed by the second respondent pursuant to an anonymous complaint and does not refer to either G.O.Ms.No.528, dated 18.05.1985 or G.O.Ms.No.107, dated 18.08.2009. It states that the petitioner was not qualified as he had merely obtained a pre-foundation course.
13.In my view, the G.O.Ms.No.528, dated 18.05.1985 and G.O.Ms.No.107, dated 18.08.2009 operate at different level. G.O.Ms.No. 107, dated 18.08.2009, specifically deals with persons who have procured higher qualifications based on the foundation and pre-foundation course offered by open university and therefore such persons were dis-entitled for appointment in public service.
14.However, G.O.Ms.No.528, dated 18.05.1985 specifically deals with the issue under consideration. Therefore, it would be improper to assume that G.O.Ms.No.528, dated 18.05.1985 stood dilated, substituted or repealed with the issuance of G.O.Ms.No.107, dated 18.08.2009 by implication.
15.The post of gardener and Junior Assistant are Class – IV category. The qualifications prescribed are minimum. Therefore, it would be un-just to deny the benefit of G.O.Ms.No.528, dated 18.05.1985 to the petitioner. Consequently, the writ petition deserves to be allowed. The impugned order of reduction in rank in Executive Proceedings No.Pa.Tho.Nu.A2/18518/07, dated 14.08.2014 on the file of the second http://www.judis.nic.in 7 respondent is quashed with consequential benefits to the petitioner. No costs. Consequently, connected miscellaneous petition is closed.
21.12.2018
Index : Yes / No
Internet : Yes / No
TM
Note: Issue order copy on 02.01.2019
To
1.The Secretary, Tamilnadu State Government, Housing Unit and Urban Development Department, Fort St. George, Chennai.
2.The Managing Director, Tamilnadu Housing Board, 493, Annasalai, Nandanam, Chennai.
3.The Executive Engineer and Administrative Officer, Tamilnadu Housing Board, Madurai Housing Unit, Ellis Nagar, Madurai – 16. Madurai District.
http://www.judis.nic.in 8 C.SARAVANAN,J.
TM W.P(MD).No.14003 of 2014 21.12.2018 http://www.judis.nic.in