Madras High Court
K.Dharma Raj vs The State Of Tamil Nadu on 5 April, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.04.2018
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)Nos.23102, 23918 and 23265 of 2016
and
W.M.P.(MD)Nos.16574 to 16576, 16704, 16705,
17255 of 2016 and 2881, 3561 of 2017
K.Dharma Raj ... Petitioner
in W.P.(MD)Nos.23102 and 23918 of 2016
P.Thacker Poomathi ... Petitioner in W.P.(MD)No.23265 of 2016
-Vs-
1.The State of Tamil Nadu,
Rep by its Principal Secretary,
Department of Municipal Administration & Water Supply,
Secretariat, Chennai-9.
2.The Director of Town Panchayat,
O/o, the Director of Town Panchayat,
IV Floor, Kuralagam, Chennai-108.
3.The District Collector,
Tuticorin District,
Tuticorin.
4.S.Vijaya Bharathi
.. Respondents in W.P.(MD)No.23102 and 23918 of 2016
1.The State of Tamil Nadu,
Rep. by Secretary to Government,
Department of Municipal Administration
and Water Supply (Town Panchayats),
St.George Fort, Chennai-600 009.
http://www.judis.nic.in
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2.The Director of Town Panchayat,
O/o, the Director of Town Panchayat,
IV Floor, Kuralagam,
Chennai-108. ..Respondents in W.P.(MD)No.23265 of 2016
Prayer in W.P.(MD)No.23102 of 2016: Writ Petition is filed under
Article 226 of the Constitution of India praying for the issuance
of a Writ of Certiorarified Mandamus, to call for records
pertaining to the impugned order in Na.Ka.No.3030/2016-2(5)/A6
dated 26.11.2016 on the file of the respondent No.2 in so far as
promoting the respondent No.4 in the place of the petitioner and
consequently for a direction, forbearing the respondent No.2 and 3
from reverting the petitioner from the post of Overseer at
Sathankulam Selection Grade Town Panchayat, Tuticorin District in
Violation of the Principles of natural Justice.
Prayer in W.P.(MD)No.23918 of 2016: Writ Petition is filed under
Article 226 of the Constitution of India praying for the issuance
of a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned order in Na.Ka.No.3030/2016-1(3)/A6
dated 26.11.2016 on the file of the respondent No.2 in so far as
reverting the petitioner from the post of Overseer at Sathankulam
Selection Grade Town Panchayat, Tuticorin District and quash the
same as illegal.
Prayer in W.P.(MD)No.23265 of 2016: Writ Petition is filed under
Article 226 of the Constitution of India praying for the issuance
of a Writ of Certiorarified Mandamus, to call for records
pursuant to the impugned order passed by the 2nd respondent in
Na.Ka.No.3030/2016-1(1)/A6, dated 26.11.2016 in so for as it
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relates to the petitioner alone, quash the same and consequently
directing the respondents 1 and 2 herein to permit the petitioner to
continue as 'Work Supervisor' in Reethapuram Town Panchayat,
Kanyakumari District and continue to pay all the monitory and
service benefits for the post of 'Work Supervisor' w.e.f.,
03.03.2016.
For Petitioner : Mr.Aswin Rajasekar
For R1 to R3 : Mr.B.Pugalendhi,
Additional Advocate General
assisted by Ms.Srimathy,
Additional Government Pleader
(for W.P.(MD)Nos.23102, 23918 of 2016)
For Petitioner : Mr.Isaac Mohanlal, Senior Counsel
for S.Bharathy Kannan
For Respondents : Mr.B.Pugalendhi,
Additional Advocate General
(for W.P.(MD)No.23265 of 2016)
COMMON ORDER
The prayer sought for in each of the writ petition is as follows:-
W.P.(MD)No.23102 of 2016 has been filed to call for the records pertaining to the impugned order in Na.Ka.No. 3030/2016-2(5)/A6 dated 26.11.2016 on the file of the second respondent insofar as promoting the fourth respondent in the place of the petitioner and consequently for a direction, forbearing the second and third respondents from reverting the petitioner from http://www.judis.nic.in 4 the post of Overseer at Sathankulam Selection Grade Town Panchayat, Tuticorin District in violation of the principles of natural justice.
2.W.P.(MD)No.23918 of 2016 has been filed to call for the records pertaining to the impugned order in Na.Ka.No. 3030/2016-1(3)/A6 dated 26.11.2016 on the file of the second respondent insofar as reverting the petitioner from the post of Overseer at Sathankulam Selection Grade Town Panchayat, Tuticorin District and quash the same as illegal.
3.W.P.(MD)No.23265 of 2016 has been filed to call for the records pursuant to the impugned order passed by the second respondent in Na.Ka.No.3030/2016-1(1)/A6, dated 26.11.2016 insofar as it relates to the petitioner alone and quash the same and consequently to direct the first and second respondents herein to permit the petitioner to continue as 'Work Supervisor' in Reethapuram Town Panchayat, Kanyakumari District and continue to pay all the monitory and service benefits for the post of 'Work Supervisor' with effect from 03.03.2016.
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4.Since the issue raised in these three writ petitions are similar or interconnected with each other, all these writ petitions were heard together and are being disposed of by this common order.
5.The necessary facts, which are required to be noticed for the disposal of these writ petitions, are as follows:-
(i) The petitioner in W.P.(MD)No.23102 of 2016 was appointed as Technical Assistant on 01.07.1991 on daily wage basis. Later on, his service was regularized in the post of Work Inspector on 22.10.2008. The next promotional avenue for the Work Inspector is the post of Overseer, for which, the necessary qualifications shall be Diploma in Civil, Mechanical or Electrical Engineering, with not less than five years experience in the post of Work Inspector. According to the petitioner, the petitioner had in possession of Diploma in Civil Engineering and also had five years experience as Work Inspector. He was considered and promoted to the post of Overseer vide proceedings of the second respondent dated 03.03.2016. Accordingly, the petitioner was directed to join duty as Overseer at Sathankulam Selection Grade Town Pachayat, Tuticorin District and he was also relieved from the post of Work http://www.judis.nic.in 6 Inspector on 04.03.2016. Therefore the petitioner was working as Overseer at the said town Panchayat from 04.03.2016.
(ii)While so, the fourth respondent, who was junior in service to the petitioner, had filed W.P.No.10324 of 2016 before the Principal Seat of this Court at Madras, challenging the promotion given to the petitioner on the ground that the petitioner did not have eligible qualification. During the pendency of the writ petition, the second respondent had issued the impugned order on 26.11.2016, thereby the fourth respondent has been promoted as Overseer in the place of the petitioner by way of reverting the petitioner to the post of Work Inspector. The said order dated 26.11.2016 was issued without giving any notice to the petitioner and therefore, aggrieved over the same, the petitioner had filed this writ petition.
(iii)In respect of W.P.(MD)No.23265 of 2016, the petitioner namely, D.Thackar Poomathi was appointed as Work Inspector on 20.10.2008 at Manavalakurichi Town Panchayat, Kanyakumari District. After completion of seven years of service, based on his seniority by an order dated 03.03.2016, he was http://www.judis.nic.in 7 promoted as Work Supervisor (Overseer) by the second respondent herein and on the same day, he was transferred to Surandai Town Panchayat, Tirunelveli District. After completing eight months of services at the transferred place, the petitioner was again transferred on administrative reasons to Reethapuram Town Panchayat, Kanyakumari District on 04.11.2016. When the petitioner was working at the transferred place, on 26.11.2016, the second respondent issued a proceedings reverting the petitioner from the post of Work Supervisor to the post of Work Inspector and transferred him to Balasamudram Town Panchayat, Dindigul District, which is situated nearly 320 kilometers from the present working station of the petitioner. Therefore, aggrieved over the said order of demotion or reversion dated 26.11.2016, the petitioner has moved this writ petition with the aforesaid prayer.
(iv)When the said writ petition in W.P.(MD)No.23102 of 2016 was pending, the petitioner has filed another writ petition in W.P.(MD)No.23918 of 2016, challenging the order passed by the second respondent dated 26.11.2016 in and by which the petitioner has been reverted from the post of Overseer to the post of Work Inspector.
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6.In W.P.(MD)No.23102 of 2016, an interim order of stay was granted by this Court on 11.02.2016 for a limited period and thereafter it was extended by an order dated 22.12.2016 until further orders.
7.Similarly, in W.P.(MD)No.23265 of 2016, an interim order of stay was granted on 02.02.2016 for a limited period and subsequently on 06.01.2017, the said interim order was extended until further orders. Therefore, in both writ petitions, i.e., W.P.(MD)Nos.23102 and 23265 of 2016, interim orders were granted and the same had been extended until further orders. Therefore, interim orders of stay have been there till date in those writ petitions.
8.Mr.Aswin Rajasekar, learned counsel and Mr.Isaac Mohanlal, learned Senior counsel, appearing for the petitioners would submit that, the qualification prescribed for the promotion to the post of Work Supervisor, is only Diploma in Civil, Mechanical or Electrical Engineering with five years experience in the feeder category and since the petitioners have fulfilled the said qualifications, they had been considered for promotion and among http://www.judis.nic.in 9 various candidates numbering about more than 171, the petitioners also were considered based on their seniority and qualification and had been given promotion on 03.03.2016. However, without giving any notice and without any plausible reasons, the respondents have reverted the petitioners from the post of Work Supervisor to the post of Work Inspector by an order dated 26.11.2016. The said orders are in violation of principles of natural justice and therefore, the said orders are liable to be quashed.
9.The learned counsel appearing for the petitioners would also submit that the reasons stated in the impugned orders for reverting the petitioners were that, the petitioners obtained Diploma qualifications from the Janardan Rai Nagar Rajasthan Vidyapeeth University through correspondence mode of education and since the correspondence mode of education is not an approved method for consideration of the qualification obtained by the candidates for the purpose of public employment in the State of Tamil Nadu, the said promotion given to the petitioners as Supervisors were reverted.
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10.The learned counsel for the petitioners would submit that, with regard to the said reason that the diploma qualifications acquired by the petitioners are not a recognized or equivalent qualifications for the promotion to the post of supervisors, though they submitted relevant Government orders cited by the respondents in the impugned order i.e., G.O.No.149, Higher Education Department, dated 22.07.2016, the said Government Order has already been challenged by one of the petitioners herein and the said writ petition is also pending. The very purport of G.O.Ms.No.149 cannot be put against the petitioners for the reason that, the said order was issued only on 22.07.2016, whereas the promotion was given to the petitioners on 03.03.2016 that is well before the Government Order was issued. Therefore, the accrued right on the part of the petitioners, by way of getting promotion based on the qualifications already prescribed in this regard cannot be taken away by any subsequent declaration by way of issuance of Government Order and therefore, the main ground alleged by the respondents in the impugned order as the reason for reverting the petitioners cannot stand in the legal scrutiny and therefore, the said reason is liable to be rejected. http://www.judis.nic.in 11
11.The learned counsel for the petitioners would also submit that, no other disqualifications are attached with the petitioners as they have completed five years experience in the feeder category and they are also having educational qualifications of Diploma and therefore, for any other reason, the petitioners cannot be reverted back, that too, without any notice and therefore, the same shall be interfered with.
12.Per contra, Mr.B.Pugalendhi, learned Additional Advocate General, appearing for the official respondents would submit that, the Government has issued G.O.Ms.No.45, Municipal Administration Water Supply Department. As per the said Government Order, a draft service rules for Tamil Nadu Town Panchayat Engineering Services was framed and the same was sent to the the Government for approval and publication. Pending approval of the draft rule, since number of persons especially some of the Assistants working in various Town Panchayats had approached the High Court of Madras, Madurai Bench, wherein orders were passed on 13.03.2014, the Government decided to accept the recommendations of the Director of Town Panchayat and directed that pending approval of the draft rule, based on the http://www.judis.nic.in 12 eligible criteria fixed in the said draft rule promotion can be given on ad-hoc basis to various categories of employees, such as Overseers, draftsman, skilled Assistants Grade I and Grade II, Work Inspector, etc.,.
13.He would further submit that, pursuant to the said Government Order in G.O.Ms.No.75, the Government on the basis of the criteria fixed in the said draft service rules, through the Director of Town Panchayat, the second respondent has issued proceedings in Na.Ka.No.15108/2011/A6 dated 03.03.2016. As per the said proceedings 171 employees, such as Work Inspector, Electrician grade II, etc., have been given promotion either as Supervisor or draftsman throughout the state.
14.In view of the said promotion given to 171 eligible persons in the said proceedings of the second respondent dated 03.03.2016, the District Collectors on the same date i.e., on 03.03.2016 issued orders giving promotion to the respective employees working in the Town Panchayat offices at the respective districts. Only on ad hoc basis temporary promotion to these petitioners, on 03.03.2016, as Supervisors, have been given. At http://www.judis.nic.in 13 the time of giving such promotion to these petitioners and some other similarly placed persons, it was not brought to the notice of the authority that the qualifications that is the diploma obtained by the persons from a particular institution i.e., Janardan Rai Nagar Rajasthan Vidyapeeth University were already declared as not equivalent to the Diploma in Civil, Mechanical, Electrical Engineering awarded by the Board of Technical Education and Training, Tamil Nadu. The said declaration for non-equivalence was made in G.O.Ms.No.33, Municipal Administration and Water Supply (Metro Water) Department, dated 27.02.2014.
15.Such disqualification is attached with the petitioners and some other persons numbering about 20 as their diploma certificates issued by the said institution from Rajasthan were already declared to be not equivalent to the diploma certificate issued by the State Government. They had been wrongly given promotion as Supervisors. Therefore, the Government realised the mistake and in order to rectify the same, passed the order of reversion of 21 persons including the petitioners herein. http://www.judis.nic.in 14
16.The learned Additional Advocate General would further submit that, insofar as the plea raised by the petitioners that before passing order of reversion no notice was given to the petitioners is concerned, it is the case where the petitioners did not have the necessary and minimum educational qualifications for consideration to the post of Supervisor by way of promotion. Since the petitioners did not have the minimum educational qualification as their diploma has already been declared as not equivalent, notice, if any, given to the petitioners would be an empty formality. He would further submit that, the petitioners cannot improve their case as they were considered for promotion merely on the basis of their qualifications of diploma, which they received from the institution of Rajasthan as referred above.
17.The learned Additional Advocate General further submitted that, the principles of natural justice cannot be put in a straight jacket formula and it has to be applied on case to case basis and it depends upon the facts and circumstances of each and every case. It must be seen that, no useful purpose would be served, if an opportunity by way of notice is given to the petitioners.
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18.In respect of the said contention, the learned Additional Advocate General relied upon the decision of this Court reported in 2009 (5) CTC 700 in the case of A.Nallusamy and others Vs. The District Collector, Karur District and others.
19.The learned Additional Advocate General relied upon the following passages of the said judgment:-
“12.The Hon'ble Supreme Court has held that the principles of natural justice cannot be put in a straitjacket formula. The said principle has to be applied on a case to case basis and depends upon the facts and circumstances of each case. The law has developed over the years and the Hon'ble Supreme Court in several decisions has propounded the “useless formality theory”. By such interpretation, the Hon'ble Supreme Court has held that it has to be seen as to whether any purpose would be served by directing notice or opportunity to be given and if it is found that no such purpose would be served, the authority cannot be faulted for taking an action without affording of hearing or an opportunity. The case on hand is one such issue where the District Collector as the Head of the administration in the particular District has exercised his powers in cancelling such permission keeping in mind the public interest involved in the matter.” http://www.judis.nic.in 16
20.The learned Additional Advocate General further submitted that, since the petitioners have no minimum qualification prescribed for the post of Supervisor, certainly they would not be entitled or eligible to get promotion to the said post and therefore, the respondents have rightly reverted them to their original post and whenever they get qualified, they shall be considered.
21.I have heard the learned counsel for the fourth respondent in W.P.(MD)No.23102 of 2016, who adopts the arguments advanced by the learned Additional Advocate General. I have considered the arguments advanced by both sides and perused the entire materials placed before this Court.
22.It is not in controversy that these two petitioners were working as Inspectors which is the feeder category for the promotion to the post of Supervisor. For the post of Supervisor, the qualification prescribed under G.O.Ms.No.75 as per draft rule is as follows:-
http://www.judis.nic.in 17 Sl. Post Method of Qualification No. Appointment 1 2 3 4
1. Oversees/ By Promotion Must have put in 5 years of service Draught of Work Inspector in the Tamil Nadu Man Town Panchayat Engineering Sub-
ordinate Service with the diploma in Civil of Mechanical or Electrical Engineering issued by the State Board of Technical Education and Training department of Technical Education Government of Tamil Nadu
23.According to the said qualification, one must have put in five years of service as Work Inspector in Tamil Nadu Town Panchayat Engineering Subordinate Services with Diploma in Civil, Mechanical or Electrical Engineering issued by the Board of Technical Education and Training, Tamil Nadu.
24.The first and foremost contention of the learned counsel for the petitioners is that, since the rule was only a draft rule as the same has not been so far approved by the Government, the said qualification prescribed in the said draft rule as reflected in G.O.Ms.No.75 cannot be put against the petitioners and therefore on that ground their promotion can be retained. http://www.judis.nic.in 18
25.The said argument, at the outset, is liable to be rejected for the reason that, the very promotion itself was given to 171 persons including these petitioners only based on the qualification prescribed in the draft rule, which has been reflected in G.O.Ms.No.75 and the said Government Order was issued to give promotion without stagnation to the eligible employees based on the qualification prescribed in the draft rule by way of ad-hoc basis. Had G.O.Ms.No.75 was not issued, these petitioners would not have been considered for promotion. Therefore, the petitioners cannot make an argument that based on the qualification prescribed under G.O.Ms.No.75 eligibility of the petitioners cannot be considered and it is liable to be rejected.
26.The learned Additional Advocate General has relied upon the two Government Orders namely G.O.Ms.No.33, Municipal Administration and Water Supply (Metro Water) Department, dated 27.02.2014 and G.O.Ms.No.149, Higher Education Department dated 22.07.2016. Insofar as G.O.Ms.No.149, Higher Education Department, dated 22.07.2016 is concerned, the relevant portion of the Government Order relating to the issue raised herein, reads thus:-
http://www.judis.nic.in 19 “3.The Government, after careful examination, have decided to accept the recommendation of the 53rd Equivalence Committee held on 28.01.2016 in them No.14 and accordingly, direct that the following educational qualification possessed by the candidates is not equivalent to the courses mentioned therein.
Name of the Courses Equivalent/ Not
Equivalent
Public Services –
Educational
Qualification
-Diploma / B.E., Not Equivalent
degree qualification
acquired through
Distance Education
mode-whether can be
considered as
equivalent to the
qualification acquired
through regular
stream for the purpose
of Employment in
Public Services.
(By order of the Governor)”
27.Similarly, the relevant portion of the Government Order in G.O.33, reads thus:-
2.The Secretary, Tamil Nadu Public Service Commission(TNPSC) in the letter second read above, http://www.judis.nic.in 20 has stated that the matter of consideration of Diploma in Civil Engineering Certificate (Under Distance Education) awarded by Janardan Rai Nagar Rajasthan Vidyapeeth (DEEMED) University as equivalent to Diploma in Civil Engineering awarded by the Board of Technical Education and Training Tamil Nadu for the post of Surveyor-Cum-Draughtsman was placed before the 42nd Equivalence Committee meeting held on 16.08.2013 and the subject matter was discussed by the Equivalence Committee in detail and the following resolution was passed:-
Agenda Subject Recommendat
ion of the
Committee
Item No.1 Not
Public Services Educational Qualification – Equivalent
Consideration of Diploma in Civil Engineering Certificate (Under Distance Education) awarded by Janardan Rai Nagar Rajasthan Vidyapeeth (DEEMED) University – as equivalent to Diploma in Civil Engineering awarded by the Board of Technical Education and Training, Tamil Nadu – for the post of Surveyor – Cum -Draughtsman – Regarding.
3.The Secretary, Tamil Nadu Public Service Commission (TNPSC) has requested the Government, to http://www.judis.nic.in 21 issue necessary orders in this regard and communicate the same to the Commission.
4.The Government after careful consideration have decided to accept the recommendation of the Equivalence Committee of the Tamil Nadu Public Service Commission (TNPSC) and decide that the Diploma in Civil Engineering Certificate (Under Distance Education) awarded by Janardan Rai Nagar Rajathan Vidyapeethy (DEEMED) University is not equivalent to the Diploma in Civil Engineering awarded by the Board of Technical Education and Training, Tamil Nadu and order accordingly.”
28.In respect of G.O.Ms.No.149, two-fold arguments were made by the learned counsel for the petitioners. Their first argument is that the qualification which was certified in G.O.Ms.No.149 is only in respect of the Diploma or B.E. degree qualification acquired through distance education mode and in this regard they would submit that the said evaluation was made and declared as not equivalent to Diploma or B.E.Degree acquired through distance education because, it was the dictum of AICTE. It is not the permitted institution to conduct courses for technical education through distance education mode. Such issue had been considered by the Hon'ble Apex Court in the deemed university http://www.judis.nic.in 22 case in a recent judgment wherein some relief has been given to those who have joined in the courses and got degrees and diploma upto a particular year. Therefore, the import of the G.O.Ms.No. 149, since has been diluted considerably, the same cannot be put against the petitioners.
29.The second argument advanced by the learned counsel for the petitioners is that, the very Government Order itself was issued only on 22.07.2016 whereas the petitioners had been given promotion on 03.03.2016. Hence, the import of G.O.Ms.No.149 cannot be put against the petitioners, as the Government Order will not have any retrospective effect.
30.Insofar as the two arguments made by the learned counsel for the petitioners in respect of the G.O.Ms.No.149 is concerned, this Court is of the view that, without going into the merits of the arguments, with regard to G.O.Ms.No.149, the issue raised in these petitions can be decided. Even assuming that G.O.Ms.No.149 cannot be put against the petitioners, the petitioners whether can be escaped from the exercise of demotion or reversion in the teeth of G.O.Ms.No.33 is to be looked into. http://www.judis.nic.in 23
31.The import of the G.O.Ms.No.33 has already been extracted herein above. As per the Government Order in G.O.Ms.No.33, diploma in Civil, Mechanical or Electrical Engineering certificate under distance education issued by Janardan Rai Nagar Rajasthan Vidyapeeth Deemed University is not equivalent to the certificate issued by the Board of Technical Education and Training, Tamil Nadu and therefore, they were reverted accordingly.
32.The diplomas issued by a particular institution were referred to the equivalence committee for evaluation and declaration and after such exercise, the equivalence committee/ TNPSC given its decision with regard to equivalence stating that it is not equivalent to the diploma issued by the Board of Technical Education and Training, Tamil Nadu and the same has been published by way of Government Order. Certainly, the said declaration shall have a bearing on those persons who received diploma from the particular institution. Moreover, the said G.O.Ms.No.33 was issued on 27.02.2014 itself i.e., well before the G.O.Ms.No.75, which was issued on 05.02.2016 and only thereafter promotion to these petitioners were given on 03.03.2016. http://www.judis.nic.in 24 Therefore on the date of issuance of G.O.Ms.No.75 and also on the date of granting promotion to these petitioners and others i..e., on 03.03.2016, the earlier G.O.Ms.No.33 dated 27.02.2014 was already available and therefore, before considering the case of the petitioners and similarly placed persons for giving promotion to the post of Supervisor based on the qualification prescribed in G.O.Ms.No.75, the respondents should have taken into account the earlier G.O.Ms.No.33 through which they miserably failed in this case. Merely because the authorities have failed to note the law, which was prevailing at a particular point of time, any illegality committed by the authorities, which may be in favour of individuals/ employees, such illegality cannot be cured at the later point of time. Especially in the case of service jurisprudence, if an appointment or promotion is given, where some requirements have not been fulfilled and those requirements can be rectified later. At the same time when the basic minimum educational qualification prescribed for any appointment or promotion in public employment is not fulfilled and in respect of such non fulfilment, if any appointment or promotion is given, such exercise cannot be permitted to be an irregular exercise but it can be framed only as illegal exercise. In other words, it shall not be treated as irregular http://www.judis.nic.in 25 appointment but shall be only treated as illegal appointment. Therefore if irregular appointment or promotion is made at the initial stage, the same cannot be rectified later. Therefore, the authority would not have any other option except to revert the position by rectifying the same and not retaining such appointment or promotion and permitted such illegality to continue. If such illegality is permitted to continue that will create a bad precedent as number of such ineligible candidates can claim such benefit.
33.In the case in hand, since the minimum educational qualification of diploma has not been fulfilled by the petitioners, and the diploma awarded to them by the Rajasthan deemed university has been declared to be not equivalent to the diploma awarded by Board of Technical Education and Training, Tamil Nadu, their appointment/promotion cannot be stated to be irregular appointment but only can be treated as illegal appointment/promotion. When that being the position, the challenge now made in W.P.(MD)Nos.23265 and 23918 of 2016 pertaining to reversion order made by the respondent against the petitioners, the petitioners did not make out a case seeking indulgence of this Court.
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34.Insofar as W.P.(MD)No.23102 of 2016 is concerned, the grievance of the petitioner in this writ petition is that, since the fourth respondent has been given promotion to the post as held by the petitioner (promotional post) as supervisor without reverting the petitioner is illegal and therefore, he challenged the such promotion given to the fourth respondent. However, on the very same date i.e., on 26.11.2016 both orders were passed i.e., order giving reversion to the petitioner and the order giving promotion to the fourth respondent to the place where the petitioner had occupied. Once the petitioner is not entitled to claim promotion, because he did not have the required eligible educational qualification as prescribed in G.O.Ms.No.75 in view of the declaration made by the equivalence committee in G.O.Ms.No.33, he was reverted to the original position as Work Inspector which is fully justified.
35.Once the reversion of the petitioners is justified, there is absolutely no impediment for the respondent to post the fourth respondent in the place of the petitioner in W.P.(MD)No.23102 of 2016. Therefore the said order impugned in that writ petition dated 26.11.2016 is fully justifiable as the same cannot be assailed by the petitioner for any plausible reason.
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36.In view of the aforesaid discussions, all the three writ petitions are liable to be rejected. Accordingly these writ petitions are dismissed.
37.During the hearing the learned counsel appearing for the petitioner in W.P.(MD)No.23265 of 2016 submitted that, the petitioner, after reversion had been transferred to Dindigul District which is more than 350 kms away from the place, where the petitioner was originally working. Therefore he seeks indulgence of this Court to consider the case of the petitioner to retain him in the original post either in the original place or in the nearby place in the same district. It was also submitted by the learned counsel appearing for the petitioner that interim order of stay was granted in the above said two writ petitions at the admission stage itself and the stay was extended until further orders and till today the stay is in force.
38.Whileso the respondents have not permitted the petitioners to join in the promotional post. Therefore the petitioners filed the contempt petitions Nos.149 and 519 of 2017 for the alleged disobedience of the interim order passed by this http://www.judis.nic.in 28 Court. When the contempt petitions came up for hearing before this Court, it, by an order dated 06.04.2017 has passed the following order:-
“Post on 24.04.2017, along with the petition to vacate the interim order, since the petitioner grievance is that they were not paid salary nor allowed to work, the respondents are directed to pay salary which is applicable to the promotional post.”
39.With regard to the said order, it was submitted by the learned Additional Advocate General that difficulty faced by the department was brought to the notice of this Court, at the time it was submitted by the learned counsel appearing for the petitioners before the learned Judge that, since the respondents have not allowed the petitioners to work, they have not joined and the petitioners were also not paid the salary. Only in that context, the learned Judge on 06.04.2018 passed the aforesaid order directing the respondents to pay the salary which is applicable to the promotional post.
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40.Since these writ petitions were pending for more than a year and during the pendency of the writ petitions even though stay granted, the petitioners had not been permitted to work at the promotional post. Though it was submitted by the learned counsel for the petitioners that they were ready and willing to work even in the original post, they were not permitted and they in fact had been transferred to some other place. However, this submission on the side of the petitioners is denied by the learned Additional Advocate General.
41.Be that as it may, where the petitioners lose their cases, it is the settled position that the interim order if any passed during the pendency of the main case would get merged with the outcome of the main case. In view of the decision taken by this Court, in deciding these writ petitions against the respective petitioners and in favour of the respondents, this Court, to meet the ends of justice, is inclined to give some directions to the respondents with regard to the salary arrears.
42.The respondents shall permit the petitioners to join in the original post of Inspector either at the same place where they http://www.judis.nic.in 30 originally worked at the time of promotion or in other vacancy in the nearby office preferably within the same revenue district. The respondents shall also pay the salary to the petitioners for the entire stay period not the salary equivalent to the promotional post, only to the salary equivalent to the original post i.e., Inspector. Since the petitioner in W.P.(MD)Nos.23265 of 2016 has been transferred to Dindigul, which is more than 350 kms far away from his original place, he may be considered for re-transfer to any of the vacant position in the same district, where he was originally working.
43.The aforesaid directions shall be complied with by the respondents and posting orders in the category of Inspectors shall be issued by the respondents to both the petitioners within a period of one week from the date of receipt of a copy of this order and the respondents shall also disburse the salary to the petitioners within the said time. In the result all the three petitions are dismissed with the aforesaid directions.
05.04.2018
Index : Yes/No
Internet : Yes/No
ta
http://www.judis.nic.in
31
To
1.The Principal Secretary,
Department of Municipal Administration & Water Supply, Secretariat, Chennai-9.
2.The Director of Town Panchayat, O/o, the Director of Town Panchayat, IV Floor, Kuralagam, Chennai-108.
3.The District Collector, Tuticorin District, Tuticorin.
4.The Secretary to Government, Department of Municipal Administration and Water Supply (Town Panchayats), St.George Fort, Chennai-600 009.
http://www.judis.nic.in 32 R.SURESH KUMAR,J.
ta W.P.(MD)Nos.23102, 23918 and 23265 of 2016 05.04.2018 http://www.judis.nic.in