Madras High Court
P.Thavam vs The State Of Tamilnadu on 5 July, 2022
Author: S.Srimathy
Bench: S.S.Sundar, S.Srimathy
W.A.(MD)Nos.497 to 500 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 13.06.2022
PRONOUNCED ON : 05.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)Nos.497 to 500 of 2022
and
C.M.P.(MD)Nos.4551, 4553,
4555 and 4557 of 2022
W.A(MD)No.497 of 2022:
1.P.Thavam
2.S.Ayyasamy
3.M.Muthurasu
4.P.Marisamy
5.M.Kottairajan
6.K.Suresh
7.N.Lakshmanan
8.V.Kasirajan
9.K.Kannan ... Appellants
Vs.
1.The State of Tamilnadu,
represented by its Secretary,
Highways Department, Chennai.
2.The Director General,
Highways Department,
Guindy, Chennai.
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W.A.(MD)Nos.497 to 500 of 2022
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Virudhunagar Divison,
Virudhunagar.
5.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Thoothukudi Division,
Thoothukudi.
6.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
(M Department), Chennai. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.8232 of 2019, dated
27.04.2022.
W.A(MD)No.498 of 2022:
S.Baskaran ... Appellant
Vs.
1.The State of Tamilnadu,
represented by its Secretary,
Highways Department, Chennai.
2.The Director General,
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W.A.(MD)Nos.497 to 500 of 2022
Highways Department,
Guindy, Chennai.
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
Chennai. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.11318 of 2019, dated
27.04.2022.
W.A(MD)No.499 of 2022:
P.M.Rajasingh ... Appellant
Vs.
1.The State of Tamilnadu,
represented by its Secretary,
Highways Department, Chennai.
2.The Director General,
Highways Department,
Guindy, Chennai.
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
(M Department), Chennai. ... Respondents
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W.A.(MD)Nos.497 to 500 of 2022
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.10338 of 2019, dated
27.04.2022.
W.A(MD)No.500 of 2022:
R.Alaguraj ... Appellant
Vs.
1.The State of Tamilnadu,
represented by its Secretary,
Highways Department, Chennai.
2.The Director General,
Highways Department,
Guindy, Chennai.
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
Chennai. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.11319 of 2019, dated
27.04.2022.
In all cases:
For Appellants :Mr.G.Prabhu Rajadurai
For Respondents :Mr.N.Satheesh Kumar
Additional Government Pleader
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W.A.(MD)Nos.497 to 500 of 2022
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.) The Writ Appeal in W.A.(MD)No.497 of 2022, is filed against the order passed in W.P.(MD)No.8232 of 2019, dated 27.04.2022, filed by P.Thavam and eight others. The prayer in the Writ Petition is to issue a Writ of Mandamus forbearing the respondents from de- promoting the petitioners from the post of Road Inspector Grade II (Skill Assistant Grade II) to that of Gang Mazdoor on the ground that the pre-foundation course is not equivalent to SSLC.
2.The brief facts of the case as stated in W.P.(MD)No.8232 of 2019 are that the writ petitioners are presently working as Road Inspectors Grade II (Skill Assistants Grade II) in the Highways Department. All the petitioners were appointed as Gang Mazdoor on 10.11.1997. The qualification to be appointed in the said post is 5th standard pass and the writ petitioners had passed 5th standard. The next promotion for the post of Gang Mazdoor is Road Inspector Grade II (presently known as Skill Assistant Grade II). The Service Rules provides SSLC as a qualification to be appointed to the post 5/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 of Road Inspector Grade II along with the experience as Gang Mazdoor for a period of five years. 25% of the post of Road Inspector Grade II would be filled up by promotion from Gang Mazdoor and the remaining 75% would be filled up by direct recruitment.
3. The contention of the petitioners is that the Madurai Kamaraj University conducted a Pre-Foundation course for those who had not passed SSLC. The said course is to undergone the course for a period of one year followed by exams on five subjects. Those candidates who had not completed 8th standard had to undergo an introductory course for a period of one year. The Government issued G.O.Ms.No.528, P and AR Department, dated 18.05.1985, wherein, it is directed that pre-foundation course of Madurai Kamaraj University is recognized as equivalent to SSLC of Tamil Nadu Government for the purpose of entry into public service in the State.
4. Based on the said G.O., the petitioners joined the pre- foundation course to acquire the qualification, so that the 6/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 petitioners would be promoted as Road Inspector Grade II. The Highways Department had issued a G.O. in G.O.Ms.No.193 (HK3), dated 01.0.8.2008, prescribed the qualification as “must have passed 10th standard from a recognized School”. Again, the Government issued another G.O. in G.O.Ms.No.16, (HK3), dated 21.01.2009, wherein, it was amended “must have passed 10 th standard examination from a recognized School or its equivalent examination duly recognized by the Government of Tamil Nadu”. Prior to this amendment the qualification prescribed is only pass in 5th standard.
5.The contention of the petitioners is that this amendment had cleared the hurdle in the petitioner's way to be promoted as Road Inspectors Grade II. The petitioners 1 to 3, and 5 completed pre- foundation course on 05.09.2008. The petitioners 4 and 6 completed the same on 27.04.2010. The petitioners 8 and 9 completed the same on 29.10.2010. Hence, all the petitioners are qualified to be promoted as Road Inspector Grade II. Considering the said qualification, the petitioners were promoted on various dates and the same is given in the following tabulation: 7/31
https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 Sl. Case Name of the Year of Date and Date of Date of Number Appellants joining year of promotion reversion No. pre- completion foundation course Course in MK University
1. W.A. 1. P.Thavam July, 2007 05.09.2008 11.08.2014 02.06.2022 (MD)No.
2. S.Ayyasamy July, 2007 05.09.2008 25.09.2014 02.06.2022 497/2022
3. July, 2007 05.09.2008 25.09.2014 02.06.2022
4. P.Marisamy December, 27.04.2010 06.08.2014 02.06.2022 2008
5. July, 2007 05.09.2008 25.09.2014 02.06.2022
6.K.Suresh January, 27.04.2010 21.11.2013 02.06.2022 2009
7.N.Lakshmana July, 2008 26.08.2009 16.09.2013 02.06.2022
8.V.Kasirajan July, 2009 29.10.2010 16.09.2013 02.06.2022
9.K.Kannan March, 29.10.2010 16.09.2013 02.06.2022 2009
2. W.A. Baskaran November, 15.03.2000 04.10.2008 02.06.2022 (MD)No. 1999 498/2022
3. W.A. P.M.Rajasingh January, 05.12.2011 11.08.2014 02.06.2022 (MD)No. 2009 499/2022
4. W.A. R.Alaguraj July, 2001 08.10.2002 17.04.2009 02.06.2022 (MD)No. 500/2022
6.After promotion, the petitioners are presently working as Road Inspector Grade II. Thereafter, the 6th respondent while considering the validity of degrees obtained through open 8/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 university without passing SSLC or HSC, considered the pre- foundation course conducted by the Universities and issued a clarification that pre-foundation course is not equivalent to SSLC, vide G.O.Ms.No.144, (P and AR) Department, dated 20.11.2017. The contention of the petitioners is that the respondent department has misread the said G.O.Ms.No.144, (P and AR) Department, dated 20.11.2017 and de-promoted all the petitioners from the cadre of Road Inspector Grade II to the original post of Gang Mazdoor. An employee should atleast have an opportunity of one promotion in their career as held by the Honourable Supreme Court and the respondents are bound to create a promotional post. All the petitioners are above the age of 50 and were granted promotion. The petitioners had joined the pre-foundation course with a legitimate expectation that they would be allowed to continue as Road Inspector Grade II. The petitioners have not misrepresented and secured promotion. Therefore, the cancellation of the promotion is illegal. The rights accrued in service matters cannot be taken away by the subsequent legislation, unless it is specifically treated as operated retrospectively.
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7.The petitioners are working in the promotional post for more than five years. In an earlier Writ Petition in W.P.(MD)No.8620 of 2008, this Court, vide order, dated 22.12.2008, directed the respondents to consider the promotion of Road Inspector based on G.O.Ms.No.528, dated 18.05.1985, by declaring the pre-foundation as equivalent to SSLC. The Government has issued G.O.Ms.No.107, dated 18.08.2009 and even after the issuance of the said G.O., the Government had not disturbed any of the employees in the Tamil Nadu Government service, who were appointed already with a qualification of open university degrees. Still, a large number of employees are working all over Tamil Nadu with the open university degree. The sudden de-promotion would lead to humiliation where the petitioners were forced to work under their juniors. The morale of the petitioners is completely affected and even their family members would suffer. The respondents have not issue any notice or provided any right of hearing before de-promoting the petitioners. Hence, aggrieved over the de-promotion order, the petitioners have preferred the Writ Petition.
8.The fourth respondent had filed a counter affidavit in the 10/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 Writ Petition stating that the Writ Petition is not having any legs to stand before this Court. The petitioners were appointed as Gang Mazdoor with a basic education qualification of the 5th standard pass and there is no promotion for the post of Road Inspector Grade II before qualifying the 10th standard. The writ petitioners herein had not passed 10th standard at the time of their appointment. In accordance to G.O.Ms.No.34, Highways (HKS) Department, dated 29.01.2008, 75% of vacancies in the post of Road Inspector Grade II shall be filled up direct recruitment and the remaining 25% shall be filled up by recruitment by transfer from the post of Gang Mazdoor, who have completed five years of service and possess a pass in the education qualification of SSLC or HSC from the recognized School. In the Letter No.8705/RND-F/2015, dated 29.01.2016 and Letter No.5140/RND-F/2017, dated 01.11.2017, which are referred in G.O.Ms.No.144, Personnel and Administrative Reforms Department, dated 20.11.2017. The Equivalence Committee has resolved that the pre-foundation Course and the foundation / Bridge courses cannot be recognized as equivalent to SSLC and HSC. The Government has also confirmed the same in the said G.O. The writ petitioners had not completed 10th standard through the recognized 11/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 School. It is stated that the pre-foundation course conducted in the Madurai Kamaraj University is not equivalent to 10th standard. Similarly placed persons had filed a Writ Petition in W.P.(MD)Nos. 17965 and 12590 to 12592 of 2018 and all the writ petitions stands disposed with a direction to the Government to take a decision within a period of three months. It is also stated in the counter affidavit that the Government after careful consideration, has issued a clarification in Letter No.1704/HR.1/2019-2, dated 08.04.2019, to the Director of Highways Department, stating that passing pre-foundation course enunciated the G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009. Petitioners passed pre-foundation and foundation course and they are not equivalent to SSLC and HSC. It is also stated in the letter that according to Personnel and Administrative Department Letter No.33448/M/2010-4, dated 03.12.2010 and G.O.Ms.No.144, Personnel and Administrative Department, dated 20.11.2017, passing pre-foundation course cannot be considered for the purpose of employment and promotion in public service. The Honourable Supreme Court in the decision in G.S.Lamba and others Vs. Union of India reported in 1983 (2) SCC 604 has 12/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 held that there shall be a regular streams of study and the pre- foundation course which is stated as 10th equivalent cannot be at any stretch of imagination is taken as regular streams and the petitioners cannot be entitle to any relief and prayed to dismiss the writ petition.
9.The fifth respondent has also filed a counter affidavit and it is more or less similar to the counter filed by the fourth respondent.
10.The learned Single Judge has dismissed the Writ Petition, vide order, dated 27.04.2022. The learned Single Judge has relied on the judgment of the Division Bench of this Court, dated 02.09.2021, passed in W.A.No.1863 of 2021, wherein it had referred the judgment rendered in the case of Thirunavukkarasau Vs. The State of Tamil Nadu reported in 2012 (5) CTC 129. In the said judgment, it has been held that it is clear that the G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009, was brought into effect on 18.08.2009 and the same is in accordance with the provision under Section 25 of Tamil Nadu Government Servants (Conditions of Services) Act, 2016. The 13/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 learned Single Judge further referred to the Honourable Supreme Court judgment rendered in Annamalai University, represented by the Registrar and another Vs. Secretary to Government, Information and Tourism Department, reported in (2009) 4 SCC 590, while dealing with the validity of open university degrees, settled the principle by stating that the degrees granted by undergoing regular pattern alone are considered as valid degrees. The open university degrees are held invalid. The pattern of education, i.e., 10+2+3+2 are prescribed under University Grants Commission and that alone can be treated as valid degree. Any degree course after passing the pre-foundation course cannot be considered as equivalent. In the said Annamalai University case, the pre-foundation course was not recognized at all, especially, after the issuance of G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009. The learned Single Judge has also held that if the promotions are granted prior to the G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009, based on the Government orders granting equivalency, such promotions alone are held to be valid. However, subsequent promotions granted after the judgment of the Honourable Supreme 14/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 Court which was implemented by G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009, cannot be considered as valid promotion and hence, the promotions granted to the petitioners are illegal. Therefore, the impugned order cancelling the promotion is valid and the learned Single Judge has dismissed the Writ Petition. Aggrieved over the same, the petitioners have preferred this Writ Appeal.
11. Heard Mr.G.Prabhu Rajadurai, the learned Counsel appearing for the appellant and Mr.N.Satheesh Kumar the learned Additional Government Pleader appearing for the respondents and perused the records.
12. From the tabulation stated supra, the appellant namely, Baskaran who had filed W.P.(MD)No.11318 of 2019 has preferred a Writ Appeal W.A.(MD)No.498 of 2022. The appellant Baskaran had competed the course on 15.03.2000 and was promoted on 04.10.2008. Since the said appellant had completed the course prior to the G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009, the said promotion is valid and 15/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 therefore, the W.A.(MD)No.498 of 2022 is allowed. The order passed in W.P.(MD)No.11318 of 2019 is set aside and consequently, the impugned order challenged in the Writ Petition is set aside. The respondents are directed to confer all consequential benefits to the said appellant.
13.The appellant in W.A.(MD)No.500 of 2022, namely, R.Alaguraj was had completed the course on 08.10.2002 and granted promotion on 17.04.2009, which is prior to 18.08.2009. Hence, the said promotion is valid and therefore, the W.A.(MD)No. 500 of 2022 is allowed. The order passed in W.P.(MD)No.11319 of 2019 is set aside and consequently, the impugned order challenged in the Writ Petition is set aside. The respondents are directed to confer all consequential benefits to the said appellant.
14. The case of the other appellants namely, P.Thavam and others who have filed W.A.(MD)No.497 of 2022 and P.M.Rajasingh who has filed W.A.(MD)No.499 of 2022 are considered here under:
15. The Learned Single Judge had held that the aforesaid writ 16/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 petitioners had completed their pre-foundation course after the cutoff date i.e. 18.08.2009 and hence they are not qualified to be considered for promotion. Hence the promotion conferred on these writ petitioners are illegal and hence quashed the promotion. Aggrieved over the same the present writ appeals are filed raising various grounds.
16. Based on the order of the Learned Single Judge, the respondents have reverted these writ petitioners as Gang Mazdoors on 20.06.2022 and hence the appellants prayed to allow the writ appeal.
17. It is seen from the records that all the appellants have joined the service in the year 1997. At the time of joining the service, the education qualification to be appointed as Gang Mazdoor is 5th standard pass. The qualification for promotion to the next post is to serve as Gang Mazdoor for five years. Since for the promotion, five years service as Gang Mazdoor is prescribed and the petitioners have put in service for more than five years, hence the petitioners were expecting their promotion from the year 2002 17/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 onwards. While they were expecting their promotion from 2002 onwards, the respondents have issued an amendment in G.O.Ms.No. 193, Highways and Minor Ports (HK3) Department, dated 01.08.2008, wherein, the qualification has been prescribed that the candidates should have passed 10th standard from a recognized School. At this juncture, the petitioners could not join the regular stream of 10th standard and the said amendment was affecting them. Thereafter, several representations were submitted before the Government and the Government again issued an amendment through G.O.Ms.No.16, Highways and Minor Ports (HK3) Department, dated 21.01.2008, wherein, it has been amended that the 10th standard from a recognized School or its equivalent examination duly recognized by the Government of Tamil Nadu was prescribed as a qualification. Thereafter, several persons, in order to get promotion, have joined the pre-foundation course. Since the pre-foundation course was considered as equivalent as per G.O.Ms.No.528, P and AR Department, dated 18.05.1985, the appellants with the legitimate expectation that they will get promotion, if they qualify from the pre-foundation course, had joined the pre-foundation course during the year 2007, 2008, 2009 18/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 and 2010 respectively and they had completed the pre-foundation course during the year 2008, 2009, 2010 and 2011 respectively.
18. In the meanwhile the issue of “open university degrees” was considered by the Hon’ble High Court and while considering the open university degrees, it was held that the pre-foundation course cannot be considered as equivalent to 10th standard vide judgments rendered in Annamalai University case in the year 2009. However, prior to 2009, the Government has recognized the pre- foundation course as equivalent to 10th standard, vide G.O.Ms.No. 528, P and AR Department, dated 18.05.1985. After the Annamalai University case, the Government constituted Equivalence Committee and the Committee has submitted a report that pre- foundation course is not equivalent to 10th standard. Thereafter the government had issued G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009, wherein it has been stated that the Equivalency Committee report stating pre- foundation course is not equivalent to 10th standard is accepted. Hence it was held that pre-foundation course is not valid after issuance of G.O.Ms.No.107 dated 18.08.2009. Thereby, the cutoff 19/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 date was fixed as 18.08.2009 and all the pre-foundation courses passed prior to 18.08.2009 were recognized. But, subsequent candidates were not recognized. Based on this, the learned Single Judge has held that since the petitioners have passed the pre- foundation course after the cutoff date, i.e., 18.08.2009, the writ petitioners are not eligible to be considered for promotion and the promotion is illegal.
19. Now the contention raised before this Court is that the appellants with a legitimate expectation that they will be considered for promotion, if they had completed the pre-foundation course, had joined the pre-foundation course in the year 2007/2008/2009. If the date of joining the pre-foundation course is taken into consideration, all the candidates have joined the pre- foundation course prior to 18.08.2009 and there was a legitimate expectation among the candidates that if they have taken the pre- foundation course, they would be considered for promotion. When the appellants had joined the course, there was no prohibition or there was no declaration that pre-foundation course was invalid. Therefore, this Court is of the considered opinion that on the 20/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 ground of legitimate expectation, the appellants are entitled to be considered for promotion.
20. The next contention putforth by the appellants is that the G.O. Ms. No. 107, Personnel and Administrative Reforms Department, dated 18.08.2009, states that the Equivalence Committee has submitted the report and the report of the Equivalence Committee was accepted and the Government has passed the said G.O. stating that the report has been accepted. But the government has declared that the pre-foundation course is not equivalent only in the subsequent G.O. passed in G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017. The G.O. Ms. No. 107, Personnel and Administrative Reforms Department, dated 18.08.2009, is extracted hereunder:
“NkNy xd;wpy; fhZk; murhizapy;> gy;fiyf;fof khdpaf; FOthy; mq;fPfhpf;fg;gl;l jkpo;ehl;bYs;s gy;fiyf;fofq;fshy; jpwe;j ntspg; gy;fiyf;fof Kiw %yk; toq;fg;gLk; gl;lag; gbg;G> Kiwahf (Regular Stream) toq;fg;gLk; gl;lag; gbg;G gl;lg;gbg;G kw;Wk; Kjepiyg; gl;lg;gbg;G Mfpatw;wpw;Fr; rkkhff; fUjp nghJg;gzpfspy; Ntiytha;g;gp;w;F mq;fPfhuk; mspj;J Mizaplg;gl;lJ.
2. gp.v];.vd;.vy;. EpWtd jkpehL tl;l jiyikg; nghJ Nkyhsh; NkNy ,uz;by; fhZk; fbjj;jpy;> gs;sp Nky;epiyf;
fy;tpapy; Njh;r;rp> Fiwe;j gl;r fy;tpj; jFjpahf eph;zapf;fg;gl;l xU gzpaplj;jpw;F> gs;sp Nky; epiyf; fy;tpj;; Njh;tpy; (+2) Njh;tilahky;> jpwe;jntspg; gy;fiyf;fofq;fspd; topahf ,sk; mwptpay;> ,sq;fiyg; gl;lq;fs; (B.Sc., B.A.,) ngw;wth;fis> gs;sp Nky;epiyf; fy;tpj; Njh;tpy; Njh;r;rp ngw;wth;fs; vdf; fUjp muRj; Jiwfspy; gjtp cah;TfSf;Fj; jFjp ngw;wth;fshff; fUjyhkh vd tpsf;fk; Nfhhpape;jhh;.
3.Nkw;fz; fUj;JUkPJ ,izf;fy;tp eph;za ghprPypg;Gf; Fotpd; ghpe;Jiuiag; ngw;W mDg;GkhW jkpo;ehL muRg; gzpahsh; 21/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 Njh;thizaf;FOtpd; nrayh; Nfl;Lf; nfhs;sg;gl;lhh;. ,izf; fy;tpj;jFjp eph;zAf; FO> gs;sp Nky;epiyf; fy;tpj; Njh;tp;y; Njh;r;rp ngwhky;> jpwe;j ntspg;gy;fiyf;fofq;fspy; ,sk; mwptpay; kw;Wk; ,sq;fiyg; (B.Sc., B.A.,) gl;lk; ngw;wth;fis> khepy murpd; gzpfspy; gzp epakdj;jpw;Nfh my;yJ gjtp cah;TfSf;Nfh fUj ,wyhJ vdg; ghpe;Jiuj;jJ. ,f;fUj;JUtpid ,izf;fy;tp eph;zaf; FOtpd; ghpe;Jiuf;fhf kPPz;Lk; mDg;gpa NghJk;> Vw;fdNt vL;j;j jPh;khdj;ijNa kPz;Lk; typAWj;jpaJ.
4. ,g;ghpe;Jiuapid muR ftdkhfg; ghprPypj;J> ,izf;fy;tp eph;za ghprPypg;G FOtpd; ghpe;Jiuapid Vw;Wf;nfhs;s KbntLj;J mjw;fzq;f> gs;sp ,Wjpj;Njh;T (gj;jhk; tFg;G) kw;Wk; gs;sp Nky;epiyf; fy;tpj; Njh;T (+2) Mfpaitfspy; Njh;r;rp ngw;wgpd;> jpwe;jntspg; gy;fiyf;fofq;fspd; topahfg; ngwg;gLk; gl;lak; / gl;lk; / KJfiyg; gl;lq;fis kl;Lk; nghJg;gzpfspy; epakdk; / gjtp cah;T ngw mq;ff P hpj;J MizapLfpwJ.”
21. The G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017, is extracted hereunder:
“ORDER:
In the Government Orders first and second read above, orders have been Issued that the Pre-foundation Course and the two years Foundation Course of the Madurai Kamaraj University - Open University be recognized as equivalent to 10 th standard SSLC and Higher Secondary Course (+2) of the Tamil Nadu Government respectively, for the purpose of entry into Public Services in this State.
2. In the Government orders third and fourth read above, the Two Years Foundation Course and One Year Foundation Course conducted by the Annamalai University have been considered as equivalent to +2 and 11th, SSLC respectively for the purpose of entry into Public Services in this State.
3. In the Government orders fifth and sixth read above, orders have been issued that the degree obtained after passing SSLC and +2 alone will be recognized for the purpose of employment promotion in Public Services and that those who possess a Post Graduate Degree through Open University System without obtaining a basic degree cannot be considered as possessing a Post Graduate Degree for appointment to Public Services.
4. Based on the orders issued in the Government order fifth read above the recognition of the Pre-foundation and the two year Foundation Courses awarded by various Open Universities were clarified in the letter seventh read above to the effect that-22/31
https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 "A degree awarded by the Open Universities after passing Pre-foundation Course and two year Foundation Course through Open University cannot be recognized as degree as per University Grants Commission norms for the purpose of employment/promotion in Public Services, since such Pre-foundation Course and two year Foundation Course are not contemplated in the University Grants Commission Regulations.
Therefore, those who obtained a degree under Open University System after passing the Pre-foundation Course and two year Foundation Course without passing 10 standard and +2 examination do not satisfy the conditions laid in G.O.(Ms).No. 107, Personnel and Administrative Reforms (M) Department, dated 18.08.2009 which is in consonance with the orders of Supreme Court of India".
The above clarification was followed from the date of issue of orders in the Government Order fifth read above.
5. In the meantime, the Equivalence Committee in its recommendations in the letter eighth and ninth read above has also resolved that the Pre-foundation Course and the Foundation / Bridge Courses awarded by various Universities cannot be recognized as equivalent to SSLC and Higher Secondary Course (+2). The recommendations of the Equivalence Committee are in consonance with the clarification issued in the letter seventh read above, hence, the Pre-foundation Course and the Foundation / Bridge Courses awarded by various Universities cannot be recognized as equivalent to SSLC and Higher Secondary Course (+2)
6. As the recommendations of the Equivalence Committee confirms the clarification that the Pre-foundation Course and Foundation Course offered by various Universities in the State are not equivalent to SSLC and Higher Secondary Course (+2) respectively. Government emphasize to follow the clarification issued in the Government letter seventh read above scrupulously.”
22. The contention of the appellants is that the Government after considering all the issues have subsequently issued the G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017, where it has been categorically held that pre-foundation course awarded by various universities cannot be recognized as equivalent to SSLC or HSC. The plea of the 23/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 appellants is that the cutoff date ought to be fixed from the date of issuance of G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017 and the cutoff date should be 20.11.2017 and not the cutoff date of G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009, i.e., 18.08.2009. Since in the earlier G.O., the Government has simply accepted the recommendations of the Equivalence Committee and whereas, in G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017, alone the Government has categorically clarified the pre-foundation course cannot be recognized as equivalent to SSLC or HSC.
23. This contention of the appellants was refuted by the respondents and the respondents relied on the judgment rendered in the case of Mohamed Hasan Refayee Vs. TNPSC and another in W.A.No.213 of 2018, dated 19.07.2019, wherein, the cutoff date has been prescribed as the date of issuance of G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 18.08.2009. Therefore, the respondents submitted that the cutoff date has already been considered by the Division Bench and 24/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 that ought to be taken as the cutoff date and not the date of G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017, i.e., 20.11.2017. This would seriously affect not only the Highways Department but all the Departments would be affected. This also would affect the policy decision taken by the Government and therefore, the respondents contended that the claim of the appellants cannot be considered.
24. This Court is of the considered opinion that the government had recognized the pre-foundation course vide G.O.Ms.No.528, P and AR Department, dated 18.05.1985 and the said G.O. was in existence from 1985 onwards, subsequently there was a challenge to the open university degree and the High Court has held open university degree is not valid and pre-foundation course as not valid. When it was considered valid for the past twenty four years, then it was declared as invalid, the persons who are affected from this shift / change of qualification ought to be protected. As rightly pointed out by the appellants, the Government has taken eight long years after issuance of G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 25/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 18.08.2009, to issue G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017. It is only in G.O.Ms.No. 144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017 the government has declared that the pre foundation course is not recognized equivalent to the pre-foundation course. The G.O.Ms. No. 107, Personnel and Administrative Reforms Department, dated 18.08.2009, has only accepted the recommendations of the Equivalence Committee. As rightly pointed out by the learned Counsel appearing for the appellants, the government has passed G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017 wherein it has been categorically held that the pre-foundation course as invalid. If it is so, then the date of issuance of the said G.O. Ms. No. 144 ought to be held as the cutoff date. Moreover, the pre- foundation course was closed down in the year 2012. In short the pre-foundation course was recognized in the year 1985, then in the year 2009 it was held by High Court that pre-foundation course is not equivalent, then equivalence committee has reported it is not equivalent, the government accepted the report in 2009 and finally it was declared in the year 2017. Hence, the mischief of invalidity 26/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 has been eradicated in phased manner. Therefore, this Court is of the considered opinion that the cutoff date, is the date of issuance of G.O.Ms.No.144, Personnel and Administrative Reforms (M) Department, dated 20.11.2017 i.e. 20.11.2017.
25. The appellants relied on the Honourable Supreme Court judgments wherein it has been held that the employee is entitled to atleast one promotion in the entire career and hence the appellants are entitled to get an opportunity of one promotion in their entire career. The appellants submitted that the respondents conferred the promotion on the appellants based on their pre-foundation course qualification and hence, based on the equity, the appellants are entitled to the said promotion. It is also submitted that all the appellants are above the age of 50 and at this stage, if they are de- promoted that would be a humiliation and they will be forced to work under their juniors which would affect their status in the family and in the Society. This Court is of the considered opinion that the appellants were conferred promotion in the year 2013 and 2014 and the appellants have worked for more than five years in the promoted post. At this stage, the appellants cannot be de- 27/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 promoted and based on the equity, the appellants ought to be allowed to continue in the promoted post. Therefore this Court is of the considered opinion that based on equity the appellants are entitled to relief.
26. Since all the appellants had completed the pre-foundation course prior to 20.11.2017, this Court is of the considered opinion that the appellants are entitled to promotion. After dismissal of the writ petitions, the respondents have reverted the appellants to their original post of Gang Mazdoor. Since writ appeals are allowed the appellants are entitled to promotion. Therefore, the respondents are directed to confer the promotion to all the appellants. The impugned order challenged in the Writ Appeals are set aside and consequently the impugned orders of de-promotion challenged in the Writ Petitions are set aside. The respondents are directed to implement the judgment within a period of four weeks from the date of receipt of a copy of this judgment.
27. With the above observations, the Writ Appeals are allowed. No costs. Consequently, connected miscellaneous petitions are 28/31 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.497 to 500 of 2022 closed.
28. Before departing with this order, this Court is of the considered opinion that the appellants have taken earnest efforts to qualify themselves, after they had missed the opportunity to do 10th standard or 12th standard due to various family circumstances. The government should come forward to formulate a scheme to educate people wherever the opportunity was missed. However, the scheme should be without affecting the rights of the persons who had completed in the regular stream.
[S.S.S.R., J.] [S.S.Y., J.]
05.07.2022
Index : Yes / No
Tmg
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W.A.(MD)Nos.497 to 500 of 2022
To
1.The Secretary to the Government,
State of Tamil Nadu,
Highways Department, Chennai.
2.The Director General,
Highways Department,
Guindy, Chennai.
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Virudhunagar Division,
Virudhunagar.
5.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Thoothukudi Division,
Thoothukudi.
6.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
(M Department), Chennai.
30/31
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W.A.(MD)Nos.497 to 500 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
Tmg
W.A(MD)Nos.497 to 500 of 2022
05.07.2022
31/31
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