Madras High Court
O.Venkatesan vs The Govt. Of Tamilnadu on 19 December, 2016
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.12.2016
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.1954 of 2010
O.Venkatesan ... Petitioner
Vs.
1.The Govt. of Tamilnadu,
Rep. by Chief Secretary,
Public Department,
Fort St. George,
Chennai ? 600 009.
2.The Secretary to Government,
Revenue Department,
Fort St. George,
Chennai ? 600 009.
3.The Principal Secretary and Commissioner for
Revenue Administration,
Chepauk, Chennai ? 600 005.
4.The Accountant General of Tamil Nadu,
Teynampet, Chennai ? 18. ... Respondents
PRAYER: This Writ Petition is filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus, calling for the records in
pursuant to the impugned order passed by the 1st Respondent in Government
Letter No.482/A4/2009-7 Public (Special A) Department dated 16.07.2009 and to
quash the same and consequently direct the Respondents 1 to 3 to relax the
relevant rules namely Rule 2(a)(iv) Proviso 1 of the Special Rules for
Tamilnadu Civil Services and include the petitioner name in the panel of
District Revenue Officers for the year 2008 and to promote the Petitioner
retrospectively with effect from the date on which his immediate junior was
promoted and to grant all attendant and concomitant benefits to the
Petitioner.
!For Petitioner :Mr.M.Saravanakumar
^For Respondents 1 to 3 :Mr.P.Gunaseelan Muthiah
Government Advocate
For 4th Respondent :Mr.P.Gunasekaran
:ORDER
The prayer in the writ petition is for a Writ of Certiorarified Mandamus, calling for the records in pursuant to the impugned order issued by the 1st Respondent in Government Letter No.482/A4/2009-7 Public (Special A) Department dated 16.07.2009, and to quash the same and consequently direct the Respondents 1 to 3 to relax the relevant rules namely Rule 2(a)(iv) Proviso 1 of the Special Rules for Tamilnadu Civil Services and to include the petitioner name in the panel of District Revenue Officers for the year 2008 and to promote the Petitioner retrospectively with effect from the date on which his immediate junior was promoted and to grant all attendant benefits.
2.The petitioner at the time of filing this writ petition was working as Personal Assistant (General) to the Collector of Virudhunagar District in the cadre of Deputy Collector. Originally the petitioner belongs to Madurai District Revenue Unit. He was recruited as Junior Assistant in the year 1971- 72 and from that cadre he rose to the cadre of Deputy Collector. The petitioner was included in the list of Deputy Collectors for the year 2004- 2005 issued in the G.O.Ms.No.140 Revenue Services 1(2) Department dated 24.02.2006 in Sl.No.18 and as a result he was promoted and posted as District Supply and Consumer Protection Officer, Virudhunagar as per G.O.2(D) No.121 Revenue Department dated 14.03.2006. He joined in the said post on 20.03.2006. After serving as such for one year and 5 months, he was transferred from the post of District Supply and Consumer Protection Officer, Virudhunagar as per G.O. 2(D) No.471 Revenue Department dated 06.08.2007, and he was relieved on 13.08.2007. Though the petitioner was relieved from the said post on 13.08.2007, pursuant to the order of transfer dated 06.08.2007, he was not given further posting till 19.09.2007. Only thereafter, he was posted as Revenue Divisional Officer, Aruppukkottai in G.O.2(D) No.550, Revenue Department dated 19.09.2007, and in that Station he joined as Revenue Divisional Officer on 26.09.2007. Thereafter, the list of District Revenue Officers were drawn for the year 2008, but the petitioner's name was not found therein. However, one of the Junior of the petitioner, namely, Mohamed Haneefa, who was in the Seniority No.22 had been included in the Panel of District Revenue Officers for the year 2008 in Sl.No.37. Therefore, the petitioner should have been included in the panel in between one G.Rajendran (Sl.No.36) and the said Mohammed Haneefa (Sl.No.37). However, the name of the petitioner was not found in the panel. When the same was enquired it was informed that the non-inclusion of the petitioner in the District Revenue Officer Panel was because in the probation declaration proposal sent from Virudhunagar Collectorate the completion of the petitioner's probationary period in the cadre of Deputy Collector was mentioned as 01.05.2008 A.N., which is beyond the crucial date 01.04.2008 for drawal of the District Revenue Officer's panel. According to the petitioner, the reason for such a declaration of probation of 2 years only on 01.05.2008 is that even though the petitioner pursuant to the order dated 06.08.2007, had been relieved from the post of District Supply Officer on 13.08.2007, the respondents had not given the posting immediately and only after the delay of 1+ months i.e. on 19.09.2007, the petitioner had been posted as Revenue Divisional Officer, Aruppukkottai vide G.O.2(D) No.550, Revenue Department dated 19.09.2007. Immediately the petitioner had joined the said post on 26.09.2007. According to the petitioner, the non-joining of the petitioner as Revenue Divisional Officer, Aruppukkottai was not because of the delay of the petitioner, but because of the respondents in not giving him posting. Therefore, the petitioner's probation ought to have been declared as if the same has been completed for the period of 2 years as Revenue Divisional Officer well before the crucial date and accordingly his name should have been included in the District Revenue Officer Panel for the year 2008. Therefore, seeking the said relief of inclusion of his name in between his immediate Senior and Junior i.e., one G.Rajendran and one Mohammed Haneefa at Sl.No.36 and 37 of the said panel, the petitioner has come out with the present writ petition.
3.The learned counsel appearing for the petitioner would contend that the petitioner is not at all fault in joining duty as Revenue Divisional Officer, Aruppukkottai, immediately after having been relieved from the Post of District Supply and Consumer Protection Officer, Virudhunagar on 13.08.2007 and the reason for his joining the said post only on 26.09.2007 is due to the delayed posting order issued by the respondents on 19.09.2007 vide G.O.2(D) No.550, Revenue Department dated 19.09.2007. If the said period between 13.08.2007 to 19.09.2007 is taken into account, certainly 2 years period would have been completed by the petitioner well before the said crucial date i.e., 01.04.2008 and therefore, the name of the petitioner ought to have been included in the panel for District Revenue Officer.
4.Per contra, the learned Government Advocate appearing for respondents 1 to 3 by relying on the averments made in the counter affidavit filed on behalf of the respondents 1 to 3 would contend that no doubt the petitioner had been relieved from the post of District Supply and Consumer Protection Officer, Virudhunagar on 13.08.2007, by the Government letter dated 16.08.2007, the proposal sent by the District Collector, suggesting alternative posting to the petitioner was requested to be revised and only after the receipt of revised proposal, the order of appointment dated 19.09.2007 was issued and pursuant to which the petitioner had joined as Revenue Divisional Officer, Aruppukkottai on 26.09.2007. In this regard, the learned Government Pleader invited the attention of the Court to the proceedings of the Joint Commissioner of Revenue Department dated 20.11.2007, wherein the period of non-duty of the petitioner between 13.08.2007 and 19.09.2007 for 43 days had been sanctioned as Earned Leave for the petitioner and the said proceedings have not been questioned by the petitioner. Therefore, the petitioner now cannot turn around and say that because of the respondents having not given the posting, he could not join as Revenue Divisional Officer, Aruppukkottai and therefore, the said period has to be taken into consideration for the period of probation of two years, which is mandatory requirement for the inclusion in the panel as District Revenue Officer. Since the petitioner as per the proceedings issued by the Commissioner of Revenue Administration dated 28.08.1995, has not completed the requirement as Revenue Divisional Officer, the non-inclusion of his name in the panel for the year 2008 cannot be found fault and therefore no interference is required by this Court.
5.This Court considered the rival submissions made by the learned counsel appearing for the petitioner, the learned Government Advocate appearing for the respondents 1 to 3 and the learned Standing Counsel for the fourth respondent.
6.Insofar as the controversy regarding the work period of the petitioner between 13.08.2007 and 19.09.2007 is concerned, the very averment made by the respondents 1 to 3 at paragraph 3 of their counter affidavit can be usefully referred to, which reads thus:
?3. ... Accordingly, the petitioner was allowed to continue in the post of District Supply and Consumer Protection Officer, Virudhunagar. In August 2007, one Thiru S.Rajaram, Deputy Collector was posted as District Supply and Consumer Protection Officer, Virudhunagar, in the place of the petitioner. The petitioner was relieved from the post of District Supply and Consumer Protection Officer, Virudhunagar, on 13.08.2007, consequent to joining of Thiru. S. Rajaram. Even, before he was relieved, proposals were sent to Government suggesting alternative postings to the petitioner on 24.07.2007. But Government, in their letter No.31626/Ser.1/2007, Revenue Department, dated 16.08.2007, requested to revise the proposals in respect of the petitioner. Accordingly, revised proposals were sent to Government and he was posted as Revenue Divisional Officer, Aruppukottai vide G.O. (2D) No.550, Revenue (Ser.I) Department, dated 19.09.2007. He has joined as Revenue Divisional Officer, Aruppukottai on 26.09.2007.?
7.From the above averment made by the respondents 1 to 3, it is clear that though the petitioner has been relieved on 13.08.2007 from the post of District Supply and Consumer Protection Officer, Virudhungar, he had been given posting as Revenue Divisional Officer, Aruppukkottai only on 19.09.2007 vide G.O.2(D) No.550, Revenue Department dated 19.09.2007. Proposal was sent for providing alternative posting to the petitioner even before he was relieved on 13.08.2007 and the Government after considering the said proposal requested the District Collector to revise the proposal and accordingly revised proposal was sent to the Government and thereafter he was posted as Revenue Divisional Officer, Aruppukottai. Therefore, there is every justification on the part of the petitioner to plead the absence or non-duty or non-joining duty as Revenue Divisional Officer at Aruppukkottai till 19.09.2007 is not on the fault of the petitioner because, the delay was caused by the respondents in giving posting to the petitioner. Merely because of the subsequent order of the Joint Commissioner, Revenue Administration by proceedings dated 20.11.2007, regularising the said period of 46 days i.e., between 14.08.2007 to 25.09.2007 as earned leave period that cannot take away the accrued right of the petitioner to claim completion of the probation for two years, which was mainly required for the purpose of inclusion in the panel of District Revenue Officer and such right cannot be brushed aside because of the proceedings of the Joint Commissioner dated 20.11.2007. Therefore, the petitioner since had joined as District Supply Officer, Virudhunagar on 20.03.2006 (RDO Cadre) and had completed two years period in the said post of Revenue Divisional Officer on 20.03.2008. As only after that the crucial date came on 01.04.2008, the period between 14.08.2007 and 19.09.2007 or 25.09.2007 can also be taken into account for counting the period of probation and if that is also taken into account two years period would be over very well before the crucial date. Since the petitioner has completed the period of two years as Revenue Divisional Officer on 20.03.2006, this Court is of the view that the probation of the petitioner should have been declared on 20.03.2008 or atleast before 01.04.2008 for the purpose of inclusion in the panel of District Revenue Officer for the year 2008.
8.Now, it is represented that the petitioner was superannuated on 31.01.2010 and has retired peacefully. Therefore, the inclusion in the panel for further promotion is only for the purpose of notional promotion and consequential service benefits of the petitioner.
9.In view of the above discussions, this Writ Petition is allowed with the following directions:
(i) The petitioner's probation of two years period as Revenue Divisional Officer shall be declared on 20.03.2008 or any subsequent date but prior to 01.04.2008.
(ii) since on the crucial date i.e., 01.04.2008 the petitioner had completed two years probation as Revenue Divisional Officer, he shall be included in the panel of District Revenue Officers for the year 2008 immediately before his Junior one Mohamed Haneefa, who was included in the said panel of 2008.
(iii) In view of the said inclusion in the panel, the petitioner shall be entitled to notional promotion from the eligible date and consequent upon promotion from the eligible date, his service benefits has to be calculated in accordance with law and the arrears shall be paid to the petitioner within three months from the date of receipt of a copy of this order.
No costs.
To
1.The Chief Secretary, Govt. of Tamilnadu, Public Department, Fort St. George, Chennai ? 600 009.
2.The Secretary to Government, Revenue Department, Fort St. George, Chennai ? 600 009.
3.The Principal Secretary and Commissioner for Revenue Administration, Chepauk, Chennai ? 600 005.
4.The Accountant General of Tamil Nadu, Teynampet, Chennai ? 18..