Madras High Court
S.Mathevan Pillai vs The Secretary To Government on 30 July, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30-07-2012 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.14658 of 2011 and M.P.No.1 of 2011 S.Mathevan Pillai .. Petitioner. Versus The Secretary to Government Personnel and Administrative Reform Department, State of Tamilnadu Secretariat, Chennai-9. .. Respondent. Prayer: Petition filed under Article 226 of the Constitution of India, seeking for a Writ of Mandamus directing the respondent to promote the petitioner to the post of Under Secretary for the panel year 2010-2011 on par with his immediate junior and place him in the appropriate place in the Seniority List of Under Secretary. For Petitioner : Mr.R.Thiagarajan, Senior Advocate for Mr.M.Muthappan For Respondent : Mr.A.Navaneetha Krishnan Advocate General for Mr.S.P.Prabakaran Additional Government Pleader O R D E R
Heard the learned counsel for the petitioner, as well as the learned counsel appearing on behalf of the respondent.
2. The petitioner has stated that he had passed S.S.L.C. course, under the old system (11 years). He has also acquired skills in Typewriting, both in English and in Tamil. He was appointed, as a Personal Clerk in the Secretariat service, under Rule 10(a)(1) of the Tamilnadu State and Subordinate Service Rules, 1955, on 15.12.1982. His service had been regularized, with effect from 25.6.1984, as per the government order, in G.O.Ms.No.996, Personnel and Administrative Reforms (Placements) Department, dated 25.6.1984. Thereafter, he had joined the second year Foundation course, in Madurai Kamaraj University, through Correspondence, which is equivalent to +2 course and he had passed the same. Thereafter, he had completed the B.Com Degree course, through correspondence, in Madurai Kamaraj University, during the years 1984-1987. In the year 1988, he had been appointed, as an Assistant, by transfer, from the post of Personal Clerk, as per the Tamilnadu Secretariat Service Rules. Thereafter, his service in the post of Assistant had been regularized treating it as a promotion.
3. The petitioner has further stated that the qualification for the post of Assistant, for the promotees, is the minimum general educational qualification, with not less than four years of service, as a Typist. The next avenue of promotion, from the post of Assistant, is that of Assistant Section Officer, for which the qualification is the minimum general educational qualification, a pass in the Departmental Test and Foundational Training, for a period of two months and a pass in the examination held at the end of the training session.
4. The petitioner has further stated that he has been promoted, as an Assistant Section Officer, in the year, 1993. Thereafter, he had been promoted, as a Section Officer, in the year, 2006. The qualification for promotion to the said post is that a candidate should have rendered service in the category of Assistant Section Officer, in the Departments of the Secretariat, other than Law and Finance, for a period of not less than two years.
5. The petitioner has further stated that he was eligible for being promoted, as an under Secretary, in the year, 2010. However, his name had been included in the list of persons eligible to be promoted, from the post of Section Officer to the post of Under Secretary. For being qualified for such promotion a candidate must have rendered service for a period of not less than two years in the category of Section Officer, in the Departments of the Secretariat, other than Law and Finance, and he must have undergone District Training, for a period of twenty six weeks, in the category of Section Officers. However, the Section Officers, who had already undergone optional District Training, for a period of fifty weeks, shall not be required to undergo the said training. Even though the name of the petitioner had been cleared by the Departmental Promotion Committee, his name had not been included in the promotion order, in G.O.Ms.No.135 Personnel and Administrative Reforms (Q) Department, dated 28.8.2010. On enquiry, it was learnt that his name had not been included in the promotion order, as he had not obtained a degree, as per the government order, in G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department, dated 18.8.2009.
6. It has been further stated that the name of the petitioner had not been considered for being promoted, as an under Secretary, on an erroneous view that the petitioner ought to be possessing Bachelors Degree, as a prerequisite educational qualification to be appointed to the post of under Secretary to Government, in the Departments of the Secretariat, other than Law and Finance, by promotion, from the category of Section Officer.
6. It has been further stated that the crucial date for consideration, for being added in the panel for promotion, to the post of Under Secretary is 1.9.2009. The panel for promotion had been prepared on 28.8.2010. Both on the crucial date, as well as on the date of preparation of the panel the petitioner had been fully qualified for being considered to be included in the said panel. G.O.Ms.No.163, Personnel and Administrative Reforms (H) Department, dated 16.12.2011, had prescribed a Bachelors Degree, as the requisite educational qualification, for being appointed to the post of Section Officer, in the Departments of the Secretariat, other than Law and Finance. Thereafter, G.O.Ms.No.92, Personnel and Administrative Reforms (C) Department, 20.6.2012, had prescribed a Bachelors Degree, as a prerequisite educational qualification, for being appointed to the post of Under Secretary to Government, in the Departments of the Secretariat, other than Law and Finance, by promotion, from the category of Section Officer, under Category-2, Class-XII of the Tamilnadu General Service. However, the proposed amendment came into force only on 16.12.2011. Whereas the name of the petitioner ought to have been considered, as per the educational qualifications he had possessed on the crucial date, which is 1.9.2009. The panel containing the names of eligible persons for being considered for promotion, as an Under Secretary to Government, in the Departments of the Secretariat, was 28.8.2010. On the dates concerned, the petitioner had been fully qualified for being considered to be included in the panel for being promoted to the post of Under Secretary. However, the name of the petitioner had not been considered for being added in the panel, on the erroneous ground that he had not done a regular degree course, after completing 10, +2 years at the school level.
7. It had also been stated that the petitioner had not been considered on the erroneous view that the degree obtained by the petitioner, by correspondence, is not equivalent to a regular degree obtained from a recognized university. It had been further stated that, as per the prevailing government orders, the petitioner had been fully qualified, as he had possessed all the necessary qualifications, on the crucial date, for being considered for promotion, as an under Secretary to Government.
8. The petitioner had further stated that he should have been added in the regular panel, for the post of under Secretary to Government, for the year 2010-2011, between P.Krishnaswamy (Serial No.154-Industries) and C.Selvaraj (Serial No.155-P&AR) published in G.O.(D) No.135, Personnel and Administrative Reforms (Q) Department, dated 28.8.2010, with all attendant benefits. As the petitioner had not been considered for being included in the panel for being promoted, as an under Secretary to Government, he has preferred the present writ petition, before this Court, under Article 226 of the Constitution of India.
9. In the counter affidavit filed on behalf of the respondents it has been stated that the name of the petitioner had not been included in the regular panel, for the post of under Secretary to Government, for the year 2010-2011, drawn in G.O(D) No.135, Personnel and Administrative Reforms (Q) Department, dated 28.8.2010, for not possessing his degree after completion of S.S.L.C. and +2 (Higher Secondary Course), as per G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department, dated 18.8.2009. He had passed S.S.L.C. (11 years), two year foundation course, which is equivalent to +2 (Higher Secondary), as per G.O.Ms.No.528, Personnel and Administrative Reforms (Per.R.) Department, dated 18.5.1985.
10. It has been further stated that, in G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department, dated 18.8.2009, it has been ordered that the Diploma/Degree obtained through the Open University, after passing S.S.L.C. (10th Standard) and Higher Secondary (+2) Course alone can be considered for appointment/promotion in public services. In Government Letter No.33448/M/2010-4, Personnel and Administrative Reforms (M) Department, dated 3.12.2010, the following clarifications had been issued to the orders issued in the government order, in G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department, dated 18.8.2009:
"i) A degree awarded by the Open Universities after passing Pre-Foundation Course and two year Foundation Course through Open University cannot be recognised as a degree as per University Grants Commission norms for the purpose of employment/promotion in Public Services, since such Pre-foundation Course and 2 year Foundation Course are not contemplated in the University Grants Commission Regulations.
ii) Therefore, those who obtained a degree under Open University System after passing the Pre Foundation Course and two year Foundation course without passing 10th standard and +2 examination, do not satisfy the conditions laid in G.O.(Ms) No.107, P&AR(M) Department, dated 18.08.2009 which is in consonance with the orders of the Hon'ble Supreme Court of India."
Therefore, the petitioner, who had obtained a degree, under the Open University System, after passing the Pre-Foundation Course and the two year Foundation Course, without passing 10th standard and the +2 examination, could not satisfy the conditions prescribed, in G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department, dated 18.8.2009, which is in consonance with the orders passed by the Supreme Court of India, in Annamalai University Vs. Secretary to Government (2009) 4 SCC 590, in Civil Appeal No.4173 of 2008. As such, the writ petition filed by the petitioner is devoid of merits and therefore, it is liable to be dismissed.
11. The main contention of the learned Senior counsel, Mr.R.Thiagarajan, appearing on behalf of the petitioner is that no additional qualification can be prescribed, for being considered for promotion to the post of under Secretary to Government, applicable with retrospective effect. While the crucial date for considering the names for being included in the panel for promotion, to the post of under Secretary to Government, from the post of Section officer, is 1.9.2010. On the said date, as well as on 28.8.2010, the date on which the names had been considered for such promotion, the petitioner had possessed all the necessary qualifications, as per the prevailing government orders. However, a government order, in G.O.Ms.No.92, Personnel and Administrative Reforms (C) Department, dated 20.6.2012, had been issued, prescribing Bachelors Degree, as a qualification for being promoted to the post of Under Secretary to Government. The said Government Order had come into force, with effect from 16.12.2011. Even if the said government order could be held to be applicable to Section Officers, for being considered for promotion to the post of Under Secretary to Government, from 16.12.2011 onwards, such an additional qualification cannot be held to be applicable to the case of the petitioner, with retrospective effect. Therefore, the petitioner ought to have been considered for being included in the panel for promotion, to the post of Under Secretary to Government, for the year 2010-2011, and his name ought to find a place in the government order, in G.O(D).No.135 Personnel and Administrative Reforms (Q) Department, dated 28.8.2010, in between the names of P.Krishnasamy and C.Selvaraj, found under Serial Nos. 154 and 155, respectively, with all attendant benefits.
12. Per contra, the learned Advocate General, appearing on behalf of the respondent, had submitted that the name of the petitioner had not been included in the panel for promotion to the post of under Secretary to Government, for the year, 2010-2011, in view of the fact that he had not completed 10 +2 years at the school level and a Bachelors degree thereafter, from a regular university. As the petitioner had passed the S.S.L.C (11 years) examination and had obtained a Bachelors Degree course, from an Open University, through correspondence he would not be eligible for being considered for promotion to the post of under Secretary to Government, as per the government order, in G.O.Ms.No.92, Personnel and Administrative Reforms (C) Department, dated 20.6.2012. Therefore, the name of the petitioner had not been included in the regular panel of candidates, for the post of under Secretary to Government, for the year, 2010-2011, in G.O(D).No.135 Personnel and Administrative Reforms (Q) Department, dated 28.8.2010. As such, the present writ petition, filed by the petitioner, is devoid of merits and therefore, it is liable to be dismissed.
13. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondent, and on a perusal of the records available, it is noted that the petitioner had passed S.S.L.C examination (11 years) and thereafter, completed the second year foundation course, in the year, 1983-1984, which is equivalent to +2 course, as per the government order, in G.O.Ms.No.528, Personnel and Administrative Reforms (Per.R.) Department, dated 18.5.1985. Thereafter, he had completed the three year B.Com., degree course, from Madurai Kamaraj University, during the years 1984-1987, through correspondence. While so, he had been appointed, as an Assistant, by transfer, from the post of personal clerk, in the year, 1988. Thereafter, his service, in the post of Assistant, had been regularized, treating the same as promotion. As the petitioner was found to be possessing the necessary qualifications he had been promoted, as an Assistant Section Officer, in the year 1993. Thereafter, he had been promoted, as a Section Officer, in the year, 2006. As such, he was eligible to be promoted, to the post of Under Secretary, in the year, 2010, as he had possessed the necessary qualifications, as per the Tamilnadu Secretariat Service Rules prevailing at the relevant point of time. Therefore, it is not open to the respondent to contend that the petitioner had not possessed the necessary educational qualifications, for being promoted to the post of Section Officer, or for being promoted to the post of Under Secretary, as per the government order, in G.O.Ms.No.92, Personnel and Administrative Reforms (C) Department, dated 20.6.2012, which had come into force, only with effect from 16.12.2011. As the said government order, in G.O.Ms.No.92, Personnel and Administrative Reforms (C) Department, dated 20.6.2012, has not prescribed the possession of a Bachelors Degree, from a regular university, after 10, +2 years of study, at the school level, with retrospective effect, the said Government Order would not be an impediment for the name of the petitioner being included in the panel for the post of under Secretary, for the year, 2010-2011. Therefore, the contentions raised on behalf of the respondent cannot be countenanced. As such, this Court is of the considered view that the name of the petitioner ought to have been considered for being included in the panel for promotion, to the post of Under Secretary to Government, for the year, 2010-2011, as prayed for by the petitioner, in the present writ petition. Accordingly, the writ petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed.
Index:Yes/No 30-07-2012 Internet:Yes/No csh To The Secretary to Government Personnel and Administrative Reform Department, State of Tamilnadu Secretariat, Chennai-9.
M.JAICHANDREN,J.
csh Writ Petition No.14658 of 2011 30-07-2012