Madras High Court
A.Anitha vs The Principal Secretary To Government on 31 August, 2021
Author: C.Saravanan
Bench: C.Saravanan
W.P. No. 12275 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.08.2021
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P. No. 12275 of 2020
and
W.M.P. No. 15066 of 2020
A.Anitha ...Petitioner
Vs.
1. The Principal Secretary to Government
School Education Department
Fort St. George
Chennai – 600 009.
2. The Secretary
Tamil Nadu Public Service Commission
Frazer Bridge Road
Chennai – 600 003. ... Respondents
Petition filed under Article 226 of the Constitution of India, praying
for issuance of a Writ of Certiorarified Mandamus, calling for the records of
the First Respondent in connection with the impugned orders passed by him
in Letter No. 34638/PaKa1(1)/2014-5 dated 05.02.2016, Letter No.
10257/SE1(1)2016-11 dated 04.10.2018 and Letter No.
32884/PaKa1(1)/2018-2, dated 19.08.2019.
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W.P. No. 12275 of 2020
For Petitioner : Mr. K.Venkataramani
Senior Counsel
for Mr. Mmuthappan
For Respondents : Mr. LSM Hasan Fizal
Government Advocate (For R1)
Mr. Karthick Rajan
Standing Counsel (For R2)
ORDER
The Petitioner has challenged the impugned orders dated 05.02.2016, 04.10.2018 and 19.08.2019 of the First Respondent denying the Petitioner's promotion to the post of Joint Director of Education.
2. The Petitioner was appointed as a District Educational Officer in the direct recruitment called for in the year 1999-2000 by the Second Respondent /Tamil Nadu Public Service Commission(TNPSC). The Petitioner also appeared in the exams conducted by the Second Respondent /TNPSC and was declared as a successful candidate. The Petitioner had filed the application as Scheduled Caste (Women). After the Petitioner was called for interview and certificate verification, the results of the Petitioner was withheld on 10.01.2003. Later, the Petitioner came to know that the 2/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020 result of the Petitioner was withheld on the ground that the community certificate produced by the Petitioner could not be accepted, as it carried the name of her husband Thiru. Anandhan, in stead of her father's name Thiru. P.Francis. Therefore, the Petitioner was directed to produce a fresh community certificate. The Petitioner thereafter obtained a community certificate from the Tahsildar, Karikudi, within whose jurisdiction the Petitioner claims to had a permanent residence, specifying clearly the name of the community to which she belonged to with Petitioner's father's name and also specifying the Petitioner's re-conversion from Christianity to Hinduism and to reach the office within 15 days from the date of receipt of the letter dated 10.11.2004, failing which the Petitioner's application will be rejected summarily.
3. Under these circumstances, the Petitioner submitted a reply dated 04.12.2004 along with a fresh community certificated issued by the Tahsildar, Karaikudi, Sivaganga district, dated 26.11.2004 and a Conversion Certificate to the Deputy Secretary, Tamil Nadu Public Service Commission and requested that same may be accepted and appropriate orders may be issued.
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4. However, the certificate issued by the Petitioner was rejected. It was challenged in W.P. (MD) No. 6211 of 2008. By an order dated 14.07.2009, the Writ Petition was disposed by the Hon'ble Division Bench of Madurai High Court with the following directions:-
“4. Learned Counsel for the Petitioner submitted that the second respondent called for report from the Revenue Divisional Officer as to the community of the Petitioner and it seems that the Revenue Divisional Officer submitted a report in her favour and the same is stated in detail in the impugned order. However, the Second Respondent sought to cancel the community certificate solely on the basis of the Letter (Ms) No.81, Adi Dravidar Tribal and Welfare Department dated 19.09.2000 on the ground that since the Petitioner was born to Christian parents, she could not be treated as scheduled caste even after conversion to Hinduism.
5. Learned Counsel for the Petitioner brought to our notice that the said letter has been set aside by this Court by a Division bench of this Court in Prof.I.Elangovan -vs- State of Tamil Nadu, Rep. by the Chief Secretary to Government of Tamil Nadu, Chennai and another reported in 2007 (3) MLJ 209 and the Government has also accepted the said decision of the Division Bench in the above mentioned case and issued 4/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020 fresh orders in G.O.Ms. No.1, Adi Dravidar and Tribal Welfare Department dated 02.01.2009 making it clear that the persons on conversion to Hinduism from Christianity will be treated as scheduled case, if those persons belonged to scheduled caste and their community people have accepted them.
6. In these circumstances, the impugned order is set aside. The Writ Petition is allowed. No costs. Consequently, M.P. (MD) No.1 of 2009 is quashed.” After the orders came to be passed by the Hon'ble Division Bench of Madurai High Court in W.P. (MD) No. 6211 of 2008 dated 14.07.2009, G.O. Ms. No. 211 , School Education (A1) Department dated 20.12.2011 was issued, pursuant to which, the Government approved the proposal of the Director of School Education for giving administrative training for a period of six months to the Petitioner, with reference to Rule 7 of the Special Rules for the Tamil Nadu School Educational Service.
5. Thereafter, the Petitioner was sent for training in terms of the proceedings in R.C. No. 028925/A1/2010 dated 23.12.2011 and appointed as a District Educational Officer in Memo No.3571/OTD-C2/2000, on 24.02.2011, in terms of G.O. Ms. No. 101, School Education [SE1(1)] 5/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020 Department dated 25.07.2014. The Petitioner, thereafter, joined as Additional Chief Educational Officer, Vellore on 28.07.2014.
6. It is the case of the Petitioner that the delay in appointing the Petitioner as a District Educational Officer was not on account of the fault of the Petitioner, but on account of the departmental proceedings on account of the rejection of the certificate produced by the Petitioner, which was eventually, accepted by an order dated 14.07.2009 of the Hon'ble Division Bench of Madurai High Court.
7. Learned Senior Counsel appearing for the Petitioner further submits that in an identical situation arising under a similar circumstances, an order came to be passed in the context of medical service by this Court in W.P. No. 6325 of 2010 dated 08.09.2017 in the case of K.K.Senthil Kumaran
-vs- the Secretary to Government, Health and Family Welfare Government, Secretariat, Fort St. George, Chennai-9 and others, and that orders also came to be implemented, by G.O. Ms. No. 243, Health and Family Welfare (B1) Department, dated 31.05.2019. 6/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020
8. Learned Senior Counsel appearing for the Petitioner further submits that there is no justification in denying notional promotion to the petition, with retrospective effect to the Petitioner in as much as the Petitioner's juniors viz., Tmt. N.Anandhi (Sl.No.5) and Tmt.K.Thailammal (Sl.No.7) were promoted based on the date of their appointment in the year 2005, as District Educational Officers.
9. It is further submitted that further junior of the Petitioner, viz., Thiru. M.Vasu was also given promotion as Chief Educational Officer and later, as Joint Director. Whereas the Petitioner is still serving as Chief Educational Officer, merely because she was appointed only in the year 2011, though she qualified herself in the direct recruitment as early as 10.01.2003. Therefore, Learned Senior Counsel appearing for the Petitioner submits that the Writ Petition deserves to be allowed.
10. Learned Senior Counsel appearing for the Petitioner also submits that the Second Respondent has also recommended for restoration of seniority and therefore, there is no justification in not giving promotion to the Petitioner on par with her contemporaries and batch mates who appeared 7/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020 along with her in the recruitment process.
11. Learned Counsel appearing for the First Respondent submits that in the matters of promotion, the Respondents are governed by Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules [now section 40(2) of the Tamil Nadu Government Servants (Conditions of Service) Act 2016].
12. Learned Counsel appearing for the First Respondent submits that as per the above, the seniority of a person in a service/ class/ category on grade shall be determined with reference to the date on which he/she is appointed to the service/ class/ category on grade.
13. It is submitted that since the Petitioner was appointed only in the year 2011 and further the Petitioner cannot claim parity with her contemporaries batch mates, viz., Tmt. N.Anandhi and Tmt.K.Thailammal and her junior Thiru. M.Vasu, who were appointed way back in February, 2005, and were promoted, later, as Chief Educational Officers on 25.02.2011 and thereafter, as Joint Directors on 19.09.2017.
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14. Learned Counsel appearing for the First Respondent further submits that as per Rule 6(1) of Special Rule of the Tamil Nadu School Educational Service, a for person to be appointed as a Deputy Director of School Education and as Chief Educational Officer, by promotion, experience in the post of District Educational Officer or in any equivalent post for a period of not less than three years is mandatory and therefore, the case of the Petitioner cannot be entertained and therefore, he submits that the orders passed by the First Respondent on 05.02.2016, 04.10.2018 and 19.08.2019 rejecting the request of the Petitioner for promoting her as Joint Director on par with her contemporary and batch mates, who appeared with her in the examination conducted by the Second Respondent are to be sustained and therefore, the Writ Petition is liable to be dismissed.
15. Learned Counsel appearing for the Second Respondent further submits that there is no delay on the part of the Second Respondent and the Second Respondent has also recognized the Petitioner for promotion i.e., for inclusion in the relevant panel for promotion to the post of Chief Educational Officer based on the said seniority fixed by the Tamil Nadu 9/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020 Public Service Commission.
16. Heard Mr. K.Venkataramani, Learned Senior Counsel, assisted by Mr. M.Muthappan, Counsel on record for the Petitioner and Mr. LSM.Hasan Fizal, Learned Government Advocate appearing for the First Respondent and Mr. Karthick Rajan, Learned Counsel appearing for the Second Respondent, and perused the materials placed on record.
17. Perused the orders passed by this Court in W.P. (MD) No. 6211 of 2008 vide order dated 14.07.2009. There is no doubt that the delay in appointing the Petitioner arose on account of fresh certificate verification, which taken up afresh in the direct recruitment, though the particulars of the community of the Petitioner stood already established with the Government in the previous post held by Petitioner. Therefore, such credentials ought not to have been questioned unless such credentials were themselves obtained by the Petitioner using fraudulent means. Admittedly, this not the case.
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18. The delay in the appointment of the Petitioner to the post of District Educational Officer was not on account of the Petitioner but on account of the departmental delay and dilemma. As the department took its own time to accept the same, and that the fresh certificate produced by the Petitioner with her father's name was rejected, and the fresh certificate obtained by the Petitioner was eventually cancelled. The said order was quashed by the Hon'ble Division Bench of Madurai High Court in W.P. (MD) No. 6211 of 2008 vide its order dated 14.07.2009. The delay in appointing the Petitioner to the post of District Educational Officer and consequential denial of the promotion to the Petitioner on 21.10.2014 cannot be to the prejudice on account of the Petitioner. Though Rule 35(aa) of the Tamil Nadu State and Subordinate Service [now section 40(2) of the Tamil Nadu Government Servants (Conditions of Service) Act 2016] specifically states that seniority of the persons in service, class, category on grade shall be determined with reference to the date on which such a person is appointed to service, class, category on grade, the delay in appointment of the Petitioner cannot be to the prejudice of the Petitioner. The appointment of the petitioner has to date back to the original date when the petitioner would have been appointed but for the rejection of the certificate. It has to be deemed that the petitioner was 11/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020 appointed earlier.
19. The advantage of order of the Hon'ble Division Bench of Madurai High Court vide order dated 14.07.2009 would enure to the Petitioner to the original date. The Petitioner was entitled to be deemed to have been appointed notionally along with her contemporaries / batch mates, who were selected in the recruitment during 22.06.2005 as per Tamil Nadu School Educational Service Rules, pursuant to notification calling for filing the vacancies of the year 1999-2000. The mandatory requirement under Rule 6(1) of Special Rule of the Tamil Nadu School Educational Service for experience in the post of District Educational Officer or in any equivalent post for a period of not less than three years has to be read as experience in the post of District Educational Officer from the date of appointment of the Petitioner for the purpose of promotion along with the Petitioner's batch mates on contemporaries.
20. It is further noticed that under similar circumstances in W.P. No. 6325 of 2010 by an order dated 08.09.2017 this Court has held as under:-
“12. It is an admitted case, it was not the fault of the 12/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020 Petitioner that his appointment was delayed by the illegal action initiated by the Tamil Nadu Public Service Commission from 1990-2005. Such delay cannot be held against the Petitioner for the purpose of denying the benefits. In fact, the Government itself has recognized his position and granted exemption vide G.O.(D) No. 370 dated 15.03.2007, granting him exemption for applying PG course as in service candidate.
13. Such being the case, the denial of other benefits by the Government cannot be countenance in law and on facts. In the above circumstances, this Court has no hesitation in allowing the writ petition and the impugned orders dated 30.10.2007, 07.12.2007 and 16.07.2008, are set aside and the first respondent is directed to confer all the benefits of the Petitioner by treating her selection of appointment as one which had taken place in 1990, on par with the other Doctors who were selected along with him in accordance with G.O.Ms. No. 1679 dated 14.09.1990.” The order of this Court in K.K.Senthil Kumaran -vs- The Secretary to Government has also been implemented that the Respondents in G.O. Ms. No. 243, Health, Family Welfare dated 31.05.2009.
21. In view of above, the Petitioner deserves to be treated on par with not 13/15 https://www.mhc.tn.gov.in/judis/ W.P. No. 12275 of 2020 only the contemporary batch mates. The Respondents, therefore, are directed to make necessary correction in the Service Register of the Petitioner.
22. Accordingly, this Writ Petition is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.
31.08.2021
Maya
Index : Yes/No
Internet : Yes/No
Speaking order /Non-speaking order
To
1. The Principal Secretary to Government
School Education Department
Fort St. George, Chennai – 600 009.
2. The Secretary
Tamil Nadu Public Service Commission
Frazer Bridge Road
Chennai – 600 003.
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W.P. No. 12275 of 2020
C.SARAVANAN, J.
Maya
W.P. No. 12275 of 2020
Dated : 31.08.2021
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