Madras High Court
K.Dhanasekaran vs The Government Of Tamil Nadu on 31 August, 2009
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.08.2009 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.1681 of 2005 K.Dhanasekaran ... Petitioner vs. 1. The Government of Tamil Nadu, rep. by its Secretary, Rural Development Department, Fort St. George, Chennai 600 009. 2. The Director of Rural Development, Panagal Building, Chennai 600 015. 3. The District Collector, Krishnagiri District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents to promote the petitioner on par with his Junior with all monetary benefits following the seniority list dated 17.06.1998 Na.Ka.No.47210/98/K3 within a stipulated period. For Petitioner : Mr.K.Venkataramani, Senior Counsel for Mr.S.P.B.Dhuraisamy For Respondents : Mr.V.Viswanathan, Additional Government Pleader O R D E R
The petitioner has filed this writ petition for a direction to the respondents to promote him on par with his Juniors with all monetary benefits following the seniority list dated 17.06.1998 in Na.Ka.No.47210/98/K3 within a stipulated period.
2. The petitioner would state that at present, he is working as Rural Welfare Officer Grade-I in Mathur Panchayat Union. He was appointed as Junior Assistant on 15.10.1984 in the Revenue Department selected through Tamil Nadu Public Service Commission, Group IV Examination. While he was working in the Revenue Department, on 18.03.1987, he was transferred to Hosur Rural Development Department at Dharmapuri District as Junior Assistant. According to the petitioner, prior to his transfer, the respondents had not sought his consent. But, in obedience of the order passed by the Government, the petitioner joined duty on 21.03.1987 and has put in 2 = years of service in the Revenue Department. The petitioner has also stated that at the time of his transfer, his probation period was not declared.
2a. It is the case of the petitioner that as per Rule 28 of Tamil State Subordinate Service Rules, in the case of any probationer falling under sub rule (b) of Rule 26 or sub rule (c) of rule 27, the appointing authority may extend his probation to enable him acquire the special qualifications or pass the prescribed tests, or, as the case may be, to enable the appointing authority to decide whether the Probationer is suitable for full membership or not.
2b. The petitioner would also state that the respondents without following the said rules kept him under probation for a prolonged period of 7 years and only by proceedings dated 08.10.1991 in Mu.Mu.No.17180/91/A4, the then third respondent, District Collector, Dharmapuri District had declared his probation w.e.f. 15.10.1984 and regularised his service from 28.11.1986 onwards. Further, after a lapse of four years, when the petitioner sought promotion next to his senior, the respondents informed that he has not passed the test stipulated by the Government for the Rural Development and refused to promote him next to his senior; hence, the respondents failed to follow Rule 28 of the said Rules.
2c. The petitioner would further state that the respondents ought to have called upon him to complete the five tests within a period of two years; had he passed the prescribed test within a period of two years, the respondents would have stopped the increment and would have given a notice; but, without doing so, in the year 1987, the petitioner was transferred to the Rural Development Department and his probation was declared in the year 1991. According to the petitioner, had the respondents extended the probation period for another three years for declaring probation, at least after five years, the respondents ought to have terminated or reverted his service for not acquiring the test qualification, but the respondents without doing so, declared his probation on 08.10.1991, w.e.f. 28.11.1986 and regularised his service from 15.10.1984 onwards.
2d. It is further stated by the petitioner that on 07.11.1995, the petitioner passed all the tests and on 01.03.1996, he sought for promotion and sent a representation to the 3rd respondent. But, the respondents without considering his request kept his promotion pending and on 17.06.1998, the respondents published the integrated seniority list and his name was placed in Serial No.174 and his juniors, one Rajagiri and Rajaraman were placed in Serial Nos.188 and 189. Thereafter, on 26.07.2001, the petitioner sent another representation to the respondents to promote him on par with his seniors and above his juniors. On receipt of his representation, the 3rd respondent sought a clarification from the 4th respondent regarding the said issue. Thereafter, on 25.06.2003, the 3rd respondent once again published a list of integrated seniority list in which he was placed at Serial No.172 and promoted as Assistant, whereas his juniors were promoted as Managers.
2e. The grievance of the petitioner is, the respondents without promoting him to the higher post kept him as Junior Assistant for 19 years even though his service was regularised as early as 1986. Therefore, the petitioner preferred an appeal to the 3rd respondent on 05.07.2003 seeking to promote him and place him above his juniors. But, on 29.03.2004, the respondent passed an order stating that from Serial No.172, the petitioner was placed in Serial No.83A, but failed to place him above his juniors. Hence, the petitioner once again forwarded another representation to the 3rd respondent to consider his request and promote him on par with his juniors. But, the respondents once again placed him in seniority list at Serial No.36. Aggrieved by the said order of seniority, the present writ petition is filed.
3. On the other hand, the respondents in their counter affidavit have stated that the petitioner was originally selected and allotted by TNPSC for the post of Junior Assistant in the Revenue unit of Dharmapuri District in the year 1984 and he worked there from 15.10.1984 to 20.03.1987. Then, he was surrendered to the TNPSC for want of vacancy and in turn, he was re-allotted by the TNPSC to the Panchayat Development Unit, Dharmapuri District for appointment as Junior Assistant. Accordingly, he joined as Junior Assistant on the F.N. of 21.03.1987 in the Panchayat unit of Dharmapuri District. In the meanwhile, after four years of his duty in the Panchayat Development Unit from 21.03.1987 to 07.10.1991, the petitioner's services were regularised in the cadre of Junior Assistant on the F.N. of 15.10.1984 and probation was declared on the A.N. of 28.11.1986, since his tenure as Junior Assistant in Revenue unit was from 15.10.1984 to 20.03.1987.
3a. It is further stated in the counter that in the Proceedings in Roc.No.42118/95-3, K2 dated 20.11.1995, the Personal Assistant (P.D.) to Collector, Dharmapuri confirmed his integrated inter se seniority in the cadre of Junior Assistant / Rural Welfare Officer Grade-II/Cashier/Typist at Sl.No.174 in the Panchayat Development unit of Dharmapuri District, by taking his date of original appointment as Junior Assistant by TNPSC on 15.10.1984 in the Revenue unit of Dharmapuri District in accordance with G.O.Ms.No.648, P & AR Department dated 25.06.1985 and G.O.Ms.No.292, P & AR Department, dated 02.04.1987.
3b. The respondents would further state that the petitioner has passed the Department tests of Officers of the Panchayat Development Department and Panchayat Development Account Test on 07.11.1995, i.e., after 8 years from the date of his joining duty as Junior Assistant on 21.03.1987 F.N. in the Panchayat Development Unit of Dharmapuri District. He has acquired the service qualification in the cadre of Junior Assistant/R.W.O (Gr-II) as on 01.03.1990 as per the new single service rules and subsequently, he was given promotion as Rural Welfare Officer Grade-I (Assistant Cadre) on the F.N. of 17.02.2003 as per the proceedings of the Collector, Dharmapuri, in Roc.No.311/03/K2, dated 11.02.2003.
3c. In the counter, the respondents have submitted that in the cadre of Assistant/Accountant/Rural Welfare Officer Grade I, the petitioner was assigned seniority at Sl.No.36 by the Collector, Krishnagiri in proceedings dated 28.10.2004, as per New Single Service Rules formulated and stipulated by the Government in G.O.Ms.No.585, R.D. & L.A., Department dated 12.04.1984 and G.O.Ms.No.349, P & AR Department, dated 12.04.1984, inasmuch as the newly created Krishnagiri District has been functioning w.e.f. 09.02.2004. The respondents would submit that the petitioner without furnishing the above information has filed the present writ petition.
3d. It is also the case of the respondents that no juniors were temporarily promoted as Assistant in the Panchayat Development Unit of Dharmapuri District in the year 1987, as wrongly contended by the petitioner against the new single service rules. The claim of the petitioner and two of his juniors were shown to be wrong as per the particulars furnished hereunder :
S.No. Name Date of Joining Duty as Junior Assistant in the Panchayat Development Unit Year of passing of the Department Tests Year of Promotion as Assistant
1.
Mr.K.Dhanasekaran (petitioner) 21.03.1987 F.N. 1995 (after 8 years) 2003 2. Mr.A.Rajagiri 23.08.1985 F.N. 1986 1987 3. Mr.T.Rajaram 21.08.1985 F.N. 1987 1987
3e. Therefore, the respondents would state that the petitioner is not eligible to hold the post of Assistant by promotion in the year 1987, since he has not passed the Departmental Tests in the year 1987, which is one of the foremost and requisite qualifications for consideration of promotion as Assistant in the Panchayat Development Unit as per the new single service rules. In all, the respondents would contend that the petitioner is not eligible for retrospective promotion as Assistant for the year 1987 on par with his juniors.
4. Heard Mr.K.Venkataramani, learned Senior Counsel for the petitioner and Mr.V.Viswanathan, learned Additional Government Pleader for the respondents.
5. Learned Senior Counsel for the petitioner would submit that the petitioner was initially appointed on 15.10.1984 and without any option, he has been transferred to Rural Development Department on 21.03.1987 and he was not called upon to pass the Departmental test as per the the Service Rules and on knowing the required qualification for promotion, the petitioner has passed the Departmental test on 07.11.1995. However, inter se seniority list was published on 20.11.1995, wherein, the petitioner's seniority has been fixed correctly. Thereafter, a revised inter se combined seniority list was prepared by the respondents on 17.06.1998, in which the petitioner's name did not find place, in spite of he being eligible. Learned Senior Counsel would contend that in spite of repeated representations by the petitioner to the respondents to include his name in the seniority list, there is no reply from the respondents and hence, pleaded this court for a direction to the respondents to consider the petitioner's claim.
6a. In support of his case, learned Senior Counsel for the petitioner has placed reliance on a Division Bench decision of this court reported in 2008 (3) MLJ 415 in the case of Dr.N.Iyyanar vs. Secretary to Government, Health and Family Welfare Department, Chennai and others. Relevant portion of the said decision would read as under :
"9. "31. Appointment of full members : (a) Subject to the provisions of rules 9 and 35(a) an approved probationer shall be appointed to be a full member of the service in the class or category for which he was selected, at the earliest possible opportunity in any substantive vacancy which may exist or arise in the permanent cadre of such class or category and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from the date or, as the case may be, from any subsequent date from which he was continuously on duty as a member of the service in such class or category or in a higher class or category :
Provided that where more than one approved probationer is available for such appointment as full member, the senior most approved probationer shall be appointed."
"35 (a) The seniority of a person in a service, class or category or grade shall unless he has been reduced to lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority, as the case may be subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority." "
7. The above contention of the learned Senior Counsel for the petitioner was controverted by the learned Additional Government Pleader appearing for the respondents that the petitioner even after a lapse of eight years of service has not passed the required test as contemplated under the rules and even after passing the test, his promotion was considered in the year 2003 only and therefore, his claim for promotion on par with his juniors cannot be considered as they have passed the test in the year 1987 itself. He would also contend that Rule 28 of the Tamil Nadu State and Subordinate Service Rules may not be applicable to the petitioner's case and therefore his claim based on the declaration of probation made earlier, cannot be a ground for considering his promotion.
8. The petitioner's appointment as Junior Assistant in the Revenue Department on 15.10.1984 through TNPSC and his transfer to the Rural Development Department on 21.03.1987 are not in dispute. It is also not in dispute that the petitioner's juniors, who joined in the year 1985 passed the test earlier to the petitioner and they are continuing in service. The only grievance of the petitioner appears that though he had passed the Departmental test as required under the Rules on 07.11.1995, he was made known only later that he is required to pass all the tests for claiming promotion.
9. On analysis of the pleadings and the ruling of the above provisions, it is clear that unless probation is declared after passing of all required examinations, a person may not be construed as part of the regular service. However, as indicated in Rule 31 itself, such rule is subject to the provisions contained in Rule 35. Rule 35(a) is regarding fixation of seniority. Such provision leaves no room for doubt that seniority has to be fixed on the basis of placement in the selection list. It is axiomatic that if a person is appointed on a later date, he must be treated as junior to those who were appointed earlier in the absence of any specific rule to the contrary.
10. In the present case, the petitioner's juniors, namely, Rajagiri and Rajaraman were appointed on 23.08.1985 and on 21.08.1985, respectively, after the appointment of the petitioner on 15.10.1984. However, they have passed the Departmental tests as prescribed under the rules in the years, 1986 and 1987, respectively. The petitioner passed the Departmental test in the year 1995. Therefore, his claim for promotion on par with his juniors cannot be considered in the light of the above position. However, in the given circumstances, it is the strong plea of the petitioner that his seniority has to be counted from the date on which the integrated seniority list was prepared, i.e. from 17.06.1998. Even though the petitioner has passed the required tests within the period prescribed under the Rules, he had been allowed to continue in service as such, and subsequently promoted.
10a. It is clear that the petitioner has been taken into regular service after passing of the required examinations as per the Rules. It is specifically provided under the Rules that seniority has to be counted from the date on which the candidate has passed the test. Therefore, the claim of the petitioner that he should be treated as senior to two of his juniors, cannot be accepted. However, the fact that the petitioner was appointed prior to his juniors, i.e. on 15.10.1984 cannot be lost sight of. As soon as the petitioner passed the qualifying examination, it must be taken that he had become part of the service on regular basis and thereafter by virtue of Rule 35(a) of the Rules, his seniority has to be counted on the basis of the placement by the TNPSC. In this regard, the petitioner has made a representation to the respondents seeking to consider his claim for promotion. Therefore, it is the bounden duty of the respondents to consider the petitioner's claim for promotion from the date on which he acquired the prescribed qualification by passing the required examinations, based on the integrated seniority list prepared on 17.06.1998.
11. In the light of the above discussion, it would be appropriate for this court to direct the respondents to consider the petitioner's claim for promotion from the date of preparation of the integrated seniority list, i.e. on 17.06.1998 based on the petitioner's appeal dated 05.07.2003 and pass appropriate orders in accordance with law and on merits, after affording an opportunity of hearing to the petitioner, within a period of twelve (12) weeks from the date of receipt of a copy of this order.
The Writ Petition is disposed of with the above direction. No costs.
abe To :
1. The Secretary, Government of Tamil Nadu, Rural Development Department, Fort St. George, Chennai 600 009.
2. The Director of Rural Development, Panagal Building, Chennai 600 015.
3. The District Collector, Krishnagiri District