Madras High Court
The Secretary To Govt. Of Tamil Nadu vs V.Manavalan on 28 February, 2017
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
Rev.Appl.No.169 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Delivered on : 27.09.2019
Reserved on : 06.11.2019
CORAM
THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN
and
THE HON'BLE MR.JUSTICE R.MAHADEVAN
Rev.Appln.No.169 of 2019
against W.A.No.861 of 2016
The Secretary to Govt. of Tamil Nadu
Public (General-II) Department,
Fort St.George,
Secretariat, Chennai-600 009. .. Review Applicant
Vs.
V.Manavalan .. Respondent
Prayer:- Review Application filed under Order XLVII Rules 1 and 2 CPC
r/w. Section 114 CPC to review the Judgment dated 28.02.2017 made in
W.A.No.861 of 2016.
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Rev.Appl.No.169 of 2019
For Applicant : Mr.P.H.Aravind Pandian,
Additional Advocate General
assisted by
Mrs.P.Rajalakshmi,
Special Govt. Pleader
For Respondent : Mr.A.L.Somayaji, Senior Counsel
assisted by
Mr.Venkataramani, Senior Counsel
and Mr.M.Muthappan
ORDER
The sole official respondent in W.P.No.37467 of 2015 / appellant in W.A.No.861 of 2016 has filed this review application to review the judgment dated 28.02.2017 made in W.A.No.861 of 2016.
2. The review applicant/official respondent in the writ petition, challenging the said judgment dated 28.02.2017 made in W.A.No.861 of 2016, preferred a Special Leave Petition in Diary No.20375/2017 along with an application for condonation of delay in filing SLP and it was disposed of by the Hon'ble Supreme Court, vide order dated 31.07.2017 and it is relevant to extract the same:
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http://www.judis.nic.in Rev.Appl.No.169 of 2019 “Heard learned counsel for the petitioner. Delay condoned.
It is submitted that the High Court has not looked into the Judgment of this Court in Annamalai University Vs. Secretary to Government, Information and Tourism Department, (2009) 4 SCC 590 and that the promotions of other similarly persons were made only prior to the said judgment.
In this view, we permit the petitioner to move the High Court for consideration of the above aspect. The High Court may consider this aspect in accordance with law.
The special leave petition is, accordingly, disposed of. Pending application(s), if any, shall also stand disposed of.” The appellant in W.A.No.861 of 2016 / official respondent in W.P.No.37467 of 2015, in the light of the liberty granted by the Hon'ble Supreme Court in the above cited order, has preferred this review application.3
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3. Facts leading to the litigation instituted by the respondent in W.P.No.37467 of 2015, have been narrated in detail and in extenso in the order dated 03.06.2016 made in W.P.No.37467 of 2015 and therefore, it is unnecessary to restate the facts, except to cull out the relevant and material facts for the disposal of this review application.
3.1. The respondent/writ petitioner was initially appointed as Telephone Operator in the Tamil Nadu House, New Delhi with effect from 19.05.1995 forenoon and vide G.O.Ms.No.159, Public (General-II) Department dated 07.02.2003, in and by which orders have been issued, sanctioning the creation of one temporary post of Senior Liaisoning Assistant (unclassified) in the Scale of Pay of Rs.4000-100-6000 in the Tamil Nadu House, New Delhi for a period of one year from the date of issue of orders. In G.O.Ms.No.1698, Public (General-II) Department dated 12.12.2003, the post of Senior Liaisoning Assistant in the Tamil Nadu House, New Delhi is ordered to be equated to the common category post of Assistant in Tamil Nadu House, New Delhi in the revised Scale of Pay of 4 http://www.judis.nic.in Rev.Appl.No.169 of 2019 Rs.5000-150-8000 with effect from 07.02.2003 i.e., the date on which the post of Senior Liaisoning Assistant in Tamil Nadu House, New Delhi came to be created.
3.2. The respondent/writ petitioner was relived from his duties as Senior Liaisoning Assistant, Tamil Nadu House, New Delhi for administrative reasons and vide proceedings No.2545, Public (Protocol.II) Department dated 06.06.2006, he was posted as Receptionist in the State Guest House, Chennai in the Scale of Pay of Rs.5000-175-8000 with usual allowances and the said post also carries identical Scale of Pay of Rs.9300- 34800 + Grade Pay of Rs.4,200/- as per the Tamil Nadu Revised Scales of Pay, 2009.
3.3. The respondent/writ petitioner submitted a representation dated 03.02.2014 to the review applicant, praying for eligible promotions and consequential benefits from the date of his appointment as Senior Liasoning Assistant on 11.02.2003 at Tamil Nadu House, New Delhi and to post him as Assistant Reception Officer in the State Guest House, Chepauk, Chennai 5 http://www.judis.nic.in Rev.Appl.No.169 of 2019 after equating him in the seniority of Tamil Nadu House, New Delhi, as foreign service.
3.4. It is the stand of the review applicant/official respondent in the writ petition that the Tamil Nadu House, New Delhi and State Guest House, Chennai are different establishments having separate service rules and therefore, he cannot be inter-transferred or absorbed into each other and further taken into consideration that the service rendered by the respondent as Receptionist in State Guest House, Chennai from 29.05.2006 to 28.02.2014 has been regulated as “Other Duty” vide proceedings No.599, Public (General-II) Department dated 28.02.2014.
3.5. The Principal Resident Commissioner, Tamil Nadu House, New Delhi, vide letter dated 24.07.2014, had recommended the name of the respondent for appointment to the post of Assistant Reception Officer, Tamil Nadu House, New Delhi, in the Scale of Pay of Rs.9300-34800 + Rs.4600/- and however, the name of the respondent could not be considered for empanelment to the post of Assistant Reception Officer for the year 6 http://www.judis.nic.in Rev.Appl.No.169 of 2019 2014-2015 for the reason that the post of Senior Liaisoning Officer has not been prescribed as feeder category to the post of Assistant Reception Officer in terms of Rule 5 of the Special Rules for Tamil Nadu Secretariat Service and that apart, the respondent did not fulfill the educational qualification as stipulated under Rule 19 of the General Rules for the Tamil Nadu State and Subordinate Services and however, the services rendered by him as Telephone Operator, one of the feeder categories to the post of Assistant Reception Officer, was taken into consideration.
3.6. The respondent filed W.P.No.17379 of 2015 praying for issuance of a Writ of Mandamus directing the review applicant to consider his claim for promotion as Assistant Reception Officer in commensurate with his seniority and promote him as Assistant Reception Officer in the Tamil Nadu House, New Delhi, in the light of the representation submitted by him dated 03.02.2014. A Single Bench of this Court, vide order 18.06.2015 in the said writ petition, directed the review applicant to consider and dispose of the said representation within a stipulated time and communicate the same to the petitioner and in compliance of the said order, the respondent's 7 http://www.judis.nic.in Rev.Appl.No.169 of 2019 representation was considered and it was rejected, vide communication dated 11.09.2015.
3.7. The respondent/writ petitioner, challenging the legality of the said communication, filed W.P.No.37467 of 2015 and it was entertained and the review applicant herein filed a counter affidavit. A Single Judge of this Court, vide order dated 03.06.2016 in W.P.No.37467 of 2015, has found that Rule 5(iv) of the Special Rules for Tamil Nadu Secretariat Service enables the post of Junior Assistant, Telephone Operator, Store Keeper or Typist to be considered for promotion to the post of Assistant Section Officer and thereby rejected the contention of the official respondent in the writ petition / review applicant and it is not the feeder category to the post of Assistant Reception Officer.
3.8. The Single Bench of this Court, while dealing with the lack of educational qualification, observed that the respondent/writ petitioner pursued M.A. Degree through Open University System conducted by Annamalai University without pursuing Under Graduate Degree and taking 8 http://www.judis.nic.in Rev.Appl.No.169 of 2019 into consideration of the fact that similarly placed persons numbering four had obtained Post Graduate Degree through Open University like the respondent and they were given promotion as Assistant Reception Officer and that apart, the educational qualification of the respondent/writ petitioner has been relaxed in the feeder category and citing the said reasons, has allowed the writ petition.
3.9. The official respondent in the writ petition, aggrieved by the same, filed W.A.No.861 of 2016 and, vide judgment dated 28.02.2017, it was dismissed and the Special Leave Petition preferred by the official respondent in the writ appeal in SLP Diary No.20375 of 2017 also came to be disposed of on 31.07.2017, by granting liberty to the applicant to approach this Court in the light of the judgment rendered by the Hon'ble Apex Court in Annamalai University v. Secretary to Government, Information and Tourism Development [(2009) 4 SCC 590].
4. Mr.P.H.Aravind Pandian, learned Additional Advocate General assisted by Mrs.P.Rajalakshmi, learned Special Government Pleader 9 http://www.judis.nic.in Rev.Appl.No.169 of 2019 appearing for the review applicant made the following submission only with regard to the lack of educational qualification on the part of the respondent/writ petitioner for promotion as Assistant Reception Officer. Attention of this Court was also invited to G.O.Ms.No.116, Personnel and Administrative Reforms (M) Department dated 18.08.2010, wherein the said department has taken into consideration the judgment rendered by a Division Bench of this Court in Annamalai University Case dated 04.02.2008 made in W.A.Nos.1221 of 2005, 82 of 2006 and W.P.No.36307 of 2004 as well as affirmation of the said judgment by the Hon'ble Supreme Court in Annamalai University v. Secretary to Government, Information and Tourism Development [(2009) 4 SCC 590] and accepted the recommendations of the Equivalence Committee and issued a direction that “those who possess a P.G. degree through Open University System without obtaining a U.G. degree cannot be considered as possessing a Post Graduate degree for appointment to public service”.
5. The learned Additional Advocate General appearing for the review applicant would further submit that the respondent/writ petitioner thereafter, 10 http://www.judis.nic.in Rev.Appl.No.169 of 2019 submitted a representation dated 03.02.2014, praying that he should be given eligible promotion, consequential benefits and post him as Assistant Reception Officer in the State Guest House, Chennai and since it was not considered, filed W.P.No.17379 of 2015 and it was disposed of on 18.06.2015 and in compliance of the said order, his request was considered, vide communication dated 11.09.2015. It is the further submission of the learned Additional Advocate General that challenging the said communication, he filed W.P.No.37467 of 2015, which came to be allowed on 03.06.2016 and challenge made by the official respondent in W.A.No.861 of 2016 had also ended in dismissal, vide judgment dated 28.02.2017.
6. The primordial submission made by the learned Additional Advocate General is that as per Rule 14 of the Special Rules for Tamil Nadu Secretariat Service, the qualification for appointment to the post of Assistant Reception Officer, Tamil Nadu House, New Delhi, by the method of transfer, promotion and recruitment by transfer, has been prescribed as (i) A degree in Arts or Science or Commerce ; and (ii) A pass in the Account 11 http://www.judis.nic.in Rev.Appl.No.169 of 2019 Test for Subordinate Officers, Part-I. Attention of this Court was also invited to G.O.Ms.No.65, Personnel and Administrative Reforms (S) Department dated 02.07.2014, in and by which amendment to Rule 19 of the Tamil Nadu State and Subordinate Service Rules came into being and as per the said amendment, “a degree obtained, after completion of S.S.L.C. and Higher Secondary (10+2+3) or more and a post graduate degree obtained, after completion of S.S.L.C., Higher Secondary and a degree (10+2+3+2 or 3) from any University or institution, recognized by the University Grants Commission mentioned in Schedule II to this part shall be recognized as the qualification” and admittedly, the petitioner after completing Higher Secondary Course, straightaway enrolled for Post Graduate course through Open University System and in the light of the said Rule, which has been given prospective effect from 18.08.2009, he lacks educational qualification for getting promotion to the said post and the said rule position have not been properly appreciated either by the Single Bench or by the Division Bench.
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7. The learned Additional Advocate General appearing for the review applicant would further submit that the writ petitioner has placed reliance upon lack of educational qualification by Tvl N.E.Chinnadurai, V.Periyakaruppan (since deceased), R.Angusamy, R.Pandian and in the counter affidavit filed in the writ petition, the respondent took a stand that in the year 2007, Tvl.V.Periyakarruppan and R.Angusamy, who were working as Assistant Reception Officer in the Tamil Nadu House, New Delhi by recruitment by transfer by relaxing Rules 5 and 14 of the Special Rules for Tamil Nadu Secretariat Service Rules and admittedly, it was prior to the amendment to Rule 19 of the General Rules for Tamil Nadu State and Service Rules, as per G.O.Ms.No.65, Personnel and Administrative Reforms (S) Department dated 02.07.2014, which was made retrospective application from 18.08.2009 and admittedly, the respondent/writ petitioner has submitted a representation dated 03.02.2014 for his promotion as Assistant Reception Officer and since it was not considered, he filed W.P.No.17379 of 2015, which was disposed of on 18.06.2015 and the said disposal was after passing of G.O.Ms.No.65 dated 02.07.2014 and in the light of the rule position, the claim made by the respondent/writ petitioner was considered 13 http://www.judis.nic.in Rev.Appl.No.169 of 2019 and was rejected, as he did not fulfill the educational qualification criteria and since the non-consideration of relevant statutory rules by the Single Bench as well as the Division Bench, it is an error apparent on the face of the record and therefore, prays for reviewing of the judgment dated 28.02.2017 made in W.A.No.861 of 2016.
8. Per contra, Mr.A.L.Somayaji, learned Senior Counsel appearing for the respondent/writ petitioner would submit that with regard to the feeder category for promotion to the post of Assistant Reception Officer, no challenge has been made even in the SLP preferred by the official respondent before the Hon'ble Supreme Court and the only issue pertains to alleged lack of educational qualification on the part of the writ petitioner for consideration of his claim to the said promotional post. The learned Senior Counsel appearing for the respondent/writ petitioner, developing his arguments, would submit that even during the year 2007, four persons who worked as Receptionist, Telephone Operator, Junior Assistant respectively were granted the benevolence of relaxation of educational qualification and in the light of the meritorious service rendered by the writ petitioner as well 14 http://www.judis.nic.in Rev.Appl.No.169 of 2019 as the experience gained by him, he may also be granted the benevolence of relaxation of educational qualification. The learned Senior Counsel appearing for the respondent would submit that Personnel and Administrative Reforms (M) Department in G.O.Ms.No.107 dated 18.08.2009, has considered the recommendation of the Joint Director of School Education and issued a clarification that after successful completion of S.S.L.C. and H.S.C., Diploma/Degree/Post Graduate Degree obtained through Open University System can be considered as eligibility criteria for promotion and the said Government Order came to be issued on the date on which the amendment made to Rule 19 of the Tamil Nadu State and Subordinate Services (General Rules) came into being and on that ground also, the claim of the respondent/writ petitioner can be considered for promotion to the post of Assistant Reception Officer.
9. This Court paid it's best attention to the rival submissions and also perused the entire materials placed before it.
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10. A Division Bench of this Court, in the common order dated 04.02.2008 made in W.A.Nos.1221 of 2005, 82 of 2006 and W.P.No.36307 of 2004 [N.Ramesh v. Sibi Madan Gabriel and Others] has considered a similar issue as to the obtaining of Post Graduate Qualification without undergoing Under Graduate course and held that the person who made the claim for the post of Principal, was not eligible to be considered for the reason that the M.A. Degree obtained by him through Open University System without there being a first degree was not a valid degree. The said judgment was put to challenge by Annamalai University as well as by individuals concerned in C.A.No.4173 of 2008 and C.A.Nos.4189 – 4191 of 2018 and the Hon'ble Supreme Court, in the common judgment dated 25.02.2009, which is also reported in 2009 (4) SCC 590, has affirmed the decision of the Division Bench of this Court in the above cited common judgment and therefore, the Post Graduate degree obtained by any individual without undergoing Under Graduation cannot be considered for promotion.
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11. Admittedly, the respondent/writ petitioner, after completion of Higher Secondary Course, has directly joined M.A. through Open University System method of Annamalai University and successfully completed M.A. degree and thereafter, submitted his representation dated 03.02.2014 requesting for promotion. It is to be noted at this juncture that G.O.Ms.No.116, Personnel and Administrative Reforms (M) Department dated 18.08.2010, has been passed after taking into consideration the recommendations of the Equivalence Committee and directed that those who possess Post Graduate degree obtained through Open University System, without undergoing Under Graduate degree, cannot be considered for promotion in public service.
12. Amendment to Rule 19 of the Tamil Nadu State and Subordinate Service Rules (General Rules) came into being with retrospective effect from 18.08.2009, vide G.O.Ms.No.65, P&AR(M) Department dated 02.07.2014 and as per the said amendment, Post Graduate degree after completion of S.S.L.C., Higher Secondary and a degree (10+2+3+2 or 3) 17 http://www.judis.nic.in Rev.Appl.No.169 of 2019 from any University or Institution, recognized by the University Grants Commission mentioned in Schedule II to this part shall be recognized as the qualification. The claim of the petitioner for promotion to the post of Assistant Reception Officer was considered only after passing G.O.Ms.No.116, P&AR(M) Department dated 18.08.2010 and though the representation was made on 03.02.2014, the writ petition in W.P.No.17379 of 2015 filed by him for consideration and disposal of the representation came to be disposed on 18.06.2015 and in the interregnum, amendment to Rule 19 of the Tamil Nadu State and Subordinate Service (General Rules) came into being with retrospective effect from 18.08.2009, vide G.O.Ms.No.65, P & AR(M) Department dated 02.07.2014.
13. In the light of the said submission, which is having a statutory backing, the claim of the respondent/writ petitioner, who admittedly got M.A. degree without undergoing Under Graduate degree cannot be considered.
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14. G.O.Ms.No.107, P&AR(M) Department dated 18.08.2009 would not come to the aid of the respondent/writ petitioner for the reason that in the light of two subsequent Government Orders of the very same department viz., G.O.Ms.No.116 dated 18.08.2010 and G.O.Ms.No.65 dated 02.07.2014 respectively, the respondent/writ petitioner, in terms of the statutory rules, lacks necessary educational qualification and since the said Rule position have not been taken note of by the learned Single Judge as well as by the Division Bench, this Court is of the considered opinion that it is an error apparent on the face of the record and as such, those orders have to be reviewed.
15. In the result, this Review Application is allowed and the judgment dated 28.02.2017 made in W.A.No.861 of 2016, in confirming the order dated 03.06.2016 made in W.P.No.37467 of 2015 is set aside and consequently, the W.P.No.37467 of 2015 is dismissed. However, in the circumstances of the case, there shall be no order as to costs. If the respondent/writ petitioner is so advised and if it is available to him under law, he is at liberty to submit a representation for relaxation of the 19 http://www.judis.nic.in Rev.Appl.No.169 of 2019 educational qualification and upon receipt of the same, the department concerned shall consider and dispose of the said representation on merits and in accordance with law as expeditiously as possible.
[M.S.N, J.] [R.M.D., J.]
06.11.2019
Index : Yes/No
Internet : Yes/No
Jvm
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Rev.Appl.No.169 of 2019
M.SATHYANARAYANAN, J.
and
R.MAHADEVAN, J.
Jvm
Order in
Rev.Appln.No.169 of 2019
06.11.2019
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