Madras High Court
The Director Of Family Welfare vs S.Poornachandran on 18 January, 2019
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.01.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.148 of 2019
and
C.M.P.No.1419 of 2019
1.The Director of Family Welfare,
DMS Annexe,
Chennai - 600 006.
2.The Deputy Director,
Medical and Rural Health Services,
and Family Welfare,
Pudukottai - 622 001 ... Appellants
vs.
S.Poornachandran
Statistical Assistant,
Tamil Nadu Health Systems Project
359, Anna Salai, Teynampet,
Chennai - 600 006. ... Respondent
Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent,
against the order made in W.P.No.29074 of 2012, dated 22.08.2017.
For Appellants : Mr.R.Udayakumar
Additional Government Pleader
http://www.judis.nic.in
2
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J) Instant writ appeal has been filed against the order, made in W.P.No.29074 of 2012, dated 22.08.2017.
2. Short facts leading to the appeal are that the respondent was appointed as Block Health Statistician and gradually, promoted as Statistical Assistant, on condition that he should pass the departmental test, within a period of two years and in case, he failed to pass the said test within the period prescribed, he would be reverted to the feeder category. In this connection, Government have issued G.O.(Ms)No.1120, Personnel and Administrative Reforms Department dated 30.10.1984, wherein, it has been clarified that the employees who could not pass the departmental test for promotion, should not be below 53 years of age and should have at least attended the test for 5 times and such attempts should have been registered in the service register of the employee.
3. Though the respondent had made 5 attempts to pass the departmental test between 2009 to 2011, he could not pass the test. Considering his age, he made a representation, dated 07.05.2012 to http://www.judis.nic.in 3 the The Director of Family Welfare, Chennai, first appellant herein, requesting exemption from passing the departmental test. However, the Deputy Director, Medical and Rural Health Services and Family Welfare, Pudukottai, second appellant herein, on the instructions of the Director of Family Welfare, Chennai, the first appellant herein, through proceedings, dated 26.07.2012, passed an order, dated 20.09.2012, directing recovery of increments granted between 01.10.2009 to 31.08.2010, on the ground that he had not passed the required accounts test.
4. A sum of Rs.70,423/- was sought to be recovered in 21 monthly installments, being the payments, made to the respondent, when he was working as a Statistical Assistant. The said recovery order was challenged in W.P.No.27157 of 2012. This Court, while admitting W.P.No.27157 of 2012, has granted an order of interim stay of recovery. In the meanwhile, the first appellant has issued another order, dated 11.10.2012, reverting the respondent to the post of Block Health Statistician and transferred him to Pudukkottai District, on the ground that the respondent had not completed 53 years of age. This reversion order was challenged in W.P.No.29074 of 2012. http://www.judis.nic.in 5. Both the writ petitions were taken up together and after 4 considering the facts and circumstances of the cases, vide common order, dated 22.08.2017 in W.P.Nos.27157 and 29074 of 2012, the Writ Court, ordered as hereunder:-
"9. Considering the submissions made by the learned Counsels for the parties, this Court finds that the arguments putforth by the learned counsel for the petitioner that the recovery in the circumstances of the case cannot be countenanced both on law and on facts and therefore, this Court has no hesitation in allowing the writ petition in W.P.No.27157 of 2012.
10. In such circumstances, the recovery order passed by the authorities dated 20.09.2012 is quashed and if any recovery has been made pursuant to the impugned order dated 20.09.2012, the same is to be refunded to the writ petitioner forthwith. As regards the writ petition in W.P.No.29074 of 2012 is concerned, since the petitioner has completed 53 years of age, he had submitted applications on 29.03.2016 & 12.07.2017, the first respondent is directed to dispose of the said representations of the petitioner on merits and in accordance with law, after taking note of the completion of 53 years of age by the petitioner on the date when he submitted applications with reference to G.O.(Ms)No.1120, Personnel and Administrative http://www.judis.nic.in Reforms Department dated 30.10.1984 and grant 5 the benefit of exemption based on the said Government Order, within a period of two months from the date of receipt of a copy of this order.
11. With the above direction, the writ petitions stand disposed of. No costs. Consequently, connected miscellaneous petitions are closed."
6. Being aggrieved, the department has filed the instant writ appeal, only against the order made in W.P.No.29074 of 2012, dated 22.08.2017, on the following grounds:-
"1. Writ Court has failed to consider that Thiru.S. Poornachandran, Block Health Statistician was joined in the District Family Welfare Bureau, Pudukottai on 17.10.2007 FN on promotion as Statistical Assistant with a condition that the promoted Statistical Assistants should pass the account test for Executive Officers and Tamil Nadu Medical Code if not already passed within the period of two years from the date of joining failing which their 2nd and subsequent increment shall be stopped without cumulative effect till they pass the said test, if they do not pass the above test within 3 years from the date of joining as Statistical Assistant and Statistical Investigator they shall be reverted back to the feeder category. (This condition was laid down in promotion order of the petitioner based on http://www.judis.nic.in 6 Tamil Nadu State and Subordinate Rules, General Rule 28). As per the Government Order 1120/Personnel and Administrative Reforms (Service-M) Department dated: 30.10.1994 the Government servant who have completed 53 years of age and 5 attempts of Department exam with proper service entry and submission of Hall Tickets is exempted from passing the department test. But the petitioner had not passed the Executive Officers test even after completion of 5 years in the promotional post of viz. Statistical Assistant and not completed 53 years of age.
2. In this case the Thiru.S.Poornachandran’s age as on 16.10.2012 i.e on the date of filing the case is only 52 years 7 months and 3 days. Hence he is not eligible for getting exemption orders from the Government from passing the Departmental Test as per above Government Order. Hence he was reverted back to the feeder category (i.e) Block Health Statistician and posted to Government Primary Health Centre, Ponpethy in Pudukottai District and also recovery orders has been issued to the petitioner the amount of Rs.70,423/- already paid for (01.10.2009) 2nd and subsequent increments as per Adhoc Rules (G.O. (Ms). No. 240/ Health and Family Welfare Department dated: 30.04.1996)
3. Writ Court has failed to note that the http://www.judis.nic.in condition of passing the account test for Executive 7 Officers within 3 years from the date of joining in the post of Statistical Assistant had been incorporated in the promotion order’s informed to him, vide ref No.7709/FW/A2/2006, dated 09.10.2007 as per the Rule 28 of Tamil Nadu State and Subordinate Services Rules.
4. Writ Court has failed to note that the Thiru.S.Poornachandran himself agreed that the condition and applied for the account Test for Executive Officers is May 2007, Dec 2007, May 2010, May 2011 and December 2011 i.e five times, unfortunately he was not successful, even in a single Test. Hence as per the G.O.(Ms) No.1120 Personnel and Administrative Reforms (Services M) Department, dated 30.10.1984 the petitioner Thiru.S.Poornachandran was not eligible for getting exemption from passing the Executive Officers Test, since he had not completed 53 years of age as on 16.10.2012. Hence, he was reverted back to the feeder category as per the conditions stipulated in promotion orders."
7. Heard the learned Additional Government Pleader for the appellants and perused the materials available on record.
8. Government have issued G.O.Ms.No.1120, Personnel and Administration Reforms Department, dated 30.10.1984, is extracted http://www.judis.nic.in 8 hereunder:-
ESTABLISHMENT G.O.S"
GOVERNMENT OF TAMIL NADU ABSTRACT Selections-Special and Department selection-Relaxation of Rules For Exemption From Having passed in examinations regarding-instructions published.
Personnel & Administration Reforms Department Government MS.No.1120 Date:30.10.1984 Read:
G.O.Ms.No.1398 Public (work)dated 29.05.1972 Order:
As per the Government order which is cited in reference, the following conditions was fixed to relax the Rule to the Government Servant for exempt ion from having passed in special and Departmental examination
1)The Government Officer should not be less than fifty years old.
2)He Should have tired five times in order to pass exams.
3)He Should be satisfied through his works to get this concession.
2. Government carefully analyzed that whether this conditions should be stricter or relaxed. If will give the exemption to the elder people, they will not make at tempt to become an eligible persons. Hence there is some defect will be made in work. Hence in the Work Register it should be placed that one Government Employee should have tried five times in order to pass http://www.judis.nic.in 9 exams or it was decided that he should give the entrance tickets with regard to the same. Further the age 50 was fixed to get this concession age is increased as 53 since now the retirement age is 58. Hence the Government published the following order as per the above decisions by changing the order which is read above.
1)The relevant Government Officer should not be less than fifty three years old.
2) He should have tired five times in order to pass exams and same evident in the service records or the relevant officer should be sent the entrance tickets with regard to the same.
3)He should be satisfied through his works to get this concession.
3. The Secretariat Department and Head of Department are advised to bear these Conditions in mind when make in recommendations with regard to application for exemption of Rules from Special and Department Examinations.
(As per the order of Governor) K.CHOKKALINGAM Secretary to Government."
9. Respondent has discharged the duties and responsibilities in the promoted post. A person who has discharged duties and responsibilities in the higher post, should be paid the salary, due to http://www.judis.nic.in 10 the post. We are of the view that he is entitled to the salary and emoluments. Therefore, we deem it fit to sustain the recovery orders. On the facts and circumstances of this case, on the date o filing of the writ petition, respondent was aged above 52 years. He had benefit of stay during the pendency of the writ petition. Today on the date of disposal of the writ petition, he has already crossed the age of superannuation. As the respondent had the benefit of stay of recovery and taking note of the fact that after attaining superannuation, respondent cannot be reverted to a lower post.
10. For the reasons stated, we are not inclined to interfere with the order of the Writ Court. Writ appeal is dismissed. No Costs. Consequently, the connected civil miscellaneous petition is closed.
(S.M.K., J.) (S.P., J.)
18.01.2019
Index : Yes / No
Internet : Yes / No
dm
http://www.judis.nic.in
11
S.MANIKUMAR,J.
and
SUBRAMONIUM PRASAD, J.
dm
W.A.No.148 of 2019
and
C.M.P.No.1419 of 2019
18.01.2019
http://www.judis.nic.in