Madras High Court
P.Suresh vs The Principal Secretary To Government on 29 June, 2022
Author: R. Suresh Kumar
Bench: R. Suresh Kumar
WP.No.210 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 29.06.2022
CORAM
THE HONOURABLE MR. JUSTICE R. SURESH KUMAR
WP.No.210 of 2018
P.Suresh .. Petitioner
Versus
1.The Principal Secretary to Government,
Co-operative Food and Consumer
Protection Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 600 009.
2.The Deputy Commissioner-I,
Civil Supplies and Consumer
Protection Department,
Ezhilagam, Chepauk,
Chennai – 600 005. .. Respondents
Prayer:- Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of Certiorarified Mandamus to call for the records of
the 1st respondent in Lr.No.20974/E2/2015 dated 30.03.2017 [Appeal
against order dated 05.10.2015] and the 2nd respondent made in Order vide
Na.Ka.A1/23078/2013 dated 05.10.2015 and quash the same as illegal and
consequently direct the 1st respondent to re-instate the petitioner as a Full
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WP.No.210 of 2018
Member of the State Service by treating his probationary period as
successfully completed with effect from the date of passing of the [DOM]
Accounts Examination i.e. from 07.03.2016 along with all benefits due to
the petitioner herein as a consequence thereof.
For Petitioner : Mr.B.Jagannath
For Respondents : Mr.R.Neethiperumal
Government Advocate
ORDER
The prayer sought for herein is for a writ of certiorarified mandamus, to quash the order of the 1st respondent in Lr.No.20974/E2/2015 dated 30.03.2017 [Appeal against order dated 05.10.2015] and the 2nd respondent made in Order vide Na.Ka.A1/23078/2013 dated 05.10.2015 and consequently direct the 1st respondent to re-instate the petitioner as a Full Member of the State Service by treating his probationary period as successfully completed with effect from the date of passing of the [DOM] Accounts Examination i.e. from 07.03.2016 along with all benefits due to the petitioner herein as a consequence thereof.
2.The petitioner was selected to the post of Assistant by the Tamil Nadu Public Service Commission by memo dated 04.06.2010 and he was 2/12 https://www.mhc.tn.gov.in/judis WP.No.210 of 2018 allotted to Civil Supplies and Consumer Protection Department and the petitioner joined services in the said Department in the year 2010.
3.From joining of the post, the petitioner will have two years probation period which the petitioner should satisfactorily complete, then only he will be considered for getting the probation declared successfully and thereafter, he will be inducted in the permanent service.
4.Since the petitioner within the two years period could not complete the probation successfully as he was not able to pass the Accountancy test which is a mandatory one for every Assistant who was appointed like that, he sought for extension of the probation for further period. Therefore invoking Rule 28 of the Tamil Nadu State and Subordinate Services Rules, the employer respondent has extended the probation for a further period of three years which ended on 16.09.2015.
5.However, the fact remains that within the period of five years, i.e. original two years probation with extended period of three years till 16.09.2015, the petitioner was not able to pass the Accountancy test which 3/12 https://www.mhc.tn.gov.in/judis WP.No.210 of 2018 is a mandatory one. Therefore, the second respondent rejected the request of the petitioner for giving further extension of probation for one year period with effect from 17.09.2015 by order dated 05.10.2015. As against the said order passed by the second respondent, the petitioner preferred an appeal before the first respondent which was also considered and rejected by the first respondent by order dated 30.03.2017. Challenging these orders, the present writ petition has been filed.
6.Heard Mr.B.Jagannath, learned counsel appearing for the petitioner who would submit that during the extended period of probation, the petitioner suffered with some ailments and therefore he had to undertake severe treatment and he had been in bedridden for longer time and after recovery, though the petitioner twice made attempts to complete the Accountancy test which the petitioner so far has not passed and in both the attempts the petitioner failed. Therefore, in order to get one more chance of writing the examination, the petitioner sought for extension of probation beyond the extended period of three years from 17.09.2015 by the request of the petitioner dated 29.09.2015. However, the said request having been turned out, the second respondent passed an order dated 05.10.2015 4/12 https://www.mhc.tn.gov.in/judis WP.No.210 of 2018 discharging the petitioner from the post of Assistant as the petitioner was not able to complete the probation successfully.
7.Though the three years extension was already given to the petitioner and within the said time, though attempts were made by the petitioner to complete the Accountancy test, the petitioner could not complete the same because of his health condition, therefore, he wanted further extension of one year. Even though the maximum period of extension was only three years, the one year extension which was required by the petitioner as a special case could have been considered by the respondents which they have not considered and rejected mechanically the request of the petitioner by citing the rule in this regard. Therefore, the impugned order in this context is liable to be interfered with and one year extension of probation may be considered and extended to the petitioner and if such a one year extension is given, the petitioner would be able to complete the Accountancy test.
8.However, Mr.R.Neethiperumal, learned Government Advocate appearing for the respondents relied upon Rule 28 of the Tamil Nadu State and Subordinate Service Rules and would contend that under the said Rule, 5/12 https://www.mhc.tn.gov.in/judis WP.No.210 of 2018 the maximum period of extension of probation was only for three years and that was given in the case of the petitioner. Despite such a maximum extension the petitioner was not able to complete the Accountancy test which is a mandatory one, therefore he would not be eligible to continue in the post of Assistant. Since the petitioner's period of probation was completed without successfully completing the probation by acquiring the qualification or completing the mandatory test, probation cannot be declared to the petitioner and therefore, he is not entitled to continue in the service. Accordingly, the said order was passed by the second and first respondents which are impugned herein. Hence, the learned Government Advocate submits that those orders since have been passed strictly in accordance with the relevant rule which is also reiterated in the subsequent legislation, i.e. Tamil Nadu Government Servants [Conditions of Service] Act, 2016, the impugned orders are to be sustained, he contended.
9.I have considered the rival submissions made by the learned counsels for the parties and have perused the materials placed before this Court.
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10.It is an admitted case that the petitioner within the two years probation period was not able to complete the same successfully as he has not completed the mandatory Accountancy test.
11.In this regard, citing the health reason he sought for extension of the probation which normally would be given for one year but in this case, the petitioner was able to get maximum extension of three years upto 16.09.2015, even within the maximum period of extension, the petitioner could not complete the Accountancy test. In this regard, the relevant rule is Rule 28 of the Tamil Nadu State and Subordinate Services Rules, which reads thus:
"28.Extension of probation:- In the case of any probationer falling under sub-clause (b) of Rule 26 or sub- rule (c) of Rule 27, the appointing authority may extend his probation to enable him to 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.
The period of probation as extended under sub-rule 7/12 https://www.mhc.tn.gov.in/judis WP.No.210 of 2018
(a)(ii) of Rule 26 or sub-rule (c) of Rule 27 or in a case where a probationer is reverted due to want of vacancy during the extended period shall terminate at the latest when the probationer has, after the date of expiry of the period of probation prescribed for the service, class or category in which he is on probation, completed three years on duty in such service, call or category.
The period of probation as extended under sub-rule
(b) of Rule 26 shall terminate at the latest when the probationer, has, after the date of expiry of the period of probation prescribed for the service, call or category in which he is on probation, completed three years of duty in such service, class or category.
In cases where the probation of probationer is extended, a condition shall, unless there are special reason to the contrary, be attached to the order of extension of probation that the probationers' increment shall be stopped until he is declared to have satisfactorily completed his probation. Such stoppage of increment shall not be treated as a penalty but only as a condition of extension of probation and shall not have the effect of postponing future increments after he has passed the prescribed tests, or examination or after he is declared to have satisfactorily completed his probation."
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12.On reading of the section, it has become mandatory that the maximum extension of probation which can be given for any reason is only for three years, beyond which probation cannot be extended and after completion of the three years, i.e. the extended period if the incumbent is not able to complete the probation successfully, termination shall be made and this is the rule which has been invoked in the case of the petitioner.
13.Similar provisions are available in Section 33 of the Tamil Nadu Government Servants [Conditions of Service] Act, 2016. Therefore, the maximum period of extension since was already availed by the petitioner within which the petitioner admittedly not able to complete the probation successfully, there is no scope for giving further extension to the petitioner. Hence, the said plea raised by this petitioner in this regard has been turned out, of course rightly by the second respondent, thereby the services of the petitioner has been discharged which has been confirmed by the first respondent. Therefore, both the orders passed by the second and first respondents which are impugned herein in the considered opinion of this Court are in tune with the relevant rule which have been quoted hereinabove 9/12 https://www.mhc.tn.gov.in/judis WP.No.210 of 2018 and therefore, it cannot be stated that the orders are unsustainable or unlawful. Hence, the writ petition fails and accordingly, is dismissed. However, there shall be no order as to costs.
29.06.2022
Internet : Yes
Index : Yes/No
cse
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WP.No.210 of 2018
To
1.The Principal Secretary to Government,
Co-operative Food and Consumer
Protection Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 600 009.
2.The Deputy Commissioner-I,
Civil Supplies and Consumer
Protection Department,
Ezhilagam, Chepauk,
Chennai – 600 005.
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WP.No.210 of 2018
R.SURESH KUMAR, J.,
cse
WP.No.210 of 2018
29.06.2022
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