Madras High Court
P.Thanikachalam vs State Of Tamil Nadu on 16 July, 2014
Author: M.M.Sundresh
Bench: M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.07.2014
CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
W.P.No.8719 of 2008
and M.P.No.2 of 2008
P.Thanikachalam ... Petitioner
Vs.
1. State of Tamil Nadu,
rep.by its Secretary
to Government,
School Education Department,
Secretariat, Chennai 9
2. Joint Director of School Education,
(Personnel), Chennai 6
3. Chief Educational Officer,
Cuddalore,
Cuddalore District
4. District Educational Officer,
Cuddalore,
Cuddalore District
5. Headmaster,
Governemnt Higher Secondary School,
C.Mutlur,
Chidambaram Taluk
Cuddalore District. .. Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari to call for the records pertaining to the order passed by the 1st respondent in Letter No.17978/R2/2007-2, School Education Department, dated 25.07.2007 and the consequential order passed by the 2nd respondent in his proceedings O.Mu.No.28035/A4/E1/07 dated 3.8.2007 and the order passed by the 4th respondent in his proceedings No.O.Mu.No.3167/A1/05 dated 28.9.2007 and the Order passed by the 5th respondent in his proceedings Na.Ka.No.215/07 dated 29.10.2007 and quash the same.
For Petitioner : Mr.P.Ganesan
For Respondents : Mr.R.Lakshmi Narayanan,AGP
ORDER
The petitioner was working as an Assistant at the time of passing the impugned order and he has reached the age of superannuation now. By the impugned order, annual increment given to the petitioner was cancelled and the amount paid already was sought to be recovered unilaterally.
2. Learned counsel appearing for petitioner submits that said action has been taken by the respondents after a period of 25 years. He also submitted that the issue raised in this writ petition was covered by an earlier order of this Court dated 18.2.2011 in W.P.No.25710 of 2010.
3. Admittedly, the petitioner has not been heard before passing the order impugned, which has got civil consequence he has since attained the age of superannuation. The facts of the case also would indicate that the action has been taken against the petitioner after a period of about 25 years since the declaration of probation.
4. Considering the very same issue, this Court in W.P.No.25710 of 2010 by order dated 18.2.2011 was pleased to hold as follows:
3. The petitioner's probation is admittedly declared under Rule 27 of the Tamil Nadu State and Subordinate Service rules. Even if the probation is extended and an employee has not passed the prescribed test during the extended period of probation, sanction of increments alone could be stopped under Rule 28 of the said Rules until he is declared to have satisfactorily completed his probation. After passing the prescribed test, future increments can be sanctioned and no postponement of future increments can be ordered after an employee is declared to have satisfactorily completed his probation.
4. Prescription of departmental tests and the effect of not passing the same was considered by a Division Bench of this Court in this decision reported in (2008) 3 MLJ 415 Dr.N.Iyyanar vs. Secretary to Government, Health and Family Welfare Department, Chennai and others. In paragraphs 7 and 8, the Division Bench has held as follows:
7. Learned counsel for the petitioner first contended that in view of the categorical instructions contained in the notification issued by TNPSC on the failure of Respondents 3 to 6 to obtain the qualification within the period of 4 years, their services were liable to be terminated and at any rate such respondents having obtained such diploma in Public Health after the petitioner, it must be taken that they were juniors to the present petition.
8. So far as the first submission is concerned, we are in agreement with the conclusion of the Tribunal that the condition relating to acquiring of Public Health qualification was only a directory provision and there is no automatic termination from service. If a person fails to acquire such qualification with the stipulated period, the employee had the option of terminating the services, but there is no deemed termination from services.''
5. The learned Special Government Pleader submits that the matter in issue is covered by the above said judgment.
6. In view of the said submission and following the above cited decision of the Division Bench of this Court, the impugned orders are set aside. The declaration of probation of petitioner with effect from 1.7.1982 is restored. Consequently the petitioner is entitled to get back the amount of Rs.1,40,458/- recovered from him.
5. In view of the fore-going, the orders impugned are set aside and the writ petition stands allowed and the amount withheld by respondents No.3 to 5 is directed to be paid to the petitioner within a period of eight weeks from the date of receipt of copy of this order. However, there is no order as to costs. Consequently the connected miscellaneous petition is closed.
16.07.2014 Index:Yes/No Internet:Yes usk To
1. The Secretary to Government, School Education Department, State of Tamil Nadu, Secretariat, Chennai 9
2. Joint Director of School Education, (Personnel), Chennai 6
3. Chief Educational Officer, Cuddalore, Cuddalore District
4. District Educational Officer, Cuddalore, Cuddalore District
5. Headmaster, Governemnt Higher Secondary School, C.Mutlur, Chidambaram Taluk Cuddalore District.
M.M.SUNDRESH,J.
usk W.P.No.8719 of 2008 16.7.2014