Madras High Court
T.Kaliarajan vs The Government Of Tamil Nadu on 9 July, 2014
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.07.2014
CORAM
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
W.P.Nos.25256 and 25257 of 2012
and
M.P.Nos.1+1 of 2012
T.Kaliarajan .. Petitioner in
W.P.No.25256/2012
N.Sivaprakasam .. Petitioner in
W.P.No.25257/2012
-Vs-
1.The Government of Tamil Nadu
Rep. by its Secretary to Government
Rural Development Department
Fort St. George
Chennai - 600 009
2.The Commissioner of Rural Development
and Panchayat Raj
Panagal Building, Saidapet
Chennai - 600 015
3.The District Collector (PD Section)
Nagapattinam District
Nagapattinam .. Respondents in both WPs
Writ petitions filed under article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records pertaining to G.O.(3D) No.43, Rural Development and Panchayat Raj E-3 Department dated 09.12.2011 of the first respondent and quash the same in so far it relates to fixing of seniority of the petitioners by placing them in the bottom most in the seniority list of Assistants as on 09.12.2011 and further direct the respondents to reckon the seniority in the cadre of Assistant from 1.5.2001, the date of posting of the petitioners as Assistants with all consequential benefits such as retrospective promotion, pay benefits etc.
For Petitioners : Mr.V.Suthakar
in both WPs
For Respondents :Mr.S.V.Durai Solaimalai
in both WPs Addl. Government Pleader
COMMON ORDER
These writ petitions have been filed for issuance of a writ of certiorarified mandamus calling for the records of the first respondent in G.O.(3D) No.43, Rural Development and Panchayat Raj E-3 Department dated 09.12.2011, quash the same in so far as it relates to fixing of seniority of the petitioners in placing them in the bottom most in the seniority list of Assistants as on 09.12.2011 and for a direction to the respondents to reckon the seniority in the cadre of Assistants from 1.5.2001, namely the date of posting of the petitioners as Assistants, with all consequential benefits such as retrospective promotion, pay benefits etc.
2. The case of the petitioners is that they joined the service as Radio Supervisors in the Rural Development Department after selection by the Tamil Nadu Public Service Commission on 13.11.1997 and 03.01.1994 respectively, to work for the Tamil Nadu Local Administration Radio and Television Maintenance Organisation, which was functioning in the Divisional Headquarters to maintain television sets and radio sets utilised by the Panchayats. Consequent to the devolution of the Panchayat Raj, the Government of Tamil Nadu issued G.O.Ms.No.229 Rural Development (E4) Department dated 30.08.2000 dissolving the post of Radio Supervisors, as the panchayats wanted to maintain the radio and television sets on their own. Since the Radio Supervisors were rendered jobless, it was decided to utilise the services of the Radio Supervisors in all the District Collectorates. The petitioners were promoted to work as Assistants in the Collectorate (Development). The further case of the petitioners is that they have rendered several years of service, for nearly a decade and they have not been absorbed as Assistants and their names were not found listed in the promotion panel. The further case of the petitioners is that the persons appointed along with them, have been promoted as Assistants on 10.07.2000. The first respondent gave a direction to the Director of Rural Development that Radio and Television Maintenance Organisation may be disbanded in the Panchayats and after the disbandment of the Organisation, the incumbants will be absorbed in the existing vacanceis. As there was no vacancy, supernumerary posts were directed to be created and continued till next vacancy arises. Thereafter, the petitioners made representations and their names were sent to the Government for absorption as Assistants in the Rural Development Department and for consequential promotion by recommendation dated 06.07.2001. The Tamil Nadu Public Service Commission has also given its opinion for absorption. The Government has also taken a policy decision to absorb the petitioners.
3. The petitioners herein and others have approached this court earlier by filing Writ Petitions in W.P.Nos.1054 to 1057 of 2009; that in those writ petitions they have sought for absorption of the petitioners herein and two others as Assistants in the third respondent Collector office, with effect from 30.08.2000, with all consequential benefits from the date of dissolving Tamil Nadu Local Administration Radio and Television Maintenance Organisation. This court passed an order on 17.03.2011 and the relevant paragraph is extracted below:
"5. In the light of the said communication and having regard to the assurances given to the petitioners by the respondents while disbanding the Radio and Television Maintenance Organisation, the first respondent is directed to consider all the aspects in the light of G.O.Ms.No.229 Rural Development (E4) Department dated 30.08.2000 taking note of the services rendered by the petitioners all these years and pass necessary orders before the end of July, 2011. The petitioners are also granted liberty to make further representation along with a copy of this order to the first respondent."
4. After the orders of this court, by G.O.(3D) No.43, Rural Development and Panchayat Raj dated 09.12.2011, the Government has decided to absorb the petitioners with effect from the date of issuance of the Government Order and not retrospectively. Aggrieved by the Government Order, contending that their services have been utilised as Assistants for several years and for want of vacancy in the post of Assistants, supernumerary posts have been created and they have been discharging work of assistants throughout and by issuing the impugned Government Order, the benefits accrued to them has been completely deprived and the decision of the Tamil Nadu Public Service Commission that having cleared the names of the petitioners to the Government for absorption as Assistants in the Rural Development Department and for consequential promotion by recommendation dated 06.11.2001 has become a mockery, the petitioners have come up with thee writ petitions. When the petitioners have rendered several years of service which has been admitted by the respondents, depriving them the benefit of the post of Assistants retrospectively is not only illegal but also taking away the accrued rights vested with them is the contention of the petitioners.
5. The respondents have filed a detailed counter and the respondents drew the attention of this court to paragraph Nos.10 to 13 of the counter. The case of the Government is that the petitioners were working in the clerical line, as there was no work in the technical line. They admitted that the petitioners are technically qualified. The Government Pleader submitted that the petitioners have been absorbed, as otherwise they would have been terminated from service. The petitioners have rendered less than three years of service as Temporary Radio Supervisor prior to dissolution of the Radio Maintenance Organisation in the year 2000 and the petitioners cannot claim the post of Assistants merely because the pay is identical. Since the names of the petitioners are not included in the approved list of Assistants for the year 2001 and that the appointments were made according to seniority, the contention of the petitioners has no merit. The Government has also denied that the petitioners were not appointed on the dates mentioned in the affidavits and that appointments have been made only as per seniority from the approved list of seniority of assistants and the name of the petitioners were not at all been included in the approved list for the years between 2001 and 2010. Even assuming that the services have been regularised with effect from 2001, the persons, who have been included in the approved list and got appointment, could be adversely affected. That apart, if the relief sought for is granted, the petitioners would claim consequential promotion, which the petitioners are not entitled, since the petitioners have no service qualification for being promoted to the next level cadre, namely Deputy Block Development Officer, Block Development Officer etc. The Government Pleader drew the attention of this court about the qualification required for promotion as assistant. Since the petitioners are not qualified and that they were holding a temporary post and rendered less than three years of service, they are not entitled to get any relief as prayed for in the writ petition.
6. In reply to the above said contention, Mr.V.Suthakar, learned counsel for the petitioners, submitted that the policy decision has been taken to regularise the services as could be seen from the letter dated 14.08.2000 and the letter dated 30.08.2000. Because of the administrative act of abolition of the post, supernumerary posts have been created and they have been kept in the supernumerary posts and the post of assistants, which they were holding and discharging, were by means of a special order and that the benefits that have been given to the petitioners, cannot be taken away by means of the Government Order, as the rights have already accrued to them. By means of a policy decision to absorb them as assistants, a promise has been given to the petitioners and the Government is estopped from going behind the assurance by means of a policy decision taken by issuing the Government Order and depriving the rights accrued. That apart, no opportunity has been given to them while taking away the rights that have already accrued.
7. Learned counsel for the petitioners has also relied upon a decision of this court in V.Perumal v. Commissioner and Secretary to the Government, Health and Family Welfare Department, Fort St. George, Chennai and others reported in (2006) 2 MLJ 339 and the relevant part of the Order is extracted below:
"4. The grievance of the petitioner is that there is no justification to restrict the relaxation applicable prospectively and not from the date of petitioner's passing the Nursing Assistant test from 30.8.1975. The Government have relaxed the qualification in favour of the petitioner and having regard to the appointment of the petitioner as Hospital Servant on regular basis with effect from 19.3.1965 and having appointed the petitioner as Nursing Assistant Grade II temporarily and the petitioner having completed training on 30.8.1975, there is no justification on the part of the Government to restrict the relaxation only from the date of the order. The relaxation is granted by the Government for the purpose of regularisation of petitioner's service. If the impugned Government Order is applied strictly, the petitioner's valuable service of 20 years will get obliterated and the petitioner will not be in a position to get annual increments and other benefits. Hence, the action of the first respondent in restricting the relaxation only from 27.6.1995 is unreasonable and arbitrary in exercise of power."
Relying on the above said decision, the learned counsel for the petitioners contended that the action of the respondents in not granting the post of assistants retrospectively under the Government Order impugned in this writ petition and depriving those benefits are unreasonable and arbitrary exercise of power.
8. Heard both parties.
9. From the various facts narrated supra, it is a clear case of extracting work in the post of assistants and continued them as assistants after the abolition of Radio Supervisors. Admittedly, the petitioners have not worked as junior assistants to be promoted as assistants. The contention of the Government that service qualification is required for promotion to the post of assistant cannot be doubted at all. Since it is not a case of promotion to the post of Assistant from Junior Assistant and that the petitioners have been directly appointed to the post of Assistants and that the policy decision has been taken and a promise has been given to the petitioners, I find much force in the contention of the learned counsel for petitioners and thus the petitioners are entitled to the relief sought for in the writ petition and they are entitled for absorption from the date of their initial appointment to the post of Assistant.
10. Even though a larger prayer has been sought for, this court, having found that the petitioners are entitled for absorption in the post of assistants with effect from the date they joined the service, with regard to promotion and other benefits which flows from the absorption, will be decided based on the service rules or guidelines applicable from time to time and the petitioners, cannot, as a matter of right, demand promotion. If the petitioners are otherwise eligible and fulfill norms laid down by the Government, the petitioners should be considered to the next level by applying the rules and regulations, including the rules of reservation, the names of the petitioners can be interpolated in the appropriate list and the same can be notionally considered. Since the petitioners are languishing in the post for more than a decade, this court expects the Government to complete the exercise within a period of eight weeks from the date of receipt of a copy of this order. Any other benefits that have been accrued to the petitioners by means of absorption in the post of assistants, may be released forthwith and with regard to the other exercise, namely promotion etc., need not be clubbed for the purpose of withholding any other benefits due to the petitioners in the post of assistants.
With the above direction, the writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.
09.07.2014 Index : Yes Internet : Yes asr/ To
1.The Secretary to Government Rural Development Department Fort St. George Chennai - 600 009
2.The Commissioner of Rural Development and Panchayat Raj Panagal Building, Saidapet Chennai - 600 015
3.The District Collector (PD Section) Nagapattinam District Nagapattinam S.VAIDYANATHAN, J.
asr/ W.P.Nos.25256 and 25257 of 2012 09.07.2014