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Madras High CourtWP/5447/2017allowed

K.Socrates, v. State Of Tamil Nadu

2017-06-16Honourable Mr Justice T.Raja6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 16.06.2017

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA Writ Petition Nos.5447 & 5448 of 2017 & WMP. Nos.5776 & 5777 of 2017 K.Socrates ... Petitioner in W.P.No.5447 of 2017 B.Shankar ... Petitioner in W.P.No.5448 of 2017 vs

1. The State of Tamil Nadu rep. by its Secretary, Rural Development and Panchayat Raj Department, Fort St. George, Chennai-600 009.

2. The District Collector, Dharmapuri District.

... Respondents in both WPs.

Writ Petitions filed under Article 226 of Constitution of India, praying for (i) issuance of Mandamus, to direct the second respondent herein to consider the objections given by the petitioner vide letter dated 30.08.2016 and letter dated 27.02.2017 to the proceedings of the second respondent in Na.Ka.No.9809/2015/K2 dated 24.08.2016 in the light of the orders passed by this Court in W.P.No.16697 of 2007 reported in 2012 (1) MLJ 634 and as confirmed by the Hon'ble Division Bench in W.A.No.391 of 2012 dated 28.10.2014 and order dated 30.10.2015 in W.P.No.34855 of 2015 and consequently direct the second respondent to include the name of the petitioner in the seniority list for promotion to the post of Deputy Block Development Officer without insisting upon the experience for the post of Rural Welfare Officer, Grade-I as on 01.03.2016 and grant promotion to the petitioner(W.P.No.5447 of 2017).

(ii) issuance of Mandamus, to direct the second respondent herein to consider the objections given by the petitioner vide letter dated 29.08.2016 and letter dated 20.02.2017 to the proceedings of the second respondent in Na.Ka.No.9809/2015/K2 dated 24.08.2016 in the light of the orders passed by this Court

in W.P.No.16697 of 2007 reported in 2012 (1) MLJ 634 and as confirmed by the Hon'ble Division Bench in W.A.No.391 of 2012 dated 28.10.2014 and order dated 30.10.2015 in W.P.No.34855 of 2015 and consequently direct the second respondent to include the name of the petitioner in the seniority list for promotion to the post of Deputy Block Development Officer without insisting upon the experience for the post of Rural Welfare Officer, Grade-I as on 01.03.2016 and grant promotion to the petitioner(W.P.No.5448 of 2017).

For Petitioner(in both W.Ps) : Mrs.Dakshayani Reddy For Respondents (in both W.Ps) : Mr.V.Jayaprakash Narayanan, Special G.P.

COMMON ORDER Writ petitions have been filed seeking similar prayer for the issuance of mandamus directing the District Collector, Dharmapuri District, the second respondent herein to consider the objections of the petitioners in letters dated 30.08.2016 & 27.02.2017 given by Mr.K.Socrates and in letters dated 29.08.2016 & 20.02.2017 given by Mr.B.Shankar to the proceedings of the second respondent in Na.Ka.No.9809/2015/K2 dated 24.08.2016 and consequently direct the second respondent to include the names of the petitioners in the seniority list for promotion to the post of Deputy Block Development Officer without insisting upon the experience for the post of Rural Welfare Officer, Grade I as on 01.03.2016 and grant promotion to the petitioners.

2.The learned counsel for the petitioners in both the writ petitions would submit that when both the petitioners were appointed in the post of Junior Assistant on compassionate ground on 16.02.2007, Mr. B.Sankar was able to pass the Departmental Test on 31.05.2007, whereas, Mr.K. Socrates was able to pass all Departmental Test only on 23.12.2007. Thereafter, by virtue of G.O.(3D).No.30, Rural Development & Panchayat Raj (E3) Department dated 18.02.2013, the services of Mr.K. Socrates were regularised with effect from 16.02.2007 (from the date of initial appointment). Similarly, in the case of Mr.B.Sankar, his services were regularised by virtue of G.O.Ms.No.80, Rural Development & Panchayat Raj (E3) Department dated 31.12.2012 with effect from 16.02.2007 (from the date of initial appointment). The petitioners were sent to Bhavanisagar Training on 24.06.2013 and 19.04.2013 respectively. On completion of the training, the respondents came forward to declare their probations with effect from 15.02.2009 vide G.O.No.111, dated 28.02.2014. Consequently, both of them were

given promotion to the post of Assistant on 22.07.2014 & 19.07.2014 respectively. Subsequently, both of them were posted as Rural Welfare Officers, Grade I on 07.12.2015. Since the crucial date for preparation of panel for further promotion to the post of Deputy Block Development Officer is 01.03.2016, a revised seniority of the petitioners in the post of Assistant was made on 02.06.2016 and both of them were given notional promotion in the post of Assistant with effect from 01.03.2011. At this stage the grievance of the petitioners is that since the petitioners were given promotion to the post of Assistant, the notional promotion should be on the said date, namely in the case of Mr.K.Socrates, it should be with effect from 22.07.2014, whereas in the case of Mr.B.Shankar, it should be with effect from 19.07.2014.

Without doing so, a panel list was prepared by the District Collector, the second respondent herein, on 24.08.2016. Aggrieved by the same, the petitioners made an appeal before the second respondent on 30.08.2016 and 29.08.2016 respectively. Again finding no response, repeated representations were made on 04.01.2017, 20.02.2017 and further representation on 27.02.2017. Even then no action was taken. Hence, the petitioners have come forward before this Court. 3.The learned counsel for the petitioners would submit that the petitioners have passed the departmental tests on 23.12.2007 and 31.05.2007 respectively and the respondents having regularised the services of the petitioners, ought to have sent them for Bhavanisagar Training immediately to acquire the requisite qualification for further promotional post.

In both the instant cases, the respondents have sent the petitioners to acquire the Bhavanisagar Training on 24.06.2013 & 19.04.2013. After completion of training, although the respondents have declared their probation with effect from 15.02.2009, they have given promotion to the post of Assistant on 19.07.2014 & 22.07.2014 respectively. After realising the administrative mistake committed by them, the petitioners were posted as the Rural Welfare Officers, Grade-I, taking note of crucial date for preparation of panel for further promotion to the post of Deputy Block Development Officer on 01.03.2016. A revised seniority of the petitioners in the post of Assistant was made on 02.06.2016 and both of them were given notional promotion in the post of Assistant with effect from 01.03.2011.

Since the respondents after revising seniority of the petitioners in the post of Assistant with effect from 01.03.2011, failed to give the benefit with effect from 22.07.2014 & 19.07.2014 respectively, appeals were made to the second respondent. The same were also not considered. 4.In similar circumstances, this Court in W.P.Nos.47872 and 47885 of 2006 & 7791 of 2007 dated 04.09.

Training timely so as to acquire their further qualification to the promotional post. In view of the same, the petitioners cannot be denied the benefit of inclusion in the panel, on the ground that they did not possess the service qualification and the service qualification cannot be equated to the qualification of a pass in the departmental test. Inasmuch as pass in the departmental test may be in the hands of the individual, the posting of the individual to a particular post, is not within the hands of the individual. The relevant portion of the said order can be briefly extracted as under:

''Under these circumstances, the petitioners cannot be denied the benefit of inclusion in the panel, on the ground that they did not possess the service qualification. After all, the service qualification cannot be equated to the qualification of a pass in the departmental test. While the pass in the departmental test may be in the hands of the individual, the posting of the individual to a particular post, is not within the hands of the individual. Therefore, the respondents ought to have formulated and implemented a policy providing equal opportunity to all persons to acquire the service qualifications.

Since the respondents have failed to do so, the petitioners were not at fault and on that ground, they should not have been omitted to be included in the panel.''

The same proposition is also found in an appeal preferred by the District Collector, Thoothukudi District, Thoothukudi, in W.A.No.391 of 2012 dated 28.10.2014 (The District Collector, Thoothukudi District and another Vs. S.Sasisivanandam). The relevant portion is extracted here under:

''The issue as to whether the person can be denied promotion for not possessing the service qualification, without his default, if he is otherwise qualified, was considered by the Supreme Court in the decision reported in 1996(8) SCC 671(Vijaywada Guntur Tenali Urban Development Authority and Others Vs. Movva Ranga Rao and Others) and a Division Bench of this Court in W.A.Nos.509 to 511 of 2008. In the above said judgments, it is held that the Government servant cannot be denied promotion for want of service qualification, if he was not given a chance to qualification by the department head. As the department is bound to place the Government servant in a particular post, to acquire the service qualification, the officer/employee

cannot be blamed for not possessing such service qualification.''

5.Therefore, the issue raised by the petitioners has already been decided and the above observation is squarely applicable to the case of the petitioners. Both petitioners K.Socrates and B.Shankar appointed on 16-2-2007, passed the Departmental Tests on 23.12.2007 and 31.05.2007 respectively. While G.O.(3D). No.30, Rural Development & Panchayat Raj (E3) Department dated 18.02.2013 and G.O.Ms.No.80, Rural Development & Panchayat Raj (E3) Department dated 31.12.2012 respectively, were issued regularising their services, they were sent to Bhavanisagar Training belatedly on 24.06.2013 and 17.04.2013 respectively. Due to administrative delay in regularising the services of the petitioners, their juniors were promoted to the post of Assistant. As the delay was not on the part of the petitioners but on the department in regularising their services, the respondents shall revise the seniority of the petitioners on par with their juniors.

6.Accordingly, both the writ petitions stand allowed and the second respondent is hereby directed to include the name of the petitioners in the seniority list to the post of Deputy Block Development Officer without insisting upon the experience for the post of Rural Welfare Officer, Grade-I as on 01.03.2016, as expeditiously as possible, preferably within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.

Sd/- Asst.Registrar (CS VIII ) /true copy/ Sub Asst. Registrar dn To

1. The Secretary, Rural Development and Panchayat Raj Department, Fort St. George, Chennai-600 009.

2. The District Collector, Dharmapuri District.

+1cc to the Government Pleader, Sr. 42820 +1cc to Mrs.Dakshayani Reddy, Advocate Sr. 42789 W.P Nos.5447 & 5448 of 2017 LRS(CO) VR(14/07/2017)