S.Venkatesh v. The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 16.07.2020 DELIVERED ON : 18.08.2020

CORAM

THE HONOURABLE MR.JUSTICE V.PARTHIBAN W.P.No.8559 of 2020 and W.M.P Nos.10348 & 10349 of 2020 S.Venkatesh

...Petitioner

Vs.

1. State of Tamil Nadu, Rep by its Principal Secretary to Government, Rural Development and Panchayat Raj Department, Fort St.George, Chennai - 600 009.

2. Director, Commissionerate of Rural Development & Panchayat Raj, Panagal Building, Chennai 600 015.

3. District Collector Kancheepuram District Kancheepuram.

4. District Collector Chengalpattu District Chengalpattu.

...Respondents

Prayer:Writ Petition filed under Section Article 226 of the Constitution of India praying Writ of Certiorarified Mandamus, calling for the entire records relating to the proceeding in Na.Ka.No.04/2020/Pa/Aa.2 dated 06.06.2020 on the file of the 4th respondent herein and quash the same and consequently direct the 4th respondent herein to publish a revised panel by including the name of the petitioner herein in the panel of Assistants fit for promotion as Deputy Block Development Officer for the year 202021 as per his revised seniority fixed on 24-04-2020 by the 3rd respondent herein and without insisting one year service qualification in the post of Assistant.

For Petitioner :Mr.V.R.Rajasekaran For Respondents :Mr.J.Ramesh, Additional Government Pleader

ORDER

The matter is taken up through web hearing.

2.This writ petition is filed with the following prayer: "To call for the entire records relating to the proceeding in Na.Ka.No.04/2020/Pa/Aa.2 dated 06.06.2020 on the file of the 4th respondent herein and quash the same and consequently direct the 4th respondent herein to publish a revised panel by including the name of the petitioner herein in the panel of Assistants fit for promotion as Deputy Block Development Officer for the year 2020-21 as per his revised seniority fixed on 24-04-2020 by the 3rd respondent herein and without insisting one year service qualification in the post of Assistant." 3.The facts and circumstances that have given rise to the filing of the writ petition are stated hereunder; 4.The petitioner was appointed as Junior Assistant in the Panchayat Development Unit at Kancheepuram District on compassionate grounds.

He joined service on 30.06.2010 and according to him he had passed all the departmental tests by 31.05.2013. Although the petitioner had rendered satisfactory service without any complaints in the post of Junior Assistant, his services were not regularized for a considerable length of time.

5.Ultimately, the Government had issued orders on 26.12.2017 regularizing the appointment of the petitioner as Junior Assistant with effect from the date of his joining i.e., 30.06.2010. The petitioner in the meanwhile appeared to have completed his departmental training on 26.04.2017. The grievance of the petitioner herein is that due to delay in regularizing his service and granting promotion, his further promotion to the post of Assistant had been delayed and he was promoted only on 05.03.2019. This was because that his probation was declared only on 05.07.2018 in the post of Junior Assistant, by the Government. According to the petitioner that if only he had been granted regularization in the post of Junior Assistant, when the same was due, he could have got his promotion as Assistant in 2014 along with his juniors and also he could have got his further promotion as Deputy Block Development Officer along with his juniors.

6.In the above circumstances, the petitioner had submitted a representation for revision of his seniority in the post of Assistant in the seniority list of assistants dated 21.02.2020 for assignment of proper rank above his juniors. According to the petitioner, the third respondent further passed orders on 24.04.2020 placing the petitioner at Sl.No.49-A and it also appears that the petitioner is still having a grievance, as

according to him, seniority has not been properly assigned even on the subsequent revision of seniority order issued on 21.02.2020.

7.In any event, the grievance of the petitioner in this writ petition is that there was a delay of 8 years in regularizing his appointment in the post of Junior Assistant and because of administrative delay the petitioner had been deprived of the career progression at the appropriate times along with his juniors.

8.While so, the 4th respondent invited promotions for 18 Assistants including the petitioner for promotion of panel of Assistants fit for promotion as Deputy Block Development Officer for the year 2020-21. Thereafter, a panel was drawn up on 06.06.2020 in which the petitioner found that his name was not included. Since illegally and unjustly the name of the petitioner was not included in the panel of promotion, the petitioner is before this Court challenging the said panel dated 06.06.2020.

9.Mr.V.R.Rajasekaran, learned counsel for the petitioner briefly narrated the facts and circumstances of the case. The learned counsel would submit that it was entirely the fault of the respondents in not regularizing the services of the petitioner in the post of Junior Assistant and the inordinate administrative delay in declaring his probation as Junior Assistant for a period of eight years has resulted in denial of due promotion of the petitioner to the next higher grades at the appropriate times when the petitioner's juniors were considered. 10.The learned counsel would rely on a decision rendered by a learned Single Judge of this Court in W.P.No.13517 of 2009 dated 09.04.2010. According to the learned counsel, in similar circumstances the learned Judge has allowed the writ petition filed by the petitioner therein.

In particular, the learned counsel has drawn the attention of this Court to paragraphs 21, 29, 30 and 31, which are extracted hereunder. "21. It is also an admitted fact that based on the petitioner's successful completion of the departmental examination, he was also temporarily promoted as Assistant. However, surprisingly, when the seniority list was drawn thereafter, the petitioner's name did not figure in the place in which it was originally there, for the simple reason that the petitioner did not obtain the requisite qualification by undergoing the one year stint as a Rural Welfare Officer Grade-II for a period of one year before the crucial date for the preparation of panel on 1.3.

training in the Bhavani Sagar Training Institute before the crucial date. In this, as rightly pointed out by the learned counsel for the petitioner, the letter dated 23.4.1994 from the Director of Rural Development to the Collector of All Districts (except Madras), assumes significance. The said letter reads as follows: "

Sub:

Service qualification - Some instructions to be followed while issuing posting orders - Regarding.

----- It has been brought to the notice of the Director of Rural Development and it was noted that the interchange of personnel from one post to another has not been done effectively, under Single Service Rules, which in turn has resulted in many senior personnel not acquiring the necessary service qualifications.

And the affected personnel moved the Tamil Nadu Administrative Tribunal and T.A.T. had also agreed with, that it is because of the failure on the part of the District Administration to give them necessary postings in the different posts as prescribed. Postings are not to be done as a matter of choice of the individuals. The Departmental authorities should ensure that the due opportunities are given to all the staff to secure service qualification. No seniors should be denied of promotion on account of his failure to acquire service qualifications, unless some default on his part.

Hence appointing authorities are requested to have a clean watch so as to avoid unnecessary workload and Administrative inconvenience in day to day routine work. The receipt of this circular may kindly be acknowledged.

Sd/- .............. For Director of Rural Development / true copy / Superintendent. "

Going by the said letter and applying the decision of this Court in W.P.No.12362 of 2007 dated 24.10.2007 (K.Kumaresan Vs. District Collector, Tiruvannamalai), following the earlier decision of this Court dated 9.10.2006 in W.P.No.18501 of 2006 (C.Periasamy and another Vs. The District Collector, Dharmapuri), I have no hesitation in accepting the plea of the petitioner that the failure on the part of the District Collector in deputing the petitioner for

working as a Rural Welfare Officer Grade II and for one year training in the Bhavani Sagar Training Institute cannot be attributed to the petitioner that he had not qualified himself for inclusion in the promotion list and for seniority. Consequently, the default of the Administration cannot be allowed to prejudice the petitioner to cite the same as the default of the petitioner in not qualifying himself departmentally for the purpose of consideration in the seniority list for further promotion as Assistant.

.............

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29. In the light of the above facts and in fairness to the claim of the petitioner, taking note of the decisions of this Court as referred to above, the petitioner merits to have his seniority fixed. I do not find any justification in the plea of the respondents on the issue of laches. In so doing, I am conscious of the decision of the Apex Court holding that a settled list of seniority and promotion should not be disturbed at a long distance of time vide the decision reported in (1976) 1 SCC 599 (Malcom Lawrence Cecil D'Souza Vs. Union of India) and (2008) 2 SCC 750 (Union of India Vs. Narendra Singh).

30. Going by the fact that the petitioner had passed all the departmental examinations and the delay in satisfying the service requirement was not attributable to the petitioner, without disturbing the seniority of respondents-3 to 5, I feel that respondents-1 and 2 should place the petitioner in his original place in the order of seniority that at least in future, if and when the time comes, in the matter of granting promotion, the petitioner's name should be considered at the first place.

31. With the above observation, I allow this writ petition thereby set aside the order of the first respondent herein. By so setting aside the impugned order, it is hereby made clear that this Court does not intend to disturb the seniority of respondents-3 to 5, as they had been in service for quite a long number of years. As

already pointed out, respondents-1 and 2 should consider the petitioner at the right place of seniority for considering him for further promotion from the post of Assistant to the post of Extension Officer and pass orders within a period of six weeks from the date of receipt of a copy of this order."

11.According to the learned counsel, a similar objection was raised and the learned Judge has dismissed the objections and allowed the writ petition and granted the substantive relief to the petitioner therein on approaching the Court though belatedly. Learned counsel submits that the observation of the order passed in the said case will squarely apply to the factual matrix of the present case as well.

12.The learned counsel for the petitioner has also drawn the attention of this Court to the decision rendered by a learned Single Judge of this Court in W.P.No.16427 of 2015 dated 12.06.2015 in which, under identical circumstances the learned Judge disagreed with the submissions of the Government and allowed the writ petition. He would particularly draw the attention of this Court to Paragraphs 15 and 16, which are extracted herein.

"15. I make it clear that in view of the order passed by this Court in this writ petition, the petitioner is to be promoted as Assistant from the date of her juniors were promoted. Applying the same principle, the service qualification of one year in Rural Welfare Officer Grade-I post shall also be waived in the case of the petitioner and she shall be promoted by including her name in the panel of Assistant fit for promotion to the post of Deputy Block Development Officer without insisting the service qualification, since it is not the fault of the petitioner in not serving as Rural Welfare Officer Grade I for one year.

16. Accordingly, this writ petition is allowed and a direction is issued to the respondent to include the name of the petitioner at the appropriate place in the panel of Junior Assistants of the year 2012-13 for promotion to the post of Assistant and also to promote the petitioner from the date on which her immediate juniors were promoted and also to include her name in the panel of Assistants fit for promotion to the post of Deputy Block Development Officer, if there is no other legal impediment, without insisting service

qualification of one year service as Assistant and one year service as Rural Welfare Officer Grade I, 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."

13.The learned counsel would also draw the attention of this Court to the decision of the Division Bench of this Court dated 18.01.2018 in W.A.No.499 of 2016 affirming the above order passed by the said learned Single Judge as found in paragraph 6, which is extracted hereunder.

"6. The learned single Judge rightly allowed the writ petition by observing that it was only on account of the delay in sending her to undergo the training, she could not pass the test before the cut off date. The learned Judge was correct in his finding that the respondent should be considered for promotion without insisting the service qualification of one year as Assistant. We do not find any reason to take a different view in the matter."

14.He therefore submitted that the writ petition may be allowed in terms of the orders passed by both the learned Single Judges as well as the Division Bench of this Court. 15.Per contra, Mr.J.Ramesh, learned Additional Government Pleader entered appearance on behalf of the respondents and a detailed counter affidavit has been filed.

16.In the detailed counter affidavit filed on behalf of the respondents, the objections seemed to be that the petitioner had completed the Departmental Tests on 31.05.2013 whereas his junior had completed the test on 28.10.2012. It is also averred in the counter affidavit that the petitioner was appointed as Assistant only on 06.03.2019 and in that post he had taken unearned medical leave from 23.12.2019 to 05.01.2020 and because of that the petitioner could not complete one year of qualifying service and in effect completed 11 months 26 days as on 15.03.2020. Therefore, the petitioner became ineligible for consideration for promotion to the post of Deputy Block Development Officer for the panel year 2020-2021. However, he will be considered for promotion to the next panel year to be drawn in 2021-2022.

17.This Court considered the submissions of Mr.V.R.Rajasekaran, learned counsel for the petitioner and Mr.J.Ramesh, learned Additional Government Pleader for the respondents, particularly with reference to the facts as narrated above on behalf of the petitioner which have not been controverted by the respondents. However, certain reasons were stated in the counter affidavit for not granting regularization to the petitioner in time. Even assuming that the reason for the delay was partially due to the petitioner, nevertheless the delay of eight long years to regularize the services is not properly explained. From the available facts, this Court is of the considered view that the respondents have to be ultimately held responsible for the inordinate delay.

18.Be that as it may. The fact of the matter is that the long delay has had an adverse impact on the promotional aspects of the petitioner in considering him for promotions to the next higher grades. When eventually and rightly the Government thought fit to restore the petitioner's seniority in consideration of his initial date of appointment as Junior Assistant in 2009, the natural corollary of such action should lead to extension of all consequential benefits, in particular, promotion. Mere restoration of the seniority without the benefit of promotion to the next higher grades becomes inane and is of no consequence or significance to the petitioner's career.

In service law, matter of promotion is always linked to seniority, more so, when the mode of appointment to the next higher grades is on the basis of seniority in the feeder grades. 19.It is needless to hold that when the respondents have not taken the decision promptly to regularize the petitioner from the date of his initial appointment as Junior Assistant, the adverse effect of such delay attributable to the respondents cannot befall the petitioner. This Court is unable to appreciate as to how on a specious plea that the petitioner had not completed one year of service as Assistant, he can be denied further promotion to the post of Deputy Block Development Officer. The faultless petitioner cannot be allowed to suffer postponement of promotion for the delayed action of the respondents.

On the other hand, fairness demands that the ominous effect of the delay required to be salvaged. 20.

promoted to the next higher posts. Moreover, when juniors were considered for promotion, the petitioner being a senior, ought to have been considered along with them, regardless of the fact whether he had completed one year of service in the post of Assistant or not. Denial of promotion in such circumstances would not stand the test of equality principles enshrined in Articles 14 and 16 of the Constitution of India. The stipulation of one year service in the post of Assistant at best can have application in the normal circumstances and the respondents cannot be allowed to take refuge under the stipulation prejudicial to the interest of the petitioner, when the respondents are found to be responsible for the bringing about a situation forming the basis of the petitioner's legitimate grievances and claim. The decisions relied on by the learned counsel are squarely applicable to the factual matrix of the present case and therefore this Court is of the considered view that the petitioner is entitled to succeed.

21.In conclusion, this Court has no hesitation in allowing the writ petition and therefore the writ petition is allowed and the proceedings in Na.Ka.No.04/2020/Pa/Aa.2 dated 06.06.2020 on the file of the 4th respondent herein is quashed insofar as noninclusion of the petitioner in the panel and consequently the respondents are directed to include the name of the petitioner in the panel for promotion to the post of Deputy Block Development Officer for the year 2020-21, on the basis of the revised seniority list published on 20.01.2020, by waiving off the one year service qualification in the post of Assistant. On such promotion being granted, the respondents are also directed to extend all the benefits to the petitioner on par with his juniors like seniority, monetary benefits etc.,

22. The respondents are directed to pass appropriate orders in compliance with the above directions within a period of six weeks from the date of receipt of a copy of this order. The writ petition stands allowed accordingly. No costs. Consequently, connected miscellaneous petitions are closed. s/d- Assistant Registrar True Copy Sub-Assistant Registrar mrm/kst

To

1. State of Tamil Nadu, Rep by its Principal Secretary to Government, Rural Development and Panchayat Raj Department, Fort St.George, Chennai - 600 009.

2. Director, Commissionerate of Rural Development, Panagal Building, Chennai 600 015.

3. District Collector Kancheepuram District Kancheepuram.

4. District Collector Chengalpattu District Chengalpattu.

+1 CC to Mr.V.R.Rajasekaran, Advocate sr 27256. W.P.No.8559 of 2020 SKS(CO) SP(24/08/2020)