M.P.Malathy, W/O.Thiru v. The State Of Tamil Nadu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 29.04.2022 DELIVERED ON : 12.08.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY W.P(MD)No.23155 of 2015 and M.P(MD)Nos.2 & 3 of 2015 1.M.P.Malathy 2.T.Selvi 3.P.Geetha 4.M.Poongudi 5.R.Chamundeeswari 6.K.R.Manjula 7.R.Lakshmi @ Saratha 8.P.Sivashanmugam 9.9.B.Andal 10.M.G.Gomathi ... Petitioners Vs.
1.The State represented by The Secretary to Government, Revenue Department, Secretariat, Chennai 600 009.
2.The Additional Chief Secretary and Commissioner of Revenue Administration, Ezhilagam, Chepauk, Chennai-600 005.
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3.The District Collector, Ramanathapuram District, Ramanathapuram.
4.P.Gomathi, Revenue Inspector, Abiramam Firka, Taluk Office, Kamuthi, Ramanathapuram District.
5.H.Gobikrishnan, Revenue Inspector, Ananthur Firka, Taluk Office, Thiruvadanai, Ramanathapuram District.
6.B.Ayyappan, Revenue Inspector, Parthibanur Firka, Taluk Office, Paramakudi, Ramanathapuram District.
7.K.M.Nagarajan, Revenue Inspector, Appanur Firka, Taluk Office, Kadaladi, Ramanathapuram District.
8.V.Ayyadurai, Revenue Inspector, Kakkur Firka, Taluk Office, Muthukulathur, Ramanathapuram District.
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9.K.Sankar, Revenue Inspector, Manjur Firka, Taluk Office, Paramakudi, Ramanathapuram District.
10.M.Muthuraman, Revenue Inspector, Ramanathapuram Firka, Taluk Office, Thiruvadanai, Ramanathapuram, Ramanathapuram District.
11.D.Gokulnath, Revenue Inspector, Muthukulathur (North) Firka, Taluk Office, Muthukulathur, Ramanathapuram District.
12.V.Balakumar, Revenue Inspector, Mandapam Firka, Taluk Office, Ramanathapuram, Ramanathapuram District.
13.G.P.Sathya Bama, Revenue Inspector, Kiliyur Firka, Taluk Office, Paramakudi, Ramanathapuram District.
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14.M.Muthuramalingam, Revenue Inspector, Kamuthi (East) Firka, Taluk Office, Kamuthi, Ramanathapuram District.
15.K.R.Venkata Krishnan, Revenue Inspector, Paramakudi Firka, Taluk Office, Paramakudi, Ramanathapuram District.
16.S.Velavan, Revenue Inspector, Muthukulathur (South) Firka, Taluk Office, Muthukulathur, Ramanathapuram District.
17.C.Chandran, Revenue Inspector, Melakodumalur Firka, Taluk Office, Muthukulathur, Ramanathapuram District.
18.A.Marimuthu, Revenue Inspector, Sayalkudi Firka, Taluk Office, Kadaladi, Ramanathapuram District.
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19.V.Udayakumar, Revenue Inspector, Perungulam Firka, Taluk Office, Ramanathapuram, Ramanathapuram District.
20.R.Venkateswaran, Revenue Inspector, Kovilangulam Firka, Taluk Office, Kamuthi, Ramanathapuram District.
21.A.Alagappa, Revenue Assistant, Taluk Office, Thiruvadanai, Ramanathapuram District.
22.E.Thangammal, Revenue Inspector, Bogalur Firka, Taluk Office, Paramakudi, Ramanathapuram District.
23.K.Kasinathan, Revenue Assistant, Taluk Office, Muthukulathur, Ramanathapuram District.
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24. V.L.Revathi D/o.Lakshminarayanan, Door No.72/5/134, Patel Street, Emaneswaram, Paramakudi Taluk, Ramanathapuram District.
25.K.Ramar, Revenue Inspector, Kadaladi Firka, Taluk Office, Kadaladi, Ramanathapuram District.
26.V.Ravikumar, Revenue Inspector, Keelathuval Firka, Taluk Office, Muthukulathur, Ramanathapuram District.
27.N.Ramamoorthy Revenue Inspector, Mangalakudi Firka, Taluk Office, Thiruvadanai, Ramanathapuram District.
28.Thiyagarajan, Revenue Assistant, Taluk Office, Muthukulathur, Ramanathapuram District.
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29.G.Deivendran, Revenue Assistant, Collectorate-DADWO, Ramanathapuram District.
30.T.Vijaya, Revenue Inspector Perunali Firka, Taluk Office, Kamuthi, Ramanathapuram District.
31. R.G.Renuka Devi Revenue Assistant, Taluk Office, Kamuthi, Ramanathapuram District.
32.L.S.Seethalakshmi Revenue Assistant, Collectorate, Ramanathapuram District.
33.B.Tamilmathi, Revenue Inspector, Therurveli Firka, Taluk Office, Muthukulathur, Ramanathapuram District.
34.M.M.Uma Maheswari Revenue Assistant, Collectorate, Ramanathapuram District.
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35.K.Revathi, Revenue Inspector, Devipattinam Firka, Taluk Office, Ramanathapuram, Ramanathapuram District.
36.M.Saravana Bala, Revenue Inspector, Solanthur Firka, Taluk Office, Thiruvadanai, Ramanathapuram District.
37.M.Paramasivan Revenue Inspector, Sikkal Firka, Taluk Office, Kadaladi, Ramanathapuram District.
38.Sathyendran, Revenue Assistant, DSO - Collectorate, Ramanathapuram District.
39.N.Kaladevi Revenue Inspector, Thiruvadanai Firka, Taluk Office, Thiruvadanai, Ramanathapuram District.
40.C.Devi, Revenue Inspector, Kamuthi (West) Firka, 8/28
Taluk Office, Kamuthi, Ramanathapuram District.
41.P.Meenambal Revenue Assistant, Taluk Office, Ramanathapuram, Ramanathapuram District.
42.V.Gokila, Revenue Inspector, Uthirakosamangai Firka, Taluk Office, Ramanathapuram, Ramanathapuram District.
43.G.Hemavathi, Revenue Inspector, RS Mangalam Firka, Taluk Office, Thiruvadanai, Ramanathapuram District.
... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records relating to the proceedings of the Impugned GO (2D) No.512 dated 22.09.2015 on the file of the first Respondent and quash the same and further to direct the Respondents 1 to 3 place the petitioners above the Respondents No.4 to 44 in the seniority list for Revenue Assistants based on the Petitioners original appointment as Typists in the month of August 2009.
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For Petitioners : Mr.AR.L.Sundaresan Senior Counsel for Mr.C.Gangai Amaran For Respondents : Mrs.D.Farjana Ghoushia, Special Government Pleader for R.1 to R.3 Mr.H.Mohammed Imran for R.9 & R.14 No Appearance for R.4 to R.8, R.10 to R.13, R.15 to R.43
O R D E R
This writ petition has been filed to quash the impugned G.O. (2D) No. 512 dated 22.09.2015 and to direct the respondents 1 to 3 to place the above respondents 4 to 44 in the seniority list for Revenue Assistants based on the petitioners' original appointment as Typists in the month of August 2009.
2. The facts of the case are that the petitioners were appointed as Typists by direct recruitment through TNPSC in the year 2009 and were posted in Ramanathapuram Revenue Unit. Subsequently, they were included in the post of Revenue Assistants on 10.04.2013. The sixth respondent was posted as Revenue Assistant in the year 2014, as she went on maternity leave. 10/28
3. The contention of the petitioners is that, in the year 2012, a panel for the post of Revenue Assistants was drawn as "Nil" as there were no qualified persons available. However, the petitioners have completed their probation in the year 2011 itself and have also completed all the departmental tests within the year 2012. But the petitioners' names were not included in the 2012 panel, as the petitioners have not completed Survey Training and the Junior Assistant training on the crucial date i.e., 15.03.2012. The petitioners have contended that sending for training is not in the hands of the petitioners and it is for the employer to provide necessary training and hence, delay in giving training cannot be taken as a ground to deny promotion to the petitioners.
4. In the meanwhile, the petitioners have completed Survey Training on 29.03.2012 and Junior Assistant training on 13.01.2013. Thereafter, the petitioners have been included in the panel for the post of Revenue Assistants in the year 2013 and subsequently, posted as Revenue Assistants. Hence, the petitioners submitted a representation on 12.02.2013, to the third respondent requesting him to include their names in the year 2012 panel and to place them in the seniority list by providing necessary exemption for undergoing trainings. 11/28
Since, the representation was not considered, the petitioners have filed a writ petition in W.P. (MD) No.11613 of 2013 to grant necessary exemption. It was stated that the third respondent has forwarded the recommendation to the second respondent on the issue of relaxation and the same was pending before the second respondent. The aforesaid writ petition was disposed of vide order, dated 21.01.2014 with a direction to the second respondent to pass appropriate orders within a period of eight weeks.
5. The respondents 4 to 44 were appointed as Revenue Assistants in Ramanathapuram Revenue Unit through direct recruitment in the month of December 2012. The respondents 4 to 44 challenged the order passed by this Court in W.P.(MD)No.11613 of 2013 by filing W.A.(MD)Nos.845 to 848 of 2015. The writ appeals were disposed of vide order, dated 23.07.2015, whereby, the order of the learned Single Judge was modified with a direction to the first respondent to pass appropriate orders by considering the claim of both petitioners as well as the respondents 4 to 44 herein, in accordance with the rules and relevant Government Orders.
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6. Pending the said representation before the first respondent, the third respondent issued a seniority list on 19.06.2015 placing the respondents 4 to 44 herein above the petitioners. The scale of pay and pay band for Typists and Revenue Assistants are one and the same. Hence, for the purpose of preparing the seniority list, the posting of petitioners as Revenue Assistants could not be treated as a promotion and it can only be construed as a transfer of service from one category to another category and the petitioners' seniority could be treated from their original date of appointment as Typists i.e., on August 2009, as per Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules.
7. The contention of the petitioners is that they ought to have been placed above the respondents 4 to 44, since they are entitled to be included in the panel for the year 2012 which was drawn in the month of April 2012 and denying promotion on the ground of service qualification was not completed is illegal. This Court has held this as illegal in various judgments, whereby, denying promotion on the ground of service qualification cannot be held against the employees. Hence the petitioners have objected to the said modification in the seniority list and requested the respondents to follow the Rule 35(b) of the Tamil 13/28
Nadu State and Subordinate Service Rule. However, the respondents submitted that the said seniority is subject to the outcome of the decision to be taken in pursuant to the order passed in W.P.(MD)No.11613 of 2013. Thereafter, the Government had passed an order rejecting the claim of the petitioners to include their names in the year 2012. In the said Government Order, the first respondent have completely accepted the claim stating that service qualification is not in the hands of the employee, however, failed to grant the relief stating that only a "Nil" panel was published in the year 2012 and the petitioners are not affected, as there was no junior as per the "Nil" panel of the year 2012.
The first respondent has completely overlooked the fact that the respondents 4 to 44 have been directly recruited as Revenue Assistants in the month of December 2012 and they are juniors to the petitioners. The first respondent has completely ignored the fact that the pay band of Typists and Revenue Assistants are one and the same and the petitioners' seniority has to be considered on the basis of their original appointment as Typists in the month of August 2009. Aggrieved over the said Government Order, the present writ petition has been filed.
8. The third respondent has filed a counter stating that the petitioners were selected by TNPSC and appointed as Typists in the year 2009. They are included in the panel of Assistants in the year 2013 and accordingly, promoted as Assistants. The petitioners were not included in the panel for the year 2012, since they have not fulfilled the basic qualification required to include them in the Assistant panel for the year 2012 on the crucial date of 15.03.2012. The basic qualification for inclusion of Typists in Assistant panel, as per the Rule 30(c) and Rule 34 of Annexure V of Tamil Nadu Ministerial Service Rules is as follows: "1. Completion of probation in Typist cadre.
2. Qualifying Revenue Test Papers I, (Paper I and II), III.
3. Survey & settlement training have to be completed and completion of one year Junior Assistant training."
9. Though the petitioners have been qualified in Revenue Test and completed probation period in Typist cadre on the crucial date, they have not undergone the Survey and Settlement Training on the crucial date of 15.03.2012. Hence the petitioners were not included in the Assistant panel for the year 2012. The petitioners represented before the Government to grant exemption from the Rule 30(c) of Tamil Nadu Ministerial Service Rules which stipulates undergoing 15/28
of one year training of Junior Assistant and Rule 34 Annexure 5 (Revenue Department-5) which stipulates passing of survey settlement training within the crucial date for inclusion in the approved list of Assistants. In G.O.(2D) No.512 Revenue Department Service 6(1) dated 22.09.2015, the Government rejected their request for relaxation of rules and for inclusion of their names in 2012 panel stating that no junior to the applicants have been included in the panel for 2012 and the approved list of 2012 is "Nil" panel and hence the inclusion of the petitioners' names in the panel for the year 2013 is correct.
10. In the meanwhile, 44 Direct Assistants have been appointed in Assistant cadre between the period from March 2012 to December 2012. As there was no eligible candidate to be included in the panel for the year 2012 for promotion as Assistant, 'NIL' panel was published and no one was promoted as Assistant. But in the year 2012, 45 directly recruited Assistants sponsored by TNPSC joined in Ramanathapuram District Revenue Unit as Assistants. Hence, the direct recruited Assistants were included in the Annual Seniority list maintained in the District and were placed in SI.No.44 to 88.
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11. The seniority list of Assistants was published as per proceedings of the District Collector Roc.A2/3009/2015, dated 19.06.2015. The vacancies of Assistants are filled up by adopting the method of filling up of 1/3 of vacancies by direct recruitment and 2/3 of the vacancies by promotion, as per the Ministerial Service Rule Annexure IX sub rule 38 b(II). The inter-seniority of the directly recruited Assistant in the District shall be fixed in the following cyclical order irrespective of the date of their joining duty. In the first two vacancies, persons were appointed by promotion. In the third vacancy, persons were appointed by direct recruitment. In the fourth and fifth vacancies, persons were appointed by promotion. In the sixth vacancy, persons were appointed by direct recruitment.
As there was no eligible candidate to be included in the panel for the year 2012 for promotion as Assistant, ''Nil'' panel was published and no one was promoted as Assistant. The pay band for Typist and Revenue Assistant are one and the same but different Grade Pay for the Typists and Revenue Assistants. The Typists are in the Pay Band of Rs.5200-20200 + Grade Pay Rs.2400 and for Assistants, the Pay Band is Rs.5200-20200 + Grade Pay Rs.2800.
12. The Assistant cadre is a promotional post for Typists, Junior Assistants, Village Administrative Officers and Steno-Typists in a prescribed ratio. It cannot be stated that Typists and Assistants are in the same service though they are in the same pay band, they are having different Grade Pays. The Seniority of Typists is maintained separately. Their seniority in Assistant cadre on getting promotion is determined as per the Annexure IX Sub rule 38 II. Hence, the averment of the petitioners is that for the purpose of drawing seniority their posting as Revenue Assistants could not be treated as promotion, is wrong. The Assistant cadre is a promotional post by transfer of service for typist category. The seniority of Typist in Assistant cadre could not be treated from their original date of appointment as Typist.
It could be the seniority assigned to the Typists on getting promotion to the post of Assistant cadre. The petitioners and others have not qualified on the crucial date for inclusion of their names in the year 2012, since they have not completed their training. Hence, the petitioners cannot compel that they have to be placed above the respondents 4 to 44. Therefore, the respondents prayed for the dismissal of the writ petition.
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13. Heard Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioners, Mrs.D.Farjan Ghoushia, learned Special Government Pleader appearing for the respondents 1 to 3 and Mr.H.Mohammed Imran, learned counsel for the respondents 9 to 14.
14. The learned counsel for the petitioners submitted the Letter No.20443/B2/2017-1, dated 19.06.2017 which was issued under the Right to Information Act, wherein, it has been stated as follows: "thpir vz;:1:- jhq;fs; NfhhpAs;s jftYf;F jkpo;ehL mikr;Rg; gzpfSf;fhd rpwg;G tpjpfspy; tpjp 30(c) -y; jl;lr;ruhfg; gzpGhpAk; xU egh; ,sepiy cjtpahshpd; gzpiaAk; xU tUlj;jpw;F Fiwahky; ghh;f;f Ntz;Lk; vd;W kl;Lk; jhd; tiuaWf;fg;gl;Ls;sNj jtpu mg;gzpapid jFjpfhz; gUtk; Kbf;Fk; Kd;dh; my;yJ gpd;dh; Kbf;f Ntz;Lk; vd;W tiuaWf;fg;gltpy;iy. MapDk; jl;lr;ruhfg; gzpGhpAk; xU egh; ,g;gapw;rpapid jdJ mLj;j gjtp cah;T ngw Ntz;bAs;s fhyj;jpw;Fs; Kbj;jpUe;jhy; kl;LNk gjtp cah;Tf;F jFjp cilath; Mthh; vd;w tptuj;ij jq;fSf;F njhptpj;Jf; nfhs;fpNwd;. Nkw;g;gb tpjpapid www.tn.gov.in vd;w jkpo;ehL murpd;
tiyjsj;jpypUe;J gjptpwf;fk; nra;J nfhs;syhk;. "
15. Under Right to Information query, the information officer has replied that the Junior Assistant training ought to be completed within one year as per Rule 30(c) of Ministerial Service Rules, but it is not mandated that the training 19/28
ought to be completed after probation or before probation. Therefore, this Court is of the considered opinion that it is not necessary that the candidate should be send for training after their probation period and the respondents need not wait for the probation to be completed, the respondents shall send during the period of probation also. If that is so, the petitioner is entitled to be considered for training from the date of appointment itself. If the respondents send the employees for training during probation period, the issue of "sending the employees for belated training", may be resolved.
16. This Court, in number of judgments, has stated that the service qualification cannot be put as against the candidates. Therefore, the petitioners claim that the respondents have failed to take into consideration that the petitioners have already completed the probation and already completed the departmental tests as on the crucial date, i.e., 15.03.2012 and the respondents ought to have prepared a panel including the petitioners in the year 2012 panel and the "Nil" panel submitted by the respondents is illegal. In the case of S.Krishnakumar Vs State of Tamil Nadu reported in (2011) 8 MLJ 317 has held that the candidates cannot be blamed for not undergoing training in Bhavani 20/28
Sagar, the non-inclusion of the petitioner's name in the panel and denying promotion cannot be justified. In S. Sasivanandam Vs. District Collector reported in (2012) 1 MLJ 634 has held that the matter of posting as Rural Welfare Officer Grade I was made by the first respondent in September 2001 and the matter of posting lies in the domain of the first respondent and hence the petitioner could not be blamed for not serving as Rural Welfare Officer Grade - I for one year as on 01.03.2002 for inclusion in the panel of Rural Welfare Officers fit for promotion as Extension Officers for the year 2002. The similar issue was considered in A. Badhrachalam Vs.
Principal Secretary and another reported in (2012) 4 MLJ 535 and in the said judgment it has been held that several judgments on this line rendered earlier were followed and held that service qualification can be acquired only if a posting is given in the particular post by the head of the department and the government servant cannot be blamed. The denial of promotion on that ground alone, if he is otherwise qualified, is unreasonable and arbitrary. In Vijaywada Guntur Tenali Urban Development Authority and Others Vs.
"The Government servant cannot be denied promotion for want of service qualification, if he was not given a chance to acquire the service 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. The department head failed to adhere to the direction issued in the above government letter dated 11.01.2000."
In the case of M.Madhanagiri v. the Commissioner of Rural Development and Panchayat Raj, Saidapet and another, in W.A.No.2672 of 2012, dated 19.01.2015, it has been held as follows:- "6. The issue as to not acquiring of service qualification can be put against the officer while considering him for promotion was already considered by the Government in Government Letter No.36347/99-1, P & AR (S) Department, dated 11.1.2000, which was communicated to all the Heads of Department, which reads as follows:-
1. I am directed to state that in certain departments of the Government, training or working experience in a particular wing is a requirement for promotion, appointment to higher 22/28
post as per Special Rules for such posts. However due to some reasons or the 6 other, the officers are not allowed to acquire the training of experience by posing them to such wing as required in the Special Rules. As a result, it ultimately affects the individual's career and also requires relaxation of relevant service rules. It is not the responsibility of the individual to be sent for training or posted in a particular wing in which working experience is required for promotion / appointment to higher post under special rules, etc., but it is the responsibility of the Department concerned to send him for promotion / appointment to gain experience."
17. In the common order dated 4.9.2007 made in W.P.Nos.47872, 47885 of 2006 and 7791 of 2007, in paragraph 8 the said issue is answered as follows: "8. 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 a 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 23/28
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."
18. Where it has been stated that the service qualification cannot be put as against the petitioners, delay in sending the Government employee for training in Bhavani Sagar training, Junior Assistant training, Survey and Settlement training, Rural Welfare Officer training cannot be put as against the employees because the training center / vacancy has limited number of seats / vacancy and the candidates are send according to their seniority. Therefore, this Court is of the considered opinion that the delay in sending the petitioners for the training cannot be put against the petitioners and the petitioners are entitled to be considered for the panel in the year 2012.
19. The respondents submitted that the respondents after considering the availability of candidates have already declared "Nil" panel and no juniors were granted any promotion and hence the petitioners are not affected. But such an argument cannot be accepted, since the respondents have erred in not sending the 24/28
petitioners for training at appropriate time. Moreover service qualification cannot be put against the petitioners. If that is so, then the preparation of "Nil" panel is erroneous. As on the crucial date the petitioners have already qualified except the service qualification. Therefore this Court is of the considered opinion that the "Nil" panel is erroneous and the petitioners are entitled to be considered for the year 2012 itself.
20. The next contention put forth by the petitioners are that the pay scale of both the Typists and the Assistants are one and the same and therefore, the promotion to the post of Assistants are to be considered as promotion by transfer and not as promotion. However, the contention of the respondents is that the pay band is same and but the grade pay is different. It is an admitted fact that the Typist grade pay is Rs.2,400 (Rupees Two Thousand and Four Hundred only) and the Assistant is getting a grade pay of Rs.2,800 (Rupees Two Thousand and Eight Hundred only). Since there is a difference in the pay scale, the claim of the petitioners that Rule 35(b) of the Tamil Nadu State and Subordinate Service Rule should be applicable and their original date of appointment in the post of Typists have to be taken into account, cannot be considered. Therefore, the claim of the 25/28
petitioners that the rule 35(b) of the Tamil Nadu State and Subordinate Service Rule applicable to them is not correct.
21. However, this Court has held that the service qualification cannot be put against the petitioners. In this point, the petitioners are eligible to be included in the panel of 2012 itself. Therefore, the respondents are directed to draw a fresh panel including the petitioners in the 2012 panel and grant promotion to them with applicable monetary benefits.
22. With this direction, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed. 12.08.2022 Index : Yes / No Internet : Yes / No mga To 1.The Secretary to Government, Revenue Department, Secretariat, Chennai - 600 009.
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2.The Additional Chief Secretary and Commissioner of Revenue Administration, Ezhilagam, Chepauk, Chennai - 600 005.
3.The District Collector, Ramanathapuram District, Ramanathapuram.
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S.SRIMATHY, J mga Pre-delivery Order made in 12.08.2022 28/28