M. Paneerselvan v. Director of Medical and Rural Health Services, D. M. S. Compound, Teynampet, Chennai
2010-03-19
ELIPE DHARMA RAO, K.K.SASIDHARAN
body2010
DigiLaw.ai
Judgment :- 1. The challenge in this Writ Appeal is to the order passed by the learned Single Judge dated 25 July 2008 in W.P. No.11680 of 2008 whereby and whereunder, the Appellant was reverted to the post of Office Superintendent as he failed to pass Account Test for Executive Officers within the period of probation which was a condition precedent to continue in the promoted post of Junior Administrative Officer in the Directorate of Medical and Rural Health Services, Chennai. Background facts: 2. The petitioner in W.P. No.11680/2008 is the appellant herein. 3. In the affidavit filed in support of the Writ Petition, the Appellant contended thus: (a) The Appellant was originally appointed as Junior Assistant in the Directorate of Medical and Rural Health Services and later, he was promoted as Assistant followed by a further promotion as office Superintendent. While he was working as Office Superintendent, he promoted as Junior Administrative Officer and posted in the Office of the Stanley Medical College as Junior Administrative Officer. (b) The Order of promotion dated 19 March 2005 contains a specific condition that in case the promotee fails to pass the Account Test for Subordinate Officers Part II within the probation period of one year’s within a continuous period of two years from the date of his joining the post, he would not be entitled for second increment. The Government issued an Order in G.O.Ms. No.90 dated 17 May 2006 amending the Tamil Nadu General Services Rules whereby a provision was inserted that a person appointed to the category of Junior Administrative Officer by recruitment or by transfer shall pass the Account Test for Executive Officers or Account Test for Subordinate Officers Part I and II, within the period of probation, failing which he shall be reverted. According to the appellant, the amended Government Order came into force only on 17 May 2006 and therefore, it was not applicable to the Appellant as he was promoted as early as on 24 March 2005. The amended Rule has no retrospective operation While the matters stood thus, the first respondent issued a show cause notice to the Appellant on 18 September 2007 calling upon him to show cause as to why he should not be reverted to the post of Office Superintendent in accordance with the Government Order in G.O.Ms. No.90 dated 17 May 2006.
The amended Rule has no retrospective operation While the matters stood thus, the first respondent issued a show cause notice to the Appellant on 18 September 2007 calling upon him to show cause as to why he should not be reverted to the post of Office Superintendent in accordance with the Government Order in G.O.Ms. No.90 dated 17 May 2006. The reason for issuing the said show cause notice was the failure of the Appellant to pass the departmental examination. Though the Appellant submitted his explanation that the Government Order has no retrospective operation, the first respondent passed the impugned order dated 16 April 2008, reverting the Appellant to the post of Office Superintendent. (e) The second respondent passed the consequent Order dated 22 April 2008 posting the Appellant as Office Superintendent in the office of the Director of Medical Education, Chennai. Subsequently, he was relieved from the Stanley Medical College, Chennai as per Order dated 23 April 2008. Aggrieved by the proceedings dated 16 April 2008 and the consequential proceeding dated 23 April 2008, the Appellant has filed the Writ Petition. Disposal of the Writ Petition: 4. The learned Single Judge found that even as per the existing Rules, the promoted officer has to pass the prescribed test within the period of probation, failing which, he would be liable for reversion. The unamended Rule which was prevalent as on 24th September, 1986 was very much applicable to the Appellant and only by virtue of the said Government Order, he was reverted to the post of Office Superintendent. Accordingly, the learned Single Judge rejected the contention raised on behalf of Appellant and the Writ Petition was dismissed. Aggrieved by the said Order, the Appellant is before us. Submissions: 5. The learned counsel for the Appellant reiterated the contentions raised before the learned Single Judge. According to the learned counsel, the proceeding dated 19 March 2005, promoting the Appellant as Junior Administrative Officer does not contain any condition that in case he failed to pass the departmental test for Executive Officers within the period of probation, he would be reverted to the original post. The learned counsel would further contend that the proceedings of the Director of Medical and Rural Health Services clearly show that in case the Appellant failed to pass the Account Test, he would be denied second increment in the post of Junior Administrative Officer.
The learned counsel would further contend that the proceedings of the Director of Medical and Rural Health Services clearly show that in case the Appellant failed to pass the Account Test, he would be denied second increment in the post of Junior Administrative Officer. The Government Order was amended subsequently without giving retrospective operation and as such, the first respondent was not justified in reverting the petitioner to the post of Office Superintendent solely on the ground that the petition failed to pass the Account Test. 6. The learned Government Pleader would submit that the Special Rules in Clause XXI which were in existence as on 24 September 1986 contain a specific provision that in case the promotee failed to pass the departmental test, he would be reverted to the original post. The nomenclature of the post was “Lay Secretary” which was subsequently amended and re-designated as “Junior Administrative Officer” and it was only on account of such re-designation, the Government Order in G.O.Ms. No.90 was issued by the Government. Therefore, there was nothing wrong in reverting the petitioner to the post of Officer Superintendent when he failed to pass the Account Test prescribed for Executive Officers. Analysis: 7. The Appellant was promoted to the post of Junior Administrative Officer in accordance with Rule 39(a)(i) of the General Rules for Tamil Nadu State and Subordinate Services. It is true that the proceedings dated 19 March 2005 contain only one condition that in case the Appellant failed to pass the Account Test for Subordinate Officers Part II, within the probation period of one year within a continuous period of two years from the date of his joining the promoted post, he would be denied the second increment. However, the said condition was not the only condition inasmuch as the very promotion was issued under Rule 39(a)(i) of the General Rules for Tamil Nadu State and Subordinate Services. The Service Rules, then in force, also contain a clear provision that in case a person appointed to the post of Lay Secretary fail to pass the account test for Executive Officers or the Account Test for Subordinate Officers Parts I and II, within the period of probation, he would be reverted to the original post. Subsequently, the Government issued orders in G.O.Ms.
Subsequently, the Government issued orders in G.O.Ms. No.90 dated 17 May 2006 re-designating the post of Lay Secretary and Treasurer Grade II and I as Junior Administrative Officer and Administrative Officer respectively. Therefore, the Rule as applicable to the Lay Secretary equally applies to the Junior Administrative Officer. The Government Order dated 17 May 2006 only reiterates the earlier Rule which was found necessary on account of the re-designation of the post of Lay Secretary as Junior Administrative Officer. Therefore, the promotion given to the petitioner was only on the basis of the then existing Rule which clearly contains a stipulation that the promotee has to pass departmental test within the period of probation. The condition incorporation in the Order of probation regarding the ineligibility to claim second increment was an additional condition. 8. The stipulation with respect to passing the Account Test cannot be treated as an empty formality. When a person is promoted to the administrative cadre, he has to perform executive functions, which necessitates knowledge in accounts. The very requirement that newly promoted officer should pass the mandatory departmental test within the period of probation was an indication that the probation would not be declared without passing the test. The statutory rules clearly provide that in the event of failure to pass the account test within the period of probation, the promottee would be reverted. When the order of promotion was given subject to the Service Rules, there was no requirement to incorporate the mandatory conditions in the order. The Service Rules have to be read and treated as part of the order granting promotion. When an employee accepts a conditional promotion, he was bound by the conditions. There was no compulsion to accept the promotion. It was the choice of the concerned employee. Therefore, there was no other alternative than to fulfill the condition for the purpose of claiming the benefits of promotion. 9. There is no dispute that the Appellant was not in a position to pass the departmental test during the period of probation. The Appellant was conscious of the fact that his promotion was conditional on passing the departmental test. Being a superior officer, he was expected to know the rules and he cannot plead ignorance that no such condition was incorporated in the Order giving him promotion.
The Appellant was conscious of the fact that his promotion was conditional on passing the departmental test. Being a superior officer, he was expected to know the rules and he cannot plead ignorance that no such condition was incorporated in the Order giving him promotion. The Order of promotion was issued only in accordance with the Service Rules which contain a clear provision that he would be reverted in case of his failure to pass the departmental test. Therefore, the respondents were justified in issuing the order impugned in the Writ Petition. 10. The issue was considered by the learned Single Judge in the light of the prevailing Service Rules. There is no error or illegality in the order warranting interference in the Writ Appeal. In the result, the Appeal is dismissed. No costs.