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2012 DIGILAW 453 (MAD)

S. S. Seethavasan v. Government of Tamil Nadu

2012-01-30

ELIPE DHARMA RAO, N.KIRUBAKARAN

body2012
Judgment :- (ELIPE DHARMA RAO, J.) 1. Since the issue involved in both the appeals is one and the same, the following common judgment is delivered:- These writ appeals are filed against the order dated 3.8.2011 and 15.2.2011 passed by the learned single Judge of this Court in W.P. Nos.17640 of 2011 and 27437 of 2010 respectively. 2. The case of the appellant in W.A. No.1370 of 2011 is that he joined as Audit Inspector on 24.1.2003 in the Regional Audit Officer, Hindu Religious and Charitable Endowment Department (hereinafter referred to as "HR & CE Department), Madurai (South). The third respondent issued Notification through advertisement in the dailies on 16.4.2011 for filling up the nine vacancies by direct recruitment for the post of Assistant Commissioner in the Tamil Nadu Hindu Religious and Charitable Endowment Administration Department. The Notification issued by the third respondent merely states that a person, who is an aspirant for the post of Assistant Commissioner, must have put in not less than six years in the post of Executive Officer Grade-I/Grade II/Grade III/Grade IV/Inspector/Head Clerk/Manager/Superintendent in the Tamil Nadu Hindu Religious and Charitable Endowment Administration Department. Hence, the appellant, who is working as Inspector of the Audit Wing of the HR & CE Department, is entitled to apply for the said post. 3. The further case of the said appellant is that earlier he filed W.P. No.776 of 2010 to consider him for the post of Assistant Commissioner with reference to the earlier application submitted by him pursuant to the Notification issued on 20.12.2009 and obtained interim direction to write the examination, but the results were withheld. 4. In such circumstances, the appellant in W.A. No.1370 of 2011 filed W.P. No.17640 of 2011 for issuance of a writ of certiorarified mandamus to quash the order dated 29.5.2011 passed by the second respondent and to direct the respondents to consider the appellant's application without insisting on the production of a service certificate as required under the third respondent's notification dated 16.4.2011 to the post of Assistant Commissioner in the Tamil Nadu Hindu Religious and Charitable Endowment Administration Department for the direct recruitment to the post of Assistant Commissioner. 5. 5. In the said writ petition, the second respondent filed counter affidavit stating that since the Government has declined to bring any amendment to the Special Rules to enable the Audit Superintendents and Assistant Audit Officers working in the Audit Wing of the HR & CE Department, the permission cannot be granted and hence the request of the appellant in W.A. No.1370 of 2011 to issue service Certificate cannot be considered. It is also stated that the Special Rules governing the appointment to the post of Assistant Commissioner, HR & CE Department do not provide for appointment of the Audit Inspectors in the Audit Wing to be considered for the said post. 6. Learned single Judge, by the impugned order dated 3.8.2011, dismissed the writ petition, holding as follows:- "9.) The Rule for filling up the post of Assistant Commissioner as per the amended Special Rules vide G.O.Ms.No.335, Hindu Religious and Charitable Endowments Department dated 9.11.2009 in relation to the service candidates reads as follows:- "Must have put in a service of not less than six years in the post of Executive Officer, Grade I of Grade II or Grade III or Grade IV or Inspector or Head Clerk or Manager or Superintendent, in the Tamil Nadu Hindu Religious and Charitable Endowments Administration Departments" (Emphasis added)" 10.) Therefore, a perusal of the Rule itself shows that it is only an administrative Wing of the Department are considered and not the Audit Wing. It must be noted that the term "Inspector" is defined under Section 6 (12-A) of the Tamil Nadu Hindu Religious and Charitable Endowments Act. The term "Inspector" means an Inspector in the Hindu Religious and Charitable Endowments Administration Department. It is not the case of the petitioner that he is performing the duties of Inspector in terms of HR & CE Act. As rightly contended by the respondents, she works within the Audit Department and the Department itself has got provision for further promotions within the wing. Unless and until the petitioner is able to substantiate that the Audit Inspector is also coming under the Administration Wing of the HR & CE Department and in the absence of any amendment to the Special Rules, the petitioner cannot claim as a matter of right to write such examination. Unless and until the petitioner is able to substantiate that the Audit Inspector is also coming under the Administration Wing of the HR & CE Department and in the absence of any amendment to the Special Rules, the petitioner cannot claim as a matter of right to write such examination. The present writ petition seeking for Service Certificate to enable him to write the TNPSC Examination is misconceived and bereft of legal reasons and as already this Court in the case of S.P. Shanti in W.P.No.27437 of 2010 dated 15.2.2011 declined similar relief, this Court is not inclined to entertain the writ petition. Hence, the writ petition stands dismissed. No costs. The connected Miscellaneous Petitions are closed." Challenging the aforesaid order, the appellant filed W.A. No.1370 of 2011 before this Court. 7. The appellant in W.A. No.302 of 2011 filed W.P. No.27437 of 2010 for issuance of a writ of mandamus, to direct the respondents to consider her for selection to the post of Assistant Commissioner, Hindu Religious Charitable and Endowment Administration Department pursuant to the TNPSC written examinations held on 30.5.2010 for direct recruitment to the said post. The contention of the appellant is that pursuant to the Notification dated 20.12.2009 calling for applications from eligible candidates to fill up the post of Assistant Commissioner in the Department by direct recruitment, the said appellant applied for the said post, wrote the examination and the results were published on 26.11.2010. The grievance of the appellant in W.A. No.302 of 2011 is that though she had secured 325 marks out of 400 in the written examination against the cut off marks of 275 out of 400 and 300 out of 400 prescribed for SC category to which she belongs to and for the O.C. category respectively, she was not selected to the post of Assistant Commissioner. 8. 8. In the said writ petition, the third respondent has stated that though the appellant in W.A. No.302 of 2011 was allowed to write the examination held on 30.5.2010 based on the claim made by her in the application, subsequently, when her application was subjected to thorough scrutiny in terms of her eligibility to the post of Assistant Commissioner, it was found that she is a serving member of the Department in the Audit Wing holding the post of Audit wing and she is not an 'Inspector' in the administrative side of the department as mentioned in Para No.5(B)(ii)(b) of the Commission's Notification dated 20.12.2009. When a clarification was sought for from the HR & CE Department with regard to eligibility of the appellant for the post of Assistant Commissioner, by letter dated 2.10.2010, the second respondent made it clear that the appellant was not eligible even to apply for the post of Assistant Commissioner and only based on such clarification by the Department, the case of the appellant was rejected. 9. Learned single Judge, by the impugned order dated 15.2.2011, dismissed the writ petition, holding that as on the date of Notification, the post of Audit Inspectors was not included as eligible category to apply and compete in the Group-IB examination conducted by the Commission. The Government also declined to consider the request of the Audit Staff Association to treat the Audit Inspectors on par with Inspectors and to amend the Rules on the ground that the duties and responsibilities of the Audit Inspectors are altogether different from that of Inspectors working in the Administrative Wing. Learned Judge also held that as on the date of Notification and as per the Rules, she was ineligible even to write the examination. However, she was wrongly allowed to write the examination. Hence, mere admission to the written examination does not confer any right on the appellant to claim selection. Challenging the said order, the appellant filed W.A. No.302 of 2011 before this Court. 10. Heard the learned counsel appearing for the appellants and the respondents and perused the materials available on record. 11. Hence, mere admission to the written examination does not confer any right on the appellant to claim selection. Challenging the said order, the appellant filed W.A. No.302 of 2011 before this Court. 10. Heard the learned counsel appearing for the appellants and the respondents and perused the materials available on record. 11. In the counter filed by the second respondent in W.P. No.17640 of 2011 it is stated in paragraph 9 as follows:- "9.) It is submitted that as per G.O.Ms.No.1826, Revenue Department dated 21.6.1972 that under no circumstances the members of staff like the Inspectors, Executive Officers, Assistant Commissioner of the Hindu Religious and Charitable Endowments Department will get posted to the Audit Wing and the staff managing the audit wing will be kept as a separate and distinct entity and that the two wings namely the staff in the administrative wing (ministerial and executive staff) and the staff in the audit wing working under the control of the Commissioner, H.R. & C.E. Department should be kept distinct and there should be no interchange of personnel between the Administrative wing and the Audit wing at any level and at any time. In the circumstances, the petitioner belonging to the Audit wing is not entitled to be posted to the administration wing of the Department as per the above terms." 12. Learned Special Government Pleader appearing for the first and second respondents also submits that when a proposal was made by the Commission on 23.9.2010 recommending to amend the Rule for including the audit staff also for promotion to the post of Assistant Commissioner, the same was rejected by letter dated 16.12.2010 on the ground that already there are promotional avenues for the Audit Inspectors and Audit Superintendents to higher posts like Audit Officer and Regional Audit Officer as provided in the Rules and that the nature of duties and responsibilities involved in the Administrative wing, where vacancies arose for the post of Assistant Commissioner are altogether different from that of the audit wing. 13. The appellants, without assailing the correctness of the said communication dated 16.12.2010, filed the writ petitions. Hence, the said writ petitions were rightly dismissed by the learned single Judge. We see no reason to interfere with the said order. The writ appeals are dismissed. Consequently, the connected M.P. is also dismissed. However, there shall be no order as to costs.