K. Ahamed Ali v. Principal Secretary/Commissioner of Revenue Administration
2013-02-14
K.CHANDRU
body2013
DigiLaw.ai
ORDER 1. Both these writ petitions challenges the very same order dated 09.10.2012 passed by the third respondent, viz., the District Revenue Officer, Villupuram and to set aside the said order, insofar as it relates to the reversion of the petitioners from the post of Assistant for the year 2012 and seek for a direction to regularise their services in the post of Assistant w.e.f. 09.02.2012. 2. The first writ petition is filed by one K. Ahamed Ali and 14 others and it was admitted on 17.10.2012. Pending the writ petition, this court granted an interim stay from reverting the petitioners to the lower post. Subsequently, one K. Anandhalakshmi, who was working as an Assistant in the District Collector Office, Villupuram filed another writ petition in W.P.No.30475 of 2012 for the very same prayer and in that writ petition also, a similar interim order was passed on 26.11.2012. 3. Both these writ petitions were clubbed together and directed to be posted before this court on being specially ordered by the Hon'ble the Chief Justice vide order dated 20.11.2012. 4. On notice from this court, two separate counter affidavits dated 11.02.2013 and 14.02.2013 were filed on behalf of the first respondent in both the writ petitions. 5. Heard both sides. 6. The grievance of the petitioners is that they were serving as Typists in the Revenue Department and joined duty on 07.08.2009 having recruited through the Tamil Nadu Public Service Commission and were allotted to the Villupuram Revenue District. They have completed their departmental tests and training with the Tamil Nadu Land Survey Training Centre, Orathanadu on 12.12.2011 and 20.10.2011 respectively. They have also completed their probation and are eligible to be promoted as Assistants. Their probations were declared on 7.8.2011. By the order of the third respondent dated 09.02.2012, these petitioners were promoted and they were given consequential posting order by another order dated 09.02.2012 by the District Revenue Officer. Pursuant to the said posting order they have been working as an Assistant in various offices.
Their probations were declared on 7.8.2011. By the order of the third respondent dated 09.02.2012, these petitioners were promoted and they were given consequential posting order by another order dated 09.02.2012 by the District Revenue Officer. Pursuant to the said posting order they have been working as an Assistant in various offices. In the meanwhile, the third respondent, viz., the District Revenue Officer, Villupuram issued the impugned order dated 09.10.2012 reverting the petitioners from the post of Assistants to that of the Typists citing G.O.Ms.No.16, Personnel & Administrative Reforms Department dated 21.02.2012 wherein it is stated that the Typists who have not undergone the training as Junior Assistant for a period of one year, shall not be given promotion to the post of Assistant. 7. The contention raised by the petitioners was that earlier the State Government has issued G.O.Ms.No.417, Personnel & & Administrative Reforms (Per.B) Department dated 01.02.1993 stipulating that the vacancies need not be remained unfilled, until the typists underwent the training as Junior Assistant. The posts of typists or junior assistants are from the same source, by recruitment through the Tamil Nadu Public Service Commission and there cannot be any discrimination between the Typists and Junior Assistants in a matter of promotion. 8. In the counter affidavit filed on behalf of the first respondent, it is stated that the promotion given to the petitioners is based upon the temporary list drawn and it was specifically mentioned that the Temporarily Promoted Assistants shall not be entitled for any claim against this temporary promotion. Only on finalization of the eligible persons, who are qualified for promotion on the crucial date on 15.03.2012 seniority shall be fixed. 9. Reliance was placed upon the order passed by the Government in G.O.Ms.No.16, Personnel and Administrative Reforms Department dated 21.02.2002, wherein it is stated that no typist shall be eligible for promotion as Assistant or to the posts, which carry the scale of pay of Assistant in any Department, unless he or she undergone training as Junior Assistant for a period of one year without detrimental to their Typist work. 10. In the light of the said rule proposition, the petitioners who have not underwent the training for a period of one year as a Junior Assistant, are not eligible for promotion.
10. In the light of the said rule proposition, the petitioners who have not underwent the training for a period of one year as a Junior Assistant, are not eligible for promotion. It is only, if the Typists complete their training for a period of one year, their names can be included in the panel for promotion and the probable date by which the petitioners can deemed to have underwent such training can only be in February 2013 and therefore, the promotion given to them was rightly cancelled by the Department. 11. Mr. S. Vijayakumar, the learned counsel appearing for the petitioners stated that in no other District in Tamil Nadu this practice has been adopted and only in Villupuram District, en masse the typists were reverted and at no point of time, the petitioners have declined for undergoing training. On the other hand, for no fault of theirs, they have never been deputed for such training and this cannot be held against them. 12. He also stated that in similar circumstances, one A. Badhrachalam, a candidate from Krishnagiri District successfully challenged his non-inclusion in the panel for the post of Deputy Tahsildar for the year 2011 only on the ground that he was not sent for training. 13. This court vide order dated 17.04.2012 in W.P.No.9354 of 2012 [A. Badhrachalam vs. The Principal Secretary/Commissioner of Revenue Administration, Chepauk, Chennai 600 005 and another] has held that the power of posting an employee in a particular post lies within the domain of the concerned authority. However, an employee cannot be blamed for non-possessing of required service qualification and denial is not justified. 14. He also referred to one other decision of this court decided in identical circumstances in W.P.No.37729 of 2006 dated 28.01.2010 [P. Vijayaraghavan vs. The Special Commissioner and Commissioner for Revenue Administration, Ezhilagam, Chepauk, Chennai 600 005 and another]. In that case, the petitioner belonged to the Dharmapuri District and in para Nos.10 and 11 of the said order, this court has observed as follows: "10. Since the first respondent did not insist one year training as Junior Assistant for other Typists, the same has to be considered by the first respondent in the case of the petitioner also. Hence, the impugned order is liable to be quashed.
Since the first respondent did not insist one year training as Junior Assistant for other Typists, the same has to be considered by the first respondent in the case of the petitioner also. Hence, the impugned order is liable to be quashed. Accordingly, the same is quashed and the first respondent is directed to consider the claim of the petitioner for inclusion in the panel of Junior Assistant/Typists of the year 1997-1998 for promotion to the post of Assistant in the light of the Government letter No.97664/93-1 dated 16.12.1998 and grant relaxation for training as Junior Assistant for one year as given to other Typists during 1994. 11. Accordingly, the writ petition is allowed. The first respondent is directed to complete the said exercises within a period of twelve weeks from the date of receipt of a copy of this order. No costs." The said matter was taken up on appeal by the State Government in W.A.No.123 of 2012 and the Division Bench of this court by order dated 20.01.2012, dismissed the writ appeal and in para No.2 and 3, it was observed as follows: "2. It appears that promotion to the respondent/writ petitioner was denied mainly on the ground that he had not undergone one year training as junior assistant. The learned Single Judge found the other similarly situated typists were given the benefit of promotion without they having undergone the said training and therefore the respondent/writ petitioner should also get the same benefit. 3. We do not find any error in the impugned order. The writ appeal is therefore dismissed. ..." 15. The learned counsel for the petitioners also produced one other decision of this court in identical circumstances, in relation to Labour department matter in the case relating to [T. Tamilarasi and two others vs. The Government of Tamil Nadu, rep. by its Secretary, Labour and Employment Department, Fort St. George, Chennai] By a common order dated 22.11.2007 in W.P.Nos.23081, 23083 and 31714 of 2007, this court took a similar position. In that case, the court placed reliance upon the judgment of the Supreme Court reported in (1996) 8 SCC 762 [State Bank of India and others vs. Kashinath Kher and others] and at Para 10 of the said judgment it is held as follows: "10.
In that case, the court placed reliance upon the judgment of the Supreme Court reported in (1996) 8 SCC 762 [State Bank of India and others vs. Kashinath Kher and others] and at Para 10 of the said judgment it is held as follows: "10. Having considered the respective contentions, the question arises whether the action taken by the appellant in making the officers who have not completed the required service of the line assignment and rura1/semi-urban service and considering their case, found them fit and placed them in List B is violative of Article 14? We find that the stand taken by the Bank appears to be just and fair on the facts of the case. It would be seen that from 1986 onwards no promotions have been made. Despite directions issued in 1986 as a one-time measure directing all the circles to post the officers to line assignment and for rura1/semi-urban assignment from 1989, no steps have been taken at the circle level to comply with the directions given by the Board and the Executive Committee. Consequentially, officers, who are otherwise eligible and entitled to be considered, were made ineligible for no fault of theirs. Under those circumstances, it necessitated to relieve hardship to such officers due to the inaction or skilful manoeuvre at circle level. Fortuitous circumstances in the case of some officers who completed the criteria would be a ground for them to steal a march over officers who are otherwise eligible and they cannot be made to suffer injustice; denial of their legitimate expectation of consideration of their cases for promotion would be unjust and unfair. It is true, as rightly contended by Ms Nisha, that the criteria being conditions of service cannot be relaxed. Service conditions being essential conditions cannot be relaxed and it is not the case of the appellant-Bank that they have done that exercise. What the Board has done is giving an opportunity to the officers, who are otherwise eligible, to complete the required service conditions and then they would be given promotion, on completion of requisite conditions thereof.
Service conditions being essential conditions cannot be relaxed and it is not the case of the appellant-Bank that they have done that exercise. What the Board has done is giving an opportunity to the officers, who are otherwise eligible, to complete the required service conditions and then they would be given promotion, on completion of requisite conditions thereof. In view of the fact that they did not have the opportunity to serve and complete the qualifying service, with a view to see that those who had the advantage of completing the service would not steal a march over the seniors, they equally adopted an equitable principle of putting the officers in List B and giving them seniority after promotion below his immediate senior in MMGS-II so that injustice will not be meted out to such officers for no fault of theirs. The procedure adopted by the Bank is just, fair and reasonable." 16. The learned Special Government pleader had fairly admitted that similar practice was not effected in the other revenue districts. In any event, he had contended that the statutory rule obliges the petitioners for completing the service training for a period of one year. However, this court is not inclined to take the stand taken by the respondents in the light of the legal precedents referred to above and the factual positions set out. 17. Accordingly, both the writ petitions are allowed and the impugned order shall stand set aside. No costs. Consequently, the miscellaneous petitions are closed.