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2014 DIGILAW 2945 (MAD)

S. Kalaiarasi v. Secretary to Government

2014-08-27

D.HARIPARANTHAMAN

body2014
Judgment 1. The petitioner was selected by the Tamil Nadu Public Service Commission by direct recruitment as an Assistant Engineer in the Highways Department. She was working continuously upto 19.10.2005. 2. The petitioner was granted permission vide G.O.(2D) No.18 Highways (HK2) Department dated 30.09.1995 for her employment abroad and she was also sanctioned three years leave from 20.10.2005 for the said purpose. The petitioner was also granted further period of two years leave from 20.10.2008 to 19.10.2010. She worked in U.S.A. from 20.10.2005 to 19.10.2010 with the permission of the Government and the leave was also sanctioned, as per the counter affidavit. When she was serving abroad, the Government issued G.O.Ms.No.11 Highways (HK1) Department dated 09.01.2008 including the name of the petitioner in the panel for promotion to the post of Assistant Divisional Engineer. Consequently, she was promoted as Assistant Divisional Engineer vide G.O.Ms.No.13 Highways (HK1) Department dated 09.01.2008. 3. When she came to India, after the permitted leave was over and reported to duty on 20.10.2010, she was not permitted to join in the promoted post of Assistant Divisional Engineer. On the other hand, she was directed to join as Assistant Engineer. 4. Thereafter, the Secretary to Government, Highways and Minor Ports (HK1) Department issued a letter in Letter No.850/HK1/2012-3 dated 29.05.2012 that the petitioner shall not be considered for promotion to higher category unless she has completed service for a period of one year from the date on which she joined duty on return from leave. The letter relies on Rule 36(c) of the Tamil Nadu State and Subordinate Service Rules. It is stated that the name of the petitioner would be included in the appropriate panel for promotion to the post of Assistant Divisional Engineer after she completes one year service after her return from the leave. 5. The petitioner has sought to quash the aforesaid letter dated 29.05.2012, in this writ petition and also sought for a consequential direction to treat her as Assistant Divisional Engineer as per the promotion order issued pursuant to G.O.Ms.No.13 Highways (HK1) Department dated 09.01.2008. 6. Respondents 1 and 2 have filed counter affidavit and paragraphs 3 and 4 of the counter affidavit are relevant, which are extracted hereunder: “3. 6. Respondents 1 and 2 have filed counter affidavit and paragraphs 3 and 4 of the counter affidavit are relevant, which are extracted hereunder: “3. Regarding the averments made in para 3 of the affidavit, it is submitted that vide G.O.(2D) No.18 Highways (HK2) Department dated 30.09.2005 permission was accorded for her employment abroad and leave was sanctioned for three years and she was on leave from 20.10.2005. On her further request, the petitioner was granted leave for a further period for two years from 20.10.2008 to 19.10.2010 she was working in U.S.A. for the period from 20.10.2005 to 19.10.2010. 4. Regarding the averments made in para 4 of the affidavit, it is submitted that the name of the petitioner was included in the panel for promotion to the post of Assistant Divisional Engineer for the year 2007-2008 approved in G.O.Ms.No.11, Highways (HK1) Department dated 8.1.2008 for which the crucial date was 15.7.2006 the petitioner was subsequently promoted as Assistant Divisional Engineer, vide G.O.Ms.No.13 Highways (HK1) Department dated 9.1.2008. The name of the petitioner was included in the panel for the year 2007-2008 as the leave period had not exceeded three years as on 15.7.2006, which was the crucial date for the panel for the year 2007-2008.” 7. It is admitted in para 3 that the petitioner was permitted to go abroad for taking up employment and the leave was also sanctioned for five years. While so she was included in the panel by G.O.Ms.No.11 Highways (HK1) Department dated 09.01.2008 for the year 2007-2008. Subsequently, she was promoted to the post of Assistant Divisional Engineer by the Government by G.O.Ms.No.13 Highways (HK1) Department dated 09.01.2008. Those Government Orders are still in tact. It is well settled that if there is a conflict between the letter of the Secretary to Government and the Government Order, the latter would alone prevail. Further more, in this case, the petitioner was already empanelled and given promotion. Therefore, on the expiry of the sanctioned leave, when the petitioner came to join duty, she should have been permitted to join in the promoted post. It is a different matter if the petitioner was not included in the panel in G.O.Ms.No.11 Highways (HK1) Department dated 09.01.2008 and subsequently promoted in G.O.Ms.No.13 Highways (HK1) Department dated 09.01.2008. Therefore, on the expiry of the sanctioned leave, when the petitioner came to join duty, she should have been permitted to join in the promoted post. It is a different matter if the petitioner was not included in the panel in G.O.Ms.No.11 Highways (HK1) Department dated 09.01.2008 and subsequently promoted in G.O.Ms.No.13 Highways (HK1) Department dated 09.01.2008. Having included in the panel and also given promotion, it is not correct to restrain her from joining the promoted post, when she reported to duty on 20.10.2010. In my view, Rule 36(c) of the Tamil Nadu State and Subordinate Service Rules is not applicable. If the petitioner seeks further promotion from Assistant Divisional Engineer then Rule 36(c) could be invoked for further promotion. In this case, already she was promoted and the promotion given by the Government is in tact. In the circumstances, the impugned letter, which is contrary to the Government Order cannot stand the scrutiny of law. Accordingly, the same is quashed and the writ petition is allowed. Consequently, a direction is issued to the respondents to treat the petitioner as Assistant Divisional Engineer pursuant to G.O.Ms.No.13 Highways (HK1) Department dated 09.01.2008 and she shall be permitted to draw salary for the said post from 20.10.2010 onwards. No costs. Consequently, connected miscellaneous petitions are closed.