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2014 DIGILAW 3109 (MAD)

K. Radhakrishnan v. Government Of Tamil Nadu

2014-09-04

D.HARIPARANTHAMAN

body2014
Judgment 1. Heard both sides. 2. The petitioners are retired Government servants. They served in Rural Development Department after holding various posts such as Block Development Officer, Deputy Block Development Officer, Extension Officer and Assistant at the time of their attaining the age of superannuation. 3. It is not in dispute that the petitioners were originally appointed as Rural Welfare Officer Grade – II, which is equivalent to Junior Assistant cadre. It is also not in dispute that all the petitioners were advanced to the post of Special Temporary Rural Welfare Officer Grade – I in the cadre of Assistant with effect from 01.10.1978. 4. Subsequently, all of them were regularly appointed as Assistants and some of them obtained further promotions as Extension Officer, Deputy Block Development Officer / Block Development Officer. 5. The grievance of the petitioners is that the period of service in the post of Special Temporary Rural Welfare Officer Grade – I shall be counted for the purpose of further promotion to the post of Extension Officer. But the same was not done. 6. The petitioners have placed heavy reliance on G.O.Ms.No.487, Personal and Administrative Reforms (Per.M) Department, dated 18.04.1979 and particularly, clause 2(IV) of the said Government Order. 7. It is also the case of the petitioners that one person by name Mr.Senthilvel, who is similarly situated like the petitioners herein, filed a writ petition in W.P.No.15194 of 2006 (O.A.No.2021/1995) seeking direction to the respondent therein to count the services rendered by him as Special Temporary Rural Welfare Officer Grade – I, with effect from 01.10.1978. The said writ petition was allowed by this Court on 04.02.2008. 8. Subsequently, the aforesaid order of this Court was implemented by the Government in G.O.Ms.No.123, Rural Development and Panchayat Raj Department, dated 07.03.2012. 9. In fact, after the order dated 04.02.2008 in W.P.No.15194 of 2006 was passed by this Court, the Deputy Secretary to Government, Rural Development Department, wrote a letter dated 12.11.2009 to the Commissioner of Rural Development and Panchayat Raj Department, Chennai, directing him to submit a report of the similarly situated person like the petitioner in W.P.No.15194 of 2006. 9. In fact, after the order dated 04.02.2008 in W.P.No.15194 of 2006 was passed by this Court, the Deputy Secretary to Government, Rural Development Department, wrote a letter dated 12.11.2009 to the Commissioner of Rural Development and Panchayat Raj Department, Chennai, directing him to submit a report of the similarly situated person like the petitioner in W.P.No.15194 of 2006. In this regard, it is relevant to extract para 6(5) of the aforesaid letter dated 12.11.2009, which reads as follows: “6 (5) In the above circumstances, I am to request you to send your specific report on whether the Government will be committed to conceding a similar benefit on immediately similarly placed and if so the approximate number involved to Government immediately. Since this is a court case and the judgment was delivered on 4.2.2008, I am to request you to send your report to Government early.“ 10. When the petitioners made a request to extend the benefit based on G.O.Ms.No.487 and also as per G.O.Ms.No.123, their request was rejected by the first respondent vide order dated 12.10.2012. It is stated in the aforesaid letter dated 12.10.2012 that 33 persons made representations. However, copy of the order was marked to only one person, who is the first petitioner herein. In the case of others, who did not make application also, it is the case of the petitioners that they are also entitled to the benefit of G.O.Ms.No.487 read with G.O.Ms.No.123. Para 2(IV) of G.O.Ms.No.487, as heavily relied on by the petitioners is extracted hereunder: “2(IV) Service in the special temporary post will count as qualifying service for purpose of promotion to the further higher posts.” 11. On the other hand, counter affidavit is filed by the respondents refuting the allegations. As far as G.O.Ms.No.487 is concerned, it is dealt in paras 8 and 20 of the counter affidavit. I have carefully read the counter affidavit. In my view, paras 8 and 20 of the counter affidavit does not give answer to the issue that was raised by the petitioners herein. 12. The claim of the petitioners is that the period of service rendered by them as Rural Development Officer Grade – I (Assistant) shall be counted from 01.10.1978, the date on which they were appointed as Special Temporary Rural Welfare Officer Grade – I (Assistant). 12. The claim of the petitioners is that the period of service rendered by them as Rural Development Officer Grade – I (Assistant) shall be counted from 01.10.1978, the date on which they were appointed as Special Temporary Rural Welfare Officer Grade – I (Assistant). The same is specifically averred in ground (D) of the affidavit filed in support of this writ petition, which reads as follows: “d) The petitioners respectfully submit that independently the Government is bound by their own Government orders viz., G.O.Ms.No.487 P&AR Dept. dated 18.04.1979 wherein it is clearly mentioned that in Paragraph 4 it is clearly mentioned that Service in the Special Temporary Post will count as qualifying service for the purpose of promotion to the further higher post. Hence, it is obligatory on the part of the respondents to count the services rendered by the petitioners in the post of Special Temporary Post Rural Welfare Officer Gr-I for the purpose of further promotion and consequential implemental and pensionary benefits.” 13. Para 8 of the counter affidavit states that one should have passed the test for further promotion. It is not the case of the petitioners that without passing test they should be promoted. Hence the averment contained in para 8 of the counter affidavit has no relevance to the issue raised by the petitioner. 14. The case of the petitioners is as to whether the service rendered by them from 01.10.1978 as Rural Welfare Officer Grade – I (Assistant) shall be counted or not. 15. Para 20 of the counter affidavit is also not the answer to the issues raised by the petitioner in Ground (d). In para 20 of the counter affidavit, it is stated that it cannot be reckoned as regular service rendered in the cadre of Rural Welfare Officer Grade – I for the purpose of promotion. But such a stand is contrary to G.O.No.487 and the same makes it very clear that the period shall be counted from the date of advancement to the Special Temporary post. Therefore, I am of the view that the impugned letter of the Principal Secretary to Government is contrary to G.O.Ms.No.487. It is well settled that the G.O. issued by the Government would prevail over the letters of the Principal Secretary to Government. Para 20 of the counter affidavit is extracted hereunder: “20. Therefore, I am of the view that the impugned letter of the Principal Secretary to Government is contrary to G.O.Ms.No.487. It is well settled that the G.O. issued by the Government would prevail over the letters of the Principal Secretary to Government. Para 20 of the counter affidavit is extracted hereunder: “20. Regarding the averments made in ground “d” of the affidavit of the petitioners, it is submitted that counting of service as Special Temporary post of Rural Welfare Officer Grade I will be considered only for the purpose of increment and pensionary benefits and it cannot be reckoned as a regular service rendered in the cadre of Rural Welfare Officer Grade I for the purpose of promotion, since the nature of work and duties and responsibilities of Rural Welfare Officer Grade I is entirely different. The arrear amount of increment from 1978 are already paid. It is further submitted that since there are specific prerequisite qualifications are prescribed for promotion from the cadre of Rural Welfare Officer Grade I to the cadre of Assistant, Extension Officer (Panchayat) and Deputy Block Development Officer, Block Development Officer etc., such statutory rules cannot be brushed aside. Hence the contentions of the petitioners are quite unsustainable under Law.” 16. It is not in dispute that the similarly situated person Mr.Senthilvel filed W.P.No.15194 of 2006 and this Court allowed the same on 04.02.2008 directing the respondent therein to count his service rendered in the Special Temporary post with effect from 01.10.1978 in the cadre of Rural Welfare Officer Grade – I and the same was also complied with by the Government by issuing G.O.Ms.No.123. 17. Now, it is stated in the impugned letter that the order of this Court dated 04.02.2008 in W.P.No.15194 of 2006 and implementation of G.O.Ms.No.123 cannot be cited as precedent. I am not able to understand as to why the petitioners cannot claim similar benefit as given to Mr.Senthilvel, particularly this Court granted the relief as sought for and the same has also attained finality. Furthermore, the petitioners have placed reliance on G.O.Ms.No.487 and therefore, they are entitled to succeed in their claim. 18. I am not able to understand as to why the petitioners cannot claim similar benefit as given to Mr.Senthilvel, particularly this Court granted the relief as sought for and the same has also attained finality. Furthermore, the petitioners have placed reliance on G.O.Ms.No.487 and therefore, they are entitled to succeed in their claim. 18. The learned counsel for the petitioners has submitted that the petitioners want to count the service for notional promotion alone in the higher post and consequential notional fixation so that they could get the revised pension and they are not claiming any monetary benefits for actual promotion. 19. The learned counsel for the petitioners has relied on a judgment of the Honourable Supreme Court in MAHARAJ KRISHAN BHATT AND ANOTHER VS. STATE OF JAMMU AND KASHMIR AND OTHERS [2008 (9) SCC 24] in support of his submission. Paras 21 to 23 of the said judgment are extracted hereunder: “21. It was no doubt contended by the learned counsel for the respondent-State that Article 14 or 16 of the Constitution cannot be invoked and pressed in service to perpetuate illegality. It was submitted that if one illegal action is taken, a person whose case is similar, cannot invoke Article 14 or 16 and demand similar relief illegally or against a statute. 22. There can be no two opinions about the legal proposition as submitted by the learned counsel for the State. But in the case on hand, in our opinion, there was no illegality on the part of the learned Single Judge in allowing Writ petition No. 519 of 1997 instituted by Abdul Rashid Rather and in issuing necessary directions. Since the action was legal and in consonance with law, the Division Bench confirmed it and this Court did not think it proper to interfere with the said order and dismissed Special Leave Petition. To us, in the circumstances, the learned Single Judge was wholly right and fully justified in following the judgment and order in Writ Petition No. 519 of 1987 in the case of present writ petitioners also. 23. In fairness and in view of the fact that the decision in Abdul Rashid Rather had attained finality, the State Authorities ought to have gracefully accepted the decision by granting similar benefits to present writ-petitioners. It, however, challenged the order passed by the Single Judge. 23. In fairness and in view of the fact that the decision in Abdul Rashid Rather had attained finality, the State Authorities ought to have gracefully accepted the decision by granting similar benefits to present writ-petitioners. It, however, challenged the order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed Letters Patent Appeal by affirming the order of the Single Judge. The Letters Patent Appeal, however, was allowed by the Division Bench and the judgment and order of the learned Single Judge was set aside. In our considered view, the order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and fairness in action. The said order, therefore, deserves to be restored.” 20. In the said circumstances, particularly taking into account G.O.Ms.No.487 and also the order of this Court dated 04.02.2008 in W.P.No.15194 of 2006, which was also implemented by the Government in G.O.Ms.No.123, I am of the view that the writ petition deserves to be allowed. 21. Accordingly, the impugned order is quashed and a direction is issued to count the services of the petitioners from 01.10.1978 as Assistants and grant them notional promotion, if they are otherwise eligible for further promotion to higher post and also fix their pay notionally in the higher post and pay the revised pension. The first respondent is directed to undertake the aforesaid exercise within a period of four months from the date of receipt of a copy of this order. 22. The writ petition is allowed accordingly. No costs. Consequently, connected miscellaneous petition is closed.