Order 1. Writ Petition in W.P.(MD)No.4819 of 2014 is at the instance of four Assistant Engineers of Madurai Municipal Corporation and the prayer is to direct preparation of panel for promotion to the post of Assistant Executive Engineer and to promote them in the order of seniority. 2. Writ Petition in W.P.(MD)No.5883 of 2014 is at the instance of another Assistant Engineer and the challenge is to the proceedings dated 15 February, 2014, whereby and whereunder, the Commissioner of Madurai City Corporation prepared a panel and called for particulars of Assistant Engineers for considering them for promotion to the post of Assistant Executive Engineer. BACKGROUND FACTS: W.P.(MD)No.5883 of 2014: 3. The petitioner was appointed as Assistant Engineer on 01 June, 2001. Respondents 4 to 10, which includes the petitioners in W.P.(MD)No.4819 of 2014, were also appointed on 01 June, 2001. According to the petitioner, respondents 4 to 10 failed to pass the mandatory departmental test and as such, they are not qualified for promotion to the post of Assistant Executive Engineer. It is the case of the petitioner that he passed the departmental test within the time permitted by the Service Rules and as such, he alone should be considered for promotion to the post of Assistant Executive Engineer and none of the respondents 4 to 10 should be considered, as they failed to pass the test. W.P.(MD)No.4819 of 2014: 4. The petitioners have come up with a grievance that in spite of placing them in serial Nos.3 to 6 of the panel prepared for promotion to the post of Assistant Executive Engineer, the Corporation has not taken any follow-up action. The petitioners, therefore, wanted the Corporation to promote them as Assistant Executive Engineers. RIVAL SUBMISSIONS: 5. The learned counsel for the petitioner in W.P(MD)No.5883 of 2014, by placing reliance on Tamil Nadu Municipal Corporation Service Rules, 1996, contended that the employees would be placed on probation for a total period of two years and they should pass the departmental test within the said period. The rule also provides that a probationer is not entitled to automatic completion of probation, in case he failed to pass the tests which under the special rules, he should pass within the period of probation. According to the learned counsel, the petitioner in W.P(MD)No.5883 of 2014, passed the test well before the end of probation period. The rule also provides that a probationer is not entitled to automatic completion of probation, in case he failed to pass the tests which under the special rules, he should pass within the period of probation. According to the learned counsel, the petitioner in W.P(MD)No.5883 of 2014, passed the test well before the end of probation period. However, respondents 4 to 10 failed to pass the departmental test and as such, they are not qualified for promotion to the post of Assistant Executive Engineer. 6. The learned counsel for the petitioners in W.P(MD)No.4819 of 2014, who is also the counsel for the respondents 4 to 7 in W.P.(MD)No.5883 of 2014, contended that the concerned respondents have all passed the test later and as such, they are also qualified for promotion to the post of Assistant Executive Engineers. 7. The learned Standing Counsel for Madurai Municipal Corporation submitted that the post of Assistant Executive Engineer is a promotional post. Those Assistant Engineers, who have worked not less than one year in the Engineering Department, are entitled for promotion to the post of Assistant Executive Engineer. According to the learned Standing Counsel, the recruitment rule nowhere stated that Assistant Engineers have to pass the departmental test for considering their case for promotion to the post of Assistant Executive Engineer. 8. The service conditions of the petitioner in W.P(MD)No.5883 of 2014 and respondents 4 to 10 in W.P(MD)No.4819 of 2014 are covered by the Tamil Nadu Municipal Corporation Service Rules, 1996. The rule very clearly provides that the employees should pass the departmental test and only thereafter, their probation would be declared. There would not be any automatic completion of probation, unless the employee has passed the mandatory departmental test. This aspect was considered by this Court earlier in the Writ Petition in W.P.(MD)No.10802 of 2006. The learned Judge made it clear that preparation of seniority list is different from preparation of panel for higher posts. According to the learned Judge, completion of probation or otherwise, will have no relevance in the matter of preparation of seniority list, whereas for preparation of panel for higher posts, completion of probation would be a relevant factor. The learned Standing Counsel for Madurai Municipal Corporation, therefore, is not correct in his submission that there is no requirement for passing the departmental test for considering the case of Assistant Engineers for promotion. The learned Standing Counsel for Madurai Municipal Corporation, therefore, is not correct in his submission that there is no requirement for passing the departmental test for considering the case of Assistant Engineers for promotion. In short, a pass in the departmental test is a mandatory requirement for considering the employees for promotion. 9. The petitioner in W.P.(MD)No.5883 of 2014 filed this Writ Petition under a misconception that respondents 4 to 10 have not passed the departmental test. The learned counsel for respondents 4 to 7 and the learned Standing Counsel for Madurai Municipal Corporation jointly submitted that respondents 4 to 10 have passed the departmental test subsequently and as such, they are also eligible now for promotion to the post of Assistant Executive Engineer. THE ISSUE: 10. The core issue which requires consideration is whether respondents 4 to 10 are eligible for inclusion of their names in the panel for promotion to the post of Assistant Executive Engineer in respect of the relevant panel year in spite of their failure to pass the departmental test before the cut-off date. 11. The Tamil Nadu Municipal Corporation Service Rules, 1996, governs the field of appointment and promotion of employees of Madurai City Municipal Corporation and similar Municipal Corporations. We are now concerned with probation and passing of departmental test during the currency of probation for considering the case for promotion. 12. Rule 14 deals with probation. It reads thus: DISCUSSION: "Probation.- (1) Every person shall, on his first appointment to any class or category of the service on probation for a total period of two years on duty within a continuous period of three years. (2) Every person appointed to one class from another service shall, from the date on which he joins duty on probation for a total period of one year on duty within a continuous period of two years. (3) If a person who is appointed or promoted temporarily under Rule 7 of these rules, is subsequently appointed thereto in accordance with the rules, it shall be open to the appointing authority to allow such person to commence his probation from the date of such appointment on probation from the date of such appointment or promotion from an earlier date such date not being earlier to the date of his first temporary appointment or probation under Rule as the appointing authority may in his discretion decided. Provided that this shall not be construed as authorising the appointment or promotion on probation of a person from a date on which he did not possess the qualification prescribed for such appointment or promotion." 13. Rule 18 deals with extension of probation. Rule 20 contains a clear indication that there would not be any automatic completion of probation, if the employee has not passed the required departmental test. The relevant provision reads thus: "20. Automatic completion of probation.-A probationer in any class or category of the service shall be deemed to have completed his probation automatically, unless within a period of six months calculated from the date on which he completed his period of probation or the extended period of probation, as the case may be:- (i) a communication asking him to show cause why his probation should not be terminated is served on him; or (ii) disciplinary proceedings are initiated against him for corruption or other serious misconduct and he is specifically informed in writing that the question of declaration of completion of his probation will be taken up only after the conclusion of the disciplinary proceedings. Nothing in this rules shall be construed as entitling a probationer to automatic completion of probation if he has not passed the tests which under the special rules he should pass within the period of his probation." 14. Rules 22 and 23 deal with seniority and promotion respectively. Rule 24 deals with preparation of panel every year. Similarly, Rule 25 deals with completion of probation and promotion. The relevant rules read thus: "22. Seniority.- The seniority of a person appointed to any class or category of the service shall be determined with reference to his rank in the list of approved candidates or promotion panel, as the case may be. 23. Promotion.- Every promotion or transfer to a class or category of the service to which promotion or transfer shall be made from a panel prepared for this purpose by the appointing authority in the manner laid down in rule 24. 24. Preparation of panel every year.-(1) The appointing authority shall prepare every year a panel in respect of each class or group or category as the case may be for which appointment is to be made by promotion or by transfer. Such panels shall be valid for a period of one year only from the date of approval. 24. Preparation of panel every year.-(1) The appointing authority shall prepare every year a panel in respect of each class or group or category as the case may be for which appointment is to be made by promotion or by transfer. Such panels shall be valid for a period of one year only from the date of approval. Each panel shall be prepared every year with the persons in the feeder categories who are qualified as on the first day of April of the year in which the panel is prepared. (2) For arriving the number of persons to be included in the panel he shall assess the number of vacancies that would occur by superannuation of existing incumbent, creation of new or additional posts within a period of one year with a reserve of ten per cent of the total estimated vacancies under each class or category of the service. (3) In respect of posts for which promotion should be made by selection, the panel shall be prepared in the order of preference based on their qualifications, merit and ability seniority being taken into account only if the qualification merit and ability are approximately equal. In respect of posts for which promotions should be made in accordance with seniority, the panel shall be prepared in accordance with seniority unless:- (i) the promotion of a member has been with hold as a penalty; or (ii) the member does not possess the qualifications prescribed in the Special Rules for the post. (4) Notwithstanding anything contained in sub-rules (1) to (3) a member of a service who had been on leave for a period of three years, continuously for any reason except higher studies, shall not be considered for appointment to higher category either by promotion or by recruitment by transfer unless he has completed service for a period of one year from the date on which he joins duty on return from leave. 25. Completion of probation and promotion.-A person who is appointed in a class of category thereof shall not be promoted from the same class or category until he has completed his probation, if any prescribed for the post." 15. 25. Completion of probation and promotion.-A person who is appointed in a class of category thereof shall not be promoted from the same class or category until he has completed his probation, if any prescribed for the post." 15. In view of the specific rule regarding mandatory test and the requirement that the employee should pass the test within the period of probation, it is clear that there would not be an automatic completion of probation after the prescribed period. This is made more clear by Rule 25 to the effect that a person, who is appointed in a category, shall not be promoted from the same class or category, till completion of probation prescribed for the post. 16. This Court has already held that completion of probation would have a bearing while preparing the panel for higher post. The said finding was made, in the light of the Tamil Nadu Municipal Corporation Service Rules. 17. The Madurai Municipal Corporation was expected to prepare a panel every year in accordance with Rule 24. Rule 24 has to be read, in the light of Rule 25. Therefore, it is very clear that only an employee, who has passed the test during the period of probation or extended period, alone would be eligible for inclusion in the panel for promotion. The panel has to be drawn on the first day of April, meaning thereby, in case a particular employee has not passed the test as on first day of April of the relevant year, his name would not be included in the panel for promotion for the said year, notwithstanding his seniority position. Seniority is one thing and inclusion in the panel for promotion is another thing. Merely because an employee is senior, he cannot be heard to say that his name should find place in the panel, notwithstanding the fact that he has not passed the mandatory departmental test. It is, therefore, very clear that passing the departmental test is a mandatory requirement for inclusion of name in the panel for promotion. 18. Similar rule came up for consideration before the Supreme Court in Sharad v. State of Maharashtra [ 2009(3) SCC 673 ]. It is, therefore, very clear that passing the departmental test is a mandatory requirement for inclusion of name in the panel for promotion. 18. Similar rule came up for consideration before the Supreme Court in Sharad v. State of Maharashtra [ 2009(3) SCC 673 ]. The Supreme Court, after scanning the rules, held that the consequences of not passing the departmental examination are that the candidate would lose his seniority and would be placed below all those who had passed or were exempted from passing the examination before him. Though the said observation was made, in the light of the relevant rule, to the effect that in case an employee, who is on probation, failed to pass the departmental test, he would be placed below in the seniority list. The said finding would equally apply insofar as preparation of panel for promotion is concerned. 19. The failure on the part of Madurai Municipal Corporation to prepare the panel every year for promotion appears to be the primary reason for this sorry state of affairs. In case the Corporation has prepared a panel every year, only those who have passed the test during the said year before First April, alone would have been included for promotion to the post of Assistant Executive Engineer. The Corporation waited for years together to prepare a panel and by the time, most of the employees have passed the test by seeking extension of period of probation. Such delay should not cause prejudice to the employees, who have already passed the test. The Corporation should prepare a separate panel every year, in view of Rule 24. 20. The petitioners in W.P.(MD)No.4819 of 2014 wanted the Corporation to prepare a panel for promotion. The panel should be prepared yearwise, taking into account the vacancies for the relevant panel year. 21. The Madurai City Municipal Corporation failed to prepare a panel yearwise. The order impugned in W.P.(MD)No.5883 of 2014 does not contain any indication that yearwise panel was drawn and particulars were called for accordingly. Therefore, I am of the view that the matter requires fresh consideration by the Madurai City Municipal Corporation. DISPOSITION: 22. The impugned proceedings dated 15 February, 2014 is set aside. The Madurai City Municipal Corporation is directed to prepare separate panels, taking into account the vacancies for the relevant year. Therefore, I am of the view that the matter requires fresh consideration by the Madurai City Municipal Corporation. DISPOSITION: 22. The impugned proceedings dated 15 February, 2014 is set aside. The Madurai City Municipal Corporation is directed to prepare separate panels, taking into account the vacancies for the relevant year. The names of those Assistant Engineers, who have passed the test before First April of the panel year, should be included in the panel. Thereafter, promotion should be made. In short, pass in the mandatory departmental test before the cut-off date should be the yardstick for inclusion in the yearwise panel. Such exercise shall be completed, within a period of four months from today. 23. The Writ Petition in W.P.(MD)No.5883 of 2014 is allowed as indicated above. The Writ Petition in W.P.(MD)No.4819 of 2014 is disposed of with the above direction. Consequently, the connected miscellaneous petitions are closed. No costs.