Madras High Court
G.Dhanabalan vs The Director General on 7 December, 2021
WP(MD)No.9776 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 07.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.9776 of 2021
and
W.M.P.(MD)Nos.7505 & 12425 of 2021
G.Dhanabalan : Petitioner
Vs.
1.The Director General,
Highways Department,
Guindy, Chennai – 600 025.
2.The Chief Engineer,
Highways Department,
Guindy, Chennai – 600 025.
3.The Superintending Engineer,
Highways, Construction and Maintenance,
K.Pudur, Madurai.
4.The Divisional Engineer,
Highways, Construction and Maintenance,
K.Pudur, Madurai. : Respondents
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India seeking issuance of Writ of
Certiorari calling for the records pertaining to the
impugned order passed by the first respondent vide
proceedings in Kurippanai No.14136/Nir3(1)/2017, dated
30.04.2021 and quash the same.
1/13
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
For Petitioner : Mr.M.Ajmal Khan,
Senior Counsel
for M/s.Ajmal Associates
For Respondents : Mr.G.V.Vairam Santhosh,
Additional Government Pleader
*****
ORDER
This writ petition is filed as against the proceedings
of the first respondent dated 30.04.2021. The impugned
proceedings is a show cause notice calling upon the
petitioner to show cause as to why he should not be
reverted to the post of Record Clerk, as per G.O.Ms.No.144,
Personnel and Administrative Reforms Department, dated
20.11.2017.
2.Mr.M.Ajmal Khan, learned Senior Counsel appearing for
the petitioner submitted that though the impugned order is
a show cause notice, it is in the form of a pre-meditation
that the petitioner is not entitled for any promotion, in
view of G.O.Ms.No.144, Personnel and Administrative Reforms
Department, dated 20.11.2017. Therefore, in view of the
decision of the Hon'ble Supreme Court reported in (2006) 12
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
SCC 33 [M/s.Siemens Ltd. v. State of Maharashtra & Others],
this writ petition is maintainable.
3.According to the learned Senior Counsel, the
petitioner was promoted as Junior Assistant in the year
2012, based on G.O.Ms.No.528, Personnel and Administrative
Reforms Department, dated 18.05.1985, wherein, the
Government has clarified that the pre-foundation course
conducted by Madurai Kamaraj University is equivalent to
Tenth Standard. The petitioner was also promoted as
Assistant in the year 2016 and he sought for promotion for
the post of Office Superintendent. In order to prevent him
from getting any further promotion, the first respondent
has issued the impugned proceedings as if the petitioner is
not eligible for the promotion and also liable to be
reverted, as per G.O.Ms.No.144, dated 20.11.2017.
4.Mr.G.V.Vairam Santhosh, learned Additional Government
Pleader appearing for the respondents, by referring to the
counter affidavit, submitted that a pass in the Tenth
Standard is the minimum requirement for the post of Junior
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
Assistant. This petitioner was promoted as Junior Assistant
based on the certificate of pre-foundation course obtained
from Madurai Kamaraj University, under the open university
scheme. Though the pre-foundation course was treated as
equivalent to SSLC vide G.O.Ms.No.528, Personnel and
Administrative Reforms Department, dated 18.05.1985, the
same was superseded by G.O.Ms.No.107, Personnel and
Administrative Reforms Department, dated 18.08.2009 and
therefore, the pre-foundation course was not treated as
equivalent to SSLC from 18.08.2009. However, the petitioner
was promoted as Junior Assistant in the year 2012 and
thereafter, as Assistant with effect from 01.03.2016.
5.According to the learned Additional Government
Pleader, G.O.Ms.No.144, Personnel and Administrative
Reforms Department, dated 20.11.2017, is having
retrospective effect from 18.08.2009, in view of G.O.Ms.No.
107, Personnel and Administrative Reforms Department, dated
18.08.2009. Similarly placed such candidates, who have been
promoted as Road Inspector Grade II from the post of Gang
Mazdoor were reverted based on G.O.Ms.No.144, Personnel and
Administrative Reforms Department, dated 20.11.2017.
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
6.This Court paid it's anxious consideration to the
rival submissions made and also perused the available
materials.
7.This writ petition is filed as against a show cause
notice. It is a settled position that the Courts have to
exercise restraint while interfering with a show cause
notice. However, the Hon'ble Supreme Court in M/s.Siemens
Ltd. v. State of Maharashtra & Others (cited supra) has
held that a writ would be maintainable, when a show cause
notice was issued with pre-meditation. The relevant portion
from the said decision is extracted as under:-
“9.Although ordinarily a writ court may not
exercise its discretionary jurisdiction in
entertaining a writ petition questioning a notice to
show cause unless the same inter alia appears to
have been without jurisdiction as has been held by
this Court in some decisions including State of
Uttar Pradesh v. Brahm Datt Sharma and Anr. 1987 AIR
(SC) 943, Special Director and Another v. Mohd.
Ghulam Ghouse and Another, 2004 (3) SCC 440 and
Union of India and Another v. Kunisetty
Satyanarayana, 2006 (12) SCALE 262, but the question
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
herein has to be considered from a different angle,
viz., when a notice is issued with pre-meditation, a
writ petition would be maintainable. ...
... ... ...
11.A bare perusal of the order impugned before
the High Court as also the statements made before us
in the counter affidavit filed by the respondents,
we are satisfied that the statutory authority has
already applied its mind and has formed an opinion
as regards the liability or otherwise of the
appellant. If in passing the order the respondent
has already determined the liability of the
appellant and the only question which remains for
its consideration is quantification thereof, the
same does not remain in the realm of a show cause
notice. The writ petition, in our opinion, was
maintainable.”
8.A reading of the impugned show cause notice shows
that the respondents have taken a decision to revert the
petitioner as Record Clerk, in view of G.O.Ms.No.144,
Personnel and Administrative Reforms Department, dated
20.11.2017. Since there exists a pre-meditation, this Court
is inclined to decide the case on merits.
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
9.On a clarification sought for by the Tamil Nadu
Public Service Commission in the year 2016-17, a
clarification was made by the Equivalence Committee that
the pre-foundation course and foundation / bridge course
awarded by various Universities cannot be recognized as
equivalent to SSLC and HSC courses. This recommendation of
the Equivalence Committee is in consonance with the
clarification issued in Letter No.33448/M/2010-4, Personnel
and Administrative Reforms Department, dated 03.12.2010.
The said clarification was issued by the Personnel and
Administrative Reforms Department to G.O.Ms.No.107, dated
18.08.2009. The said Government Order was issued on the
eligibility of the Degree obtained under the Open
University scheme, without the basic qualifications of SSLC
or HSC.
10.However, vide G.O.Ms.No.528, Personnel and
Administrative Reforms Department, dated 18.05.1985, the
Government has taken a decision to recognize the pre-
foundation courses conducted by Madurai Kamaraj University
(Open University) as equivalent to ten years SSLC of Tamil
Nadu Government for the purpose of entering into public
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
service in the State. The relevant portion of the said
Government Order is extracted as under:-
“3.The Government, after careful consideration
direct that the Pre-Foundation Course of the Madurai
Kamaraj University – Open University be recognized
as equivalent to the 10 years S.S.L.C. of the Tamil
Nadu Government for purpose of entry into Public
Services in this State. The Government also direct
that the two years Foundation Course of the Madurai
Kamaraj University – Open University be recognized
as equivalent to Higher Secondary (Plus 2) course of
the Tamil Nadu Government for purpose of entry into
Public Service in this State.”
11.The Government Order in G.O.Ms.No.107, Personnel and
Administrative Reforms Department, dated 18.08.2009, was
issued on the eligibility of the Degree obtained in the
Open University without pursuing SSLC or HSC in the regular
stream. There is no reference about G.O.Ms.No.528,
Personnel and Administrative Reforms Department, dated
18.05.1985 in the Government Order in G.O.Ms.No.107,
Personnel and Administrative Reforms Department, dated
18.08.2009.
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
12.The Government Order in G.O.Ms.No.144, Personnel and
Administrative Reforms Department, dated 20.11.2017, was
issued taking a decision that the pre-foundation and
foundation courses awarded by various Universities are not
equivalent to SSLC and HSC of the Tamil Nadu Government.
This Government Order came into effect only from the date
of its issuance and it cannot be implemented
retrospectively. The petitioner was promoted as Junior
Assistant in the year 2012 and thereafter, promoted as
Assistant in the year 2016, based on the earlier Government
Order in G.O.Ms.No.528, Personnel and Administrative
Reforms Department, dated 18.05.1985. The present
Government Order that the pre-foundation course was not
equivalent to SSLC was passed only in the year 2017 and
therefore, it cannot take away the rights of this
petitioner on the promotion that he obtained based on the
earlier Government Order.
13.On the very same issue, this Court, in W.P.Nos.
22437, 22441 of 2019, dated 14.02.2020 [S.Ranganathan and
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
Another v. State of Tamil Nadu, School Education Department
and Another], has held as follows:-
“11.The main issue that arises for consideration
is whether the qualification that was recognized
from the year 1985/88 till the passing of G.O.Ms.No.
144, Personnel and Administrative Reforms
Department, dated 20.11.2017, can be completely
erased and thereby whoever were benefited by virtue
of the earlier Government Orders in the interregnum,
can be deprived of their promotion or selection?
This issue has been substantially answered by this
Court in the judgment that was cited by the learned
counsel for the petitioner. The relevant portions
were also extracted supra.
12.This Court categorically held that the
qualification that was acquired based on the
previous Government Orders is valid for all purposes
till the passing of the later Government Orders. The
later Government Order cannot be given retrospective
effect and thereby take away whatever benefits were
enjoyed by the candidates by virtue of the earlier
Government Orders. G.O.Ms.No.144, Personnel and
Administrative Reforms Department, dated 20.11.2017
deals with the substantial right with regard to the
qualification and, therefore, it can only be given
prospective effect and to give it a retrospective
effect, will virtually take away all the rights /
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
benefits acquired by the candidates on the strength
of the earlier Government Orders. In the considered
view of this Court, the qualification that was
possessed by the petitioners was, in fact,
recognized when they were considered for promotion
to the post of Librarian Grade – III. Such a benefit
cannot be knocked off by virtue of G.O.Ms.No.144,
Personnel and Administrative Reforms Department,
dated 20.11.2017. This is more so due to the fact
that the next avenue of promotion to the post of
Librarian Grade – II is only based on seniority.
13.In view of the above discussion, this Court
has no hesitation to interfere with the impugned
order passed by the second respondent dated
26.09.2018 and the same is accordingly quashed.
There shall be a direction to the respondents to
consider the promotion of the petitioners to the
post of Grade – II Librarian based on 2016-17 panel
and appropriate orders shall be passed within a
period of four (4) weeks from the date of receipt of
copy of this order.”
14.In view of the foregoing discussions and the above
ratio laid down, this Court is inclined to interfere with
the impugned notice, as no useful purpose would be served
by directing the petitioner to give his explanation.
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
Accordingly, this writ petition is allowed and the impugned
show cause notice dated 30.04.2021 is set aside. Needless
to mention that if the next avenue of promotion for the
petitioner does not carry with it any pre-requisite
educational qualification and that the only consideration
is the seniority, the petitioner shall be considered for
the same in accordance with his seniority. There shall be
no order as to costs. Consequently, connected miscellaneous
petitions are closed.
Index : Yes / No 07.12.2021
Internet : Yes
gk
To
1.The Director General,
Highways Department,
Guindy, Chennai – 600 025.
2.The Chief Engineer,
Highways Department,
Guindy, Chennai – 600 025.
3.The Superintending Engineer,
Highways, Construction and Maintenance,
K.Pudur, Madurai.
4.The Divisional Engineer,
Highways, Construction and Maintenance,
K.Pudur, Madurai.
https://www.mhc.tn.gov.in/judis
WP(MD)No.9776 of 2021
B.PUGALENDHI, J.
gk
W.P.(MD)No.9776 of 2021
07.12.2021
https://www.mhc.tn.gov.in/judis
