Madras High Court
Anusuya Annamalai vs State Of Tamil Nadu on 16 December, 2021
W.A.No.2065 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:16.12.2021
Coram:
The Honourable Mr.Justice M.DURAISWAMY
and
The Honourable Mr.Justice J.SATHYA NARAYANA PRASAD
W.A.No.2065 of 2021
Anusuya Annamalai ...Appellant
Versus
1. State of Tamil Nadu
rep by the Principal Secretary to Government,
Commercial Tax (H-1) Department,
Fort St.George,
Chennai – 600 009.
2. The Inspector General of Registration,
Santhome High Road,
Chennai – 600 028. ...Respondents
Writ Appeal filed under Clause 15 of Letters Patent, praying to set
aside the order dated 07.02.2020 in W.P.No.35951 of 2019 of the learned
Single Judge and allow the said W.P.No.35951 of 2019.
For Appellant : Mr.R.Singaravelan
Senior Counsel,
For M/s.P.Swaminathan
For Respondents : Mr.P.Sathish
Additional Government Pleader
1/13
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W.A.No.2065 of 2021
JUDGEMENT
(Judgement of the Court was delivered by J.Sathya Narayana Prasad, J.)
The Writ Appeal No.2065 of 2021 is directed against the order passed
by the learned Single Judge in W.P.No.35951 of 2019 dated 07.02.2020 and
dismissing the same.
2. The facts of the case in a nutshell are as follows:
(i) The Appellant was serving in the Registration Department as
a District Registrar and her next stage of promotion was to the post of
Assistant Inspector General of Registration. While the Appellant was
working as a District Registrar a Charge Memo came to be issued against her
on 27.01.1995 under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline
& Appeal) Rules. The charges were subsequently dropped by the department
and the Petitioner was allowed to retire from service as District Registrar on
attaining the age of superannuation on 31.10.1997.
(ii) The case of the Appellant is that she was eligible for the post
of Assistant Inspector General of Registration, however, submitted a letter to
the 1st respondent relinquishing her right of promotion to the said post
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W.A.No.2065 of 2021
temporarily for three years. In view of the compulsion for the Appellant to
take care of her husband who was taking treatment at Chennai, the same was
accepted by the 1st respondent on 31.05.1994. However, the period of
relinquishment by the Appellant was wrongly computed and therefore, the
Appellant approached this Court by filing W.P.No.38420 of 2015 and the
final order was passed on 02.04.2019 by this Court. The relevant portion in
the said order is extracted below:
“Accordingly, I find that both
the impugned proceedings are liable to be
set aside and consequently, the matter needs
to be remitted back to the respondents to
reconsider the claim of the petitioner and
pass appropriate orders accordingly, by
taking note of the fact that the period of
relinquishment had expired on 23.06.1996.
Thus, this Writ Petition is allowed and the
impugned orders are set aside.
Consequently, the matter is remitted back to
the respondents to consider the claim of the
petitioner for notional promotion for the
post of Assistant Inspector General of
Registration for the year 1996-1997 and
pass appropriate orders. Such exercise
shall be done by the respondents within a
period of twelve weeks from the date of
receipt of a copy of this order. No costs.”
3. The learned senior counsel appearing on behalf of the Appellant
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W.A.No.2065 of 2021
contended that the impugned order passed by the Respondents completely
negates the findings given by this Court in the earlier order dated 02.04.2019
passed in W.P.No.38420 of 2015. He further contended that the Appellant
was entitled for consideration for notional promotion to the post of Assistant
Inspector General of Registration for the year 1996-1997 and the preparation
of the panel issued only on 27.01.1998, cannot be put against the Appellant,
more particularly, when the Appellant was entitled for consideration
immediately after the period of relinquishment in the year 1996-1997. The
relinquishing period was from 24.06.1993 to 23.06.1996 and the crucial date
is 1st of April of every year for the panel for promotion of Inspector General
of Registration. In the case of Appellant the crucial date is 01.04.1996 and
the relinquishing period got over on 23.06.1996. In that case the Appellant
should have been considered for promotion to the post of Inspector General
of Registration.
4. Learned senior counsel for the Appellant further contended that, the
Appellant got retired on 31.10.1997 and if her name was included in the
panel, she would have been promoted as Assistant Inspector General of
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W.A.No.2065 of 2021
Registration. The Appellant is entitled to be included in the panel for
promotion for the year 1996-1997 in the letter No.8882/H/2018-2 dated
16.10.2019 issued by the 1st respondent , the relevant paragraph is extracted
below:
“Based on the direction of the High Court of
Madras, your request has been once again re-
examined in detail with relevant rules, I am to
state that as per sub-section 1 of section 47 of the
Tamil Nadu Government Servants (Conditions of
Services) Act, 2016, any person may, in writing,
relinquish any right or privilege to which he may
be entitled under this Act or the special rules if, in
the opinion of the appointing authority, such
relinquishment is not opposed to public interest;
and nothing contained in this Act or the special
rules shall be deemed to require the recognition of
any right or privilege to the extent to which it has
been so relinquished. It is seen from your
application dated 24.06.1993 that you had
submitted that application expressing your
willingness to relinquish your right to promotion
as Assistant Inspector General of Registration for
a period of 3 years temporarily with a condition
that you should be allowed stay in the same office.
As your application for relinquishment was treated
as a conditional one and as it was not that was not
in accordance with rules, existing your application
was not accepted and you were requested to
submit a revised application to the Government for
considering your request afresh within the norms
prescribed in the relevant rules. In response to
this, you had submitted your application afresh on
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W.A.No.2065 of 2021
10.05.1994. Accepting this, orders have been
issued vide G.O.(Ms)No.159, CT&RE Department,
dated 31.05.1994. From the above, it may be seen
that your application for relinquishing your right
as Assistant Inspector General of Registration is
effective only from 10.05.1994 and not 24.06.1993
as contended by you. As the relinquishment period
fell on the date of crucial dates fro the period of
Assistant Inspector General of Registration for the
years 1996-1997 and 1997-1998 i.e., 01.04.1996
and 01.04.1997, your name was not considered in
the said panels. Subsequently you had retired
from service on superannuation 31.10.1997.”
5. The learned senior counsel relied on Rule 4 of the Tamil Nadu
State and Subordinate Services Rules. For better appreciation the same is
extracted hereunder:
4. Approved Candidates._ (a) All first
appointment to a service or class or category or
grade thereof, State or Subordinate, whether by
direct recruitment or by recruitment by transfer or
by promotion, shall be made by the appointing
authority from a list of approved candidates.
Such list shall be prepared in the manner as
specified in Schedule VII to these rules by the
appointing authority or any other authority
empowered in the Special Rules in that behalf and
shall be displayed in the Notice Board in the office
of the appointing authority. The list also be
communicated to all persons concerned by
Registered Post whose names are found in such
list as well as to persons senior to the junior most
included in the list whose names have not been
included in the list. Where the candidates in such
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W.A.No.2065 of 2021
list are arranged in their order of preference,
appointments to the service shall be made in such
order.”
6. The learned Additional Government Pleader appearing for the
Respondent contended that this Court on considering the entire facts and
circumstances of the case, had found that as per Rule 47(2) of the Tamilnadu
State and Subordinate Service Rules, what is insisted is only acceptance of
relinquishment and the same will have effect from the date on which the
application was made for relinquishment and in this case the date is
24.06.1993 and the period of relinquishment had expired on 23.06.1996 and
the matter was remitted back to the respondent to consider the claim made by
the Appellant for notional promotion to the post of Assistant Inspector
General of Registration for the year 1996-1997. The 1st respondent has
rejected the claim made by the Appellant on the ground that the panel for the
post of Assistant Inspector General of Registration was issued only on
27.01.1998. The crucial date for consideration for promotion to the post of
Assistant Inspector General of Registration was 01.04.1996 and the
Appellant should have at least become eligible as on the crucial date even to
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W.A.No.2065 of 2021
be considered for notional promotion.
7. The learned counsel for the Respondent further contended that in
the present case the period of relinquishment of the Appellant came to an end
only on 23.06.1996 and even if the Appellant had continued in the service she
could not have been considered for the promotion since, the relinquishment
date fell after the crucial date and therefore, the Appellant could have been
considered for promotion only in the next panel. Even though the Appellant
is entitled for notional promotion it is important that the Appellant should
have become qualified for consideration as on the crucial date. Admittedly,
as on the crucial date, relinquishment period of the Appellant had not come to
an end. Therefore, there is no question of considering the appellant's claim
for notional promotion.
8. Heard both sides.
9. It is a admitted fact that, the Appellant has given the
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W.A.No.2065 of 2021
relinquishment letter dated 24.06.1993 relinquishing her rights for promotion
to the post of Assistant Inspector General of Registration temporarily for
three years since she was ailing from heart trouble for the past few years and
could not travel some distance of miles and to work in other districts. The
relinquishing period is from the date of letter i.e., 24.06.1993 to 23.06.1996.
Every year, 1st of April is the crucial date for preparing the panel for
promotion to the post of Inspector General. In this case the relinquishing date
came to an end only on 23.06.1996 and the crucial date for panel is
01.04.1996, just two months before the relinquishing date i.e., 23.06.1996.
10. Even though, the Appellant was not considered for the panel
year 1996-1997, she could have been considered for the year 1997-1998, for
which the crucial date was 01.04.1997 and the Appellant had retired only on
31.10.1997, the date for the panel for the period 1997-1998 is 01.04.1997 to
31.03.1998. If the Appellant's name had been included in the panel for the
year 1997-1998 she would have been promoted with effect from 01.04.1997
and she would have been served for at least six months i.e., till her
superannuation on 31.10.1997. In the order passed by this Court in
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W.A.No.2065 of 2021
W.P.No.38420 of 2015 dated 20.11.2015 even though the matter was
remitted back to the respondents to consider the claim of the Appellant for
notional promotion for the post of Assistant Inspector General of Registration
for the year 1996-1997 and pass appropriate orders and such exercise shall be
done by the Respondents within a period of 12 weeks from the date of receipt
of a copy of this order. This order was not challenged by way of an appeal
by the respondents. Hence, the above order has attained finality in such
circumstances the order passed by the 1st respondent vide letter
No.8862/H/2018-2 dated 16.10.2019 is contrary to the order passed by this
court. The Respondents having failed to prefer an appeal against the above
order is bound to comply with the orders passed by this Court. The
Respondents now cannot take a stand that the period of relinquishment of the
Appellant came to an end only on 23.06.1996 and therefore, she cannot be
considered for promotion since relinquishment date fell only after the crucial
date i.e., 01.04.1996. The Appellant was also allowed to retire from service
on attaining the age of superannuation on 31.10.1997 vide G.O.(D)No.431
Commercial Taxes and Religious Endowments Department dated 31.10.1997.
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W.A.No.2065 of 2021
11. The ground taken by the 1st respondent that even though the
relinquishing petition dated 24.06.1993 was submitted to relinquish the post
of Assistant Inspector General of Registration temporarily and since there is
no provision to relinquish the post at her discretion on condition and that the
Appellant should submit corrected petition without condition and the same
was submitted only on 10.05.1994. As per the clarification issued in
G.O.Ms.No.173, Personnel and Administration Reforms (S) department
dated 15.03.1998 the relinquishment of the post at her discretion should be
taken into account for a period of three years from 10.05.1994 and the said
period is ended by 09.05.1997 and the name list for the post of Assistant
Inspector General of Registration for the year 1996-1997 has been issued in
G.O.(Ms).No.39, Commercial Taxes and Hindu Religious Endowment
Department dated 03.02.1997 stating that it is not possible to include her
name in the list and further that list of post of Assistant Inspector General of
Registration for the year 1997-1998 selected was published in G.O.(Ms.)
No.65, Commercial Tax and Hindu Religious Endowment dated 04.03.1998
and the Appellant had retired on 31.10.1997 on superannuation. Hence, it is
not possible to include the name in the list is not legally tenable.
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W.A.No.2065 of 2021
12. Though, the 1st respondent had not included the Appellant's
name in the panel for the period of 1996-1997 for the reason that the
relinquishment period was over only on 23.06.1996, but at least the
Appellant's name should have been considered for the subsequent panel for
the period 1997-1998 but that also was not considered by the respondents.
13. For the reasons stated above the order passed by the learned
Single Judge in W.P.No.35951 of 2019 dated 07.02.2020 and the same is
liable to be set aside. Accordingly, the same is set aside. In the result, the
Writ Appeal No.2065 of 2021 stands allowed. No costs.
(M.D.J.,) (J.S.N.P.J.,)
16.12.2021
Index : Yes/No
Internet : Yes/No
Speaking order (or) Non-Speaking order
(vm)
M.DURAISWAMY, J.
and
J.SATHYA NARAYANA PRASAD, J.
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W.A.No.2065 of 2021
vm
To
1. The Principal Secretary to Government,
State of Tamil Nadu
Commercial Tax (H-1) Department,
Fort St.George,
Chennai – 600 009.
2. The Inspector General of Registration,
Santhome High Road,
Chennai – 600 028.
Judgment in
W.A.No.2065 of 2021
16.12.2021
https://www.mhc.tn.gov.in/judis
