Madras High Court
T.Aathi Shiva vs The Additional Chief Secretary To ... on 30 September, 2021
W.P.(MD)No.6917 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.09.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.6917 of 2017
and
W.M.P.(MD)No.5464 of 2017
T.Aathi Shiva ... Petitioner
vs.
1.The Additional Chief Secretary to Government,
Department of Commercial Taxes and Registration,
Fort St.George, Chennai – 600 009.
2.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai – 600 005.
3.The Joint Commissioner of Commercial Taxes,
Madurai Division, Madurai – 625 020. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records of the first
respondent in G.O.(D)No.388, dated 31.10.2016 and quash the same as illegal
and unlawful and to direct the first respondent herein to declare the petitioner's
probation period completed on 26.04.2013 and further to direct the second and
third respondents to provide subsequent promotions by taking into account of the
1/9
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W.P.(MD)No.6917 of 2017
petitioner's service rendered in the cadre of Junior Assistant with effect from
25.04.2011 along with monetary benefits within a time frame, as may be
stipulated by this Court.
For Petitioner : Mr.J.Pooventhira Rajan
For Respondents : Mr.M.Linga Durai
Government Advocate
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus to quash the G.O.(D)No.388, dated 31.10.2016 and to direct the first
respondent to declare the petitioner's probation as completed with effect from
26.04.2013 and to provide promotions to the petitioner taking into account the
petitioner's service rendered in the cadre of Junior Assistant with effect from
25.04.2011 along with all monetary benefits.
2.Heard Mr.J.Pooventhira Rajan, learned Counsel appearing for the
petitioner and Mr.M.Linga Durai, learned Government Advocate appearing for
the respondents.
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W.P.(MD)No.6917 of 2017
3.The petitioner was appointed as Junior Assistant in the respondent
department under compassionate appointment and joined in service on
25.04.2011. As per Rules, the probation has to be declared on completion of two
years within a period of three years. Relying upon the Rules, it is stated that the
petitioner is required to complete departmental examination as well as the
foundational training at Civil Service Training Institute at Bhavani Sagar. The
petitioner's service was regularised in time. It is also admitted that the petitioner
has completed the department examination in time. However, it is admitted that
the petitioner was deputed to the foundational training at Civil Service Training
Institute at Bhavani Sagar only between 21.11.2015 and 02.01.2016. It is
admitted that the delay in deputing the petitioner to the foundational training was
due to administrative reasons. It is also admitted that the petitioner did
foundational training between 21.11.2015 and 02.01.2016 and passed all the
examinations except Mathematics, which he cleared on 21.05.2016.
4.The petitioner's probation was declared only with effect from 22.05.2016,
by order, dated 31.10.2016. Challenging the said order, dated 31.10.2016, by
which the petitioner's probation was declared with effect from 22.05.2016, the
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W.P.(MD)No.6917 of 2017
above Writ Petition is filed with further prayers which are consequential.
5.It is the case of the petitioner that deputing the petitioner for undergoing
training was delayed due to administrative reasons and that the petitioner is not at
fault for completing the training only on 2016. The learned Counsel for the
petitioner submitted that on completion of foundational course, the first
respondent should declare probation of petitioner on par with his juniors and that
the impugned order declaring petitioner's probation completed on 22.05.2016 is
therefore, discriminatory and violates Article 14 of Constitution of India.
6.The learned Counsel also relied upon a few judgments of this Court,
wherein, it is held that the declaration of probation should be with effect from
date of completion of department tests and the declaration of probation cannot be
taken from the date when the petitioner completed foundational training, if the
delay was on account of administrative reasons.
7.A learned Single Judge of this Court in W.P.(MD)No.25006 of 2019,
dated 16.02.2021, in the case of M.Balamurugan vs State of Tamil Nadu and
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W.P.(MD)No.6917 of 2017
others, considered similar issue with identical facts and held as follows:
“4.Admittedly, the respondents herein had not conducted any
training programme during the two years probation period of the
petitioner. The third respondent, in his counter affidavit also ratified that
due to large number of persons being deputed for training at the Civil
Service Training Institute, Bhavanisagar, they had belatedly deputed him
for the training in the month of December 2015 only. As such, the stand
taken by the petitioner that the delay in deputing the petitioner for the
training is not on the part of the petitioner and therefore it cannot be put
against him seems acceptable. It is also not stated in the counter affidavit
as to which regulation is an impediment for declaration of probation to the
probationers, who had not cleared the training in the first attempt. Apart
from the bald statement that the failure in the first attempt is an slackness
on the probationer, no reliance has been placed on any rule or regulation
in this regard. When the petitioner herein had raised a ground with regard
to discrimination, to the effect that, when similarly placed probationers
have been declared to have cleared probation from the date of completion
of the two years, the respondents have not countered the same with any
justifiable or legal stand. The only attempted justification is that the
petitioner cannot claim parity with the other employees, because he had
failed in his first attempt. As observed earlier, failure in the first attempt is
not an embargo or an impediment for consideration for the purpose of
declaring the probation. In these circumstances, the impugned order
declaring the petitioner's probation with effect from 22.05.2016 ie., the
date of completion of the Bhavanisagar Training, is not only illegal but is
also discriminatory and arbitrary. As such, the order itself cannot be
sustained and consequently, the petitioner would be entitled to have the
probation declared with effect from 05.01.2011, which is the date on which
he had completed his two years probation period from his initial
appointment.”
8.In another judgment in W.P.(MD)No.15585 of 2018, dated 19.03.2021, in
the case of T.Gunaseela Subramani and two others vs Principal Secretary to
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W.P.(MD)No.6917 of 2017
the Government and others, this Court has held as follows:
“5. Admittedly, the mandatory foundational training at the Civil
Service Training Institute at Bhavani Sagar was belatedly held and the
petitioners were not deputed for the training, during their period of
probation. Such a statement is ratified in the G.O.(D)No.164, Commercial
Taxes and Administration Department dated 30.04.2015, as well as in the
counter affidavit filed before this Court. The provisions of Rule 32 would
apply to such probationers, who have been nominated to undergo their
training during their period of probation, which is for a total period of two
years on duty, within a continuous period of three years. When the
petitioners were nominated for the training after more than four years,
they cannot be expected to complete such training, as required under Rule
32(A) and therefore, the provision itself may not be applicable to these
petitioners, particularly, when the lapse was on the part of the
respondents.
6. Furthermore, there is no Rule to the effect that the training should not
be completed in the second or subsequent attempts during the probation
period. In other words, there is no bar for the probationers to undertake
the tests in any number of attempts, within the probation period. This
observation is made in the light of the counter averments of the
respondents that these petitioners had completed the training in their
second attempt only. Even otherwise, since the petitioners were deprived of
an opportunity to participate in the training programme within their
probation period, there may not be any justification on the part of the
respondents to refer to the failure in completing the training at the first
attempt.”
9.In this case, it is submitted that the petitioner was deputed for undergoing
foundational training only between 21.11.2015 and 02.01.2016. It is also
admitted that the petitioner did not pass in one out of five subjects and he passed
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W.P.(MD)No.6917 of 2017
in Mathematics subject only on 21.05.2016 in his second attempt. The question
therefore, is whether the petitioner's probation can be declared only after the
completion of a written test conducted during foundational training. This Court
has already held that the petitioner's probation cannot be denied with effect from
the date of completion of department tests, when the deputation was delayed due
to administrative reasons.
10.The learned Government Advocate has not pointed out any other
judgments contrary to the view expressed by this Court in similar circumstances.
The first respondent declared the probation belatedly and placed the petitioner
below his juniors, who are appointed subsequent to the petitioner. Merely
because, there was delay in deputing the petitioner to undergo foundational
training due to administrative reasons, the petitioner cannot be discriminated and
the impugned order is, therefore, discriminatory and in violation of Article 14 of
Constitution of India.
11.Since it is admitted that the petitioner has passed the department exam
within time, his probation should be declared as completed on 26.04.2013, on
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W.P.(MD)No.6917 of 2017
completion of two years. Hence, the Writ Petition is allowed and impugned order
vide G.O.(D)No.388, dated 31.10.2016, is quashed and the first respondent is
directed to declare the petitioner's probation as completed on 26.04.2013. The
second and third respondents are directed to provide subsequent promotion to the
petitioner by taking into account of the petitioner's service in the cadre of Junior
Assistant with effect from 25.04.2011 and give all monetary benefits within a
period of twelve weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petition is closed.
30.09.2021
Index : Yes / No
Internet : Yes
cmr
To
1.The Additional Chief Secretary to Government,
Department of Commercial Taxes and Registration,
Fort St.George, Chennai – 600 009.
2.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai – 600 005.
3.The Joint Commissioner of Commercial Taxes,
Madurai Division, Madurai – 625 020.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.6917 of 2017
S.S.SUNDAR, J.
cmr
Order made in
W.P.(MD)No.6917 of 2017
30.09.2021
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