Madras High Court
P.Thavam vs The State Of Tamilnadu on 27 April, 2022
W.A.(MD)Nos.497 to 500 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 13.06.2022
PRONOUNCED ON : 05.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)Nos.497 to 500 of 2022
and
C.M.P.(MD)Nos.4551, 4553,
4555 and 4557 of 2022
W.A(MD)No.497 of 2022:
1.P.Thavam
2.S.Ayyasamy
3.M.Muthurasu
4.P.Marisamy
5.M.Kottairajan
6.K.Suresh
7.N.Lakshmanan
8.V.Kasirajan
9.K.Kannan ... Appellants
Vs.
1.The State of Tamilnadu,
represented by its Secretary,
Highways Department, Chennai.
2.The Director General,
Highways Department,
Guindy, Chennai.
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W.A.(MD)Nos.497 to 500 of 2022
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Virudhunagar Divison,
Virudhunagar.
5.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Thoothukudi Division,
Thoothukudi.
6.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
(M Department), Chennai. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.8232 of 2019, dated
27.04.2022.
W.A(MD)No.498 of 2022:
S.Baskaran ... Appellant
Vs.
1.The State of Tamilnadu,
represented by its Secretary,
Highways Department, Chennai.
2.The Director General,
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W.A.(MD)Nos.497 to 500 of 2022
Highways Department,
Guindy, Chennai.
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
Chennai. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.11318 of 2019, dated
27.04.2022.
W.A(MD)No.499 of 2022:
P.M.Rajasingh ... Appellant
Vs.
1.The State of Tamilnadu,
represented by its Secretary,
Highways Department, Chennai.
2.The Director General,
Highways Department,
Guindy, Chennai.
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
(M Department), Chennai. ... Respondents
3/31
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W.A.(MD)Nos.497 to 500 of 2022
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.10338 of 2019, dated
27.04.2022.
W.A(MD)No.500 of 2022:
R.Alaguraj ... Appellant
Vs.
1.The State of Tamilnadu,
represented by its Secretary,
Highways Department, Chennai.
2.The Director General,
Highways Department,
Guindy, Chennai.
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
Chennai. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.11319 of 2019, dated
27.04.2022.
In all cases:
For Appellants :Mr.G.Prabhu Rajadurai
For Respondents :Mr.N.Satheesh Kumar
Additional Government Pleader
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W.A.(MD)Nos.497 to 500 of 2022
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
The Writ Appeal in W.A.(MD)No.497 of 2022, is filed against
the order passed in W.P.(MD)No.8232 of 2019, dated 27.04.2022,
filed by P.Thavam and eight others. The prayer in the Writ Petition
is to issue a Writ of Mandamus forbearing the respondents from de-
promoting the petitioners from the post of Road Inspector Grade II
(Skill Assistant Grade II) to that of Gang Mazdoor on the ground
that the pre-foundation course is not equivalent to SSLC.
2.The brief facts of the case as stated in W.P.(MD)No.8232 of
2019 are that the writ petitioners are presently working as Road
Inspectors Grade II (Skill Assistants Grade II) in the Highways
Department. All the petitioners were appointed as Gang Mazdoor
on 10.11.1997. The qualification to be appointed in the said post is
5th standard pass and the writ petitioners had passed 5th standard.
The next promotion for the post of Gang Mazdoor is Road Inspector
Grade II (presently known as Skill Assistant Grade II). The Service
Rules provides SSLC as a qualification to be appointed to the post
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of Road Inspector Grade II along with the experience as Gang
Mazdoor for a period of five years. 25% of the post of Road
Inspector Grade II would be filled up by promotion from Gang
Mazdoor and the remaining 75% would be filled up by direct
recruitment.
3. The contention of the petitioners is that the Madurai
Kamaraj University conducted a Pre-Foundation course for those
who had not passed SSLC. The said course is to undergone the
course for a period of one year followed by exams on five subjects.
Those candidates who had not completed 8th standard had to
undergo an introductory course for a period of one year. The
Government issued G.O.Ms.No.528, P and AR Department, dated
18.05.1985, wherein, it is directed that pre-foundation course of
Madurai Kamaraj University is recognized as equivalent to SSLC of
Tamil Nadu Government for the purpose of entry into public service
in the State.
4. Based on the said G.O., the petitioners joined the pre-
foundation course to acquire the qualification, so that the
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petitioners would be promoted as Road Inspector Grade II. The
Highways Department had issued a G.O. in G.O.Ms.No.193 (HK3),
dated 01.0.8.2008, prescribed the qualification as “must have
passed 10th standard from a recognized School”. Again, the
Government issued another G.O. in G.O.Ms.No.16, (HK3), dated
21.01.2009, wherein, it was amended “must have passed 10 th
standard examination from a recognized School or its equivalent
examination duly recognized by the Government of Tamil Nadu”.
Prior to this amendment the qualification prescribed is only
pass in 5th standard.
5.The contention of the petitioners is that this amendment had
cleared the hurdle in the petitioner's way to be promoted as Road
Inspectors Grade II. The petitioners 1 to 3, and 5 completed pre-
foundation course on 05.09.2008. The petitioners 4 and 6
completed the same on 27.04.2010. The petitioners 8 and 9
completed the same on 29.10.2010. Hence, all the petitioners are
qualified to be promoted as Road Inspector Grade II. Considering
the said qualification, the petitioners were promoted on various
dates and the same is given in the following tabulation:
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W.A.(MD)Nos.497 to 500 of 2022
Sl. Case Name of the Year of Date and Date of Date of
Number Appellants joining year of promotion reversion
No.
pre- completion
foundation course
Course in
MK
University
1. W.A. 1. P.Thavam July, 2007 05.09.2008 11.08.2014 02.06.2022
(MD)No.
2. S.Ayyasamy July, 2007 05.09.2008 25.09.2014 02.06.2022
497/2022
3. July, 2007 05.09.2008 25.09.2014 02.06.2022
4. P.Marisamy December, 27.04.2010 06.08.2014 02.06.2022
5. July, 2007 05.09.2008 25.09.2014 02.06.2022
6.K.Suresh January, 27.04.2010 21.11.2013 02.06.2022
7.N.Lakshmana July, 2008 26.08.2009 16.09.2013 02.06.2022
8.V.Kasirajan July, 2009 29.10.2010 16.09.2013 02.06.2022
9.K.Kannan March, 29.10.2010 16.09.2013 02.06.2022
2. W.A. Baskaran November, 15.03.2000 04.10.2008 02.06.2022
(MD)No. 1999
498/2022
3. W.A. P.M.Rajasingh January, 05.12.2011 11.08.2014 02.06.2022
(MD)No. 2009
499/2022
4. W.A. R.Alaguraj July, 2001 08.10.2002 17.04.2009 02.06.2022
(MD)No.
500/2022
6.After promotion, the petitioners are presently working as
Road Inspector Grade II. Thereafter, the 6th respondent while
considering the validity of degrees obtained through open
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university without passing SSLC or HSC, considered the pre-
foundation course conducted by the Universities and issued a
clarification that pre-foundation course is not equivalent to SSLC,
vide G.O.Ms.No.144, (P and AR) Department, dated 20.11.2017. The
contention of the petitioners is that the respondent department has
misread the said G.O.Ms.No.144, (P and AR) Department, dated
20.11.2017 and de-promoted all the petitioners from the cadre of
Road Inspector Grade II to the original post of Gang Mazdoor. An
employee should atleast have an opportunity of one promotion in
their career as held by the Honourable Supreme Court and the
respondents are bound to create a promotional post. All the
petitioners are above the age of 50 and were granted promotion.
The petitioners had joined the pre-foundation course with a
legitimate expectation that they would be allowed to continue as
Road Inspector Grade II. The petitioners have not misrepresented
and secured promotion. Therefore, the cancellation of the
promotion is illegal. The rights accrued in service matters cannot
be taken away by the subsequent legislation, unless it is specifically
treated as operated retrospectively.
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7.The petitioners are working in the promotional post for more
than five years. In an earlier Writ Petition in W.P.(MD)No.8620 of
2008, this Court, vide order, dated 22.12.2008, directed the
respondents to consider the promotion of Road Inspector based on
G.O.Ms.No.528, dated 18.05.1985, by declaring the pre-foundation
as equivalent to SSLC. The Government has issued G.O.Ms.No.107,
dated 18.08.2009 and even after the issuance of the said G.O., the
Government had not disturbed any of the employees in the Tamil
Nadu Government service, who were appointed already with a
qualification of open university degrees. Still, a large number of
employees are working all over Tamil Nadu with the open university
degree. The sudden de-promotion would lead to humiliation where
the petitioners were forced to work under their juniors. The morale
of the petitioners is completely affected and even their family
members would suffer. The respondents have not issue any notice
or provided any right of hearing before de-promoting the
petitioners. Hence, aggrieved over the de-promotion order, the
petitioners have preferred the Writ Petition.
8.The fourth respondent had filed a counter affidavit in the
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Writ Petition stating that the Writ Petition is not having any legs to
stand before this Court. The petitioners were appointed as Gang
Mazdoor with a basic education qualification of the 5th standard
pass and there is no promotion for the post of Road Inspector Grade
II before qualifying the 10th standard. The writ petitioners herein
had not passed 10th standard at the time of their appointment. In
accordance to G.O.Ms.No.34, Highways (HKS) Department, dated
29.01.2008, 75% of vacancies in the post of Road Inspector Grade II
shall be filled up direct recruitment and the remaining 25% shall be
filled up by recruitment by transfer from the post of Gang Mazdoor,
who have completed five years of service and possess a pass in the
education qualification of SSLC or HSC from the recognized School.
In the Letter No.8705/RND-F/2015, dated 29.01.2016 and Letter
No.5140/RND-F/2017, dated 01.11.2017, which are referred in
G.O.Ms.No.144, Personnel and Administrative Reforms Department,
dated 20.11.2017. The Equivalence Committee has resolved that
the pre-foundation Course and the foundation / Bridge courses
cannot be recognized as equivalent to SSLC and HSC. The
Government has also confirmed the same in the said G.O. The writ
petitioners had not completed 10th standard through the recognized
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School. It is stated that the pre-foundation course conducted in the
Madurai Kamaraj University is not equivalent to 10th standard.
Similarly placed persons had filed a Writ Petition in W.P.(MD)Nos.
17965 and 12590 to 12592 of 2018 and all the writ petitions stands
disposed with a direction to the Government to take a decision
within a period of three months. It is also stated in the counter
affidavit that the Government after careful consideration, has
issued a clarification in Letter No.1704/HR.1/2019-2, dated
08.04.2019, to the Director of Highways Department, stating that
passing pre-foundation course enunciated the G.O.Ms.No.107,
Personnel and Administrative Reforms Department, dated
18.08.2009. Petitioners passed pre-foundation and foundation
course and they are not equivalent to SSLC and HSC. It is also
stated in the letter that according to Personnel and Administrative
Department Letter No.33448/M/2010-4, dated 03.12.2010 and
G.O.Ms.No.144, Personnel and Administrative Department, dated
20.11.2017, passing pre-foundation course cannot be considered for
the purpose of employment and promotion in public service. The
Honourable Supreme Court in the decision in G.S.Lamba and
others Vs. Union of India reported in 1983 (2) SCC 604 has
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held that there shall be a regular streams of study and the pre-
foundation course which is stated as 10th equivalent cannot be at
any stretch of imagination is taken as regular streams and the
petitioners cannot be entitle to any relief and prayed to dismiss the
writ petition.
9.The fifth respondent has also filed a counter affidavit and it
is more or less similar to the counter filed by the fourth respondent.
10.The learned Single Judge has dismissed the Writ Petition,
vide order, dated 27.04.2022. The learned Single Judge has relied
on the judgment of the Division Bench of this Court, dated
02.09.2021, passed in W.A.No.1863 of 2021, wherein it had referred
the judgment rendered in the case of Thirunavukkarasau Vs. The
State of Tamil Nadu reported in 2012 (5) CTC 129. In the said
judgment, it has been held that it is clear that the G.O.Ms.No.107,
Personnel and Administrative Reforms Department, dated
18.08.2009, was brought into effect on 18.08.2009 and the same is
in accordance with the provision under Section 25 of Tamil Nadu
Government Servants (Conditions of Services) Act, 2016. The
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learned Single Judge further referred to the Honourable Supreme
Court judgment rendered in Annamalai University, represented
by the Registrar and another Vs. Secretary to Government,
Information and Tourism Department, reported in (2009) 4
SCC 590, while dealing with the validity of open university
degrees, settled the principle by stating that the degrees granted by
undergoing regular pattern alone are considered as valid degrees.
The open university degrees are held invalid. The pattern of
education, i.e., 10+2+3+2 are prescribed under University Grants
Commission and that alone can be treated as valid degree. Any
degree course after passing the pre-foundation course cannot be
considered as equivalent. In the said Annamalai University case, the
pre-foundation course was not recognized at all, especially, after the
issuance of G.O.Ms.No.107, Personnel and Administrative Reforms
Department, dated 18.08.2009. The learned Single Judge has also
held that if the promotions are granted prior to the G.O.Ms.No.107,
Personnel and Administrative Reforms Department, dated
18.08.2009, based on the Government orders granting equivalency,
such promotions alone are held to be valid. However, subsequent
promotions granted after the judgment of the Honourable Supreme
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W.A.(MD)Nos.497 to 500 of 2022
Court which was implemented by G.O.Ms.No.107, Personnel and
Administrative Reforms Department, dated 18.08.2009, cannot be
considered as valid promotion and hence, the promotions granted to
the petitioners are illegal. Therefore, the impugned order
cancelling the promotion is valid and the learned Single Judge has
dismissed the Writ Petition. Aggrieved over the same, the
petitioners have preferred this Writ Appeal.
11. Heard Mr.G.Prabhu Rajadurai, the learned Counsel
appearing for the appellant and Mr.N.Satheesh Kumar the learned
Additional Government Pleader appearing for the respondents and
perused the records.
12. From the tabulation stated supra, the appellant namely,
Baskaran who had filed W.P.(MD)No.11318 of 2019 has preferred a
Writ Appeal W.A.(MD)No.498 of 2022. The appellant Baskaran had
competed the course on 15.03.2000 and was promoted on
04.10.2008. Since the said appellant had completed the course
prior to the G.O.Ms.No.107, Personnel and Administrative Reforms
Department, dated 18.08.2009, the said promotion is valid and
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therefore, the W.A.(MD)No.498 of 2022 is allowed. The order
passed in W.P.(MD)No.11318 of 2019 is set aside and consequently,
the impugned order challenged in the Writ Petition is set aside. The
respondents are directed to confer all consequential benefits to the
said appellant.
13.The appellant in W.A.(MD)No.500 of 2022, namely,
R.Alaguraj was had completed the course on 08.10.2002 and
granted promotion on 17.04.2009, which is prior to 18.08.2009.
Hence, the said promotion is valid and therefore, the W.A.(MD)No.
500 of 2022 is allowed. The order passed in W.P.(MD)No.11319 of
2019 is set aside and consequently, the impugned order challenged
in the Writ Petition is set aside. The respondents are directed to
confer all consequential benefits to the said appellant.
14. The case of the other appellants namely, P.Thavam and
others who have filed W.A.(MD)No.497 of 2022 and P.M.Rajasingh
who has filed W.A.(MD)No.499 of 2022 are considered here under:
15. The Learned Single Judge had held that the aforesaid writ
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petitioners had completed their pre-foundation course after the
cutoff date i.e. 18.08.2009 and hence they are not qualified to be
considered for promotion. Hence the promotion conferred on these
writ petitioners are illegal and hence quashed the promotion.
Aggrieved over the same the present writ appeals are filed raising
various grounds.
16. Based on the order of the Learned Single Judge, the
respondents have reverted these writ petitioners as Gang Mazdoors
on 20.06.2022 and hence the appellants prayed to allow the writ
appeal.
17. It is seen from the records that all the appellants have
joined the service in the year 1997. At the time of joining the
service, the education qualification to be appointed as Gang
Mazdoor is 5th standard pass. The qualification for promotion to the
next post is to serve as Gang Mazdoor for five years. Since for the
promotion, five years service as Gang Mazdoor is prescribed and
the petitioners have put in service for more than five years, hence
the petitioners were expecting their promotion from the year 2002
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W.A.(MD)Nos.497 to 500 of 2022
onwards. While they were expecting their promotion from 2002
onwards, the respondents have issued an amendment in G.O.Ms.No.
193, Highways and Minor Ports (HK3) Department, dated
01.08.2008, wherein, the qualification has been prescribed that the
candidates should have passed 10th standard from a recognized
School. At this juncture, the petitioners could not join the regular
stream of 10th standard and the said amendment was affecting
them. Thereafter, several representations were submitted before
the Government and the Government again issued an amendment
through G.O.Ms.No.16, Highways and Minor Ports (HK3)
Department, dated 21.01.2008, wherein, it has been amended that
the 10th standard from a recognized School or its equivalent
examination duly recognized by the Government of Tamil Nadu was
prescribed as a qualification. Thereafter, several persons, in order
to get promotion, have joined the pre-foundation course. Since the
pre-foundation course was considered as equivalent as per
G.O.Ms.No.528, P and AR Department, dated 18.05.1985, the
appellants with the legitimate expectation that they will get
promotion, if they qualify from the pre-foundation course, had
joined the pre-foundation course during the year 2007, 2008, 2009
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and 2010 respectively and they had completed the pre-foundation
course during the year 2008, 2009, 2010 and 2011 respectively.
18. In the meanwhile the issue of “open university degrees”
was considered by the Hon’ble High Court and while considering
the open university degrees, it was held that the pre-foundation
course cannot be considered as equivalent to 10th standard vide
judgments rendered in Annamalai University case in the year 2009.
However, prior to 2009, the Government has recognized the pre-
foundation course as equivalent to 10th standard, vide G.O.Ms.No.
528, P and AR Department, dated 18.05.1985. After the Annamalai
University case, the Government constituted Equivalence
Committee and the Committee has submitted a report that pre-
foundation course is not equivalent to 10th standard. Thereafter the
government had issued G.O.Ms.No.107, Personnel and
Administrative Reforms Department, dated 18.08.2009, wherein it
has been stated that the Equivalency Committee report stating pre-
foundation course is not equivalent to 10th standard is accepted.
Hence it was held that pre-foundation course is not valid after
issuance of G.O.Ms.No.107 dated 18.08.2009. Thereby, the cutoff
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date was fixed as 18.08.2009 and all the pre-foundation courses
passed prior to 18.08.2009 were recognized. But, subsequent
candidates were not recognized. Based on this, the learned Single
Judge has held that since the petitioners have passed the pre-
foundation course after the cutoff date, i.e., 18.08.2009, the writ
petitioners are not eligible to be considered for promotion and the
promotion is illegal.
19. Now the contention raised before this Court is that the
appellants with a legitimate expectation that they will be
considered for promotion, if they had completed the pre-foundation
course, had joined the pre-foundation course in the year
2007/2008/2009. If the date of joining the pre-foundation course is
taken into consideration, all the candidates have joined the pre-
foundation course prior to 18.08.2009 and there was a legitimate
expectation among the candidates that if they have taken the pre-
foundation course, they would be considered for promotion. When
the appellants had joined the course, there was no prohibition or
there was no declaration that pre-foundation course was invalid.
Therefore, this Court is of the considered opinion that on the
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ground of legitimate expectation, the appellants are entitled to be
considered for promotion.
20. The next contention putforth by the appellants is that the
G.O. Ms. No. 107, Personnel and Administrative Reforms
Department, dated 18.08.2009, states that the Equivalence
Committee has submitted the report and the report of the
Equivalence Committee was accepted and the Government has
passed the said G.O. stating that the report has been accepted. But
the government has declared that the pre-foundation course is not
equivalent only in the subsequent G.O. passed in G.O.Ms.No.144,
Personnel and Administrative Reforms (M) Department, dated
20.11.2017. The G.O. Ms. No. 107, Personnel and Administrative
Reforms Department, dated 18.08.2009, is extracted hereunder:
“NkNy xd;wpy; fhZk; murhizapy;> gy;fiyf;fof khdpaf;
FOthy; mq;fPfhpf;fg;gl;l jkpo;ehl;bYs;s gy;fiyf;fofq;fshy;
jpwe;j ntspg; gy;fiyf;fof Kiw %yk; toq;fg;gLk; gl;lag; gbg;G>
Kiwahf (Regular Stream) toq;fg;gLk; gl;lag; gbg;G gl;lg;gbg;G
kw;Wk; Kjepiyg; gl;lg;gbg;G Mfpatw;wpw;Fr; rkkhff; fUjp
nghJg;gzpfspy; Ntiytha;g;gp;w;F mq;fPfhuk; mspj;J
Mizaplg;gl;lJ.
2. gp.v];.vd;.vy;. EpWtd jkpehL tl;l jiyikg; nghJ
Nkyhsh; NkNy ,uz;by; fhZk; fbjj;jpy;> gs;sp Nky;epiyf;
fy;tpapy; Njh;r;rp> Fiwe;j gl;r fy;tpj; jFjpahf eph;zapf;fg;gl;l xU
gzpaplj;jpw;F> gs;sp Nky; epiyf; fy;tpj;; Njh;tpy; (+2)
Njh;tilahky;> jpwe;jntspg; gy;fiyf;fofq;fspd; topahf ,sk;
mwptpay;> ,sq;fiyg; gl;lq;fs; (B.Sc., B.A.,) ngw;wth;fis> gs;sp
Nky;epiyf; fy;tpj; Njh;tpy; Njh;r;rp ngw;wth;fs; vdf; fUjp muRj;
Jiwfspy; gjtp cah;TfSf;Fj; jFjp ngw;wth;fshff; fUjyhkh vd
tpsf;fk; Nfhhpape;jhh;.
3.Nkw;fz; fUj;JUkPJ ,izf;fy;tp eph;za ghprPypg;Gf; Fotpd;
ghpe;Jiuiag; ngw;W mDg;GkhW jkpo;ehL muRg; gzpahsh;
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W.A.(MD)Nos.497 to 500 of 2022
Njh;thizaf;FOtpd; nrayh; Nfl;Lf; nfhs;sg;gl;lhh;. ,izf;
fy;tpj;jFjp eph;zAf; FO> gs;sp Nky;epiyf; fy;tpj; Njh;tp;y; Njh;r;rp
ngwhky;> jpwe;j ntspg;gy;fiyf;fofq;fspy; ,sk; mwptpay;
kw;Wk; ,sq;fiyg; (B.Sc., B.A.,) gl;lk; ngw;wth;fis> khepy murpd;
gzpfspy; gzp epakdj;jpw;Nfh my;yJ gjtp cah;TfSf;Nfh
fUj ,wyhJ vdg; ghpe;Jiuj;jJ. ,f;fUj;JUtpid ,izf;fy;tp
eph;zaf; FOtpd; ghpe;Jiuf;fhf kPPz;Lk; mDg;gpa NghJk;> Vw;fdNt
vL;j;j jPh;khdj;ijNa kPz;Lk; typAWj;jpaJ.
4. ,g;ghpe;Jiuapid muR ftdkhfg; ghprPypj;J> ,izf;fy;tp
eph;za ghprPypg;G FOtpd; ghpe;Jiuapid Vw;Wf;nfhs;s KbntLj;J
mjw;fzq;f> gs;sp ,Wjpj;Njh;T (gj;jhk; tFg;G) kw;Wk; gs;sp
Nky;epiyf; fy;tpj; Njh;T (+2) Mfpaitfspy; Njh;r;rp ngw;wgpd;>
jpwe;jntspg; gy;fiyf;fofq;fspd; topahfg; ngwg;gLk; gl;lak; /
gl;lk; / KJfiyg; gl;lq;fis kl;Lk; nghJg;gzpfspy; epakdk; /
gjtp cah;T ngw mq;ff P hpj;J MizapLfpwJ.”
21. The G.O.Ms.No.144, Personnel and Administrative Reforms
(M) Department, dated 20.11.2017, is extracted hereunder:
“ORDER:
In the Government Orders first and second read above, orders have been Issued that
the Pre-foundation Course and the two years Foundation Course of the Madurai
Kamaraj University - Open University be recognized as equivalent to 10 th standard
SSLC and Higher Secondary Course (+2) of the Tamil Nadu Government
respectively, for the purpose of entry into Public Services in this State.
2. In the Government orders third and fourth read above, the Two Years
Foundation Course and One Year Foundation Course conducted by the Annamalai
University have been considered as equivalent to +2 and 11th, SSLC respectively for
the purpose of entry into Public Services in this State.
3. In the Government orders fifth and sixth read above, orders have been
issued that the degree obtained after passing SSLC and +2 alone will be recognized
for the purpose of employment promotion in Public Services and that those who
possess a Post Graduate Degree through Open University System without obtaining
a basic degree cannot be considered as possessing a Post Graduate Degree for
appointment to Public Services.
4. Based on the orders issued in the Government order fifth read above the
recognition of the Pre-foundation and the two year Foundation Courses awarded by
various Open Universities were clarified in the letter seventh read above to the effect
that-
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"A degree awarded by the Open Universities after passing Pre-foundation
Course and two year Foundation Course through Open University cannot be
recognized as degree as per University Grants Commission norms for the purpose of
employment/promotion in Public Services, since such Pre-foundation Course and
two year Foundation Course are not contemplated in the University Grants
Commission Regulations.
Therefore, those who obtained a degree under Open University System after
passing the Pre-foundation Course and two year Foundation Course without passing
10 standard and +2 examination do not satisfy the conditions laid in G.O.(Ms).No.
107, Personnel and Administrative Reforms (M) Department, dated 18.08.2009
which is in consonance with the orders of Supreme Court of India".
The above clarification was followed from the date of issue of orders in the
Government Order fifth read above.
5. In the meantime, the Equivalence Committee in its recommendations in
the letter eighth and ninth read above has also resolved that the Pre-foundation
Course and the Foundation / Bridge Courses awarded by various Universities
cannot be recognized as equivalent to SSLC and Higher Secondary Course (+2). The
recommendations of the Equivalence Committee are in consonance with the
clarification issued in the letter seventh read above, hence, the Pre-foundation
Course and the Foundation / Bridge Courses awarded by various Universities
cannot be recognized as equivalent to SSLC and Higher Secondary Course (+2)
6. As the recommendations of the Equivalence Committee confirms the
clarification that the Pre-foundation Course and Foundation Course offered by
various Universities in the State are not equivalent to SSLC and Higher Secondary
Course (+2) respectively. Government emphasize to follow the clarification issued in
the Government letter seventh read above scrupulously.”
22. The contention of the appellants is that the Government
after considering all the issues have subsequently issued the
G.O.Ms.No.144, Personnel and Administrative Reforms (M)
Department, dated 20.11.2017, where it has been categorically held
that pre-foundation course awarded by various universities cannot
be recognized as equivalent to SSLC or HSC. The plea of the
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appellants is that the cutoff date ought to be fixed from the date of
issuance of G.O.Ms.No.144, Personnel and Administrative Reforms
(M) Department, dated 20.11.2017 and the cutoff date should be
20.11.2017 and not the cutoff date of G.O.Ms.No.107, Personnel and
Administrative Reforms Department, dated 18.08.2009, i.e.,
18.08.2009. Since in the earlier G.O., the Government has simply
accepted the recommendations of the Equivalence Committee and
whereas, in G.O.Ms.No.144, Personnel and Administrative Reforms
(M) Department, dated 20.11.2017, alone the Government has
categorically clarified the pre-foundation course cannot be
recognized as equivalent to SSLC or HSC.
23. This contention of the appellants was refuted by the
respondents and the respondents relied on the judgment rendered
in the case of Mohamed Hasan Refayee Vs. TNPSC and
another in W.A.No.213 of 2018, dated 19.07.2019, wherein, the
cutoff date has been prescribed as the date of issuance of
G.O.Ms.No.107, Personnel and Administrative Reforms Department,
dated 18.08.2009. Therefore, the respondents submitted that the
cutoff date has already been considered by the Division Bench and
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that ought to be taken as the cutoff date and not the date of
G.O.Ms.No.144, Personnel and Administrative Reforms (M)
Department, dated 20.11.2017, i.e., 20.11.2017. This would
seriously affect not only the Highways Department but all the
Departments would be affected. This also would affect the policy
decision taken by the Government and therefore, the respondents
contended that the claim of the appellants cannot be considered.
24. This Court is of the considered opinion that the
government had recognized the pre-foundation course vide
G.O.Ms.No.528, P and AR Department, dated 18.05.1985 and the
said G.O. was in existence from 1985 onwards, subsequently there
was a challenge to the open university degree and the High Court
has held open university degree is not valid and pre-foundation
course as not valid. When it was considered valid for the past
twenty four years, then it was declared as invalid, the persons who
are affected from this shift / change of qualification ought to be
protected. As rightly pointed out by the appellants, the Government
has taken eight long years after issuance of G.O.Ms.No.107,
Personnel and Administrative Reforms Department, dated
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18.08.2009, to issue G.O.Ms.No.144, Personnel and Administrative
Reforms (M) Department, dated 20.11.2017. It is only in G.O.Ms.No.
144, Personnel and Administrative Reforms (M) Department, dated
20.11.2017 the government has declared that the pre foundation
course is not recognized equivalent to the pre-foundation course.
The G.O.Ms. No. 107, Personnel and Administrative Reforms
Department, dated 18.08.2009, has only accepted the
recommendations of the Equivalence Committee. As rightly pointed
out by the learned Counsel appearing for the appellants, the
government has passed G.O.Ms.No.144, Personnel and
Administrative Reforms (M) Department, dated 20.11.2017 wherein
it has been categorically held that the pre-foundation course as
invalid. If it is so, then the date of issuance of the said G.O. Ms. No.
144 ought to be held as the cutoff date. Moreover, the pre-
foundation course was closed down in the year 2012. In short the
pre-foundation course was recognized in the year 1985, then in the
year 2009 it was held by High Court that pre-foundation course is
not equivalent, then equivalence committee has reported it is not
equivalent, the government accepted the report in 2009 and finally
it was declared in the year 2017. Hence, the mischief of invalidity
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has been eradicated in phased manner. Therefore, this Court is of
the considered opinion that the cutoff date, is the date of issuance
of G.O.Ms.No.144, Personnel and Administrative Reforms (M)
Department, dated 20.11.2017 i.e. 20.11.2017.
25. The appellants relied on the Honourable Supreme Court
judgments wherein it has been held that the employee is entitled to
atleast one promotion in the entire career and hence the appellants
are entitled to get an opportunity of one promotion in their entire
career. The appellants submitted that the respondents conferred the
promotion on the appellants based on their pre-foundation course
qualification and hence, based on the equity, the appellants are
entitled to the said promotion. It is also submitted that all the
appellants are above the age of 50 and at this stage, if they are de-
promoted that would be a humiliation and they will be forced to
work under their juniors which would affect their status in the
family and in the Society. This Court is of the considered opinion
that the appellants were conferred promotion in the year 2013 and
2014 and the appellants have worked for more than five years in
the promoted post. At this stage, the appellants cannot be de-
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promoted and based on the equity, the appellants ought to be
allowed to continue in the promoted post. Therefore this Court is of
the considered opinion that based on equity the appellants are
entitled to relief.
26. Since all the appellants had completed the pre-foundation
course prior to 20.11.2017, this Court is of the considered opinion
that the appellants are entitled to promotion. After dismissal of the
writ petitions, the respondents have reverted the appellants to their
original post of Gang Mazdoor. Since writ appeals are allowed the
appellants are entitled to promotion. Therefore, the respondents
are directed to confer the promotion to all the appellants. The
impugned order challenged in the Writ Appeals are set aside and
consequently the impugned orders of de-promotion challenged in
the Writ Petitions are set aside. The respondents are directed to
implement the judgment within a period of four weeks from the
date of receipt of a copy of this judgment.
27. With the above observations, the Writ Appeals are allowed.
No costs. Consequently, connected miscellaneous petitions are
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closed.
28. Before departing with this order, this Court is of the
considered opinion that the appellants have taken earnest efforts to
qualify themselves, after they had missed the opportunity to do 10th
standard or 12th standard due to various family circumstances. The
government should come forward to formulate a scheme to educate
people wherever the opportunity was missed. However, the scheme
should be without affecting the rights of the persons who had
completed in the regular stream.
[S.S.S.R., J.] [S.S.Y., J.]
05.07.2022
Index : Yes / No
Tmg
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W.A.(MD)Nos.497 to 500 of 2022
To
1.The Secretary to the Government,
State of Tamil Nadu,
Highways Department, Chennai.
2.The Director General,
Highways Department,
Guindy, Chennai.
3.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Madurai Division, Madurai.
4.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Virudhunagar Division,
Virudhunagar.
5.The Divisional Engineer,
(Construction and Maintenance),
Highways Department,
Thoothukudi Division,
Thoothukudi.
6.The Secretary to Government of Tamilnadu,
Personnel and Administrative Reforms,
(M Department), Chennai.
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W.A.(MD)Nos.497 to 500 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
Tmg
W.A(MD)Nos.497 to 500 of 2022
05.07.2022
https://www.mhc.tn.gov.in/judis
