Madras High Court
S.Padmavathy vs The State Of Tamil Nadu on 28 October, 2022
1 W.P.(MD)NO.15699 OF 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.10.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.15699 of 2022 and
W.M.P.(MD)Nos.11304 & 11305 of 2022
S.Padmavathy,
Overseer,
Thiruchuli Panchayat Union @ Reddiapatti,
Virudhunagar District. ... Petitioner
Vs.
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Rural Development and Panchayat Raj Department,
Secretariat, Chennai – 600 009.
2. The Commissioner,
Rural Development and Panchayat Raj Department,
Panagal Building, Saidapet, Chennai – 600 015.
3. The District Collector,
Virudhunagar District,
Virudhunagar. ... Respondents
Prayer: Writ petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorarified
Mandamus, to call for the records on the file of the 2nd
respondent in connection with the impugned order of rejection
passed by him in his proceedings in Na.Ka.
No.24333/2012/EE1.2 dated 08.07.2022 and quash the same
as illegal and ultra vires and consequently direct the
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2 W.P.(MD)NO.15699 OF 2022
respondents to restore the petitioner in the post of Assistant
Engineer for the panel year 2012-2013 with all service and
monetary benefits with effect from the date of demotion order
passed by the 2nd respondent dated 23.09.2016 within the time
limit that may be stipulated by this Court.
For Petitioner : Mr.G.Thalaimutharasu
For Respondents: Mr.Veera Kathiravan,
Additional Advocate General,
assisted by,
Mr.R.Suresh Kumar,
Additional Government Pleader.
***
ORDER
Heard the learned counsel appearing for the writ
petitioner and the learned Additional Advocate General
assisted by the learned Additional Government Pleader
appearing for the respondents.
2. The writ petitioner joined the Tamil Nadu
Panchayat Development Engineering Subordinate Service as
Overseer on 04.02.2008. She was promoted as Assistant
Engineer on 23.09.2014. She was later reverted vide Order
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3 W.P.(MD)NO.15699 OF 2022
23.09.2016 to the post of Overseer on the ground that she was
erroneously promoted. The petitioner is having Engineering
Degree, namely, B.E.Civil Engineering obtained through
distance education from Vinayaka Mission University, Salem.
The authorities were originally under the impression that even
such a degree obtained through distance education would
render the petitioner eligible to be considered for promotional
post. Questioning the reversion, she filed W.P(MD)No.19628
of 2016. The said writ petition was however dismissed on
30.08.2019. Aggrieved by the same, the writ petitioner filed
W.A.(MD)No.1085 of 2019. The writ appeal was also dismissed
on 04.11.2019. In the meanwhile, certain developments had
taken place. To take advantage of the same, the petitioner
filed Review Application(MD)No.264 of 2019. The said review
application was disposed of on 09.07.2021 in the following
terms:-
“ This Review Application has been filed
to review the judgment passed in W.A.(MD).No.
1085 of 2019 dated 04.11.2019. By the said
judgment, the order passed in the Writ Petition
was confirmed.
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4 W.P.(MD)NO.15699 OF 2022
2. The learned counsel appearing for the
petitioner pointed out that the Government in
G.O.Ms.No.270, Higher Education (J1)
Department, dated 03.12.2019, has held that the
educational qualification possessed by three other
persons similarly placed that of the petitioner as
equivalent to the degrees of regular stream for the
purpose of employment in Public Services,
pursuant to the order passed by the Hon'ble
Supreme Court. It is further submitted by the
learned counsel for the petitioner that the
petitioner has lost her chance, because Writ
Appeal was dismissed.
3. Writ Appeal was dismissed taking into
consideration the factual and legal position.
However, if the Government has passed an order,
based on the direction issued by the Supreme
Court, then the judgment in W.A.(MD)No.1085 of
2019 will not be a bar for the petitioner's case to
be considered by the Government.
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5 W.P.(MD)NO.15699 OF 2022
4. In the light of the above, Review
Application is disposed of by giving liberty to the
petitioner to submit her representation to the
Government to extend the benefit of G.O.Ms.
No.270, Higher Education (J1) Department, dated
03.12.2019 and if such representation is
submitted, the Government shall consider the
representation uninfluenced by any observations
made in the judgment in W.A. (MD)No.1085 of
2019 and take a decision in the matter. The above
direction shall be complied with within a period of
four months from the date on which the
representation is given by the petitioner. No costs.
Consequently, connected miscellaneous petition is
closed. “
3. Availing the liberty given by the Hon'ble Division
Bench in the review application, the petitioner submitted a
representation dated 14.08.2021 calling upon the employer to
promote her as Assistant Engineer by including her in the
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6 W.P.(MD)NO.15699 OF 2022
panel for the year 2012-13. The said request was rejected by
the impugned order dated 08.07.2022 primarily on the ground
that charge memo issued under Rule 17(b) of Tamil Nadu Civil
Services (Discipline and Appeal) Rules is pending against the
petitioner. Questioning the same, the present writ petition
came to be filed.
4. The learned counsel appearing for the writ
petitioner reiterated all the contentions set out in the affidavit
filed in support of the writ petition and called upon this Court
to quash the impugned order and direct the respondents to
restore her position as Assistant Engineer by including her
name in the panel for the year 2012-13 with all consequential
benefits.
5. The respondents have filed a detailed counter
affidavit and the learned Additional Advocate General
appearing for the respondents took me through its
contents. He submitted that the petitioner has obtained her
Engineering degree only through distance education mode
and he also submitted that the writ petitioner was
unauthorisedly absent for full five years and major penalty
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7 W.P.(MD)NO.15699 OF 2022
proceedings have been initiated against her. When the
disciplinary action is pending against the petitioner, it is not
open to her to seek the relief of promotion. He called upon this
Court to apply the principle of ' No Work No Pay ' and
sustain the impugned order and dismiss the writ petition.
6. I carefully considered the rival contentions and
went through the materials on record.
7. At this stage, the learned counsel appearing for the
writ petitioner on instructions submitted that the writ
petitioner will not claim payment of salary for the period when
she did not work.
8. This undertaking given by the petitioner on
instructions is placed on record.
9. It is not in dispute that the writ petitioner was
given promotion to the post of Assistant Engineer on
23.09.2014. She worked in that capacity till 23.09.2016. She
was reverted only for the reason that the degree obtained by
her could not be recognised. But then, certain important
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8 W.P.(MD)NO.15699 OF 2022
developments had taken place subsequently. Similarly placed
individuals had moved the Hon'ble Supreme Court. The
Hon'ble Supreme Court in Civil Appeal Nos.17869-17870
of 2017 ( Orissa Lift Irrigation Corp. Ltd. and Ors. V.
Rabi Sankar Patro and Ors.) vide Judgment dated
03.11.2017 passed a set of directions. Direction Nos.4 and 6
are as follows:-
“ IV The AICTE shall devise the
modalities to conduct an appropriate test/tests as
indicated in Para 47 above. The option be given to
the concerned students whose degrees stand
suspended by 15.01.2018 to appear at the
test/tests to be conducted in accordance with the
directions in Para 47 above. Students be given not
more than two chances to clear test/tests and if
they do not successfully clear the test/tests within
the stipulated time, their degrees shall stand
cancelled and all the advantages shall stand
withdrawn as stated in Paras 46 and 47 above. The
entire expenditure for conducting the test/tests
shall be recovered from the concerned Deemed to
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9 W.P.(MD)NO.15699 OF 2022
be Universities by 31.03.2018.
VI If the students clear the test/tests
within the stipulated time, all the
advantages/benefits shall be restored to them and
their degrees will stand revived fully.”
In terms of the said directions, special test was conducted by
the AICTE / UGC and the petitioner also cleared the same. The
certificate for Validation of Degree obtained by the petitioner
has also been enclosed at page No.258 of the typed set of
papers. The order passed by the Hon'ble Supreme Court was
also duly implemented by the Government of Tamil Nadu by
issuing G.O.(Ms)No.270 Higher Education (J1) Department
dated 03.12.2019. Clause (v) of the said Government Order
reads as follows:-
“ Direct that B.E.Degree acquired
through Distance Learning mode in Vinayaka
Mission Research Foundation (VMRF), Salem,
Tamil Nadu Validated by AICTE-UGC by
conducting special Examination as per the Hon'ble
Supreme Court's order in SLP(C) Nos.
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10 W.P.(MD)NO.15699 OF 2022
19807-19808 of 2012, dated 3.11.2017 be
validated and approved as equivalent to degrees
of regular stream for the purpose of employment
in Public Services. (Resolution No.2.23)”
10. The Hon'ble Division Bench while disposing of the
review application had made it clear that the petitioner will be
entitled to the benefits of G.O.(Ms)No.270 Higher Education
(J1) Department dated 03.12.2019 and that her representation
should be considered without being influenced by the
observations made in the writ appeal.
11. I am more than satisfied that in view of the
aforesaid validation of degree by UGC/AICTE, she is entitled
to restoration of the position which she originally enjoyed.
12. It is true that when an employee is facing any
disciplinary action, she cannot claim the benefit of promotion.
In this case, the petitioner is not seeking promotion for the
first time. She is only seeking restoration of the position
which she originally enjoyed. Applying the decision of the
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11 W.P.(MD)NO.15699 OF 2022
Hon'ble Division Bench and G.O.(Ms)No.270 Higher Education
(J1) Department dated 03.12.2019, I set aside the order
impugned in this writ petition. The impugned order proceeds
on the premise that the petitioner is seeking promotion for the
first time. The second respondent has failed to note that the
petitioner was already promoted and she was holding the post
of Assistant Engineer for full two years from 2014 onwards
and only thereafter she was reverted.
13. I hold that the petitioner is entitled to restoration
of the earlier position. I direct the second respondent to issue
proceedings restoring the petitioner to the post of Assistant
Engineer. In other words, she will be treated as Assistant
Engineer right from the date, when she was originally
promoted. However, the petitioner will not be entitled to any
payment of arrears for the period when she did not work. She
will be given continuity of service for other purposes. Such an
order restoring the petitioner as Assistant Engineer will be
passed by the second respondent within a period of four weeks
from the date of receipt of a copy of this order. This writ
petition stands allowed accordingly. No costs. Consequently,
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12 W.P.(MD)NO.15699 OF 2022
connected miscellaneous petitions are closed.
28.10.2022
Index : Yes / No
Internet : Yes/ No
PMU
To:
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Rural Development and Panchayat Raj Department,
Secretariat, Chennai – 600 009.
2. The Commissioner,
Rural Development and Panchayat Raj Department,
Panagal Building, Saidapet, Chennai – 600 015.
3. The District Collector,
Virudhunagar District,
Virudhunagar.
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13 W.P.(MD)NO.15699 OF 2022
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)No.15699 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
