Madras High Court

T.Selvaganesan vs The Secretary To Government on 27 November, 2023

                                                                                W.P.No.6228 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 27.11.2023

                                                         CORAM

                                  THE HONOURABLE MS.JUSTICE R.N.MANJULA

                                                   W.P.No.6228 of 2021
                                       and W.M.P.Nos.6839, 6840, 6841 & 6843 of 2021

                     T.Selvaganesan                                                ... Petitioner
                                                            Vs.

                     1.The Secretary to Government,
                       Personal and Administrative Reforms Department,
                       Secretariat, Chennai 600 009.

                     2.The State of Tamil Nadu,
                       Rep by the Secretary to Government,
                       Labour and Employment Department,
                       Secretariat, Chennai 600 009.

                     3.Thiru.R.Vijaykumar                                       ... 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
                     of the first respondent issued in G.O.(4D) No.32 P & AR (U1)
                     Department, dated 19.05.2014 and G.O.(4D) No.25 P & AR (H1)
                     Department, dated 08.08.2017 and quash the same in so far as the
                     petitioner is concerned and consequently include the name of the
                     petitioner in the regular panel of Assistant Section Officers for the year

                     Page No.1 of 14


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                                                                                  W.P.No.6228 of 2021

                     2009-2010 as on 01.08.2009 in between the names of Tmt.R.Chitra
                     (Serial No.20) and Thiru.R.Vijayakumar (Serial No.21) and include in the
                     regular panel of Section Officers for the year 2016-2017 as on
                     01.08.2016 in between the names of Tmt.R.Chitra (Serial No.45) and
                     Thiru.R.Vijayakumar (Serial No.46) promote the petitioner as Section
                     Officer with retrospective effect from the date of promotion of his junior,
                     the third respondent herein and subsequently grant all consequential
                     benefits including stepping up of pay on par with his junior
                     Thiru.R.Vijayakumar the third respondent herein and for consequential
                     revision of pay and allowances from the date 08.08.2017 the junior was
                     promoted and disburse all monetary benefits within a limited time frame.


                                   For Petitioner   : Mrs.R.Dakshayani Reddy, Senior Counsel for
                                                      Ms.S.Suneetha

                                   For Respondents : Mr.S.Silambanan, Addl. Advocate General
                                                     Assisted by Mr.T.Chezhiyan,
                                                     Additional Government Pleader

                                                         ORDER

This Writ Petition has been filed seeking to issue a Writ of

Certiorarified Mandamus, to call for the records of the first respondent

issued in G.O.(4D) No.32 P & AR (U1) Department, dated 19.05.2014

and G.O.(4D) No.25 P & AR (H1) Department, dated 08.08.2017 and

quash the same in so far as the petitioner is concerned and consequently

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include the name of the petitioner in the regular panel of Assistant Section

Officers for the year 2009-2010 as on 01.08.2009 in between the names

of Tmt.R.Chitra (Serial No.20) and Thiru.R.Vijayakumar (Serial No.21)

and include in the regular panel of Section Officers for the year 2016-

2017 as on 01.08.2016 in between the names of Tmt.R.Chitra (Serial

No.45) and Thiru.R.Vijayakumar (Serial No.46) promote the petitioner as

Section Officer with retrospective effect from the date of promotion of his

junior, the third respondent herein and subsequently grant all

consequential benefits including stepping up of pay on par with his junior

Thiru.R.Vijayakumar, the third respondent herein and for consequential

revision of pay and allowances from the date 08.08.2017, the junior was

promoted and disburse all monetary benefits within a limited time frame.

2. Heard Mrs.R.Dakshayani Reddy, learned Senior Counsel for the

petitioner and Mr.S.Silambanan, learned Additional Advocate General for

the respondents.

3. The petitioner has been appointed as an Assistant through Tamil

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Nadu Public Service Commission. G.O.(4D) No.32 P & AR (U1)

Department, dated 19.05.2014 is the Government Order in which the

petitioner's juniors have been included in the promotion list by excluding

the petitioner. G.O.(4D) No.25 P & AR (H1) Department, dated

08.08.2017 is a consequential promotion order pursuant to the promotion

panel prepared in G.O.(4D) No.32 P & AR (U1) Department, dated

19.05.2014.

4. Mrs.R.Dakshayani Reddy, learned Senior Counsel for the

petitioner attracted the attention of this Court to G.O.Ms.No.180,

Personnel and Administrative Reforms (R) Department dated 11.09.2000

by which, the degree obtained through Open University is accepted to be

equivalent to the degree obtained through regular stream.

5. Mr.S.Silambanan, learned Additional Advocate General for the

respondents submitted that the petitioner had not acquired the

educational qualification as per the Rules. The Government Order in

G.O.Ms.No.180, Personnel and Administrative Reforms (R) Department

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dated 11.09.2000 was subsequently withdrawn through G.O.Ms.No.107,

Personnel and Administrative Reforms (M) Department, dated

18.08.2009. G.O.Ms.No.107, dated 18.08.2009 only recognises 10+2+3

pattern of studies. The petitioner who had acquired 10th STD had done a

foundational course and joined graduation in the Open University and

secured U.G. Degree.

6. The contention of the learned Senior Counsel for the petitioner is

that the petitioner possessed the required qualification at the time when

he was selected and joined as a System Assistant with the second

respondent. The petitioner was allowed to join in service by recognising

his educational qualification and later the respondents were estopped by

claiming that the degree secured by the petitioner is not valid, as he had

done the course through Open University. At the time when the petitioner

joined, the G.O.Ms.No.180, Personnel and Administrative Reforms (R)

Department dated 11.09.2000 was in force and it's subsequent

withdrawal should not be put against the petitioner.

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7. The argument of the learned Senior Counsel for the petitioner is

that the promotion panel for the post of Assistant Section Officer for the

year 2009-10 was drawn on 01.08.2009. However, G.O.Ms.No.107 was

issued on 18.08.2009. Therefore, at the time when the promotion panel

was prepared by G.O.Ms.No.32 dated 19.05.2014, G.O.Ms.No.107,

dated 18.08.2009 was not in existence. Therefore, as on 01.08.2009 the

one and only Government Order which was in force was G.O.Ms.No.180

dated 11.09.2000, under which the petitioner's educational qualification

has been approved.

8. The learned Additional Advocate General submitted that at the

time when the petitioner joined, he was qualified and his degree was

recognised in pursuant to G.O.Ms.No.180 dated 11.09.2000. The

Government did not object the same. Later, the above Government Order

was withdrawn on 18.08.2009 by passing G.O.Ms.No.107. Therefore,

the petitioner's degree is invalid. In view of that, the petitioner cannot be

considered at the time when the promotion panel was prepared.

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9. The learned Additional Advocate General has drawn analogy to

the teachers who have been appointed without making eligible by passing

TET. Though their appointment was not disturbed, for the purpose of

promotion, it is mandated that those teachers who have been already

appointed should have possessed TET for the sake of promotion.

10. According to the learned Additional Advocate General, the

petitioner who had subsequently qualified in the pattern 10+2+3 can be

considered for the next promotion and the petitioner cannot be included

in the promotion panel for the year 2009-10. Admittedly, at the time the

petitioner was appointed as Assistant, the Rules governing the validity of

the degree obtained by the petitioner is G.O.Ms.No.180 dated

11.09.2000. The Government did not have any objection on that point

because the Government order itself approves the degree obtained

through Open University system and hence the petitioner's appointment

was not short of the fundamental requirement of 10+2+3 system.

However, the difficulty arose when G.O.Ms.No.180 dated 11.09.2000

was withdrawn by the issuance of the subsequent G.O.Ms.No.107 dated

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18.08.2009.

11. The contention of Mrs.R.Dakshayani Reddy, learned Senior

Counsel for the petitioner is that having allowed the petitioner to join as

Assistant by recognising his qualification which is a Bachelor degree, the

respondents cannot withhold his promotion by stating that the subsequent

G.O.Ms.No.107 dated 18.08.2009 had invalidated the degree obtained by

him.

12. It is trite in law that no service rules can be given with

retrospective effect. Had the petitioner joined subsequent to the issuance

of G.O.Ms.No.107 dated 18.08.2009, the Government would not have

promoted the petitioner in view of the non-recognition of the degree

obtained through Open University system. The petitioner's case does not

even fall under ratification, but recognition at the first instance when he

joined.

13. Once the petitioner is allowed to join service, the rules or order

in force at the time when he joined service will govern his service benefits,

unless for any other suppression of material facts the petitioner's

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appointment is found fault. Knowing pretty well that the petitioner was

qualified with the basic educational qualification required for the post i.e.,

any bachelor degree and by giving due recognition for the degree

obtained by him, he was accommodated. The promotion to the level of

Assistant Section Officer does not require any additional qualification

other than a degree. When the basic qualification for the basic post is

accepted, that cannot be denied or rendered invalid for the subsequent

promotion.

14. So far as the case of the teachers are concerned, they are

required to fulfil the basic requirement of pass in TET at the time of their

appointment itself. There was no TET at the time when they joined, this

Court held that atleast at the time when promotion is offered, the teachers

ought to have qualified by clearing TET. However it is not the order of the

Government and the Government has not taken any policy decision on

this. Even for any extraneous reasons if the petitioner's degree obtained

through Open University cannot be recognised in view of the subsequent

G.O.Ms.No.107, dated 18.08.2009, the fact that the promotion panel

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relates back to the year 2009-10 cannot be denied. At that relevant point

of time, G.O.Ms.No.107 dated 18.08.2009 was not in force.

15. The rule which governed the preparation of promotion panel for

the year 2009-10 was only in accordance with G.O.Ms.No.180 dated

11.09.2000. The crucial date for the preparation of the panel was

01.08.2009. But G.O.Ms.No.107 came into effect only on 18.08.2009. As

stated already, had the promotion panel was prepared immediately on

01.08.2009 there would not have been any difficulty in placing the

petitioner in the panel, because G.O.Ms.No.107 came into effect only on

18.08.2009 which is later than 01.08.2009. So the administrative delay in

preparing the panel should not be put against the petitioner who would

have been otherwise qualified to be included in the promotion panel for

the year 2009-10. Even otherwise, the petitioner had qualified himself

and he had obtained his +2 in the year 2011, in order to avoid any future

problems. The petitioner appears to have done an another degree also

through Open University so as to fit himself within 10+2+3 pattern.

16. In this regard, it is relevant to refer the judgment of this Court

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rendered in W.P.No.34077 of 2018 dated 26.08.2021, which has also

arisen out of the same issue. In the said order, this Court has observed as

under:

"15. If the petitioner's appointment as an Assistant Section Officer was valid in the year 2011 in the recruitment proceeding called for in 2008, the request of the petitioner for being promoted as a Section Officer cannot be denied on the ground stated in the impugned G.O.Ms.No.34 dated 08.11.2018. The petitioner has also completed six years as an Assistant Section Officer on date."

The Government's appeal challenging the above said order was also

dismissed by upholding the order of the Hon'ble Single Judge.

17. In view of the above stated reasons, this Writ Petition is

disposed and the respondents are directed to restore the seniority of the

petitioner in the regular panel of Assistant Section Officer for the year

2009-10 as on 01.08.2009 in between the names of R.Chitra and

R.Vijayakumar and include in the regular panel of Section Officer for the

year 2016-17 as on 01.08.2016 in the same pattern and promote the

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petitioner as Section Officer with retrospective effect from the date of

promotion of his junior, third respondent herein by giving notional

benefits from the date of promotion of his junior and monetary benefits