K.Rajalakshmi vs The Directorate Of Children Welfare And ...
2024 Latest Caselaw 15235 Mad

Madras High Court

K.Rajalakshmi vs The Directorate Of Children Welfare And ... on 7 August, 2024

                                                                         W.P.(MD)No.16657 of 2024

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                          Reserved on     : 30.07.2024

                                          Pronounced on : 07.08.2024

                                                   CORAM

                                  THE HONOURABLE MS JUSTICE R.N.MANJULA

                                           W.P.(MD)No.16657 of 2024


                K.Rajalakshmi                                             ... Petitioner

                                                        Vs.

                1.The Directorate of Children Welfare and Special Services,
                  (Previously designated as
                  Director of Social Defence),
                  No,300, Chennai-600 010.

                2.The Superintendent,
                  Annai Sathya Ammaiyr Memorial Government,
                  Children Home,
                  Dr.Thangaraj Salai,
                  K.K. Nagar,
                  Madurai-625 020.                                        ... Respondents

                PRAYER: Writ Petition filed under Article 226 of the Constitution of India for

                issuance of Writ of Certiorarified Mandamus, calling records of the first

                respondent relating to the impugned order passed by the Director of Children

                Welfare and Special Services, Chennai in his Letter No. DSD/331/2024-

                A2/I/140416/2024, dated 10.07.2024 and communicated to the petitioner by the


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                                                                           W.P.(MD)No.16657 of 2024

                Superintendent, Government Children Home, Madurai on 12.07.2024 and quash

                the same and consequently direct the first respondent i.e., the Director of

                Children Welfare and Special Services, Chennai, to declare the period of

                probation of the petitioner with effect from 24.01.2023 and consequently to

                include the name of the petitioner in the approved list of Assistant of the year

                2023 on par with her juniors, within a specified time frame that may be fixed by

                this Court.


                                      For Petitioner      : Mr.S.Visvalingam


                                      For Respondents : Mr.S.Kameshwaran,
                                                        Government Advocate


                                                   ORDER

Heard Mr.S.Visvalingam, learned counsel appearing for the petitioner

and Mr.S.Kameshwaran, learned Government Advocate appearing for the

respondents.

2. This Writ Petition has been filed challenging the order of of the first

respondent relating to the impugned order passed by the Director of Children

Welfare and Special Services, Chennai in his Letter No. DSD/331/2024-

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A2/I/140416/2024, dated 10.07.2024 communicated to the petitioner by the

Superintendent, Government Children Home, Madurai on 12.07.2024 and

consequently to direct the first respondent i.e., the Director of Children Welfare

and Special Services, Chennai, to declare the period of probation of the

petitioner with effect from 24.01.2023 and consequently to include the name of

the petitioner in the approved list of Assistant of the year 2023 on par with her

juniors, within a specified time frame that may be fixed by this Court.

3. The petitioner has been selected through the Tamil Nadu Public

Service Commission under Group-IV examination as a ‘Typist’ and joined on

25.01.2021 in the office of the Annai Sathya Ammaiyar Memorial Government

Children Home, Madurai. The petitioner has passed all the Departmental

Examination to be included in the approved list of Assistant of the year 2023.

She was on Earned Leave from 02.03.2022 to 11.03.2022 and on Maternity

Leave for the period from 07.11.2022 to 06.11.2023. In view of the above leave

period, the petitioner’s probation has not been declared.

3.1. The petitioner has given a representation to the first respondent on

22.01.2024 seeking to declare her probation by considering the leave period as

service and to include her name in the integrated seniority list and to promote

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the petitioner as ‘Assistant’ on par with her juniors. So, the petitioner has filed

a Writ Petition before this Court in W.P.(MD).No.7426 of 2024 under which a

direction has been given on 26.03.2024 directing the Director of Children

Welfare and Special Services, Chennai to pass appropriate orders within a

period of two weeks. The first respondent vide order dated 10.07.2024, rejected

the petitioner’s request stating that the maternity period cannot be counted for

probation and hence, her name was not included in the approved list of

Assistants for the year 2023. Aggrieved over the same, the petitioner has filed

this Writ Petition.

4. Mr.S.Visvalingam, learned counsel appearing for the petitioner had

relied on the following judgment in support of his contention that the leave

other than the casual leave shall be considered as duty as per Section 12 of the

Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

“(1). Selvi Vs. The Director of Government Examination, DPI Complex, Chennai-600 006 and another in W.P.No.19426 of 2016, dated 05.01.2022;

(2). The Principal Secretary to Government, Revenue Department, Secretariat, Chennai-600 009 and others Vs. S.Renuka in W.A.(MD).No.200 of 2019 in W.P.(MD).No.8115 of 2018, dated 08.06.2021;

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3. D.Vedhanagi Vs. The Director of Co-Operative Audit Department, 571, Anna Salai, 2nd Floor, Amma Complex, Veterinary Hospital Campus, Nandanam, Chennai-600 035 and another in W.P. (MD).No.6545 of 2020, dated 09.06.2020;

4. S.Subalakshmi Vs. The Director of Co-operative Audit, Nandanam, Chennai-600 035 and another in W.P.(MD).No.10971 of 2020, dated 04.09.2020;

5. T.Priyatharsini Vs. The Secretary to Government, Co- operation, Food and Consumer Protection Department, Secretariat, Chennai-600 009 and others in W.P.(MD).No.23939 of 2016 dated 15.03.2021;

6. S.Abhirami Vs. The Inspector General of Police (Technical Services), Mylapore, Chennai-600 004 and another in W.P.No.15344 of 2023, dated 15.06.2023

5. He also relied on another judgment of this Court in the case of

T.Ramya Vs. The Secretary to Government of Tamil Nadu, Law Department,

Secretariat, Chennai and others in W.P.(MD).No.4574 of 2021, dated

03.04.2024, wherein, the learned Single Judge of this Court directed the

respondents to declare the probation of the petitioner without excluding the

maternity leave period (i.e., 180+270=450 days) and after excluding 5 days,

availed on other heads.

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6. Mr.N.Ramesh Arumugam, learned Government Advocate appearing

for the respondents in support of his contention has relied on the following

judgment:

“S.Nagajothi Vs. The State of Tamil Nadu, Represented by the Additional Chief Secretary / Commissioner of Revenue Administration, Commissionerate of Revenue Administration, Disaster Management, Ezhilagam, Chennai-600 005 in W.P.Nos. 1442, 1451 and 1465 of 2023, dated 29.09.2023.”

7. The learned Government Advocate appearing for the respondents

submitted that in the above decision of this Court rendered in W.P.Nos.1442,

1451 and 1456 of 2023, it is held that the probation is not a mere formality and

hence, one cannot take advantage of the benefit to seek exemption from

undergoing the mandatory period of probation and it is further observed that the

Court cannot give any positive direction to treat maternity period as a duty

unless amendment is brought in this regard. It is further observed that the

Court cannot give positive direction to treat the maternity leave to be included

for the purpose of probation.

8. Even if someone completes the period of service prescribed for

probation and if services of a person does not found to be satisfactory, then he

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will not be considered for declaration of probation. But, in the instant case, the

petitioner joined in service on 25.01.2021 and has availed 374 days of leave

other than casual leave. So according to the Rules governing probation, there

may not be two years period of service if available within a continuous period

of three years in order to declare probation in the same day as when the

batchmates of the petitioner got their probation declared. Hence, the petitioner

has suffered one more year of extension of probation period. However, at the

end of the completion of the period of extension, the petitioner’s services can be

appraised for the purpose of declaration of probation.

9. So far as the petitioner is concerned, the three years period is extended

upto January 2025, if the leave period is excluded from counting the period of

service for the period of probation.

10. According to Section 12 of the Tamil Nadu Government Servants

(Conditions of Service) Act, 2016, the absence of period of a member of a

service from duty in such service, whether on leave, or on foreign service or on

deputation or for any other person and whether his lien in a post borne on the

cadre of such service is suspended or not, shall not, if he is otherwise fit, render

him ineligible in his turn for promotion to higher cadre in such service.

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11. But all the benefits enlisted under Section 12 of the Tamil Nadu

Government Servants (Conditions of Service) Act, 2016, including the

promotion be extended to the petitioner only if the petitioner’s probation is

either declared successfully or deemed to have been declared in accordance

with the Rules governing probation. No proposal seems to have been sent from

the office of the petitioner from the office of the petitioner for recommending to

declare her probation.

12. So far as the Judgments cited by the petitioner which would direct

the authorities to include the period of leave other than casual leave to be

included in the service for counting the probation are concerned, they are not

supported by the Rules governing probation.

13. Hence, this Writ Petition is disposed of and the first respondent is

directed to call for the proposal for declaring the probation of the petitioner

from the second respondent and pass appropriate orders for declaring the

probation if the petitioner has completed the probation satisfactorily and give

her the advantage of promotion on par with her juniors to the post of Assistants,

when promotional orders are given to her juniors after being satisfied with her

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services and by giving her advantage of Section 12 of the Tamil Nadu

Government Servants (Conditions of Service) Act, 2016 and pass orders as

expeditiously as possible. No costs.

07.08.2024

NCC:yes/no Index:yes/no Internet:yes/no TSG To

1.The Directorate of Co-operative Audit Department, #571, Anna Salai, 2nd Floor, Perasiriyar K.Anbalagan Maaligai, Veterinary Hospital Campus, Nandanam, Chennai-600 035.

2.The Assistant Director of Co-operative Audit, Government Multi Storied Building, Khajamalai, Tiruchirappalli-620 020.

https://www.mhc.tn.gov.in/judis

R.N.MANJULA, J.

TSG

Pre-Delivery Order made in

07.08.2024

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