Allowed

E. Durai v. the State of Tamil Nadu, Rep.

Madras HC18 Apr 2013WP/23514/2006

Case brief

AI extract

What is this about?

A retired revenue officer sought notional promotion as Deputy Director to match the seniority of his immediate junior, Deenadayalan, who was promoted. The High Court allowed the writ petition, holding the petitioner entitled to promotion with effect from 10.12.2003 and all consequential benefits.

What did the court decide?

Notional promotion granted with effect from 10.12.2003 on par with immediate junior; immediate implementation directed; impugned letter set aside.

E. Durai Vs the State of Tamil Nadu, Rep. — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 18.04.2013

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CORAM :

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P.No.23514 of 2006

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E.Durai ... Petitioner

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Vs. 1. The State of Tamil Nadu rep. by The Secretary to Government, Revenue Department, Secretariat, Chennai – 600 009. 2. The Commissioner and Director of Land Survey and Settlement, Chepauk, Chennai – 600 005. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified mandamus, calling for the records on the file of the first respondent herein vide Letter No.42792/Ni/A3 (1) / 99-23, dated 05.04.2006 and quash the same same as illegal, arbitrary, unreasonable, being violative of Rules and principles of natural justice and thereby direct the respondents herein to implement the Government Order in G.O (1D) No.34, Revenue Department, dated 29.01.1999 and consider the petitioner for further promotions notionally with all consequential monetary and service benefits.

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For Petitioner : Mr.A.R.Suresh For Respondents: Mr.S.Navaneethan, AGP O R D E R

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This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of certiorarified mandamus, calling for the records on the

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https://hcservices.ecourts.gov.in/hcservices/

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file of the first respondent herein vide, Letter No.42792/Ni/A3 (1) / 99-23, dated 05.04.2006 and quash the same same, as illegal, arbitrary, unreasonable, being violative of Rules and principles of natural justice and thereby direct the respondents herein to implement the Government Order in G.O (1D) No.34, Revenue Department, dated 29.01.1999 and consider the petitioner for further promotions notionally with all consequential monetary and service benefits.

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It is not in dispute that the petitioner was initially appointed as Field Surveyor on 19.06.1965, subsequently, on 01.01.1973, he was promoted as SubInspector of Survey, then he was promoted as Deputy Inspector of Survey. During 1992, a panel for the post of Inspector of Survey was drawn, however, the petitioner was not included in the panel, on the ground that he had not passed the Account Test for Executive Officers, as on 25.04.1992, on the alleged crucial date, though the petitioner passed the said test on 04.05.1992. According to the learned counsel for the petitioner, the petitioner herein had made a representation, however, his name was not included in the panel, that was prepared on 26.01.1993 against law. Based on the representation made by the petitioner, the Government passed an order in G.O.(1D) No.34, Revenue (SS-III (1)) Department, dated 29.01.1999, whereby in paragraph number 4, having considered the representation made by the petitioner herein, as per rule 7 of the Tamil Nadu Subordinate Service Rules, the said condition was relaxed, so far as the petitioner is concerned, though he had passed the test on 04.05.1992 and not before the cut off date, 25^th of April fixed in every year.

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Learned Additional Government Pleader appearing for the respondents contended that in view of the cut off date fixed by the respondents, it was legally presumed that the petitioner was not qualified by way of passing the Account Test for Executive Officers and therefore, his name was not included in the panel.

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It is an admitted fact that panel was prepared only on 26.01.1993 and before the said date on 04.05.1992 itself, the petitioner got through the departmental test, 'Account Test for Executive Officers'. It is not in dispute that the aforesaid test is conducted by the TNPSC.

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As per the Service Rules, probation could be decided not from the date of passing the test, but the same should be decided from the date on which, he entered into service in a particular cadre. Admittedly, he completed the period of probation, within two years and he wrote the Account Test for Executive Officers and the last exam relating to the Account test was conducted, prior to the cut off date. Hence, based on the date on which, the result announced by the Tamil Nadu Public Service Commission, it cannot be said that he had not passed the test, within the time limit. The cut off date cannot be the deciding factor, as the departmental Test for Executive Officers is conducted by TNPSC and not by the respondents and further, having considered the representation made by the petitioner by G.O.(1D) No.34, Revenue (SS-III(1)), dated 29.01.1999, the said condition was also relaxed in favour of the petitioner, however, the petitioner was not promoted on par with his immediate juniors.

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Learned counsel appearing for the petitioner drew the attention of this Court to the copy of the order, dated 05.04.2004 passed in O.A.No.1415 of 2004 on the file of the Tamil Nadu Administrative Tribunal against the respondents and one Deenadayalan, immediate junior to the petitioner. The Tamil Nadu Administrative Tribunal has passed the following order :

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"3. The applicant would claim that if his promotion is retrospectively given, as per the Government Order, he will be entitled to get his promotion as Regional Deputy Director in the place of Deenadayalan. The applicant cannot challenge the order appointing Deenadayalan as Regional Deputy Director because, he has passed all the prescribed tests, his name was correctly included in the panel 1992. No doubt, in view of Government Order, the applicant's name also must be included in the panel for 1992, in which case he must be placed over and above Deenadayalan. But, this claim is subject to verification by the Department."

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Further the Tribunal has given direction to the respondents to implement the Government Order and to consider the case of the applicant for further promotion as Deputy Director

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https://hcservices.ecourts.gov.in/hcservices/

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and pass appropriate orders. Admittedly, the direction was not complied with by the respondents 1 and 2.

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Subsequently, the petitioner filed writ petition in W.P.No.34403 of 2004 and by order, dated 26.11.2004, this Court (D.Murugesan, J), directed the respondents 1 and 2 to implement the order passed by the Administrative Tribunal in O.A.No.1450 of 2004, dated 05.04.2004, within a period of two months from the date of receipt of a copy of the said order. As the said order passed by the Tribunal was not challenged by the Government and there was no stay obtained by the respondents, there was no legal impediment in implementing the direction. However, the order has not been implemented by the respondents till date.

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It is not in dispute that the State Administrative Tribunal became defunct and at present all the cases pending before the Tribunal were transferred to this Court for disposal, according to law. In the mean time, the petitioner retired from service on 31.10.2004 on attaining superannuation.

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In this writ petition, the petitioner has sought an order, directing the respondents to give notional promotion to the petitioner, in view of the promotion given to his immediate junior Deenadhayalan. However, the direction given by the State Administrative Tribunal in O.A.No.1415 of 2004, dated 05.04.2004 and the order passed by this Court in W.P.No.34403 of 2004, dated 26.11.2004 were not complied with by the respondents. However, the impugned Letter No.42792/Ni A3 (1) / 99-23, dated 05.04.2006 was sent by the respondents to the petitioner whereby it was informed that the name of the petitioner cannot be included in the panel.

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Learned counsel appearing for the petitioner drew the attention of this Court to the copy of the G.O.(2D) No.489, Revenue [SS-3 (1)] Department, dated 10.12.2003, whereby his immediate junior, who was arrayed as third respondent before the State Administrative Tribunal in O.A.No.1450 of 2004 was given promotion as Deputy Director with effect from 10.12.2003, as per the said G.O.

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It is crystal clear that Thiru.M.M.Deenadayalan is the immediate junior to the petitioner herein, as decided by the Tamil Nadu Administrative Tribunal, by its order, dated 05.04.2004 in O.A.No.1450 of 2004, who was promoted as Deputy Director of Survey and Land Records with effect

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https://hcservices.ecourts.gov.in/hcservices/

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from 10.12.2003 and hence, the petitioner, being senior to the said Deenadayalan is also entitled to get promotion to the said post of Deputy Director with effect from 10.12.2003.

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It is crystal clear that the petitioner is no way responsible for not promoting him, in spite of the order passed by the Administrative Tribunal and this Court referred to above.

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On the aforesaid circumstances, the respondents cannot assign any unsustainable reasons, stating that he had not served as Assistant Director for the required period and the other reasons, stated in the impugned letter, dated 05.04.2006, as the same are not sustainable in law. Since the petitioner had attained superannuation on 31.10.2004, he is entitled to get only notional promotion, hence, to meet the ends of justice, the writ petition is allowed, so as to provide notional promotion to the petitioner.

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In the result, this writ petition is allowed and the Letter No.42792/Ni/A3 (1) / 99-23, dated 05.04.2006 on the file of the first respondent is set aside. The respondents are directed to promote the petitioner with effect from 10.12.2003 on par with his immediate junior, M.M.Deenadhayalan, who was promoted as Deputy Director, o the said date, within four weeks from the date of receipt of a copy of this order. It is made clear that the petitioner is entitled to all monetary benefits, including retirement benefits, based on notional promotion. No order as to costs.

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tsvn

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Sd/ Dy.Registrar

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/true copy/ Sub Asst.Registrar

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https://hcservices.ecourts.gov.in/hcservices/

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1.The Secretary to Government of Tamil Nadu, Revenue Department,

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Secretariat, Chennai – 600 009.

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2.The Commissioner and Director of Land Survey and Settlement,

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Chepauk, Chennai – 600 005.

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+One cc to Mr.A.R.Suresh, Advocate (SR.22921) +One cc to the Govt.Pleader (SR.23090)

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W.P.No.23514 of 2006
ng(co)
gn 12/06/2013.

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https://hcservices.ecourts.gov.in/hcservices/

E. Durai v. the State of Tamil Nadu, Rep.

Case brief

What is this about?

What did the court decide?

E. Durai v. the State of Tamil Nadu, Rep.

Case brief

What is this about?

What did the court decide?

What the court decided

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