Allowed

P.Paramanantham v. the Special Commissioner and

Madras HC9 Apr 2013WP/6579/2006

Case brief

AI extract

What is this about?

Writ petition challenging the cancellation of petitioner's promotion. Court held that qualification depends on examination date per Fundamental Rules, not result publication. Reversion after 7 years was arbitrary. Petitioner's promotion upheld under Article 14.

What did the court decide?

Impugned order dated 27.02.2006 set aside; petitioner's promotion to Sub Inspector of Survey dated 11.08.1998 confirmed; respondents directed to pass consequential orders.

P.Paramanantham Vs the Special Commissioner and — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 09.04.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S. TAMILVANAN

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W.P. No.6579 of 2006

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P.Paramanantham ... Petitioner

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-vs-

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The Special Commissioner and Director of Survey, Chepauk, Chennai-5

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The Assistant Director of Survey and Land Records, Chennai-1 ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying for issuance of writ of certiorari calling for the records pertaining to the impugned order of the second respondent in Na.Ka.A.2/5000/05 dated 27.02.2006 and quash the same.

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Heard the learned counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for the respondents.

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The Writ Petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of certiorari calling for the records pertaining to the impugned order dated 27.02.2006 made in Na.Ka.A.2/5000/05 on the file of second respondent and quash the same.

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It is an admitted fact that the petitioner herein joined the service as Surveyor/Draughtsman, on 19.06.1984 for a consolidated pay. He was appointed as Time Scale Surveyor on 29.05.1992. While he was working in Erode District, he was transferred to Chennai District on 18.09.1997. He passed the Field Surveyor Test Paper-I in 1987 and Field Surveyor Test Paper-II in December, 1997. Similarly he passed the Deputy Surveyor Test Paper-I in December 1997 and the Deputy Surveyor Test Paper-II in May 1998, however, the last result was declared and published in the official bulletin only on 16.08.1998.

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

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Mr.Mohanraj, learned counsel appearing for the petitioner submitted that the date of passing of the test will date back to May 1998, when the last test was taken place. He was promoted as Sub Inspector of Survey in and by the Proceedings of the Assistant Director of Survey and Land Records, Chennai-1 in Na.Ka.A2/23/ 98(1) dated 11.08.1998 and accordingly, he joined duty on 13.08.1998 and the said promotion was ordered under rule 39(a) of the Tamil Nadu State and Subordinate Services General Rules. Learned counsel appearing for the petitioner submits that the petitioner has worked as Sub Inspector of Survey since from the date of promotion for about 7 years on the date of filing of the writ petition. He was fully qualified for the promotion as Sub Inspector of Survey, since he passed the departmental tests in May 1998 itself.

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It is also brought to the notice of this Court that as per proceeding dated 27.02.2006, the second respondent issued an order in Na.Ka.A2/5000/05, cancelling the promotion of the petitioner as Sub Inspector of Survey and reverted him to the post of Surveyor on the ground that he had not passed the Surveyor Tests within 5 years of his regularisation in the post of Surveyor i.e. before 29.05.1997 and that he passed the tests in December 1997. According to the learned counsel appearing for the petitioner, the impugned order is against law, hence, the same is liable to be set aside.

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Per contra, learned Additional Government Pleader appearing for the respondents submitted that the petitioner could have passed the departmental examinations within 5 years from the date of regularisation and the petitioner was promoted only on a conditional order, whereby it was informed that the promotion was temporary, as and when suitable candidates are posted, the petitioner would be reverted to the original cadre of Surveyor.

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The copy of the order dated 11.08.1998 is available in the typed set of papers, whereby the petitioner herein was promoted as Sub Inspector of Survey along with three other persons. The order reads that the petitioner and three other persons were temporarily promoted as Sub Inspectors of Survey from the cadre of Surveyor. In the proceeding, it is stated that the said promotion had been temporarily kept in abeyance, however, as per the order, the petitioner and three others were promoted. It is seen that there is no other conditions stipulated in the order. However, as per the impugned order dated 27.02.2006, the promotion already given to the petitioner by order dated 11.08.1998, was cancelled and the petitioner was reverted to the cadre of Surveyor, stating that the promotion was given under rule 39(A) though he had joined in the promoted post on 13.08.1998. As per the impugned order, it has been made clear that the petitioner Paramanantham was regularised as per G.O. Ms. No.15, Revenue Department dated 29.05.1992, however, he passed the departmental examination conducted for Surveyor only in the month of December 1997, though he could have passed the test within 5 years from the said date of regularisation.

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

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According to the learned counsel appearing for the petitioner and the averments made in the affidavit relating to the writ petition, it is made clear that the petitioner wrote the final examination of the departmental tests during May 1998 itself, however, the result was published in the official bulletin only on 16.08.1998 and he was promoted on 11.08.1998 as Sub Inspector of Survey. Learned Additional Government Pleader appearing for the respondents submitted that on the date of promotion on 11.08.1998, since the petitioner had not passed the required departmental tests, he was not qualified and hence he was reverted by the impugned order dated 27.02.2006.

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In this writ petition, the crucial point that this Court has to consider is whether the petitioner had been qualified on the date of his promotion on 11.08.1998, as Sub Inspector of Survey or not. In this regard, learned counsel for the petitioner referred rule 26(a) (2) of Fundamental Rules relating to Government servants. The said Sub Rule 26 (a)(2) reads as follows:

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"(2) In cases where the passing of an examination or test confers on a Government servant the title to any right, benefit or concession, such title should be deemed to have accrued on the day following the last day of the examination or test which he passed. In cases where the examination or test can be passed in instalments, the title to the right, benefit or concession will be deemed to have accrued on the day following the last day of the examination in the subject or subjects in which he has passed."

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As contended by the learned counsel appearing for the petitioner, it has been made clear by the said rule that in case where the departmental examination or test, has been passed by a Government servant, for the purpose of increment or any benefit or concession, the same would be deemed to have accrued on the day following the last date of the examination in the subject or subjects in which he has passed, though such result is announced on a subsequent date. Admittedly, the petitioner has passed the departmental tests, as per the publication in the official bulletin of the Tamil Nadu Public Service Commission (TNPSC) on 16.08.1998. In view of rule 26(a)(2) of Fundamental Rules, the date of the final departmental tests, could be the deciding factor. Hence, the petitioner has got accrued right on the date of attending the final examination, since he got through the departmental tests. Admittedly, the departmental examination was conducted during May 1998 and as per the result published on 16.08.1998 by Tamil Nadu Public Service Commission, the petitioner has passed all the required tests and therefore in view of the rule 26(a)(2) of Fundamental Rules. The petitioner has got accrued right on the date of the last examination attended by him during May 1998 and he was promoted only on 11.08.1998. Therefore, the legal presumption is that the petitioner passed the required tests during May 1998 itself and he was fully

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

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qualified for the promotion on 11.08.1998, on the date on which he was promoted as Sub Inspector of Survey. However, 7 years after the promotion of the petitioner, the impugned order has been passed by the second respondent reverting him from the cadre of Sub Inspector of Survey, which is arbitrary and against principles of natural justice and also against law. Even assuming that the petitioner had not passed the departmental tests subsequently prior to the date of his promotion, the respondents could have ratified the same. He cannot be reverted after 7 years from the date of his promotion, by the subsequent Assistant Director on the ground that the petitioner had not passed the test prior to his promotion, within the period.

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It is seen that there is no other allegation against the petitioner in discharging his duty as Sub Inspector of Survey. Having joined the service as Surveyor/Draughtsman on 19.06.1984, after regularisation, he passed all the departmental tests required for the promotion of Sub Inspector of Survey. He was rightly promoted on 11.08.1998 and after the promotion he has discharged his duty as Sub Inspector of Survey for about 7 years, however, by a wrong understanding of law, the petitioner was reverted by the impugned order passed by the second respondent.

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On the aforesaid circumstances, the respondents cannot take any arbitrary decision, 7 years after the promotion given to the petitioner, on the ground that he was not eligible to get promotion on 11.08.1998. It is crystal clear that as per rule 26(a)(2) of Fundamental Rules, if a Government Servant passed the required departmental tests, the accrued right should be decided based on the date of the last examination attended by him and not on the date of publishing the result in the service commission bulletin.

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In the instant case, the petitioner was promoted as Sub Inspector of Survey on 11.08.1998, as per proceedings No.Na.Ka.A2/ 23/98(1) and his result was announced by way of official bulletin of Tamil Nadu Public Service Commission on 16.08.1998. It is not in dispute that he written his final test during the month of May 1998 itself, prior to the date of his promotion. On the said circumstances, the respondents cannot turn and take a contrary view say that the petitioner was not qualified on the date of his promotion. Similarly 7 years after the promotion, the second respondent cannot arbitrarily revert the petitioner by cancelling the order of promotion on the ground that he had not passed the departmental tests, though he had passed the required tests as per law prior to the date of his promotion. It is also an admitted fact that there was no suppression of material fact by the petitioner and the promotion was not obtained by him by way of mis-representation or fraudulent means. Only on the own accord of the respondents, the petitioner was promoted, as he possessed the required qualifications.

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

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On the facts and circumstances, this Court is of the view that the impugned order passed by the second respondent is arbitrary and against law and violating Article 14 of the Constitution, since similarly placed persons were promoted.

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In the result, to meet the ends of justice, the writ petition is allowed and the impugned order dated 27.02.2006 passed by the second respondent in Na.Ka.No.A2/5000/05 is set aside and it is also made clear that the promotion of the petitioner to the cadre of Sub Inspector of Survey as per the order of the Assistant Director of Survey and Land Records on 11.08.1998 is perfectly valid and the petitioner is entitled to get all monetary and other benefits as per rules, according to law with effect from 11.08.1998 on par with similarly placed officers. The respondents are directed to pass consequential orders within a period of eight weeks from the date of receipt of a copy of this order. No order as to costs.

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Sd/-
Asst. Registrar
/true copy/
Sub Asst. Registrar.
vga
To
1. The Special Commissioner
and Director of Survey,
Chepauk, Chennai-5

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The Assistant Director of Survey and Land Records, Chennai-1

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1 C.C. to Government Pleader SR.NO.2094

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W.P. No.6579 of 2006

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MRD[CO] RR 05/06/2013

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

P.Paramanantham v. the Special Commissioner and

Case brief

What is this about?

What did the court decide?

P.Paramanantham v. the Special Commissioner and

Case brief

What is this about?

What did the court decide?

What the court decided

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