IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.10.2010
Coram
The Honourable Mr.Justice D.HARIPARANTHAMAN
W.P.No.45700 of 2006
(O.A.No.4544 of 2000)
N.Rukmani ... Petitioner
Versus
1.The State of Tamil Nadu rep by
the Secretary to Government,
Backward Classes, Most Backward Classes,
and Minorities Welfare Department,
Secretariat,
Fort St.George, Chennai-600 009.
2.The Secretary to Government,
Social Welfare & Nutritious Meal Programme
Department,
Fort St.George, Chennai-600 009.
3.The Secretary to Government,
Personnel and Administrative
Reforms Department,
Secretariat,
Fort St.George, Chennai-600 009. ... Respondents
PRAYER: This writ petition is filed under Article 226 of Constitution of India, seeking a writ of certiorari to set aside the letter No.6032/OP/99-7 dated 24.5.2000 of the 1st respondent and consequently direct the respondents to upgrade the Applicant as Joint Secretary in accordance with the G.O.Ms.No.126, P & A.R(U.SPL.) Department dated 29.5.1998 sanctioning the pay and emolument of the posts.
For Petitioner : Mr.Karthik Rajan
For Respondents : Ms.C.Devi
Govt. Advocate
O R D E R
The petitioner joined the Tamil Nadu Secretariat Services as Junior Assistant in 1966. She was promoted as Assistant and later redesignated as ASO in 1969. She was further promoted as Under Secretary with effect from 16.4.1993.
2.The third respondent sent a letter dated 03.09.1993 directing her to go to Dindigul for training for promotion to the post of Deputy Secretary. The petitioner sent a reply dated 07.09.1983 expressing her inability to go for Dindigul for training as her husband was a heart patient requiring regular care and also her elder daughter was in advance stage of pregnancy. She wanted the third respondent to depute her to Chengalpattu District whenever the vacancy arises.
3.In the circumstances, the third respondent issued G.O.Ms.339, P&AR (Per.O) Department, dated 09.09.1993 directing the list of Under Secretaries to undergo training at different places and the petitioner was one among them. As per the G.O., she was sent to Dindigul for training. In the letter dated 09.09.1993 enclosed along with the Government Order, the petitioner was directed to undergo training at Dindigul and her request to depute her to Chengalpattu District was not acceded to. Moreover the petitioner was requested to furnish a declaration in a printed form to the effect that she was not willing to go for training as provided in the G.O.Ms.339, P&AR (Per.O) Department dated 09.09.1993 and that she could go for training in the future vacancy in the district that was chosen by her. Accordingly, the petitioner gave a declaration along with a letter dated 10.9.1993 explaining the circumstances under which she was not able to go for training at Dindigul. Hence, she continued as Under Secretary. That is, in 1993, when the petitioner was sent for training for promotion to the post of Deputy Secretary, she did not opt to go for the training in view of the family circumstances. Others went for training and later they became Deputy Secretaries. The petitioner retired as Under Secretary on reaching the age of superannuation on 30.9.2000.
4.All the departments in the Secretariat, including the Finance Department, were treated as one unit in the Tamil Nadu Secretariat Service, for the purpose of appointments and transfers and promotions. The Finance Department was excluded from the one unit system on the basis of the executive order issued on 05.06.1970. But, no amendment to that effect was issued to the Special Rules for Tamil Nadu Secretariat Services till 1994. The Government issued G.O.Ms.30 Personal and Administrative Reforms Department, dated 28.1.1994 amending the service rules for the Tamil Nadu Secretariat Service to the effect that the Finance Department shall be a separate unit and these orders would be given retrospective effect from 05.06.1970, the date on which the executive order was issued. After 1970, when the Finance Department became a separate unit, employees therein moved to higher levels in a faster phase than other departments.
5.The seniors in other departments sought upgradation on par with their juniors in the Finance Department. The Government conceded the request of the seniors and issued G.O.Ms.126, P&AR (U.SPl.) Department, dated 29.05.1998 providing the benefit of upgradation of pay for seniors on par with their juniors in the Finance Department, who joined before 28.01.1994. The said Government Order contained an Appendix I, wherein the details of seniors in a unit to be upgraded on par with their juniors in Finance Unit in higher post was enclosed. The name of the petitioner stands at Sl.No.63 in the category of persons to be upgraded as Joint Secretary to Government.
6.After the G.O.Ms.126, P & AR (U.SPl.) Department, dated 29.05.1998 was issued, she made a representation dated 03.06.1998 requesting to grant the scale of Joint Secretary to the Government on par with her junior one Thiru Habib Rahiman who was working as Joint Secretary in the Finance Department.
7.The Deputy Secretary to Government, Social Welfare & Nutritious Meal Programme Department, passed an order dated 19.1.1999 rejecting her request for up gradation as per G.O.Ms.126, P&AR (U.SPl.) Department, dated 29.05.1998 on the ground that the petitioner failed to go for training for the purpose of promotion to the post of Deputy Secretary to Government. The request for upgradation was thus rejected.
8.The petitioner, thereafter, made a further representation dated 09.6.1999 to the third respondent seeking upgradation of pay in terms of G.O.Ms.126, P & AR (U.SPl.) Department, dated 29.05.1998. But the first respondent passed the impugned order dated 24.5.2000 rejecting her request on the similar lines as contained in the aforesaid order dated 19.01.1999 of the Deputy Secretary to Government.
9.The petitioner filed O.A.No.4544 of 2000 (W.P.No.45700 of 2006) to quash the order dated 24.5.2000 of the first respondent and consequently, for a direction to the respondents to up grade her as Joint Secretary in accordance with G.O.Ms.126 P & AR (U.SPl.) Department dated 29.05.1998 with all benefits.
10.The respondents filed a reply affidavit refuting the allegations. The petitioner filed rejoinder affidavit.
11.Heard Mr.Karthik Rajan, learned counsel for the petitioner and Ms.C.Devi, learned Government Advocate.
12.G.O.Ms.126, P & AR (U.SPl.) Department, dated 29.05.1998 provides the benefit of up gradation of pay to seniors on par with their juniors in Finance Department, who joined in services before 28.1.1994. Clause 12 (6) of G.O.Ms.126, P&AR (U.SPl.) Department, dated 29.05.1998 excludes certain persons from being given the up gradation and in those cases, the respondents would consider separately on a case to case basis. Clause 12 (6) of G.O.Ms.126, P&AR (U.SPl.) Department, dated 29.05.1998 is extracted:
“In respect of persons falling under the following categories, the question of upgradation will be considered separately on a case-to-case basis.
(i) Suffered punishment at any stage;
(ii) overlooked for promotion at any stage;
(iii) who are currently undergoing punishment;
(iv) Against whom charges under rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules or enquiry by Tribunal for Disciplinary proceedings are pending of charge sheet filed before any criminal court;
(v) who are currently on or hand at any earlier occasion gone on leave on loss of pay without Medical Certificate which will not count for increment.
(vi) who are how on other duty ” outside the regular line and whose service rights have not been terminated.”
13.The case of the respondents is that the petitioner is not entitled to up gradation in view of clause 12 (6) (ii). i.e., since she was overlooked for promotion from Under Secretary to Deputy Secretary in 1993, she could not ask for up gradation under G.O.Ms.126 dated 29.5.1998. But the case of the petitioner is that clause 12 (6) (ii) of the G.O.Ms.126 dated 29.5.1998 does not apply to her, as she was never over looked for promotion. According to the petitioner, in her case, the petitioner was not able to avail the promotional opportunity and she was not overlooked by the Department in the matter of promotion.
14.Moreover, it is contended that clause 12(6) of the G.O.Ms.126 dated 29.5.1998 enlisted the persons, who had certain disqualifications for upgradation. Therefore, clause 12(6)(ii) could be attracted only in cases where the person suffered due to disqualification for promotion.
15.It is further contended that when the name of the petitioner finds place in the Appendix-I of G.O.Ms.126 dated 29.5.1998, benefit of G.O.Ms.126 dated 29.5.1998 could not be denied to her. Had she been covered by Clause 12(6) of the G.O.Ms.No.126, her name could not have been included in the Appendix to the G.O. It is also pointed out that since the petitioner did not go for training in 1993, she did not become Deputy Secretary. Had she gone for training, she could have worked as Deputy Secretary and she could get the pay on par with one Mr.Nagarajan, who was a junior. She was shown at Sl.No.63 as she did not work as Deputy Secretary and she is entitled to the scale of one Mr.Ranjan. While both Mr.Nagarajan and Mr.Ranjan are Joint Secretaries to Government, Nagarajan was in the higher slab because of his promotion to the post of Joint Secretary at an earlier point of time and Mr.Ranjan was at a lower slap.
16.I have considered the submissions made on either side.
17.G.O.Ms.126 dated 29.5.1998 granted the benefit of upgradation to seniors. Admittedly, the petitioner is senior to the Joint Secretaries whose names are given in Appendix I. The petitioner was promoted as Under Secretary in 1993 itself. She was sent for training to Dindigul for the purpose of promotion to the post of Deputy Secretary. She was not able to go for training due to family circumstances. She gave a declaration in the printed format as required by the third respondent. She wanted to avail her chance in future if a vacancy arises in Chengalpattu District. However, she did not have an opportunity. When G.O.Ms.126 dated 29.5.1998 was issued, she was working only as Under Secretary. The respondent included the name of the petitioner as eligible for upgradation in Appendix I on par with the juniors occupying the post of Joint Secretary in Finance Department. When she requested for the benefit of G.O.Ms.126 dated 29.5.1998, the third respondent passed the impugned order on the ground that the petitioner did not go for training in 1993 for promotion to the post of Deputy Secretary and therefore, she could not get the benefit of G.O.Ms.126 dated 29.5.1998.
18.In my view, the reasoning of the third respondent is illogical and contrary to G.O.Ms.126 dated 29.5.1998. Having included the name of the petitioner in Appendix I to the G.O.Ms.126 dated 29.5.1998, the third respondent cannot deny the benefit under G.O.Ms.126 dated 29.5.1998. If the petitioner claims for promotion to the post of Deputy Secretary, citing that she was not able to go for training because of family reasons, the respondents are justified in stating that she is not entitled to her claim. It was not her case that she should be actually given promotion to the post of Deputy Secretary even though she was not able to attend the training. She wants only upgradation under G.O.Ms.126 dated 29.5.1998. One has to see whether she is entitled for upgradation. Of course, if she suffers any disqualification, her case would be considered case-to-case basis. If she comes under anyone of the categories of disqualification, her name could not have found place in Appendix I. In any event, as rightly contended by the learned counsel for the petitioner, the disqualification enlisted in clause 12(6) of G.O.Ms.126 dated 29.5.1998 relates to persons, who are currently undergoing punishment and persons against whom charges are made under 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules etc. Hence, the disqualification referred to in Clause 12(6)(ii) should be read along with other disqualification mentioned in Clause 12(6) i.e. only persons, who were denied promotion by the department could not claim the benefit of G.O.Ms.126 dated 29.5.1998. Here, the petitioner was not denied promotion. Only in case of denial of promotion, the petitioner could not ask the benefit of G.O.Ms.126 dated 29.5.1998. It is not so. The purpose of G.O.Ms.126 dated 29.5.1998 is to give relief to seniors who are placed on lower levels in other departments. In this case, though the petitioner is entitled to the benefit of G.O.Ms.126 dated 29.5.1998, as her name is found in Appendix I of the G.O., she was unjustly denied upgradation by the impugned order. Hence, the impugned order is quashed. The respondents are directed to grant her the benefit of upgradation as per G.O.Ms.126, P & AR(U.SPl.)Department, dated 29.05.1998 and also to revise the pension accordingly. It is also further directed to pay the arrears pursuant to the upgradation as well as the arrears payable in terminal benefits, within a period of eight weeks from the date of receipt of a copy of this order.
19.Writ Petition is disposed of in the above terms. No costs.
01.10.2010
Index : Yes.
Internet : Yes.
KUA/TK
To
1.The Secretary to Government
Government of Tamil Nadu
Backward Classes, Most Backward Classes
and Minorities Welfare Department,
Secretariat, Fort St.George,
Chennai-600 009.
2.The Secretary to Government
Social Welfare & Nutritious Meal Programme
Department,
Fort St.George, Chennai-600 009.
3.The Secretary to Government
Personnel and Administrative Reforms Department,
Secretariat,
Fort St.George, Chennai-600 009.
D.HARIPARANTHAMAN, J.
KUA/TK
W.P.No.45700 of 2006
(O.A.No.4544 of 2000)
01.10.2010