IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.12.2009
CORAM:
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
W.P.No.29219 of 2004
and M.P.No.35477 of 2004
.......
S.Kalimuthu ... Petitioner.
Vs.
1.The State of Tamil Nadu Rep. by
The Secretary to Government,
Finance (SS) Department,
Chennai 9.
2.The Commissioner of Small Savings,
No.735, L.L.A.Building,
Anna Salai, Chennai 2. ... Respondents.
PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records in pursuant to the impugned order passed by the 2nd respondent in Proc.O.Mu.1385/A1/2002 dated 26.11.2002 and quash the same and consequently direct the respondents to promote the petitioner to the post of Superintendent (Field Officer) with effect from 04.07.1992 and consequently promote him as District Savings Officer, with effect from 15.07.2003, the date on which his immediate junior was promoted with all monetary benefits in the revised pay, arrears therein and other consequential service benefits.
For Petitioner : Mr.S.M.Subramaniam
For Respondents : Mrs.C.K.Vishnupriya
Additional Government Pleader
O R D E R
The writ petition has been filed praying to issue a writ of Certiorarified Mandamus calling for the records in pursuant to the impugned order passed by the 2nd respondent in Proc.O.Mu.1385/A1/2002 dated 26.11.2002 and quash the same and consequently direct the respondents to promote the petitioner to the post of Superintendent (Field Officer) with effect from 04.07.1992 and consequently promote him as District Savings Officer, with effect from 15.07.2003, the date on which his immediate junior was promoted with all monetary benefits in the revised pay, arrears therein and other consequential service benefits.
2.The petitioner was initially appointed as a Junior Assistant in the Tamil Nadu Raffle Department on 13.08.1981. He was promoted as assistant on 24.09.1987. Thereafter, the petitioner was transferred to the Small Savings Department as Assistant on 31.07.1992 on administrative grounds. There was no request from the petitioner for transfer. The transfer was at the instance of the department.
3.The petitioner states that he was promoted as Superintendent (Field Officer) on 16.06.1998. The petitioner seniority as Assistant was fixed based on the date of appointment in the transferred department namely small savings department i.e, on 31.07.1992. The original seniority in the post of Junior Assistant and Assistant in the Tamil Nadu Raffle Department was not considered. In other words, the petitioner seniority in the Small Savings Department is below his juniors who was appointed later in service.
4.Based on the request and representation of the petitioner, the Tamil Nadu Public Service Commission in its proceedings letter No.8872/PSD-A2/96 dated 10.06.1999 issued following direction to the Government which reads as follows:
“In the G.O.Ms.No.366, Finance (SS) Department dated 22.05.1992, orders were issued that the 2 posts of Assistants along with the staff originally sanctioned to the Directorate of Tamil Nadu Raffles be diverted to the Directorate of Small Savings for appointment as Accountant in Small Savings wings of Collectorates in the cadre of Assistant. This is because of the surplus staff in the Tamil Nadu Raffles found under ZBB review. When surplus staff is found in a Department in the cadre of Assistant, the staff found in excess should have been reverted and they should not be diverted to some other department i.e, in the cadre of Assistant. The two individuals viz., Tvl.S.Kalimuthu and V.Baskaran who were Junior most in the cadre of Assistant and found surplus, without being reverted, had been diverted/transferred to the Directorate of Small Savings without the consultation of the Commission. As the matter took place in the mid of 1992, the only way to fix the seniority of the above said two individuals, in the cadre of Assistant in the Directorate of Small Savings, is to take up the date of regularization of their services in the cadre of Assistant as the criteria for fixing up their seniority as already suggested by the Government in the Personnel and Administrative Reforms Department.”
5.Based on the recommendations of the Tamil Nadu Public Service Commission as above, the Government in its proceedings letter No.18563/rp/nr/95-27 dated 25.06.1999 stated that the petitioner is entitled to seniority from the date on which he was regularized as Assistant. In other words, the petitioner is entitled to get the benefit of promotion and regularization in the post of Assistant (i.e.) on 24.09.1987 when he was serving in the Raffles Department. Inspite of the recommendation of the Public Service commission and the Government letter cited above, the Commissioner of Small Savings Department/second respondent rejected the request of the petitioner to fix the seniority in the promotion post of Field Officer as on 04.07.1992 on par with his immediate junior based on the number of years of service as Assistant (i.e.) from 24.09.1987. The plea was rejected by the respondent on 26.11.2002 in file O.M.1385/A1/2002 stating that as per the rules the claim for posting as Superintendent/Field Officer will be the date on which his immediate junior was promoted (i.e.) 28.3.1994. The authority rejected petitioner’s claim for selection in the higher post as on 04.07.1992.
6.The plea of the petitioner is that he should be considered for promotion from 04.07.1992 was rejected based on certain departmental rules and proceedure. Aggrieved thereby the present writ petition has been filed.
7.The respondents on notice have filed a counter affidavit through one Mr.T.Murthy, I.P.S. and Additional counter affidavit has been filed by Mr.C.Umashankar, I.A.S. The learned counsel for the respondent states that in the counter affidavit, the Government by letter No.18563, Finance (SS) Department, dated 25.06.1999, have directed that the seniority of the petitioner should be fixed with effect from the date of regularization of the service in the cadre of Assistant. However, on the basis of G.O.Ms.No.1781, Finance (SS) Department, dated 24.12.1971 whereby adhoc rules have been framed, the respondent department tries to justify the impugned order stating that the petitioner should have served atleast for five years in the Small Savings Department and that he is not a graduate. In the Additional counter affidavit respondents relied upon G.O.Ms.No.1781 dated 24.12.1971.
8.The fact that the petitioner was appointed as an Assistant from 24.09.1987 in the Tamil Nadu Raffle Department and transferred to the small savings department is not disputed. Therefore, the learned counsel for the petitioner pointed out that he will be entitled to the seniority in terms of G.O.Ms.No.648, dated 25.06.1985 which reads as follows:
“,t;thW gzpaplk; fhypapd;ikahy; xU myfpypUe;J ntW myfpw;F khw;wg;gl nehpLk; muR CHpah;fis mth;fs; tpUg;gj;jpd; nghpy; khw;wg;glhjjhy; mth;fsJ KJepiyia ,Hf;fj; njitapy;iy/”
In other words if the transfer of an employee is from one office to another without his consent he will not lose his seniority.
9.Further, as per the proceedings of the department of small savings dated 05.08.1992, the petitioner was appointed as an Assistant in the existing vacancy, in the Small Savings Department. In other words, he continued in the post of Assistant in the Small Savings Department as on 05.08.1992. This date has to be reckoned for the purpose of considering petitioner’s future service benefits. In another proceedings dated 23.04.1998, the Commissioner of Tamil Nadu Raffle Department passed an order regularising the services of the petitioner in the post of Assistant, and it reads as follows.
“ORDER:
As per General Rule 4 of the Tamil Nadu State and Subordinate Service Rules, the temporary service of Thiru S.Kalimuthu, formerly Assistant of this office and now working as Cashier (Assistant Cadre) in the Directorate of Small Savings Department are regularised in the cadre of Assistant with effect from 24.09.1987 Fore Noon.
2.Necessary entries have been made in the Service Register of the individual.”
Therefore, the petitioner’s entitlement to the post of Assistant comes into effect from 24.09.1987. Based on the proceedings of the Tamil Nadu Public Service Commission, the Government has already recommended petitioner’s case for the future service benefits consequent to promotion and regularization in the post of Assistant as on 24.09.1987. The impugned order however does not refer to these proceedings and therefore there is clear case of non application of mind. Further more the respondents have relied upon G.O.Ms.No.1781, dated 24.12.1971 para 3 reads as follows:
“3.APPOINTMENT:
Appointment to the posts shall be made by recruitment by transfer from among the Superintendents in the Directorate of Small Savings or from among the Assistant who have rendered not less that 5 years of service as Assistants in the Directorate of Small Savings or from among the Assistants in the Tamil Nadu Secretariat Service or from any other service:-
(G.O.Ms.No.138, Finance (SS) Department, dated 10.03.1982)” (emphasis supplied)
Therefore, the said Government Order will enure to the petitioner’s benefit.
10.The respondents interpret the said Government Order and state that the petitioner has not rendered five years of service in the Small Savings Department. This clearly establishes that the respondent has misconceived the Government Order. The five years of service required will have to be reconned from other service as well. The service rendered by the petitioner as Assistant in the Directorate of Tamil Nadu Raffle Department has to be considered on a clear reading of G.O.Ms.No.1781 dated 24.12.1971. The respondent tried to explain this stand by their statement in the counter affidavit contrary to the Government Order. The impugned order does not state any thing.
11.It is trite law that the case of the respondents cannot be improved on the basis of the counter-affidavit or the written submissions vide Mohinder Singh Gill and another v. – The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N.Mukherjee v. – Union of India (1990)4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:-
“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16)(at p.18):
“Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself”.
Orders are not like old wine becoming better as they grow older.”
Para 36 in (1990)4 SCC 594 reads thus:-
“36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision on judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage.”
In this case the order is totally bereft of reasons and a case of total non application of mind to relevant Government Order and direction’s of the Tamil Nadu Public Service Commission.
12.In view of the above, the petitioner who is already promoted as an Assistant as on 24.09.1987 and on completion of the requisite number of years as an Assistant, will be entitled to all future service benefits like promotion etc. The impugned order is, therefore, set aside and the writ petition is allowed as above. Consequently, connected miscellaneous petition is closed. No costs.
vsm
To
1.The Secretary
Government of Tamil Nadu,
Finance (SS) Department,
Chennai 9.
2.The Commissioner of Small Savings,
No.735, L.L.A.Building,
Anna Salai,
Chennai 2