IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 10-01-2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL WRIT PETITION NO.5819 OF 2001 AND W.P.M.P.NO.8238 OF 2001 P.Vaithianathan ... Petitioner Versus 1. The Chief Judge District court Pondicherry 2. The High Court, Madras represented by its Registrar-General Chennai 600 104 3. The Secretary to Government Department of Law Government of Podnicherry Pondiherry 4. S.Singaravelu .. Respondents For Petitioner :: Mr.P.V.S.Giridhar For Respondents :: Mr.S.Gopnath,AGP(R2) Mrs.N.Mala for Mr.T.Murugesan,Govt. Pleader(Pondicherry)(R.3) No Appearance (R4) Prayer: This Writ Petition is filed under Article 226 of The Constitution of India for the relief of issuance of a writ of certiorarified mandamus to call for the records of the first respondent relating to Order No.532/JD/A/2000 dated 14.02.2000 as confirmed by Order No.3720/JD/A/1999-2000 dated 13.3.2000 passed by the first respondent, quash the same in so far as the promotion of the fourth respondent is concerned and direct the first respondent to promote the petitioner to the post of Senior Clerk with effect from 14.02.2000 with all consequential benefits including arrears of pay and allowances and seniority in the said post. ORDER
(Order of the Court was made by S.J.MUKHOPADHAYA,J.)
The petitioner has challenged the Order No.532/JD/A/2000 dated 14.02.2000 as confirmed by Order No.3720/JD/A/1999-2000 dated 13.3.2000 passed by the first respondent and further prayed for promotion to the post of Senior Clerk with effect from 14.02.2000 i.e., from the date of his juniors were so promoted.
2. The brief facts of the case are:
that the petitioner joined as peon in the Judicial Department, Pondicherry on 22.11.1976. He was promoted to the post of Attender on 1.8.1980 and thereafter to the post of Copyist on 5.8.1982 and to the post of Junior Clerk on 26.12.1986. He passed the requisite common general Departmental tests for Ministerial staff, which is one of the two pre-requisite conditions for completing the period of probation in the post of Junior Clerk and for promotion to the next higher post of Senior Clerk. Apart from passing the common general departmental tests, the person is also required to pass typewriting test to become eligible for next higher post of Senior Clerk.
3. The Department of Personal and Administrative Reforms (Personal Wing) of the Government of Pondicherry issued G.O.Ms.No.24/93-DP&AR (Exam) dated 11.3.1993 where under provisions have been made to grant exemption from passing Departmental test in typewriting to Group ‘D’ employees promoted to the post of Lower Division Clerk and to the Lower Divisional Clerk appointed on compassionate grounds, which have been indicated below:
“(a) If above 45 years of age on the date of their appointment may be granted exemption from the date of their appointment.
(b) If between the age of 35 years and 45 years at the time of appointment may be granted exemption on attaining the age of 45 years.
(c) If below 35 years of age on the date of appointment may be given exemption after 10 years of service as Lower Division Clerk provided they have made two genuine attempts to pass the Departmental Test in Typewriting otherwise they may be granted exemption after attaining the age of 45 years.
(d) Those Lower Division Clerks who have made two genuine attempts for passing the Departmental Test in Typewriting prior to the issue of this G.O. but have not completed 8 years’ service as Lower division clerk may be granted exemption from passing the Departmental Test in Typewriting after completion of 8 years of service or on attaining the age of 45 years whichever is earlier.”
4. Admittedly, the petitioner was appointed below the age of 35 years and had completed ten years of service as Junior Clerk (Lower Divisional Clerk), but had not passed the requisite typewriting test. He having attained the age of 45 years on 12.2.1999 preferred a representation before the first respondent to grant him exemption from passing typewriting test pursuant to Clause (c) of G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993. The first respondent rejected the claim of the petitioner by the impugned order dated 13.3.2000 by stating the following grounds:
“You are hereby informed that taking into account the nature of the work attached to the post of Senior Clerk and the serious repercussions that would have on the litigant public if there is lapse or inefficiency on the part of the incumbent in the post of Senior Clerk, no exemption could be granted in respect of the tests which a Junior Clerk should pass so as to be eligible to be promoted to the post of Senior Clerk. The Hon’ble High Court of Madras as per the Official Memorandum No.ROC.357/93/C1, dated 14.06.1994 and ROC.1490/95/Pondy, dated 24.4.1995, mandated that no such relaxation can be granted.”
5. In the mean time, the respondents considered the cases of promotion of the following juniors to the petitioner and promoted them to the post of Senior Clerk, vide order dated 14.2.2000
“(1) R.Cujandaisamy (S.No.105)
(2) R.Raman (S.No.106)
(3) S.Kengadaran (S.No.107)
(4) S.Murugavel Gurunathan (S.No.108)
(5) S.Gowri (S.No.109)
(6) S.Singaravelu (S.No.110)”
The Serial Number given against each name shows their position in the seniority list published on 1.8.1989, wherein the petitioner has been shown at Serial No.103.
6. Learned counsel appearing on behalf of the petitioner has submitted that a wrong order has been passed by the first respondent rejecting the prayer of the petitioner for exemption and that the petitioner is entitled for exemption being codified as per Government Order in G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993. Further, according to him, the non-consideration of the case of petitioner for higher post while cases of his juniors were so promoted is violation of Articles 14 and 16 of the Constitution of India.
7. Learned counsel appearing on behalf of the respondent Government of Pondicherry referred to the counter affidavit and submitted that the petitioner was not eligible for promotion while cases of juniors were promoted, he having not passed the requisite typewriting test. So far as the relaxation of typewriting test is concerned, learned counsel referred to the impugned order to show the ground for such rejection.
8. We have heard the learned counsel for the parties and also perused the relevant orders and guidelines relating to relaxation of qualification.
9. It is not in dispute that the petitioner had entered in the service of the respondent below the age of 35 years and had completed more than ten years of service in 1999 when he attained the age of 45 years and claimed for relaxation. Under Clause (c) of Government Order in G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993, a person can claim exemption from passing Departmental test in typewriting if he fulfills the following conditions:
(i)he was below 35 years of age from the date of appointment, which the petitioner fulfils,
(ii) he has completed 10 years of service as Lower Divisional Clerk (Junior Clerk), which the petitioner completed in 1996; and
(iii) he has made two genuine attempts to pass the Departmental Test in Typewriting; otherwise attaining the age of 45 years.
10. The petitioner though made no attempts to pass Departmental Test in Typewriting, otherwise, having attained the age of 45 years, we hold that the petitioner is eligible for consideration of his case for exemption under clause (c) of the Government Order in G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993.
11. It has been brought to the notice of the Court that in fact the respondents subsequently agreed that the petitioner is entitled for exemption. For the said reason, he has been granted promotion to the post of Senior Clerk, vide Office Order No.532/JD/A/2004 dated 13.8.2004 issued from Judicial Department, Government of Pondicherry during the pendency of the writ petition. In the aforesaid background, while we reject the stand taken by the respondents, we hold that the impugned order of rejection dated 13.3.2000 is illegal and it is accordingly set aside.
12. As the respondents have not disputed the fact that the persons named above are juniors to the petitioner and when their cases were considered for promotion to the post of Senior clerk and promoted vide order dated 14.02.2000, the case of the petitioner was not considered. In the present case, as we have already held that the petitioner is entitled for exemption of passing typewriting test and Government has actually exempted and granted him promotion from subsequent date, we are of the view that the respondent authorities should consider the case of the petitioner for promotion to the post of Senior Clerk with effect from 14.2.2000 i.e., from the date of his juniors were promoted. On such consideration, if he is found fit, then the respondents should shift back the date of promotion from 13.08.2004 to 14.02.2000 and notionally fix the salary of the petitioner though he may not be entitled to the benefit of arrears.
13. The case is accordingly remitted to the respondents with a direction to consider the case of the petitioner for promotion to the post of Senior Clerk with effect from 14.02.2000 and communicate its decision within a period of three months from the date of receipt of copy of this order.
14. The writ petition is allowed with the aforesaid observations and directions. But in the facts and circumstances, there shall be no order as to costs. Consequently, the connected W.P.M.P. is closed.
(S.J.M.,J.) (M.V.,J.)
10.01.2008
Index: Yes
Internet: Yes
To
1. The Chief Judge
District court
Pondicherry
2. The High Court, Madras
represented by its Registrar-General
Chennai 600 104
3. The Secretary to Government
Department of Law
Government of Podnicherry
Pondiherry
S.J.MUKHOPADHAYA,J.
AND
M.VENUGOPAL,J.
usk
W.P.NO.5819 OF 2001
10-01-2008