IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2010
CORAM:
THE HON'BLE MR.JUSTICE K.CHANDRU
W.P.NO.34099 OF 2006
(O.A.NO.7917 OF 1998)
K.Periyasamy ... Petitioner
Versus
1.The Special Commissioner and Commissioner
for Revenue Administration
Chepauk, Chennai 600 005.
2.The District Revenue Officer
Pudukkottai.
3.The P.A.to the District Collector
Pudukottai District,
Pudukottai. ... Respondents
PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.7917 of 1998 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records on the file of the second respondent in connection with the orders passed by him in his proceedings Na.Ka.71244/97 A3 dated 02.09.1998 and Na.Ka.71244/97 A3 dated 04.09.1998 and quash the same by issuing a writ of certiorari.
For Petitioner : Mr.Jagadeesan
For Respondents : Mr.N.Senthil Kumar
Additional Government Pleader
O R D E R
Heard the submissions made on either side.
2.The petitioner was recruited as a Telex Operator in the Office of the second respondent. Subsequently, he was promoted as Assistant. He was sought to be reverted by the impugned orders dated 02.09.1998 and 04.09.1998 passed by the District Revenue Officer, Pudukottai and the Personal Assistant to the District Collector, Pudukottai, namely the second and third respondents herein, in and by which, he was reverted to the original post of Telex Operator. The reason given in the impugned order was that by G.O.Ms.No.321, Personnel and Administrative Reforms (Personnel-B) Department, dated 18.09.1992, amendments have been made to the Tamil Nadu Ministerial Service Rules and it was also stated that the Telex Operators will be eligible for appointment to the post of Junior Assistant, if they are qualified. The said amendments have been brought into force with effect from 22.08.1980, namely 12 years before the date of issuance of the said order. Quoting the said order, the impugned orders of reversion came to be passed.
3.The petitioner filed Original Application in O.A.No.7917 of 1998 before the Tamil Nadu Administrative Tribunal (in short “the Tribunal”) challenging the said order. The Tribunal admitted the Original Application on 29.09.1998 and granted interim stay stating that since the order of reversion has been issued without notice, the petitioner is eligible for an interim stay. The said interim stay continues to the benefit of the petitioner till date.
4.On notice from the Tribunal, the respondents have filed a reply affidavit dated 28.02.2000. In the reply affidavit, in para Nos.6,7,8 and 9, it has been averred as follows:
“6.As per G.O.Ms.No.1851, Revenue Department, dated 24.10.89, the Telex Operator belongs to the category of Typists/Steno-Typists and as per the G.O.Ms.No.2235, Revenue Department, dated 28.11.88, the Telex Operator who comes in the category of Typists/Steno-Typist becomes eligible for promotion to the post of Assistant directly.
7.In the instant case by applying the above provisions Thiru.K.Periyasamy who was a Telex Operator had been included in the 1991 list of Assistant directly.
8.Later, the Government issued amendment to the Special Rules for the Tamilnadu Ministerial Services in their G.O.Ms.No.321, Personnel and Administrative Reforms (Personnel-B) Department, dated 18.9.92, in which it has been stated that the Telex Operator shall be eligible for appointment as Junior Assistant after he has put in a minimum period of not less than three years of service in the category of Telex Operator. It has also been stated that this amendments should be deemed to have come into effect on the 22 August 1980. Therefore in accordance with the amendments issued in G.O.Ms.No.321, Personnel and Administrative Reforms (Personnel-B) Department, dated 18.9.92, the applicant was reverted as Telex Operator from the post of Revenue Inspector as it was found out that the person concerned could not be appointed as direct Assistant as there is no provision in the existing Tamilnadu Ministerial Service Rules. Subsequently he was posted as Junior Assistant by the then Personal Assistant (General)’s order in Rc.71244/97,A3, dated 4.9.98 adhering to the norms of the aforesaid G.O.
9…..he has obtained temporary stay for the period of 2 weeks from the Tamilnadu Administrative Tribunal on 29.9.98 and then the stay was extended until further orders by the Tamilnadu Administrative Tribunal in its order dated 13.10.98. Accordingly Thiru K.Periyasamy has been issued posting as Revenue Inspector in the cadre of Assistant as per the former District Revenue Officer’s Proceedings Rc.36859/98 A3, dated 10.10.98 and he continue to work as Assistant till now.”
5.In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.34099 of 2006.
6.The short question that arises for consideration is whether the impugned orders are legal and proper. There is no doubt that at the time when the petitioner was promoted as Assistant, the relevant Government Orders provided for such a promotion. It is not out of any misrepresentation on the part of the petitioner. On the contrary, G.O.Ms.No.321, Personnel and Administrative Reforms (Personnel-B) Department, dated 18.09.1992 came to be passed subsequent to his promotion in the year 1991. No doubt, it has been made with retrospective effect.
7.Time and again, the Supreme Court held that such a retrospective effect of any rule should not affect the vested right of the persons. In the present case, the Tribunal even did not note that prima facie case has been made out by the petitioner, and that has not been answered in the reply affidavit. In any event, since by virtue of retrospective nature of the rule, the petitioner has been reverted, this Court finds that such an action of the respondents is illegal and such a vested right of the petitioner cannot be taken away by the orders passed by the respondents. Hence, the writ petition stands allowed and the impugned orders stand set aside. No costs.
TK
To
1.The Special Commissioner and Commissioner
for Revenue Administration
Chepauk, Chennai 600 005.
2.The District Revenue Officer
Pudukkottai.
3.The P.A.to the District Collector
Pudukottai District,
Pudukottai