IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.06.2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.5466 of 2011
S.Joseph Selvaraj .. Petitioner
Vs.
1.Government of Tamilnadu,
rep by the Principal Secretary to
Labour & Employment Department,
Secretariat,
Chennai-600 009.
2.The Commissioner of Employment & Training
(Now the Director of Employment & Training),
[Employment Wing], Guindy,
Chennai-600 032.
3.The District Employment Officer,
District Employment Office,
Dharmapuri-636 701. .. Respondents
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the connected records pertaining to the permission request by the petitioner for LL.B Regular Study Admission on the file of the respondents and to declare the requested permission by the petitioner for admission into LL.B. Regular Study course as deemed permission.
For Petitioner : .Mr.S.Joseph Selvaraj
Petitioner in person
For Respondents : Ms.C.Devi, GA
- - - -
ORDER
The petitioner has filed the present writ petition initially seeking for a direction to the first respondent to consider the representation, dated 11.5.2010 for undergoing LL.B Course on regular study basis. In that representation, a copy of which is found enclosed in pages 8 to 10 of the typed set, the petitioner had stated that while he was working as an Assistant in the District Employment Office at Dharmapuri, he had applied for permission to join and study LL.B Course on regular mode during the academic year 2008-2009. The third respondent had acknowledged his requisition on 12.03.2008, but no orders were passed on his requisition. Thereafter, he submitted a representation to the first and second respondents.
2.At the time when the petitioner sought for permission, there was a move to fix an upper age limit of 30 years for getting entry into the admission to LL.B regular course from the academic year 2009-2010. Therefore, the petitioner’s apprehension was that he will lose his seat because of non receipt of reply from the third respondent. The petitioner’s ambition was to study LL.B regular course. Accordingly, he joined regular course during the year 2008-09. His date of joining course in Dr.Ambedkar Law College, Tirupathi in Andhra Pradesh was on 16.6.2008. Since none of the respondents had raised objections, the petitioner had presumed that there was no objection on their part and in fact, they had impliedly granted approval for doing the course. He had also applied Unearned leave on private affairs for undergoing the study of LL.B regular course. Since no formal orders were passed on his representation, he filed the present writ petition.
3.When the matter came up on 16.3.2011, the learned Government Advocate was directed to take notice. During the pendency of the proceedings, the petitioner filed an application in M.P.No.1 of 2011, seeking to amend the prayer. By the amended prayer, the petitioner sought for a declaration that his request to permit him for doing the LL.B regular study course has been deemed to have been granted. He also sought to implead the Secretary to Government, P&AR Department, Government of Tamil Nadu as party fourth respondent in M.P.No.2 of 2011. This Court while ordering M.P.No.1 of 2011 had felt that impleadment of proposed fourth respondent was unnecessary. Hence M.P.No.2 of 2011 stood dismissed.
4.On notice from this Court, a counter affidavit, dated 7.4.2011 was filed by the second respondent. The second respondent contended that when the petitioner was working in the office of the District Employment Office, Cuddalore, he was transferred to Dharmapuri on administrative grounds. His request for studying LL.B three years regular course was rejected by the second respondent on 19.6.2008. He had joined duty at Dharmapuri office on 14.3.2008. It is also stated that under Rule 5 of the Tamil Nadu Study Leave Rules, 1965, study leave cannot be granted ordinarily to a Government servant if he has rendered less than five years of service or if he is not holding Group A and Group B posts under the Government or who is due to retire within three years from the date on which he is expected to return duty after leave. It was claimed that since the petitioner is holding Group C post, he is not eligible to apply for study leave. It is also stated that a charge memo has been issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, dated 9.1.2009 to the petitioner for undergoing such a course and for his unauthorised absence from 1.6.2008. An Enquiry Officer has also been appointed on 18.5.2010. It was further stated that unearned leave on private affairs can be allowed only for 180 days, whereas the petitioner has been absent for more than three years. Further, a charge memo, dated 25.3.2010 was also referred to.
5.The petitioner has filed a reply affidavit, dated 11.4.2011. In the reply affidavit, it was claimed that the petitioner will be completing the course in June, 2011 and that the rejection order was antedated and communicated to the petitioner only on 1.8.2008. Even before the rejection order, the petitioner had joined the course. It was also stated that under the relevant rule, certain relaxation can be granted for grant of study leave and that even officers who are holding Group C post can go for study leave. It is also stated that there is no valid ground for rejecting the petitioner’s request for study leave. There cannot be discrimination in the matter of getting permission for study leave being confined only to Group A and Group B posts.
6.The petitioner had also filed an additional affidavit in support of M.P.No.1 of 2011 in which he had stated that he will be completing the course in June, 2011 and that he intends to practice as a lawyer. It was due to non receipt of any letter from the third respondent, he had joined the course. The third respondent is fully empowered to grant permission as per letter dated 22.6.1993 issued by the P&AR Department. In that letter, the Government has delegated its powers to subordinate officers to grant permission to avail leave for doing courses privately. In paragraph 2 of the letter, it was stated as follows:
“2.I am, therefore, to inform that the power to grant permission to Government servants who are desirous of acquiring higher qualifications by appearing privately, now vested with the Heads of Department as per the orders in the Government Order referred to above may be delegated to the District Controlling Officers like Joint Director/Deputy Director, as the case may be.”
7.Since the petitioner had applied well before his joining and there was no reply inspite of telegraphic reminder, he is entitled to join the course. In terms of G.O.Ms.No.200, P&AR Department, dated 19.4.1996, if no order according such permission is issued within a period of 15 days, it shall be deemed that the Head of the Department had granted permission for joining correspondence course or evening college. The petitioner earlier filed W.P.No.3645 of 2011 seeking for a direction to consider his review petitions, dated 18.11.2010 and 21.01.2011 regarding his voluntary retirement. This Court by an order, dated 18.2.2011 had directed his representation to be considered.
8.In the light of the legal positions and the fact that the petitioner is going to complete his LL.B Course and also the fact that the petitioner has given an application to go on voluntary retirement, this court has no hesitation to allow the writ petition made by the petitioner and to declare that the petitioner’s request for undergoing the course has been deemed to have been granted as no reply has been sent within the time stipulated by G.O.Ms.No.200, P&AR Department, dated 19.4.1996. The petitioner’s absence from the post shall be considered only on the basis of No Work, No Pay. He cannot claim any salary as if leave has been granted by the respondents. Since the petitioner having filed a sworn affidavit before this court that he intends to practice law and not to continue in the Government service and also the fact that he is also going to complete his three years course, this court is constrained to take such a decision. Accordingly, the writ petition will stand allowed as per the revised prayer. However, there will be no order as to costs.
07.06.2011
Index : Yes
Internet : Yes
vvk
To
1.The Principal Secretary to
Labour & Employment Department,
Government of Tamilnadu,
Secretariat,
Chennai-600 009.
2.The Commissioner of Employment & Training
(Now the Director of Employment & Training),
[Employment Wing], Guindy,
Chennai-600 032.
3.The District Employment Officer,
District Employment Office,
Dharmapuri-636 701.
K.CHANDRU, J.
vvk
PRE DELIVERY ORDER IN
W.P.NO.5466 of 2011
07.06.2011