M.Sasikumar v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.31256 of 2006M.Sasikumar.. Petitioner Vs.1.The State of Tamilnadu rep. By its Secretary to Government, Revenue Department, Fort St. George, Chennai-9.2.The Commissioner & Director of Survey and Land Records, Chepauk, Chenna-5.3.The Additional Director of Central Survey and Land Records, Chepauk, Chennai-5.4.The Joint Director of Survey, Central Survey Office, Chepauk, Chennai-5... RespondentsThis writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records on the file of thefourth respondent in his proceedings in Na.Ka.A.16 No.19109/97,dated 28.7.97 and to quash the same and consequently to direct therespondents to regularize the services of the applicant in the postof Draftsman with all attendant benefits. For Petitioner: Mr.V.RavikumarFor Respondents: Mr.P.Gurunathan, GA- - - - ORDERThe petitioner filed O.A.No.6250 of 1997, seeking to challengethe order, dated 28.7.97 passed by the fourth respondent. In viewof the abolition of the Tribunal, the matter stood transferred tothis court and was renumbered as W.P.No.31256 of 2006. Therespondents have filed a reply affidavit, dated Nil (2009),justifying the impugned order. 2.The petitioner had passed 9th standard. His father lateK.Madanagopal, while alive, was working as an Office Assistant inthe Central Survey Office at Chennai. The petitioner applied for an https://hcservices.ecourts.gov.in/hcservices/ appointment under compassionate ground. The petitioner wasappointed as an Office Assistant, by an order, dated 11.10.91. Healso joined service as a OA on 15.10.91 and his services wereregularised with effect from 16.10.91.3.The petitioner had passed the SSLC examination subsequentlyand therefore, requested for a posting as a Draftsman. The fourthrespondent, by an order, dated 1.6.94 appointed the petitioner inthe post of Draftsman on a temporary basis. As per the rules inforce, any person appointed as a Draftsman, will be given 3 monthsin-service training under the Government expenses. The petitioneralso underwent training successfully. Thereafter, in order toregularizing him in the post of Draftsman, the concurrence of theState Government was sought for. 4.The Government, after examining the proposal, by an order,dated 7.6.96, held that the petitioner did not possess the minimumgeneral educational qualification for the post of draftsman at thetime of his initial appointment and therefore, in the light of theGovernment Order In G.O.Ms.No.1499, Labour and EmploymentDepartment, dated 3.8.89, he may be reverted. In that order, theGovernment has stated that the person, who was appointed oncompassionate appointment, was having an higher \qualification andif there was no vacancy available, he can be appointed in the lowerpost and thereafter, re-appointed to the higher post whenever thereis vacancy. That contingency never arose in the case of thepetitioner, since the petitioner never had the minimum generaleducational qualification at the time when he made an applicationfor compassionate appointment. His subsequent requisition cannotenable him to get an higher post. 5.Therefore, the fourth respondent issued the impugned order,dated 28.7.97 reverting the petitioner from the post of draftsmanto that of Office Assistant. The Tribunal granted an interimorder of stay of reversion by its order, dated 6.8.97. The saidorder came to be continued until further orders. 6.Mr.V.Ravikumar, learned counsel for the petitionerstrenuously contended that the impugned order suffers from severalillegalities, including that it was opposed to the principles ofnatural justice. In paragraph 6.2, he also stated that oneVenkatesan, Draftsman working in the same office, who was similarlyplaced, was being continued without any such objection. 7.In response to the said allegation, in para 6 of the replyaffidavit, the second respondent has stated that in the case ofVenkatesan, the Government had issued G.O.Ms.No.2, RevenueDepartment, dated 3.2.2000, directing reversion of the saidVenkatesan. As against his reversion, the said person has filedO.A.No.938 of 2000 before the Tribunal and by virtue of the interimorder granted by the Tribunal, dated 25.2.2000, he is continuing inservice and the main OA is still pending. 8.The learned counsel also placed reliance upon the judgmentof this court in R.Mohan Vs. Special Commissioner and Commissionerfor Revenue Administration, Chennai and another reported in (2006) https://hcservices.ecourts.gov.in/hcservices/ 1 MLJ 590 and also referred to paragraphs 4 and 5 of the saidjudgment, which are as follows:"4. ...The learned counsel also cited a judgment ofthe Supreme Court reported in Buddhi Nath Chowdry andothers v. Abahi Kumar and others, (2001) 3 S.C.C. 328,wherein it is held that the appointment thoughirregularly made at the initial stage, shall not becancelled after the lapse of long time.5. ... Petitioner having been appointed in the year1973, assuming his appointment is irregular, followingthe proposition laid down in the Supreme Court in theabove cited decision, I hold that in this case only aformal ratification is required, but instead, thereversion order now made is totally unwarranted. Theirregular appointment, if it is ratified, willdefinitely confer a right on the petitioner to get hisappointment ratified from the date of initialappointment. Therefore the impugned order is liable tobe set aside."9.He also relied on the judgment of this court in S.Ganapathyvs. Commissioner of Commercial Taxes, Chennai and another reportedin (2006) 3 MLJ 532 and also referred to the following passagefound in paragraphs 15 and 18 of the said judgment, which are asfollows:"15.The law is well settled in this aspect.Normally when an official has been conferred with thebenefit of promotion as well as with the pay scale andthe same has been enjoyed for a considerable period, itis not open to the authority later to decide againsthim, on the basis that a mistake has been committed bygiving promotion or pay fixation. .......18.In such circumstances, as laid down by theHon'ble Supreme Court, even assuming there is a fault onthe part of the authorities in wrongly construing anyprovision, that cannot be held against the petitioner,especially in the circumstances that the petitioner hasbeen conferred the benefit to which he is entitled underlaw and also allowed to be promoted as per order dated7.7.2000."10.These two judgments cited by the petitioner do not reflectthe correct ratio laid down by the Supreme Court. It is not inevery case of an irregular appointment/promotion, a person isentitled for continuance in the service on the ground of longofficiation in the post or that the mistake was committed not dueto the fault of the employee. In the case of the petitioner, he wasappointment on compassionate ground, which is held to be anexception to Articles 14 and 16 of the Constitution. The SupremeCourt had categorically held that such appointments can be madeonly within the norms prescribed by the Government. Therefore, atthe time when the petitioner made the application, he was correctly https://hcservices.ecourts.gov.in/hcservices/ given an appointment as an OA. If his subsequent acquisition ofhigher qualification is a criteria for granting an appointment toan higher post, then there may be so many other entrance toGovernment service, who may be similarly qualified to get thehigher post. 11.As rightly contended by the respondents, G.O.Ms.No.1499,L&T Department, dated 3.8.89 does not apply to the case of thepetitioner, as his case was not of having a higher qualification atthe time of appointment, but was granted lower post due to want ofvacancy.12.The correct position of law in this regard has been laiddown by the Supreme Court vide its judgment in Union of India andanother vs. Narendra Singh reported in (2008) 2 SCC 750. It isnecessary to refer to paragraphs 32 to 34 of the said judgment,which are as follows:"32. It is true that the mistake was of the Departmentand the respondent was promoted though he was noteligible and qualified. But, we cannot countenance thesubmission of the respondent that the mistake cannot becorrected. Mistakes are mistakes and they can always becorrected by following due process of law. In ICAR v.T.K. Suryanarayan it was held that if erroneouspromotion is given by wrongly interpreting the rules,the employer cannot be prevented from applying the rulesrightly and in correcting the mistake. It may causehardship to the employees but a court of law cannotignore statutory rules.33. As observed by us, statutory rules provide forpassing of departmental examination and the authoritieswere right in not relaxing the said condition and nofault can be found with the authorities in insisting forthe requirement of law. In the circumstances, the actionof the authorities of correcting the mistake cannot befaulted.34. True it is that before such an action is taken and aperson is actually reverted, he must be given anopportunity to show cause why the proposed action shouldnot be taken. He may be able to satisfy the authoritiesthat there was no such mistake. But even otherwise,principles of natural justice and fair play requiregiving of such opportunity to him. But as observedearlier, in the instant case, in accordance with Rule31-A of the Fundamental Rules, notice was issued to therespondent employee, explanation was sought andthereafter the order was passed. The said order, in ourconsidered view, was just, proper and in consonance withlaw and it ought not to have been set aside by theTribunal or by the High Court. To that extent,therefore, the orders impugned in this appeal deserve tobe set aside.13.But, so far as the issuance of no notice to the petitionerbefore reversion order is concerned, the respondents have justifiedby stating that there is no necessity to issue any notice and in https://hcservices.ecourts.gov.in/hcservices/ para 8 of the reply affidavit, it has been averred as follows:"8. .... it is submitted that as has been explainedin the previous paragraphs the impugned order"Cancelling the re-appointment" to the post of Draftsmanhas been issued only to set right the error committed inthe appointment, which procedure has already been upheldby the Honourable Supreme Court of India as well as theTamil Nadu Administrative Tribunal. Therefore, it issubmitted that the contention of the petitioner that"The impugned order has been issued without followingthe principles of natural justice" is not correct."14.This stand of the respondents is not in tune with thedictum laid down by the Supreme Court in Narendra Singh case (citedsupra), more particularly para 34 as extracted above. Therefore, inthe light of the above legal precedents, the writ petition isallowed. The impugned order insofar as it has been passed withoutnotice to the petitioner is hereby set aside. However, liberty isgiven to the respondents to pass appropriate orders after duenotice to the petitioner. The parties are allowed to bear their owncosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Secretary to Government, The State of Tamilnadu Revenue Department, Fort St. George, Chennai-9.2.The Commissioner & Director of Survey and Land Records, Chepauk, Chennai-5.3.The Additional Director of Central Survey and Land Records, Chepauk, Chennai-5.4.The Joint Director of Survey, Central Survey Office, Chepauk, Chennai-5.2 ccs To Mr.V.Ravikumar, Advocate, SR.21434W.P.NO.31256 of 2006VSV(CO)SRA(11/6/2009)