P.Vaithianathan v. The Chief Judge District court Pondicherry

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 10-01-2008CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALWRIT PETITION NO.5819 OF 2001AND W.P.M.P.NO.8238 OF 2001P.Vaithianathan...Petitioner Versus1. The Chief Judge District court Pondicherry2. The High Court, Madras represented by its Registrar-General Chennai – 600 1043. The Secretary to Government Department of Law Government of Podnicherry Pondiherry4. S.Singaravelu .. RespondentsFor Petitioner :: Mr.P.V.S.GiridharFor 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 TheConstitution of India for the relief of issuance of a writ ofcertiorarified mandamus to call for the records of the firstrespondent relating to Order No.532/JD/A/2000 dated 14.02.2000 asconfirmed by Order No.3720/JD/A/1999-2000 dated 13.3.2000 passed bythe first respondent, quash the same in so far as the promotion ofthe fourth respondent is concerned and direct the first respondent topromote the petitioner to the post of Senior Clerk with effect from14.02.2000 with all consequential benefits including arrears of payand allowances and seniority in the said post. https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by S.J.MUKHOPADHAYA,J.)The petitioner has challenged the Order No.532/JD/A/2000 dated14.02.2000 as confirmed by Order No.3720/JD/A/1999-2000 dated13.3.2000 passed by the first respondent and further prayed forpromotion to the post of Senior Clerk with effect from 14.02.2000i.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 Attenderon 1.8.1980 and thereafter to the post of Copyist on 5.8.1982 and tothe post of Junior Clerk on 26.12.1986. He passed the requisitecommon general Departmental tests for Ministerial staff, which is oneof the two pre-requisite conditions for completing the period ofprobation in the post of Junior Clerk and for promotion to the nexthigher post of Senior Clerk. Apart from passing the common generaldepartmental tests, the person is also required to pass typewritingtest 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 issuedG.O.Ms.No.24/93-DP&AR (Exam) dated 11.3.1993 where under provisionshave been made to grant exemption from passing Departmental test intypewriting to Group 'D' employees promoted to the post of LowerDivision Clerk and to the Lower Divisional Clerk appointed oncompassionate grounds, which have been indicated below:"(a) If above 45 years of age on the date of theirappointment may be granted exemption from the date of theirappointment.(b) If between the age of 35 years and 45 years at thetime of appointment may be granted exemption on attainingthe age of 45 years.(c) If below 35 years of age on the date ofappointment may be given exemption after 10 years ofservice as Lower Division Clerk provided they have made twogenuine attempts to pass the Departmental Test inTypewriting otherwise they may be granted exemption afterattaining the age of 45 years.(d) Those Lower Division Clerks who have made twogenuine attempts for passing the Departmental Test inTypewriting prior to the issue of this G.O. but have notcompleted 8 years' service as Lower division clerk may begranted exemption from passing the Departmental Test inTypewriting after completion of 8 years of service or onattaining the age of 45 years whichever is earlier." https://hcservices.ecourts.gov.in/hcservices/

4. Admittedly, the petitioner was appointed below the age of 35years and had completed ten years of service as Junior Clerk (LowerDivisional Clerk), but had not passed the requisite typewriting test.He having attained the age of 45 years on 12.2.1999 preferred arepresentation before the first respondent to grant him exemptionfrom passing typewriting test pursuant to Clause (c) ofG.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993. The first respondentrejected the claim of the petitioner by the impugned order dated13.3.2000 by stating the following grounds:"You are hereby informed that taking into account thenature of the work attached to the post of Senior Clerkand the serious repercussions that would have on thelitigant public if there is lapse or inefficiency on thepart of the incumbent in the post of Senior Clerk, noexemption could be granted in respect of the tests which aJunior Clerk should pass so as to be eligible to bepromoted to the post of Senior Clerk. The Hon'ble HighCourt of Madras as per the Official MemorandumNo.ROC.357/93/C1, dated 14.06.1994 and ROC.1490/95/Pondy,dated 24.4.1995, mandated that no such relaxation can begranted."5. In the mean time, the respondents considered the cases ofpromotion of the following juniors to the petitioner and promotedthem 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 positionin the seniority list published on 1.8.1989, wherein the petitionerhas been shown at Serial No.103. 6. Learned counsel appearing on behalf of the petitioner hassubmitted that a wrong order has been passed by the first respondentrejecting the prayer of the petitioner for exemption and that thepetitioner is entitled for exemption being codified as per GovernmentOrder 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 forhigher post while cases of his juniors were so promoted is violationof 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 andsubmitted that the petitioner was not eligible for promotion whilecases of juniors were promoted, he having not passed the requisite https://hcservices.ecourts.gov.in/hcservices/ typewriting test. So far as the relaxation of typewriting test isconcerned, learned counsel referred to the impugned order to show theground for such rejection. 8. We have heard the learned counsel for the parties and alsoperused the relevant orders and guidelines relating to relaxation ofqualification. 9. It is not in dispute that the petitioner had entered in theservice of the respondent below the age of 35 years and had completedmore than ten years of service in 1999 when he attained the age of 45years and claimed for relaxation. Under Clause (c) of GovernmentOrder in G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993, a person canclaim exemption from passing Departmental test in typewriting if hefulfills the following conditions:(i)he was below 35 years of age from the date ofappointment, which the petitioner fulfils,(ii) he has completed 10 years of service as LowerDivisional Clerk (Junior Clerk), which the petitionercompleted in 1996; and (iii) he has made two genuine attempts to pass theDepartmental Test in Typewriting; otherwise attaining theage of 45 years. 10. The petitioner though made no attempts to pass DepartmentalTest in Typewriting, otherwise, having attained the age of 45 years,we hold that the petitioner is eligible for consideration of his casefor exemption under clause (c) of the Government Order inG.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 factthe respondents subsequently agreed that the petitioner is entitledfor exemption. For the said reason, he has been granted promotion tothe post of Senior Clerk, vide Office Order No.532/JD/A/2004 dated13.8.2004 issued from Judicial Department, Government of Pondicherryduring the pendency of the writ petition. In the aforesaidbackground, while we reject the stand taken by the respondents, wehold that the impugned order of rejection dated 13.3.2000 is illegaland it is accordingly set aside.12. As the respondents have not disputed the fact that thepersons named above are juniors to the petitioner and when theircases were considered for promotion to the post of Senior clerk andpromoted vide order dated 14.02.2000, the case of the petitioner wasnot considered. In the present case, as we have already held thatthe petitioner is entitled for exemption of passing typewriting testand Government has actually exempted and granted him promotion fromsubsequent date, we are of the view that the respondent authoritiesshould consider the case of the petitioner for promotion to the postof Senior Clerk with effect from 14.2.2000 i.e., from the date of his https://hcservices.ecourts.gov.in/hcservices/ juniors were promoted. On such consideration, if he is found fit,then the respondents should shift back the date of promotion from13.08.2004 to 14.02.2000 and notionally fix the salary of thepetitioner though he may not be entitled to the benefit of arrears.13. The case is accordingly remitted to the respondents with adirection to consider the case of the petitioner for promotion to thepost of Senior Clerk with effect from 14.02.2000 and communicate itsdecision within a period of three months from the date of receipt ofcopy of this order.14. The writ petition is allowed with the aforesaid observationsand directions. But in the facts and circumstances, there shall be noorder as to costs. Consequently, the connected W.P.M.P. is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Chief Judge District court Pondicherry2. The Registrar-General High Court, Madras Chennai – 600 1043. The Secretary to Government Department of Law Government of Podnicherry Pondiherry+ 1 CC To Mr.PVS.Giridhar, Advocate SR NO.2029+ 1 CC to the Senior Public Prosecutor, Pondicherry SR NO 135W.P.NO.5819 OF 2001rs[co]gp/24.1.