Kesavan filed a Writ Petition under Article 226 of the Constitution. It called for records connected with the impugned order passed by the Divisional Engineer, and quash the same. The case was heard and decided upon by Hon’ble Justice Senthilkumar Ramamoorthy.
Facts of the Case
The petitioner was appointed as a trainee Gang Mazdoor on 10.11.1997. He was appointed on a regular time scale of pay after completing a one-year training period. He was to be promoted as a Road Inspector Grade- II. The educational qualification for the post of Road Inspector Grade-II is a pass in the 10th standard.
As per an order dated 01.08.2008, Rule 4(b) of the Special Rules of the Tamil Nadu Highways Engineering (Work Charged) Subordinate Service (TSS) was amended by prescribing 10th standard pass from a recognized school as the educational qualification for recruitment by transfer from the post of Gang Mazdoor in the Tamil Nadu Basic Service. After this amendment, a panel was constituted for Road Inspector Grade-II.
Pursuant to this, the petitioner was promoted temporarily as a Road Inspector Grade-II subject to the conditions specified therein. One of the conditions was that the promotee would not claim any priority based on the said promotion and that the promotee may be reverted from the promoted post without prior notice.
Rule 4(b) of the aforesaid special rules were amended, once again, with retrospective effect from 01.08.2008. The prescribed educational qualification was modified to the limited extent that employees who passed the 10th standard from a recognized school or its equivalent examination duly recognized by the Government of Tamil Nadu would be eligible for recruitment by transfer.
It was communicated that the name of R. Panneer Selvam and R. Mathiazhagan had been inadvertently omitted from the seniority list. It was further stated that both of them are senior to K. Ravichandran and R. Kesavan. Consequently, both Ravichandran and the Petitioner were reverted to their original post and the promotion was offered to Paneer Selvam and R.Mathiazhagan.
Arguments before the Court
The counsel for the petitioner submitted that the petitioner’s services were regularized with effect from 10.11.1998. The services of R.Panneerselvam and R.Mathiazhagan were regularized on 13.11.1998 and 11.11.1998, respectively. It was further maintained by the counsel that Petitioner was duly qualified for the post of Road Inspector Grade-II and was senior to both R.Panneerselvam and R.Mathiazhagan on account of being regularized on an earlier date. Moreover, the impugned proceedings were issued without prior notice or an opportunity of hearing. Thus, the principles of natural justice were violated. Therefore, the impugned reversion order is vitiated.
The counsel for the respondents contended that the Petitioner is admittedly junior to both R.Panneerselvam and R.Mathiazhagan. The counsel referred to paragraph 3(a) of the counter affidavit, wherein the seniority position held by both the respondents were prior to the petitioner. The counsel further submitted that the petitioner has not challenged the order by virtue of which a person who qualifies at an equivalent examination duly recognized by the Government of Tamil Nadu is also entitled to appointment by transfer as a Road Inspector Grade-II. The counsel also argued that the conditional and temporary order of promotion of the petitioner itself stipulates that the Petitioner may be reverted to his original post without prior notice and that no priority can be claimed on the basis of the temporary promotion order.
Court’s Observations
The Court observed that the petitioner was duly promoted on account of fulfilling the requisite educational qualifications. But he was unjustly reverted to the earlier post by the impugned order which was issued without prior notice.
The Court also noted that it does not find any proper explanation for the alleged inadvertent omission of the names of R.Panneerselvam and R.Mathiazhagan in the panel for promotion as Road Inspector Grade II. The Court observed that a reasonable explanation could be that they did not possess requisite educational qualification when the panel was constituted. Instead, they became qualified because of the amended order which was given retrospective effect from 01.08.2008.
They also observed that the promotion order of the petitioner was conditional. The Court further made it clear that the disposal of this Writ Petition does not withhold the petitioner from challenging the seniority list.
Court’s Order
The Court disposed the Writ Petition on the terms that the petitioner may request for disposal of the representation dated 26.05.2009 or submit a fresh representation in relation to his reversion. If such a representation is submitted, it shall be heard and decided upon by its merits and in accordance with the applicable general and special rules and disposed of within a period of one month.
Read the original judgment here.
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