accordingly, the respondents are directed to treat the petitioner as retired from service on attaining the age of superannuation as ‘Draughtsman’ on 31.05.2014 and settle all his terminal benefits, as expeditiously as possible, at any rate within a period of eight weeks from the date of receipt of a copy of this order. No costs. Connected miscellaneous petitions, if any, shall stand closed. 29.10.2024 skr Index : Yes / No Speaking order / Non-speaking order Neutral Citation : Yes / No To 1. The Secretary to Government of Tamil Nadu, Revenue Department, Secretariat, Chennai – 600 009. 2. The Commissioner of Survey and Settlement, Chepauk, Chennai – 600 005. 3. The Assistant Director of Survey and Land Records, Salem District, Salem. MUMMINENI SUDHEER KUMAR, J. skr W.P.No.29673 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.10.2024
CORAM
THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR
W. P.No.29673 of 2015and
M.P.No.2 of 2015 and
W.M.P.Nos.22510 and 22512 of 2017
K.Selvaraju … Petitioner
Vs.
1. Government of Tamil Nadu,
Secretary to Government, Revenue Department, Secretariat, Chennai – 600 009.
2. The Commissioner of Survey and Settlement, Chepauk, Chennai – 600 005.
3. The Assistant Director of Survey and Land Records,
Salem District, Salem. … Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records relating to the orders in (1) G.O (ID) No.230, Revenue (L.S. (4(1)) Department, dated 29.05.2014 of the first respondent (2).Pro.Na.Ka.No.A2/6410/2012 dated 30.05.2014 of the third respondent (3) Na.Ka.No.36455/2015/LS dated 28.10.2015 of the second respondent and (4) Na.K.No.A2/6410/2015-1 dated 05.11.2015 of the third respondent, to quash the respondents to declare that the petitioner shall be deemed to have retired from service on 31.05.2014 and grant and disburse all consequential benefits with interest within a time frame.
(Prayer amended as per order dated 28.11.2023 in WMP.No.22509 of 2017)
For Petitioner : Mr.M.Ravi
For Respondents : M/s.Yamuna Devi,
Special Government Pleader
O R D E R
The brief facts that are relevant for disposal of this writ petition are as under:-
1.1. The petitioner herein, on being sponsored by the Employment Exchange, was provisionally appointed as ‘Field Surveyor’ on contract basis with a consolidated pay on 29.03.1983 in the Revenue Department of the State and thereafter, he was appointed as ‘Draughtsman’ and his services were also regularized with effect from 01.07.1984 in the category of ‘Draughtsman’ through proceedings bearing Na.Ka.No.17003/92(4) dated 12.08.1992. In terms of Rule 8 of the Survey and Land Records Sub-ordinate Service Rules, every person, who is appointed as ‘Draughtsman’ shall pass the prescribed Departmental Test viz., Revenue Draughtsman Test (Four Papers) or Computation Test (Two Papers) within the period of his probation, which is also a mandatory condition. However, the petitioner could only pass Papers I, II and III of the Revenue Draughtsman Test and could not pass the Paper-IV. In terms of Rule 26(b)(ii) of the Tamil Nadu State and Sub-ordinate Service Rules, those employees who have failed to pass the Departmental Test within the stipulated period of five years from the date of regularization should be discharged from service. The said fact of necessity of petitioner passing the required test within five years was also informed to the petitioner by the Respondent No.3 through the proceedings bearing Na.Ka.No.A1/688/2011 dated 09.09.2011. As the petitioner had failed to pass the requisite Departmental Test within the stipulated period of five years or thereafter, the petitioner made an application for exemption from passing Paper-IV of Revenue Draughtsman Test in terms of the orders issued by the Government in
G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated
30.10.1984. However, the Government issued orders in G.O (ID) No.230, Revenue [L.S. (4(1)] Department, dated 29.05.2014, rejecting the request of the petitioner on the ground that the orders issued in G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984, have no application to the cases in which the period of probation has exceeded beyond five years and also stating that the relaxation under the said Government Order can be granted only in case if an employee passed the Departmental Test belatedly i.e., after the prescribed period. The Government, having rejected the request of the petitioner to relax the requirement of passing the Draughtsman Test Paper-IV by order dated 29.05.2014, discharged the petitioner from service by order dated 30.05.2014, while the petitioner is about to attain the age of superannuation on
31.05.2014.
1.2. As already noted above, the petitioner was appointed as ‘Field
Surveyor’ on 29.03.1983 and his services were regularized in the post of ‘Draughtsman’ with effect from 01.07.1984. All through, the petitioner has been discharging his duties as ‘Draughtsman’, i.e., almost for a period of three decades by the date of his discharge from service. It was thereafter, the petitioner also made a claim for release of certain other benefits such as Leave Encashment, Earned Leave Encashment, Encashement of Unearned Leave on private affairs and General Provident Fund and Special Provident Fund. However, the said request was also rejected by the respondents by passing the orders dated 28.10.2015 and 05.11.2015. It is aggrieved by the said orders issued by the Government in G.O (ID) No.230, Revenue [L.S. (4(1)] Department, dated 29.05.2014 and the consequential order dated 30.05.2014, discharging the petitioner from service and further orders passed on 28.10.2015 and 05.11.2015, the petitioner approached this court by filing the present writ petition.
2. Heard Mr.M.Ravi, learned counsel appearing for the petitioner and M/s.Yamuna Devi, learned Special Government Pleader appearing for the respondents.
3. From the facts narrated above, it is evident that the petitioner has discharged his duties as ‘Draughtsman’ from 01.07.1984 till 30.05.2014 i.e., for a period little less than three decades. When he was due for retirement on attaining the age of superannuation on 31.05.2014, the petitioner was discharged from service in exercise of power under Rule 26(b)(ii) of the Tamil Nadu State and Sub-ordinate Service Rules. The request made by the petitioner for granting exemption from passing Paper-IV of the Revenue Draughtsman Test was negatived by the respondent State by orders issued in G.O (ID) No.230, Revenue [L.S. (4(1)] Department, dated 29.05.2014 i.e., two days prior to the date of superannuation of the petitioner from service.
4. Admittedly, the petitioner has not passed the required Departmentaltest, which is supposed to be passed within a period of five years i.e., on or before 11.08.1997. The petitioner has appeared for the said Paper-IV of the Revenue Draughtsman Test on more than five occasions, but became
unsuccessful. Thus, it is evident that the respondents, having been fully aware that the petitioner has not passed the Departmental test within a maximum period of five years, but allowed the petitioner to continue in service for almost three decades, and discharged the petitioner from service a day prior to the date of his superannuation.
5. In the light of the above two questions that would arise for
consideration, viz.,
(i) Question No.1: Whether the respondents having allowed the
petitioner to discharge his duties for three decades are justified in discharging the petitioner from service, by invoking Rule 26(b)(ii) of the Tamil Nadu State and Sub-ordinate Service Rules or not ?; and
(ii) Question No.2: Whether the orders issued in G.O (ID) No.230, Revenue [L.S. (4(1)] Department, dated 29.05.2014 are in accordance with law or not?
5.1. Question No.1: The petitioner was appointed as ‘Draughtsman’ on
01.07.1984 and since then, till the date of his discharge on 30.05.2014, the petitioner has admittedly discharged his duties as ‘Draughtsman’, though there appears to be certain punishments that are suffered by the petitioner on eight occasions during the period between 1984 – 2013. The respondents does not deem it necessary, either to discharge or to terminate the services of the petitioner. Impliedly, the said conduct of the respondents would go to suggest that the petitioner is fit to be continued in service as ‘Draughtsman’ notwithstanding the fact that the petitioner failed to pass Paper-IV of the Revenue Draughtsman Test and allowed him to continue till 30.05.2014. Had the respondents exercised their power under Rule 26(b)(ii) of the General Rules on expiry of five years from the date of regularization of the services of the petitioner, the respondents cannot be found fault, as the same would be giving effect to Rule 26(b)(ii) of the General Rules.
5.2. But admittedly in instant case, the respondents failed to exercise the said power under Rule 26(b)(ii) of the General Rules till 30.05.2014 i.e., for a period of 30 years. It is not the case of the respondents that for want of passing of Paper-IV of the Revenue Draughtsman Test, the petitioner could not discharge his duties as ‘Draughtsman’. From the counter-affidavit filed and the impugned order dated 30.05.2014, it is not the case of the respondents that the petitioner failed to discharge his duties as ‘Draughtsman’. Thus, the petitioner has effectively discharged his duties as ‘Draughtsman’ for thirty years on regular basis and the entire service rendered by the petitioner and the service benefits that are accrued to him by virtue of his long length of service for 30 years is sought to be taken away by the respondents by discharging the petitioner at the verge of his retirement by passing an order under Rule 26(b)(ii) of the General Rules. Had the petitioner was discharged at the relevant point of time in terms of Rule 26(b)(ii) of the General Rules, the petitioner also would have pursued his career. But by allowing the petitioner to continue as ‘Draughtsman’, inspite of having full knowledge about the petitioner failure to pass the Departmental test, the respondents have deprived the petitioner from pursuing his career otherwise, for about 25 years. Thus, the respondents having failed to exercise the power conferred upon them at the relevant point of time, cannot be allowed to exercise such power belatedly and by virtue of their prolonged silence for about 25 years and positive action in allowing the petitioner to continue in service, the respondents deemed to have relaxed the requirement of passing Paper-IV of the Revenue Draughtsman Test. Thus, the respondents who availed the services of the petitioner for 30 years cannot be allowed to escape from paying the terminal benefits that are payable to the petitioner, which are earned by the petitioner over a period of about 30 years, which are also held to be a property guaranteed under Article 300(A) of the Constitution of India. In the circumstances, this court is of the considered view that the respondents are not justified in discharging the petitioner by invoking power under Rule 26(b)(ii) of the General Rules at the verge of retirement of the petitioner.
5.3. Question No.2: G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984, was issued by the Government to meet certain circumstances that are similar to the facts of the case on hand, wherein the employees failed to pass the requisite Departmental Test within the time stipulated and have taken a policy decision to grant exemption in such cases subject to fulfilling certain conditions.
5.4. The three conditions that are stipulated in terms of G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984 reads as under:-
“(1) muR mYtyh; 50 taJfF;
Fiwahjtuhf ,Uf;f ntz;Lk;/
(2) mth; njh;t[fspy; njh;r;rp bgWtjw;F
Fiwe;jJ Ie;J jlitfs; Kaw;rp bra;jpUff; ntz;Lk/
(3) mth; ,e;j rYifia milaj; jf;f mstpw;F mtUila gzpf;Fwpg;g[f;fs; jpUg;jpahf
,Uff; ntz;Lk;/”
6. In the case of petitioner, there is no dispute that the petitioner has satisfied the conditions 1 and 2 mentioned above. So far as Condition No.3 i.e., satisfactory service particulars are concerned, the same is not the reason basing upon which the request made by the petitioner for exemption was rejected. But the reason for rejection, as assigned in the impugned order dated 29.05.2014 is that the exemption provided under the said G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984, is only available to the persons, who have passed the required Departmental Test after expiry of five years period.
7. From the perusal of G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984 shows that, there is nothing to indicate that the benefit provided under the said Government Order is available only to the persons who have passed the required Departmental Test after expiry of five years. On the other hand, it is amply clear from the said Government Order that the said benefit is available to the Government employees who have failed to pass the requisite tests even after appearing for such test on five occasions and crossed the age of 53 years. A mere attempt to appear for such Departmental test on five times is one of the conditions stipulated for availing the benefit under the said Government Order. Therefore, the reason assigned in the impugned order dated 29.05.2014 is wholly unsustainable and contrary to the orders issued in G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984.
8. No doubt, from the perusal of the impugned G.O (ID) No.230, Revenue [L.S. (4(1)] Department, dated 29.05.2014, it is noticed that the request made by the petitioner for relaxation during the year 2013 was refused to be forwarded by the Director of Survey and Settlement on the ground that the petitioner has suffered punishments on eight occasions during the period 1990 – 2013. But the Director of Survey and Settlement is not a competent authority to decide as to whether the petitioner is entitled for exemption in terms of G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984 or not. But when the proposal was ultimately placed before the Government, the Government has not thought it fit to take into consideration the said eight penalties that are suffered by the petitioner.
9. From the material on record, it is not known as to the nature of punishments that are suffered by the petitioner. If the said punishments are certainly not the punishments that would warrant removing the petitioner from service. Therefore, every penalty suffered by the petitioner cannot be construed as a punishment, amounting to not satisfactory service of the petitioner. Thus, it is not the non-fulfilment of Condition No.3 mentioned in G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984 for issuing the impugned order dated 29.05.2014.
10. As this court has come to the conclusion that the reason assigned in the impugned order rejecting the request for relaxation is wholly unsustainable, this court is unhesitant to conclude that the said Government Order can be issued in G.O (ID) No.230, Revenue [L.S. (4(1)] Department, dated 29.05.2014 is liable to be quashed. In the normal course, this court would have remanded the matter back to the respondents for re-consideration of the case of the petitioner for relaxation in terms of G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984. But considering the fact that the petitioner has already attained the age of superannuation on 31.05.2014 and he was discharged from service a date prior there to on 21.05.2014, thereby depriving him the terminal and other service benefits that have been earned by the petitioner over a period of three decades, this court is not inclined to remit the matter back to the Respondent No.1 for reconsideration and instead, this court is of the considered view that it is a fit case where the Respondent No.1 ought to have exercised its power to relax the requirement of passing Paper-IV of the Revenue Draughtsman Test by exercising its discretion but failed to exercise the said discretion in a proper perspective.
11. In this connection, it is also necessary to notice that under similar circumstances, a co-ordinate bench of this court also considered almost an identical case, wherein the learned Single Judge in W.P (MD) No.26571 of
2022 by an order dated 26.04.2024, wherein it was held as under:-
“16. In this regard, it is appropriate to cite the judgment of the Division Bench of this Court held in Joint Director of School Education and others -vs- C.Lesley Jayaseelan, (W.A(MD)No.116 of 2010, dated 23.2.2011) wherein, it is held as under:
“13.Therefore, we are of the opinion that the termination of service after a lapse of 22 years, would certainly affect the livelihood of his entire family at this length of time. Moreover, as observed by the learned single Judge, the appointment given to the respondent is not against any statutory regulations and moreover, the removal is not based on any misconduct. Therefore, we are of the considered view that the respondent, having been allowed to continue for over 22 years in Government service, will not be removed from service on the ground that he got employment on furnishing false information. Therefore, we do not find any infirmity in the order passed by the learned single Judge and under such circumstances, the writ appeal is liable to be dismissed.
Accordingly, the writ appeal fails and is dismissed. No costs. Consequently, connected M.P.is closed.”
17. After having allowed the petitioner to complete the service, now the respondent placed the petitioner under suspension and issued the charge memo stating that he has suppressed the material facts in securing the employment. Such kind of action itself is a mockery and that would not only cause inconvenience to the Government but also discourage the morale of the Government employees who rendered their services, till the date of attaining the age of superannuation.
18. In such circumstances, allowing the respondents to proceed with the Department proceedings would no doubt be prejudicial to the interest of the petitioner. There cannot be any other mental agony given to an employee than by placing him under suspension exactly on the date of his superannuation.
19. This is a typical case where the powers of the Government shall not be exercised in a way prejudicial to the interest of an employee whose services have been utilized for a quarter Century. So without any doubt, the impugned suspension order, dated 31.10.2022 and the charge memo, dated 10.11.2022 issued by the first respondent are illegal and are liable to be set aside.
20. Hence, the Writ Petition is allowed and the impugned order of suspension, dated 31.10.2022 and the charge memo, dated 10.11.2022 issued by the first respondent are set aside. The respondents are directed to permit the petitioner to retire from service with effect from 31.10.2022 with all attendant benefits and release the terminal benefits within a period of six weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.”
12. Accordingly, the writ petition is allowed by duly setting aside the impugned orders bearing G.O (ID) No.230, Revenue (L.S. (4(1)) Department, dated 29.05.2014, Na.Ka.No.A2/6410/2012 dated 30.05.2014, Na.Ka.No.3/
36455/2015/LS dated 28.10.2015 and Na.K.No.A2/6410/2015-1 dated
05.11.2015, and declaring that the petitioner is deemed to have been granted the relaxation of passing Paper-IV of the Revenue Draughtsman Test in terms of
G.O (Ms) No.1120, Personnel and Administrative (S) Department, dated 30.10.1984, and accordingly, the respondents are directed to treat the petitioner as retired from service on attaining the age of superannuation as ‘Draughtsman’ on 31.05.2014 and settle all his terminal benefits, as expeditiously as possible, at any rate within a period of eight weeks from the date of receipt of a copy of this order. No costs. Connected miscellaneous petitions, if any, shall stand closed.
29.10.2024 skr
Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation : Yes / No
To
1. The Secretary to Government of Tamil Nadu, Revenue Department, Secretariat, Chennai – 600 009.
2. The Commissioner of Survey and Settlement, Chepauk, Chennai – 600 005.
3. The Assistant Director of Survey and Land Records, Salem District, Salem.
MUMMINENI SUDHEER KUMAR, J.
skr
W.P.No.29673 of 2015
