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2014 Supreme(Mad) 3474
Madurai Bench of Madras High Court
K.K. SASIDHARAN, J.
M. Muneer Ahamed & Others
Versus
The Commissioner, Madurai Municipal Corporation & Others
W.P. (MD) Nos. 4819 & 5883 of 2014 & M.P. (MD) Nos. 2 & 1 to 3 of 2014
Decided on: 24-09-2014
For the Petitioners:B. Saravanan, G. Prabhu Rajadurai, Advocates.
For the Respondents:R1, Murali, R2 & R3, T.S. Mohammed Mohideen, Additional Government Pleader, R4 to R7, B. Saravanan, Advocates, R8 to R10, No Appearance.
Headnote:
Probation - Promotion Eligibility - Tamil Nadu Municipal Corporation Service Rules, 1996, Rule 14, 18, 20, 22, 23, 24, 25 - The court held that passing the departmental test during the probation period is a mandatory requirement for inclusion in the panel for promotion. The failure to prepare the panel every year for promotion led to the court directing the Corporation to prepare separate panels, taking into account the vacancies for the relevant year and include the names of Assistant Engineers who passed the test before the cut-off date. The impugned proceedings were set aside and the Corporation was directed to complete the exercise within four months.
Fact of the Case:
The case involved a challenge to the preparation of a panel for promotion to the post of Assistant Executive Engineer by Assistant Engineers of Madurai Municipal Corporation. The core issue was whether Assistant Engineers who failed to pass the departmental test before the cut-off date were eligible for inclusion in the panel for promotion.
Finding of the Court:
The court found that passing the departmental test during the probation period is a mandatory requirement for inclusion in the panel for promotion. It held that the failure to prepare the panel every year for promotion led to the Corporation being directed to prepare separate panels, taking into account the vacancies for the relevant year and include the names of Assistant Engineers who passed the test before the cut-off date.
Issues: The core issue was whether Assistant Engineers who failed to pass the departmental test before the cut-off date were eligible for inclusion in the panel for promotion.
Ratio Decidendi: Passing the departmental test during the probation period is a mandatory requirement for inclusion in the panel for promotion. The Corporation was directed to prepare separate panels, taking into account the vacancies for the relevant year and include the names of Assistant Engineers who passed the test before the cut-off date.
Final Decision: The impugned proceedings were set aside and the Madurai City Municipal Corporation was directed to prepare separate panels, taking into account the vacancies for the relevant year and include the names of those Assistant Engineers who passed the test before the cut-off date. The Writ Petition in W.P.(MD)No.5883 of 2014 was allowed, and the Writ Petition in W.P.(MD)No.4819 of 2014 was disposed of with the above direction.
1. Writ Petition in W.P.(MD)No.4819 of 2014 is at the instance of four Assistant Engineers of Madurai Municipal Corporation and the prayer is to direct preparation of panel for promotion to the post of Assistant Executive Engineer and to promote them in the order of seniority.
2. Writ Petition in W.P.(MD)No.5883 of 2014 is at the instance of another Assistant Engineer and the challenge is to the proceedings dated 15 February, 2014, whereby and whereunder, the Commissioner of Madurai City Corporation prepared a panel and called for particulars of Assistant Engineers for considering them for promotion to the post of Assistant Executive Engineer.
BACKGROUND FACTS:
W.P.(MD)No.5883 of 2014:
3. The petitioner was appointed as Assistant Engineer on 01 June, 2001. Respondents 4 to 10, which includes the petitioners in W.P.(MD)No.4819 of 2014, were also appointed on 01 June, 2001. According to the petitioner, respondents 4 to 10 failed to pass the mandatory departmental test and as such, they are not qualified for promotion to the post of Assistant Executive Engineer. It is the case of the petitioner that he passed the departmental test within the time permitted by the Service Rules and as such, he alone should be considered for promotion to the post of Assistant Executive Engineer and none of the respondents 4 to 10 should be considered, as they failed to pass the test.
W.P.(MD)No.4819 of 2014:
4. The petitioners have come up with a grievance that in spite of placing them in serial Nos.3 to 6 of the panel prepared for promotion to the post of Assistant Executive Engineer, the Corporation has not taken any follow-up action. The petitioners, therefore, wanted the Corporation to promote them as Assistant Executive Engineers.
RIVAL SUBMISSIONS:
5. The learned counsel for the petitioner in W.P(MD)No.5883 of 2014, by placing reliance on Tamil Nadu Municipal Corporation Service Rules, 1996, contended that the employees would be placed on probation for a total period of two years and they should pass the departmental test within the said period. The rule also provides that a probationer is not entitled to automatic completion of probation, in case he failed to pass the tests which under the special rules, he should pass within the period of probation. According to the learned counsel, the petitioner in W.P(MD)No.5883 of 2014, passed the test well before the end of probation period. However, respondents 4 to 10 failed to pass the departmental test and as such, they are not qualified for promotion to the post of Assistant Executive Engineer.
6. The learned counsel for the petitioners in W.P(MD)No.4819 of 2014, who is also the counsel for the respondents 4 to 7 in W.P.(MD)No.5883 of 2014, contended that the concerned respondents have all passed the test later and as such, they are also qualified for promotion to the post of Assistant Executive Engineers.
7. The learned Standing Counsel for Madurai Municipal Corporation submitted that the post of Assistant Executive Engineer is a promotional post. Those Assistant Engineers, who have worked not less than one year in the Engineering Department, are entitled for promotion to the post of Assistant Executive Engineer. According to the learned Standing Counsel, the recruitment rule nowhere stated that Assistant Engineers have to pass the departmental test for considering their case for promotion to the post of Assistant Executive Engineer.
8. The service conditions of the petitioner in W.P(MD)No.5883 of 2014 and respondents 4 to 10 in W.P(MD)No.4819 of 2014 are covered by the Tamil Nadu Municipal Corporation Service Rules, 1996. The rule very clearly provides that the employees should pass the departmental test and only thereafter, their probation would be declared. There would not be any automatic completion of probation, unless the employee has passed the mandatory departmental test. This aspect was considered by this Court earlier in the Writ Petition in W.P.(MD)No.10802 of 2006. The learned Judge made it
