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2016 Supreme(Mad) 3168
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, J.
R. Jayarathina Gandhi - Petitioner
Vs.
The Principal Secretary to Government, School Education Department & Anr. - Respondents
W.P. No. 15352 of 2016 & W.M.P. No. 13386 of 2016
Decided On : 03-10-2016
Advocate Appeared:
For the Petitioner: Ms. Dakshayani Reddy
For the Respondents: Mr. S. Gunasekaran
The passing of an examination relates back to the date of examination, not the date of declaration of results, influencing the interpretation of eligibility for promotion.
Headnote:
Mandamus - Recruitment Dispute - G.O.Ms. No. 21, dated 02.11.2011, G.O.Ms. No. 175, dated 19.07.2007 - Fundamental Rule 26
Fact of the Case:
The petitioner sought a Mandamus to include his name in the panel for recruitment by transfer from Ministerial service to PG Assistant (Tamil) for the year 2013-2014, based on his qualifications and service history. The respondent rejected his application citing seniority issues.
Finding of the Court:
The Court directed the petitioner to submit a fresh representation to the respondents, considering the judgment of a Division Bench regarding the date of examination and passing of an examination.
Issues: Dispute over inclusion in the recruitment panel based on qualifications and service history, and the interpretation of the date of examination for promotion.
Ratio Decidendi: The passing of an examination relates back to the date of examination and not the date of declaration of results, as per the judgment of the Division Bench.
Final Decision: The Court disposed of the writ petition, directing the petitioner to submit a fresh representation to the respondents, who were instructed to consider the representation in light of the Division Bench's judgment and pass appropriate orders within six weeks.
By consent, the writ petition is taken up for final disposal.
2. The present writ petition has been filed seeking a Mandamus directing the second respondent herein to include the name of the petitioner in the panel for recruitment by transfer from Ministerial service to PG Assistant (Tamil) for the year 2013-2014, in accordance with G.O.Ms. No. 21, dated 02.11.2011, by taking into consideration the date of the examination for post graduation in Tamil and not the date of the declaration of the result as per Fundamental Rule 26.
3. The petitioner would state that he is fully qualified for appointment to the post of PG Assistant (Tamil) as he has completed B.A.(Tamil), B.Ed., and M.A.(Tamil). The petitioner would further state that as per G.O.Ms. No. 21, School Education Department, dated 02.11.2011, 2% of the vacancies to be filled by promotion (i.e., 2% of 50%) in the post of PG Assistant are set apart for those who are qualified for appointment and working in the Ministerial service. The Government itself issued the said Government Order based upon G.O.Ms. No. 175, School Education Department, dated 19.07.2007 whereby 2% in the vacancies to be filled up by promotion in the post of B.T. Assistant is reserved for recruitment by transfer from those who are working in the Ministerial service.
4. The petitioner was originally appointed to the post of Office Assistant on compassionate grounds and his probation was declared vide proceedings dated 11.11.2002 and was subsequently, appointed to the post of Record Clerk vide proceedings dated 12.07.2011 and his probation was also declared in the post of Record Clerk. The petitioner was subsequently appointed to the post of Junior Assistant vide proceedings dated 19.10.2012 and his services were also regularized in the said post vide proceedings dated 08.04.2013. His probation has thus been declared in the post of Office Assistant in the basic service and in the post of Record Clerk in the Tamil Nadu State and Subordinate Service Rule.
5. The petitioner would further state that the second respondent issued proceedings dated 11.05.2013 wherein, 2% of eligible candidates for appointment by transfer from Ministerial Service to the post of PG Assistant (Tamil) for the year 2013-2014 was prepared and vide the said proceedings, only one post of PG Assistant (Tamil) was filled up by recruitment by transfer. Therefore, the petitioner approached the respondents under the Right to Information Act, 2005 and he was informed that he was not included in the said list as his probation was not declared in the post of Junior Assistant.
6. Hence, the petitioner filed W.P. No. 7684 of 2014 seeking a Mandamus to appoint the petitioner to the post of PG Assistant (Tamil) without insisting upon the declaration of probation in the post of Junior Assistant for the year 2013-2014 and this Court vide order dated 10.03.2015 allowed the writ petition and without complying with the order of this Court, the respondent vide order dated 12.06.2015, rejected the application of the petitioner on the ground that as on the date of the issuance of the order i.e., on 26.02.2015, there are a number of individuals who are placed above the petitioner with regard to seniority for recruitment by transfer and hence, the petitioner's claim may not be considered.
7. Hence, the petitioner filed Contempt Petition in Cont.P. No. 2007 of 2015 bringing to the notice of this Court the order of the respondent dated 12.06.2015. This Court, during the contempt proceedings directed the respondents to file an affidavit as to how the orders of this Court were complied with and further directed the respondents to file an affidavit with regard to the eligibility of the petitioner as on the date of filing the writ petition i.e., inclusion in the panel as on 01.01.2013 and not as on 01.01.2014 or 01.01.2015.
8. The petitioner would further state that the respondents filed typed set of papers stating that the petitioner was qualified as on December,
