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2021 Supreme(Mad) 498
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, SATHI KUMAR SUKUMARA KURUP, JJ.
The Secretary to Government, P & AR Department, Chennai
Versus
V. Kamatchi & Others
Writ Appeal No. 3091 of 2019 & C.M.P.No. 19665 of 2019
Decided On : 04-02-2021
For the Appellant : A. Srijayanthi, Spl.G.P.
For the Respondents:R1, A. Muthukumar, Advocate.
The central legal point established in the judgment is that the inclusion of maternity leave as service for promotion is subject to the employee's completion of probation on the crucial date, as per the relevant rules.
Headnote:
Maternity Leave - Service Period - Tamil Nadu Government Servants (Conditions of Service) Act, 2016 - Rule 36(a) of the General Rules under the Tamil Nadu State and Subordinate Service Rules - The court discussed the inclusion of maternity leave as service period for promotion to the post of ASO and the eligibility criteria for promotion based on completion of probation on the crucial date. The court held that the postponement of probation was not solely due to maternity leave but also due to other leave taken by the employee. The court referred to Rule 36(a) and concluded that the employee was not eligible for promotion as her probation was not declared on the crucial date, regardless of including maternity leave as service period.
Fact of the Case:
The first respondent, a government employee, filed a Writ Petition seeking inclusion of maternity leave as service for promotion to the post of ASO. The Single Judge allowed the petition, directing the appellant to include the maternity leave as service period for promotion. The State filed a Writ Appeal against this decision.
Finding of the Court:
The court found that the postponement of probation was not solely due to maternity leave but also due to other leave taken by the employee. The court referred to Rule 36(a) and concluded that the employee was not eligible for promotion as her probation was not declared on the crucial date, regardless of including maternity leave as service period.
Issues: The main issue was the inclusion of maternity leave as service for promotion and the eligibility criteria for promotion based on completion of probation on the crucial date.
Ratio Decidendi: The court held that the employee's probation was not declared on the crucial date, making her ineligible for promotion, regardless of including maternity leave as service period.
Final Decision: The Writ Appeal was allowed, and the Writ Petition was dismissed. No costs were awarded.
JUDGMENT :
R. Subbiah, J.
(Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 23.04.2019 passed by the learned Single Judge in Writ Petition No.17436 of 2017 on the file of this Court.)
This Writ Appeal is filed by the Secretary to Government, Personnel and Administrative Reforms Department, Fort St.George, Chennai as against the order dated 23.04.2019 passed in W.P.No.17436 of 2017, whereby the learned Single Judge allowed the said Writ Petition filed by the first respondent herein and directed the appellant and respondents 2 and 3 herein to take into account the services of the first respondent/writ petitioner for the period from 01.06.2009 to 28.08.2009 as regular service and include her in the panel for the year 2009 with all consequential benefits and necessary orders were directed to be passed within six weeks from the date of the order.
2. The brief facts which are necessary for disposal of the present appeal are as follows:
(i) The first respondent/writ petitioner had been selected by the Tamil Nadu Public Service Commission (TNPSC) on direct recruitment and she joined duty as Assistant in Rural Development and Panchayat Raj Department, Secretariat, Chennai, on 25.06.2007. Her seniority as per the list of the TNPSC, was fixed in Sl.No.98, vide U.O.Note.No.31961/U2/2008-1, P and AR, dated 20.06.2008. Her services were regularised in the category of Assistant with effect from 25.06.2007 as per Office Proceedings No.444, R.D. & P.R (OP), dated 18.07.2008. She had passed the requisite tests, viz, foundational training for promotion to the post of Assistant Section Officer on 05.05.2009.
(ii) While the respondent/writ petitioner was on probation, she availed maternity leave from 01.06.2009 to 29.08.2009, after which, she joined duty and was promoted as Assistant Section Officer (ASO) with effect from 04.05.2010. She had been declared as having completed the period of probation satisfactorily in the category of Assistant in the Tamil Nadu Secretariat Service on the afternoon of 14.12.2009. While so, the respondent/writ petitioner-s junior R. Jaya Subramanian who stood in Sl.No.124 in the TNPSC list and who joined duty on the same date when the writ petitioner joined on 25.06.2007, had been included in the regular panel for the year 2009-2010 and promoted to the post of ASO on 09.12.2009.
(iii) In view of the postponement in completion of probation period, her name had not been considered in the panel for promotion to the post of ASO in the year 2009-2010 and consequently her name had not been included in the panel of the year 2009-2010 for the reason that she had taken maternity leave for three months. It is her further contention that the benefit of maternity leave is extended to married women servants by the Government as per Fundamental Rules in F.R.101(a) and (b) and as per the latest amendment to Maternity Benefits Act, 2016 introduced by the Government of India.
(iv) Since the respondent/writ petitioner had availed the eligible maternity leave as per the Rules with pay and allowances, the said period should have been considered as duty period. As the official respondents refused to include the said period for the purpose of reckoning her seniority and promotion, she had filed the Writ Petition in W.P.No.17436 of 2017 praying for issuance of a Writ of Mandamus to direct the appellant to take into account the period of maternity leave availed by her as service for promotion to the post of ASO by including her name for the panel year 2009-2010 and fix her seniority at the appropriate place, viz., at S.No.50-A of the seniority list released, vide G.O.Ms.No.111, P & A.R. (U) Department, dated 11.11.2016.
3. The learned Single Judge, after hearing the submissions made on either side, allowed the said Writ Petition by issuing direction as stated supra. Aggrieved by the same, the present Writ Appeal i
