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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
E. Mariappan – Appellant
Versus
The Director, Tribal Welfare Department, Chennai & Others – Respondents
W.P. No. 17106 of 2023 & W.M.P. No. 16276 of 2023
Decided On : 14-08-2023
Joining Time - Government Servant - Fundamental Rules 106, 107 - The court discussed the application of Fundamental Rules 106 and 107 in determining the joining time of government servants and emphasized that joining time shall be regarded as on duty and entitled to be paid. The court highlighted the importance of considering joining time in the context of duty and emphasized that restricting joining time as forenoon or afternoon without specific indication in the posting orders is not sustainable in the eye of the law and may lead to serious consequences like affecting seniority.
Fact of the Case:
The petitioner challenged the cancellation of his transfer order and consequential relieving order, contending that he had joined duty in the new station on 25.11.2021 in the forenoon, while the respondents alleged that he had joined in the afternoon. The dispute arose from the application of joining time rules and its impact on the transfer order.
Finding of the Court:
The court found that the petitioner and the 4th respondent were relieved only in the forenoon of 25.11.2021 and emphasized the importance of considering joining time as duty under Fundamental Rule 106 and 107. The court held that restricting joining time as forenoon or afternoon without specific indication in the posting orders is not sustainable in the eye of the law and may lead to serious consequences like affecting seniority.
Issues: The main issue revolved around the determination of the petitioner's joining time in the new station and the application of Fundamental Rules 106 and 107 in the context of duty and transfer orders.
Ratio Decidendi: The court's decision was based on the interpretation of Fundamental Rules 106 and 107, emphasizing that joining time shall be regarded as on duty and entitled to be paid. The court highlighted the importance of considering joining time in the context of duty and emphasized that restricting joining time as forenoon or afternoon without specific indication in the posting orders is not sustainable in the eye of the law and may lead to serious consequences like affecting seniority.
Final Decision: The impugned orders were quashed, and the writ petition was allowed. No costs were awarded, and the connected miscellaneous petition was closed.
JUDGMENT
(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records of the 1st respondent in Na.Ka.No.Pa.Ma.No.A1/9181/2022 dated 19.05.2023 and consequential order of the 3rd respondent in Na.Ka.47/2021 dated 22.05.2023, quash the same and consequently, direct the respondents to continue the seniority of the petitioner as if he had joined duty only on 25.11.2021 in the forenoon and permit the petitioner to continue in his present station.)
1. This writ petition has been filed challenging the order of the 1st respondent, dated 19.05.2023, cancelling the transfer order granted in favour of the petitioner dated 19.09.2022, and also the consequential relieving order of the 3rd respondent, dated 22.05.2023.
2. It is the case of the petitioner that he was originally appointed as B.T.Assistant with effect from 09.02.2009 in The Nilgiris District. Thereafter, he participated in the promotion counselling which was conducted in the year 2021 and accordingly, the petitioner was promoted to the post of P.G.Assistant and posted to the Government Higher Secondary School at Arunoothumalai, Salem District from The Nilgiris District, vide proceedings of the 1st respondent, dated 24.11.2021. It is the contention of the petitioner that, in the said proceedings, there is no indication of joining time. The posting orders have been issued on 24.11.2021, and subsequently, the petitioner was relieved on 25.11.2021 and he immediately proceeded to the new Station and joined in the new Station on the same day.
3. While so, the petitioner took part in the transfer counselling in the year 2022 and the petitioner was granted transfer from Arunoothumalai, Salem District, to his native District, i.e., The Nilgiris District, vide proceedings of the 1st respondent, dated 19.09.2022. However, it is the grievance of the petitioner that the 4th respondent has given a complaint to the 1st respondent, alleging that the petitioner has obtained the favourable transfer order dated 19.09.2022 by giving the wrong time of joining in the new Station at Arunoothumalai, as if the petitioner has joined in the Forenoon on 25.11.2021. Thereafter, after enquiry, a Show Cause Notice has been issued to the petitioner, to which the petitioner has submitted his explanation. Even thereafter, the impugned order has been passed on 19.05.2023, cancelling the transfer order dated 19.09.2022 and consequentially, relieving orders have also been passed on 22.05.2023. Challenging the same, the present writ petition has been filed.
4. A counter affidavit has been filed by the 1st respondent. In the counter affidavit, it is the stand of the 1st respondent that, as per Rule 17(3) of the Fundamental Rules, a Government servant will begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post if the charge is transferred before noon of that date, and if the charge is transferred afternoon, he commences to draw them from the following day. Further, it is the stand of the respondents that it is not mandatory to mention the joining time in the promotion order. It is further stated that the promotions are given based on the service seniority, whereas, the teacher''s transfer through General Transfer Counselling is being given based on the Station Seniority, that is the date of joining in the current post or current Station, and when the date of joining is same, the Date of Birth would be considered. As per G.O.(D) No.131, Adi Dravidar and Tribal Welfare (ADW 7) Department, dated 30.06.2022, online General Transfer Counselling was conducted on 19.09.2022 for all the teachers working in Tribal Welfare Department based on the priority guidelines stated in Para No.5 of the said Government Order. The petitioner and the 4th respondent applied for transfer to the same Station, i.e., Karkudi at The Nilgiris District. Based on the date of joini
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