An employee cannot be denied promotion based on delays in service posting that are not their fault; promoting juniors who fulfill eligibility criteria creates inequity.

JUDGMENT :

G.R. SWAMINATHAN, J.

1. The State has filed this Writ Appeal challenging the order dated 17.02.2020 passed by the learned single Judge disposing of W.P(MD)No. 10418 of 2015 filed by the first respondent herein.

2. The first respondent herein was appointed as typist in the Rural Development Department on 16.05.1983. She was sponsored by the Employment Exchange. Her services were regularised on 25.06.1984. She was transferred to Revenue Department and later re-transferred to Rural Development Department. The writ petitioner was promoted as Junior Assistant on 18.09.1992.

3. The next promotional post is that of Assistant. The eligible qualification for being considered for the post of Assistant vide G.O(Ms)No.349 P&AR Department dated 12.04.1984 is as follows:

“(i) Individual should have passed the departmental test (ii) Must have served Rural Welfare Officer Grade – II or as Junior Assistant for the period of 1 year.”

4. The writ petitioner passed the departmental test on 19.11.1993. She however completed one year as Rural Welfare Grade – 2 officer only on 21.07.1995. In the meanwhile, one Indira Bai who fulfilled both the prescribed qualifications, was promoted as Assistant. The writ petitioner initially went before the Tamil Nadu Administrative Tribunal by filing O.A.No.6399 of 2002. It was later transferred to High Court and renumbered as W.P.No.11741 of 2007. The writ petition was dismissed on 19.12.2011 for non-joinder of necessary parties. Aggrieved by the same, W.A.No.930 of 2012 was filed. The Hon'ble Division Bench even while sustaining the dismissal order on 13.10.2014 granted liberty to the petitioner to file a fresh writ petition on the same cause of action after impleading the necessary parties. Availing the said liberty, W.P(MD)No. 10418 of 2015 was filed. The learned single Judge granted relief to the writ petitioner vide order dated 17.02.2020 in the following terms:

“7. According to the petitioner, she had passed all the department tests on 19.11.1993, but she was promoted as Assistant only on 01.01.1996 and requested to assign her seniority taking into consideration of her acquiring test qualification for promotion as Assistant on 19.11.1993. According to the respondents, though the petitioner completed the departmental test in the year 1993, she completed the service qualification as Rural Welfare Officer Grade II only on 22.07.1995 and she became eligible for inclusion in the panel in the year 1996 only and therefore, her seniority cannot be again refixed.

8. Admittedly, sending the petitioner for one year service as Rural Welfare Officer Grade II was only in the hands of the respondents 1 to 3. Having failed to send her for one service, now she cannot be denied promotion on that ground. In similar circumstances, in the case of M. Chandrasekar Vs. the Director of Rural Development Chennai, (W.P. Nos. 47872 and 47885 of 2006 and 7791 of 2007), by order dated 04.09.2007, this Court has held in paragraph No.8 as follows:

“8.Under these circumstances, the petitioners cannot be denied the benefit of inclusion in the panel, on the ground that they did not possess the service qualification. After all, the service qualification cannot be equated to the qualification of a pass in the departmental test. While the pass in a departmental test may be in the hands of the individual, the posting of the individual to a particular post, is not within the hands of the individual. Therefore, the respondents ought to have formulated and implemented a policy providing equal opportunity to all persons to acquire the service qualifications. Since the respondents have failed to do so, the petitioners were not at fault and on that ground, they should not have been omitted to be included in the panel.”

9. A learned Single Judge of this Court, in similar c