Rule 47 of the Tamil Nadu State and Subordinate Service Rule

K.Murugan vs The Commissioner Of Agriculture on 3 March, 2010

DATED: 3.3.2010
CORAM:
THE HONOURABLE MR. JUSTICE K.N.BASHA
W.P.No.17906 of 2009 and
M.P.No.1 of 2009
K.Murugan .. Petitioner
Vs.
The Commissioner of Agriculture,
Chepauk, Chennai-5 ... Respondent
PRAYER: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarifed Manadamus to call for the records in Ka.No.Ka.Pane.3/159584/2008 dated 10.8.2009 on the file of the respondent and quash the same and consequently direct the respondent to include the name of the petitioner herein in the panel for the promotion for the post of Deputy Agricultural Officer.
For Petitioner : Mr.K.M.Vijayan, Senior Counsel
For Respondent : Mr.L.S.M. Hasan Fizal, GA
O R D E R
By mutual consent, the main writ petition is taken up for final disposal.
The petitioner has come forward with this writ petition seeking for the relief of quashing the proceedings in Ka.No.Ka.Pane 3/159584/2008 dated 10.8.2009 on the file of the respondent and consequently directing the respondent to include the name of the petitioner herein in the panel for the promotion for the post of Deputy Agricultural Officer.
2. The case of the petitioner is that the petitioner joined the service in 1981 as Assistant Agricultural Officer in the office of Assistant Director of Agriculture, Mayiladuthurai and subsequently transferred to various places and presently working in Modakurichi, Erode District. A promotion order dated 17.9.2004 was passed, promoting the petitioner as Assistant Seed Officer, but due to family situation the petitioner was not in a position to accept the said promotion on the ground that his son was suffering from certain ailments and the petitioner being the only guardian to take care of him. Accordingly, the petitioner has written a letter dated 3.5.2005 seeking for relinquishment of his promotion to the particular post viz., Assistant Seed Officer. The said request of the petitioner was accepted and the petitioner was reverted back to the post of Assistant Agricultural Officer as per the proceedings of the Additional Director of Agriculture dated 13.10.2006. Thereafter the respondent herein prepared a panel in his proceedings dated 29.12.2007 for promotion to the post of Deputy Agricultural Officer from the post of Assistant Agricultural Officer. As the petitioner's name was not included in the above said panel, the petitioner enquired and came to know that he was permanently barred for promotion.
3. The petitioner made a representation dated 2.1.2008, expressing his willingness for the promotion to the post of Deputy Agricultural Officer and requested the respondent to include his name in the panel. The respondent has not considered the representation and prepared the panel without including the petitioner's name. Having aggrieved against the said action, the petitioner preferred a writ petition in W.P.No.23588/2008 and this Court by order dated 18.6.2009 directed the petitioner to make one more representation to the respondent to consider his case favourably. The petitioner sent a representation accordingly but, without considering the petitioner's request, the respondent passed a non-speaking order stating that there is no provision governing for a person who opted for relinquishment of his service benefits for a life time. Being aggrieved against the said order, the petitioner has been constrained to approach this Court with the above said prayer.
4. Mr.K.M.Vijayavan, learned Senior Counsel appearing for the petitioner submitted that the petitioner has only relinquished the promotion to the post of Assistant Seed Officer and it does not mean that the petitioner has been permanently declined to accept any promotion in future. It is contended by the learned senior counsel that only due to his family situation as the petitioner's son was not well and he was undergoing treatment, the petitioner made such a request. The learned senior counsel mainly contended that as per Rule 29 of the Tamilnadu Government Fundamental Rules, if a Government servant is reduced as a measure of penalty to a lower service, grade or post or to a lower stage in his time scale, the authority ordering such reduction shall state the period of such reduction and such reduction cannot be made for an indefinite period. It is contended that such procedure cannot be followed by the respondent as a permanent measure. It is further contended that the impugned order was passed by the respondent by assigning wrong reasons to the effect that the petitioner was reverted permanently and on the other hand only at the request of the petitioner, he was reverted to the lower cadre namely Assistant Agricultural Officer as the petitioner declined to accept the promotion to the post of Assistant Seed Officer.
5. The learned senior counsel pointed out that the respondent stated in the counter that the case of the petitioner is only a reversion and not relinquishment and that the said reversion is a permanent one. It is contended that the said statement is patently wrong. It is further contended that, as per rule 29 of the Tamilnadu Government Fundamental Rules, the department namely the respondent herein cannot pass any order to the effect of permanent reversion. It is contended by the learned senior counsel for the petitioner that the respondent placed reliance on the provisions under Rule 47 of Tamilnadu State and Subordinate Services Rules and Rule 15(a) of the Tamilnadu Government Fundamental Rules and both these provisions are not applicable to the facts of the instant case. It is contended that Rule 47 deals in respect of relinquishment of rights by members and Rule 15(a) deals in respect of transfer and as such both the provisions cannot be relied by the respondent, as in the instant case, the claim of the respondent is that the reversion of the petitioner is on a permanent basis. Therefore it is contended that the impugned order is liable to be set aside and as a result, the petitioner is entitled for promotion to the post of Deputy Agricultural Officer.
6. Mr.L.S.M.Hasan Fizal, learned Government Advocate contended that the petitioner having opted for permanent reversion as Assistant Agricultural Officer from Assistant Seed Officer, he has no right to claim any promotion. It is contended that in respect of any person who has been permanently reverted from higher post to lower post as per Rule 47 of the Tamilnadu State and Subordinate Service Rules and 15(a) of Tamilnadu Government Fundamental Rules, there is no provision or chance to give promotion to such person in any cadre. Therefore, it is contended that the petitioner is not entitled to any relief of promotion in any higher cadre.
7. I have carefully considered the rival submissions made by both sides and also perused the entire materials available on record including the impugned order.
8. The crux of the question involved in this matter is to the effect that whether the petitioner is entitled to be promoted to the post of Deputy Agricultural Officer after his relinquishment of promotion to the post of Assistant Seed Officer.
9. The perusal of the impugned order discloses that the respondent proceeded on the basis that the petitioner has permanently relinquished his right for promotion to any post and as such he cannot claim any further promotion after opting for permanent reversion as Assistant Agricultural Officer. At the outset, it is to be stated by this Court that the impugned order is nothing but a cryptic order as there is absolutely no reference to any provision or rules & regulations. However in the counter, it is stated by the respondent that as per Rule 47 of Tamilnadu State and Subordinate Service Rules and as per 15(a) of Tamilnadu Government Fundamental Rules, there is no provision and chance to give promotion to any person who has been permanently reverted from the higher post to the lower post.
10. Rule 47 of the Tamil Nadu State and Subordinate Service Rules reads hereunder:
47.Relinquishment of rights by members.-(1) any person may in writing, relinquish any right or privilege to which he may be entitled under these rules or the Specific Rules if, in the opinion of the appointing authority, such relinquishment is not opposed to public interest; and nothing contained in these rules or the Special Rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished.
(2)Relinquishment of a right or privilege for a temporary period shall be accepted if it is made for a period of not less than three years subject to the condition that after the expiry of the said period, the claim of the right of privilege relinquished will be with reference to the state of affairs that exist on the date of expiry of period of relinquishment and without restoration of original seniority. If relinquishment of right or privilege is made permanently and is accepted subsequent claim of the relinquished rights or privileges shall not be entertained. A reading of the above said Rule makes it crystal clear regarding the relinquishment of rights by members. As far as the case on hand is concerned, the petitioner has declined to accept the promotion to the post of Assistant Seed Officer mainly on the ground of his son's illness and that it does not amount to relinquishment of any rights of the petitioner and as such Rule 47 is not applicable to the facts of the instant case.
11. Now coming to Rule 15(a) of the Tamilnadu Government Fundamental Rules, which reads here under:
15(a). Government may transfer a Government servant from one post to another provided that, except-
(1) on account of inefficiency or misbehaviour; or
(2) on his written request
a Government servant shall not be transferred substantively to or appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended under Rule 14. (b) Nothing contained in clause(a) of this rule or in clause(13) of Rule 9 shall operate to prevent the re-transfer of a Government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of clause (a) of Rule 14. A reading of the above said Rule makes it crystal clear that this rule is in respect of transfer and not in respect of relinquishment or reversion and as such even the said Rule is not applicable to the facts of the instant case.
12. The learned senior counsel rightly placed reliance on Rule 29 of the Tamilnadu Government Fundamental Rules, which reads hereunder:
29.If a Government servant is reduced as a measure of penalty to a lower service, grade or post or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether on restoration, the period of reduction shall operate to postpone future increments and if so, to what extent. A reading of the above said provision makes it crystal clear that if a Government servant is reduced as a measure of penalty to a lower service, grade or post or to a lower stage in his time scale, the authority ordering such reduction shall state the period for which it shall be effective. It is also pertinent to note one of the rulings to the above said rule reads hereunder: The reduction to a lower stage in a time-scale is not permissible under the rules either for an unspecified period or as a permanent measure. Also, when a Government servant is reduced to a particular stage, his pay will remain constant at that stage for the entire period of reduction. The period to be specified under (iii) should in no case exceed the period specified under (i). Therefore, a reading of the above said provision makes it crystal clear that there cannot be any permanent reduction in Government service to the lower service, grade or post and it should be only for a specific period. As far as the instant case is concerned, the petitioner admittedly declined to accept the promotion to the post of Assistant Seed Officer by assigning valid reasons in his letter dated 8.2.2005. By no stretch of imagination the relinquishment of the petitioner to the post of Assistant Seed Officer be construed as a permanent relinquishment of his right to claim any other post. As a matter of fact, even the order dated 13.10.2006 passed by the Additional Director of agriculture accepting the request of the petitioner for declining to accept the post of Assistant Seed Officer, was challenged K.N.BASHA.J
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by the petitioner in W.P.No.23588/2008 and this Court passed an order dated 18.6.2009 directing the petitioner to make fresh representation and only pursuant to the said representation, the impugned order in this case was passed.
12. Therefore, considering in any angle, this Court is of the considered view that the impugned order is unsustainable in law. Accordingly, this Court is constrained to set aside the impugned order passed by the respondent dated 10.8.2009 in Ka.No.Ka.Pane 3/159584/2008 and consequently the respondent herein is directed to include the name of the petitioner in the promotion panel for the post of Deputy Agricultural Officer, within a period of four weeks from the date of receipt of a copy of this order.
13.With the above direction, the writ petition is allowed. No costs. Consequently connected miscellaneous petition is closed.