R. Palani vs State of Tamil Nadu and Others

T. Raja, J—The petition in O.A. No. 1482 of 2004 was filed on the file of the Tamil Nadu Administrative Tribunal challenging the proceedings dated 13.3.2003 issued by the second respondent.

After some time, the matter came on transfer as Writ Petition No. 17567 of 2007. The crux of the matter is as follows:--

"Though the petitioner''s name was included in the panel for promotion of the year 2000-2001 on 8.11.2000 with retrospective effect in pursuance of the order of declaration of probation and promoted as Assistant, no service benefits were granted for the said period. The third respondent, while fixing the scale of pay of the petitioner as Assistant, had considered only his date of joining as Assistant and fixed his scale of pay as Rs. 4500/- with personal pay of Rs. 190/- and his next increment from 1.4.2004 and failed to consider the vital point that the petitioner was omitted to be included on 8.11.2000."

Learned counsel for the petitioner also submitted that the petitioner was appointed as Selection Grade Record Clerk on 31.8.1980 and he was provisionally appointed as Junior Assistant by transfer by an order dated 22.12.1994 by the Director of Medical and Rural Health Services, Madras. His service in the post of Junior Assistant was also regularized with effect from 3.1.1995 by an order of the Director of Drug Control dated 31.8.2000. Thereafter, the Assistant Director of Drug Control, by proceedings dated 25.9.2000 had declared the completion of his probation on 20.2.1997. Subsequently, the very same authority, by another proceedings dated 10.11.2000, had cancelled the previous order of completion of probation and declared again that the petitioner had completed his probation on 5.7.1997. Again the same authority had cancelled the second order also stating that the Director of Drug Control, Tamil Nadu, through letter dated 30.11.2000, had informed authority that such declaration of probation order has to be issued by him. Aggrieved by the consecutive orders declaring and cancelling the completion of his probation period, the petitioner made a representation to the Director of Drug Control and Secretary to Health and Family Welfare Department with a request to declare his completion of probation. On considering his representation, the Joint Director of Health Services, by order dated 11.5.2002, recommended the case of the petitioner to the Government of Tamil Nadu to declare the completion of probation of the petitioner with effect from 20.2.1997. Thereafter, the Director of Drug Control, Tamil Nadu had finally passed an order stating that the petitioner had completed the probation with effect from 19.2.1997 vide his proceedings dated 29.8.2002 with a direction to draw arrears of increment and subsequent increments as per the rules in force. Therefore, the grievance of the petitioner is that due to inaction and irregular proceedings of the departmental authorities, the declaration of the petitioner''s probation was delayed and consequently his promotion was also deferred. Further, subsequent to the declaration of his probation, he was retrospectively placed in Serial No. 74A in the seniority list for the panel of promotion of the year 2000-2001 by the proceedings of the Assistant Director of Medical and Rural Health Services dated 13.3.2003. Further, pursuant to the inclusion of his name in the panel for promotion for the year 2000-2001, he was promoted and posted as Assistant in Government Hospital, Tambaram and the petitioner also joined duty on 12.5.2003. Therefore, re-fixation of pay in the post of Assistant with effect from the date of promotion of his immediate junior should be given.

Learned Additional Government Pleader appearing for the respondents, placing on record a proceedings dated 5.3.2015 issued by the Director of Medical and Rural Health Services, submitted that the request of the petitioner to re-fix the seniority has been considered and his seniority had been restored vide proceedings in Ref. No. 10298/E2/1 2000 dated 13.3.2003. Moreover, necessary instruction also has been issued to the Joint Director of Health Services, Kancheepuram to fix the pay of the individual under Rule 17 of FR 27 notionally on the date of his assumption of charges as Assistant at the stage at which he would have drawn pay on the date on which his immediate junior had joined duty as Assistant had he been promoted alongwith his junior. Accordingly, the pay of the petitioner, formerly Assistant, Government Hospital, Tambaram has been re-fixed in the post of Assistant with effect from 18.4.2001 i.e., from the date of joining of his immediate junior and monetary benefit with effect from 12.5.2003 was also given.

Disagreeing with the non-grant of monetary benefit with effect from 18.4.2001, the learned counsel for the petitioner contended that the petitioner, at the time of filing the Original Application, has specifically raised this issue in para 6 of the application stating that he had joined duty on 12.5.2003 as per the order passed by the Additional Director of Medical and Rural Health Services vide order dated 9.4.2003 and he was not given service benefits for the deferred period.

While the juniors of the petitioner in the panel for the promotion of the year 2000-2001 were placed above him, the proceedings dated 5.3.2015 re-fixing the pay of the petitioner in the post of Assistant from 18.4.2001 i.e., from the date of joining of this immediate junior should necessarily go with the monetary benefit. Therefore, the proceedings dated 5.3.2015 issued by the Director of Medical and Rural Health Services giving the monetary benefit only from 12.5.2003 is neither fair nor acceptable.

Therefore, the contention of the respondents that at the time of drawal of panel for the post of Assistant for the year 2000-2001, the petitioner was only a probationer and his name could not be included in the panel as per the rules in force is totally untenable in view of the proceedings dated 5.3.2015 issued today for the reason that if the petitioner was only a probationer at the time of drawal of panel for the post of Assistant for the year 2000-2001, the proceedings dated 5.3.2015 would not have re-fixed the pay of the petitioner in the post of Assistant from 18.4.2001.

Therefore, having re-fixed the pay of the petitioner in the post of Assistant with effect from 18.4.2001 from the date of joining of his immediate junior, monetary benefit also should be given from the said date. With the above direction, the writ petition stands allowed. No costs.