IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-12-2009 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.21368 of 2009 and M.P.Nos.1 & 2 of 2009 G.D.Nazeer Ahmed ..Petitioner .. Vs.. 1.The Deputy Commissioner, Office of the Commercial Tax Dr.Balasundaram Road, Coimbatore 641 018. 2.The Assistant Commissioner Office of the Commercial Tax, Pollachi 642 001, Coimbatore District. 3.The Under Secretary, Tamil Nadu Public Service Commission, Chennai. .. Respondents Prayer : This writ petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus to call for the records pertaining to the impugned order dated 06.01.2006 in Na.Ka.5523/05A1 on the file of the 2nd respondent and consequential order passed by the 1st respondent in his proceedings in Mu.Mu.5294/06 A2 dated 22.03.2006 and to quash the same as illegal and consequently directing the 1st and 2nd respondents to reinstate the petitioner in service with all back wages taking note of the departmental examination in service May 2006 result published by the 3rd respondent on 01.09.2006. For Petitioner : Mr.M.Thikvijayapandian For Respondents 1 to 3 : No Appearance ORDER This matter was frequently adjourned to enable the counsel for the respondents 1 and 2 to appear. This case came up for hearing on 19.12.2009 at 2.30 p.m., since no one appeared for the respondents, it was directed to be listed after 2 days namely on 21.12.2009 at 2.30 p.m. Again, no one appeared for the https://hcservices.ecourts.gov.in/hcservices/ respondents. The counsel, who appeared for the petitioner argued the matter in detail. In view of the non appearance of the respondents' counsel, the matter was once again posted on 22.12.2009. On that date also,no one appeared for the respondents. Again the matter was posted under the caption "for orders" on 23.12.2009. Even on 23.12.2009, there was no appearance for the respondent and, therefore, this Court chose to take up the matter. 2.The writ petitioner viz., G.D.Nazeer Ahamed was selected by the 3rd respondent/ Tamil Nadu Public Service Commission for the post of Junior Assistant and subsequently, the petitioner joined the service in the Office of the Commercial Tax Officer, Pothanur Circle, Coimbatore on 20.01.1997. He was transferred to the Office of the Deputy Commercial Tax Officer, Valparai, Coimbatore District. The petitioner was undergoing training in Bhavanisagar. Whileso, he was transferred to the office of the Commercial Tax Officer at Udumalpet (South) Coimbatore District (now changed as Tiruppur District) and again he was transferred to the office of the Commerical Tax Officer, Valparai and again he was transferred to the 2nd respondent's office. Whileso, on 02.12.2005 the 2nd respondent called upon the petitioner to show cause as to why he should not be discharged from service for not acquiring the special qualifications or passing the special tests within 5 years from the date of joining the services. After the receipt of the above show cause notice dated 02.12.2005, the petitioner offered his explanation dated 02.01.2006 informing that he had written the test which was held in the month of December 2005 and the results have not been declared till date and therefore requested the respondent to wait till the declaration of the results of examination. But the 2nd respondent was not satisfied with the explanation given by the petitioner and therefore discharged the petitioner from service by his proceedings dated 06.01.2006. Therefore, The petitioner filed an appeal before the first respondent, and the same was also dismissed by order dated 22.03.2006. 3.The contention raised by the learned counsel appearing for the petitioner is that as per Rule 26(b)of the Tamil Nadu State and Sub-ordinate Services Rules, if the probrationer has appeared for any such tests, in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has so appeared are not known before the expiry of such period, he shall continue to be on probation until the publication of the results of the tests or examinations for which he has appeared for the first time in which he fails to pass, as the case may be. He further contented that when he has already appeared in the examination and acquired the said qualification on 31.12.2005, the results of which were declared on 16.03.2006, as per the Rule 26(a)(ii), the respondents are not entitled to discharge the petitioner from service. Therefore, the impugned order passed on 06.01.2006 is in total violation of R.26(a)(ii). https://hcservices.ecourts.gov.in/hcservices/ 4.The petitioner was not able to pass the Departmental examination in the month of December 2005 when results of the examination were declared. However, only when he appeared for the tests in the month of May 2006, the results of which were declared on 01.09.2006, he was declared passed. The contention raised by the learned counsel appearing for the petitioner is that when the Rule 26(a)(ii) specifically states that if an employee on probation appeared for any such tests or any examinations in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has so appeared are not known before the expiry of such period such employee continues to be on probation until the publication of the results of the tests or examinations for which he has appeared. Whileso, before the declaration of results, namely, on 16.03.2006, as the respondent had wrongly passed the impugned order on 06.01.2006, the same is liable to be set aside and accordingly the impugned order is set aside as it is contrary to rule 26(a)(ii) of the Tamil Nadu State and Sub-ordinate Service Rules. 5.Accordingly, the writ petition is allowed by setting aside the impugned order dated 06.01.2006 as well as the appellate order passed by the 1st respondent dated 22.03.2006, and the respondents, therefore are directed to reinstate the petitioner in service with all backwages on the basis of subsequent qualification. 6.With this observation, the writ petition stands is allowed. Consequently, connected Miscellaneous Petitions are closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar kkd To 1.The Deputy Commissioner, Office of the Commercial Tax Dr.Balasundaram Road, Coimbatore 641 018. 2.The Assistant Commissioner Office of the Commercial Tax, Pollachi 642 001, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ 3.The Under Secretary, Tamil Nadu Public Service Commission, Chennai. + 1 cc to Mr.M.Thikvijayapandian,Advocate,SR.71041 W.P.No.21368 of 2009 and M.P.Nos.1 & 2 of 2009 VSV(CO) EM/22.2.10 https://hcservices.ecourts.gov.in/hcservices/