IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.09.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.40921 OF 2006 (O.A.NO.4054 OF 2000) J.Basil Francis ... Petitioner Versus The District Registrar (Administration) North Chennai, Chennai – 600 001. ... Respondent PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.4054 of 2000 from the file of Tamil Nadu Administrative Tribunal with a prayer to (i) call for the records from the respondent relating to the impugned order No.3138/A4/94 dated 01.06.2000 and set aside the said order dated 01.06.2000 and to (ii) direct the respondent to reinstate the petitioner in service with continuity of service and backwages and all other attendant benefits. For Petitioner : Mr.R.Manoharan For Respondent : Mr.V.Viswanathan Additional Government Pleader O R D E R The petitioner studied upto 9th standard in Besant Moression and Sarojini Matriculation School at No.7, Daniel Street, Madras – 600 017. He registered his name in the Employment Exchange. His name was sponsored by the Employment Exchange along with about 200 candidates for employment in Secretariat as Office Assistant during the year 1975. Subsequently, he was appointed as Office Assistant in the Health Department in the Secretariat in the year 1975. In 1978, his services were ousted. 2.The Government of Tamil Nadu issued a direction to the Collectorate, Chennai to register the names of the ousted persons and to allot those persons in various departments thereafter. Accordingly, the petitioner was allotted to the Registration Department as Office Assistant in April 1980. He joined as Office Assistant in the Office of the District Registrar, Chennai North on 15.04.1980, pursuant to the order dated 14.04.1980 issued under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules. https://hcservices.ecourts.gov.in/hcservices/ 3.Subsequently, the name of the petitioner was recommended to the Government for regularisation, by getting exemption under Rule 4(a) of the Tamil Nadu Basic Service. Rule 4(a) of the Tamil Nadu Basic Service contemplates recruitment through Employment Exchange. As the petitioner was appointed in the office of the District Registrar, without reference to Employment Exchange, a proposal was sent to the Government, seeking exemption under Rule 4(a) of the Tamil Nadu Basic Service as stated above. That took place in the year 1992. Along with the proposal, the Service Register of the petitioner was sent to the Government. 4.The Government sent a letter dated 04.08.1993 to the Inspector General of Registration, Chennai returning the proposal stating that there are corrections as to the qualification of the petitioner. Earlier, in the Service Register, it was mentioned as 4th standard. Later, it was corrected as 8th standard. The Government wanted clarification as to why such correction was made. 5.Based on the aforesaid letter, a charge memo dated 30.12.1994 was issued to the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In the charge memo, three charges were made against the petitioner and the same are as follows: 1)The petitioner produced educational certificate from an un-recognised school viz., Besant Moression and Sarojini Matriculation School that he passed 9th standard. It was also alleged that the certificate produced by him was a bogus one, so as to get employment in Government . 2)The petitioner made corrections in the Service Register. 3)While the petitioner did not possess the educational qualification, he made corrections in the Service Register and also produced bogus educational certificate in order to obtain employment. It was further alleged that he cheated the appointing authority by his aforesaid acts and thus he caused loss to the Government by receiving salary for these periods. 6.The petitioner submitted his explanation on dated 06.02.1995 denying the charges. He submitted that he studied in the said school, which gave him certificate. He was not aware whether the school was recognised or not recognised. He stated that he did not make correction in the service register and the service register could never come to his hand for making corrections. He rendered https://hcservices.ecourts.gov.in/hcservices/ service and thereafter only earned wages and there was no loss to the Government. He further stated that he did not cheat the appointing authority. 7.The Assistant Inspector General of Registration appointed an Enquiry Officer. The Enquiry Officer submitted the enquiry report. The petitioner pointed out that the Enquiry Officer did not give him reasonable opportunity in the enquiry. 8.Accepting the version of the petitioner, another enquiry by the Sub-Registrar was ordered. The Sub-Registrar conducted an enquiry and some witnesses were examined and documents were also produced. The Enquiry Officer held that all the charges were not proved, except the charge that the educational certificate produced by the petitioner was issued by an un-recognised educational institution. 9.Accordingly, by the letter dated 12.04.2000, the petitioner was asked to submit his remarks on the findings of the Enquiry Officer. Along with the said letter, the findings of the Enquiry Officer was enclosed. The petitioner made a representation dated 05.05.2000 stating that he was not aware that the school was an un-recognised one and also reiterated that he was innocent and the Enquiry Officer also found him not guilty of the charges. 10.While so, the respondent District Registrar passed the impugned order dated 01.06.2000 removing the petitioner from service on the ground that since the petitioner did not possess the educational qualification, relaxation under Rule 4(a) of the Tamil Nadu Basic Service could not be granted. 11.The petitioner filed Original Application in O.A.No.4054 of 2000 before the Tamil Nadu Administrative Tribunal seeking to quash the aforesaid order dated 01.06.2000 of the respondent and for a consequential direction to reinstate him in service. 12.The respondent filed reply affidavit refuting the allegations made by the petitioner. 13.On abolition of the Tamil Nadu Administrative Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.40921/2006. 14.Heard the submissions made on either side and perused the materials available on record. 15.The learned counsel for the petitioner submits that when the Enquiry Officer held that all the charges were not proved, except the charge that the educational certificate produced by the petitioner was from an un-recognised institution, the respondent https://hcservices.ecourts.gov.in/hcservices/ ought not to have removed him from service. It is submitted that while initially the respondent sought relaxation from the Government under Rule 4(a) of the Tamil Nadu Basic Service as to sponsorship of candidates through Employment Exchange, the respondent ought to have sought for further relaxation relating to educational qualification under Rule 5 of the Tamil Nadu Basic Service, particularly, when the petitioner served for 18 years in the Registration Department and about three years in the Health Department. Hence, the impugned order is arbitrary and was passed without application of mind. 16.On the other hand, the learned Government Advocate submits that since the petitioner did not possess the requisite qualification, relaxation under Rule 4(a) of the Tamil Nadu Basic Service is not sufficient for regularisation of his service and hence, he was removed from service. 17.I have considered the submissions made on either side. 18.The petitioner was initially sponsored through Employment Exchange for temporary appointment as Office Assistant in the Health Department during 1975 and he was appointed on temporary basis in the Health Department in 1975. He was ousted from service in 1978 along with others. These facts are not disputed. In fact, these facts are admitted in the counter affidavit of the respondent. While the temporary employees were ousted from the Secretariat, the Collectorate at Chennai, registered their names for allotting them in various departments as temporary employees. Accordingly, the petitioner was allotted to the Registration Department in April 1980 and the appointment order dated 14.04.1980 was issued to the petitioner under Rule 10(a)(i). Subsequently, he joined in the Registration Department on 15.04.1980. 19.In 1992, after 12 years of service, the respondent sought the Commercial Taxes and Hindu Religious Department to regularise the services of the petitioner and sent proposals for the said purpose. Accordingly, while sending proposals, the service register of the petitioner was also forwarded. The respondent sought exemption under Rule 4(a) of the Tamil Nadu Basic Service. In this regard, Rule 4(a) of the Tamil Nadu Basic Service is extracted hereunder: "4.Selection of direct recruits:- a) Selection of candidates to any o the categories by direct recruitment shall be made in the manner indicated below:- The appointing authority shall call for a panel of names from the Employment Exchange concerned, informing that office of the anticipated vacancies of https://hcservices.ecourts.gov.in/hcservices/ the posts and the qualifications prescribed for such posts. A selection shall be made only from out of the candidates included in the panel sent by the Employment Exchange concerned. If the appointing authority finds that none of the candidates in the panel sent by the Employment Exchange for forwarding a second list or necessary further lists of candidates and make his selection from out of such list or lists. Appointment of persons not nominated by the Employment Exchange concerned may be made only when the Employment Exchange concerned is unable to sponsor qualified candidates, and in such cases of appointment both the Employment Exchange concerned and the immediate superior office of the appointing authority should be informed of the appointment and the circumstances in which such appointments had to be made." 20.The Government sent a letter dated 04.08.1993 returning the proposals along with service register and asked the Inspector General of Registration to explain as to why corrections were made in the service register of the petitioner. After receiving the said letter, the charge memo was issued making three allegations, as stated above. An enquiry was conducted. In the enquiry, it was held that all the charges were not proved, except the charge relating to submission of educational certificate from an un-recognised educational institution. The charge that the petitioner made alterations in the service register was held as not proved. Likewise, the charge that he cheated the Appointing Authority by producing a bogus certificate was also not proved. Further, the Enquiry Officer held that there was no loss to the Government. The findings of the Enquiry Officer was also accepted by the respondent. Then, the petitioner also pointed out that he produced educational certificate from an un-recognised educational institution. 21.It is true that as per Rule 5(2) of the Tamil Nadu Basic Service, the candidate should have passed VIII standard and the certificate should have been from a recognised institution. However, it is a mandatory only in the case of categories of posts in Class IV in all Directorates and Medical Institutions under the administrative control of the Health and Family Welfare Department and the Tamil Nadu Secretariat. Even in the case of Medical Institutions and Tamil Nadu Secretariat, if qualified persons are not available, the Rule provide for appointment of persons with qualification to read and write in Tamil only. In all other Departments, candidates for appointment by direct recruitment to any of the categories in Class IV could be made if those candidates are able to read and write in Tamil. In this regard, Rule 5(2) of the Tamil Nadu Basic Service is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "5(2) Educational qualification: (a) No person shall be eligible for appointment by direct recruitment to any category of the service in class I, II and III unless he has passed the III form or the VIII Standard (or the E.S.L.C.) of a recognised school (i.e.) a school maintained by or opened with the sanction of the Government of Tamil Nadu or to which recognition has been accorded by the Director of School Education under the Educational Rules of the State. Explanation: The above educational qualification shall come into force with effect from the 6th November 1968. Provided that those who have passed III Form or VIII Standard or E.S.L.C and completed probation in Class IV or served in the said class for not less than one year shall be eligible for appointment on transfer from the categories in Class IV to the categories in class III of the said service. aa) Candidates for appointment by direct recruitment to any of the categories in class IV must be able to read and write in Tamil . b) Notwithstanding the provision in clause (a) ex- servicemen shall be eligible for appointment to the service, if they are able to read and write in Tamil. c) Notwithstanding the provisions contained in clause (aa), appointment to the categories of posts in Class IV in all Directorates and Medical Institutions under the administrative control of the Health and Family Welfare Department and the Tamil Nadu Secretariat may be made out of persons who do not possess ability to read and write Tamil, if qualified persons are not available at the time of appointment". 22.In any event, even assuming that the petitioner lacks educational qualification, the same could be relaxed by the Government, since the petitioner rendered 18 years of service in Registration Department, when the removal order was passed and particularly when the charges were held as not proved, except that the petitioner provided educational certificate from an un-recognised institution. As rightly contended by the learned counsel for the petitioner, the respondent ought to have sought relaxation for Rule 5 https://hcservices.ecourts.gov.in/hcservices/ (2) of the Tamil Nadu Basic Service relating to educational qualification, if necessary. 23.In these circumstances, I am of the view that the impugned order is arbitrary and the Office Assistant could not be removed from service after rendering 18 years of service. In fact, he rendered 22 years of service, if his service for about three years in the Secretariat was taken into account. In fact, the Government was prepared to grant exemption under Rule 4(a) of the Tamil Nadu Basic Service, which relates to appointment through Employment Exchange. 24.In any event, as stated above, the respondent sent proposals seeking exemption under Rule 4(a) of the Tamil Nadu Basic Service and the Government also granted relaxation for others, as those persons were appointed from the register maintained by the Collectorate. Besides giving exemption under Rule Rule 4(a) of the Tamil Nadu Basic Service, the Government also could give exemption under Rule 5 of the Tamil Nadu Basic Service, in the facts and circumstances of the case, if necessary. Since it is not an appointment in the Directorate or Medical Institution or Tamil Nadu Secretariat, the ability to read and write in Tamil itself is sufficient for appointment as Office Assistant. In any event, if necessary, the respondent could seek exemption for Rule 5(2) of the Tamil Nadu Basic Service. 25.In the result, the impugned order is quashed and the respondent is directed to reinstate the petitioner in service with all benefits, within a period of four weeks from the date of receipt of a copy of this order. Further, the respondent is directed to send proposals to the Government, seeking exemption under Rule 4(a) as well as under Rule 5(2) of the Tamil Nadu Basic Service, if necessary, for regularisation of the services of the petitioner. The Government is directed to pass appropriate orders, taking into account the above said observations and to accord exemption for the purpose of regularisation of the services of the petitioner. 26.The writ petition is allowed on the above terms. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ TK To The District Registrar (Administration) North Chennai, Chennai – 600 001. 1 cc To The Government Pleader, SR.71021 1 cc To Mr.R.Manoharan, Advocate, SR.70566 W.P.NO.40921 OF 2006 (O.A.NO.4054 OF 2000) TRM(CO) sra 22/10/2010 https://hcservices.ecourts.gov.in/hcservices/