IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2008 CORAM THE HON'BLE MR. JUSTICE D.MURUGESAN AND THE HON'BLE MR. JUSTICE S.PALANIVELU W.A.M.P.No.92 of 2008 in W.A.No.1804 of 2003 ORDER (Order of the Court was made by D.MURUGESAN,J) This petition is filed to set aside the order passed in W.A.No.1804 of 2003 dated 02.09.2006. 2. The following few facts are necessary to be stated for the disposal of this petition:- The respondent by name N.A.Subramaniam, joined as Lower Division Clerk in the third appellant Sainik School at Amaravathi Nagar, as per the appointment order dated 30.01.1988. He was initially placed under probation for a period of two years. On completion of probation, he was made permanent in the said post. The next avenue of promotion is Upper Division Clerk. For consideration of promotion to the said post, a minimum of twelve years of service as Lower Division Clerk is required. He became eligible for such promotion during 1999. Accordingly, he was promoted as an Upper Division Clerk by an order dated 02.12.1999. However, by an order dated 27.11.2000, he was reverted and the said order of reversion was put in issue in this writ petition. The writ petition was dismissed and on an appeal, the same was allowed on 02.09.2006. 3. The present petition has been taken out by the petitioners, who are respondents in the writ appeal seeking to set aside the said order. 4. We have heard Mr.C.Krishnan, learned Senior Counsel appearing for the respondents. 5. In our considered view, the petition cannot be entertained for the simple reason that the same has been filed on the ground that the order dated 02.09.2006 is an exparte order. But, the said order was not passed exparte without reference to any merits. In fact, this Court had extracted the order dated 02.12.1999 promoting the respondent herein to the post of Upper Division Clerk with effect from 03.12.1999 and this Court had also accepted the submission of the learned counsel for the respondent herein that inasmuch as the respondent was found eligible to be promoted as Upper Division Clerk and was promoted and appointed in the said post with effect from 03.12.1999 in the scale of pay of Rs.4000-100-6000, the reversion of the respondent to the post of Lower Division Clerk is not only resulted in reduction of status but also the reduction in the scale of pay as he was paid after the impugned order only the scale of pay at Rs.3050-75-3950-80-4590. Therefore, this Court found that in the absence of any opportunity to the respondent herein, the order ought not to have been issued. For better appreciation of the order, the relevant paragraphs are extracted here under:- " 5. As has been held rightly by the learned Single Judge, the appellant cannot question the impugned order in the writ petition on the ground that the regulations do not provide for probation after having accepted such an order and joined the post. The issue, as to whether the regulations contemplate for a probation in the case of promotion, cannot also be gone into in this writ appeal, as we propose to dispose of the writ appeal on other grounds. 6. A perusal of the order of promotion dated 2.12.1999 show that the appellant who was holding the post of Lower Division Clerk was found eligible for the post of Upper Division Clerk and consequently, he was promoted and appointed as Upper Division Clerk with effect from 3.12.1999 in the scale pay of Rs.4000-100-6000. By the impugned order, the appellant was reverted to the post of Lower Division Clerk and correspondingly his pay scale was also reduced and fixed at Rs.3725 in the scale of Rs.3050-75-3950-80-4590. It is well settled in law that when the order resulting in reduction of scale of pay is passed, the employee or the officer, as the case may be, is entitled to an opportunity of hearing. Admittedly, no such opportunity was given to the appellant. On this ground, the appellant is entitled to succeed. That apart, as per the orders of promotion, the appellant would be initially put on probation for a period of one year, extendable to two years, of course at the discretion of the Principal. By the impugned order in the writ petition, the period was not extended on the ground that the performance of the appellant during the probationary period was not satisfactory. Since the order of promotion contemplates an extension of probation by one more year, it must be construed that in the event, the respondent was not satisfied as to the performance of the promotee, such promotee should be given one more opportunity to improve his/her performance by extending the period of probation by one more year. The impugned order in the writ petition does not indicate any such attempt except saying that the performance of the appellant during the probationary period was not satisfactory, even during the initial period of one year. The impugned order also does not refer to any communication addressed to the appellant requiring him to improve his performance except for the reference made in the said order. On this ground also, the appellant is entitled to succeed. 7. In view of the above discussion, we are of the considered view that the appellant is entitled to succeed. Accordingly, the order the writ petition is set aside and the writ appeal is allowed. No costs." Hence, it is apparent that this Court has not disposed of the writ appeal exparte, but only on consideration of the merits of the case. 6. However, Mr.C.Krishnan, learned Senior Counsel appearing for the petitioners would submit that the respondent being a probationer cannot automatically claim a right for promotion and therefore, the order questioned in this writ petition cannot be treated as one of reversion and the reversion cannot be considered to be one of punishment. Therefore, the direction of this Court in the writ appeal was not on the correct factual aspects. Moreover, only due to the inability of the counsel to appear on the particular date, the writ appeal came to be ordered exparte. Hence, the said order should be set aside. 7. In our considered view, the said submission merits no acceptance. Firstly, as far as non- appearance of the counsel is concerned, we have referred to in para 4 of the order, which reads as follows:- "4. We have heard the learned counsel for the appellant. Though the writ appeal has been adjourned on two occasions to enable the respondent to appear, there was no representation by the respondent either in person or through a counsel. Even today, there was no representation on behalf of the third respondent school. Hence, we have no other option except to consider the writ appeal on merits." 8. From the above, it is seen that this court had observed that in spite of sufficient number of adjournments were granted, there was no appearance on behalf of the petitioners herein, who are respondents in the writ appeal necessitating this Court to proceed the writ appeal on merits. Thereafter, the writ appeal was disposed of on merits as referred to in the earlier paragraphs. When once an order is passed on merits considering the grievance of the party, who has approached merely because such an order was passed in the absence of the counsel for the respondent, it cannot be treated as an exparte order. In that event, the petition to set aside the order cannot be entertained as it would be always open to the petitioners, who are affected by the order, to question the same by way of appeal. Hence, this petition is dismissed. sbi