IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 7-2-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.34826 of 2007 and M.P.Nos.1, 2 & 3 of 2007 W.P.No.34827 of 2007 and M.P.Nos.1, 2, 3 of 2007 & 1 of 2008 E. Saraswathi ... Petitioner in both writ petitions Vs. 1. The Commissioner, Corporation of Chennai, Ripon Building, Chennai - 3. 2. The Zonal Officer, Zone-V, No.183, Periyar EVR High Road, Kilpauk, Chennai - 10. 3. The Assistant Commissioner (Works), Corporation of Chennai, Ripon Building, Chennai - 3. ... Respondents in both writ petitions Prayer in W.P.No.34826/2007: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorari calling for the records and quash the impugned order passed by the third respondent in proceeding No.Ma.A.5, Na.Ka.No.C2/5928/04, dated 16.11.2006. Prayer in W.P.No.34827/2007: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorari calling for the records and quash the impugned order passed by the second respondent in proceeding No.Ma.A.5 Na.Ka.No.C2/9575/07, dated 26.10.2007. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.M.S.R.Ramanlaal For Respondents 1 to 3 : Mr.V.Bharathidasan O R D E R By consent of both sides, the writ petitions are taken up for final disposal. 2. Prayer in the writ petitions are to quash the order dated 16.11.2006 imposing punishment of censure and denying promotion by order dated 26.10.2007, on the basis of the said punishment of censure. 3. The case of the petitioner in both the petitions are that the petitioner was appointed as Sweeper, a Class-IV employee, in the respondent Corporation on 18.6.1992 and her service was also confirmed. According to her, she is eligible for promotion to the post of Assistant as she has got educational qualification in 10th standard and having 10 years of service in Class-IV service. When the petitioner was working as Sweeper, she joined post graduation in M.A.(History) in Open University System, conducted by the Annamalai University and completed the said course. Since the petitioner has not obtained permission from the Corporation for undergoing the said course, a charge memo dated 9.12.2005 was issued to the petitioner stating that the petitioner joined post graduate Course without obtaining prior permission from the first respondent. Petitioner submitted her reply to the said charge memo on 12.12.2005 stating that she had joined course only through Open University System and not through Correspondence Course. Without considering the said reply, the impugned punishment order was issued on 16.11.2006 imposing punishment of censure. Due to the said punishment petitioner's name was not included in the panel for promotion as currency of punishment was not over, since the person who is punished with censure will not be eligible to be considered for promotion for one year as per the Corporation rules. Hence both the orders are challenged in the present writ petitions. 4. The learned counsel for the petitioner submitted that she has not violated any rule, much less conduct rule, for issuance of charge memo and imposition of punishment on the ground that the petitioner underwent M.A. degree course without obtaining prior permission, which was only through Open University System. 5. The learned counsel appearing for the Corporation based on the counter affidavit submitted that Chennai Corporation https://hcservices.ecourts.gov.in/hcservices/ Servants' Conduct Bye-laws does not impose bar on the Class-III & IV employees from continuing study while in service. However, petitioner ought to have obtained prior permission from the first respondent as per G.O.Ms.No.328 P&AR Department, dated 9.4.1983 and the petitioner cannot plead that she is ignorant of the said Government Order, as ignorance of law cannot be pleaded as an excuse. On the basis of the said Government Order, the learned counsel submitted that the petitioner having underwent M.A. Degree course without prior permission, the impugned order passed by the Corporation imposing punishment of Censure and the consequential denial for inclusion of her name in the panel for promotion for one year is just and proper. 6. I have considered the rival submissions of the learned counsel for the petitioner as well as the learned counsel for the respondent Corporation. 7. The point in issue is whether the petitioner is required to get prior permission from the respondent Corporation before joining M.A. Degree course through Open University System, while she is in employment of the respondent Corporation. 8. G.O.Ms.No.328, P&AR (Personnel-A), dated 9.4.1983, deals with joining of correspondence course for acquiring additional qualification, by the Government Servants. The said Government Order reads as follows: "GOVERNMENT OF TAMIL NADU ABSTRACT PUBLIC SERVICES - Government Servants - Joining correspondence courses for acquiring additional qualification - Prior permission to be obtained from Heads of Departments - Instructions - Issued. -------------------------------------------------------- (G.O.Ms.No.328, P&AR (Personnel-A),dated 9th April, 1983 READ: G.O.Ms.No.1341, Public (Services-A) Department, dated 27th August, 1963 ORDER: In the G.O. read above, it was ordered that a Government servant should obtain prior permission of the Head of the Department concerned for joining a part-time evening course conducted out of office hours for https://hcservices.ecourts.gov.in/hcservices/ acquiring additional qualifications such as Associate Membership of the Institute of Engineers, etc. 2. A question has arisen whether a Government servant who joins a Correspondence courses conducted by various Universities with a view to acquiring additional qualification, should obtain prior permission of the Head of Department. The above question was examined in detail. It is considered that in a Correspondence course, though the candidate need not attend calsses, it requires considerable time to prepare for the final examination. At times the students will have to attend the seminars conducted by the Universities. The intention in granting permission to join an evening course or undertake a part-time job is that such evening course or part-time job should not be detrimental to discharging normal official duties. Therefore, prior permission of the Head of the department is necessary for joining correspondence course also. 3. The Government therefore, direct that a Government servant who joins the Correspondence Course conducted by various Universities should obtain prior permission of the Head of the Department concerned. (By order of the Governor) K.CHOCKALINGAM Second Secretary to Government." 9. The Tamil Nadu Government Servants Conduct Rules, 1973, is applicable to the petitioner even though she is a Corporation employee, by virtue of bye-law No.44, wherein it is stated that the Tamil Nadu State and Subordinate Service Rules, Tamil Nadu Fundamental Rules, Tamil Nadu Leave Rules 1933, Tamil Nadu Manual of Special Pay and Allowances, G.P.F (Tamil Nadu) Rules, Tamil Nadu Pension Rules 1978, Financial Code vol-I, and the Tamil Nadu Government Servants Conduct Rules, are applicable to Corporation employees Class III & IV. 10. I have perused the Tamil Nadu Government Servants Conduct Rules, 1973, which does not required any permission to be obtained for undergoing degree course through Open University https://hcservices.ecourts.gov.in/hcservices/ System and Rule 20 deals with integration and devotion to duty. It is not the case of the Corporation, that as the petitioner underwent M.A.Degree course through Open University System, there was deficiency in the duty performed by her during the relevant period. There is no such charge framed against the petitioner and only a technical violation viz., not obtaining permission before joining M.A. Degree course, is the charge framed against the petitioner. As already stated, the Government Order relied upon by the Corporation is applicable only for the persons, who are joining in Correspondence course and not for the persons joining in Open University System. 11. Hence the impugned charge memo and the consequential punishment order are unsustainable and the punishment imposed against the petitioner is set aside. Consequently, petitioner is entitled to get her name included in the appropriate place in the panel for promotion, prepared on 1.6.2007. Respondents are directed to include the name of the petitioner in the panel for promotion, as admittedly her name was not included only due to the non-expiry of the punishment period. Respondents are directed to include the name of the petitioner in the panel in the appropriate place and thereafter proceed further. The writ petitions are ordered in the above terms. No costs. Connected miscellaneous petitions are closed. vr Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Commissioner, Corporation of Chennai, Ripon Building, Chennai - 3. https://hcservices.ecourts.gov.in/hcservices/ 2. The Zonal Officer, Zone-V, No.183, Periyar EVR High Road, Kilpauk, Chennai - 10. 3. The Assistant Commissioner (Works), Corporation of Chennai, Ripon Building, Chennai - 3. • 2 ccs to Mr. R. Ramanlal, Advocate SR 6478,6479 • One cc to M.s R. Kathikeyan, Advocate sR 6212 KG (co) sg 11/02/08 W.P.No.34826 & 34827/2007 7-2-2008 https://hcservices.ecourts.gov.in/hcservices/