1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.03.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA and THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY W.P. (MD) No.3664 of 2011 & M.P. (MD) No.2 of 2011 1 R. Mathivanan 2 A. Devadoss 3 V. Thirugnanam 4 J. Jayachandran 5 A. Krishnan Petitioners vs. 1 The Registrar General High Court Madras 600 104 2 The Principal District Judge Thanjavur Respondents Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorari to call for the entire records in proceedings in A.No.30/2011/A1 dated 10.03.2011 on the file of the second respondent and quash the same. For petitioners Mr. V. Bhiman ORDER (Order of the Court was made by K. SUGUNA, J.) This writ petition is filed challenging the order dated 10.03.2011 passed by the second respondent herein. 2. The petitioners herein were promoted as Senior Bailiffs by order dated 30.10.2006. A perusal of the said promotion order reveals that the said promotion was made only on a temporary basis. By the impugned order, on the ground that the petitioners did not possess the required qualification, they were reverted and posted as Junior Bailiffs. 3. It is not disputed by the learned counsel for the petitioners that the required qualification for promotion to the post of Senior Bailiff is the minimum general educational qualification. But, the stand of the learned counsel for the petitioners is that in the promotion order dated 30.10.2006, it is not stated that unless the petitioners acquire the minimum general educational qualification within a stipulated time, they will be reverted back; consequently, on the ground that the petitioners are not possessing the required qualification, they cannot be reverted. 4. As far as the above stand of the learned counsel for the petitioners is concerned, on the face of it, this cannot be accepted for the reason that as far as the minimum general educational qualification is concerned, this has been introduced to the post of Senior Bailiff by https://hcservices.ecourts.gov.in/hcservices/ 2 way of an amendment issued in G.O. Ms. No.316, Home Department (SER.1) Department dated 12.02.1990, that is to say, from February 1990 onwards, the prescribed qualification for promotion to the post of Senior Bailiff is the minimum general educational qualification. As far as granting of time is concerned, in the service jurisprudence, when a new qualification is introduced for any particular post and if that qualification is given with retrospective effect, the time limit will be prescribed for acquiring that qualification. But, this case is not of that nature. Here is a case where from 1990 onwards, the prescribed qualification is only the minimum general educational qualification. Admittedly, the petitioners did not possess that qualification. Consequently, this argument of the learned counsel for the petitioners will not hold good. 5. The other stand of the learned counsel for the petitioners is that the petitioners were served with a notice dated 28.02.2011 specifically stating that the required qualification for promotion to the post of Senior Bailiff is the minimum general educational qualification and since the petitioners did not possess the required qualification, they were directed to show cause as to why they should not be reverted from the said post. The contention of the learned counsel for the petitioners is that the show cause notice was issued to the petitioners on 28.02.2011 and they have submitted a representation dated 04.03.2011 seeking 30 days time; in spite of this, the impugned order has been passed on 10.03.2011 itself; when the petitioners sought additional thirty days time to offer their explanation, the impugned order ought not to have been passed prior to that; consequently, the impugned order amounts to an order passed without providing an opportunity to the petitioners. 6. We are not inclined to accept the above stand of the learned counsel for the petitioners for the reason that first of all, when temporary promotion is given, that promotion will not confer any right on an individual for the post to which he/she has been promoted and when a temporary promotion is sought to be cancelled also, there is no necessity to give a show cause notice. Even as per the judgment of the Hon'ble Apex Court reported in AIR 1999 SC 1596, Punjab State Electricity Board and another vs. Baldey Singh: "3. The sole question that is argued by the learned counsel appearing for the appellant in this Court is, that in view of the nature of appointment of the plaintiff against the post of Assistant Lineman on mere ad hoc basis, no rights had accrued in favour of the plaintiff and, therefore, the question of giving an opportunity of hearing before passing an order dated 8-1-1981 reverting the plaintiff to his substantive post of Charge I Mate does not arise. According to the learned counsel, the lower appellate court as well as the High Court committed serious error of law in interfering with the order on a wrong notion about applicability of the principle of natural justice to the case in hand. The learned counsel appearing for the respondent, however, contended that since the plaintiff had been posted as a Regular Assistant Lineman, before passing any order and altering his position he was entitled to be heard and no opportunity of hearing having been given, the impugned order could not have been sustained in law, and, therefore, the lower appellate court rightly set aside the order of termination. https://hcservices.ecourts.gov.in/hcservices/ 3 4. Having heard the learned counsel for the parties and examining the materials on record we have no hesitation to hold that in the facts and circumstances of the case the question of giving an opportunity of hearing to the plaintiff before passing the order dated 8-1-1981 does not arise. Since the plaintiff's appointment/promotion to the post of Assistant Lineman was purely on ad hoc basis and the higher authorities directed to discontinue such ad hoc appointment, the competent authority passed the impugned order posting the plaintiff against his substantive post of Charge I Mate. The plaintiff had not acquired any right to the post of Assistant Lineman and further, the impugned order dated 8-1-1981 cannot be held to be penal in nature. 5. In that view of the matter, the question of giving an opportunity of hearing does not arise. The lower appellate court as well as the High Court committed serious error in interfering with the judgment of the trial court. temporary promotion will not confer any right and there is no need to issue any notice or provide opportunity to cancel the temporary promotion. However, the second respondent has, in spite of this settled principle, issued a show cause notice to the petitioners and even as per the said show cause notice of the second respondent dated 10.03.2011, the same was issued just to ascertain whether the petitioners possess the minimum general educational qualification. Even before this Court, as referred to earlier, the learned counsel for the petitioners fairly admits the fact that the petitioners do not possess that qualification. Apart from this, in the reply, it is not the case of the petitioners also that they possess the minimum general educational qualification and they need time to get the documentary proof for the same. But, simply, time is sought for no reason. When it is fairly admitted by the learned counsel for the petitioners himself that the petitioners are not qualified for the post which has been prescribed under the rules, we are not able to understand as to how this argument of the learned counsel for the petitioners can be sustained. Consequently, this argument also will not be of any help to the petitioners to get the relief. 7. Relying on paragraph nos.25 and 30 of the judgment of the Hon'ble Apex Court reported in (1994) Supp. 1 SCC 124, State of Karnataka and another vs. B.V. Thimmappa and Others which read as under: "25. According to learned Judges of the Division Bench, as could be seen from their common judgment, the sustainability of which is under challenge by the State, that the consequence of non-passing of examinations by the government servants who were promoted to higher posts during the period allowed to them by the Rules, if was not to be their reversion to the lower posts held by them before such promotion, the same “will make the Rules and the Act a mockery and will not be in accordance with the scheme and object of the Rules and the Act”. The said view of the Division Bench, if is correct, it may not be sufficient to revert such government servants from higher promotional posts to lower posts held by them earlier but they are to be removed from even the lower posts to which they were directly recruited, if they had not passed the examinations required to be passed by the holders of such lower posts. The Rules, as we https://hcservices.ecourts.gov.in/hcservices/ 4 have pointed out earlier, no doubt require of a government servant newly appointed or appointed on probation, to pass the examinations required of the holders of such posts but they do not provide for removal of them from the posts to which they were appointed for the reason of non-passing of the examinations required to be passed by the holders of such posts. Moreover, if there were, at the commencement of the Rules, government servants who had been promoted to higher posts, it cannot be said that the consequence of non-passing of examinations required of the holders of such posts under the Rules, is their reversion to lower posts. Thus, it becomes difficult for us to think as to how there could arise any difference as to consequence in non-passing of examinations of promotional posts between those who had been promoted to higher posts before commencement of the Rules and those who had been promoted to such posts after the commencement of the Rules. If, that be so, non-reversion of government servants from the posts to which they were promoted during the period allowed to them to pass the examinations required of the holders of either the lower posts or promotional higher posts, within the period allowed, can never be regarded to be a consequence which will not be in accord with the scheme and object of the Rules nor ‘‘as a consequence which will make the Rules and the Act a mockery’’, as is observed by the Division Bench. The Division Bench which rightly observed in its judgment that the Rules and the Act do not expressly provide for reversion of government servants from the higher posts to which they were promoted during the period allowed to them by the Rules for non-passing of the examinations required of the holders of such posts, in our view, should not have disregarded the express provisions in the Rules, in holding that such reversion was to be regarded as the consequence implied in the Rules. It is rather unfortunate, that the Division Bench in saying so, has failed to notice that it was not even open to it, to imply from the Rules, such consequence, when Section 4(b) of the Act, by saying ‘Failure to pass shall entail the consequences specified in the said Rules’, had forbidden the drawing of any inference relating to any consequence, as that implied in the Rules. 30. Thus, Rule 4 of the Rules which is intended to be an embargo on promotion of government servants governed by the Rules, does not say anything, even remotely, to suggest that a government servant who had been promoted to higher post during the period allowed to him by the Rules to pass the examinations required to be passed by holders of such higher posts, should suffer the consequence of reversion, due to non-passing of such examinations by him. In this situation, the consequence of reversion of a government servant from the promotional post held by him to a lower post, for non-passing of examinations by him, cannot be implied from the Rules, on a mere assumption that the object and the purpose of the Rules, will otherwise, become a mockery. It is no doubt true, that in the process of interpretation of certain Statutes, Rules or Regulations, a Court is under a duty to draw certain inference as implied in them, if such inference is warranted in the context of the provisions contained in the concerned Statute, Rules or https://hcservices.ecourts.gov.in/hcservices/ 5 Regulations but when such an inference to be drawn is likely to result in imposition of penalty on any person, much less, a government servant, known canons of statutory interpretation do not permit drawing of such inference solely on the supposed object or purpose to be served by the Statute, Rules or Regulations without any support derived therefor from the textual provisions." the learned counsel for the petitioners has submitted that the petitioners should be allowed to continue in the same post though they are not qualified enough to hold the said post. Even in the above said judgment also, at paragraph no.25, the Hon'ble Supreme Court has taken a view that any permission given contrary to the rules will make mockery of the statutory rules. Apart from this, as far as the facts of the above said case are concerned, in the feeder category, passing of a departmental examination was prescribed; however, ignoring the same, promotions were given; subsequently, that was cancelled. Under such circumstances, the finding given by the Hon'ble Apex Court was that for the non-passing of the said departmental examination, one cannot be removed even from the post in which he was originally appointed. Here is a case where the petitioners were promoted as Senior Bailiffs and now, on the ground that they did not possess the required qualification, they have been reverted to the post of Junior Bailiff. So, the question of removal from the original post does not arise here. Besides, as far as the case in hand is concerned, as referred to earlier, as per the statutory rule which was introduced in 1990, the required qualification for promotion is a pass in the minimum general educational qualification. Admittedly, even today also, the petitioners do not possess the minimum general educational qualification. Consequently, this judgment also relied on by the learned counsel for the petitioners is of no use to the petitioners. 8. The learned counsel for the petitioners has placed further reliance on paragraph nos.32 and 34 of the judgment reported in (2008) 2 SCC 750, Union of India and another vs. Narendra Singh which read as under: "32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K.Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules. 34. True it is that before such an action is taken and a person is actually reverted, he must be given an opportunity to show cause why the proposed action should not be taken. He may be able to satisfy the authorities that there was no such mistake. But even otherwise, principles of natural justice and fair play require giving of such opportunity to him. But as observed earlier, in the instant case, in accordance with Rule https://hcservices.ecourts.gov.in/hcservices/ 6 31-A of the Fundamental Rules, notice was issued to the respondent employee, explanation was sought and thereafter the order was passed. The said order, in our considered view, was just, proper and in consonance with law and it ought not to have been set aside by the Tribunal or by the High Court. To that extent, therefore, the orders impugned in this appeal deserve to be set aside." Even at paragraph no.32 of the above said judgment, it has been specifically observed by the Hon'ble Apex Court itself that even if promotion is given by mistake, that mistake cannot be accepted. As per paragraph no.34 of the above said judgment, an opportunity should be given. As far as the case in hand is concerned, as observed earlier, the promotion given to the petitioners is only a temporary promotion. Consequently, the question of providing an opportunity while cancelling that promotion also will not arise as per the judgment reported in AIR 1999 SC 1596 referred to above. Apart from this, here, an opportunity was given directing the petitioners to produce the proof to the effect that they possess the particular qualification. But, the petitioners had not complied with that. But, the learned counsel for the petitioners fairly admits that the petitioners did not possess that qualification, consequently, they could not produce that proof. Hence, this judgment also will not be of any help to the petitioners. On the other hand, as per the wordings in paragraph no.32 of the above said judgment, the mistake committed by the authorities concerned can be corrected and that is also an authorised one. 9. Relying on the judgment reported in 1988 2 LLJ 212, Saroj Kumar Tyagi and Others and State of Uttar Pradesh and others, etc., the learned counsel for the petitioners has submitted that in view of the holding of the said post by the petitioners for a long time, they should not be reverted. As far as this is concerned, in the said judgment, there is no whisper to the effect that a person who is not eligible to get promotion, though he was given promotion, should not be reverted. Consequently, this judgment also will not be of any help to the petitioners. 10. Apart from this, when qualified hands are available, giving promotion to the unqualified hands will run contrary to Rule 36 as well as 39 of the Tamil Nadu State and Subordinate Service Rules. That apart, when service rules prescribe a qualification, we are not able to understand as to why ignoring the claims of those who are qualified, those who do not possess the required qualification have to be promoted. This will only make a mockery of the service rules besides authorising the competent authority to do anything contrary to the rules. Certainly, that is not the object of the service rules and that too, service rules framed under Article 309 of the Constitution of India have a meaning by themselves. For each promotion, one must possess the prescribed qualification. It is not the case of the petitioners also that no qualified hands were available at the relevant point of time. By hook or crook, the petitioners were able to get promotion contrary to the rules. When it comes to light that they do not possess the prescribed qualification, certainly, the authorities must take appropriate steps as held by the Hon'ble Apex Court in the judgments referred to above. https://hcservices.ecourts.gov.in/hcservices/ 7 For all the aforesaid reasons, we do not find any merit in the writ petition. Hence, the writ petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Deputy Registrar (LA) /True copy/ Assistant Registrar To 1 The Registrar General, High Court, Madras 600 104. 2 The Principal District Judge, Thanjavur. +1CC TO MR.V.BHIMAN, ADVOCATE SR.8484 Cad SR : 13.05.2011 : 7p/4c W.P. (MD) No.3664 of 2011 29.03.2011 https://hcservices.ecourts.gov.in/hcservices/