IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.12.2011 CORAM: THE HONOURABLE MR.JUSTICE D. HARIPARANTHAMAN Writ Petition No.3667 of 2007 (O.A.No.6011/2001) R.Sundaramoorthy ... Petitioner -Vs- 1.The Registrar of Co-operative Societies, Chennai-600 010. 2. The Joint Registrar of Co-operative Society, Vellore. ... Respondents Writ petition under Article 226 of the Constitution of India praying this Honourable Court pleased to call for the records relating to the proceedings (Memo) Rc. No.706/2001/EM1 (1) dated 31.8.2001 of the 1st respondent quash the same in so far as the petitioner is concerned as stated therein. For petitioner : Mr.S.Venkataraman For Respondents : Mr.RM.Muthukumar Government Advocate ORDER The petitioner joined service in the Co-operative Department on 10.4.1987 as Junior Inspector. Later, he was promoted as Senior Inspector. While he was serving as a Senior Inspector, on 21.11.1994, he was sent to foreign service by the second respondent by order dated 21.11.1994. 2. He served at the office of the Regional Deputy Director of Audit for Milk Co-operative Societies, Madras Region. 3. The first respondent prepared a panel dated 19.6.2001 of Senior Inspectors fit for the post of Co-operative Sub- Registrar as on 1.5.2000. Though the petitioner was in foreign service from 21.11.1994, he was included in the panel at Serial No.114. https://hcservices.ecourts.gov.in/hcservices/ 4. In the mean time, the petitioner was re-called to the parent department by order dated 30.5.2001 of the second respondent. Accordingly, he joined the parent department as Senior Inspector. Based on inclusion of the name of the petitioner in the panel, he was promoted as Co-operative Sub-Registrar by order dated 20.6.2001 of the first respondent. He joined duty on 2.7.2001 in the promoted post. 5. While so, the impugned order dated 31.8.2001 was issued reverting him as Senior Inspector. 6. The petitioner filed O.A.No.6011/2001 before the Tamil Nadu Administrative Tribunal to quash the aforesaid order dated 31.8.2001 of the first respondent. While ordering notice of motion on 14.9.2001 in O.A.No.6011 of 2001, the Tribunal granted interim stay. Hence, he is continued in the promoted post. 7. No reply affidavit is filed. 8. On abolition of the Tribunal, the O.A.No.6011/2001 got transferred to this Court and re-numbered as W.P.No.3667 of 2007. 9. Heard both sides. 10. The learned counsel for the petitioner submits that the impugned order is solely based on Rule 9 of the Tamil Nadu State and Subordinate Service Rules and the instruction of the Government based thereon. He further submits that Rule 9 could not be applied in this case, particularly, when the petitioner obeyed the orders of superiors by serving in the foreign department as directed by it. 11. It is further submitted that while he was sent to Milk Co-operative Societies in 1994, the said deputation is contrary to Rule 110 of the Fundamental Rules. He has heavily relied on Rulings 4 based on G.O.309, P & AR Department dated 5.10.1995. According to him, the G.O.309 comes into operation with effect from 25.4.1988. 12. According to the learned counsel for the petitioner, the petitioner cannot be penalised for serving in the other department complying with the transfer order issued by the parent department. He further submits that the petitioner cannot be put in a disadvantageous position as his juniors could march over him, if the reversion order is not set aside. https://hcservices.ecourts.gov.in/hcservices/ 13. On the other hand, the learned Special Government Pleader has made submissions based on oral instructions and sought to sustain the impugned order. 14. I have considered the submissions made on either side. 15. The petitioner was transferred to foreign service by order dated 21.11.1994 of the second respondent. In the said order, no period is mentioned about his retention in foreign service. It is relevant to note that the said order dated 21.11.1994 was issued when the second respondent thought to recall one Thiru. Krishnan to the parent department, since he completed three years of service in the foreign service. Therefore, like in the case of Thiru. Krishnan, the second respondent ought to have recalled the petitioner on completion of three years of service. 16. Rulings 4 under the Rule 110 of the Fundamental Rules issued in G.O.309, P & AR Department dated 5.10.1995 makes it clear that the Government Servant could be sent on deputation initially for a period of three years and on completion of three years of service, he shall be re-called back. It is stated that no extension or deputation shall be sanctioned for the fourth year. Only in exceptional circumstances, the Government can sanction for fourth year, that too, in public interest. The said G.O.309 came into operation with effect from 25.4.1988. 17. In this case, Rule 110 of the Fundamental Rules is violated and the petitioner was kept in the foreign service beyond three years period, for which, the petitioner could not be faulted with. It is not the case of the respondents that inspite of re- calling him to the parent department, he wanted to get retained in foreign service by one reason or other. Then, it is a different matter. 18. Taking into account the aforesaid facts, the first respondent included the name of the petitioner in the panel dated 19.6.2001 of Senior Inspectors fit for promotion as Co-operative Sub Registrars. For including the petitioner in the panel and to give him promotion, he was recalled by order dated 30.5.2001 to the parent department. Immediately, the petitioner joined duty in the parent department. He was also promoted as Co-operative Sub Registrar by order dated 20.6.2001 pursuant to the inclusion of his name in the panel. 19. While so, the impugned order was passed solely relying on Rule 9 of the Tamil Nadu State and Subordinate Service Rules and more particularly, the proviso to Rule 9. The proviso to Rule 9 https://hcservices.ecourts.gov.in/hcservices/ of the Tamil Nadu State and Subordinate Service Rules is extracted hereunder:- " Provided that a member of a service who has been appointed to another service outside his regular line shall not be permitted to hold membership in the second service beyond five years, if he is to be considered for promotion or for appointment by recruitment by transfer to a higher post in his regular line even though he is otherwise qualified under the rules for such promotion or appointment, unless he puts in a fresh service for a minimum period of one year in his post in the former service on reversion from the second service." 20. In my view, the proviso to Rule 9 shall be read along with Rule 110 of the Fundamental Rules. 21. If the petitioner remained in foreign service on his volition and also claimed promotion to parent department, it could be declined under Rule 9. But, in this case, the Government servant is directed to serve in other department viz. foreign service. He shall not be denied his due promotion for the mistake committed by the department. In the order dated 21.11.1994, while transferring the petitioner to foreign service, the second respondent did not mention the period of service in other department. On completion of three years, he should have been called back as in the case of one Thiru.Krishnan. 22. In my view, it is not correct in reverting the petitioner while his juniors and other colleagues are retained in the promoted post. 23. The impugned order has caused grave prejudice to the petitioner and it would have a serious effect in his entire career. 24. For the aforesaid reasons, the impugned order dated 31.8.2001 is quashed. 25. The writ petition is allowed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vks https://hcservices.ecourts.gov.in/hcservices/ Copy to:- 1. The Registrar of Co-operative Societies, Chennai-600 010. 2. The Joint Registrar of Co-operative Society, Vellore. 1 cc to Government Pleader, Sr. 75747 1 cc to M/s.S. Venkataraman, Advocate, Sr. 75804 W.P.No.3667 of 2007 (O.A.No.6011 of 2007) SSK (CO) kk 27/12 https://hcservices.ecourts.gov.in/hcservices/