IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.03.2010 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.48278 OF 2006 (O.A.NO.2366 OF 2001) A.Nazeem ..Petitioner Versus 1. Director for Rehabilitation of the Disabled, Mylapore, Chennai – 600 004. 2.N.T.Rathnasabapathy ..Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.2366 of 2001 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records pertaining to the proceedings in Sa.Mu.Ka.No.14297/CP-1/98 dated 06.03.2001 both reverting and relieving orders passed by the 1st respondent and quash the same. For Petitioner : Mr.I.Mahaboob Sheriff For Respondent-1 : Mr.K.H.Ravikumar Government Advocate O R D E R Heard the submissions made on either side. 2.The petitioner filed Original Application in O.A.No.2366 of 2001 before the Tamil Nadu Administrative Tribunal challenging the order dated 06.03.2001 passed by the first respondent-Director. 3.By the impugned order, the petitioner was reverted from the post of Headmistress of the Government High School for Deaf at Salem to the post of B.T.Assistant (Science) in the Government Higher Secondary School for deaf at Thanjavur. In the order, it was stated that the Assistant Director (Special Schools) made an inspection and gave a report alleging certain allegations against the petitioner and also in the newspaper, by name Kaalai Kathir, in its morning daily, https://hcservices.ecourts.gov.in/hcservices/ certain other allegations were published against the petitioner. It was found that though the petitioner had received the amount from the Government Treasury to be paid to one V.N.Lakshmi, Graduate Teacher, she has not paid the amount. The petitioner is also junior in the post of Graduate Assistant and the promotion to her was given by overlooking seniority. In such circumstances, the reversion order was passed by the first respondent. It is the contention of the petitioner that even without issuing show cause notice, she has been reverted to a lower post. It is this order, which was challenged before the Tamil Nadu Administrative Tribunal. 4.The Tribunal admitted the Original Application and granted interim stay on 30.03.2001. Subsequently, the interim stay was directed to be continued. 5.On notice from the Tribunal, the first respondent has filed a reply affidavit dated 05.10.2001 justifying the order of reversion. It is stated in para Nos.10 and 11 which reads as follows: "10.But is stated that the matter has been explained in the drawal of salary for Tmt.V.N.Lakshmi was under mistaken impression. It is for the information of the Hon'ble Tamil Nadu Administrative Tribunal that the pay for the month of April 1.4.99 to 30.4.99 of which Tmt.V.N.Lakshmi availed Medical Leave for 12 days from 1.4.99 to 12.4.99 according to pay acquittance register. It is again brought to the notice by the Hon'ble Tamil Nadu Administrative Tribunal that the individual has applied for Earned Leave but the Head Master concerned has claimed leave on Medical certificate and has not yet disbursed the claimed amount to the individual teacher so far. The date of claim is 3.5.99. To the great surprise, it was stated in writing that the entire amount has been disbursed on the same day as per the UDP.P.No.24. In the meanwhile she was transferred as Head Mistress to Govt. High School for the Deaf, Salem and she continued to serve there for months together. During that period she has not thought about the amount claimed under mistaken but after a long period of 18 months she understood that it was wrong claim and so she repaid the same amount to the Sub-Treasury Office, Tambaram in her name with the designation of Head Mistress, Govt. School for the Deaf, Tambaram. (She was not the Head Mistress of that school at that time). This payment was also made on backdoors. From the above facts it is proved clearly that it was not made by mistake but with malafide intention, misappropriation of Government money, https://hcservices.ecourts.gov.in/hcservices/ misuse of power and cheating the Government servant and the Government. 11.It is submitted that she is the Junior Most and no one Junior to her in the Department is acting as Head Mistress. This point is only to mislead the Court." 6.In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.48278 of 2006. 7.The learned Government Advocate has brought to the notice of this Court a communication dated 03.03.2010 sent by the first respondent, in which it was stated as follows: "Tmt.Nazeem has been appointed as Secondary Grade Teacher and joined duty at the Government School for the Deaf at Pudukottai on 31.8.1990. She had been promoted as B.T.Assistant (Science) and posted at Government Higher Secondary School for the Deaf at Thanjavur and joined duty on 18.3.1993. Further she had been promoted as Head Master and posted at Government High School for the Deaf at Tambaram and joined duty on 22.8.1998. She has been transferred and posted as Head Master at Government High School for the Deaf at Salem and joined duty on 29.12.1999. During her period as Head Master at Salem she had misappropriated Government money and also her performance as a Head Master is not up to the mark. Hence she has been placed under suspension and charges under TNCS (D&A) Rules 17(b) has been initiated against her. As the individual has remitted back the Government money the charges have been dropped and she has been reinstated in service and posted as B.T.Assistant w.e.f.28.9.2007 by reverting her from Head Master. Due to the above reasons she is permitted to continue as B.T.Assistant and she is now working as B.T.(Assistant) at Government Higher Secondary School for the Deaf, Dharmapuri." 8.There is nothing in the letter or in the form of any additional counter as to why the order of the Tribunal was not implemented. In any event, a perusal of the impugned order clearly asserts that it was penal in nature and no opportunity was given to the petitioner. In fact, the impugned order itself asserts that there was no necessity to issue any show cause notice. This stand of the first respondent is clearly in contravention of the constitutional guarantee guaranteed under Article 311 (2) of the Constitution of India, wherein even for a reduction in rank, reasonable opportunity https://hcservices.ecourts.gov.in/hcservices/ should be given to a Government servant. It is too late for the respondents to argue that no notice need be given. It is not a case of simple reversion to a lower post on account of the petitioner having secured promotion overlooking the claim of other senior teachers though such a ground now pressed into the service. A perusal of the impugned order shows it is punitive in nature because it contains several allegations of misconducts against the petitioner. 9.In the light of the above and since no opportunity given to the petitioner to submit her explanation, the writ petition stands allowed and the impugned order stands set aside. 10.In view of the same, the first respondent is directed to give appropriate posting orders to the petitioner in accordance with law. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK To The Director, Rehabilitation of the Disabled Mylapore, Chennai – 600 004. + 1 c.c. to The Government Pleader. S.R.No.14967. W.P.NO.48278 OF 2006 (O.A.NO.2366 OF 2001) RSN (CO) GSK 18.03.2010. https://hcservices.ecourts.gov.in/hcservices/