IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.03.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.4309 and 4310 of 2010 and M.P.Nos.1 and 1 of 2010 M.Sasikumar ... Petitioner in both WPs Vs 1.State by Principal Secretary to Government, Revenue Department, Fort St.George, Chennai – 600 009. ...R1 in both WPs 2.The Commissioner and Director of Survey and Settlement, Chennai -5. ...R2 in W.P.No.4309/2010 3.The Joint Director, Central Survey Office, (Survey and Land Records Department) Chepauk, Chennai – 600 005. ... R3 in W.P.No.4309 & R2 in WP.4310/2010 4.The Assistant Director of Survey and Land Records, Survey and Land Records Department, Chennai Collectorate, Chennai – 600001. ...R3 in W.P.No.4310/2010 W.P.No.4309/2010 Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, calling for the records relating to the orders passed by the first respondent in his letter dated 20.1.2010 in Na.ka.33281/Ne.Aa.4/2009 quash the same and direct the first respondent to reconsider the case of the petitioner for regularization in the post of draftsman in the light of the representation of the petitioner dated 14.7.2009 W.P.No.4310 of 2010 Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorari, to quash the order of the second respondent dated 10.2.2010 in Na.Ka.A3/13064/08 For Petitioner : Mr.R.S.Mangalakumar For Respondents : Mr.P.Subramaniam, A.G.P. https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R The petitioner is one and the same person in both the writ petitions. The petitioner had earlier filed a writ petition, being W.P.No.31256 of 2006, challenging the order dated 28.07.1997 and after setting aside the same, sought for a direction to regularise his service. 2. The petitioner had passed IX standard. In view of the death of his father K.Madanagopal,who was working as an Office Assistant in the Central Survey Office, he applied for an appointment under compassionate ground. He was given the post of Office Assistant by an order dated 11.10.1991. He also joined service as Office Assistant on 15.10.1991 and his services were regularised from 16.10.1991. 3. Subsequently, the petitioner had passed S.S.L.C examination and therefore, requested for a posting as a Draftsman. The fourth respondent, by an order dated 01.06.1994 appointed the petitioner in the post of Draftsman on a temporary basis. As per the Rules in force, any person appointed as a Draftsman will be given three months in-service training under the Government expenses. The petitioner also underwent such training. For regularization, in the post of Draftsman, the concurrence of the state Government was required. Proposals were sent to the State Government. 4. The State Government did not grant approval. On the contrary, by an order dated 7.6.1996, held that at the time when the petitioner entered the service on compassionate ground, he did not possess the minimum general educational qualification required for the post of Draftsman and therefore, he was not eligible to be appointed to the post of Draftsman in the light of Government Order in G.O.Ms.No.1499, Labour and Employment Department, dated 03.08.1999 and that he may be reverted. The contention that his subsequent acquisition of such qualification was rejected. 5. Therefore, the Joint Director of Survey by an order dated 28.07.1997 reverted the petitioner from the post of Draftsman to that of Office Assistant. Hence, the petitioner filed the above said writ petition. This Court by an order dated 09.06.2009 set aside the order, since such an order of reversion was passed without due notice to the petitioner. However, liberty was given to the respondents to pass appropriate orders after due notice to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 6. It was pursuant to the said direction issued by this Court, the order of reversion, dated 28.07.1997 was cancelled. The petitioner sent a representation dated 14.07.2009 seeking for regularization in the higher post since he was working in the said post for the last 15 years. In the meanwhile, proposals were sent to the State Government for granting necessary approval for his post. The State Government by an order dated 20.01.2010 held that in case of compassionate appointment, the application of G.O.Ms.No.1499, Labour and Employment Department, dated 03.08.1999 will be given effect only when the candidate possess the appropriate educational qualification before the entry into the service and not after his entry into service. Therefore, the Government held that the proposal for granting necessary regularization cannot be granted. In view of the stand of the Government, the petitioner's request for regularization in that post was also rejected. Therefore, the Joint Director of Central Survey Office, the second respondent by the impugned order dated 10.02.2010 reverted the petitioner to the post of Office Assistant. 7. In view of the impugned orders dated 20.01.2010 passed by the State Government and 10.02.2010 passed by the Joint Director- the second respondent, the two writ petitions have been filed. 8. The learned counsel for the petitioner contended that the order of the State Government in refusing to grant concurrence for holding higher post was illegal and contrary to the G.O.Ms.No.1499, Labour and Employment Department, dated 03.08.1999. It was contended that in the Government Order, there was no indication that it will apply to cases which were also governed by the Special Rules. It was also contended that in the earlier writ petition, no direction was given by this Court directing reversion of the petitioner and the petitioner's request was not properly considered. 9. In this context, it is necessary to refer to G.O.Ms.No.1499, Labour and Employment Department, dated 03.08.1999. In Paragraphs 2(iii)and (iv), it was held as follows: "iii. If the dependents who are appointed to lower like Sweeper, Office Assistant and Record Clerk ref. to their qualifications possessed at the time of their initial appointment and subsequently acquire qualifications prescribed for appointment as Junior Assistant/ Typist they can be considered for appointment as Junior Assistant/Typist only with reference to Special Rules governing the post of Junior Assistant/Typist and not with reference to https://hcservices.ecourts.gov.in/hcservices/ the scheme of providing employment assistance on compassionate ground. iv)The appointment authorities under no circumstances should appoint a dependent to a lower post when the dependent possess the qualifications required for the post of Junior Assistant/Typist on the ground of non availability of vacancies in the office or department on the dependents not willing to work in other Departments. In such circumstances they should follow the existing procedure of approaching the Collector of District for providing a suitable vacancy as suggested in G.O.Ms.No.1179, P & A.R., dated 17.10.1979." (Emphasis added) 10. A perusal of the above said Government Order extracted above clearly shows that in case of subsequent acquisition of qualification in the higher post, the case of candidates can be considered not in terms of the scheme provided for employment assistance but only with reference to the Special Rules governing the post. This only means that the petitioner who got compassionate appointment will not get the next higher post automatically. As per the stand of the Government, it is only when the petitioner had the qualification to hold an higher post, but in view of non-availability of vacancies and was accommodated only in a lower post then as soon as the availability of an higher post is brought to the notice, then such candidates can be accommodated in the higher post. This was on the ground that the person was unjustly given a lower post though he was qualified to hold the higher post even at the time of making an application. 11. In the present case, the petitioner had acquired qualification subsequent to the appointment to the post of Office Assistant. Therefore, he has to stand in the queue. If at all he has to get higher post, it has to be in consonance with the Special Rules as indicated in the Government Order referred to above. It must also be noted that though the petitioner contended that the post of Draftsman is different from that of other post in the ministerial service, the principle evolved by the State Government in this regard is clear and it did not make any distinction between the two services. So long as the policy of the Government is not under challenge and the attempt made by the petitioner seeking exemption having negatived by the State Government, this Court is not inclined to interfere with the impugned orders. The petitioner had sought only for an exemption from the Government which is not a matter of right. There can be no challenge to the impugned order passed by the State Government. The second impugned order dated 10.02.2010 passed by the Joint Director is consequent upon the first order. https://hcservices.ecourts.gov.in/hcservices/ 12. In the light of the above, both the writ petitions are misconceived. Accordingly, both the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Principal Secretary to Government, Revenue Department, Fort St.George, Chennai – 600 009. 2.The Commissioner and Director of Survey and Settlement, Chennai -5. 3.The Joint Director, Central Survey Office, (Survey and Land Records Department) Chepauk, Chennai – 600 005. 4.The Assistant Director of Survey and Land Records, Survey and Land Records Department, Chennai Collectorate, Chennai – 600001. + 2 cc to Mr.S.Kalyanaraman, Advocate SR No.14619, 14620 + 1 cc to Government Pleader, SR No.14850 AKR(CO) SR/15.3.2010 W.P.Nos.4309 and 4310 of 2010 https://hcservices.ecourts.gov.in/hcservices/