J M GANDHIMATHI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner was appointed as Curator by the proceedings of the first respondent dated 23.07.1993. The petitioner was recruitted through Tamil Nadu Public Service Commission on the basis of an examination conducted in the year 1992. The petitioner was placed on probation from 30.07.1993 and her probation was declared on 29.07.1995. In the meantime, the petitioner applied for promotion to the post of Curator from the cadre of Assistant Curator on 23.05.1994, which is a promotional post. The representation sent by the petitioner was not responded to. In the meantime, the third and fourth respondents, who were initially appointed under Rule 10 (a) (i) of the Tamil Nadu State and Subordinate Service Rules, were promoted on 13.07.1994 and 19.09.1994 respectively. For the purpose of granting promotion, the date of joining of the respondents 3 and 4 namely 25.10.1988 and 01.11.1989 and their date of declaration of probation namely 03.11.1990 and 22.07.1993 respectively were taken into consideration. Yet another candidate namely Prema Deeparani, who was a candidate appointed through Tamil Nadu Public Service Commission, has completed her probation on 31.08.1992. According to the petitioner, only after her application seeking promotion to the post of Curator, which was lying vacant at the relevant point of time , the respondents 1 and 2 have promoted the respondents 3 and 4 as Curators. Therefore, according to the petitioner, promotion was given to the respondents 3 and 4 only to deprive her lawful claim. Under those circumstances, on 30.05.1996, the petitioner has submitted a representation to the respondents 1 and 2 questioning the promotion given to the respondents 3 and 4, as Curators, for which an order dated 17.09.1996 was passed by the second respondent rejecting her claim stating that the probation period of the respondents 3 and 4 was declared much prior to the date when the applicant joined the service, but the date of declaration of probation of the respondents 3 and 4 was not mentioned in the impugned order. Therefore, challenging the order dated 17.09.1996 of the second respondent, the petitioner has filed O.A.No. 203 of 1997 before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 21497 of 2006.

(2.) The petitoner would contend that earlier the post of Curator fell vacant on 06.09.1993 and 15.09.1993. If really the respondents 3 and 4 have completed their probation on 03.11.1990 and 22.07.1993, they could have been promoted to the post on 06.09.1993 and 15.09.1993 respectively, whereas their juniors Periyasamy and Balasubramaniam were appointed on 10.02.1989 and on 14.06.1989 respectively and therefore the theorey putforth by the respondents 1 and 2 for denying promotion to the petitioner is unsustainable in law. According to the petitioner, she was a directly recruitted candidate through the Tamil Nadu Public Commission in a regular vacancy and the respondents 3 and 4 were initially appointed under 10 (a) (i) of the Tamil Nadu State and Subordinate Service Rules through employment exchange and therefore their prior service can be taken into consideration only for the purpose of granting increments etc., and not for seniority. Therefore, when the petitioner was appointed on 23.07.1993, even though the respondents 3 and 4 were working at that time, dehors their earlier appointment, the petitioner is entitled to get promotion earlier than the respondents 3 and 4. Furthermore, the declaration of probation of the respondents 3 and 4 has been given with retrospective effect, which is legally not sustainable.

(3.) The second respondent has filed a reply affidavit in which the date of appointment of the petitioner, respondents 3 and 4 and the date of their declaration of probation were not disputed. According to the second respondent, the petitioner was not considered for promotion to the post of Curator in May 1994 in view of the fact that the persons who have joined earlier than her were available at that time. Further, the third and fourth respondents were appointed through employment exchange as Assistant Curator and they joined on 25.10.1988 and 01.11.1989 respectively. As per Rule 31 and 35 (a) of Tamil Nadu State Subordinate Service Rules and according to service seniority, the respondents 3 and 4 were rightly promoted to the post of Curators. It is contended that when vacancy arose in the year 1993, the third and fourth respondents were not considered for promotion due to administrative reasons. Even though the third and fourth respondents were appointed through employment exchange under Rule 10 (a) (i), as the post held by them do not come under the purview of the Tamil nadu Public Service Commission, their services were regularised by the Head of the Department, who is competent and empowered to regularise their service. It is also stated that the seniority of Curators will be revised among all the persons such as Curator, Assistant Curator and Gallery Guides according to their service seniority and as soon as the Government was received in respect of Dr. V. Jeyaraj and P. Kasilingam.