S m subramaniyam judge full order , this Court directed the petitioner to be present, who in turn informed this Court that she was misguided by stating that the earlier writ petition was dismissed in the year 2016 itself. However, the petitioner also had not verified the same nor possess any such order or otherwise. By taking a lenient view and considering the fact that the petitioner was misguided by the lawyer, this court is not imposing any cost or proposed to initiate any further action. However, such practice of the litigants are to be deprecated.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.07.2022

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.No.4501 of 2015

C.Sujatha … Petitioner

Vs

1.Government of Tamil Nadu,
Rep. by the Secretary to Government,
Revenue Department,
Secretariat, Chennai – 600 009.

2.The Commissioner of Survey and Settlement,
Chepauk, Chennai – 600 005.

3.The Additional Director of Survey and Settlement,
Chepauk, Chennai – 600 005.

4.The Assistant Director of Survey and Settlement,
Dharmapuri. … Respondents

PRAYER : Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records of the 4th respondent in Pro.Na.Ka.No.G1/3707/2014-2 dated 10.02.2015 to quash the same and to issue consequential direction to the respondents to reinstate the petitioner in service and to grant time for passing remaining one paper of the Departmental test and then issue orders declaring satisfactory completion of probation.

For Petitioner : Mr.J.R.Sushil Rajkumar

For Respondents : Mr.M.Bindran
Additional Government Pleader

O R D E R

The order discharging the writ petitioner from service on the ground that the petitioner has not passed the requisite test in accordance with the Tamil Nadu State and Subordinate Service Rules is under challenge in the present writ petition.

2.The writ petitioner states that she was appointed as Draughtsman on compassionate ground in the office of the Assistant Director, Survey and Land Records, Dharmapuri. She joined on 23.11.2007. The petitioner states that she was performing her duties to the satisfaction of her superiors. However, the petitioner admits that she had not completed all the requisite test as per the rules during the relevant point of time. While so, the Assistant Director, Survey and Land Records discharged the services of the writ petitioner with effect from 10.02.2015 for not passing the Departmental tests within the period of probation in terms of Rule 26(b)(ii) of the General Rules for Tamil Nadu State and Subordinate Service Rules.

3.The petitioner herself has stated in the affidavit that she should have passed the departmental test within the period of probation and within the period of five years, i.e. on 22.11.2012 from the date of her appointment. However, she had not passed the test and thus, notice was issued to the petitioner on 19.01.2015 and thereafter, her services were discharged with effect from 10.02.2015.

4.The petitioner states that she had passed the remaining one test after her termination admittedly and more so, within a period of three months from the date of discharge of service. Thus, her case is to be considered for reinstatement.

5.The learned counsel appearing on behalf of the writ petitioner made a submission that the writ petitioner was appointed on compassionate grounds and no doubt the rule contemplates passing of requisite test. Admittedly, the petitioner has not passed the requisite test within the period of five years as contemplated. However, the petitioner passed the test after her termination and therefore, her case is to be considered.

6.The learned counsel for the petitioner relied on the judgment of the Hon’ble Supreme Court of India in the case of Brijesh Vipin Chandra Shah vs. State of Gujarat and others in Civil Appeal No.735 of 203 dated 18.01.2013, wherein the Hon’ble Supreme Court has made the following observations in paragraph 8, which reads as under:
“8.We are of the considered opinion that the stand taken by the respondents is unnecessarily harsh. It must be remembered that the appellant was initially appointed on compassionate grounds as his father had died while he was in service. Compassionate appointment is made by relaxation of the normal service rules for providing immediate financial assistant to the family of the deceased who dies in harness. It is unfortunate that the appellant was unable to pass the in-service examination so as to enable him to continue on a Class III post. But that ought not to result in depriving him of service altogether.”
7.The learned counsel appearing for the petitioner further states that based on the said Supreme Court judgment, High Court also passed the same order granting the benefit of the said order of the Supreme Court and therefore, the case of the petitioner is also to be considered on the same line.

8.The learned Additional Government Pleader objected the said contention by stating that it is the rule which is to be followed scrupulously by the authorities. The very purpose of the rule for continuance of service of an employee cannot be diluted or violated. It is submitted that according to Rule 8 of the Survey and Land Records Subordinate Service Rules every person who is appointed as Draughtsman shall pass the prescribed departmental tests i.e. Revenue Draftsman test [4 papers] or Computation test [2 papers] within the period of his probation. It is submitted that the petitioner had passed only 3 papers of Revenue Draftsman test as detailed below:
Name of Test Passed on
Revenue Draftsman Test – Paper II December 2012
Revenue Draftsman Test – Paper IV December 2013
Revenue Draftsman Test – Paper I May 2014
The petitioner has not yet passed the Revenue Draftsman Test – Paper III.

9.It is further submitted that according to Rule 26(b) of the Tamil Nadu State and Subordinate Service Rules, in case the petitioner fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall by order, discharge him from the service.
“Explanation:- The maximum period up to which the probation of a Government servant shall be extended so as to enable him to acquire the test qualification be fixed as five years. If he does not acquire the test qualification even within the maximum period of five years, he shall be reverted and the qualified and eligible juniors shall be considered for promotion. If such a person is appointed by direct recruitment and has not acquired the test qualification even within the maximum period of five years, his probation shall be terminated.”

10.The petitioner has commenced her probation in the post of Draftsman from 23.11.2007. The period of probation prescribed shall be 2 years within a period of three years of duty and as per the explanation under Rule 26(b)(ii) of the Tamil Nadu State and Subordinate Service Rules, the maximum period upto which the probation of a Government servant shall be extended so as to enable him/her to acquire the test qualification be fixed as five years. The petitioner has to pass the Departmental test to be conducted by the TNPSC, i.e. Revenue Draftsman test [4 papers] or Computation test [2 papers] within a maximum period of five years of service from the date of commencement of probation i.e. before 22.11.2012. As she had passed only 3 papers of Revenue Draftsman test till 22.11.2012, she did not qualify herself for holding the post of Draftsman as envisaged in Rule 8 of the Tamil Nadu Survey and Land Records Subordinate Services even after extension of probation upto 5 years. Hence, as per the provisions under Rule 26(a)(ii) of the Tamil Nadu State and Subordinate Service Rules, the fourth respondent who is the appointing authority in his memo Na.Ka.G1/3707/2014 dated 19.01.2015 had given an opportunity to the petitioner as to why action should not be taken regarding the termination of probation and the show cause notice was served on the petitioner on 21.01.2015. Final orders were issued in proceedings of the fourth respondent in Na.Ka.G1/3707/2014 dated 10.02.2015 terminating the services of the petitioner with effect from 10.02.2015.

11.It is contended that according to Rule 8 of the Survey and Land Records Subordinate Service Rules every person who is appointed as Draftsman shall pas the prescribed departmental tests i.e. Revenue Draftsman test [4 papers] or Computation test [2 papers] within the period of his probation. The averments of the petitioner are not acceptable, since she is well aware of the fact that she should pass the departmental test within the maximum period of five years of duty and it is purely her defensive plea that if a notice had been given she would have passed the tests within the prescribed period. It is arbitrary on the part of the petitioner that having allowed to continue in service for more than 7 years she was under the bonafide impression that she was allowed indefinite time to pass the departmental tests.

12.Further, the presumptive contention is that if the appointing authority had given any notice and made the petitioner to be aware of the consequences of not passing the department test, she would have appeared and cleared the tests and in view of the peculiar circumstances, the fourth respondent has no power to terminate her services is meaningless and it is not acceptable. According to Rule 26(b)(ii) of the Tamil Nadu State and Subordinate Service Rules, in case the probationer fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall by oder, discharge him from the service. As the fourth respondent is the appointing authority he is well within his rights to terminate the service of the petitioner. It is submitted that every Government servant is expected to know the General Rules and as well as the Special Rules pertaining to the post held by them. It has been accepted by the petitioner that she did not qualify herself to hold the post of Draftsman within the maximum period of five years and hence her services are liable to be terminated as per rules.

13.Perusal of Rule 26(b)(ii) is clear that “if within the period of probation prescribed in the special rules for the service or within the extended period of probation, as the case may be, a probationer has appeared for any such tests or for any examinations in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has so appeared as not known before the expiry of such period, he shall continue to be on probation until the publication of the results of the tests or examinations for which he has appeared or the first of them in which he fails to pass, as the case may be. In case the probationer fails to pass any of the tests or examination for which he has so appeared, the appointing authority shall, by order, discharge him from the service.”

14.Therefore, the rule is very clear and the authorities have acted in accordance with the Rules. In the present case, admittedly the petitioner had not cleared the test within the period of five years as contemplated under the Rules stated supra. The respondents have initiated action by invoking the said Rule and issued notice to the writ petitioner and by affording an opportunity issued the final order discharging her services.

15.Question arises whether the High Court by exercising the power of judicial review under Article 226 of the Constitution of India can undo the exercise of an authority which is otherwise in accordance with the statutory rules in force. Misplaced sympathy or leniency in such matters would lead to bad precedent and result in invalidating the rules, which is otherwise constitutional or to be scrupulously followed by the authorities. Therefore, the power of judicial review cannot be extended for the purpose of diluting or invalidating the service rules which is force. No inefficiency must be crept in the public administration as the efficiency in public administration is the constitutional mandate.

16.Certain qualification examinations, special tests are contemplated for public servants in order to test their efficiency and for the purpose of providing effective public service to the citizen of our great nation. In the event of any misplaced sympathy or leniency by the High Courts, the High Courts are contributing for the inefficiency or otherwise invalidating the valid rules which is in force for the purpose of maintaining efficiency in public service. Thus, the Courts are also expected to be cautious while unnecessarily relaxing certain rules merely based on sympathy or otherwise.

17.The Hon’ble Supreme Court in unequivocal terms held that High Courts while exercising the power of Judicial Review has to test the validity of the processes through which decisions taken by the authority in consonance with the statutes and rules. While doing so, the power of judicial review need not be exercised for the purpose of diluting or invalidating the rule by showing any misplaced sympathy in favour of the individuals that will not only undermine the public administrative system but also deprive the meritorious candidates from securing public employment. Once the rule contemplates a particular test to be passed by the employees within the period stipulated and in the present case five years time limit has been contemplated. If any candidate is unable to pass the test within the period of 5 years, then they become disqualified and the authorities competent is empowered to discharge the service. Therefore, the High Court has to examine whether the exercise of power by the competent authority is in consonance with the statute or the rules but not the decision itself.

18.As far as the judgment of the Hon’ble Supreme Court in the case of Brijesh Vipin Chandra Shah referred by the learned counsel for the petitioner is concerned, the judgment does not propose any principles on the issue. Contrarily, the observations made by the Hon’ble Supreme Court are with reference to the facts of the particular case and such factual discussions or otherwise made by the Hon’ble Supreme Court cannot be followed as a precedent for the purpose of invalidating or diluting the statutory rules by the High Court while exercising the power of judicial review under Article 226 of the Constitution of India. Thus, mere observations with reference to certain facts or some leniency shown by the Hon’ble Supreme Court in a particular case can never be considered as a precedent for the purpose of following the same in all other cases. Such factual discussions and the relief granted have denuded to loose its status as precedent. The principles which all are laid down by the Apex Court alone are to be considered as binding law and not certain observations made with reference to the facts of the particular case. The above principles regarding the precedents are also considered by the Constitution Bench of the Hon’ble Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in 2017 (6) SCC 680.

19.Therefore, those judgments of the Hon’ble Supreme Court or the High Court granting relief based on certain facts and circumstances of a particular case cannot be mechanically or routinely followed by the High Courts. High Courts are expected to consider the facts independently and apply the precedent, more so, with reference to the relevant statutes and the rules in force. At the outset, independent application of mind is imminent for the purpose of deciding such nature of case instead of routinely granting the relief merely based on certain factual observations either by the Apex Court or by the Division Bench or by the Coordinated Benches.

20.As far as the present writ petition is concerned, the petitioner was appointed, however, she had admittedly not passed the requisite test within a period of five years from the date of appointment. Thereafter, the competent authority issued a notice to the petitioner, the petitioner had not completed the test and consequently, she was discharged from service.

21.The learned counsel for the petitioner made a submission that in similar circumstances, yet another co-employee was reinstated and working in the Department.

22.In this regard, an illegality cannot be a ground to claim equality. Any illegal action of the Department in violation of the Rules in force cannot be cited as a precedent before the High Court for the purpose of securing any order which is in violation of the rules in force. This being the basic principles to be followed by the Courts, the very submission on behalf of the writ petitioner deserves no merit consideration.

23.It is brought to notice of this Court that the very same writ petitioner by suppressing the present writ petition filed yet another writ petition in W.P.No.3751 of 2022 challenging the very same order of termination issued by the Assistant Director, Survey and Land Records by proceedings dated 10.02.2015 and sought for a direction to reinstate her. The said writ petition was filed during the pendency of the present writ petition. However, the said writ petition was dismissed by this Court on 24.02.2022 on the ground of latches. The fact regarding the subsequent filing of writ petition by the petitioner was brought to the knowledge of this Court by the learned Additional Government Pleader who furnished the copy of the order dated 24.02.2022. Such practice of filing writ petition after writ petition for the same relief during the pendency of the first writ petition at no circumstances be encouraged by High Courts. In recent days, such practice are increasing on account of long pendency of cases and based on the ill advise by few legal brains. Whenever such instances are noticed by the High Court, serious actions are to be taken. In this context, this Court directed the petitioner to be present, who in turn informed this Court that she was misguided by stating that the earlier writ petition was dismissed in the year 2016 itself. However, the petitioner also had not verified the same nor possess any such order or otherwise. By taking a lenient view and considering the fact that the petitioner was misguided by the lawyer, this court is not imposing any cost or proposed to initiate any further action. However, such practice of the litigants are to be deprecated.

24.In view of the fact that the petitioner was discharged from service in accordance with the rules as elaborately discussed in the aforementioned paragraphs, there is no infirmity as such in respect of the order passed. Accordingly, the writ petition stands dismissed. No costs.

08.07.2022
Internet:Yes
Index : Yes
cse/psa

 

To

1.The Secretary to Government,
Revenue Department,
Secretariat, Chennai – 600 009.

2.The Commissioner of Survey and Settlement,
Chepauk, Chennai – 600 005.

3.The Additional Director of Survey and Settlement,
Chepauk, Chennai – 600 005.

4.The Assistant Director of Survey and Settlement,
Dharmapuri.
 
S.M.SUBRAMANIAM, J.

cse/psa

W.P.No.4501 of 2015

08.07.2022