Judgment:
ORDER
K. Chandru, J.
1. The petitioner filed O.A. No. 6250 of 1997, seeking to challenge the order, dated 28.7.97 passed by the fourth respondent. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P. No. 31256 of 2006. The respondents have filed a reply affidavit, dated Nil (2009), justifying the impugned order.
2. The petitioner had passed 9th standard. His father late K. Madanagopal, while alive, was working as an Office Assistant in the Central Survey Office at Chennai. The petitioner applied for an appointment under compassionate ground. The petitioner was appointed as an Office Assistant, by an order, dated 11.10.91. He also joined service as a OA on 15.10.91 and his services were regularised with effect from 16.10.91.
3. The petitioner had passed the SSLC examination subsequently and therefore, requested for a posting as a Draftsman. The fourth respondent, by an order, dated 1.6.94 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 3 months in-service training under the Government expenses. The petitioner also underwent training successfully. Thereafter, in order to regularizing him in the post of Draftsman, the concurrence of the State Government was sought for.
4. The Government, after examining the proposal, by an order, dated 7.6.96, held that the petitioner did not possess the minimum general educational qualification for the post of draftsman at the time of his initial appointment and therefore, in the light of the Government Order In G.O.Ms. No. 1499, Labour and Employment Department, dated 3.8.89, he may be reverted. In that order, the Government has stated that the person, who was appointed on compassionate appointment, was having an higherqualification and if there was no vacancy available, he can be appointed in the lower post and thereafter, re-appointed to the higher post whenever there is vacancy. That contingency never arose in the case of the petitioner, since the petitioner never had the minimum general educational qualification at the time when he made an application for compassionate appointment. His subsequent requisition cannot enable him to get an higher post.
5. Therefore, the fourth respondent issued the impugned order, dated 28.7.97 reverting the petitioner from the post of draftsman to that of Office Assistant. The Tribunal granted an interim order of stay of reversion by its order, dated 6.8.97. The said order came to be continued until further orders.
6. Mr. V. Ravikumar, learned Counsel for the petitioner strenuously contended that the impugned order suffers from several illegalities, including that it was opposed to the principles of natural justice. In paragraph 6.2, he also stated that one Venkatesan, Draftsman working in the same office, who was similarly placed, was being continued without any such objection.
7. In response to the said allegation, in para 6 of the reply affidavit, the second respondent has stated that in the case of Venkatesan, the Government had issued G.O.Ms. No. 2, Revenue Department, dated 3.2.2000, directing reversion of the said Venkatesan. As against his reversion, the said person has filed O.A. No. 938 of 2000 before the Tribunal and by virtue of the interim order granted by the Tribunal, dated 25.2.2000, he is continuing in service and the main OA is still pending.
8. The learned Counsel also placed reliance upon the judgment of this Court in R. Mohan v. Special Commissioner and Commissioner for Revenue Administration, Chennai and Anr. reported in : (2006)1MLJ590 and also referred to paragraphs 4 and 5 of the said judgment, which are as follows:
4. ...The learned Counsel also cited a judgment of the Supreme Court reported in Buddhi Nath Chowdry and Ors. v. Abahi Kumar and Ors. : [2001]2SCR18 , wherein it is held that the appointment though irregularly made at the initial stage, shall not be cancelled after the lapse of long time.
5. ...Petitioner having been appointed in the year 1973, assuming his appointment is irregular, following the proposition laid down in the Supreme Court in the above cited decision, I hold that in this case only a formal ratification is required, but instead, the reversion order now made is totally unwarranted. The irregular appointment, if it is ratified, will definitely confer a right on the petitioner to get his appointment ratified from the date of initial appointment. Therefore the impugned order is liable to be set aside.
9. He also relied on the judgment of this Court in S. Ganapathy v. Commissioner of Commercial Taxes, Chennai and Anr. reported in (2006) 3 MLJ 532 and also referred to the following passage found in paragraphs 15 and 18 of the said judgment, which are as follows:
15. The law is well settled in this aspect. Normally when an official has been conferred with the benefit of promotion as well as with the pay scale and the same has been enjoyed for a considerable period, it is not open to the authority later to decide against him, on the basis that a mistake has been committed by giving promotion or pay fixation. .....
18. In such circumstances, as laid down by the Hon'ble Supreme Court, even assuming there is a fault on the part of the authorities in wrongly construing any provision, that cannot be held against the petitioner, especially in the circumstances that the petitioner has been conferred the benefit to which he is entitled under law and also allowed to be promoted as per order dated 7.7.2000.
10. These two judgments cited by the petitioner do not reflect the correct ratio laid down by the Supreme Court. It is not in every case of an irregular appointment/promotion, a person is entitled for continuance in the service on the ground of long officiation in the post or that the mistake was committed not due to the fault of the employee. In the case of the petitioner, he was appointment on compassionate ground, which is held to be an exception to Articles 14 and 16 of the Constitution. The Supreme Court had categorically held that such appointments can be made only within the norms prescribed by the Government. Therefore, at the time when the petitioner made the application, he was correctly given an appointment as an OA. If his subsequent acquisition of higher qualification is a criteria for granting an appointment to an higher post, then there may be so many other entrance to Government service, who may be similarly qualified to get the higher post.
11. As rightly contended by the respondents, G.O.Ms. No. 1499, L&T; Department, dated 3.8.89 does not apply to the case of the petitioner, as his case was not of having a higher qualification at the time of appointment, but was granted lower post due to want of vacancy.
12. The correct position of law in this regard has been laid down by the Supreme Court vide its judgment in Union of India and Anr. v. Narendra Singh reported in : (2008)2SCC750 . It is necessary to refer to paragraphs 32 to 34 of the said judgment, which are as follows:
32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.
33. As observed by us, statutory rules provide for passing of departmental examination and the authorities were right in not relaxing the said condition and no fault can be found with the authorities in insisting for the requirement of law. In the circumstances, the action of the authorities of correcting the mistake cannot be faulted.
34. True it is that before such an action is taken and a person is actually reverted, he must be given an opportunity to show cause why the proposed action should not be taken. He may be able to satisfy the authorities that there was no such mistake. But even otherwise, principles of natural justice and fair play require giving of such opportunity to him. But as observed earlier, in the instant case, in accordance with Rule 31-A of the Fundamental Rules, notice was issued to the respondent employee, explanation was sought and thereafter the order was passed. The said order, in our considered view, was just, proper and in consonance with law and it ought not to have been set aside by the Tribunal or by the High Court. To that extent, therefore, the orders impugned in this appeal deserve to be set aside.
13. But, so far as the issuance of no notice to the petitioner before reversion order is concerned, the respondents have justified by stating that there is no necessity to issue any notice and in para 8 of the reply affidavit, it has been averred as follows:
8. ...it is submitted that as has been explained in the previous paragraphs the impugned order 'Cancelling the re-appointment' to the post of Draftsman has been issued only to set right the error committed in the appointment, which procedure has already been upheld by the Honourable Supreme Court of India as well as the Tamil Nadu Administrative Tribunal. Therefore, it is submitted that the contention of the petitioner that 'The impugned order has been issued without following the principles of natural justice' is not correct.
14. This stand of the respondents is not in tune with the dictum laid down by the Supreme Court in Narendra Singh case (cited supra), more particularly para 34 as extracted above. Therefore, in the light of the above legal precedents, the writ petition is allowed. The impugned order insofar as it has been passed without notice to the petitioner is hereby set aside. However, liberty is given to the respondents to pass appropriate orders after due notice to the petitioner. The parties are allowed to bear their own costs.