Madras High Court
N.Muthusamy vs The Secretary To Government on 9 March, 2021
W.P. No. 28015 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.03.2021
CORAM
THE HONOURABLE MR.JUSTICE R. SURESH KUMAR
W.P. No. 28015 of 2011
1. N.Muthusamy
2. A.Anne Rupa
3. S.Prameela ... Petitioners
-vs-
1. The Secretary to Government,
Higher Education Department,
Fort St.George,
Chennai - 600 009.
2. The Director of Collegiate Education,
College Road,
Chennai - 600 006. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of Writ of Mandamus directing the
respondents to consider the case of the petitioners for regular
appointment in the post of Librarian by way of transfer of service in
Government Colleges.
For Petitioners : Mr.R.Prem Narayan
For Respondents : Mr.S.Karthikei Balan
Government Advocate
1/12
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W.P. No. 28015 of 2011
ORDER
The prayer sought for herein is for a Writ of Mandamus directing
the respondents to consider the case of the petitioners for regular
appointment in the post of Librarian by way of transfer of service in
Government Colleges.
2. The petitioners were initially appointed as Junior Assistant and
subsequently, promoted as Assistant and then as Superintendent. They
claimed that, they have completed Master Degree in Library Science and
M.Phil. Accordingly, they were fully qualified for the promotion to the
post of Librarian in Government Colleges by way of transfer of service.
3. In this context, it is the contention of the petitioners that, by
issuance of G.O.Ms.No.2476, Department of Education, Science and
Technology dated 09.11.1982, the Special Rules for the Tamil Nadu
General Sub-ordinate Service got amended, by thus, a ratio of 1:2 has
been fixed for direct recruitment and by way of transfer of service for the
said post of College Librarian / Graduate Librarian.
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W.P. No. 28015 of 2011
4. In view of the said quota of 1:2 for direct recruitment and by
way of transfer, these incumbents who were working as Superintendent,
also can be posted by way of promotion by transfer to the post of College
Librarian / Graduate Librarian. When similarly placed persons who were
considered for such a promotion by transfer, the plea of the petitioners
since have not been considered, despite the specific representation
having been made in this regard by these petitioners, they have
approached this Court by filing the present Writ Petition.
5. Heard Mr.R.Prem Narayan, learned counsel appearing for the
petitioners who would submit that, since these petitioners were qualified
to hold the post of College Librarian / Graduate Librarian and for the
vacancies caused in the said post, by adopting the ratio of 1:2,
appointment can be made either by direct recruitment or by transfer and
accordingly, these petitioners would be entitled to get appointment to the
post of College Librarian / Graduate Librarian by way of transfer, for
which, enabling rule also permits by fixing the ratio of 1:2. Therefore,
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W.P. No. 28015 of 2011
the petitioners plea to give such promotion by way of transfer to the said
post of Librarian can be directed to be considered.
6. However, Mr.S.Karthikei Balan, learned Government Advocate
appearing for the respondents has relied upon the subsequent amendment
which has been effected in the rule concerned by issuance of
G.O.Ms.No.103, Higher Education (F2) Department dated 18.05.2009.
By issuance of the said Government Order, the Special Rules for the
Tamil Nadu General Subordinate Service got amended and the
amendment shall be deemed to have come into force on 1st January
1986, even though the Government Order was issued on 18.05.2009. By
relying upon the said amended rule, the learned Government Advocate
would submit that, by virtue of the amendment having been effected the
post of College Librarian / Graduate Librarian are no more available and
only the post of Librarian alone was available, for which, by direct
recruitment, appointment can be made. Therefore, the learned
Government Advocate would submit that, the plea raised by the
petitioners for getting appointment as College Librarian / Graduate
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W.P. No. 28015 of 2011
Librarian by way of transfer may not be found feasible because of the
rule position got amended by issuance of G.O.Ms.No.103, dated
18.05.2009. Therefore, the learned Government Advocate seeks
dismissal of this Writ Petition.
7. However, Mr.R.Prem Narayan, learned counsel appearing for
the petitioners in reply to the said argument advanced by the learned
Government Advocate would rely upon the Division Bench Judgment of
this Court made in W.A.Nos.773 of 2009 etc., batch dated 14.09.2010,
where, he has relied upon the following observations made by the
Division Bench, which reads as follows:
"When the order passed by the learned Single Judge
in one of the Writ Petitions was confirmed by order
dated 05.11.2009 in W.A. No. 65709 of 2007, the
Supreme Court observed that the learned Single
Judge was fully justified in issuing the Mandamus for
consideration of the claim of the candidates for
appointment as "College Librarian" on recruitment by
transfer. Therefore, the post available prior to the
amendment has to be filled up only as per the
prevailing recruitment Rules. In view of the finding
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W.P. No. 28015 of 2011
rendered by the Supreme Court with respect to
appointment of "College Librarian" on recruitment by
transfer, the petitioners are in no way affected by the
amendment. Therefore, we do not fined any merit in
the contention raised on behalf of the petitioners with
respect to the amendment. Accordingly the Writ
Petitions are dismissed"
8. By relying upon the aforesaid Division Bench Judgment, the
learned counsel appearing for the petitioners would contend that,
unmindful of the amendment, having been made by issuance of
G.O.Ms.No.103 as stated above, the vacancies which arose prior to
issuance of amendment shall only be filled up as per erstwhile rule, i.e.,
prior to amendment. Therefore, the petitioners can very well seek
indulgence of this Court to give a direction for appointment to them by
way of transfer for the vacancies that arose prior to the amendment, as
similarly placed persons like the petitioners have already approached this
Court and by virtue of the orders passed by this Court as per the line of
the Division Bench order as referred above, they were considered for
such appointment by way of transfer to the post of College Librarian /
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W.P. No. 28015 of 2011
Graduate Librarian which vacancies in fact have arisen prior to the
issuance of G.O.Ms.No.103.
9. I have considered the said rival submissions made by the learned
counsel appearing for the parties and have perused the materials placed
on record.
10. As has been submitted by the learned counsel appearing for the
petitioners, admittedly, the rule got amended even before the Judgment
was made in W.A.Nos.773 of 2009, etc., batch. In view of the Division
Bench Judgment referred to above, retrospective effect cannot be given
inasmuch as the vacancies arose prior to the issuance of G.O.Ms.No.103.
Therefore, in all fairness, for all practical purposes, such amendment can
be taken into account only from the date of issuance of G.O.Ms.No.103,
i.e., from the year 2009.
11. Assuming that, the amendment having been made in 2009 by
issuance of G.O.Ms.No.103, as per the dictum of the Division Bench
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W.P. No. 28015 of 2011
Judgment as referred to above, the vacancies arose in the post of College
Librarian / Graduate Librarian prior to amendment, shall be filled up only
under pre-amendment rule. Therefore, this is what exactly the petitioners
wants to be implemented.
12. However, the fact remains that, if the Writ Petitions were filed
or Appeals were filed before this Court against an order of Writ Court
during the relevant point of time, i.e, at the time of issuance of
G.O.Ms.No.103, thereafter, if there are vacancies which arose prior to the
amendment, certainly those vacancies could have been filed up by using
the method of transfer as per the then existing rule, i.e., pre-amendment
rule. However, in the case in hand, since long years have gone during the
pendency of this Writ Petition and at this stretch of time, we cannot
expect that the vacancies arose in the post of College Librarian /
Graduate Librarian prior to the issuance of G.O.Ms.No.103 would have
been still vacant for all these years.
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W.P. No. 28015 of 2011
13. After the amendment, the post of College Librarian / Graduate
Librarian itself was taken away and the only post that was available is
Librarian, for which, only method of appointment is by direct
recruitment. Therefore, it cannot be expected that for decades together
the post of erstwhile College Librarian / Graduate Librarian, those
vacancies arose in the said post prior to G.O.Ms.No.103 i.e., in the year
2009, have been kept vacant till date.
14. Therefore, it is practically impossible to find any vacancy as of
now, arose prior to issuance of G.O.Ms.No.103.
15. Since the post of College Librarian / Graduate Librarian is not
available or not available at least from 2009, if not from 1986, the
question of filling up the said post by adopting the 1:2 ratio, i.e., the
erstwhile method prior to amendment by giving appointment to these
petitioners or similarly placed persons by way of transfer at this length of
time is completely ruled out.
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W.P. No. 28015 of 2011
16. In that view of the matter, this Court feels that, the prayer
sought for by the petitioners cannot be granted. Accordingly, this Writ
Petition fails and hence, it is dismissed. However, there shall be no order
as to costs.
09.03.2021
Index: Yes/No
Speaking Order: Yes/No
vji
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W.P. No. 28015 of 2011
To
1. The Secretary to Government,
Higher Education Department,
Fort St.George,
Chennai - 600 009.
2. The Director of Collegiate Education,
College Road,
Chennai - 600 006.
https://www.mhc.tn.gov.in/judis/
W.P. No. 28015 of 2011
R. SURESH KUMAR, J.
vji
W.P. No. 28015 of 2011
09.03.2021
https://www.mhc.tn.gov.in/judis/
