Madras High Court
J.Sandhya vs The Director on 24 September, 2021
W.P.(MD)No.9949 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.09.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.9949 of 2017
and
W.M.P.(MD)Nos.7619 and 7620 of 2017
J.Sandhya ... Petitioner
vs.
1.The Director,
Collegiate Education,
Office of the Collegiate Education,
Chennai.
2.The Joint Director,
Officer of the Collegiate Education,
Tirunelveli Region,
Palayamkottai, Tirunelveli.
3.The Commissioner,
Hindu Religious and Charitable Endowment Board,
Nungambakkam Road, Chennai.
4.The Joint Commissioner/Executive Officer,
Hindu Religious and Charitable Endowment Board,
Susindram, Kanyakumari District.
5.The Principal,
Sri Devikumari Womens' College,
Kulithurai-629 163, Kanyakumari District.
1/9
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W.P.(MD)No.9949 of 2017
6.The Secretary,
College Committee,
Head Office of the College Secretary,
Sri Devikumari Womens' College,
Kulithurai at Susindram,
Kanyakumari District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to
the impugned order in Na.Ka.No.52085/F2/2015, dated 23.12.2016 passed by the
first respondent and quash the same as illegal and consequently to direct the
respondents to transfer the petitioner from Lab Assistant post to the Junior
Assistant/Typist/Store Keeper post in the fifth respondent college.
For Petitioner : Mr.F.X.Eugene
For R-1 and R-2 :M.Linga Durai
Government Advocate
For R-4 : Mr.M.Saravanan
For R-3 and R-5 : No appearance
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus to quash the impugned order passed by the first respondent, dated
23.12.2016, and to direct the first respondent to transfer the petitioner from the
post of Lab Assistant to Junior Assistant/Typist/Store Keeper post in the fifth
respondent College.
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W.P.(MD)No.9949 of 2017
2.Heard Mr.F.X.Eugene, learned Counsel for the petitioner, Mr.M.Linga
Durai, learned Government Advocate appearing for the respondents 1 and 2 and
Mr.M.Saravanan, learned Counsel for the fourth respondent.
3.The petitioner's father died while he was working as a Night Watchman in
the fifth respondent College, which is an aided non minority College. Since the
petitioner's father died while in service, the petitioner was given appointment as
Lab Assistant on compassionate ground. Though the petitioner had plus two
qualification, it is stated by the petitioner that he has passed B.Sc, Maths in 2001.
Earlier, there was some problem for the petitioner even to get into the post of Lab
Assistant or Junior Assistant and the petitioner obtained an order from this Court.
By order, dated 13.11.2006, this Court directed the sixth respondent to appoint the
petitioner as Junior Assistant/Lab Assistant on compassionate ground. Later the
petitioner was appointed as Lab Assistant in the fifth respondent College.
4.It is admitted before this Court that any person appointed as Lab Assistant
will stagnate in the same post till his retirement, as there is no promotional
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W.P.(MD)No.9949 of 2017
avenue. However, the post of Junior Assistant, which is recognized as a post in
the same cadre, carries an advantage, because of promotional avenues. Nearly,
after ten years of service, the petitioner finds that there is vacancy in the post of
Junior Assistant in the same College and submitted a representation to the sixth
respondent on 01.10.2015 to transfer the petitioner from the post of Lab Assistant
to the post of Junior Assistant. Since no action was taken by the respondents, the
petitioner approached this Court again by a Writ Petition in W.P.(MD)No.22163
of 2015, which was disposed of by this Court with a direction to the respondents
to consider the representation of the petitioner, dated 01.10.2015. Thereafter, the
representation was rejected by the respondents vide impugned order dated
23.12.2016, relying upon a clarification issued by the Government letter, dated
23.12.2016. Challenging the same, the present Writ Petition is filed.
5.The learned Counsel appearing for the petitioner submitted that there is
no legal impediment for transferring the petitioner from the post of Lab Assistant
to the post of Junior Assistant, especially when there is vacancy in the post of
Junior Assistant as on date. The learned Counsel then submitted that in several
Colleges, depending upon the availability of vacancy in the post of Junior
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W.P.(MD)No.9949 of 2017
Assistant, persons in the post of Lab Assistant, are being transferred to the post of
Junior Assistant as a matter of practice and that therefore, the impugned order is
in violation of Article 14 of Constitution of India. The learned Counsel for the
petitioner further submitted that the impugned order based on the letter of
Government is arbitrary and misconceived. The Government letter referred to in
the impugned order only states that a Lab Assistant, who is drawing the same
salary of Junior Assistant, can not be given promotion by transfer. It is also
submitted that the Government ought to have taken a decision regarding the
transfer of persons from the post of Lab Assistant to the post of Junior Assistant
based on the seniority and availability of vacancy.
6.The learned Counsel for the petitioner relied upon a judgment of this
Court wherein, the order of learned Single Judge of this Court allowing the Writ
Petition in a similar situation, was upheld by the Honourable Divisional Bench of
this Court in Writ Appeal W.A.(MD)No.114 of 2020, by order dated 25.03.2021.
The relevant portion of the judgement passed by the Divisional Bench is extracted
below for convenience:
“5.We find force in the submissions made by the learned counsel
appearing for the respondents. As per G.O.Ms.No.11, Education
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W.P.(MD)No.9949 of 2017
Department, dated 04.01.1989, the recruitment by transfer can be made
from the post of Lab Assistant to the post of Junior Assistant. Though it has
been misconstrued as that of promotion from the post of Lab Assistant to
the post of Junior Assistant, inasmuch as there is no loss of revenue to the
appellants, such recruitment by transfer cannot be objected to, after all,
both the posts are drawing the same scale of pay, which certainly benefits
the persons, who moved from the post of Lab Assistant to the post of Junior
Assistant.
6.Right to be considered for promotion cannot be denied, though it
is not a vested right. The proceedings relied upon by the appellants are
meant for Specific Service Rules namely, the Tamil Nadu Private Colleges
(Regulation) Act, 1976 and therefore, it cannot be applied in the case on
hand. Even otherwise, as observed by us, the facts would clearly establish
that no prejudice is caused. To put it differently, the Management can very
well fill the post of Junior Assistant. If the post is filled otherwise, the
appellants would have given sanction/permission. Admittedly, the posts are
also vacant. Therefore, looking from any perspective, we do not find any
reason to interfere with the order of the learned Single Judge. Accordingly,
these Writ Appeals are dismissed. No costs. Consequently, connected
Miscellaneous Petitions are closed .”
7.This Court, having regard to the view expressed by the Honourable
Divisional Bench of this Court above referred to, has to follow the same. Further,
it is admitted before this Court that the post of Junior Assistant carries service
benefits, whereas, no promotional avenue is available to the post of Lab Assistant.
Hence, it will be a tendency of every person, who is employed as Lab Assistant,
to seek transfer to the post of Junior Assistant to have promotional opportunity. It
is high time for the Government to frame appropriate rules or issue direction, so
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W.P.(MD)No.9949 of 2017
as to avoid inter se disputes, regarding appointment of Junior Assistant by
transfer of Lab Assistant with due consideration to the length of service and
seniority of persons. It is admitted that no prejudice is likely to be caused to the
respondents, if the petitioner is transferred from the post of Lab Assistant to the
post of Junior Assistant. It is not brought to the notice of this Court that any other
senior is available in the post of Lab Assistant. It is now stated before this Court
that only one post of Lab Assistant is sanctioned to the College and that the
petitioner is in service for nearly twelve years now in the same post. It is also
admitted that there is a vacancy in the post of Junior Assistant in the same
College. Therefore, this Court has no hesitation to hold that the petitioner's
request for transfer is well justified and the Writ Petition can be allowed.
8.Accordingly, the Writ Petition is allowed. The impugned order passed by
the first respondent, dated 23.12.2016 is quashed. The fourth respondent is
directed to transfer the petitioner from the post of Lab Assistant to the post of
Junior Assistant. This exercise shall be undertaken by the fourth respondent
within a period of four weeks from the date of receipt of a copy of this order. On
such transfer being effected by the fourth respondent, the respondents 1 and 2
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W.P.(MD)No.9949 of 2017
shall also approve the transfer within a period of four weeks from the date of
receipt of such proposal being submitted to them.
24.09.2021
Index : Yes / No
Internet : Yes
tmg/cmr
To
1.The Director,
Collegiate Education,
Office of the Collegiate Education,
Chennai.
2.The Joint Director,
Officer of the Collegiate Education,
Tirunelveli Region,
Palayamkottai, Tirunelveli.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.9949 of 2017
S.S.SUNDAR, J.
tmg/cmr
Order made in
W.P.(MD)No.9949 of 2017
24.09.2021
https://www.mhc.tn.gov.in/judis/
