Madras High Court
Kanagaraj vs The Commissioner/Director on 5 April, 2022
W.P.(MD)No.2291 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.04.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.2291 of 2015
Kanagaraj ... Petitioner
vs.
1.The Commissioner/Director,
Directorate of Technical Education,
Chennai - 600 002.
2.The Correspondent,
Nadar Mahajan Sangam Kamaraj Polytechnic,
Pazhavalai,
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 order passed by the 1st respondent in Memo No.56728/C2/2011, dated
22.01.2015 and to quash the same as illegal and further to direct the 1st
respondent to approve the petitioner's promotion proposal, dated 23.06.2014.
For Petitioner : Mr.S.Chellapandian
For R1 : Mr.V.Om Prakash
Government Advocate (Civil side)
For R2 : No appearance
1/9
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W.P.(MD)No.2291 of 2015
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order passed in Memo No.56728/C2/2011,
dated 22.01.2015 and further to direct the 1st respondent to approve the
petitioner's promotion proposal, dated 23.06.2014.
2.The brief facts of the case are that the second respondent Institution was
established in the year 1982, vide G.O.Ms.No.1783, Education, dated 09.08.1982.
It is a Government Aided Polytechnic rendering technical education for the
students. While issuing the said G.O., the Government has sanctioned two
Assistants and three Junior Assistants posts. The petitioner was appointed as
Junior Assistant along with two persons on 20.09.1982. The appointment was
approved on 11.06.1989.
3. The contention of the petitioner is that the next avenue of promotion to
the petitioner is Assistant. The petitioner has passed the Account Test for
Subordinate Officers Part 1 and he has worked as Junior Assistant for the past
three years and hence the petitioner is fully qualified to hold the post from
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W.P.(MD)No.2291 of 2015
07.02.1991. In the second respondent Institution, two sanctioned Assistant posts
were available but the second respondent appointed all the five candidates
including the petitioner as Junior Assistant. Later, the second respondent
intended to fill up those posts by virtue of promotion. The petitioner and other
three Junior Assistants were considered for the said post. Among the four eligible
candidates, two persons namely, Chandrasekar and Paramarthalingam, who
worked as Junior Assistants were promoted as Assistants since they were senior to
the petitioner. The second respondent promised the petitioner that they will
consider in future. After 18.07.1988, the Governing Council of the College could
not constitute the Selection Committee. Subsequently, on 30.09.2006, one
Chandrasekaran, who was promoted as Assistant in the year 1998 has voluntarily
retired from the service and the post fell vacant from 01.10.2006. Since the
petitioner is the only eligible internal candidate, the petitioner requested the
second respondent to honour the earlier promise and asked him to promote the
petitioner as Assistant.
4. Accordingly, the petitioner was appointed as Assistant in the said
Institution with effect from 01.10.2006, vide order, dated 01.05.2011. Necessary
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W.P.(MD)No.2291 of 2015
proposal was submitted to the first respondent through letter, dated 09.02.2011,
for approval. The first respondent rejected the same on the ground that the
promotion was not made in accordance with G.O.Ms.No.1282, dated 26.07.1967
and circular, dated 31.01.1989, since the said promotion was not through the Staff
Selection Committee constituted by the Governing Council of College. As stated
earlier the Selection Committee was not constituted from 1998 till date.
5. The contention of the petitioner is that various non-teaching posts fell
vacant during the period 1998-2004, five non-teaching staffs who were working
in the cadre of Workshop Instructor prayed for promotion for the post of
Instructors. When the claim was not considered by the respondents herein, the
aggrieved persons have filed a Writ Petition in W.P.No.9111 of 1997 and this
Court allowed the petition, vide, dated 10.09.2004, directing the respondent to
consider the claim of the petitioner. Aggrieved over the same, respondents
therein, filed a Writ Appeal in W.A.No.207 of 2002 and the same was dismissed,
vide order, dated 01.06.2007. Pursuant to the said judgment, the first respondent
approved all the promotions without insisting the procedures contemplated either
in G.O.Ms. No. 1282, dated 26.07.1967 or circular, dated 03.01.1989 or
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W.P.(MD)No.2291 of 2015
G.O.Ms.No.95, dated 26.03.2008. Since in the similar situation, this Court has
ordered to grant promotion, the petitioner is seeking a direction to direct the
respondents to approve the promotion.
6. The respondents submitted written instructions wherein it has been
stated that as per G.O.Ms. No. 1282, dated 26.07.1967 i.e. Grant-in-Aid Code
wherein the appointments are made by Direct Recruitment through Staff Selection
Committee. As per the DTE’s Circular No. 4323 / C2 / 1988 dated 03.01.1989
while filling up a vacant post, list of eligible candidates duly following rotation
will be obtained from the employment exchange, then interview will conducted.
The internal candidates will be permitted to compete with the external candidate
in the interview. The Selection Committee will select the eligible candidate and it
will be sent to Directorate of Technical Education. Since there were four
candidates in the earlier round, the seniors were considered and they were granted
promotion. Since there were no vacancy available, the second respondent has not
granted any promotion to the petitioner in the year 2006. One post fell vacant due
to voluntary retirement of one Chandrasekaran. The second respondent has
granted promotion to the petitioner with effect from 01.10.2006, vide order, dated
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W.P.(MD)No.2291 of 2015
01.05.2011. The respondents have declined to grant approval, since the
promotion was not granted through Selection Committee.
7. Heard Mr.S.Chellapandian, the Learned Counsel for the petitioner and
Mr.V.Om Prakash Learned Government Advocate (Civil side) for the respondents
and perused the records.
8. Based on the available vacancy the petitioner was promoted to the post
of Assistant. However, the 1st respondent has not approved the promotion since
the promotion was not granted by the Selection Committee. It is seen from the
records that the School has never constituted any Selection Committee from 1998
till date. If it is the mistake of the Management the same cannot be fasten on the
petitioner. The first respondent ought to have directed the second respondent to
constitute the Selection Committee and if not constituted then penal action ought
to have been initiated.
9. The employee has legitimate expectation if he is qualified for promotion.
The 2nd respondent has not constituted Selection Committee and that cannot be a
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W.P.(MD)No.2291 of 2015
sole ground to deny promotion. As rightly pointed out by the petitioner, earlier
occasion there were no Selection Committee and promotion were granted and the
same was approved by the 1st respondent. Now the 1st respondent cannot deny the
approval. It is seen from the records that the petitioner was aged about 53 years at
the time of filing this Writ Petition and now the petitioner has attained
superannuation. At this stage denying promotion will seriously prejudice the
rights of the petitioner. Therefore, this Court is of the considered opinion the
impugned order is liable to be set aside.
10. Hence the impugned order is set aside and the first respondent is
directed to approve the petitioner's promotion from 01.10.2006 onwards and
confer service benefits to the petitioner. It is seen that the College has promoted
the petitioner, vide order, dated 01.05.2011 with effect from 01.10.2006 and the
petitioner is rendering service in the promoted post. Therefore, the petitioner is
entitled to monetary benefits. The respondents are directed to confer promotion
with effect from 01.10.2006 and confer service and monetary benefits to the
petitioner and the said exercise shall be completed within a period of six weeks
from the date of receipt of the copy of the order.
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W.P.(MD)No.2291 of 2015
11. With the above direction, the Writ Petition is allowed. No costs.
Index : Yes / No 05.04.2022
Internet : Yes
Tmg
To
The Commissioner/Director,
Directorate of Technical Education,
Chennai - 600 002.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.2291 of 2015
S.SRIMATHY, J
Tmg
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the Advocate/litigant
concerned.
W.P.(MD)No.2291 of 2015
05.04.2022
https://www.mhc.tn.gov.in/judis
