Madras High Court

R.Thirumalai Muthiah vs The Director/Commissioner Of ... on 28 January, 2022

W.P. No.8449 of 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.01.2022

CORAM

THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ

W.P. No.8449 of 2010
and
M.P. Nos.1 and 2 of 2010

R.Thirumalai Muthiah ... Petitioner

Vs.

1. The Director/Commissioner of Technical Education,
Office of the Director of Technical Education,
Chennai – 600 025.

2. The Government of Tamil Nadu,
represented by Secretary to Government,
( Higher Education),
Fort St. George, Chennai 600 009.

3. The Tamilnadu Polytechnic College,
represented by its Principal,
Madurai – 625 011 ... Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus Calling for the
records connected with the letter issued by the 2nd respondent under letter
No.773/C1/2009/13 dated 24.09.2009, quash the same and consequently
direct the respondents 1 and 2 to promote the petitioner as instructor
(Mechanical) with effect from 09.12.2005 with all the attendant service and
monetary benefits.

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W.P. No.8449 of 2010

For Petitioner : Mr.G.Elanchezhiyan

For Respondents : Mr. Vadivelu Dheenaidaylan,
Additional Government Pleader

ORDER

This writ petition is filed seeking for a writ of certiorarified

mandamus challenging the order/letter of the second respondent dated

24.09.2009 in reference No.773/C1/2009-13 and to further direct the

Respondents 1 and 2 to promote the petitioner as instructor with effect from

09.12.2005 with all the attendant benefits.

2. The petitioner has been working in the 3rd respondent college

since 1981. The petitioner joined the 3rd respondent on 21.08.1982 as a

skilled assistant. The petitioner obtained diploma in mechanical engineering

in April 1981 and a degree in mechanical engineering in April 2001. It is

the case of the petitioner that he was eligible for consideration for

promotion as work shop Instructor on obtaining Diploma in Engineering.

The petitioner was ultimately promoted as work shop Instructor with effect

from 08.12.2003. The next avenue for promotion is Instructor (Mechanical).

The petitioner had raised a number of grounds relating to his entitlement to

promotion as as an Instructor. We do not intend to deal with the same, as the

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W.P. No.8449 of 2010

same may not be relevant for disposing of this writ petition.

3. The petitioner had earlier filed a writ petition in W.P.No.22719 of

2005 praying to appoint the petitioner as lecturer on par with the junior to

the petitioner Mr.O.G.Dharmipathi, inasmuch as the petitioner possessed the

requisite educational qualification to be appointed as lecturer. This Court

was pleased to permit the petitioner to make a detailed representation

before the Second Respondent herein pointing out their claim along with

copy of the judgment in W.A.No.207 of 2002 dated 01.08.2002 and the

G.O.M.S.No.95 dated 25.03.2008 which was relied upon by the petitioner

and the first respondent was directed to consider the claim of the petitioner

in the light of the Division Bench judgment in W.A.No.207 of 2002 and

G.O.M.S.No. 95 dated 26.03.2008 and pass orders within a period of three

months.

5. Pursuant thereto the petitioner made a representation on

18.02.2009 with the relevant material and sought promotion as Lecturer

while bringing to the notice of the Government that vacancies were

available to the post of Lecturer.

6.The petitioner submits that the representation was disposed by the

second respondent vide impugned order 24.09.2009 stating that his request

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W.P. No.8449 of 2010

to promotion as Lecturer is not feasible for the reasons set out therein which

is not adverted to as the same may not be necessary to dispose of this writ

petition.

7. Aggrieved by the above impugned communication/order of the 2nd

respondent the petitioner has filed the present writ petition for a prayer

directing the respondents 1 and 2 to forthwith appoint the petitioner as

Instructor mechanical in any of the Government Polytechnic college with

effect from 09.12.2005. The learned counsel for the petitioner at the time of

hearing submitted that there has been subsequent orders of this Court

wherein appointments had been made for the post of instructor and relied

upon the following orders to support his contention .

A. W.A.No.1909 of 2010 dated 22.08.2011.

B. W.P.No.848 and 2008 dated 23.02.2010

C. W.P.Nos.8327 and 8220 of 2011 dated 25.09.2012

D.W.P.No.25216 of 2011 dated 22.03.2017

E. W.P.No.22626 of 2009 dated 24.08.2017.

It was thus submitted by the petitioners that the petitioners were also

entitled to be appointed as instructor.

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W.P. No.8449 of 2010

8. In response the learned counsel for the respondents

Mr.Deenadhayalan contended that subsequent to filing of this writ petition

the petitioner had also filed W.P.No.22719 of 2005 praying for similar

relief with minor modifications and submitted a tabular column wherein it

was shown that the writ petitions has been subsequently filed with minor

modifications which was clearly impermissible. It was further submitted by

the learned counsel for the respondent on instructions that prayer itself may

be difficult to maintain inasmuch as the post of Instructor has been

dispensed with.

9. The learned counsel for the petitioner limits his prayer and submits

that he may be permitted to make a representation for being considered for

the Post of Instructor in accordance with law to which course the learned

counsel for the respondents consented and submitted that if a representation

is filed they will consider the same in accordance with law. It was however

submitted by the counsel for respondents that there has been instances in

the past where appointments have been made erroneously on a

misconception of the legal position relating to appointments/ promotions to

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W.P. No.8449 of 2010

the post of Instructors. The respondent may not have any such anxiety for

the law is settled that there cannot be any claim on the basis of an illegal

order for Article 14 as a positive concept, in this regard it may be relevant to

refer the decision in reported in (2013) 14 SCC 81 in Basawaraj v. Land

Acquisition Officer and the relevant portion is extracted hereunder:

"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated.

Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning

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W.P. No.8449 of 2010

of administration impossible. (Vide Chandigarh Admn. v. Jagjit

Singh [(1995) 1 SCC 745 : AIR 1995 SC 705] , Anand Buttons

Ltd. v. State of Haryana [(2005) 9 SCC 164 : AIR 2005 SC 565]

, K.K. Bhalla v. State of M.P. [(2006) 3 SCC 581 : AIR 2006 SC

898] and Fuljit Kaur v. State of Punjab [(2010) 11 SCC 455 : AIR

2010 SC 1937] .) "

10. The learned counsel for the petitioner submits and undertakes to

withdraw the other writ petition in W.P.No.14147 of 2018 filed by him and

a memo is also filed to that effect and taken on record.

11. In view of the above, the petitioner may submit his representation