Madras High Court
The Commissioner Of Technical ... vs A.Henry Daniel on 13 March, 2023
W.A.(MD)No.788 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.A.(MD)No.788 of 2013
and
M.P.(MD)No.1 of 2013
1.The Commissioner of Technical Education,
The Directorate of Technical Education,
Guindy-600 025, Chennai.
2.The Principal,
Government Polytechnic,
Thoothukudi District. ... Appellants
Vs.
1.A.Henry Daniel
2.M.F.Thangaraja ... Respondents
PRAYER: Appeal filed under Clause 15 of Letters Patent, praying this
Court to set aside the order dated 30.03.2012 made in W.P.(MD)No.14252
of 2010 on the file of this Court.
1/9
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W.A.(MD)No.788 of 2013
For Appellants : Mr.D.Sadiq Raja,
Additional Government Pleader
For R2 : Mr.G.Prabhu Rajadurai
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This Writ Appeal is directed against the order of the learned
Single Judge dated 30.03.2012 made in W.P.(MD)No.14252 of 2010.
2.The writ petitioner, who is the 2nd respondent herein, passed
SSLC and was appointed as Laboratory Assistant in Government
Polytechnic, Thoothukudi on 18.06.1973. He was assigned duty in the
Mechanical Department and he worked in the said department till July,
1975, then he was transferred to Wiring and Winding Section, which comes
under the Electrical Department. In November, 1978, he was transferred to
Hydrolics Lab, which comes under the Civil Department. Thus, he served
in three departments as Laboratory Assistant and he attained the age of
superannuation on 30.09.2011 and retired. When the writ petitioner claimed
promotion to the post of Workshop Instructor while he was serving in the
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W.A.(MD)No.788 of 2013
Government Polytechnic, Thoothukudi, the request of the writ petitioner
was rejected through the impugned order dated 26.07.2010, which was
under challenge in the Writ Petition.
3.It was the case of the appellants, who are the respondents 1 and
2 in the Writ Petition that the writ petitioner in order to get the post of
Workshop Instructor had to complete the required experience in the
particular department.
4.This aspect has been considered by the learned Single Judge in
detail in the order impugned herein, where the learned Single Judge, having
taken note of the earlier orders passed by this Court at various occasions, of
course, on the similar point, has held that insofar as the belated acquiring of
the experience in the particular department is concerned, the writ petitioner
was not posted continuously in the department and if at all any such delay is
occurred in gaining the experience, for which, only the employer is to be
blamed not the employee.
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W.A.(MD)No.788 of 2013
5.In this context, even though G.O.Ms.No.2100, Education, dated
18.09.1981 was heavily relied upon by the learned Additional Government
Pleader appearing for the appellants, that point also was taken care of by the
learned Single Judge, where the learned Single Judge has dealt with the
same in the following Paragraph:-
“5.The second respondent has filed counter affidavit
stating that the petitioner attained the age of superannuation and
retired from service on 30.9.2011. He was awarded selection
grade and special grade on completion of ten years and twenty
years of service. His pay was revised and fixed in the higher
scale of pay as per the relevant Government Orders. The next
avenue of promotion for the post of Lab Assistant is the post of
Workshop Instructor. As per the special rules for the Tamil Nadu
Technical Educational Subordinate Service (old) issued in
G.O.Ms.No.2100 Education, dated 18.9.1981, for promotion to
the post of Workshop Instructor, following are the required
qualifications:
(i) A pass in 8th Standard in a recognised School
(ii) Experience as skilled operator for a total period of
not less than seven years in a recognised Workshop, of which at
least two years service must be actually in the Workshop of a
technical educational institution.
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W.A.(MD)No.788 of 2013
As per the revised Adhoc rules issued in G.O.Ms.No.220 Higher
Education Department dated 6.7.2009 for promotion to the post
of Workshop Instructor following are the qualifications
prescribed:
(a) Diploma in Mechanical or Electrical and
Electronics Engineering or Electrical Engineering;
(b) (i) An Industrial Training Institute Certificate /
National Trade Certificate / National Apprenticeship Training
Certificate in Mechanical/ Electrical subjects;
(ii) Practical experience for a period of not less than
three years in a recognised Mechanical/Electrical Workshop not
below the rank of skilled Operative/ Assistant;
Provided appointment shall be made to the post from among the
holders of (I) Diploma qualification and (ii) Non-Diploma
qualification mentioned above in the ratio 1:4 subject to the
availability of adequate number of Diploma holders. It is further
stated in the counter affidavit that the crucial date for preparing
the panel for promotion is 1st September of every year.
Accordingly for the year 2008-2009, the crucial date of 1.9.2008
was taken and the petitioner's name was not considered as he did
not complete seven years experience in a recognised Workshop as
per the old rule and petitioner obtained the required experience
only on 30.6.2009. The new rule came into force from 6.9.2009
as per which the petitioner is not qualified. Hence the second
respondent prayed for dismissal of the writ petition.”
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W.A.(MD)No.788 of 2013
6.The learned Single Judge also having taken note of the earlier
judgment in (2011) 8 MLJ 317 in the matter of S.Krishnakumar Vs. State
of Tamil Nadu, and also the common order dated 04.09.2007 made in
W.P.Nos.47872, 47885 of 2006 and 7791 of 2007, had come to the
conclusion that the earlier decisions made in this regard as quoted herein
above have made it very clear by way of the settled principle that for such
kind of delay if anything caused, the employee cannot be blamed, it should
be fastened on the employer only and ultimately, the learned Single Judge
has come to the following conclusion in the impugned order:-
“The said order is followed in the decision reported in
(2012) 1 MLJ 634 (S.Sasisivanandam v. District Collector,
Thoothukudi District), wherein it is held that when the matter of
posting of an employee to a particular post lies in the domain of
the concerned authority, the employee cannot be blamed for non-
acquiring of required service qualification and denial of
promotion on that ground is not justified.
13.Thus, the reason stated in the impugned order for not
considering petitioner's name for promotion as Workshop
Instructor is contrary to the well settled principle of law. The
Adhoc rules issued on 6.7.2009 is applicable to future vacancies
after the issuance of the said Adhoc rules. Nowhere in the said
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W.A.(MD)No.788 of 2013
rules it is stated that the said rules are applicable with
retrospective effect. In the said rules it is specifically stated that
the said rules shall come into force on 6th July, 2009.
14.The petitioner has made out a case for considering
his name for inclusion in the panel for promotion for the post of
Workshop Instructor in the second respondent Polytechnic.
Petitioner having retired on 30.9.2011, respondents 1 and 2 are
directed to give notional promotion to the petitioner from the date
on which his junior was given promotion i.e., with effect from
1.12.2010 and promote him notionally enabling him to get
revision of pension. Since the petitioner has not served in the
promotional post, he is not entitled to get difference in salary
from the date of notional promotion till his retirement, i.e, from
1.12.2010 to 30.9.2011.
The writ petition is allowed in part as above. No costs.
Connected miscellaneous petitions are closed.”
7.We have gone through the order of the learned Single Judge,
which is impugned herein and heard both sides.
8.As has been rightly held by the learned Single Judge, the writ
petitioner though was entitled to such promotion during his entire service
period, that was denied. Subsequently, when he moved the said Writ
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W.A.(MD)No.788 of 2013
Petition, the points discussed herein above have been taken care of by the
learned Single Judge in the order impugned of course based on the earlier
precedents in this regard.
9.Therefore, we do not find any reason to interfere with the said
view taken by the learned Single Judge. In view of the above, this Writ
Appeal fails and it is liable to be dismissed, accordingly, it is dismissed. As
a result, the benefit that has been accrued pursuant to the allowing of the
Writ Petition shall be calculated and be extended to the writ petitioner by
the appellants within a period of eight weeks from the date of receipt of a
copy of this order. No costs. Consequently, connected miscellaneous
petition is closed.
(R.S.K., J.) & (K.K.R.K, J.)
13.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
MYR
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.788 of 2013
R.SURESH KUMAR, J.
AND
K.K.RAMAKRISHNAN, J.
MYR
W.A.(MD)No.788 of 2013
13.03.2023
https://www.mhc.tn.gov.in/judis
