Madras High Court
N.Baskaran vs The State Of Tamil Nadu on 26 September, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD)No.21132 of 2024
and
W.M.P(MD)No.17896 of 2024
N.Baskaran ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. By its Secretary,
Department of Higher Education,
Fort St. George, Chennai - 600 009.
2.The Director of Collegiate Education,
College Road, Chennai - 600 006.
3.The Joint Director of Collegiate Education,
Madurai Region, Palam Station Road,
Madurai - 625 002.
4.The Secretary,
The American College,
Madurai - 625 002. ...Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a writ of Certiorarified Mandamus, calling for the records relating to the
impugned proceedings issued by the 3rd respondent Joint Director of Collegiate
Education in O.Mu.No.7298/u4/2024, dated 04.08.2024, quash the same and
further direct the 2nd and 3rd respondents herein to approve forthwith the
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promotion of petitioner as Junior Assistant in the 4th respondent's college and
disburse the grant-in-aid towards his salaries w.e.f.01.07.2024 with all attendant
benefits.
For Petitioner : M/s.A.Amala
For Respondents : Mr.N.Satheesh Kumar
Additional Government Pleader
for R1 to R3
ORDER
The instant contempt petition has been filed by a Lab Assistant, working
in the fourth respondent aided college, challenging the order of the third
respondent, wherein the proposals sent by the college Management to promote
him to the post of Junior Assistant has not been approved.
2.The petitioner herein was working as a Lab Assistant in the fourth
respondent college, which is an aided minority institution. It is an admitted fact
that the post of Lab Assistant and the post of Junior Assistant are carrying the
same scale of pay. The Management had decided to appoint the petitioner as
Junior Assistant by way of proceedings dated 22.07.2024 and forwarded the
said proposals to the third respondent for his approval. Under the impugned
order dated 04.08.2024 which was rejected by the third respondent on the
ground that the post of Junior Assistant is carrying equivalent pay to the post of
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Lab Assistant, the appointment to Junior Assistant cannot be treated as
promotion and has proceeded to reject the said proposal. This order under
challenge in the present writ petition.
3.The issue involved in the present writ petition is no longer res integra.
The Hon'ble Division Bench of this Court after considering all the above said
issues has dismissed the writ petition filed by the State in W.A.(MD)Nos.114 &
9 of 2020, dated 25.03.2021.
4.Per Contra, the learned Counsel appearing for the respondents herein
would contend that when sanction was granted to the Aided College for
appointment to the post of Lab Assistant, it was treated only as non-promotional
post. Therefore, the petitioner can never be promoted as Junior Assistant/Typist,
considering the post of Lab Assistant as feeder category. He further contended
that the payscale of the Lab Assistant is equivalent to that of Junior
Assistant/Typist and therefore, the same is non-promotional post also. He
further contended that in case, the petitioner is promoted as a Junior
Assistant/Typist, the same will be treated as a feeder category for further
promotion and it would create financial implications to the Government. Hence
he prayed for dismissal of the writ petition.
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5.I have carefully considered the submission made on either side and
perused the materials available on record.
6.A perusal of the impugned order reveals that the request of the
management for approving the promotion order from the post of Lab Assistant
to the post of Junior Assistant/Typist has been rejected on the sole ground that
the post of Junior Assistant/Typist can never be treated to be a promotional post,
in view of the fact that the salary of both the posts are one and the same.
7.The Hon'ble Division Bench of our High Court, in the judgment
W.A(MD)Nos.114 & 9 of 2020, dated 25.03.2021, has considered a similar
issue. The operative portions of the order in Paragraph No.2 to 6 are extracted
as follows:-
“2.In both the cases, promotions have been given from the
post of Lab Assistant to Junior Assistant. It appears that both the
posts carry the same scale of pay. The case of the appellants in
these cases is that, inasmuch as Lab Assistant post is not the
feeder category to the post of Junior Assistant, where is a
question of promotion being approved by them?
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3.The learned Special Government Pleader submitted that
under those circumstances, the orders passed require
interference.
4.The learned counsel appearing for respondent No.1 in
W.A.(MD)No.9 of 2020 placing reliance upon G.O.Ms.No.11,
Education Department, dated 04.01.1989, submitted that
recruitment by transfer is permissible from Lab Assistant to
Junior Assistant. Secondly, it is submitted that the post of Junior
Assistant is a feeder category to the post of Assistant and
thereafter, Superintendent. However, the post of Lab Assistant is
not a feeder category. The incumbents are languishing in the
post of Lab Assistant for decades. Therefore, in any case, no
prejudice would be caused.
5.We find force in the submissions made by the learned
counsel appearing for the respondents. As per G.O.Ms.No.11,
Education 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
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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.”
8.In view of the judgment of the Hon'ble Division of our High Court, the
respondent authorities cannot take a stand that both the posts of Lab Assistant
as well as the post of Junior Assistant/Typist are drawing the same payscale and
therefore, it is not a promotional post and the issue has already been decided by
the above said Judgment of the Hon'ble Division Bench.
9.In view of the above said deliberations, the order impugned in the writ
petition is hereby set aside and the second and third respondent are directed to
approve the promotional order of the writ petitioner with effect from 01.07.2024
and pass consequential orders within a period of twelve weeks from the date of
receipt of a copy of this order.
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10.With the above said observations, this writ petition stands allowed.
No costs. Consequently, connected miscellaneous petition is also closed.
26.09.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
RJR
To
1.The Secretary,
Department of Higher Education,
Fort St. George, Chennai - 600 009.
2.The Director of Collegiate Education,
College Road, Chennai - 600 006.
3.The Joint Director of Collegiate Education,
Madurai Region, Palam Station Road,
Madurai - 625 002.
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
RJR
26.09.2024
https://www.mhc.tn.gov.in/judis
