Madras High Court
The Director Of Collegiate Education vs Poogundran on 18 February, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)No.224 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.02.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.224 of 2025
and
C.M.P.(MD)No.1553 of 2025
1.The Director of Collegiate Education,
DPI Campus, College Road,
Chennai – 600 006.
2.The Joint Director of Collegiate Education,
Thanjavur Region,
Q438+752, AVP Azhagammal Nagar,
Thanjavur – 613 005. ... Appellants
Vs.
1.Poogundran
2.The Secretary and Correspondent,
Poompuhar College, Melaiyur – 609 107,
Sirkali Taluk,
Mayiladuthurai District. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the order
of this Court in W.P.(MD)No.21550 of 2024, dated 24.09.2024.
1/15
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.224 of 2025
For Appellants :Mr.J.Ashok
Additional Government Pleader
For R1 :Mr.T.Leninkumar
***
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
This Writ Appeal is filed by the respondents in the writ petition
challenging the order, dated 24.09.2024, passed in Writ Petition W.P.(MD)No.
21550 of 2024.
2. The Writ Petition was filed for Writ of Certiorarified Mandamus, to
quash the order, dated 13.05.2024, passed in A.Thi.Mu.No.306/Aa2/2023 by 2nd
respondent and consequently, to direct the 2nd respondent to approve writ
petitioner's promotion as Junior Assistant with effect from 01.04.2017.
3. The brief facts as stated in the affidavit filed along with the writ
petition in W.P.(MD)No.21550 of 2024 are that the 3rd respondent college
namely Poompuhar College, Sirkazhi is a private aided college governed under
the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Rules framed
thereunder. On 03.08.2010, the 3rd respondent/the Secretary of the college, vide
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his proceedings in Na.Ka.No.65/Aa/2010 appointed the writ petitioner as
Laboratory Assistant on companionate grounds. Thereafter the petitioner was
working without any blemishes on record. As per Rule 11(4)(i) of Tamil Nadu
Private Colleges (Regulation) Rules, promotions in respect of non-teaching
staff shall be made based on seniority, provided other conditions regarding
qualifications are satisfied. The State Government vide G.O.Ms.No.11, dated
04.01.1989, directed the private colleges to fill up the post of Junior Assistant
only on a seniority basis from the categories of record clerks, lab assistants,
library assistants etc., and the said G.O. is applicable to the 3rd respondent.
Hence the 3rd respondent promoted the petitioner as Junior Assistant with the
effect from 01.04.2017 through proceeding dated 30.03.2017. Thereafter
submitted the proposal for approval of promotion to the 2nd respondent. The 2nd
respondent vide communication dated 26.07.2017 stated the post of Laboratory
Assistant is not a promotional post and hence the promotion granted to the
petitioner cannot be approved. In the meanwhile, the G.O.Ms.No.11 was
considered by Hon'ble Division Bench in W.A.(MD)Nos.114 and 9 of 2020 and
it was made clear that as per G.O.(Ms).No.11, dated 04.01.1989, the
recruitment by transfer can be made from the post Laboratory Assistant to the
post of Junior Assistant. The Hon'ble Division Bench added further that
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promotion from the post of Laboratory Assistant to the post of Junior Assistant,
there is no revenue loss to the government and such recruitment by transfer
cannot be objected since both the posts are drawing same scale of pay which
certainly benefits the person who moved from the post of Laboratory Assistant
to the post of Junior Assistant. Based on the order passed in the aforesaid writ
appeal, the petitioner has submitted a representation dated 05.02.2023 to 3rd
respondent requesting to promote to the post of Junior Assistant with effect
from 01.04.2017. The 3rd respondent considered the same and granted
promotion and resubmitted the proposal to the 2nd respondent to approve the
petitioner's promotion. The 2nd respondent vide proceeding dated 13.05.2024,
once again returned the proposal and directed to obtained appropriate
government orders in the case of the petitioner. Aggrieved over the same, the
writ petition was filed. The Writ Court had considered the rival claims and
thereafter based on the Hon'ble Division Bench order and allowed the writ
petition. Aggrieved over the same, the respondents in the writ petition had
preferred the present writ appeal raising various grounds.
4. After hearing the rival submission, this Court had given its anxious
consideration. It is an admitted facts that Laboratory Assistant, Library
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Assistant (only one promotion as Librarian) and some other posts are not
having any promotional avenue and the said persons would be stagnated in
their entire service.
5. The primary contention of the Learned Additional Government
Pleader is that the Laboratory Assistant is not the feeder category to promote to
the post of Junior Assistant since both carry same scale of pay. When several
requests came from the colleges for such promotion the government had issued
clarification in Government Letter No.646/G2/13-1 dated 14.08.2013 wherein
it is clarified that the post of Laboratory Assistant and Junior Assistant carries
same scale of pay and therefore the Laboratory Assistant post cannot be feeder
category for promotion to the post of Junior Assistant. The said contention of
the appellants cannot be accepted since the said government letter is only
circular and the same is not having any statutory force. Also it is not acceptable
for various reasons which is discussed in the following paragraphs.
6. Under Rule 11(4)(i) of Tamil Nadu Private Colleges (Regulation)
Rules (as amended vide G.O.Ms.No.60 of Education, dated 20.01.1986), it has
been stated that if any eligible candidate is available in the same college, then
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the said vacancy shall be filled by the serving persons available in the college,
if the conditions regarding qualification are satisfied. The said rule is extracted
hereunder:
“(4) (i) Promotion in respect of teaching staff shall be made on
grounds of merit and ability, seniority being considered only where
merit and ability are approximately equal, and in respect of non-
teaching staff promotions shall be made on seniority basis, provided
other conditions regarding qualification are satisfied.
(ii) The committee shall fill up the posts by promotion or by direct
recruitment. The committee shall, while making promotion, consider
claims of all the qualified teachers in that college. If, however, none
of the qualified teachers in the college is found suitable for
promotion, the vacancy shall be filled up by direct recruitment by
calling applications from qualified persons through the press or by
calling for a list of candidates from the Employment Exchange by
following the rule of reservation ordered by the government from time
to time for direct recruitment.
Explanation.—For purpose of this rule, if an educational agency has
established and administered more than one college, then the colleges
under the control of that educational agency shall be treated as on
unit.”
As per rule 11(4)(ii), the college is permitted to fill the post by promotion, if
none available then the college shall opt for direct recruitment. Therefore, the
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rule is clear that the college shall consider to fill the vacancy through “inhouse
candidate,” provided the candidate possess the qualification to hold the said
post. If not available then only they can recruit any candidate from outside. In
the present case, the petitioner is having qualification to hold the post of Junior
Assistant and the petitioner is “inhouse candidate”. Therefore, the offering of
the post of Junior Assistant to the petitioner is perfectly valid.
7. The next contention of the appellants is that the Laboratory
Assistant and Junior Assistant post are having equal pay, hence the same cannot
be considered as promotion. Further Rule 3(g) (i) to (v) of the Special Rules for
the Tamil Nadu Ministerial Service Rules do not permit promotion by way of
‘recruitment by transfer’ as Junior Assistant and the same itself is self-
explanatory. The said Rule 3(g) consists of sub clauses from (i) to (ix) and the
same is extracted hereunder:
“*(g) Besides direct recruitment as provided in rule 2, appointment to
the categories of Junior Assistant, Junior Assistant-cum-Typist and
Typist shall be made by recruitment by transfer from other services,
subject to the following conditions, namely:-
(i) Persons in services, other than the Tamil Nadu Ministerial Service,
who are in categories having no promotional opportunities or even
after more than one promotion in the respective service would still be
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in a category carrying scale of pay lower than that of Junior Assistant
or Junior Assistant cum-Typist or Typist alone shall be considered for
appointment by recruitment by transfer as Junior Assistant or Junior
Assistant-cum-Typist or Typist in the Tamil Nadu Ministerial Service,
subject to the possession of the prescribed qualifications for direct
recruitment.
(ii) The sphere of appointment by recruitment by transfer shall be
limited to the persons in the lower categories in other services within
the purview or control of the Unit or Officer concerned;
(iii) Appointment to the posts of Junior Assistants, Junior-Assistant-
cum-Typists or Typists from the lower categories shall not exceed
twenty percent of the vacancies in each of the categories;
(iv) A person to be eligible for appointment as Junior Assistant,
Junior Assistant-cum-Typist or Typist should have rendered not less
than seven years of service in the lower categories;
**(v) Those who are in possession of the required educational
qualification *and belong to the Tamil Nadu Basic Service shall be
given training in clerical work for a period of *Six months, out of
which for the first three months the training shall be with the Record
Clerk and on its completion, the second three months shall be with the
Junior Assistant. The above training shall be for two hours a day
without detriment to their normal work;
** [Substituted vide G.O.Ms.No.336, P & A.R.(B) Department, dt.
13-9-2004 w.e.f. 1-3-2004].
Provided that the vacancies reserved for recruitment by transfer to the
posts of Junior Assistant or Junior Assistant-cum-Typist or Typist, the
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person in lower categories shall be appointed without undergoing the
training subject to other requirements being fulfilled in 1994.
Provided further that from 1995 onwards, the posts shall be filled up
only after giving training to the persons in the lower categories;
(vi) For those who are holding posts the post of like Record Clerk
having clerical duties, there shall be no fresh training for them in
clerical work;
(vii) Such training in clerical duties is not necessary for appointment
to the post of Typist;
(viii) While selecting persons in lower categories for training in
clerical work, strict seniority should be adhered to;
(ix) Number of persons to be given training each year shall not
exceed twenty percent of the estimated vacancies in the category of
Junior Assistants or Junior Assistant-cum-Typist or Typists. Number
of persons to be given training shall be decided in the previous year.
*[Substituted vide G.O.Ms.No.15, P & AR(B) Dept., dated 21.2.2002
w.e.f.15.2.1994]”
8. The contention of applicability of Ministerial Rules to the aided
private colleges is not acceptable since the Tamil Nadu Ministerial Service
Rules, Tamil Nadu Subordinate Service Rules and Tamil Nadu Basic Service
Rules are not applicable to the private aided colleges. In the present case the
college is private aided college and hence the said rules are not applicable.
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9. Even if it is considered the said rule is applicable as claimed by the
appellants, this Court is of the considered opinion that the appellants had
misconstrued the rules, especially Rule 3(g)(i). The said rule 3(g)(i) was
enacted to grant promotion to the persons who are holding non-promotional
post. When the object of the said Rule 3(g)(i) is to grant promotion to the
persons holding non-promotional, then the said rule may be taken as aid to
construe where ever the post is non-promotional post, then the persons
servicing in such post ought to be granted the opportunity for promotion either
by “promotion by transfer” or “recruitment by transfer”. In the present case, the
petitioner is not having any opportunity to be promoted to any post, then the
petitioner ought to be considered for granting promotion or recruitment as per
the said rule.
10. The next contention of the appellants is that the second portion of
the Rule 3(g)(i) is that promotion shall be granted to Junior Assistant post from
the post who are having lower scale of pay than Junior Assistant. In the present
case the Lab Assistant and Junior Assistant is having equal pay. Even it is equal
pay, the fact remains the said post Lab Assistant is not a promotional post.
Therefore, the second portion of Rule3(g)(i) ought to be harmoniously read
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along with other provisions and also the principles of the purposive
interpretation to be applied. In such circumstances, the equal pay may not be a
hindrance to grant “transfer” to the said post, rather than giving “promotion”
11. Further, the said rule speaks of giving training if the person is not
having any experience of clerical work. And also speaks of “recruitment by
promotion” and “recruitment by transfer”. If the appellants' contention is
accepted that two posts are having equal pay, hence promotion cannot be
granted, then the writ petitioner is entitled to recruitment by transfer as stated
supra. When the rule itself speaks of recruitment by transfer then there is no
impediment to transfer the petitioner to the Lab Assistant post. In other words,
when the Lab Assistant and Junior Assistant are having equal pay, then the
petitioner is entitled to recruitment by transfer, if not the promotion. Therefore,
for this reason the contention of the appellants cannot be accepted.
12. When Rule 11(4)(i) and (ii) of the Tamil Nadu Private College
Regulation Rules states that the private aided college shall promote from
available persons in the college (inhouse candidate), if not available then only
by recruitment from outside. And when the Rule 3(g) (i) to (ix) of Tamil Nadu
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Ministerial Service Rules states recruitment by transfer. Then both the rules
read together, the private colleges are entitled to recruitment by transfer from
Lab Assistant to Junior Assistant. As rightly pointed out by the writ petitioner
when the salary for both the post is same, then the government will not have
any monetary loss.
13. It is seen, the government has passed the G.O.Ms.No.11
Education Department dated 04.01.1989 granting permission to the private
colleges to fill the post of Junior Assistant from the persons holding the post of
Record Clerk, Library Attenders, Laboratory Assistants and similar posts
irrespective of scale of salary. The relevant portion of the said G.O.Ms.No.11 is
extracted hereunder:
“3. Accordingly, the Government direct that irrespective of the scales
of pay the posts of Junior Assistant in a private college shall be filed
up from the persons working in the categories of Record Clerk,
Library Attenders, Laboratory Assistants, Museum Keepers,
Herberium Keepers and Mechanics and posts in similar time scales of
pay in the same college ne considered on the seniority basis as per
Rule 4 (i) of the Tamil Nadu Private Colleges (Regulations) Rules,
1979 as amended.”
When the aforesaid G.O. clearly states that irrespective of scale of pay the
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Junior Assistant post shall be filled by the aided private colleges from the post
of Laboratory Assistant, then the contention of the appellants is totally against
the said G.O.Ms.No.11. It is not the case of the appellants that the said G.O.
was withdrawn or not in force or not applicable. Therefore, this Court is of the
considered opinion irrespective of equal pay scale or lower pay scale the Junior
Assistant post shall be filled up from the persons holding the post of Record
Clerk, Library Attenders, Laboratory Assistants. It is seen that from
G.O.Ms.No.114 Higher Education Department dated 28.06.2012 the post
namely Museum Keepers, Herberium Keepers, Mechanics are not granted to
any colleges and hence the said posts cannot be granted after 28.06.2012.
14. The Writ Court had relied on the judgment passed by the Hon'ble
Division Bench in W.A.(MD)Nos.114 and 9 of 2020, dated 25.03.2021,
thereafter, had allowed the writ petition. This Court had considered the issue
raised by the appellants independently and also agreed with the order passed by
the earlier Division Bench. Therefore, this Court is not inclined to deviate from
the settled issue. The Writ Court has rightly allowed the writ petition following
the judgment of the Hon’ble Division Bench and had directed the appellants to
grant approval. Therefore, there is no infirmity in the impugned order passed by
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the Writ Court. Hence, the same is confirmed.
15. For the reasons stated supra, the writ appeal stands dismissed. No
Costs. Consequently, connected Miscellaneous Petition is closed.
[J.N.B., J.] [S.S.Y., J.]
18.02.2025
Index : Yes / No
Tmg
To
1.The Director of Collegiate Education,
DPI Campus, College Road,
Chennai – 600 006.
2.The Joint Director of Collegiate Educaiton,
Thanjavur Region,
Q438+752, AVP Azhagammal Nagar,
Thanjavur – 613 005.
https://www.mhc.tn.gov.in/judis
J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
18.02.2025
https://www.mhc.tn.gov.in/judis
