Madras High Court
The Director Of Collegiate Education vs C.Lilly Rose on 21 March, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)No.650 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.03.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.650 of 2025
and
C.M.P.(MD)No.4628 of 2025
1.The Director of Collegiate Education,
I.A.S.E., Campus,
577, Anna Salai, Saidapet,
Chennai-600 015.
2.The Regional Joint Director of Collegiate Education,
Madurai Region, Madurai-625 002. ... Appellants
Vs.
1.C.Lilly Rose
2.The Secretary /Correspondent,
V.V.Vanniaperumal College for Women,
Virudhungar-626 001. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the order
of this Court in W.P.(MD)No.2608 of 2024, dated 15.10.2024.
For Appellants :Mr.J.Ashok
Additional Government Pleader
For R1 :Mr.E.V.N.Siva
1/11
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W.A.(MD)No.650 of 2025
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 passed in W.P.(MD)No.2608 of 2024, dated 15.10.2024.
2. The writ petitioner was working as a Lab Assistant in the second
respondent College and was promoted as Junior Assistant. Since the proposal
seeking approval of the promotion granted to the writ petitioner was rejected,
the writ petitioner filed a writ petition. The Writ Court taking note of
G.O.Ms.No.11, Education Department and judgment of the Hon'ble Division
Bench, allowed the writ petition directing the respondents therein to approve
the appointment of the writ petitioner. Aggrieved over the said order, the
Department had preferred the present appeal.
3.This Court had an occasion to deal with the issue involved in this
matter in W.A.(MD)No.224 of 2025, dated 18.02.2025. For better appreciation,
the relevant portion of the said order is extracted hereunder:
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“4. After hearing the rival submission, this Court had given its anxious
consideration. It is an admitted facts that Laboratory Assistant, Library
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 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
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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 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
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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 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
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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
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 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
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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 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,
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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
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 the Writ Court. Hence, the
same is confirmed.”
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4.Though necessary Government Orders are issued under
G.O.Ms.No.11, dated 04.01.1989 granting permission to the private colleges to
fill up the posts of the Junior Assistants from the posts of Record Clerk, Library
Attenders, Laboratory Assistants, the appellants are denying approval for such
appointment. It is totally against the policy of the Government.
5.In light of the above observations, this writ appeal is dismissed.
The appellants are directed to comply with the order passed by the writ Court
within a period of eight weeks from the date of receipt of a copy of this order.
It is made clear that if any such writ petitions are filed by any individuals, then
this Court will not hesitate to take serious action against the erring officials.
No costs. Consequently, connected miscellaneous petition is closed.
[J.N.B., J.] [S.S.Y., J.]
21.03.2025
Index : Yes / No
Internet : Yes/No
ta
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
ta
21.03.2025
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