Madras High Court
State Of Tamil Nadu vs K.Santhi on 13 July, 2022
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
W.A.No.2820 of 2018 batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 13.04.2022
ORDERS PRONOUNCED ON : 13.07.2022
CORAM:
THE HON’BLE MR.JUSTICE S.VAIDYANATHAN
and
THE HON'BLE MRS. JUSTICE N.MALA
W.A.Nos.2820, 1234, 2077, 2696, 2697, 2831, 2832. 2836, 2867, 2868, 2885
of 2018, W.A.No.894 of 2015, W.A.No.1293 of 2019, W.A.No.886 of 2022,
W.P.No.1930 of 2018, W.P.Nos.24682, 24669, 24641, 24654, 24708, 24677
of 2019, W.P.No.25941 of 2009
and
WMP.Nos.2418 of 2018, 24348, 24375, 23298, 24311, 24329, 24342 of
2019 and CMP.Nos.4071, 4074, 9561, 9563, 9566, 9568, 9569 of 2021,
8802 of 2019, 22027, 22033, 23456, 23513, 23530, 23560, 23797, 23801,
23880 of 2018 and 5936 of 2022
W.A.No.2820 of 2018
1.State of Tamil Nadu,
Rep. by the Secretary to Government,
Higher Education Department,
Secretariat,
Chennai – 9.
2.The Director of Technical Education,
Directorate of Technical Education,
Guindy,
Chennai – 25.
3.The Additional Director of Technical Education,
Directorate of Technical Education,
Guindy, Chennai – 25. … Appellants
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W.A.No.2820 of 2018 batch
vs.
1.K.Santhi
2.Nachimuthu Polytechnic College,
Pollachi,
Rep. By the Principal. … Respondents
Prayer: Writ appeal is filed to set aside the order dated 12.10.2011 made in
W.P.No.22897 of 2011 and allow the above Writ Appeal.
For Appellants : Mr.Ramanlal, AAG IV
in all Appeals Assisted by Nanmaran, AGP
For Respondents in : Mr.Doraisami, Senior Counsel,
W.A.Nos.2820, 2831, 2832, for Mr.Muthumani Doraisami
2836 and 2868 of 2018
For R1 to R4 in : Ms.S.Sujatha
W.A.No. 894 of 2015
For Respondents in : Mr.Singaravelan, Senior Counsel,
W.A.Nos.1234, 2696 and for G.Elanchezhian
2697 of 2018, 1293 of 2019
& 886 of 2022
For Respondents in : Mr.G.Arul Murugan
W.A.No.2077 of 2018
For Petitioners in : Mr.Singaravelan, Senior Counsel,
W.P.Nos.25941 of 2009, for G.Elanchezhian
24682, 24669, 24641, 24654,
24708, 24677 of 2019
For Petitioners in
W.P.No.1930 of 2018 : Mr.G.Arul Murugan
For Respondents : Mr.Ramanlal, AAG IV
in all W.P.Nos. Assisted by Nanmaran, AGP
*****
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W.A.No.2820 of 2018 batch
COMMON JUDGMENT
[Order of the Court was made by N.MALA, J.] Though the Hon'ble Supreme Court is seized of similar matter, both the counsels represented that the case before the Hon'ble Supreme Court has no bearing on individual grievance espoused herein. Therefore, the counsels submitted that this Bench should hear and decide the matter. On the request of both the counsels the matters are taken up for hearing and disposal.
2.As common issues are raised in these batch of writ appeals and writ petitions the same are taken up together and disposed by this common order.
3.As the batch of cases comprise both appeals filed by the Government and writ petitions filed by the private parties we propose to refer to the Government as the appellant and the writ petitioners as respondents.
4.W.A.No.894 of 2015 is filed to set aside the order dated 09.10.2013 made in W.P.No.28105 of 2013. The said W.P.No.28105 of 2013 3/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch was filed for a Writ of Certiorarified Mandamus, directing the first respondent to promote the petitioner to the post of Instructor with effect from the date of promotion given to other similarly situated candidates as per G.O.Ms.No.95, Higher Education (C1) Department, dated 26.03.2008 passed in pursuance of the order of the Division Bench W.A.Nos.207/2002, 208/2002, 258/2002, 259/2002 and 1039/2006 dated 01.08.2007 and G.O.(Ms.).No.121, Higher Education (C1) Department dated 01.04.2011 passed in pursuance of the order of the Court in W.P.No.9905 of 2001 dated 10.07.2009 with all monetary and service benefits and or create avenue for promotion to the post of lecturer by fixing necessary ratio.
5.The petitioners in writ petition were all appointed as Lab Assistant/Skilled Assistant and later they were promoted to the post of Workshop Instructor. The first writ petitioner was further promoted to the post of Junior Draughting Officer.
6.W.A.No. 886 of 2022 is filed to set aside the order dated 05.03.2021 made in W.P.No.15046 of 2018.
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7.The case of the writ petitioner is that he was appointed as Workshop Instructor on 26.09.1997 and he was entitled for promotion to the post of Instructor, he was denied promotion but his juniors were promoted. Ergo, he was constrained to file a Writ petition in W.P.No.15046 of 2018 for a Writ of Mandamus, directing the respondent Nos.1 and 2/Government to promote the petitioner as Instructor on par with junior namely, Mr.K.Chandrasekaran with all benefits as was given to the petitioner's juniors in G.O.(Ms.).No.168, Higher Education (C2) Department, dated 26.09.2014.
8.W.A.No.1234 of 2018 is filed to setaside the order dated 22.03.2017 made in W.P.No.25216 of 2011. The above said W.P.No.25216 of 2011 is filed for Writ of Certiorarified Mandamus filed by the writ petitioner to call for the records connected in Memo No.41287/P4/2004, dated 27.01.2005 of the second respondent and in Lr.No.22336/C2/2008-1, dated 23.09.2008 of the third respondent and in Letter No.31766/P2/2008-1 dated 14.07.2009 of the second respondent quash the same in so far as the petitioner is concerned and direct the respondents to promote the petitioner either as Instructor or as Lecturer based on the Tribunal orders dated 23.04.1993 in O.A.No.2044 to 2050 and 2244 of 1993 and High Court order 5/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch dated 19.02.2010 in W.P.No.6321 of 2006.
9.According to the petitioner she was appointed as Workshop Assistant on 28.07.1980. Thereafter she obtained the B.E. Degree in the year 2000 and M.E. Degree in the year 2009. She was promoted as Workshop Instructor on 20.05.2003, she was further promoted as Electrical Foreman on 14.10.2009 and she has been continuously working since then without any promotional opportunity.
10.W.A.No.2077 of 2020 is filed to set aside the order dated 08.11.2010 made in W.P.No.23827 of 2010. The said W.P.No.23827 of 2010 is filed for a Writ of Mandamus, directing the first respondent not to give effect to the order passed by him in G.O.Ms.No.1081 dated 19.08.1989 till the promotion of the petitioner and consequently direct the respondents to promote the petitioner to the post of Instructor with effect from the date of promotion given to the candidates as per G.O.Ms.No.95, Higher Education (C1) Department, dated 26.03.2008 following the order of the Division Bench in W.A.Nos.207 of 2002, 208 of 2002, 258 of 2002, 259 of 2002 and 1039 of 2006 dated 01.08.2007 and with all monetary and service benefits.
11.The petitioner was selected for appointment to the post of Workshop Instructor and joined in the service on 19.07.1987. He was a 6/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch qualified Diploma holder in Mechanical Engineering and had put in more than 20 years of unblemished service, without any promotional opportunity.
12.In W.A.No.1293 of 2019 was filed to set aside order dated 21.11.2007 made in W.P.No.34234 of 2012. The writ petition was filed for Writ of Certiorarified Mandamus, to call for the records connected in Letter No.31766/P2/2008-1, dated 14.07.2009 of the first respondent and quash the same in so far as the petitioners are concerned and direct the respondents to promote the petitioner as Instructor as per Rules with benefits.
13.The petitioner in W.P.No.34324 of 2012 was appointed as Skilled Assistant on 09.10.1980 with the I.T.I. qualification at Government Polytechnic College, Krishnagiri. He passed Diploma in Mechanical Engineering in April 1988, and thereafter promoted as Workshop Instructor on 09.10.2003. He had put in 32 years of unblemished service but without any promotional opportunity.
14.W.A.Nos.2696 & 2697 of 2018 were filed to set aside the order dated 17.08.2017 made in W.P.Nos.15965 of 2011 and 33539 of 2012. 7/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch
15.The W.P.No.15965 of 2011 was filed for Writ of Certiorarified Mandamus to call for the records connected in Memo No.16450/P2/2005, dated 15.07.2005 of the third respondent in letter No.22336/C2/2008-1, dated 23.09.2008 of the second respondent and in letter No.31766/P2/2008-1, dated 14.07.2009 of the third respondent and quash the same in so far as the petitioner is concerned and direct the respondents to promote the petitioner either as instructor or as Lecturer based on the Tribunal orders dated 23.04.1993 in O.A.No.2044 to 2050 and 2244 of 1993 and this court orders dated 19.02.2010 in W.P.No.6321 of 2006.
16.The petitioner in W.P.No.15965 was appointed as Artisan on 15.06.1984. Thereafter, he passed Diploma in Engineering in April 1989 and also passed B.E. Degree in the year 1997 and he was promoted as Workshop Instructor on 22.10.2009. Thereafter, he continued in the same post till the date of superannuation on 30.06.2015.
17.W.P.No.33539 of 2012 is filed to call for the records connected in Memo No.10045/P2/2012, dated 26.09.2012 of the third respondent and quash the same and direct the respondents to promote the 8/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch petitioner as Instructor as per the Rules with all benefits as given to others based on this Court orders.
18.The petitioner in W.P.No.33539 of 2012 was appointed as Lab Assistant on 26.12.1990, thereafter he passed in Diploma in Engineering in 1997 then he passed B.E., in 2005. Thereafter, he was granted promotion as Workshop Instructor on 15.02.2010. Then he passed M.E., in the year 2011 and was continuing in the service.
19.W.A.Nos.2820, 2831, 2832, 2836, 2867, 2868, 2885 of 2018 were filed to set aside the common order dated 12.10.2011 made in W.P.No.22892 to 22898 of 2011 and allow the above writ appeal. The above said writ petitions were filed for a Writ of Mandamus directing the first respondent not to give effect to the order passed by him in G.O.Ms.No.1081 dated 19.08.1989 till the promotion of the petitioner and consequently direct the respondents to promote the petitioner to the post of Instructor with effect from the date of promotion given to the candidates as per G.O.Ms.No.955 Higher Education (C1) Department dated 26.03.2008 following the order of the Hon'ble Division Bench in W.A.Nos.207/2002, 208/2002, 258/2002, 9/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch 259/2002 and 1039 of 2006 dated 01.08.2007 and G.O.(Ms).No.121 Higher Education (C1) Department dated 01.04.2011 following the order of this Hon'ble High Court in W.P.No.9905/01 dated 10.07.2009 and with all monetary and service benefits.
20.W.P.Nos.24641, 24654, 24669, 24708, 24677 and 24682 of 2019 were filed to call for the records connected in No.O.Mu.63137/B2/2016, Letter No.O.Mu.63032/B2/2016, Letter No.O.Mu.57991/B2/2016, Letter No.O.Mu.63031/B2/2016 dated 10.01.2017 respectively, Memo No.Mu.Mu.1292/A3/2016 dated 02.02.2017, Letter No.O.Mu.58729/B2/2016, dated 28.10.2016 passed by the second respondent and quash the same in so far as the petitioners are concerned and direct the respondents to promote the petitioner as Instructor as was given to similarly placed persons based on the orders of the Government issued in Lr.(Ms).No.960, Education, Science and Technology Department, dated 20.12.1995 issued in pursuance to the orders of the Hon'ble Tamil Nadu Administrative Tribunal in O.A.Nos.2044 to 2050 & 2244 of 1993 dated 23.04.1993 and also based on the Government order issued in G.O.Ms.No.20, Higher Education (C1) Department, dated 01.02.2016 which 10/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch was passed in pursuance to the order of the Hon'ble High Court dated 29.05.2013 in W.P.No.14823/2013, W.A.No.807/2015 dated 19.06.2015 and SLP(C) No.23252/2015, dated 28.09.2015 and pay all service and monetary benefit.
21.The petitioner in W.P.No.24641 of 2019 was initially appointed as Lab Assistant in Government Polytechnic College, Nagercoil on 06.04.1984 and he joined duty on 07.04.1984 with an ITI qualification. He was thereafter promoted as Workshop Instructor on 12.07.2007 and was posted to Government Polytechnic College, Aranthangi, Pudukkottai District and there he was working continuously.
22.The petitioner in W.P.No.24654 of 2019 was initially appointed as Skilled Assistant on 21.05.1984 and he joined duty on 12.06.1984. He passed Diploma in Mechanical Engineering in the year 1996 and thereafter he was promoted as Workshop Instructor on 19.07.2007, after obtaining Degree in B.E. (Mechanical Engineering) during November 2006 and was posted to Government Polytechnic College, Ambalakaran Patti, Melur, Madurai District. The petitioner has been continuously working in 11/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch the said post.
23.The petitioner in W.P.No.24669 of 2019 was initially appointed as Lab Assistant on compassionate grounds and posted to Bharathiyar Centinary Memorial Government Polytechnic College for Women, Ettayapuram on 13.02.1999 and he joined duty on 26.02.1999. He passed B.E., (Mechanical Engineering) in November 2006 and was promoted as Workshop Instructor on 25.08.2010 and thereafter he passed M.E. Degree (I class) in June 2013 and since he has been working continuously without any remarks.
24.The petitioner in W.P.No.24708 of 2019 was initially appointed as Skilled Assistant on compassionate ground on 24.01.2000 and posted to Thanthai Periyar E.V.R. Government Polytechnic, Vellore and he joined duty on 07.02.2000. The petitioner thereafter passed B.Tech., (Electrical and Electronics Engineering) in November 2006 and thereafter he was promoted as Workshop Instructor on 26.08.2010 and posted to Thanthai Periyar E.V.R. Government Polytechnic, Vellore. Thereafter he passed M.E., Degree in November 2013 and since he has been continuously working 12/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch without any remarks.
25.The petitioner in W.P.No.24677 of 2019 was initially appointed as Lab Assistant on 20.03.2001 and posted to Government Polytechnic, Krishnagiri and he joined duty on 04.04.2001 and thereafter he passed B.E., (Mechanical Engineering) Degree in April 2010. He was promoted as Workshop Instructor on 26.08.2010 and was posted to Central Polytechnic College, Chennai and since he has been continuously working without any remarks.
26.The petitioner in W.P.No.24682 of 2019 was initially appointed as Skilled Assistant on 15.10.1992 and she joined duty on 19.10.1992. She passed Diploma in Civil Engineering in October 2001 and thereafter passed B.E., (Civil Engineering) in April 2009 and was promoted as Junior Draughting Officer on 06.06.2011 and was posted to the Tamil Nadu Polytechnic College, Madurai. Thereafter she passed M.E., Degree in June 2015 and since he has been working continuously without any remarks.
27.The petitioner in W.P.No.25941 of 2009 is filed for the Writ 13/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch of Certiorarified Mandamus, to call for the records connected with the Government Order in G.O.(MS).No.149, Higher Education (C2) Department, dated 27.05.2009 passed by the second respondent and quash the same in respect of cancellation of 178 posts of Instructor in para No.7 of the said Government order in so far as the petitioners are concerned and direct the respondents to follow the Special Rules and to consider the case of the petitioners with regard to their promotion to the post of Instructor with all benefits.
28.The first petitioner in the said writ petition was appointed as Instrument Mechanic on 08.06.1981 at Government Polytechnic College, Krishnagiri. He obtained Diploma in Electronics & Communication Engineer in the year 1990 and thereafter promoted as Workshop Instructor in the year 2003 and he had rendered more than 28 years of unblemished service without any promotional opportunity.
29.The second petitioner was initially appointed as Workshop Assistant on 26.07.1978 in Government Polytechnic College, Coimbatore, he passed Diploma in Mechanical Engineering in the year 1990 and he was 14/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch promoted as Workshop Instructor in the year 2005 and he had rendered more than 31 years of unblemished service without any promotional opportunity.
30.The third petitioner was appointed as Skilled Assistant on 24.11.1975 at Tamil Nadu Government Polytechnic College, Madurai. He passed Diploma in Mechanical Engineering in the year 1981 and thereafter was promoted as Workshop Engineer in the year 2005. He had rendered more than 34 years of unblemished service without any promotional opportunity.
31.The fourth petitioner was initially appointed as Skilled Assistant on 05.04.1984 at B.C.M.W. Government Polytechnic College, Ettayapuram. He obtained Diploma in Mechanical Engineering in the year 1985 and thereafter he was promoted as Workshop Instructor in the year 2007. He had rendered more than 25 years of unblemished service, without any promotional opportunity.
32.The fifth petitioner was initially appointed as 06.12.1982 at Government Polytechnic College, Thoothukudi and he passed Diploma in 15/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch Electronics in the year 1982 and thereafter he was promoted as Workshop Instructor in the year 2005 and he had rendered more than 27 years of unblemished service, without any promotional opportunity.
33.The sixth petitioner was appointed as Skilled Assistant on 24.06.1978 at Government Polytechnic College, Aranthangi. He passed Diploma in Mechanical Engineering in the year 1983 and thereafter he was promoted as Workshop Instructor in the year 2001 and Junior Draughting Officer in the year 2009. He had rendered more than 31 years of unblemished service, without any promotional opportunity.
34.The seventh petitioner was initially appointed as Lab Assistant on 22.08.1984 at Government Polytechnic College, Tuticorin. He passed Diploma in Electrical and Electronics Engineering in the year 1990 and thereafter he was promoted as Workshop Instructor in the year 1990. He had rendered more than 25 years of unblemished service, without any promotional opportunity.
35.The eighth petitioner was initially appointed as Skilled 16/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch Assistant on 10.12.1984 at Central Polytechnic College, Tharamani, Chennai. He passed Diploma in Electronics and Communication Engineering in the year 1992 and thereafter he was promoted as Workshop Instructor in the year 2009. He had rendered more than 24 years of unblemished service, without any promotional opportunity.
36.W.P.No.1930 of 2018 is filed for the Writ of Certiorarified Mandamus, to call for the records pertaining to the proceedings of the first respondent in Letter (D) No.299 dated 23.09.2017 and quash the same as illegal, incompetent and ultravires and to direct the first respondent to promote the petitioners to the post of Instructor or to the post of Lecturer with effect from the date promotion given to other similarly situated candidates as per G.O.Ms.No.95, Higher Education (C1) Department dated 26.03.2008 passed in pursuance of the order of the Honourable Division Bench in W.A.No.1323 of 2011 dated 02.11.2013 and G.O.(Ms.) No.121, Higher Education (C1) Department dated 01.04.2011 passed in pursuance of the order of this Hon'ble High Court in W.P.No.9905 of 2001 dated 10.07.2009 and W.A.No.807 of 2015 dated 19.06.2015 and also G.O.(Ms.) No.20, Higher Education Department dated 01.02.2016 with all monetary 17/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch and service benefits.
37.All the petitioners joined P.t.Lee C.N.Polytechnic College, Veppery, Chennai and as on date the petitioners are working as Workshop Instructor, Junior Drafting Officer, Sel.Gr.Lab.Assistant, Sel.Gr.Lab.Assistant and Sel.Gr.Skilled Assistant and they all put in unblemished service between 17 and 25 years, without any promotional opportunity.
38.The moot question to be decided in these batch of cases is whether the respondents are entitled to be promoted as Instructors/Lecturers in terms of the orders passed by this Hon’ble Court in several litigations referred to therein and the consequent Government Orders passed thereafter.
39.We do not propose to delve in details into the facts but we would confine to certain basis facts which alone would be relevant for deciding the issue raised before us.
40.The brief background of facts necessary for the purpose of deciding these cases are as stated hereunder.
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41.The Tamil Nadu Education Subordinate Service Rules were framed Vide G.O.Ms.No.2100 (Education Department) dated 18.09.1981. Under the said Service Rules, the post of “Instructor” was not a promotion post but was to be filled by Direct Recruitment only. The Government thereafter amended the service rules notified under the above said G.O. by passing G.O.Ms.No.1364 dated 16.08.1988, whereby and whereunder the recruitment for the post of Instructor was to be made both by Promotion and by Direct Recruitment. The Government identified 7 categories of Post as Feeder posts for promotion as “Instructor”. Immediately thereafter the Government passed a G.O.as an Executive order in G.O.Ms.No.1081 dated 19.08.1989 revising the scale of pay for various posts and in such process of revision of pay scale stated that the post of Instructor would be discontinued but with a rider that those who were already holding the post of Instructor would be promoted as Associate Lecturers as and when they acquired the Degree Qualification. Thereafter some more G.O.s' were passed but again the relevant G.O.s' would be G.O.No.563 dated 31.12.2004 by which G.O., the Government decided to implement certain guidelines and Recommendations of the AICTE for Diploma level Technical Institutions. The Government 19/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch passed G.O.Ms.No.220 dated 06.07.2009 as special rules for the Tamil Nadu Technical Educational Subordinate Service. In the said Rules the recruitment to the post of Instructor in Class-II Category-II was made a promotion post from the feeder categories given therein and also by way of direct recruitment.
42.The Government vide G.O.Ms.No.111 dated 25.05.2001 revised the scales of pay and allowances etc., to the Teachers and equivalent cadres in Government and Government aided Polytechnic Colleges. In the said G.O. the entry level post for Teachers in Polytechnic was given as Lecturer and the scale of pay fixed for the said post in appendix-I was Rs.15600 – 39100 with AGP of Rs.5400/-. The Government thereafter issued G.O.Ms.No.48 dated 28.03.2013 for the purpose of reorganising of cadre strength for Teaching Post as per the AICTE norms. Under the said G.O. the Government surrendered 302 posts of Instructors. Thereafter the Government issued an amendment to the Tamil Nadu Technical Education Subordinate Rules abolishing the post of Instructor in Government Polytechnic and Special Institutions vide G.O.Ms.No.184, Higher Education (C2) Department, dated 15.10.2014. It is an undisputed fact that several litigations 20/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch were instituted in various fora and orders were passed in favour of the persons who claimed promotion to the post of Instructors. At this stage the details of the said litigations are not dealt and the same will be considered in appropriate place.
43.On these basic facts several writ petitions and writ appeals which are the subject matter of this order came to be filed. The learned Government Pleader appearing for the appellants in the writ appeals submitted that the post of Instructor was discontinued as early as in 1989 vide G.O.Ms.No.1081 dated 19.08.1989. The Government Pleader further submitted that in the subsequent G.O.'s it was made clear that the post of Instructor was abolished and the post of lecturer was made the entry level post for Government Polytechnics. The learned Government Pleader further submitted that the G.O.'s dealing with the revision of pay scales and re- organisation of cadre strength were passed in consonance with AICTE guidelines and the said G.O.’s clearly establish that the post of Instructor was abolished. Under such circumstances it was not possible to promote the respondent to a non-existent post. The learned Government Pleader further submitted that promotions were given to the persons who approached this 21/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch Hon'ble Court and obtained favourable orders only on the threat and in the teeth of Contempt proceedings. The learned Government Pleader further submitted that the state was not barred in contesting the present litigations eventhough similar matters were decided against the Government. The learned Government Pleader submitted that the service rules were amended vide G.O.Ms.No.184 dated 15.10.2014 whereunder the post of Instructor was abolished and the post of Lecturer was made the entry level post for teaching in Government Polytechnic Colleges and Special Institutions. It was finally submitted by the learned Government Pleader that considering the financial implications it was neither feasible nor prudent to comply the respondents claim.
44.Per contra, the counsels appearing on behalf of the respondents submitted that originally the post of Instructor was filled only through Direct Recruitment. But later by the amended rules vide G.O.Ms.No.1364 dated 16.08.1988, the post of Instructor was made a promotion post and seven categories of posts were identified as feeder posts for promotion to the post of Instructor. The counsels further submitted that the claim of the Government that the post of Instructor was abolished vide 22/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch G.O.Ms.No.1081 dated 19.08.1989 is untenable and the same was challenged in a series of litigations wherein this Hon'ble Court held that G.O.Ms.No.1081 dated 19.08.1989 was an Executive order and the same would not over ride the statutory rules amended vide G.O.Ms.No.1364 dated 16.08.1988 which provided for promotion to the Instructor Post by creating the feeder posts for the same.
45.The counsel submitted that the orders of the Hon'ble Court were implemented and several persons were promoted to the post of Instructors. The counsel further submitted that de hors the orders passed by this Hon'ble Court in earlier litigations, promotions to the post of Instructors were given by the Government to several persons on the basis of the re- issued service rules vide G.O.Ms.No.220 dated 06.07.2009. In So far as G.O.Ms.No.184 dated 15.10.2014 is concerned, the counsel submitted that the basis of the said G.O. was based on G.O.Ms.No.1081 which was already found to be unsustainable by this Hon'ble Court in earlier litigations. The learned counsels finally submitted that the issue is not res integra anymore by virtue of the orders passed in half a dozen Hon'ble Division Bench Judgments.
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46.We have heard the learned counsels at length and have also perused the records.
47.It is an admitted fact that the post of Instructor was originally a post to be filled by direct recruitment. It was made a promotional post by amending the service rules vide G.O.Ms.No.1364 dated 16.08.1988. The Government meanwhile issued G.O.Ms.No.1081 dated 19.08.1989 for revising the pay scales but in the process the Government also discontinued the post of Instructor. When the Government refused to promote the persons citing the said G.O.Ms.No.1081 dated 19.08.1989, they approached this Hon'ble Court and by series of Judgments and orders this Hon'ble Court allowed the writ petitions by holding that the Government could not abolish a post covered by service rules by a mere executive order. The Hon'ble Court rightly held that an executive order cannot override the statutory rules. It was under the said circumstances that the Government was constrained to issue several G.O.s' promoting the beneficiaries of the said orders and that too under the threat of Contempt proceedings.
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48.The Government has filed the present writ appeals and is contesting the writ petitions stating that the abolition of the post of Instructor was necessitated because of the policy decision of the Government to implement the AICTE guidelines, which mandated that the entry level post for teaching staffs in Government polytechnic and special institutions should be Lecturer. The Government had made it lucid vide several G.O.s' passed by it that the post of Instructor was abolished. It was a conscious policy decision taken by the Government in view of implementation of the AICTE guidelines. The Government issued G.O.M.S. 184 dated 15.10.2014 by omitting/abolishing the post of Instructor. Therefore the lacuna that existed in the earlier round of litigations was cured by the passing of the said G.O. To be more precise, the executive order earlier passed was replaced by the amended rules. Therefore the contention of the Government that by the issue of the said G.O the order of this Hon'ble Court becomes non-feasible for compliance needs to be considered. Whatever may have been the position earlier, the subsequent development in the form of issuance of G.O.M.S.No.184 dated 15.10.2014 changes the equation. The Respondents have not challenged G.O.M.S.No.184 dated 15.10.2014, therefore as per the existing Service Rule there is no post of Instructor. In the absence of the said 25/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch post, we are of the view that there cannot be a direction to the Government to consider the Respondents claim for promotion to a non-existent post.
49.It is settled legal position that no person has a vested right for promotion. No doubt a person has a right to be considered for promotion but not a vested right. The status of an employee is governed by the Service Rules only and there is no right outside the service rules. It is pertinent to refer here to Judgment of the Hon'ble Supreme Court in Roshan Lal Tandons Case 1968(1)SCC185.
50.The counsel for the respondents relied on the following Division Bench Judgment of this Hon'ble Court to drive home, the point that the issue is no longer res integra and is settled by these judgments in W.A.No.1039 of 2006, W.A.No.207 of 2022, W.A.No.807 of 2015, W.A.(MD) Nos.772 of 2010, 814 of 2011 and 23 of 2012 and W.A.No.547 of 2015.
51.We would have agreed with the counsel for the respondents, if not for G.O.Ms.No.184 dated 15.10.2014. In the earlier litigations, this 26/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch Hon'ble Court was pleased to pass orders against the Government because the Service Rules provided for promotion to the Post of Instructor and also identified the feeder posts. It was only on the basis of an executive order (G.O.Ms.No 1081 dated 19.08.1989) that the Government claimed to have abolished the post of Instructor. But now the Government has amended the Service Rules vide G.O.Ms.No.184 dated 15.10.2014 exercising its power under Article 309 of the Constitution.
52.In this context we would like to point out that even if the respondents prayer is allowed, then it is only the Service Rules in force now that would apply and not the Old Rules. It is settled law that abolishing a Post under the Service Rules is the Prerogative of the Government. The policy decision of the Government would not be interfered with, unless it is found to be arbitrary and perverse. We deem it appropriate to refer to the latest Judgment of the Hon’ble Supreme Court in the case of State of Himachal Pradesh and Other Vs. Raj Kumar and others reported in 2022 SCC Online SC 680.
53.The Hon’ble Supreme Court at paragraph No.70 of the 27/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch Judgment on an analysis of more than 15 Judgments formulated the following propositions.
“1.There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah's case must be understood in the context of the rules involved therein.
2.It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the “rule in force” as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.
3.The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view 28/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14.
4.The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.
5.When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases.”
54.We shall now examine here the reasons of the Government for abolishing the post of “Instructor”. It is seen that as a consequence of implementing the AICTE guidelines which mandated that entry level post for 29/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch teaching in Government and Government aided Polytechnics would be lecturer, the post of “Instructor” had to be abolished and the Government also surrendered 307 posts. Moreover the restructuring and reorganizing of the cadre structure necessitated the abolition of the said Post. We are therefore of the considered view that the Government was justified in abolishing the post.
55.The learned counsel for the respondent relied on the following Judgments to contend that when certain persons are granted relief by Court of Law, the Government cannot deny the same to similarly placed persons.
“1.Maharaj Krishan Bhatt and Another Vs. State of Jammu and Kashmir and Other reported in 2008 (9) SCC 24; and
2.M.P.Singh Bargoti Vs. State of Madhya Pradesh and another reported in AIR 2015 SC556.”
56.There is no quarrel on the legal proposition but we find that under the facts of the present cases, the said Judgments are not applicable. As 30/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch discussed above the scenario in the present case has changed due to the passing of the Amended Rules.
57.We may in this context refer to the Judgment of the Hon'ble Supreme Court in the case of Col. B.J. Akkara (Retd.) Vs. Government of India and Others reported in (2006) 11 SCC 709. The Hon'ble Supreme Court while considering the issue whether the Government of India having accepted and implemented the decision of the Delhi High Court on similar issue was required to extend similar benefit to the Defense Service Medical Officers held as follows:
“26.The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non- comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realized, the State is not prevented or barred from challenging the subsequent decisions or 31/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a 'pick and choose' method only to exclude petitioners on account of malafides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The Administrative Law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29.10.1999 (corresponding to the Defence Ministry circular dated 11.9.2001) has been upheld and that decision has attained finality will not come in the way of State defending or enforcing its circular dated 11.9.2001.”
58.The counsel for the respondent submitted that by abolishing the post of Instructor the Government had shut the only avenue for promotion to them. We are unable to accept the respondents submission. As already stated nobody has a vested right to promotion, but only a right to be considered for promotion.
32/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch
59.The learned counsel relied on the following Judgments for the proposition that the employer has a duty to create promotional avenue for his employees. AIR 1980 SC 444, 1989(4) SCC 635, 1990 Supp SCC 688, 2004 (9) SCC 65.
60.We are again of the view that the said Judgments are not applicable for the all reasons discussed supra. It is also relevant to note that in most of the cases the respondents availed atleast one promotion.
61.In so far as the prayer of some of the respondents that they should be considered for the Post of lectures is concerned, we are of the view that the entry level post of lectures is not a Promotion Post and therefore the respondents claim cannot be accepted.
62.In the light of the above discussion, we are not inclined to accept the submission of the respondents. We are of the view that the respondents claim cannot be countenanced for the reason that the post of Instructors is now abolished and the post of the Lecturer is made an entry level post and due to the abolition of the said post it may not be possible to 33/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch fix the pay scale for the post of Instructor. We are therefore of the view that no purpose would be served if the respondents claim is allowed. On the contrary it may lead to confusion in extending the benefits.
63.In view of the declaration of law by the Honble Supreme Court in the above referred Judgment we allow the writ appeals and dismiss the writ petition. In the circumstances of the case, there shall be no order as to costs. Consequently, the connected Miscellaneous Petitions stands closed.
[S.V.N.,J.] [N.M.,J.]
13.07.2022
Index: Yes/No
Internet: Yes/No
ah
To
1.The Secretary to Government,
Higher Education Department,
Secretariat,
Chennai – 9.
2.The Director of Technical Education,
Directorate of Technical Education,
Guindy,
Chennai – 25.
3.The Additional Director of Technical Education, Directorate of Technical Education, Guindy, Chennai – 25.
34/35 https://www.mhc.tn.gov.in/judis W.A.No.2820 of 2018 batch S.VAIDYANATHAN, J.
& N.MALA, J.
ah PRE DELIVERY JUDGMENT IN W.A.Nos.2820, 1234, 2077, 2696, 2697, 2831, 2832. 2836, 2867, 2868, 2885 of 2018, W.A.No.894 of 2015, W.A.No.1293 of 2019, W.A.No.886 of 2022, W.P.No.1930 of 2018, W.P.Nos.24682, 24669, 24641, 24654, 24708, 24677 of 2019, W.P.No.25941 of 2009 13.07.2022 35/35 https://www.mhc.tn.gov.in/judis