Madras High Court
G. Venkatesan vs The Director/Commissioner Of ... on 30 March, 2012
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30-03-2012
Coram
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
W.P. No. 19532 of 2010
and
M.P. No. 1 of 2010
M.P. Nos. 1 and 2 of 2011
G. Venkatesan .. Petitioner
Versus
1. The Director/Commissioner of Technical
Education
Directorate of Technical Education (DOTE)
Chennai 25
2. P.T. Lee Chengalvaraya Naicker Polytechnic
College
rep. By its Principal
No.2 & 3, E.V.K. Sampath Salai
Vepery, Chennai 600 007
3. Mr. L. Ramajeyam
The Principal
P.T. Lee Chengalvaraya Naicker Polytechnic
College
No.2 & 3, E.V.K. Sampath Salai
Vepery, Chennai 600 007
4. Mr. Manivel
A-3 Clerk
P.T. Lee Chengalvaraya Naicker Polytechnic
College
No.2 & 3, E.V.K. Sampath Salai
Vepery, Chennai 600 007 .. Respondents
Petition filed under Article 226 of The Constitution of India praying for a Writ of Mandamus directing the respondents 1 to 3 to complete the process/ approval for promotion of the petitioner to the post of Vocational Instructor in the 2nd respondent college based on the selection made by the selection committee, pursuant to the interview conducted on 09.06.2008 and in accordance with the eligibility criteria prescribed in G.O. (Ms) No.421, Higher Education (D1) Department dated 08.07.2004, which was in force during the interview and selection.
Prayer sought for in the writ petition was amended as per the Order dated 02.12.2012 made in MP No. 1 of 2011 in WP No. 19532 of 2010 as follows:-
Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records of the said impugned order vide Lr.No.21159/C2/2008 dated 02.07.2010 passed by the first respondent and quash the same with a consequential direction directing the respondents 1 and 2 to promote the petitioner to the post of Vocational Instructor in the 2nd respondent college based on the selection made by the selection committee, pursuant to the interview conducted on 09.06.2008 and in accordance with the eligibility criteria prescribed in G.O. (Ms) No.421, Higher Education (D1) Department dated 06.07.2004, which was in force during the interview and selection.
For Petitioner : Mr. J. Chandran
For Respondent : Mr. K.V. Dhanapalan
Additional Government Pleader for R1
Mr. M. Udayakumar for R2
Mr. M. Devendran for R3
Mr. R. Vijayakumar for R4
ORDER
The petitioner was appointed as a Lab Assistant on 30.06.1995 in the second respondent polytechnic college and presently he is working as selection grade Lab Assistant. According to the petitioner, he possess more academic and technical experience as well as qualification than the other 5 persons who have been appointed in the second respondent college and he is eligible to be promoted to the post of Workshop Instructor. In fact, the petitioner attended an interview on 09.06.2008 for promotion to the post of Workshop Instructor, but he was not selected inspite of fulfilling the eligibility criteria prescribed in G.O. Ms. No.421, Higher Education (D1) Department dated 06.07.2004.
2. According to the petitioner, he possess the qualifications prescribed in the above said G.O. Ms. No.421, Higher Education Department dated 06.07.2004 and that is the reason why he was called for interview for promotion to the post of Workshop Instructor and in the interview, three persons were selected by the committee headed by the retired Judge of this Court, which was constituted as per the order passed by the Division Bench of this Court. After selection was made it was sent to the first respondent for approval. Even though the other two persons name were approved, the petitioner's name alone was kept pending without approval or without any order of rejection. Inspite of reminder sent by the petitioner nothing was heard from the first respondent. The petitioner also sent a representation dated 18.03.2010 to the Special Cell of the Honourable Chief Minister but his claim was not considered. Though the petitioner possess the requisite qualification, approval was kept pending and therefore he filed the present writ petition for a Mandamus.
3. According to the petitioner, during the pendency of the writ petition, an order dated 02.07.2010 was passed by the first respondent rejecting his request based on the amendmnt made to the Service Rules. Therefore, the petitioner amended the prayer in the writ petition by challenging the order of rejection dated 02.07.2010 of the first respondent. According to the petitioner, the amendment made to the Service Rules on 06.07.2009 regarding the experience and qualification has nothing to do with his promotion to the post of Workshop Instructor. The selection process was initiated in the year 2008 and at that time, the Service Rules were not amended and therefore, the amendment made to the Service Rules subsequent to the completion of the selection process cannot be put against him to deprive his promotional prospects.
4. The first respondent has not filed counter affidavit. The learned Additional Government Pleader appearing for the first respondent would contend that in the impugned order, it was clearly stated that at the time of approval of the petitioner's claim for promotion, the Service Rules were amended and it was taken into consideration. Even otherwise, the experience possessed by the petitioner was also taken into consideration and inasmuch as the petitioner did not possess sufficient qualification and he is lacking in very many aspects, the impugned order was rightly passed by the first respondent.
5. The second respondent college filed a counter affidavit contending that the petitioner was recommended by the second respondent to the selection committee inasmuch as he is in possession of the requisite qualification. The selection was done by a committee constituted pursuant to the orders passed by this Honourable Court and therefore, the second respondent is not responsible in any manner for the denial of promotion to the petitioner. The second respondent has not involved in the selection process and the approval for promotion has to be given only by the first respondent on the basis of the recommendations made by the committee. Therefore, the second respondent prayed for dismissal of the writ petition.
6. The learned counsel appearing for the third respondent would contend that the third respondent has no role to play in the matter of non-selection or otherwise of the petitioner by the first respondent. As a principal of the second respondent college, the third respondent has only forwarded the service particulars relating to the eligible candidates, including the petitioner to the committee for consideration and therefore he prays for dismissal of the writ petition.
7. I heard the counsel on both sides and perused the materials on record. By their consent, the writ petition itself is taken up for final disposal.
8. For the purpose of selection and promotion to the post of Workshop Operator in the second respondent college, eligible candidates were called for an interview on 09.06.2008 in which the petitioner and others participated. For promotion to the post of Workshop Instructor, the eligibility criteria have been spelt out in G.O. Ms. No.421, Higher Education (D1) Department dated 06.07.2004 and they are as follows:-
"1. A Diploma in Mechanical or Electrical and Electronics Engineering or Electrical Engineering; or
ii)a) An industrial Training Institute Certificate/National Trade Certificate/ National Apprenticeship Training Certificate in Mechanical/Electrical Subjects
b) 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.
9. Therefore, at the time when the petitioner attended the interview, the eligibility criteria prescribed in G.O. Ms. No.421 dated 06.07.2004 has to be taken into consideration. According to the petitioner, he possessed the below mentioned qualification, as could be culled out from para No.2 of the affidavit filed in support of the writ petition:-
2. I submit that I am a holder of the Certificate of I.T.I. In Electrical Trade having passed in 1980; National Trade Certificate (NT) and National Apprentice Certificate (NAC) having been completed in 1981 with 63% marks. I am also having additional technical qualification in Electrical Supervisor's Competency, which is an Utilization Certificate course under the State Board of Technical Education & Training and Electrical Machinery Winding in Advanced Vocational Training System. I am also having practical experience as a Company Apprentice in Simpson & Co., Limited from 01.09.1980 to 10.09.1981 and in Best & Crompton Engineering Limited, worked as an apprentice during the period from 14.02.1982 to 13.05.1985 and permanent operator during the period 14.05.1985 to 07.04.1994 in Foundry Division of the said Company."
10. Therefore, it is evident that the petitioner fulfil the eligibility criteria prescribed in G.O. Ms.No.421 dated 06.07.2004 and comes within the parameters required for consideration for promotion to the post of Workshop Operator and that is why, the petitioner's claim for promotion was recommended to the committee consisting of a retired Judge of this Court.
11. It is seen from the records that apart from the petitioner, two others have been selected and their names have been approved by the committee, but only the petitioner's name was kept pending without approval. The petitioner also sent representations but they were not considered. In the meanwhile, on 06.07.2009, the Special Rules namely Tamil Nadu Technical Education Subordinate Service were amended and it came into effect, in which, for the post of Workshop Inspector, the following eligibility criteria have been made "6. Workshop Instructor Promotion, Direct i. A Diploma in Mechanical or Electrical Recruitment and and Electronics Engineering or Electrical Recruitment by transfer Engineering; or ii.a) An Industrial Training institute Certificate/National Trade Certificate National Apprenticeship Training Certificate in Mechanical/Electrical subjects
b) 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 that appointment shall be made to the post from among the holders of
i) Diploma qualification and
ii) Non-diploma qualification mentioned in the ratio 1:4 subject to the availability of adequate number of Diploma holders."
12. Admittedly, after the coming into force of the amendment to the Service Rules, the first respondent passed the impugned order on the ground that the petitioner did not possess the requisite qualification on the basis of the amendment made to the service rules. When the petitioner possess the requisite qualification and experience before the service Rules came to be amended and only on that basis the other two persons, whose claim for promotion was forwarded to the committee for consideration, were promoted, the first respondent is not justified in applying the amendment made to the Service Rules subsequent to the completion of selection process. As on the date of the selection, the petitioner possessed adequate qualification and experience and therefore, the subsequent amendment will not be a bar for rejecting the claim of the petitioner for promotion. The first respondent is therefore not justified in applying the amendment made to the service Rules which was not in force at the time of the selection process. When once the selection was made on the basis of the eligibility criteria, which existed as on the date of selection, the reasoning assigned in the impugned order that the petitioner did not possess the requisite qualification and experience as per the amended Rules cannot be countenanced.
13. The learned counsel for the petitioner relied on the decision reported in (Madan Mohan Sharma and another vs. State of Rajasthan and others) 2008 3 SCC 724 for the proposition that recruitment should be made only according to the advertised educational qualification and the changes brought during the pendency of the selection process will not affect the eligibility criteria. In this case, the Honourable Supreme Court held that when once advertisement was issued and on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of criteria which were laid down and it cannot be on the basis of the criteria which has been made subsequently.
14. As held by the Honourable Supreme Court, in the present case, at the time of interview and selection process, the Service Rules were not amended and therefore, the amendment made to the Service Rules subsequently will not be put against the petitioner to deprive him of the promotional aspects.
15. It is brought to the notice by the learned counsel for the petitioner that in the impugned order it was stated that the petitioner did not produce any evidence to show that he worked in Best & Crompton Ambattur, however, subsequent to the filing of the petitioner, the petitioner also produced testimonials relating to his experience with the said company and therefore also, the impugned orderis not sustainable.
16. Taking into consideration the above said factors especially when the impugned order of rejection was passed on the basis of the amendments brought into the Service Rules after the completion of the selection process, the impugned order of rejection dated 02.07.2010 of the first respondent is per se invalid. The petitioner's claim for getting promotion has to be examined in the light of the eligibility criteria that existed at the time of his selection and if the petitioner fulfils the eligibility criteria that exited prior to the amendment to the Service Rules, the first respondent cannot deprive the petitioner's promotional opportunity. Therefore, the impugned order of the first respondent is set aside. The matter is remanded back to the first respondent for fresh consideration. The first respondent is directed to consider the claim of the petitioner for promotion in the light of the decision of the Honourable Supreme Court mentioned supra and pass orders on merits and in accordance with law within a period of four months from the date of receipt of a copy of this order.
17. Accordingly, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
rsh To The Director/Commissioner of Technical Education Directorate of Technical Education (DOTE) Chennai 25