Madras High Court
K.Ravi vs K.Kandasamy on 4 November, 2006
Bench: P.K.Misra, G.Rajasuria
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 04/11/2006 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE G.RAJASURIA W.A.No.206 of 2006, W.A.Nos.383 of 2006 and M.P.Nos.1,1,2 & 2 of 2006 1.K.Ravi 2.H.Sukumar 3.R.Rengasamy ... Appellants in W.A.No.206 of 2006 Vs. 1.K.Kandasamy 2.The Secretary to Government Labour and Employment Department Fort St.George, Chennai-9. 3.The Joint Director of Employment & Training Craftsman Training Scheme Chepauk, Chennai-5. 4.The Deputy Director/Principal Govt.Industrial Training Institute Madurai-7. ... Respondents in W.A.No.206 of 2006 and 1.The Secretary to Government Labour and Employment Department Fort St.George, Chennai-9. 2.The Joint Director of Employment & Training Craftsman Training Scheme Chepauk, Chennai-5. 3.The Deputy Director/Principal Govt.Industrial Training Institute Madurai-7. ... Appellants in W.A.No.383 of 2006 Vs. K.Kandasamy ... Respondent in W.A.No.383 of 2006. Appeal is filed under Clause 15 of the Letters Patent, against the Order dated 10.03.2006 passed by the learned Single Judge made in W.P.No.683 of 2005 on the file of this Court. Prayer in both the W.A.No.206 of 2006 !For Appellants ... Mr.V.Sudhakar ^For Appellants ... Mr.R.Janakiramulu Spl.Govt. Pleader. For Respondent-I ... Mr.S.Visvalingam (in both appeal) For Respondents ... Mr.R.Janakiramulu (2to4 in W.A. No Spl.Govt. Pleader. 206 of 2006) :JUDGMENT
(Judgment of the Court was delivered by G.RAJA SURIA,J) Heard the learned counsel appearing for the parties.
2.W.A.No.206 of 2006 is directed against the order of the learned single Judge dated 10.3.2006 in W.P.No.683 of 2005.
3. The facts giving rise to the filing of the writ petition as stood exposited from the affidavit of the petitioner therein could be portrayed inter alia thus:
Kandasamy, the writ petitioner is an Assistant Training Officer in Government I.T.I., Madurai. The second respondent therein by virtue of the letter No. D.O.TP 1/30565/04 dated 19.5.2004 called for the list of qualified persons for preparing the panel relating to the year 2004-2005 for the post of Training Officer. In the Assistant Training Officers' category, there are three classes of persons as under:
(i) Diploma holder.
(ii) National Trade Certificate holders with S.S.L.C. Pass.
(iii)National Trade Certificate holders with E.S.L.C. Pass.
Promotions are given for them in the ratio 1:1:1. Under the Diploma category referred to above, Junior Training Officers whose services were regularised during the period between 1.5.1984 and 31.12.1986 are included. The writ petitioner/K.Kandasamy is one in the category fulfilling all the norms prescribed.
4.As per the letter dated 19.5.2004 cited supra, the crucial date for consideration was 1.8.2004. Even though the petitioner was fully qualified to be included in the panel for promotion to the post of Training Officer, yet the third respondent therein viz., The Deputy Director/Principal, Government I.T.I., Madurai, wrongly relying on the illegal guidelines as contained in the impugned letter No.1535/A1/86-13, dated 5.10.1987, did not include the name of the petitioner in the panel. Without adhering to the seniority of the writ petitioner, the panel was prepared and it was against natural justice and more specifically G.O.Ms.No.208 dated 11.6.1984 which mandates all qualified candidates should be included in the panel for promotion. Anterior to the impugned guidelines dated 5.10.1987 promotions were made to the post of Training Officer strictly based on the combined seniority. The impugned letter dated 5.10.1987 envisages that the seniority should be reckoned only from the date of acquisition of polytechnic diploma by the certificate holder.
5. The petitioner acquired diploma in the year 1996. But his seniority was not reckoned from the date of his joining service. Over and above the grounds set out supra by the writ petitioner, he has also detailed and delineated, expressed and exposited, put forth and projected the following grounds:-
(i) The action taken by the first respondent is against the basic principle of seniority as protected under Articles 14 and 16 of the Constitution of India.
(ii) Classifying the Diploma Holders as "regular" and "part time" is not a reasonable classification as per G.o.Ms.No.208 DATED 11.6.1984. The first respondent wrongly discarded the seniority of the petitioner who comes under the first category of Diploma holders even though seniority of second and third category of persons were recognised. The direct Diploma holders who have no experience as that of the writ petitioner cannot be allowed to have a march over the seniority of the petitioner. Several representations were made earlier for the past one decade but they ended in fiasco, without evoking any positive response from the authorities. The impugned letter dated 5.10.1987 was only temporary in nature, but it is followed without any justification. Accordingly, the petitioner prayed for quashing the impugned order dated 5.10.1987.
6. Per contra, second respondent therein, namely, the Joint Director of Employment and Training, Craftsmen Training Schemes, Chepauk, Chennai-5, filed the counter gainsaying and challenging the allegations of the writ petitioner. The Government issued instructions that panel had to be prepared for promotion taking into consideration the services put in by the part time Diploma holders from the date of they acquired qualification.
7. The learned single Judge after hearing the arguments of the writ petitioner and respondents 1 to 3 who are the concerned authorities therein, passed the order as follows:-
17. "In view of the said letter dated 19.05.2004, I am of the view that it is not necessary even to interfere with the letter dated 05.10.1987, for the said letter itself states that it was a temporary measure and it can be safely presumed that by the latest letter dated 19.05.2004 the temporary measure has been given up and a reading of the letter dated 19.05.2004 categorically shows that among the diploma holders, there was no distinction between the diploma holders who have undergone regular course or part-time course. Inasmuch as the petitioner being a diploma holder on part-time basis, he having been appointed as Junior Training Officer between 01.5.1984 to 31.12.1986 namely, on 01.12.1986 and regularised within the period, certainly be entitled to be considered as a qualified person in the panel of 2004-2005 to the post of Training Officer.
18. Accordingly, the second respondent is directed to include the name of the petitioner in the panel of promotion of Training Officers for the period from 01.08.2004 to 31.7.2005 in the category of diploma holder based on seniority.
19. With the above observation, the writ petition is disposed of."
8. The fact remains that Kandasamy, the writ petitioner, therein filed the writ petition only as against respondents 1 to 3 therein, who are the concerned authorities, but the employees who would be directly affected by the order in the writ petition, were not arrayed as respondents. Hence, the present appellants viz., K.Ravi, H.Sukumar and R.Rangasamy, who were not parties to the writ petition, sought leave of this Division Bench and filed the Writ Appeal No.206 of 2006 directing against the order passed by the learned single Judge in the writ petition referred to above on the ground that they were affected by the order of the learned single Judge.
9. The appellants herein preferred the writ appeal on the following grounds inter alia as under:
(i) The order of the learned single Judge is erroneous both on facts and law.
(ii) The learned single Judge ought to have seen that the post of Training Officer is coming under category I of clause 2 of the Tamil Nadu Employment & Training Subordinate Service Rules and the feeder category for the post of Training Officer is that of the Assistant Training Officer. K.Kandasamy, the first respondent herein, who was the petitioner in the writ petition, was appointed as Junior Training Officer on 1.12.1996 and subsequently he was promoted as Assistant Training Officer with effect from 25.11.1998. It was a factual error in the order that K.Kandasamy was appointed as Assistant Training Officer with effect from 1.12.1986. The learned single Judge on 23.3.2006 directed the some corrections to be carried out in the order as follows "In page-3 para-5 at 5th line as second respondent instead of third respondent and third respondent instead of second respondent.
In page-3 para-5 at 6th line as Government Industrial Training Institute instead of employment exchange.
In page-3 para 5 at 9th line as second instead of third;
In page-3 para 5 at 12th line as Junior instead of Assistant;
In page-4 para 6 at 4th line as Junior instead of Assistant;
In page-5 para 8 at 10th line as Junior instead of Assistant.
In page-7 para 12 at 7th line as Junior instead of Assistant;
In page-10 para 17 at 5th line as Junior Training Officer instead of Assistant Training Officer."
(iii) The appellants never worked as Assistant Training Officer during the year 1986. Inasmuch as the learned single Judge ought to have dismissed the writ petition.
(iv) The learned single Judge proceeded on the footing that Kandasamy was promoted as Assistant Training Officer with effect from 1.12.1986 and that subsequently his name ought to have been included in the panel for the post of Training Officer in the year 2004-2005. Kandasamy is not entitled to be included in the panel because his seniors are still working as Assistant Training Officers.
(v) The first respondent was appointed only as Junior Training Officer in the year 1986 and he cannot claim promotion to the post of Training Officer whereas the Assistant Training Officer is a feeder category to the post of Training Officer.
(vi) The impugned letter 5.10.1987 was initially challenged by filing a writ petition which was transferred to the Tamil Nadu Administrative Tribunal and numbered as T.A.No.851 of 1993 and the Tribunal on 7.1.1998 upheld the validity of the Government letter dated 5.10.1987. Subsequently, the Hon'ble High court in W.P.No.6046 of 1998 dated 13.03.2002 was pleased to set aside the directions given by the Tribunal relating to the creation of ratio among the candidates who entered service with degree/diploma as against those who acquired degree/diploma after entry into service.
(vii) The learned Judge ought to have considered that the first respondent either could claim seniority under the diploma category from the date of which he acquired diploma qualification or he could claim his right as a certificate holder under the category of certificate holder. Under the diploma category the date on which the diploma was acquired by him, only should be considered for reckoning the seniority so as to find a place in the panel for promotion. On the other hand, under the Certificate holder category, he could claim seniority from the date of his entry in the service with the certificate. As such there are three categories of employees for the purpose of promotion and K.Kandasamy opt to be come under the diploma category and be in the meantime insists for reckoning his seniority from the date of entry into service as a certificate holder.
(viii) The learned single Judge ordered contrary to the Special Rules viz., Tamil Nadu Employment & Training Subordinate Service Rules, which envisages that the feeder category for the promotion to the post of Training Officer is Assistant Training Officer. Kandasamy was promoted as Assistant Training Officer only on 25.11.1998; but the learned single Judge allowed the writ petition on the footing that the first respondent was appointed as Assistant Training Officer on 1.12.1986. The appellants herein are senior to Kandasamy both in the category of Junior Training Officer and in the category of Assistant Training Officer and in this factual situation, the order of the learned single Judge is erroneous and liable to be set aside.
10. The case of the said Kandasamy, the first respondent in W.A.No.206 of 2006 and the petitioner in W.P.683 of 2005, as set out in the affidavit in M.P.No.2 of 2006 could be portrayed inter alia thus:
The former nomenclature of the present post of Training Officer was Forman Instructor. Kandasamy is working as Assistant Training Officer in Government I.T.I., Madurai. According to the current Rule relating to the promotion to the post of Training Officer, the promotee should have the following qualification:
"A degree/diploma and should have put in two years service as Assistant Training Officer in the Industrial Training Institute/ Centres."
As such, the panel is prepared for promoting the candidates to the post of Training Officers only from among the incumbents in the post of Assistant Training Officer, but the seniority of the Assistant Training Officer are reckoned from the cadre of Junior Training Officer according to respective trade seniority. There was no error in the order of the learned single Judge in describing the status of Kandasamy anywhere. Accordingly, he prayed for dismissal of the appeal after vacating the order of stay.
W.A.No.383 of 2006.
11. This Writ Appeal has been filed by respondents 1 to 3/ authorities in the writ petition - W.P.No.683 of 2005 against the same order which is challenged in the aforesaid W.A.No.206 of 2006.
12. The appellants in W.A.No.383 of 2006 challenged the order of the learned single Judge on the following grounds:-
(i) The learned single Judge failed to note the recitals in the impugned letter No.1535/A1/86-13 dated 5.10.1987. The impugned letter has been strictly followed for promotion to the post of Training Officer from the post of Assistant Training Officer.
(ii) The learned single Judge failed to note that the writ petitioner/Kandasamy's seniority is maintained both in the diploma quota as well as certificate holders quota and he has got promotional chances under two categories and hence the impugned letter contemplates the following clause:
"As the part time diploma holding Assistant Training Officer is considered for promotion simultaneous both in diploma holders quota and certificate holders quote. This type of opportunity is not existing in any other service."
(iii) The learned single Judge failed to observe that the writ petitioner did not acquire part-time diploma at the time of appointment during the year 1983, but the writ petitioner claims seniority under diploma quota right from the date of joining service even though he was not having such diploma qualification at the time of entering in service i.e. 1983.
(iv) G.O.Ms.No.49 Employment Service dated 26.9.1983 with effect from 1.12.1980 clearly stipulates about the mode of promotion for the post of Training Officer. Kandasamy joined as Workshop Assistant on 25.2.1983 and promoted as Junior Training Officer on 1.12.1986. As such he did not work as Assistant Training Officer during the year 1983 and hence his name could not be included in the panel for promotion to the post of Assistant Training Officer.
(v) The learned single Judge failed to observe that the impugned G.O. Is followed along with G.O.Ms.No.49 Employment Service dated 26.9.1983 for the preparation of panel list for promotion as Training Officer.
12. Accordingly, the appellants prayed for setting aside the order of the learned single Judge.
13. The pleadings and the arguments advanced on either side give rise to the following points for adjudication:-
(i) Whether the service of the writ petitioner, Kandasamy even before he acquired the Diploma, has to be reckoned for assessing his seniority to lay claim for the post of Trainer by way of promotion, even by superseding those who entered service in the feeder post of Trainer well before Kandasamy?
(ii) Whether the writ petitioner/Kandasamy's seniority has been reckoned properly; and
(iii) Whether there is any infirmity in the order of the learned single Judge.
12. A re'sume' of facts absolutely necessary for the disposal of these writ appeals would run thus:
(i) The unassailable and indubitable facts are to the effect that the writ petitioner, Kandasamy entered service as Workshop Assistant holding certificate only and he was promoted as Junior Training Officer on 1.12.1986, whereas he acquired diploma only during the year 1996.
(ii) He was not appointed as an Assistant Training Officer with effect from 1.12.1986 even though earlier the learned single Judge erroneously stated in the order as though Kandasamy was appointed as Assistant Training Officer with effect from 1.12.1986. It was subsequently corrected by the learned single Judge.
(iii) At this juncture, it is worthwhile to refer to the G.O.Ms.No.49 Employment Services dated 26.9.1983 which prescribes the mode of promotion to the post of Training Officer. Relevant portion of the G.O. is extracted herein for ready reference, which came into force with effect from 26.5.1980.
"Class I.
1. Training Officers in the (i) Direct recruitment:
Industrial Training OR Institute/Centres. (ii) Promotion in the ratio of 1:1:1 as between (a) degree/diploma holders (b) certificate holders with S.S.L.C. And five years service as Assistant Training Officers; and (c) certificate holder's with ESLC or III Form or VIII standard and 10 years service as Assistant Training Officers,in the above cyclical order.
Provided if no degree/diploma holder or certificate holder either in category
(b) or in category (c) is available for promotion as per the term in the cyclical order, that vacancy shall be filled by a person having the qualifications mentioned in the next turn in the cycle;
OR
(iii) Transfer from any other class or category of service:
OR
(iv) Recruitment by transfer from any other service.
Explanation - In the case of direct recruitment, other things, being equal, preference shall be given to the candidates who have rendered Military Service. In fact, the aforesaid excerpt is an amendment to the Special Rules for Tamil Nadu Employment and Training for Subordinate Services. It is therefore, clear from the above that the aforesaid three categories of employees would have promotion chances to the post of Training Officers in the ratio of 1:1:1. The said G.O. also contemplates the following eligible qualification for the post of Training Officer:
CLASS I. Category Method of appointment Qualification
1. Training Officers in the Industrial Training Institutes/ Centres.
Promotion (1)(a) A Degree or Diploma in Mechanical, Electrical, Automobile or Civil Engineering or in Printing Technology of any University or Institution recognised by the University grants Commission for the purpose of its grants/ Madras Institute of Technology/ State Board of Technical Education and Training, Madras (formerly known as Technological Diploma Examination Board, Madras) or of any recognised Institution or Board.
AND
(b) Must have put in service as Assistant Training Officers in the Industrial Training Institutes/Centres and/ or under the Apprentices Act and or Supervisor (Maintenance) and/or Supervisor (Electrical) in the Industrial Training Institutes/ Centres and/or Purchase Assistant in the Office of the Director of Employment and Training for a period of not less than two years.
OR
1. Training Officers in the Industrial Training Institutes/ Centres. Promotion (2)(a) Must have been declared eligible for College course of study;
AND
(b) Must possess National Apprenticeship certificate issued under the Apprentices Act or Certificate of Apprenticeship under the National Apprenticeship Training Scheme issued by the National Council for Training in Vocational Trades or National Trade Certificate issued by the National Council for Training in Vocational Trades or Diploma in Craftsmanship issued by the Government of India or Industrial School Certificate or Craftsmanship Certificate issued by the Department of Industries and Commerce or by the Department of Employment and Training or of any other equivalent qualifications.
AND
(c) Must have put in service as Assistant Training Officer in the Industrial Training Institutes/ Centres and/ or under the Apprentices Act and/ or as Supervisor (Maintenance) and/ or Supervisor (Electrical) in the Industrial Training Institute/ Centres and/ or as Purchase Assistant in the office of the Director of Employment and Training for a period not less than five years.
OR 3 (a) Must have passed E.S.L.C. Or III Form or VIII Standard AND
(b) Must possess National Apprenticeship Certificate issued under the Apprentices Act or Certificate of Apprenticeship under the National Apprenticeship Training Scheme issued by the National Council for Training in Vocational Trades or National Trade Certificate issued by the National Council for Training in Vocational Trades or Diploma in Craftsmanship issued by the Government of India or any other equivalent certificate issued by the Government of India or Industrial School Certificate or Craftsmanship Certificate issued by the Department of Industries and commerce or by the Department of Employment and Training or of any other equivalent qualifications.
AND (C) Must have put in service as Assistant Training Officer in the Industrial Training Institutes//Centres and/or under the Apprentices Act and/or as Supervisor (maintenance) and/or Supervisor (Electrical) in the Indusrial training Institutes/Centres and/or Purchase Assistant in the Office of the director of employment and Training for a period of no less than ten years. Direct recruitment or transfer from any other class or category of the same service of recruitment by transfer from any other service A degree or diploma in Mechanical, Electrical, automobile, Civil Engineering or in Printing Technology of any University or Institution recognised by the University Grans Commission for the purpose of its grants/Madras Institute of Technology/State Board of Technical education and Training, Madras (formerly known as technological diploma Examination Board, Madras) or of any recognised Institution or Board AND Practical experience for a period of not less than two years in a recognised Engineering concern and teaching experience for a period of not less than one year.
In that connection, it is just and necessary to refer to the impugned letter bearing No.1535/A1/86-13, dated 5.10.1987 and it is extracted here under for ready reference:
"In the letter second cited you have suggested that the ratio reserved for Diploma holders (i.e. 33% out of 100%) may be reserved exclusively for the regular diploma holders and that the remaining 66% of vacancies of Training Officers may be reserved as follows:-
i. 22% for part time diploma holders.
ii. 22% for the Certificate holders with SSLC Qualification.
iii.22% for the certificate holder with VIII Standard or equivalent qualification.
In Govt. Letter No.11804/A1/84-33, Dated 19.06.1987, you have been requested to fill up the posts of Training Officers temporary which are lying vacant for quota some time for want of amendments to Special Rule for the Tamil Nadu Employment Training subordinate.
Pending finalisation of your proposal sent with the letter second cited, the Govt. are of the view that the part time Diploma holders may be considered temporarily for the purpose of promotion to the post of Training Officers only from the Date of Passing the Diploma/Degree as the case may be, and not the complete service rendered by an individual. I am, therefore to request you take the action accordingly".
14.It is therefore, clear from the said G.O. that certificate holder's seniority should be reckoned only from the date of acquiring requisite qualification viz., diploma. In this connection, it is just and necessary to refer to the fact that Kandasamy/writ petitioner acquired diploma in Mechanical Engineering only on 1.4.1996 s per the records available in the typed-set of papers. It is therefore, clear that as per the impugned letter dated 5.10.1987, writ petitioner/Kandasamy's seniority as diploma holder starts only from the date of his acquiring diploma qualification i.e. on 1.4.1996. T.A.No.851 of 1993 was filed by the Tamil Nadu Industrial Training Officials Association, Madras, by its General Secretary and one of the applicants. In that the Tamil Nadu Administrative Tribunal passed order on 2.12.1994 as follows:-
"Possible, giving credit for their entire service prior to acquisition of degree/ diploma may not be fair to the direct recruit degree/ diploma holders. Therefore, a possible course would be to prescribe a quota in terms of allocation of vacancies, set apart for degree/ diploma holders for persons who had entered service with lesser qualifications and later acquired the degree/ diploma. At the same time, such persons should not lose their turn in the category in which they had been employed earlier. The acquisition of degree/ diploma should not result in deferment of consideration of their promotion, and they should be able to get the benefit of their turn in either category, whichever is earlier.
If as stated in the reply, there is disparity in the promotion prospects in the different trades which prima facie should not arise except in trades in which the number employed is very limited, allied trades should be grouped, so that there is clear demarcation with reference to the qualification and consequently suitability to function in the higher Training posts for the trade. Government should take note of these aspects while formulating rules.
The Applicant in O.A.No.2830/94 seeks quashing of the panel issued in Ref.43180/VI/91, dated 14.12.1991 of the 2nd respondent. The grounds put forward are the same that seniority of persons in service who had acquired diploma/ degree qualifications should be with reference to their total service. The applicant's case should be dealt with in terms of the directions of this order."
15. As against which a Division Bench of the Hon'ble High Court in W.P.No.6046 of 1998, dated 13.3.2002 passed the following order and the relevant portion is extracted herein for ready reference.
"The claim before the Tribunal was to prescribe a ratio as between those who had entered service with a degree, and those who were in service, but had later obtained a degree. That claim was made in the context of a rule which provided that the promotion was to be in the ratio of 1:1:1 among (a) degree/diploma holders (b) Certificate holders with SSLC basic qualification with five years experience as Assistant Training Officers; and (c) Certificate holders with E.S.L.C. Or third form or VIII standard and ten years service as Assistant Training Officer in the Cyclical order.
2.The Tribunal has granted the prayer made by the applicant before it. The effect of the direction given is to rewrite the rule which was not the function of the Tribunal.
3. If the degree/diploma holders form a class as provided in sub clause
(a) and if in the working out of the promotions to be given to the persons in the cadre difficulties arise, that is a matter for examination having regard to the facts pleaded in any specific case. It would not be the function of the Tribunal to direct a sub division in the class be created having regard to the date on which the degree was acquired. It was not the case of the applicant before the Tribunal that the Rule itself was violative of any provision of the Constitution, or was ultra vires of the powers of the rule making authority.
The Rule, as it stands, has to be applied until such time as the rule itself is held to be invalid, if in fact it can be so regarded for any good reason. The Tribunal has not held that the rule is invalid.
4. The direction now given by the Tribunal, therefore, is not a direction which can be upheld and the same is set aside. The writ petition is allowed."
16. It is therefore, clear from the decision of the Division Bench of the Hon'ble High Court that the impugned letter should be implemented. W.P.683 of 2005 was for quashing the impugned letter dated 5.10.1987, but the aforesaid Division Bench's order is to the effect that promotions could be given based on the impugned letter dated 5.10.1987. In fact, the real controversy is not between the persons who acquired diploma on part-time basis or on regular basis, but the crux of the dispute is that whether the seniority of Kandasamy has to be reckoned from the date of he having acquired his diploma or from the date of his service even before that, while considering him under the above category of diploma holders. The learned single Judge in paragraph Nos.17,18 and 19 held as under:
"17.In view of the said letter dated 19.05.2004, I am of the view that it is not necessary even to interfere with the letter dated 05.10.1987, for the said letter itself states that it was a temporary measure and it can be safely presumed that by the latest letter dated 19.05.2004 the temporary measure has been given up and a reading of the letter dated 19.05.2004 categorically shows that among the diploma holders, there was no distinction between the diploma holders who have undergone regular course or part-time course. Inasmuch as the petitioner being a diploma holder on part-time basis, he having been appointed as Junior Training Officer between 01.5.1984 to 31.12.1986 namely, on 01.12.1986 and regularised within the period, certainly be entitled to be considered as a qualified person in the panel of 2004-2005 to the post of Training Officer.
18.Accordingly, the second respondent is directed to include the name of the petitioner in the panel of promotion of Training Officers for the period from 01.08.2004 to 31.7.2005 in the category of diploma holder based on seniority.
19. With the above observation, the writ petition is disposed of."
17. The learned single Judge interpreted the said letter dated 19.5.2004 issued by the second respondent to the third respondent as a fresh one in supersession of the impugned letter dated 5.10.1987. The learned single Judge also held that Kandasamy/writ petitioner was appointed as a Junior Training Officer between 1.5.1984 and 31.12.1986 i.e. on 1.12.1986 and was regularised within that period and accordingly, the learned single Judge held that under the first category of persons referred to in the letter dated 19.05.2004 the petitioner was eligible for being included in the panel. The above narration of facts and discussion would clearly show that, that was not the actual position. The writ petitioner/Kandasamy was appointed as Junior Training Officer while he was only holding certificate and he was not holding diploma at that time. In fact as set out supra he acquired diploma only on 1.4.1996 and only from that date onwards his seniority could be reckoned under the I category ie., the diploma category candidates or personnel in the impugned letter dated 5.10.1987.. Where as the first category in the said letter dated 19.05.2004 contemplates the employees appointed as Junior Training Officer during the period from 1.4.1985 to 31.12.1986. The fact to be stressed is that the post of Assistant Training Officer is the feeder post to Training Officer and not Junior Training Officer.
18. As such, the letter dated 5.10.1987, the letter dated 19.5.2004 should be read subject to the letter dated 05.10.1987 which was confirmed by Government's letter dated 27.01.2006. It is therefore clear that the writ petitioner/Kandasamy cannot be taken as one covered by the first category of persons referred to in the letter dated 19.5.2004 for being included in the panel. It is obvious from the contention itself that his seniority in the other category based on his certificates would not enure to his benefit now because as per his seniority in that category he could not claim a berth and it is beyond doubt. The bone of contention of the writ petitioner/Kandasamy is that since he was appointed as Junior Training Officer on 1.12.1986 so to say before the cut off date - 31.12.1986 as contemplated in the first category of letter dated 19.5.2004, his name should be included in the panel. The above discussion would show that he acquired the diploma qualification meant for the quota under I category in the letter dated 05.10.1987 only on 1.4.1996 long after 31.12.1986 and hence his claim that his seniority to be reckoned from 1.12.1986 under the diploma holders ratio, cannot be countenanced. His acquiring diploma qualification on 1.4.1996 would not date back his seniority with effect from 1.12.1986. Admittedly, the writ appellants Ravi, Sukumar and Rangasamy are diploma holders and during the argument they would contend that by no stretch of imagination, the service rendered by Kandasamy as Junior Assistant anterior to 1.4.1996 could be reckoned. The G.O. Ms.No.208 dated 11.6.1984, refers to the amendment to the Special Rules of the Tamil Nadu Employment and Training Subordinate Service Rules and it is extracted hereunder:-
"9.Preparation of Annual List:
For the purpose of drawing up of annual list of approved candidates for appointment to the post by promotion or by recruitment by transfer the crucial date on which the candidate should be qualified shall be the first August of every year".
Applying the said Rule 9 also, if the case is viewed, it is clear that only by First August, 1996, the writ petitioner/Kandasamy could be held to have acquired eligibility for promotion to the post of Assistant Training Officer and accordingly from that date only his seniority could be reckoned and not from the date of 1.12.1986, the date on which he was appointed as Junior Training Officer based on his mere certificate qualification.
19. The letter dated 19.5.2004 was issued only by the second respondent in the writ petition viz., The Joint Director of Employment and Training, Craftsmen Training, Chepauk, Chennai, to the third respondent the Deputy Director/Principal, Government I.T.I., Madurai and in that letter it is nowhere stated that the letter dated 5.10.1987 issued by the Commissioner and Secretary to the Government to the Director of Employment and Training, Chepauk, Madras, is superseded. It is a trite proposition in Service Jurisprudence as also in the general legal jurisprudence that a superior officer's direction or order cannot be superseded by a lower official. This important crucial fact has not been taken into consideration by the learned single Judge. The said letter dated 19.5.2004 was issued by the second respondent who is only the Joint Director whereas the letter dated 5.10.1987 was issued by the Commissioner and Secretary to the Government of Tamil Nadu to the Director of Employment and Training, Chepauk, Chennai, who is above the rank of Joint Director, the second respondent in the writ petition. As such, it is crystal clear that the impugned letter dated 5.10.1987 was issued by the top official of the Government of Tamil Nadu to his immediate lower official viz., the Director, but the said letter dated 19.5.2004 was issued by the Joint Director, who is lower in rank to that of the Director, in the writ petition. It is therefore, evident that the letter dated 19.5.2004 should be read subject to the letter dated 05.10.1987 and by no stretch of imagination it could be taken that it had the power of superseding or repealing or ignoring the Government letter dated 5.10.1987.
20.The learned single Judge in paragraph No.15 of the order has set out as under:
"However, the Government by a letter dated 27.1.2000 has clarified that the individual who are acting as Junior Training Officers promoted from the category of certificate holders with S.S.L.C. and subsequently obtained degree or diploma can be considered for promotion as Training Officers only as per the guidelines dated 5.10.1987.
Therefore, according to the respondents, the impugned guideline dated 5.10.1987 which was made as a temporary measure, continued even in the year 2000."
21.It is explicit from the findings given by the learned single Judge that the Government itself by its letter dated 27.1.2000 upheld the contents of the impugned letter dated 5.10.1987 and in such a case the second respondent in the writ petition who is the Joint Director, legally could have had no capacity to repeal or supersede the contents of the letter dated 5.10.1987. Without addressing himself to the aforesaid legal principles set out supra, the learned single Judge passed the order dated 10.3.2006, which is liable to be set aside.
22. The proposition that the seniority has to be reckoned only from the date of acquiring diploma qualification alone should be considered for reckoning the seniority among diploma holders is based on sound principles of law as also the rule of law. There are three categories of persons relating to whom the panel has to be prepared for promotion to the post of Training Officer and no doubt it contemplates the post of Assistant Training Officer as feeder category post. In those feeder posts there are three sets of persons with different qualifications, as stated supra.
23. Here the writ petitioner, Kandasamy wants to be considered under the diploma category and in such an event his colleagues who entered service with diploma anterior to the writ petitioner, Kandasamy, should necessarily be considered as senior to him. In this connection, the learned Advocate for the writ petitioner/Kandasamy cited the following decision of the Hon'ble Supreme Court in CHANDRAVATHI P.K. v. C.K.SAJI (2004 (3) S.C.C., 734). Certain excerpts from the said decision would run thus:
"The Full Bench of the Kerala High Court while deciding the matters which are the subject-matter of Civil Appeal No.884 of 2002, unfortuntely did not address itself to the aforementioned question. If its finding to the effect that "for promotion to the post of Assistant Executive Engineer ... there is no restriction imposed on the Assistant Engineers who acquired degree while they are in the feeder category for promotion as Assistant Executive Engineer" is correct, the same would make Rule 4(b) of the Kerala Public Health Engineering Service Rules otiose. The said rule has to be read in its entirety. The scheme contained therein must be given its full effect. The purport and object of such an amendment made in the year 1982 was required to be given deeper consideration. The High Court failed to notice that a conjoint reading of Rule 4 and Rule 5 clearly establishes that a diploma-holder Assistant Engineer who subsequently acquired a decree qualification would be eligible for promotion as Assistant Executive Engineer, only in the event he fulfils the conditions precedent therefor and not otherwise and in terms thereof, namely, his case could be considered only after the cases of promotion of those who had been holding such degree qualification have been considered. By reason of acquisition of higher qualification only the diploma-holders would not become entitled to be considered for promotion as they in terms of the Rules were to be regarded juniormost in the seniority lit of the graduate Assistant Engineers.
The Full Bench of the High Court, furthermore, unfortunately construed Rule 4 in isolation without taking into consideration the effect of Rule 5(b) in terms whereof it has clearly been laid down that the vacancies in the category of Assistant Executive Engineers were to be filled up from amongst the Assistant Engineers in the ratio of 75:20:5 from amongst the degree-holders, diploma- holders and certificate holders. There cannot be any doubt whatsoever that as separate seniority lists were being maintained in respect of the degree-holders, diploma-holders and certificate-holders, once a diploma=holder acquiring a qualification of a degree in Engineering opted for being included in the stream of the degree-holders, he would have to be placed at the bottom of the relevant seniority list."
24. The aforesaid excerpts and the perusal of the cited judgment of the Hon'ble Supreme Court would leave no doubt in the mind that the employee who opts for being considered under a particular category by availing a specific ratio in view of he having acquired higher qualification while in service, should be placed only as Junior to those who are already in that category having that higher qualification. The entire materials placed before this Court would clearly show that there are three categories to be considered for promotion in the ratio 1:1:1 and under the certificate-holder category, the writ petitioner/Kandasamy could be considered, but obviously as per his own version he could not find a place in the panel immediately and hence he tries to find a place in the panel by claiming under the diploma category, but his seniority in the diploma category could be considered only from the date of he having acquired the higher qualification, i.e. diploma and in such a case, he cannot claim that his entire service as Junior Training Officer even before acquiring higher qualification should be considered for giving a berth in the panel for promotion to the post of Assistant Training Officer.
25.The learned counsel for Kandasamy, the first petitioner cited the following decision of the Honourable Apex Court.
1993 Administrative Tribunal Cases 688. An excerpt from the decision would run thus:-
This decision is on the point that the entire length of service as special engineer irrespective of obtaining the degree qualification should be taken into account in the absence of any specific Rule to the contrary.
26.Our above discussion supra would show that this decision has been cited out of context. The facts and circumstances of this case are entirely different as detailed above.
28.In this case to the risk of reputation, we would highlight that the Feeder post to the post of Trainer is only the post of Assistant Engineer; even before Kandasamy got promoted to the post of Assistant Trainer, some of the appellants were in the post of Assistant Trainer and entered the post with Diploma qualification. The first respondent in W.A.No.206/2006 being a certificate holder, has got two avenues of promotion, one under the category of certificate holder and another under the category of diploma holder as he acquired the diploma subsequently, during the year 1996 while he was functioning as Assistant Trainer. In such a case, it is obvious that the decision cited by the learned Advocate for Kandasamy, the first respondent herein is not applicable in the facts and circumstances of the case.
29.In this view of the matter, the W.A.No.206/2006 is allowed by setting aside the order passed by the learned single Judge in W.P.No.683 of 2005 dated 10.03.2006. No costs. Consequently, connected M.Ps are closed.
To
1.The Secretary to Government Labour and Employment Department Fort St.George, Chennai-9.
2.The Joint Director of Employment & Training Craftsman Training Scheme Chepauk, Chennai-5.
3.The Deputy Director/Principal Govt.Industrial Training Institute Madurai-7.