Madras High Court
M.F.Thangaraja vs The Commissioner Of Technical ... on 30 March, 2012
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30/3/2012 CORAM THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR Writ Petition (MD) No.14252 of 2010 M.P.(MD)Nos.1 and 2 of 2010 M.F.Thangaraja . . Petitioner Vs. 1. The Commissioner of Technical Education, The Directorate of Technical Education, Guindy, Chennai - 600 025. 2. The Principal, Government Polytechnic, Thoothukudi District. 3. A. Henry Daniel . . Respondents Prayer This Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified mandamus calling for the records relating to the order No.19554/P-6/2010, dated 26.7.2010 on the file of the first respondent and quash the same and further direct the respondents 1 and 2 to promote the petitioner as Workshop Instructor in the Government Polytechnic College, Thoothukudi with effect from 1.12.2010. !For Petitioner ... Mr.G.Prabhu Rajadurai ^For Respondents 1 and 2 ... Mr.S.Chandrasekar, Government Advocate For 3rd Respondent ... No appearance :ORDER
The prayer in the writ petition is to quash the order dated 26.7.2010 passed by the first respondent and direct the respondents 1 and 2 to promote the petitioner as Workshop Instructor in Government Polytechnic, Thoothukudi, with effect from 1.12.2010.
2. The case of the petitioner is that he has passed SSLC and was appointed as Laboratory Assistant in Government Polytechnic, Thoothukudi on 18.6.1973. He was assigned duty in the Mechanical Department and the petitioner worked in the said department till July, 1975. He was then transferred to Wiring and Winding Section, which comes under the Electrical Department. In November, 1978 he was transferred to Hydrolics Lab, which comes under the Civil Department. Thus, the petitioner served in three departments as Lab Assistant and he attained the age of superannuation on 30.9.2011 and retired. When the petitioner claimed promotion to the post of Workshop Instructor while he was serving in the Government Polytechnic, Thoothukudi, the request was rejected by the impugned order dated 26.7.2010 and therefore the petitioner has filed this writ petition challenging the said order with further direction.
3. It is the further case of the petitioner that all his juniors in other departments were promoted as Workshop Instructors. In fact one Mariya Jayapal, who was initially appointed as a Water Boy, was appointed as Lab Assistant after five years; he was further promoted as Office Assistant; again promoted as Skilled Assistant in Mechanical Department; and by the proceedings of the respondent dated 19.10.2009 he was promoted as Workshop Instructor. Petitioner submitted various representations, lastly on 16.10.2009. The said representations having not been considered, he filed W.P.No.4928 of 2010 and prayed for issuing a writ of mandamus. This Court by order dated 13.4.2010 directed the first respondent to pass appropriate orders on the representation of the petitioner. Thereafter the impugned order was passed on the ground that the petitioner acquired the required experience in mechanical lab only on 30.6.2009 and the cut-off date for gaining the said experience was 1.9.2008. Another reason stated in the impugned order was that the Adhoc rules issued with effect from 6.7.2009 stipulates minimum qualification of Diploma or possession of Industrial Training Certificate.
4. It is the contention of the petitioner that the petitioner having acquired the requisite qualification prior to coming into force of the Adhoc rules, his promotional right cannot be taken away. The second respondent in his proceedings dated 16.9.2010 recommended petitioner's name for promotion. The first respondent failed to consider the said recommendation though a vacancy arose in the second respondent Polytechnic from 30.11.2010. The impugned order was challenged on the ground that gaining experience in mechanical lab is not at the hands of the petitioner and it is the second respondent to give posting as Lab Assistant in particular Lab. The Adhoc Rules, which was issued on 6.7.2009, cannot be made applicable to defeat the rights of the petitioner in getting promotion and the said rule has no retrospective effect.
5. The second respondent has filed counter affidavit stating that the petitioner attained the age of superannuation and retired from service on 30.9.2011. He was awarded selection grade and special grade on completion of ten years and twenty years of service. His pay was revised and fixed in the higher scale of pay as per the relevant Government Orders. The next avenue of promotion for the post of Lab Assistant is the post of Workshop Instructor. As per the special rules for the Tamil Nadu Technical Educational Subordinate Service (old) issued in G.O.Ms.No.2100 Education, dated 18.9.1981, for promotion to the post of Workshop Instructor, following are the required qualifications:
(i) A pass in 8th Standard in a recognised School
(ii) Experience as skilled operator for a total period of not less than seven years in a recognised Workshop, of which at least two years service must be actually in the Workshop of a technical educational institution.
As per the revised Adhoc rules issued in G.O.Ms.No.220 Higher Education Department dated 6.7.2009 for promotion to the post of Workshop Instructor following are the qualifications prescribed:
(a) Diploma in Mechanical or Electrical and Electronics Engineering or Electrical Engineering;
(b) (i) An Industrial Training Institute Certificate / National Trade Certificate / National Apprenticeship Training Certificate in Mechanical/ Electrical subjects;
(ii) 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 appointment shall be made to the post from among the holders of (i) Diploma qualification and (ii) Non-Diploma qualification mentioned above in the ratio 1:4 subject to the availability of adequate number of Diploma holders. It is further stated in the counter affidavit that the crucial date for preparing the panel for promotion is 1st September of every year. Accordingly for the year 2008-2009, the crucial date of 1.9.2008 was taken and the petitioner's name was not considered as he did not complete seven years experience in a recognised Workshop as per the old rule and petitioner obtained the required experience only on 30.6.2009. The new rule came into force from 6.9.2009 as per which the petitioner is not qualified. Hence the second respondent prayed for dismissal of the writ petition.
6. Mr.G.Prabhu Rajadurai, learned counsel appearing for the petitioner submitted that the only reason stated in the impugned order for denying promotion to the petitioner is that the petitioner fulfilled the required seven years experience in Mechanical Engineering Workshop only on 30.6.2009 and that is stated as a reason to deny promotion. The learned counsel submitted that gaining experience in all wings of workshop in a Polytechnic College is not at the hands of the Lab Assistants and it is the duty of the Principal of the Polytechnic to see that all Lab Assistants are posted in each department to gain required experience to satisfy promotional qualification. The learned counsel relied on the unreported decision of this Court made in W.P.No.47872, 47885 of 2006 and 7791 of 2007, common order dated 4.9.2007. The said order was followed in the decision reported in (2012) 1 MLJ 634 (S.Sasisivanandam v. District Collector, Thoothukudi). The learned counsel also relied on a decision of mine reported in (2011) 8 MLJ 317 (S.Krishnakumar v. State of Tamil Nadu) wherein also the earlier order of this Court made in W.P.No.18501 of 2006 dated 9.10.2006 and W.P.No.13517 of 2009 dated 9.4.2010 were followed. The learned counsel further submitted that the petitioner having retired from service as on 30.9.2011, he is entitled to get notional promotion for the purpose of revision of pension.
7. Mr.S.Chandrasekar, learned Government Advocate appearing for the respondents on the other hand submitted that due to lack of experience in Mechanical Wing, petitioner was denied promotion and after gaining experience, New Adhoc Rules came into force and therefore the petitioner was not granted promotion.
8. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Government Advocate for respondents 1 and 2.
9. The point in issue is as to whether the petitioner can be blamed for non-possessing of required experience in the Lab attached to Mechanical wing, which he acquired only on 30.6.2009.
10. The power of posting of Lab Assistants in a particular department is vested with the Principal of the Polytechnic. Petitioner has no control over the said aspect. It is not the case of the second respondent that the petitioner was offered the posting in mechanical wing and he declined to work in Mechanical Department. In the absence of any such averments in the counter affidavit, the decision relied on by the learned counsel for the petitioner is squarely applicable to the facts of this case.
11. In (2011) 8 MLJ 317 (S.Krishnakumar v. State of Tamil Nadu) I had an occasion to follow the earlier orders and held that for not attending foundation training in Bhavani Sagar Training Institute, which is not the fault of the employee, he cannot be denied placing of his name in the panel for promotion. In the said decision the employee retired and notional promotion was ordered to be granted. The operative portion of the said decision reads as follows:
"6. .......... This Court in W.P.No.13517 of 2009, by order dated 9.4.2010 considered the very same issue and in paragraph 19, it is held as follows:
"19. Going through the issue, this Court pointed out that on no fault of the petitioners but on account of administrative reasons, the petitioners could not complete their service qualification to serve in the category of Rural Welfare Officer Grade I. It was pointed out that even though the petitioners had been in service as Junior Assistant with effect from 1991 and in the post of Rural Welfare Officer Grade I, the petitioners were not considered for further promotion on account of the non-completion of the service requirements. This Court held that when the petitioners had successfully completed the departmental examinations, the petitioner cannot be denied inclusion in the panel on the ground that they did not possess the service qualification - an area which was purely in the hands of the respondents. Referring to the order of this Court dated 9.10.2006 in W.P.No.18501 of 2006 C.Periasamy and Another v. District Collector, Dharmapuri, holding that service qualification cannot be equated to a pass in the departmental test, this Court held: "While the pass in a departmental test may be in the hands of the individual, the posting of the individual to a particular post is not within the hands of the individual." In the circumstances, this Court held that the respondents should have formulated and implemented a policy providing equal opportunity to all persons to acquire the service qualifications. This Court pointed out that but for the belated regularisation in 1996, the petitioner would have undergone the foundation training in Bhavani Sagar Training Institute, the petitioners were not at fault, they should not have been omitted to be included in the panel."
7. It is also pointed out in the said judgment in paragraph 21 that deputing the petitioner therein for one year training at Bhavani Sagar Institute cannot be attributed to the petitioner and he had not qualified himself though inclusion in the promotion panel for seniority cannot be allowed as it would prejudice the petitioner as he was prevented by the department to undergo the training. Ultimately, in paragraphs 28 to 31 it is held thus:
"28. It is no doubt true that in the case of a person who sleeps over his right consciously, the question of showing any indulgence to disturb a well settled seniority will not arise. As already pointed out, on the appeal preferred by respondents-3 to 5 dismissed, the seniority of the petitioner remained undisturbed at least upto 2001. There was no occasion for the petitioner to entertain any doubt as to the seniority panel to voice his grievance. He came to know of this fact only when the petitioner's name was not included in the panel prepared for the year 2004 onwards. In the background of this fact, when as per the law declared by this Court, the petitioner's name should have been considered in the seniority list, he having successfully completed the examination well ahead of respondents 3 to 5, the delay in challenging the seniority list, by itself, cannot be held against the petitioner, for the simple reason that the delay on the part of the District Collector had caused serious prejudice to the petitioner by his not having deputed the petitioner to undergo the one year stint in the post of Rural Welfare Officer Grade II and for the foundation training in the Bhavani Sagar Training Institute as required under the Service Rules. .............................
............................."
12. In the common order dated 4.9.2007 made in W.P.Nos.47872, 47885 of 2006 and 7791 of 2007, in paragraph 8 the said issue is answered as follows:
"8. Under these circumstances, the petitioners cannot be denied the benefit of inclusion in the panel, on the ground that they did not possess the service qualification. After all, the service qualification cannot be equated to the qualification of a pass in the departmental test. While the pass in a departmental test may be in the hands of the individual, the posting of the individual to a particular post, is not within the hands of the individual. Therefore, the respondents ought to have formulated and implemented a policy providing equal opportunity to all persons to acquire the service qualifications. Since the respondents have failed to do so, the petitioners were not at fault and on that ground, they should not have been omitted to be included in the panel."
The said order is followed in the decision reported in (2012) 1 MLJ 634 (S.Sasisivanandam v. District Collector, Thoothukudi District), wherein it is held that when the matter of posting of an employee to a particular post lies in the domain of the concerned authority, the employee cannot be blamed for non- acquiring of required service qualification and denial of promotion on that ground is not justified.
13. Thus, the reason stated in the impugned order for not considering petitioner's name for promotion as Workshop Instructor is contrary to the well settled principle of law. The Adhoc rules issued on 6.7.2009 is applicable to future vacancies after the issuance of the said Adhoc rules. Nowhere in the said rules it is stated that the said rules are applicable with retrospective effect. In the said rules it is specifically stated that the said rules shall come into force on 6th July, 2009.
14. The petitioner has made out a case for considering his name for inclusion in the panel for promotion for the post of Workshop Instructor in the second respondent Polytechnic. Petitioner having retired on 30.9.2011, respondents 1 and 2 are directed to give notional promotion to the petitioner from the date on which his junior was given promotion i.e., with effect from 1.12.2010 and promote him notionally enabling him to get revision of pension. Since the petitioner has not served in the promotional post, he is not entitled to get difference in salary from the date of notional promotion till his retirement, i.e, from 1.12.2010 to 30.9.2011.
The writ petition is allowed in part as above. No costs. Connected miscellaneous petitions are closed.
vr To
1. The Commissioner of Technical Education, Directorate of Technical Education, Guindy, Chennai - 600 025.
2. The Principal, Government Polytechnic, Thoothukudi District.