Promotion given to candidate having ten years experience held proper.

V.S. Sirupurkar, J.

The present writ appeal is against the judgment of the learned single Judge dismissing the writ petition filed by the appellant. In that writ petition, the appellant claimed quashing of the order promoting the second respondent and for a direction that he should be promoted instead of the second respondent. The following facts will be helpful to understand the controversy.

2. Both the petitioner as well as the second respondent were serving as physiotherapists under the first respondent Madras Port Trust. While the petitioner entered the service somewhere in the year 1984, more particularly on 2.8.1984, the second respondent entered the service much before that i.e., somewhere in the year 1975. A scheme was floated by the Central Government vide order dated 16.10.1996, wherein it was proposed to give the notional promotions of one time measure to all such persons holding Class III and Class IV posts who had completed 15 years of service. The relevant Clause is as under:

“(C) This personal promotion will be one time promotion and all employees who have completed 15 years or more as on 30.6.1995 will get this personal promotion.”

This promotion was to be in the nature of personal promotion and it was available to all the persons who had completed 15 years of service. Therefore, obviously there was no question of creation of any number of posts for that purpose. Ordinarily, all the persons who were entitled to these promotions because of the length of their service would have got the same and the equal number of posts, then would have been deemed to have been created for that purpose.

3. However, as for the SC/ST candidates the rule was slightly different. The rule says as follows:

“(e) A separate 40 point roster applicable to promotions should be maintained for promotion to personal points under this scheme. If sufficient number of candidates belonging to SC/ST having 15 years of service in the same scale do not become eligible for promotion against the points reserved for SC/ST candidates in the 40 point roster, to the extent of shortfall, SC/ST candidates will be given promotion to the personal posts, even if they do not have 15 years of service, subject to the condition that they have rendered minimum 10 years of service in the same scale as on 30.6.1995.”

Therefore, it was obvious that the promotions were to go as per the roster in case of reserved candidates and, if according to the roster the promotional post was to go to a scheduled caste candidate and such scheduled caste candidate was not available having 15 years of length of service causing a short fall, then even the scheduled caste candidate who had completed 10 years of service would be entitled to the promotion. It is precisely on this ground that the writ petition came to be filed by the writ petitioner, when he found that he was not promoted but it was the second respondent who was promoted by the impugned order dated 20.2.1997.

4. In his writ petition, the petitioner pointed out that he had completed 10 years of service on the relevant date i.e., on 30.6.1995 and the second respondent had in fact not completed 15 years of service and she could not be said to be senior to him because she had joined the service after one break only on 17.6.1987. He pointed out that she had applied for leave as she wanted to leave to Libya between 1.4.1985 and 31.1.1986 and even after the leave period she did not join her duty and hence a show cause notice was issued to her and subsequent disciplinary proceedings were initiated. In pursuance of those proceedings, she was discharged from duty on 25.8.1986, but she was allowed to join back on 17.6.1987 on condition that,

(i) She would be appointed on the minimum pay scale.

(ii) She was to be on probation for two years, and

(iii) She should not claim condonation of break in service from the date of discharge viz., 20.5.1986 to the date of re-appointment i.e., on 17.6.1987.

5. On the basis of these