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2012 Supreme(Mad) 4465
High Court of Judicature at Madras
ELIPE DHARMA RAO & M. VENUGOPAL, JJ.
E. Thanga Nadar
Versus
The Joint Director of Collegiate Education, Tirunelveli & Others
W.A.No.1027 of 2011
Decided on : 02-11-2012
For the Appellant:Mrs. Elizabeth Rani For M/s. S. Subbiah, Advocate.
For the Respondents:R1, S.T.S. Moorthy, Special Government Pleader, R2, No appearance, R3, Mrs. P. Mahalakshmi, Advocate.
The main legal point established in the judgment is the importance of timely challenge to promotions and the application of relevant provisions of G.O.Ms.No.11 dated 01.04.1989 and Rule 11(4)(i) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 in determining eligibility and seniority for promotion.
Headnote:
Promotion - Tamil Nadu Private Colleges Regulation Act - G.O.Ms.No.11 dated 01.04.1989, Rule 11(4)(i) - The court discussed the promotion of the Appellant/Petitioner from Laboratory Assistant to Superintendent and the promotion of the 3rd Respondent from Typist to Superintendent. The court analyzed the relevant provisions of G.O.Ms.No.11 dated 01.04.1989 and Rule 11(4)(i) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, and their application in determining the eligibility and seniority for promotion to the post of Superintendent.
Fact of the Case:
The Appellant/Petitioner sought promotion to the post of Superintendent, claiming that he was eligible for promotion based on his seniority and qualifications. The 3rd Respondent was promoted to the post of Superintendent, and the Appellant/Petitioner challenged the promotion, alleging mala fide actions by the 2nd Respondent.
Finding of the Court:
The court found that the 3rd Respondent was rightly promoted to the post of Superintendent based on her cadre seniority and experience as an Assistant. The court also held that the Appellant/Petitioner's delay in challenging previous promotions and his lack of diligence rendered his Writ Petition and Writ Appeal not maintainable.
Issues: The issues involved the eligibility and seniority for promotion to the post of Superintendent, the application of G.O.Ms.No.11 dated 01.04.1989 and Rule 11(4)(i) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, and the Appellant/Petitioner's challenge to the 3rd Respondent's promotion.
Ratio Decidendi: The court's decision was based on the interpretation of the relevant provisions of G.O.Ms.No.11 dated 01.04.1989 and Rule 11(4)(i) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, and the principle that an employee must challenge promotions in a timely manner to maintain the maintainability of a Writ Petition or Writ Appeal.
Final Decision: The Writ Appeal was dismissed, affirming the order of the Learned Single Judge in W.P.No.9355 of 2000 dated 10.06.2009. Each party was left to bear their own costs.
M. VENUGOPAL, J.
The Appellant/Petitioner has preferred the present Writ Appeal as against the order dated 10.06.2009 in W.P.No.9355 of 2000 passed by the Learned Single Judge.
2. The Learned Single Judge, while passing the order in W.P.No.9355 of 2000 on 10.06.2009, has, among other things, observed that '... it is clear that the petitioner is far junior to the third respondent in the post of Assistant, which is the feeder category to the post of Superintendent. Hence, the claim of the petitioner was rightly rejected and the claim of the third respondent was considered by the second respondent and approved by the first respondent. Petitioner has not made out a case on merits to consider his claim for promotion to the post of Superintendent' and consequently, dismissed the Writ Petition without costs.
3. The Writ Petition averments [filed by the Appellant/ Petitioner]:
(i) The Appellant/Petitioner joined the services of the 2nd Respondent/College, an aided institution, under the provisions of the Tamil Nadu Private Colleges Regulation Act No. XIX of 1976 and the Tamil Nadu Private Colleges (Regulation) Rules, 1976, as Library Assistant with effect from 01.08.1974. Subsequently, he was promoted as Laboratory Assistant with effect from 20.07.1987.
(ii) According to the Appellant/Petitioner, the next avenue of promotion from the post of Laboratory Assistant is to the post of Junior Assistant subject to the qualification that a candidate should pass the account test. He qualified himself eligible for promotion to the post of Junior Assistant by passing the account test for Subordinate Officer Part I, in November 1990 itself. When he was qualified to be promoted as Junior Assistant, there was no vacancy in the post of Junior Assistant. Therefore, he was waiting for the regular vacancy to fall in the post of Junior Assistant. But the 3rd Respondent was appointed as Typist from 13.01.1988 and even at the time of joining the services of the 2nd Respondent, the 3rd Respondent was not qualified herself to be promoted as the Junior Assistant as she herself had not passed the account test.
(iii) On the retirement of Malaisudumerumal with effect from 29.02.1992, there was a regular vacancy falling to the post of Assistant. In the regular post of Junior Assistant, there was no qualified and suitable candidate available for filling up the vacancy by promotion from the feeder category, viz., the Junior Assistant Post. However, on 01.03.1992, when the regular vacancy arose in the post of Assistant, he was qualified to be promoted to the said post of Assistant, as he was eligible for promotion having passed the account test and maintaining the other qualification to the post of Assistant.
(iv) The 2nd Respondent had not filled up the vacancy, by considering the names of the eligible candidate from the feeder category to the post of Junior Assistant, which in turn, would be the feeder category to the post of Assistant.
(v) The Director of Collegiate Education, by proceedings dated 27.03.1991, clarified that while filling the post of Junior Assistant, the seniority of the persons working in the feeder category should be taken into account from the date of first appointment and meaning thereby that the seniority from the date of first appointment to the feeder categories mentioning G.O.Ms.No.11 dated 01.04.1989 alone should be taken into account.
(vi) After quoting G.O.Ms.No.11 dated 01.04.1989, it was stated that irrespective of the scales of pay to the post of Junior Assistant in a Private College, the posts should be filled up from the persons working in the category of Record Clerks, Library Assistant, Laboratory Assistant, Museum Keepers, Herbarium Keepers and Mechanics in a similar time pay of scale in the same college on seniority basis as per Rule 11(4)(i) and an illustration was also given (e.g.) the seniority of a person who is now working as Laboratory Assistant and who was promoted from the post of Record Clerk should
