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2019 Supreme(Mad) 2193
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.P. SAHI, SUBRAMONIUM PRASAD, JJ.
The State of Tamil Nadu, Rep. by its Principal Secretary, Higher Education (B2) Department, Chennai & Another – Appellants
Versus
K. Chinnasamy & Others – Respondents
W.A. No. 3926 of 2019
Decided On : 20-11-2019
For the Appellant :S.T.S. Murthi, Addl. Advocate General-IV assisted by V. Kadhirvelu, Spl. Government Pleader (Higher Education).
For the Respondent:V. Prakash, Senior Counsel, M. Kavi Veerappan, Advocate.
The central legal point established in the judgment is that the claim for absorption of an employee must be considered in accordance with the terms and conditions of the relevant Government Order, and the court may issue directions for consideration by the appropriate committee.
Headnote:
absorption - Lecturer in Computer Science - The court considered the claim of absorption of the respondent as a Lecturer in Computer Science in a Polytechnic College taken over by the Government. The court analyzed the Government Order dated 30.1.2018 and concluded that the respondent's claim for absorption was not justified as there was no sanctioned post for the subject and the terms of the Government Order were not challenged.
Fact of the Case:
The dispute arose after a Polytechnic College was taken over by the Government, and the staff of the erstwhile Polytechnic sought absorption as per a Government Order. The respondent claimed to be a Lecturer in Computer Science and Engineering and argued for his absorption based on his 14 years of service.
Finding of the Court:
The court found that the respondent's claim was not put forth before the Merger Committee and that there was no sanctioned post for the subject in which the respondent was claiming continuance. The court concluded that the learned Single Judge exceeded in issuing a mandamus for absorption without considering the terms and conditions of the Government Order.
Issues: The main issue was whether the respondent was entitled to be absorbed as a Lecturer in Computer Science in the institution after it was taken over by the Government, despite the absence of a sanctioned post for the subject.
Ratio Decidendi: The court held that the terms of the Government Order dated 30.1.2018 were not under challenge before the learned Single Judge, and therefore, the learned Single Judge could have at most issued a direction for the consideration of the respondent's claim by the Merger Committee.
Final Decision: The appeal was allowed, and the impugned judgment of the learned Single Judge was set aside. The writ petition of the respondent was disposed of with liberty to get his claim assessed and considered by the Merger Committee in accordance with the Government Order.
JUDGMENT :
A.P. Sahi, J.
(Prayer: Appeal under Clause 15 of the Letters Patent against the order dated 18.6.2019 passed by the learned Single Judge in W.P.No.17572 of 2018.)
1. This intra-court appeal is directed against the judgment dated 18.6.2019 of a learned Single Judge in respect of the claim of absorption of the respondent/writ petitioner as a Lecturer in Computer Science in the Polytechnic College that was earlier run by Dharmapuri District Co-operative Sugar Mills Private Limited and has now been taken over by the Government.
2. A dispute arose after the Polytechnic College was taken over and the staff of the erstwhile Polytechnic came to be absorbed in terms of G.O.(Ms) No.26, Higher Education (B2) Department, dated 30.1.2018. A copy of the teaching staff details, as relied on by the respondent/writ petitioner, indicates that the respondent/writ petitioner claimed himself to be a Lecturer in Computer Science and Engineering in the Department of Computer Science and Engineering.
3. The contention, however, is that the respondent/writ petitioner had been working upon being engaged and continued for almost 14 years, according to the respondent/writ petitioner, in that capacity, even though on consolidated wages. The respondent/writ petitioner, therefore, claimed that he also deserved to be absorbed and there was no reason to eliminate him keeping in view the three streams of Diploma Courses that were to be run after the taking over by the Government, namely, Mechanical Engineering; Civil Engineering and Electronics and Communication Engineering.
4. The sum and substance of the claim of the respondent/writ petitioner was that he was also entitled to be absorbed at par with other employees, as he had been working against a post that had to be counted against the sanctioned strength, as it was within the framework of the courses that were being run by the Polytechnic.
5. On the other hand, the learned counsel for the appellants has urged that with only three streams defined under the Government Order dated 30.1.2018, there was no scope for consideration of the absorption of the respondent/petitioner inasmuch as neither the department in which he was claiming continuance was envisaged to be continued after the taking over of the institution, nor there was any sanctioned post in relation to the said subject in which the respondent/ petitioner was claiming his continuance.
6. It is also the case of the appellants that the respondent/ petitioner was on consolidated wages and, therefore, he could not be treated as a permanent staff of the erstwhile Polytechnic so as to claim his continuance or absorption after the taking over of the institution. The contention, therefore, of the appellants is that in view of the provisions of the Government Order dated 30.1.2018, there was no occasion for considering the absorption of the respondent/petitioner by the Merger Committee as constituted under Clause (6) of the Government Order, referred to herein above.
7. On the basis of the pleadings that have been brought forth before us, the aforesaid facts upon an assessment lead us to the conclusion that the respondent/petitioner’s claim was not put forth before the Merger Committee and as per the learned counsel for the appellants, the respondent/petitioner was not entitled to be absorbed keeping in view the fact that neither there was any Department of Computer Science or stream of course envisaged to be run by the institution after it being taken over by the Government and secondly, there was no sanctioned post for the same.
8. We find that the learned Single Judge has proceeded to assume the existence of a post on account of the claim of the respondent/petitioner continuing in the institution, without examining the aforesaid aspects of the matter in terms of the Government Order dated 30.1.2018. To that extent, the learned Single Judge does not appear to be justified in saying that if the post is not sanctioned, then it is open to the authority con
