The failure to draw a panel for promotion in compliance with the relevant legal provisions and government orders can result in the impairment of the right to be considered for promotion and may be deemed arbitrary and with ulterior motives.

JUDGMENT

(Prayer: Writ appeal is filed under Clause 15 of the Letter Patents Act praying to set aside W.P.No.12495 of 2020 dated 29.10.2020.)

S. Vaidyanathan, J. & Mohammed Shaffiq, J.

1. The following question may arise for consideration in this writ appeal viz.,

Whether drawing of panel in the interval/ period prescribed is mandatory and failure to comply with the said requirement, moreso, if it were to result in denying a candidate a valuable opportunity of being considered for promotion, would prove fatal and invalidate the promotion and entire process.

2. This intra-court appeal is filed against the order of the learned Single Judge only insofar as the learned Single Judge has not quashed G.O.Ms.No.98, Higher Education (F1) Department dated 14.08.2020 relating to the panel for the post of Director of Collegiate Education (hereinafter referred to as "D.C.E.").

3. Originally this writ petition was filed challenging G.O.Ms.No.98, 99 and 100. The learned Single Judge after quashing G.O.Ms.No.99 and G.O.Ms.No.100, however, found that G.O.Ms.No.98 need not be quashed as the learned Single Judge found no reason to do so. The present writ appeal is limited to the portion of the learned Single Judge whereby G.O.Ms.No.98, dated 14.08.2020 which provided for the panel for the post of D.C.E. for the year 2020-21 is left undisturbed.

4. Brief facts:

4.1.Before proceeding to examine the issue, it may be relevant to set out briefly the facts:

i) The appellant herein was originally appointed as Lecturer in Kunthavai Nachiar Government Arts College in the year 1989. After a series of promotion, the appellant was promoted to the post of Grade-I Principal in the year 2019 and thus became eligible to be considered for appointment to the post of D.C.E. The appellant came within the zone of consideration for appointment to the post of D.C.E., on retirement of Dr.R.Sarumathi on 31.05.2019.

ii) As per G.O.Ms.No.368 dated 18.10.1993, the 1st respondent has got to prepare a list of 5 qualified candidates for promotion to the post of Head of the Department, of them two have got to be approved. As per G.O.Ms.No.3647 dated 31.10.1975, every year a panel has got to be prepared. The panel for D.C.E. consisting of 5 candidates has to be prepared 3 months before the vacancy were to arise.

iii) Initiation for preparation of panel ought to have been made on 28.02.2019 i.e., 3 months prior to the date of retirement of Dr.R.Sarumathi.

iv) Had the panel been prepared in terms of Section 7(1) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (hereinafter referred to as "the Act") read with G.O.Ms.No.368, it would have contained the following five names and the 3rd respondent would not have been in the zone of consideration, which is tabulated hereunder:

iv) Originally, G.O.Ms.No.95 dated 30.05.2019 was issued notifying vacancy to the post of D.C.E. This was followed by a "note for consideration" dated 07.08.2020 wherein the competent authority has recommended the appellant's name for consideration to the post of D.C.E. However, there was no further action.

v) Thereafter, G.O.Ms.No.88 was issued on 17.08.2019 notifying 'nil' vacancy for the year 2019-20. Hurriedly, G.O.Ms.No.98, 99 and 100 came to be issued whereby it provided for the following:

G.O.Ms.No.98 stated that the Government had approved a "nil" panel for the post of D.C.E. for the year 2019-20 vide G.O.Ms.No.88, Higher Education (F1) Department, dated 07.08.2020 and fixed the estimate of vacancy for the post of D