IMPORTANT POINT
The main legal point established in the judgment is that the service rendered in the previous cadre should be counted for seniority and promotion in the new cadre, and the absence of evidence regarding the petitioner's agreement for conditional absorption.

JUDGMENT :

MUMMINENI SUDHEER KUMAR, J.

Prayer: Petition filed under Article 226 of the Constitution of India to issue Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 2nd respondent in his proceedings in Na. Ka. No. 62909/W2/E1/2019 dated 08.11.2019 and quash the same and direct the respondents to promote the petitioner as P.G. Assistant Physics by fixing the seniority from the date of initial appointment i.e. 09.07.2004 and promote from the date on which his juniors were promoted and confer all the consequential benefits.

1. The petitioner herein was appointed as Junior Grade B.T. Assistant on consolidated pay on 01.07.2004 and thereafter, brought into regular time scale with effect from 01.06.2006. Thereafter, in the year 2007, the school in which the petitioner was working viz. Panchayat Union Middle School, Kavarapattu, Thanjavur District was upgraded as High School and the petitioner was also absorbed into the post of B.T. Assistant in the High School Service as per the proceedings dated 10.08.2007 issued by the 3rd respondent. According to the petitioner, he was fully qualified for promotion to the post of P.G. Assistant (Physics), as he already acquired M.Sc. (Physics) and M.Phil. However, when his case was not included in the seniority list of persons eligible for promotion to the post of P.G. Assistant (Physics), he approached the respondents requesting for inclusion of his name in the list for promotion to the said post. But the same was not considered and he was informed that his seniority will be counted in the High School service only from the date of his joining in the School Education Department with effect from 22.08.2007 and an order dated 08.11.2019 rejecting the request of the petitioner was passed to that effect. It is aggrieved by the said order, the petitioner approached this Court by filing the present writ petition.

2. Heard Sri V. Panneerselvam, learned counsel for the petitioner and Sri V. Om Prakash, learned Government Advocate appearing for the respondents and perused the material on record.

3. It is the contention of the learned counsel for the petitioner that the school in which the petitioner was appointed as Junior Grade B.T. Assistant was upgraded by the respondents on administrative grounds and he has no role in the process of the said upgradation and he was also absorbed in the post of B.T. Assistant on upgradation of the school. It is his further contention that he was never informed about he losing the service rendered in the Panchayat Union School, nor he has given any option for absorption into the School Education Service at the time of upgradation and absorption of his service as B.T. Assistant in the School Education Service. Therefore, the service rendered by the petitioner as Junior B.T. Assistant, prior to his absorption in School Education Service, cannot be ignored and the same is liable to be counted for the purpose of seniority in the cadre of B.T. Assistant in School Education Service consequent upon upgradation of the school in question.

4. In support of his contention, learned counsel for the petitioner also placed reliance on a decision of this Court in W.P. (MD) No. 1777 of 2007, dated 19.07.2012, which is stated to be confirmed by a learned Division Bench of this Court in W.A. (MD) No. 656 of 2013, which is further stated to have been confirmed in S.L.P. (Civil) Diary No. 30586 of 2018.

5. On the other hand, the respondents filed a counter affidavit resisting the claim of the petitioner and also contending that in terms of G.O.Ms. No. 209, School Education Department, dated 08.05.1997, the Teachers transferred from Elementary Unit to Secondary Unit accorded promotion seniority on the date of absorption into Secondary Unit only and in terms of the said G.O.Ms. No. 209, dated 08.05.1997, the date of seniority was fixed on the date of joining in the Secondary Unit, which is valid in law and also further stated that the petitioner was abs