Clarificatory service rules can be applied retrospectively; an employee's promotion eligibility is determined by existing opportunities within their service category.

J U D G M E N T

(Order of the Court was delivered by G.R.SWAMINATHAN, J.) The Department is on appeal questioning the order dated

27.10.2022 passed by the learned single Judge allowing W.P.(MD)

No.16383 of 2014 filed by the respondent herein.

2. The respondent herein was appointed as sanitary worker on

18.06.1984 in Government Engineering College, Tirunelveli. Later, he was appointed as watchman by way of transfer. He was regularised in the post of watchman subsequently, vide proceedings dated 20.02.1985. He successfully completed probation on 04.12.1985. He was then appointed as Office Assistant by way of transfer on 03.04.1989. Till then, the respondent herein was in Tamil Nadu Basic Service. By way of transfer, he was appointed in Tamil Nadu Technical Subordinate Service as Grade I Mazdoor on 06.04.1994. He successfully completed probation on 30.04.1996 and was regularised in that post.

3. He was then promoted to the post of Junior Assistant on

25.02.2004. Unfortunately, he could not join in the said post as he suffered a major accident. Therefore, he requested his employer that he may be allowed to relinquish the said promotion for a period of three years. The request was accepted and proceedings dated 27.07.2004 was issued by the Commissioner, Government of Technical Education, Guindy, Chennai. After a lapse of three years, the respondent herein called upon his employer to now grant him promotion since he had only temporarily relinquished the promotion that was earlier offered to him. His representation was not processed. The respondent filed W.P.(MD)No.12878 of 2011. Vide order dated 17.02.2014, this Court directed the Commissioner, Tamil Nadu Technical Education, Chennai to consider the representation. Pursuant to the said direction, the representation was considered and vide proceedings dated 11.09.2014, his request was rejected. Earlier, the Principal Secretary to Government, Higher Education Department had sent Letter No.16211/C2/2012-3 dated 08.01.2013 to the Commissioner of Technical Education clarifying that the basic servants who have been subsequently promoted to technical posts such as Skilled Assistants, Lab Assistants etc. cannot be considered for appointment by recruitment by transfer as Junior Assistant as per the Special Rule for Tamil Nadu Ministerial Service. Challenging the same, W.P.(MD)No.16383 of 2014 came to be filed. The learned single Judge vide order 27.10.2022 allowed the writ petition with a direction that the petitioner shall be promoted to the post of Junior Assistant from 25.02.2007 with all consequential monetary benefits. Challenging the same, the employer as well as the Department have filed this writ appeal.

4. The learned Additional Advocate General reiterated all the contentions set out in the grounds of appeal. He took us through the relevant provisions set out in Rule 3(g)(i) of Tamil Nadu Ministerial Service Rules, Tamil Nadu Technical Education Subordinate Service Rules and the contents of the clarificatory letter dated 08.01.2013 and submitted that the order of the learned single Judge is not correct and called upon us to reverse the same.

5. Per contra, the learned counsel for the writ petitioner submitted that the learned single Judge correctly approached the issue and interference is not warranted. The learned counsel for the writ petitioner relying on the very same provisions gave a different spin altogether.

6. We carefully considered the rival contentions and went through the materials on record.

7. It is not in dispute that the writ petitioner was originally appointed in Tamil Nadu Basic Service. All the three posts namely, Sanitary worker, Watchman and Office