V.T.Mahendran Vs. Director of Collegiate Education - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169766
CourtChennai High Court
Decided OnOct-29-2013
JudgeTHE HON'BLE Mr.JUSTICE A.ARUMUGHASWAMY
AppellantV.T.Mahendran
RespondentDirector of Collegiate Education
Excerpt:
in the high court of judicature at madras dated:29. 10.2013 c o r a m the honourable mr.justice a.arumughaswamy writ petition no.15996 of 2011 v.t.mahendran .. petitioner vs 1. the director of collegiate education, college road, chennai-6.2. the joint director of collegiate education, chennai zone, saidapet, chennai-15.3. gurunanak college rep. by secretary and correspondent, velacherry main road, chennai-42.4. d.umarani ..respondents petition filed under article 226 of the constitution of india praying for issuance of a writ of certiorarified mandamus, calling for the records of the proceedings in no.gnc/a3/nts/appt. compassionate grounds/2010 of the 3rd respondent and to quash the same and consequently, direct the respondents 1 to 3 to promote the petitioner as junior assistant in the 3rd respondent college w.e.f. 12.6.2009 and to grant the petitioner all service and monetary benefits including arrears together with dcrg and pensionary benefits, within a time frame to be fixed by this court. (prayer amended as per the order of this court dated 29.10.2013) for petitioner ... mr.m.mohamed rafi for respondents ... mr.r.lakshmi narayanan, 1 and 2 additional government pleader for 3rd respondent ... mr.l.chandrakumar order the writ petition is filed challenging the impugned order of the 3rd respondent in no.gnc/a3/nts/appt. compassionate grounds/2010 and to quash the same and and consequently, direct the respondents 1 to 3 to promote the petitioner as junior assistant in the 3rd respondent college w.e.f. 12.6.2009 and to grant the petitioner all the service and monetary benefits including arrears together with dcrg and pensionary benefits.2. the brief facts of the case are as follows: (i) the petitioner was appointed as scavenger on 21.3.1979 by the 3rd respondent college which is aided by the government and covered by the tamil nadu private colleges regulation act, 1976. the petitioner belongs to adi dravidar community. he was promoted as office assistant on 15.10.1982, thereafter as record clerk on 1.12.1988. subsequently, the petitioner was promoted as laboratory assistant on 13.10.2004 and retired from service on 30.11.2010 on attaining the age of superannuation. (ii) according to the petitioner, after laboratory assistant, his next avenue of promotion is junior assistant and he was eligible for the same on 31.3.1998 itself. in this regard, the petitioner has sent several representations to the 3rd respondent. but no orders were passed. (iii) while so, the 4th respondent was appointed as junior assistant on compassionate ground on 26.3.2010. in this regard, the proceedings of the 3rd respondent college and the letter of the 1st respondent dated 11.4.2011 would clearly establish the fact that no prior approval has been given by the competent authorities for the appointment of 4th respondent as junior assistant. the action of the respondents is in violation of article 14 and l6 of the constitution of india. hence, the present writ petition.3. learned counsel for the petitioner submits that though the petitioner is eligible to be promoted as junior assistant as on 31.3.1998, he was not promoted, instead, one d.umarani, 4th respondent herein, was appointed as junior assistant on compassionate ground which affects the right of the petitioner guaranteed under article 14 and 16 of the constitution of india. hence, the present writ petition has to be allowed.4. learned additional government pleader appearing for the respondents 1 and 2 submits that the vacancy position has been given by the 1st respondent in his proceedings dated 31.5.2007 and accordingly, the vacancies have been filled up by the 2nd respondent. therefore, there is no question of deviation or denial of right to the petitioner. hence, the present writ petition has to be dismissed.5. learned counsel for the 3rd respondent submits that the vacancies have been filled up as per the proceedings of the 1st respondent and there is no irregularity committed on the part of the 3rd respondent. hence, the present writ petition has to be dismissed.6. though notice has been served on the 4th respondent, there is no representation on her part.7. heard the submissions made on either side and i have also perused the materials available on record carefully.8. the facts that the petitioner was initially appointed as scavenger by the 3rd respondent and after some promotions, finally he was promoted as laboratory assistant on 13.10.2004 and he was retired from service on 30.11.2010 are not in dispute. though he was eligible to be promoted as junior assistant from laboratory assistant as on 31.3.1998, he was not promoted to the said post, instead, the 4th respondent herein was appointed as junior assistant on compassionate ground on 26.3.2010 is the grievance of the petitioner. but, according to the respondents 1 and 2, since there is a specific ban on appointment and promotion during the years 2001 to 2006, though the case of the petitioner was recommended by the 3rd respondent, he was not considered.9. after the ban was lifted by the government, the 3rd respondent has forwarded an application of the writ petitioner for promotion to the post of junior assistant along with one umarani's application for appointment as junior assistant on compassionate ground for the death of one devaraj in the commerce department of his college. thereafter, approval has been made for appointing the 4th respondent as junior assistant on compassionate ground rejecting the claim of the petitioner. accordingly, the 4th respondent was appointed as junior assistant on 26.3.2010. aggrieved over the same, it appears that the petitioner has sent representations to the chief minister cell and other officials.10. at this juncture, the learned counsel for the petitioner would rely on a letter dated 11.4.2011 written by the 1st respondent seeking a report from the 2nd respondent as to why the case of the petitioner was not considered for promotion as junior assistant. but, it is not known to this court as to how, the petitioner was in receipt of the copy of that letter, which is an inter-department communication and when the respondents 1 and 2 have failed to produce the same. therefore, it is crystal clear that after lifting of the ban, instead of giving promotion to the petitioner, the 4th respondent has been appointed as junior assistant on compassionate ground.11. at this juncture, the learned counsel for the petitioner would contend that totally, 10 posts have been sanctioned by the department as per the proceedings of the 1st respondent dated 13.7.2009 and from that date, the petitioner is entitled for promotion. in my considered opinion, that argument will not hold good since already there is a ban by the government and before the promotion is made, it is for the petitioner to claim from the date of the post sanctioned. therefore, this contention raised by the learned counsel for the petitioner is rejected.12. the next contention advanced by the learned counsel for the petitioner is as to whether the compassionate ground appointment will prevail over promoting the petitioner as junior assistant.13. in this aspect, the learned counsel for the petitioner would rely on the proceedings of the 1st respondent dated 13.7.2009, more particularly, condition 5 which runs as follows: ".5. fuiz mog;gilapy; epakdk; nfhhp xu gzpaplj;jpw;f xd;wf;fk; nkw;gl;l tpz;zg;g';fs; bgwg;gl;oug;gpd; mf;fy;y}hpapy; gzpg[[hpe;j kuzk; mile;j gzpahsh;fspd; kuzkile;j njjpapid mog;gilahff; bfhz;l kd;dhpik th';fg;gl ntz;lk;/ so it is clear that the date of death of the employer while in harness is the crucial date for giving preference to compassionate appointment. here, in this case, the date of death of the father of the 4th respondent as well as the date of application of the 4th respondent were not known since there is no representation on behalf of the 4th respondent and no documents have been produced by the respondents 1 to 3 to substantiate the said contention.14. per contra, the learned counsel for the 3rd respondent would rely on the proceedings of the 1st respondent dated 31.5.2007, more particularly, condition 3 which runs as follows: ".3. xu gzpaplj;jpw;f fuiz mog;gilapy; epakdk; nfhhp xd;wf;fk; nkw;gl;l tpz;zg;g';fs; bgwg;gl;oug;gpd; mf;fy;y}hpapy; gzpg[[hpe;j kuzk; mile;j gzpahsh;; kuzkile;j njjpapid mog;gilahff; bfhz;l ke;jhpik th';fg;gl ntz;lk;/ a reading of the above condition would go to show that the authorities are directed to give preference only to the compassionate ground appointment. therefore, according to the learned counsel for the 3rd respondent, the 3rd respondent has to strictly adhere to the instruction given by the 1st respondent.15. coming to the present case, it is not in dispute that the petitioner was due for promotion from 31.3.1998 onwards. but due to the ban existed at the relevant point of time i.e. between 2001 to 2006, he was not considered for promotion as junior assistant. thereafter, the 4th respondent was appointed as junior assistant on compassionate ground basis only on 26.3.2010 and the petitioner was superannuated on 30.11.2010. therefore, if the petitioner was promoted as junior assistant on 26.3.2010, he would have been served in that post only for eight months. though the learned counsel for the petitioner would contend that the 2nd respondent has not obtained consent of the 1st respondent for appointing the 4th respondent as junior assistant, the same has also been agitated before this court.16. considering the overall facts of the matter, i am of the view that the petitioner has suffered monetary loss due to his non-promotion as junior assistant from 26.3.2010, even though he has not worked in that post. therefore, i am of the view that because of the irregularity committed by the 2nd respondent with the 1st respondent, the petitioner need not be suffered. hence, the respondents 1 and 2 are directed to give notional promotion to the petitioner as junior assistant from the month of march, 2010 and that salary can be taken note of for calculating the retirement benefits of the petitioner.17. with the above observation, the writ petition is allowed. no costs. 29.10.2013 index : yes internet : yes tsi to 1. the director of collegiate education, college road, chennai-6.2. the joint director of collegiate education, chennai zone, saidapet, chennai-15. a.arumughaswamy, j.tsi w.p.no.15996 of 2011 29.10.2013
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

29. 10.2013 C O R A M THE HONOURABLE Mr.JUSTICE A.ARUMUGHASWAMY Writ Petition No.15996 of 2011 V.T.Mahendran .. Petitioner Vs 1. The Director of Collegiate Education, College Road, Chennai-6.

2. The Joint Director of Collegiate Education, Chennai Zone, Saidapet, Chennai-15.

3. Gurunanak College rep. by Secretary and Correspondent, Velacherry Main Road, Chennai-42.

4. D.Umarani ..Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the records of the Proceedings in No.GNC/A3/NTS/Appt. Compassionate Grounds/2010 of the 3rd respondent and to quash the same and Consequently, direct the respondents 1 to 3 to promote the petitioner as Junior Assistant in the 3rd respondent college w.e.f. 12.6.2009 and to grant the petitioner all service and monetary benefits including arrears together with DCRG and Pensionary benefits, within a time frame to be fixed by this Court. (Prayer amended as per the order of this Court dated 29.10.2013) For petitioner ... Mr.M.Mohamed Rafi For respondents ... Mr.R.Lakshmi Narayanan, 1 and 2 Additional Government Pleader For 3rd respondent ... Mr.L.Chandrakumar ORDER

The writ petition is filed challenging the impugned order of the 3rd respondent in No.GNC/A3/NTS/Appt. Compassionate Grounds/2010 and to quash the same and and Consequently, direct the respondents 1 to 3 to promote the petitioner as Junior Assistant in the 3rd respondent college w.e.f. 12.6.2009 and to grant the petitioner all the service and monetary benefits including arrears together with DCRG and Pensionary benefits.

2. The brief facts of the case are as follows: (i) The petitioner was appointed as Scavenger on 21.3.1979 by the 3rd respondent College which is aided by the Government and covered by the Tamil Nadu Private Colleges Regulation Act, 1976. The petitioner belongs to Adi Dravidar Community. He was promoted as Office Assistant on 15.10.1982, thereafter as Record Clerk on 1.12.1988. Subsequently, the petitioner was promoted as Laboratory Assistant on 13.10.2004 and retired from service on 30.11.2010 on attaining the age of superannuation. (ii) According to the petitioner, after Laboratory Assistant, his next avenue of promotion is Junior Assistant and he was eligible for the same on 31.3.1998 itself. In this regard, the petitioner has sent several representations to the 3rd respondent. But no orders were passed. (iii) While so, the 4th respondent was appointed as Junior Assistant on Compassionate Ground on 26.3.2010. In this regard, the proceedings of the 3rd respondent college and the letter of the 1st respondent dated 11.4.2011 would clearly establish the fact that no prior approval has been given by the competent authorities for the appointment of 4th respondent as Junior Assistant. The action of the respondents is in violation of Article 14 and l6 of the Constitution of India. Hence, the present Writ Petition.

3. Learned Counsel for the petitioner submits that though the petitioner is eligible to be promoted as Junior Assistant as on 31.3.1998, he was not promoted, instead, one D.Umarani, 4th respondent herein, was appointed as Junior Assistant on Compassionate Ground which affects the right of the petitioner guaranteed under Article 14 and 16 of the Constitution of India. Hence, the present Writ Petition has to be allowed.

4. Learned Additional Government Pleader appearing for the respondents 1 and 2 submits that the vacancy position has been given by the 1st respondent in his proceedings dated 31.5.2007 and accordingly, the vacancies have been filled up by the 2nd respondent. Therefore, there is no question of deviation or denial of right to the petitioner. Hence, the present Writ Petition has to be dismissed.

5. Learned Counsel for the 3rd respondent submits that the vacancies have been filled up as per the proceedings of the 1st respondent and there is no irregularity committed on the part of the 3rd respondent. Hence, the present Writ Petition has to be dismissed.

6. Though notice has been served on the 4th respondent, there is no representation on her part.

7. Heard the submissions made on either side and I have also perused the materials available on record carefully.

8. The facts that the petitioner was initially appointed as Scavenger by the 3rd respondent and after some promotions, finally he was promoted as Laboratory Assistant on 13.10.2004 and he was retired from service on 30.11.2010 are not in dispute. Though he was eligible to be promoted as Junior Assistant from Laboratory Assistant as on 31.3.1998, he was not promoted to the said post, instead, the 4th respondent herein was appointed as Junior Assistant on Compassionate Ground on 26.3.2010 is the grievance of the petitioner. But, according to the respondents 1 and 2, since there is a specific ban on appointment and promotion during the years 2001 to 2006, though the case of the petitioner was recommended by the 3rd respondent, he was not considered.

9. After the ban was lifted by the Government, the 3rd respondent has forwarded an application of the Writ Petitioner for promotion to the post of Junior Assistant along with one Umarani's application for appointment as Junior Assistant on compassionate ground for the death of one Devaraj in the Commerce Department of his College. Thereafter, approval has been made for appointing the 4th respondent as Junior Assistant on Compassionate Ground rejecting the claim of the petitioner. Accordingly, the 4th respondent was appointed as Junior Assistant on 26.3.2010. Aggrieved over the same, it appears that the petitioner has sent representations to the Chief Minister Cell and other officials.

10. At this juncture, the learned Counsel for the petitioner would rely on a letter dated 11.4.2011 written by the 1st respondent seeking a report from the 2nd respondent as to why the case of the petitioner was not considered for promotion as Junior Assistant. But, it is not known to this Court as to how, the petitioner was in receipt of the copy of that letter, which is an inter-department communication and when the respondents 1 and 2 have failed to produce the same. Therefore, it is crystal clear that after lifting of the ban, instead of giving promotion to the petitioner, the 4th respondent has been appointed as Junior Assistant on Compassionate Ground.

11. At this juncture, the learned Counsel for the petitioner would contend that totally, 10 posts have been sanctioned by the department as per the proceedings of the 1st respondent dated 13.7.2009 and from that date, the petitioner is entitled for promotion. In my considered opinion, that argument will not hold good since already there is a ban by the Government and before the promotion is made, it is for the petitioner to claim from the date of the post sanctioned. Therefore, this contention raised by the learned Counsel for the petitioner is rejected.

12. The next contention advanced by the learned Counsel for the petitioner is as to whether the compassionate ground appointment will prevail over promoting the petitioner as Junior Assistant.

13. In this aspect, the learned Counsel for the petitioner would rely on the proceedings of the 1st respondent dated 13.7.2009, more particularly, condition 5 which runs as follows: ".5. fUiz mog;gilapy; epakdk; nfhhp xU gzpaplj;jpw;F xd;Wf;Fk; nkw;gl;l tpz;zg;g';fs; bgwg;gl;oUg;gpd; mf;fy;Y}hpapy; gzpg[[hpe;J kuzk; mile;j gzpahsh;fspd; kuzkile;j njjpapid mog;gilahff; bfhz;L Kd;Dhpik tH';fg;gl ntz;Lk;/ So it is clear that the date of death of the employer while in harness is the crucial date for giving preference to compassionate appointment. Here, in this case, the date of death of the father of the 4th respondent as well as the date of application of the 4th respondent were not known since there is no representation on behalf of the 4th respondent and no documents have been produced by the respondents 1 to 3 to substantiate the said contention.

14. Per contra, the learned Counsel for the 3rd respondent would rely on the proceedings of the 1st respondent dated 31.5.2007, more particularly, condition 3 which runs as follows: ".3. xU gzpaplj;jpw;F fUiz mog;gilapy; epakdk; nfhhp xd;Wf;Fk; nkw;gl;l tpz;zg;g';fs; bgwg;gl;oUg;gpd; mf;fy;Y}hpapy; gzpg[[hpe;J kuzk; mile;j gzpahsh;; kuzkile;j njjpapid mog;gilahff; bfhz;L Ke;Jhpik tH';fg;gl ntz;Lk;/ A reading of the above condition would go to show that the authorities are directed to give preference only to the compassionate ground appointment. Therefore, according to the learned Counsel for the 3rd respondent, the 3rd respondent has to strictly adhere to the instruction given by the 1st respondent.

15. Coming to the present case, it is not in dispute that the petitioner was due for promotion from 31.3.1998 onwards. But due to the ban existed at the relevant point of time i.e. between 2001 to 2006, he was not considered for promotion as Junior Assistant. Thereafter, the 4th respondent was appointed as Junior Assistant on compassionate ground basis only on 26.3.2010 and the petitioner was superannuated on 30.11.2010. Therefore, if the petitioner was promoted as Junior Assistant on 26.3.2010, he would have been served in that post only for eight months. Though the learned Counsel for the petitioner would contend that the 2nd respondent has not obtained consent of the 1st respondent for appointing the 4th respondent as Junior Assistant, the same has also been agitated before this Court.

16. Considering the overall facts of the matter, I am of the view that the petitioner has suffered monetary loss due to his non-promotion as Junior Assistant from 26.3.2010, even though he has not worked in that post. Therefore, I am of the view that because of the irregularity committed by the 2nd respondent with the 1st respondent, the petitioner need not be suffered. Hence, the respondents 1 and 2 are directed to give notional promotion to the petitioner as Junior Assistant from the month of March, 2010 and that salary can be taken note of for calculating the retirement benefits of the petitioner.

17. With the above observation, the Writ Petition is allowed. NO costs. 29.10.2013 Index : Yes Internet : Yes tsi To 1. The Director of Collegiate Education, College Road, Chennai-6.

2. The Joint Director of Collegiate Education, Chennai Zone, Saidapet, Chennai-15. A.ARUMUGHASWAMY, J.

tsi W.P.No.15996 of 2011 29.10.2013