D.Seralathan & Ors. v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:23.02.2010CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIWRIT PETITION NO.848 OF 2008..1.D.Seralathan2.K.Sreenivasan3.R.Kamalaveni4.E.R.Valarmathi5.P.Marisami.. Petitionersvs.1.The State of Tamil Nadu rep. By the Secretary toGovernmentDepartment of Higher EducationFort St.George, Chennai 9.2.The Commissioner / Director of Technical Education, Guindy, Chennai.3.The Principal Thiyagarajar Poly Technic (Autonomous Institution) Salem 636 005... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Mandamus directing therespondents to promote the petitioners to the post of Lecturers inpolytechnic college including the post of workshop Instructors/Junior drafts officers in the feeder category to the post ofLecturer in polytechnic.For petitioners : Ms.A.ArulmozhiFor respondents: Mr.G.Sankaran Spl.Govt.Pleader for R.1 & 2 Mr.S.R.Rajagopal for R.3 https://hcservices.ecourts.gov.in/hcservices/ ORDER This writ petition is for direction against the respondents topromote the petitioners to the post of Lecturers.2. The petitioners are working in the third respondentPolytechnic College, out of whom the first petitioner D.Seralathan,who was appointed on 09.12.1991 is working as WorkshopInstructor/Mechanical Engineer, K.Srenevasan who was appointed on02.01.1995, is working as Workshop Instructor/Production Engineer,R.Kamalaveni, who was appointed on 01.04.1990, is working asWorkshop Instructor/EEE and P.Marisami, who was appointed on02.01.1995, is working as Junior Drafting Officer/MechanicalEngineer.2(a). It is stated that all the petitioners possess B.E.qualification and the 1st and 5th petitioner have completed theirMaster Degree and others are doing their Master Degree course. It isstated that the petitioners when originally appointed in the thirdrespondent College, they were sponsored through Employment Exchangeand their appointment was approved by the Director of TechnicalEducation, Chennai. The post of Workshop Instructors/Junior DraftingOfficers is governed by the Tamil Nadu Technical EducationalSubordinate Services Rules and their next avenue of promotion isInstructor/Lecturer in the teaching cadre.2(b). In G.O.Ms.1364 Education Department dated 16.8.1988, byway of amendment to the Special Rules for the Tamil Nadu TechnicalEducation Subordinate Services, the cadre of WorkshopInstructor/Draftsman was included as feeder category for promotionto the post of Instructor (teaching cadre), if the candidatepossesses Diploma in the respective branch of Engineering relatingto the posts concerned with service for a period not less than 2years. Based on that, persons working as Workshop Instructors/JuniorDrafting Officers were promoted to the posts of Instructor and thesaid benefit continued until the Government passed G.O.Ms.No.1081Education (J1) Department dated 19.8.1989.2(c). Under the said Government Order, the Government decidedto discontinue the recruitment to Instructor cadre in Polytechnicand Special Diploma Institutions. In the said G.O., it is statedthat the existing instructors shall be promoted as Associatelecturers as and when they acquire the required degreequalifications. However, there was no discussion in the saidGovernment Order about the Workshop Instructors/Junior DraftingOfficers, whose next avenue of promotion was the post ofInstructors.2(d). As per the said Government Order, the promotionopportunities of the incumbents as Instructors/Associate Lecturers https://hcservices.ecourts.gov.in/hcservices/ holding the post as on 19.8.1989 have been directed to continueirrespective of the class obtained in B.E. degree examination.Similarly, the Instructors or Associate Lecturers with Diplomaqualification holding the post as on 19.8.1989 were also madeeligible for the post of Associate Lecturer and Lecturer as and whenthey acquire B.E. degree qualification irrespective of classobtained in the said degree. Subsequently, the post of AssociateLecturer in Polytechnics were redesignated as Lecturer and the adhoc rules were issued in G.O.Ms.No.597, Higher Education Departmentdated 1.12.1997.2(e). As per the Government Order for the post of Lecturer, therecruitment is by direct recruitment or recruitment by transfer fromthe category of Tamil Nadu Technical Education Subordinate Servicesand for that, the qualification is first class in Bachelor degree inthe branch of Engineering relating to the post concerned. However,by G.O.Ms.No.119 Higher Education (C2) Department dated 26.3.1999,a concession was granted to the Instructors who were appointed after19.8.1989 but before 1.12.1997 with Bachelor degree/Post Graduatedegree qualification irrespective of the class obtained by them andthey were directed to be promoted as and when vacancy arose in thenormal course and that those Instructors who were in service as on19.08.1989 with diploma qualification would become eligible forappointment to the post of Lecturer as and when they acquire B.E.Degree.2(f). Since the posts of Instructors were redesignated asLecturers, according to the petitioners, the posts of Instructorswere also to be considered as feeder cadre to the posts of Lecturersand since the Instructor post has been merged with Lecturers, thefeeder categories to the Instructor posts viz., Junior DraftingOfficer or Workshop Instructors are next in line for the promotionto the post of Lecturer and by discontinuing the recruitment to thepost of Instructors, there is stagnation in the post of WorkshopInstructors and Junior Drafting Officers in non-teaching category. 2(g). The petitioners made representation on 06.12.2006 to therespondents to issue suitable orders and the said representation wasnot considered and therefore, the present writ petition has beenfiled on various grounds including that as per G.O.Ms.1364 dated16.08.1988 the posts of Workshop Instructors/Junior DraftingOfficers were included for promotion to the post of Instructor(Teaching Cadre) and as per G.O.1081 dated 19.08.1989 it is only therecruitment to the post of Instructors alone was directed to bediscontinued by giving protection to the existing Instructors.2(h) By promoting those working as Instructors, they wereredesignated as Lecturers by G.O.Ms.No.119 dated 26.3.1999.According to the petitioners, the posts of Instructors got absorbedinto the post of Associate Lecturers, which were subsequentlyredesignated as Lecturers. Therefore the posts in feeder categories https://hcservices.ecourts.gov.in/hcservices/ to the post of Instructor have to be considered as feeder categoriesto the post of Lecturer and the petitioners possess necessaryqualifications for the post of Lecturer and there is a long timestagnation.3. In the counter affidavit filed by the second respondent, theDirector of Technical Education, it is stated that the thirdrespondent is one of the aided Polytechnic institutions receiving90% of Government grant and the petitioners presently holding theposts of Workshop Instructors/Junior Drafting Officers which arenon-teaching posts. It is stated that in Government Polytechniccolleges appointments are made through Staff Selection Committeeconstituted for that purpose, as per Clause 11 of the Grant-in-AidCode of Madras Technical Education Department. 3(a). The petitioners have to appear before the said Committeeand there is no method of appointment by promotion available.Therefore, the claim of the petitioner has to be rejected. It isstated that as per the Circular of the Director of TechnicalEducation, the Staff Selection Committee has to draw a list ofcandidates from the Employment Exchange apart from internalcandidates to compete with them in the interview and the StaffSelection Committee would select the best suitable persons for thepost and the selection made by the Committee is being sent to theDirector of Technical Education for approval.3(b). As per the ad hoc Rules framed in G.O.Ms.597 HigherEducation Department dated 1.12.1997, the appointment is made eitherby direct recruitment or recruitment by transfer in Tamil NaduTechnical Education Subordinate Services. Therefore, the feedercategory for the post of Lecturer is Instructor. However, thepetitioners are holding the posts of Workshop Instructors/JuniorDrafting officers, which are not at all coming under feedercategories for the posts of Lecturers. 3(c). It is true that the feeder categories to the post ofInstructors as per the relevant rules for the Tamil Nadu TechnicalEducation Services have been issued in G.O.Ms.No.1364 Educationdated 16.8.1988 and therefore, unless the petitioners are promotedto the posts of Instructors, they cannot be promoted as Lecturers.In other words, it is the case of the second respondent that theposts of Workshop Instructors and Junior Drafting Officers cannot bedirectly appointed or promoted to the posts of Lecturers. 3(d). It is also admitted that the recruitment to the posts ofInstructors in polytechnics and special institutions have beendispensed with with effect from 19.8.1999 as per G.O.Ms. No.1081Education (J1) Department and therefore, the post of Lecturer is anentry level teaching post, and there is an avenue to becomeLecturers as and when they acquire all requisite educational https://hcservices.ecourts.gov.in/hcservices/ qualifications. The method of appointment by promotion is notapplicable to the Government institutions. The only method is by wayof selection and therefore, the claim of the petitioners forpromotion has to be rejected.4. It is the case of the third respondent that the petitionersare as such holding the posts of Workshop Instructors and MechanicalEngineers and they cannot be directly promoted as Senior Lecturerseven as internal candidates for non-teaching categories. For thepost of Senior Lecturer there must be an experience as Lecturer for5 years. The petitioners are presently working in non-teachingcadres. Though it is stated in the petition that there is vacancy inthe posts of Senior Lecturers, the petitioners are not entitled forpromotion even if they are qualified. They must be sponsored byEmployment Exchange and then only they can be considered for theposts of Lecturers. It is also stated that presently for filling upthe post of Lecturer in Production and in Civil Engineering, thethird respondent requested the Employment Exchange to sponsorcandidates for making selection process and the list has beenfurnished and no interview has been called for. It is stated thatthere are only two vacancies. It is also sated that Mrs.M.Ponni whois the petitioner in W.P.No.6321 of 2006 has been selected in theselection process by the Staff Selection Committee. Inasmuch as theJunior Drafting Officers and Workshop Instructors are feedercategories to the post of Instructor, such persons cannot beconsidered as feeder category for the post of Lecturer since thepost of Instructor has been dispensed with. After G.O.Ms.No.1081Education (J1) Department dated 19.8.1989, the post of Lecturer hasbecome entry level for teaching posts and the method of appointmentis direct recruitment and therefore, the petitioners are notentitled for the relief claimed.5. Ms.Arulmozhi, learned counsel for the petitioners wouldsubmit that pending the above said writ petition, some of thesimilarly placed Workshop Instructors in aided polytechnics filedwrit petitions seeking direction not to give effect toG.O.Ms.No.1081 Education (J1) Department dated 19.08.1989 and finalorder was passed on 10.9.2004 directing to consider the WorkshopInstructors to the post of Instructors, de hors G.O.Ms.No.1081Education (J1) Department dated 19.08.1989 and that decision wasfollowed in a series of writ petitions and ultimately the saiddecision was upheld by the Division Bench of this Court in thejudgment dated 1.8.2007 and as per the order of the High Court, thefirst respondent has promoted the Workshop Instructors/JuniorDrafting Officers by implementing the same. It is also stated thatin Tamil Nadu Technical Education Subordinate Service Rules framedunder Article 309 of the Constitution of India vide G.O.220 HigherEducation (B1) Department dated 6.7.2009, the post of Instructor https://hcservices.ecourts.gov.in/hcservices/ (Engineering) in Polytechnics and special institutions remain asclass I in the annexure to Rule 9 of the Special Rules and themethod of appointment is prescribed including the direct recruitmentand promotion and therefore, according to the learned counsel forthe petitioners, by virtue of the implementation of the DivisionBench judgment, the executive instructions in G.O.Ms.No.1081 dated19.8.1989 cannot stand in pursuance of the rules framed inG.O.Ms.1364 Education Department dated 16.8.1988.6. On the other hand, it is the contention of Mr.G.Sankaran,learned Special Government Pleader that the petitioners who are non-teaching staff cannot aspire to become Lecturers by way of promotioneven if they are eligible for Instructors and they are not eligibleonly because they are qualified and as on date, the petitionerscannot claim themselves to be in feeder categories to the post ofLecturer. It is his submission that the right of promotion is not afundamental right by relying upon the judgment in Secretary, KamarajCollege vs. D.S.Arulmani [2008 (2) MLJ 593].7. It is the contention of Mr.S.R.Rajagopal, learned counselfor the third respondent that as far as the case of Ponni isconcerned, she was recruited by way of recruitment process byinternal arrangements and the right of promotion cannot be conferredon her, by relying upon the judgment in Union of India vs.Somasundaram Viswanath [(1989) 1 SCC 175]. 8. On the admitted fact that the petitioners are holding non-teaching posts either as Workshop Instructors or Junior DraftingOfficers, which remain as feeder categories for the post ofInstructor, as per G.O.Ms.1364, Education Department dated 16.8.1988by which the Government framed statutory rules in accordance withArticle 309 of the Constitution of India, an amendment has beenintroduced to the special rules for Tamil Nadu Technical EducationSubordinate Services (Section 45 in Volume III of the Tamil NaduService Manual 1970) and that amendment came into effect from23.12.1981.9. For the post of Instructor (Engineering), in Polytechnicsand special institutions and Instructor (Drawing) in Technical HighSchools, the amendment has been made enabling promotion and the sameis as follows:“AMENDMENTSIn the said Special Rules https://hcservices.ecourts.gov.in/hcservices/ (1) in column 3 of the Table under-sub-clause (a) ofRule 2 in Class II, Category 3, against the post ofInstructor (Engineering) Polytechnics and SpecialInstitutions and Instructor (Drawing) Technical HighSchools, under column (3), for the existing entries, thefollowing entries shall be substituted, namely:-(i) Promotion from the post of Foreman (automobile)in category 6, Boiler Foreman in Category 7, ElectricalForeman in Category 8, Workshop Instructor in Category 9of the said class and Draughtsman, Grade III in clause IV,Category 2 in the Polytechnics and Special Institutionsincluding Technical High Schools or (ii) District recruitment”10. Further, an amendment has been made in respect of the postof Instructor (Engineering) by way of promotion and the relevantprovision is as under:“Promotion from the categories of Foreman (Automobile)or Boiler Foreman or Electrical or Workshop Instructor orDraughtsman possessing Diploma Qualification in therespective branch of Engineering relating to the postsconcerned, with service for a period of not less than twoyears.”However, G.O.Ms.No.1081, Education (J1) Department dated 19.8.1989relates to certain instructions regarding revision of pay scales toteachers and that is not a statutory rule but only an executiveinstruction. In that, there is a term in Clause IV which is asfollows:“The recruitment to Instructor (teacher) cadre inPolytechnics and Special Diploma Institutions will bediscontinued. However, the existing Instructors shall bepromoted as Associate Lecturers as and when they acquirethe requisite degree qualifications”. The said term about dispensing with the post of Instructor which isnot being made as a statutory rule but as an executive instruction,has been made in a different context of revision of pay scales ofteachers in Polytechnics and Special Diploma Institutions.11. It is relevant to point out that in spite of the above saidreference made in G.O.Ms.No.1081 dated 19.8.1989 in the subsequent https://hcservices.ecourts.gov.in/hcservices/ G.O. passed by the Government in G.O.Ms.No.597 Higher EducationDepartment dated 1.12.1997, for the purpose of appointment to thepost of Lecturer, the appointment process is either by directrecruitment or recruitment by transfer from the category ofInstructors in the Tamil Nadu Technical Subordinate Service Rulesand the relevant rule is as follows:“3. Appointment: Appointment to the post shall be madeby,i. direct recruitmentii. Recruitment by transfer from the Category ofInstructors in the Tamil Nadu Technical EducationalSubordinate Service.”12. Further, as held by the Supreme Court in Union of India vs.Somasundaram Viswanath [(1989) 1 SCC 175] when there is a repugnancybetween the statutory rules framed under Article 309 of theConstitution of India and the executive instructions, the statutoryrules shall always prevail. Therefore, it is clear that under theTamil Nadu Technical Education Subordinate Service Rules which arestatutory rules framed under Article 309 of the Constitution ofIndia, the post of Instructor is still in existence.13. Again, by G.O.Ms.No.220, Higher Education (B1) Departmentdated 6.7.2009, the Government issued the special rules for TamilNadu Technical Educational Subordinate Service in continuation ofthe original statutory rules issued in G.O.Ms.No.2100, EducationDepartment dated 18.9.1981, due to the reason that the GovernmentEngineering colleges are also continuing under the TechnicalEducation Department and the statutory rules were again reissuedunder Article 309 of the Constitution of India and the said rulescame into effect from 6th July, 2009. Under that, in respect ofTamil Nadu Technical Educational Subordinate Service, the post ofInstructor (Workshop) is still retained in Engineering Colleges andthe posts of Instructors in various departments are retained inPolytechnics and the clause 2, which is relating to the appointmentto several categories of posts in service including the post ofInstructor (Workshop) has been directed to be made (i) by promotionfrom Artisan, Grade-I in the Engineering Colleges in Category 4 ofClass IV in the service; or (ii) by direct recruitment. 14. Again, for the post of Instructor (Engineering) inPolytechnics and Special Institutions, the method of recruitment hasbeen stated in the said statutory rules as, https://hcservices.ecourts.gov.in/hcservices/ “Promotion from the post of Foreman(Automobile) incategory 3, Boiler Foreman in Category 4; ElectricalForeman in category 5, Workshop Instructor in category 6of class and Junior Drafting Officer/Draftsman Grade IIIin category of Class IV in polytechnics and specialinstitutions” Again the said statutory rules contemplate the post of Instructor(Technical) which is filled up either by direct recruitment orrecruitment by transfer from any other service. 15. By virtue of the said latest statutory rules framed by theGovernment, it is clear that the post of Instructor in the technicalinstitutions, especially in polytechnics remains there as on date.Therefore, the contention that the post of Instructor has beendispensed with has no meaning. It is, in those circumstances,certain candidates who were holding the posts of WorkshopInstructors or Draftsmen which are non-teaching cadres, haveapproached this Court by filing a writ of Mandamus to promote themas Instructors and not to give effect to G.O.Ms.1081 Education (J1)Department dated 19.8.1989 which is only an executive instructionand that was in W.P.No.9111 of 1997 which came to be disposed of byorder dated 10.9.2004.16. F.M.Ibrahim Kalifulla,J. while passing orders in the abovewrit petition, viz., in W.P.No.9111 of 1997 referred to an earlierorder passed by this Court in W.P. No.4894 of 1993, etc. batch dated21.12.2000 and held as follows:“5.Having heard the learned counsel appearing for theparties and also on going through an earlier order of thisCourt in W.P.Nos.4894 and 7656 of 1993 dated 21.12.2000in respect of two others (workshop instructor anddraughtsman) in the Civil and Mechanical Departments,wherein the effect of G.O.Ms.No.1081 dated 19.8.1989 hasbeen considered, I find that after the issuance of theabove said Government Order by proceedings of the firstrespondent dated 19.05.1993 in letter No.488, the Directorof Technical Education issued a specific clarification tothe effect that the Government decided on principles thatthe existing establishment/Special Rules can be followedin the matter of service conditions of teachers inTechnical Institutions and Special Institutions, until theamendment is carried out in the Special Rules, pursuantto G.O.Ms.No.1081 dated 19.08.1989. By virtue of the https://hcservices.ecourts.gov.in/hcservices/ above said clarification issued by the first respondent-State, the resultant position is that the stipulationscontained in G.O.Ms.No.1081 dated 19.08.1989 was notimplemented, since necessary amendment to the Specialrules were not brought out after the issuance of the abovesaid Government Order. Further, it was made clear thatthe position, which was existing as on the date of theissuance of the said G.O.Ms.No.1081 dated 19.08.1989 is tobe followed in the matter of recruitment as well aspromotion to various posts existing in the differentPolytechnics and Special Institutions.6. When once that position was made clear by thefirst respondent, then having regard to G.O.Ms.No.1363dated 16.8.1988 persons possessing diploma qualificationin the respective branches of Engineering would beeligible for appointment as Instructor in the respectivebranches of Engineering by recruitment of transfer fromthe categories of Workshop Instructors/ Draughtsman/Workshop Foreman/Boiler Foreman/Electrical Foreman/Foreman(Auto) and Boiler Attender in the GovernmentPolytechnics and other special institutions, provided theyhave put in more than two years of service in therespective posts. In the light of the above said positionin relation to the consideration of petitioners' claimsfor being considered for the posts of the “Instructors” inthe second respondent-Institution, if posts of Instructorsin the Electric and Electronic and Mechanical Departmentsare available, the claims of the petitioners should havebeen considered. The apprehension of the secondrespondent-Institution based on the G.O.Ms.No.1081 dated19.08.1989 having thus been ruled out, the claims of thepetitioners should be considered for being promoted to theposts of instructors as and when vacancies arise in therespective branches.”17. That order came to be confirmed by the Division Bench inthe following words:“6. (i) We are unable to appreciate the contentionsraised by the Learned Government Advocate on the groundthat it is not the policy of the Government to make therecruitment. The Government itself as per the requestmade by the Correspondent passed the order dated 19.2.93for recruitment to the post of Instructor with qualifiedpersons of computer Science which is contrary to their owninstitutions. It is not the case of the any party thatthe writ petitioners are not qualified to hold the post ofInstructor. When the Government has taken a policy https://hcservices.ecourts.gov.in/hcservices/ decision not to go on recruitment to the post ofInstructor, giving instructions to fill up the post of“Instructor” by a Computer Science candidate is contraryto their own policy decision and it is also not correct.(ii) The amendment made to the Tamil Nadu TechnicalEducational Subordinate Services was by G.O.Ms.No.1364,Education Department dated 16.8.1988, but it was givenretrospective effect from 1981. Therefore, the writpetitioners are qualified even prior to that. When theamendment was given retrospective effect, it cannot becontended that the order of the learned single Judge toconsider the case of the Writ petitioners promotion witheffect from 1.7.1987 and 1.8.1986 is illegal.(iii) When once the appellant Government has createdthe promotional avenues, ignoring the eligible candidatesfor promotion to the post of Instructor from the post ofDraughtsman and permitting the institution to fill up thepost of Instructor by a Computer Science candidate isillegal. Therefore, the learned Single Judge is right insetting aside the order.7. Consequently, the writ appeals are dismissed.There will be no order as to costs.”18. It is relevant to point out that based on the judgment ofthe Division Bench as stated above, the Government has passedG.O.Ms.No.95, Higher Education (C1) Department dated 26.3.2008,promoting the persons who were working as Junior Drafting Officersas Instructors. It is also relevant to point out that the MaduraiBench of Madras High Court passed such an order in W.P.(MD) No.9428of 2005 on 6.3.2008 and the Government, following the said series ofjudgments, implemented the orders by promoting various JuniorDrafting Officers to the post of Instructors by creatingsupernumerary posts. 19. In the light of the above said discussions, the decision ofthe Division Bench of this Court relied upon by the learned counselfor the respondents in Secretary, Kamaraj College vs. D.S.Arulmani[2008 (2) MLJ 593] has no application to the facts of the presentcase.20. In the result, it has to be necessarily construed that thepost of Instructor which is a teaching post is still available tothe Polytechnics and as per G.O.Ms.1081 Education (J1) Departmentdated 19.8.1989, which has been reissued in G.O.Ms.No.220, HigherEducation (B1) Department, dated 6.7.2009, the petitioners areentitled to be considered for the posts of Instructors by promotion https://hcservices.ecourts.gov.in/hcservices/ as and when they are eligible and vacancies arise. It is only afterthe petitioners are considered for the posts of Instructors as perthe said Government Orders, their eligibility for the posts ofLecturers would come into effect and therefore, the relief as prayedfor in the writ petitions for directing the respondents to promotethe petitioners to the posts of Lecturers in polytechnic collegescannot be granted except with a direction to the respondents toconsider the case of the petitioners to promote them as Instructorsas per the statutory rules stated above, based on the availabilityof vacancies and pass appropriate orders within a period of eightweeks from the date of receipt of copy of this order. The writ petition stands disposed of accordingly. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.KhTo1.The Secretary to Government State of Tamil Nadu Department of EducationFort St.George, Chennai 9.2.The Commissioner/Director of Technical Education, Guindy, Chennai.3.The Principal Thiyagarajar Poly Technic (Autonomous Institution) Salem 636 005.1 cc to Mr.S.R. Rajagopal, Advocate, SR. 127381 cc to M/s. A. Arulmozhi, Advocate, SR. 11703W.P.No.848 of 2008KSJ (CO)kk 3/3