E.Thanga Nadar v. The Joint Director of Collegiate Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.6.2009CORAMTHE HONOURABLE MR. JUSTICE R.SUDHAKARWrit Petition No.9355 of 2000 E.Thanga Nadar. ... Petitioner vs.1. The Joint Director of Collegiate Education, Tirunelveli Division, Tirunelveli 627 002.2. The Secretary, Vivekananda College, Agasteeswaram Post, Nagercoil 629 701.3. P.Vasantha, Superintendent, Vivekananda College, Agasteeswaram Post, Nagercoil 629 701. ... Respondents Writ Petition is filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus calling for therecords relating to the proceedings in Rc.No.E2/21792/98, dated8.2.2000 on the file of the Joint Director of Collegiate Education,Tirunelveli Region, Tirunelveli-2 (the first respondent) and to quashthe same and direct the respondents 1 and 2 to pass suitable ordersto promote the petitioner to the post of Superintendent, VivekanandaCollege, Agastheeswaram, Nagercoil (the second respondent) witheffect from 1.11.1978 with all the benefits.For Petitioner : Mr.S.SubbiahFor Respondents : Mr.A.Suresh, Government Advocate for R1 : Mr.C.Godwin for R2 : Mr.K.Ravichandrababu for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner has come before this court challenging the orderof the first respondent in Rc.No.E2/21792/98 dated 8.2.2000.2. The brief facts of the case is as follows:- The petitionerjoined the services of the second respondent college, an aidedinstitution under the provisions of Tamil Nadu Private Colleges(Regulation) Act No.XIX of 1976 and the Rules thereunder. He joinedin the second respondent college as a Laboratory Attender on1.8.1974. He was promoted as Lab Assistant on 20.7.1987.Thereafter, he was promoted as Junior Assistant on 20.1.1995 which isdisputed by the second respondent. According to the secondrespondent the date of promotion to the post of Junior Assistant is21.5.1995). The petitioner, thereafter was promoted as Assistant on3.8.1995. The petitioner is aggrieved by the promotion given tothe third respondent to the post of Superintendent from the categoryof Assistant overlooking his claim for promotion to the post ofSuperintendent. 3. So far as the third respondent is concerned, according tothe counter-affidavit of the second respondent college supported bythe counter-affidavit filed by the third respondent, she wasappointed as typist on 13.1.1988. According the second respondentcollege, the post of typist is in the cadre of junior assistant.The third respondent was promoted as Assistant on 16.6.1994 based onher seniority in the post of junior assistant. Since there is noadverse remarks, the third respondent was promoted as Superintendenton and from 2.11.1998. Such promotion of the third respondent asSuperintendent was approved by the first respondent in proceedingsM.M.No.803/E2/99 dated 3.8.1999. 4. Petitioner made an appeal dated 8.2.1999 to the firstrespondent. The case of the petitioner was considered by the firstrespondent Joint Director of Collegiate Education on merits and hisclaim for promotion to the post of Superintendent was rejected. Suchorder is now under challenge.5. According to the petitioner, he became a LaboratoryAssistant in the year 1987 and in terms of G.O.No.11 dated 4.1.1989the petitioner falls under the category of junior assistant.Therefore, the third respondent who joined as typist on 13.1.1988, isfar junior to the petitioner. Hence, the promotion to the post ofJunior Assistant given to the petitioner in the year 1995 has causedgreat prejudice. If the date of appointment as Laboratory Assistantis taken into consideration, the petitioner is senior over the thirdrespondent. Therefore, his claim to the post of Junior Assistantshould have been considered as on the date when he became Laboratory https://hcservices.ecourts.gov.in/hcservices/ Assistant and not in the year 1995, when the actual order ofpromotion as Junior Assistant was issued. If the date of promotionto Laboratory Assistant is taken as relevant date, the petitionerbecomes senior to the third respondent and he is entitled to bepromoted as Assistant much earlier to the third respondent andconsequently entitled to promotion as Superintendent. On thispremise, the writ petition is canvassed.6. The second respondent college on the other hand contendedthat the G.O.No.11 dated 4.1.1989 is prospective and in any event thethird respondent was appointed as a typist in the year 1988 itself inthe category of Junior Assistant. Therefore, third respondent issenior to the petitioner who became a Junior Assistant only in theyear 1995. The second respondent also referred to the scale of payunder different category in para 4 of the counter-affidavit, which isextracted below:-"4. I submit that the scale of pay for LabAssistant is Rs.3,050-75-3950-100-4590. The scaleof pay for Junior Assistant is Rs.3,200-85-4900.The scale of pay for Assistant is Rs.4,000-100-6000. I submit that the 3rd respondent waspromoted as Superintendent based upon cadreseniority in Assistant Cadre. She has gotexperience of 4 years and 5 months as Assistant on02-11-1998 whereas the petitioner has got anexperience of only 3 years 3 months as Assistantas on 3-11-1998. The 3rd respondent being thesenior in the assistant cadre and she was promotedto the post of Superintendent."It is further contended by the second respondent that the petitionerhas not challenged his promotion to the post of Junior Assistant madeon 21.5.1995 (20.1.1995 as per the petitioner's case) which is thefeeder category to the post of Assistant. The petitioner has alsonot chosen to contest or claim that he should be treated as JuniorAssistant in terms of G.O.No.11 dated 4.1.1999. Therefore, he cannotchallenge the promotion of the third respondent to the post ofSuperintendent for which the feeder category is Assistant. In thatcategory, the petitioner is junior to the third respondent. 7. The third respondent, who was promoted to the post ofSuperintendent, reiterated the stand taken by the second respondentcollege. The counsel for the third respondent stated that the thirdrespondent had put in much longer period of service in the post ofTypist, in the cadre of Junior Assistant. She is also senior and haslonger service as Assistant and is therefore, rightly entitled tothe promotion as Superintendent. https://hcservices.ecourts.gov.in/hcservices/

8. It is not disputed by the petitioner that the post of JuniorAssistant is a feeder category to the post of Assistant and the postof Assistant is the feeder category to the post of Superintendent.Therefore, the petitioner cannot now canvass to set the clock backand seek promotion as Junior Assistant from the year 1987,particularly when he has not challenged his promotion as JuniorAssistant in the year 1995. 9. The order impugned does not deserve to be interfered withby this court for the following reasons:-(i) The admitted fact is that the post of Junior Assistant is thefeeder category to the post of Assistant and that the post ofAssistant is the feeder category to the post of Superintendent.The third respondent was appointed as Typist in the category ofJunior Assistant on 13.1.1988 whereas the petitioner was promotedas Junior Assistant on 20.1.1995 (according to the thirdrespondent 21.5.1995).(ii) The petitioner was promoted as Assistant on 3.8.1995 whereasthe third respondent was promoted as Assistant on 16.6.1994.Therefore, the third respondent's seniority cannot be disputed.(iii) The third respondent is senior both in the post of JuniorAssistant and also in the post of Assistant and that is also notin dispute.(iv) Therefore, the promotion of the third respondent to the postof Superintendent on the basis of seniority and in the absence ofany other material to discredit her promotion, the plea of thepetitioner that he should be considered for promotion to thepost of Superintendent cannot be accepted as the third respondentadmittedly is a senior to the petitioner and therefore, thepetitioner cannot have any grievance, particularly in view of theRule 11(4) of Tamil Nadu Private Colleges (Regulation) Rules,1976.(v)The other contention raised by the learned counsel for thepetitioner that in terms of the G.O.No.11 dated 4.1.1989, theappointment of the petitioner to the post of Laboratory Assistantin the year 1987 should be treated as Junior Assistant cannot beaccepted at this point of time, because the petitioner has notchosen to challenge his promotion as Junior Assistant made on20.1.1995 (according to the third respondent 21.5.1995). Havingfailed to establish his right to his claim as Junior Assistant inaccordance with G.O.No.11 dated 4.1.1989, the petitioner cannotnow plead that his case should be considered based on theseniority in the post of Junior Assistant. https://hcservices.ecourts.gov.in/hcservices/

10. Even as per the facts narrated above, it is clear that thepetitioner is far junior to the third respondent in the post ofAssistant, which is the feeder category to the post ofSuperintendent. Hence, the claim of the petitioner was rightlyrejected and the claim of the third respondent was considered by thesecond respondent and approved by the first respondent. Petitionerhas not made out a case on merits to consider his claim for promotionto the post of Superintendent.11. In the result, the Writ Petition fails and is dismissed.There will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsTo 1. The Joint Director of Collegiate Education, Tirunelveli Division, Tirunelveli 627 002. 1 cc To Mr.C.Godwin, Advocate, SR.226721 cc To Mr.S.Subbiah, Advocate, SR.225091 cc To Mr.K.Ravichandrababu, Advocate, SR.218321 cc To The Government Pleader, SR.22041W.P.No.9355 of 2000nsm(co)pmk.18.6.2009.