N.Muthukumaraswamy v. The Principal Secretary Higher Education Department Fort St.George, Chennai 600 009 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.08.2009CORAMTHE HONOURABLE MR.JUSTICE K.N.BASHAW.P.No.10978/2009 & MP.Nos.1 to 3/2009N.Muthukumaraswamy ..PetitionerVs1. The Principal Secretary Higher Education Department Fort St.George, Chennai 600 009.2. The Director of Collegiate Education College Road, Chennai 600 006. ..RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for a writ of certiorarified mandamus calling for theentire records pursuant to G.O.[D] No.133 Higher Education dated11.6.2009 issued by the first respondent and quash the same anddirect the respondents to promote the petitioner to the post ofPrincipal Grade II.For Petitioner :Mr.T.P.PrabhakaranFor Respondents:Mr.G.Sankaran,Spl.G.P.ORDERBy mutual consent of both the learned counsel for the petitionerand the learned Special Government Pleader, the main writ petition istaken up for final disposal.2.The petitioner has come forward with the present petitionseeking for the relief of quashing the order of the first respondentdated 11.6.2009 and to direct the respondents to promote thepetitioner to the post of Principal Grade II.3.The learned counsel for the petitioner contended that the nameof the petitioner was included in the interse seniority list dated24.03.2009 issued by the proceedings of the second respondent in RCNo.345/J2/2009. It is also submitted by the learned counsel for thepetitioner that again the second respondent in his proceedings in RC https://hcservices.ecourts.gov.in/hcservices/ No.345/J2/2009 dated 11.05.2009 finalising the interse seniority listof Readers and Lecturers working in the Government colleges referringthe earlier proceedings dated 24.03.2009 included the name of thepetitioner. It is contended by the learned counsel for thepetitioner that after including the name of the petitioner in theinter-se seniority list dated 24.3.2009 and 11.5.2009, surprisinglyexcluded the petitioner's name in the impugned order dated 11.6.2009for the promotion to the post of Principal Grade II post. It is alsopointed out by the learned counsel for the petitioner that as per theGovernment Order in G.O.Ms.No.177 Higher Education (F1) Departmentdated 11.06.2009, the first respondent issued a panel of 42 personsselected for the post of Grade II Principal for the year 2009 and inthe same order, it is stated that any person who has not beenincluded in the promotion list is entitled to give a representationwithin a period of two months from the date of issue of the orderdated 11.06.2009, but on the same day, the impugned order of postingof Principal Grade II was issued depriving the opportunity of thepetitioner to put forward his representation seeking for the reliefof including his name in the order dated 11.6.2009.4.Mr.G.Sankaran, learned Special Government Pleader on the otherhand submitted before this Court that the petitioner's name has beenincluded in the list prepared earlier on 24.03.2009 and the finallist on 11.05.2009 and his name was not included in the regular paneldated 11.06.2009 on the ground that the petitioner has not passed theAccounts test. It is contended by the learned Special GovernmentPleader that as per the Government Order in G.O.Ms.No.1265 Education(F2) Department dated 15.12.1992, the candidates who are working asLecturers are entitled for promotion only in the event of passingaccounts test. Learned Special Government Pleader [Education] wouldalso submit that a detailed counter was also filed by therespondents herein narrating the sequence of events and the reasonfor not including the petitioner's name in the impugned order dated11.6.2009 approving the regular panel for the promotion as Principalin Government Colleges. Therefore, it is contended that there is noillegality or infirmity in the impugned order dated 11.6.2009.5.In reply to the contentions put forward by the learned SpecialGovernment Pleader, it is submitted by the learned counsel for thepetitioner that the said government order dated 15.12.1992 inG.O.Ms.No.1265 Education [F2] Department, relied on by the learnedSpecial Government Pleader cannot have any statutory force as thesame is only a proposal for making certain amendments in the originalstatutory rules and till date the said proposal was not consideredand the rule was not amended accordingly and as such, as on datethere is no condition to pass the accounts test for seeking therelief of promotion as Principal.6.I have carefully considered the rival contentions put forwardon either side and also perused the materials available on record https://hcservices.ecourts.gov.in/hcservices/ including the impugned order and G.O.Ms.No.1265 Education [F2] dated15.12.1992 relied on by the learned Special Government Pleader.7.The fact remains that admittedly the petitioner is eligibleand qualified for the post of Principal and as a matter of fact, hisname was included in two lists prepared, viz., the first list dated24.3.2009 and the final list dated 11.5.2009 as per his seniority.But the petitioner's name was excluded in the impugned order dated11.6.2009 while the Government approving the regular panel forpromotion as Principal in Government Colleges. It is pertinent tonote that the first respondent herein, prior to the passing of theimpugned order, viz., G.O.[D] No.133 Higher Education dated11.6.2009, passed an order in G.O.[D] No.177 Higher Education on thesame day, viz., 11.6.2009 to the effect of directing the temporaryGrade II Principal at serial number 1 and the Selection GradeLecturers/Readers from Sl.No.2 to 42 are included in the regularpanel for the post of Grade II Principals for the year 2009 as perthe list incorporated in the said order. It is relevant to note thatin the very same order, it is specifically stated as here under:-"5.Any person, who wishes to make representationagainst his/her non inclusion in the panel shall doso, within a period of two months from the date ofissue of this order."But without affording any opportunity to the aggrieved personsincluding the petitioner to make their representation within a periodof two months from the date of issue of G.O.[D] No.177, the firstrespondent herein passed the impugned order on the same day, i.e.,11.6.2009 in G.O.[D] No.133 Higher Education. Therefore, this courthas no hesitation to hold that the first respondent herein passed theimpugned order in G.O.[D] No.133 dated 11.6.2009 in flagrantviolation of the principles of natural justice pursuant to theearlier order passed on the same day in G.O.[D] No.177.8.The contention put forward by the learned Special GovernmentPleader [Education] and the counter affidavit filed by the 2ndrespondent on his behalf and on behalf of the first respondent, makesit crystal clear that the only ground on which the petitioner's namewas not included in the impugned order dated 11.6.2009 in G.O.[D]No.133, is that the petitioner has not passed the accounts test. Asper the contention of the learned Special Government Pleader and asper the statement made in the counter affidavit and as perG.O.Ms.No.1265 Education [F2] Department dated 15.12.1992, thepassing of accounts test is a condition precedent for considerationof promotion as Principal in Government Colleges. At this juncture,it is better to refer the relevant portion of G.O.Ms.No.1265 dated15.12.1992 which reads hereunder:- https://hcservices.ecourts.gov.in/hcservices/ "3.The Commissioner of Collegiate Education, hasrecommended that the passing of Account test forExecutive Officers prescribed in the Special Rules ofTamil Nadu Collegiate Educational Service may bedispensed with and however passing of Account Testfor Executive Officer may be made as pre-requisitequalification for promotion as Principal. He hastherefore requested that necessary amendments may bemade to the Special Rules for Tamil Nadu CollegiateEducational service in this regard.4.The Government have examined the proposal ofthe Commissioner of Collegiate Education and havedecided that passing of Account Test for ExecutiveOfficer need not be insisted upon for collegeTeachers but however they should qualify themselvesby passing the Account Test for executive Officer forpromotion as Principal in Government Colleges.Accordingly the Commissioner of Collegiate Educationis requested to send necessary proposals for amendingthe Special Rules for Tamil Nadu CollegiateEducational Service in this regard."9.The reading of the above said portion of the government orderin G.O.Ms.No.1265 dated 15.12.1992 makes it crystal clear that theGovernment only accepted the proposal of the Commissioner of theCollegiate Education to the effect that the College teachers shouldqualify themselves by passing the accounts test for executiveOfficer for promotion as Principal in Government Colleges and theCommissioner of the Collegiate Education was requested to sendnecessary proposals for amending the Special Rules for Tamil NaduCollegiate Educational Services in this regard. But the admittedfact remains that the said proposal is not yet culminated into theamendment of the Special Rules for Tamil Nadu Collegiate EducationalServices. 10.In view of the above said undisputed fact, this court is ofthe considered view that the mere proposal to amend the rules cannothave any statutory status and the same cannot over-ride the rulesunder the Tamil Nadu Collegiate Educational Services. Therefore,this court has no hesitation to hold that there is absolutely nojustification or any legal impediment for denying the promotion ofthe petitioner by including the name of the petitioner in theimpugned order, viz., G.O.[D] No.133 dated 11.6.2009 for promotion tothe post of Principal in the Government Colleges.11.It is brought to the notice of this court that the petitioneralready reached the age of superannuation on 30.6.2009. At thisjuncture, it is also pertinent to note that this court while passing https://hcservices.ecourts.gov.in/hcservices/ the interim order dated 29.6.2009, recorded the statement of thelearned Special Government Pleader to the effect that in the event ofthe petitioner succeeding this writ petition, the petitioner would begiven all the benefits as if the petitioner deemed to have beenserved as Principal on the date of superannuation. In the very sameorder, this court also directed the respondents to keep one post ofPrincipal vacant pending disposal of the writ petition.12.In view of the aforesaid reasons, this court is constrainedto direct the respondents herein to include the name of thepetitioner in the impugned order, viz., G.O.[D] No.133 dated11.6.2009, approving the regular panel for promotion as Principal inthe Government Colleges and further this court is also constrained todirect the first respondent to treat the petitioner as if he hasdeemed to have been appointed and retired as Principal on the date ofsuperannuation, i.e., 30.6.2009 and further directed to give all theattendant benefits to the petitioner within a period of eight weeksfrom the date of receipt of a copy of this order.13.With the above direction, the writ petition is disposed of.No costs. Consequently, connected miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarapTo1. The Principal Secretary, Higher Education Department, Fort St.George, Chennai 600 009.2. The Director of Collegiate Education, College Road, Chennai 600 006.+ 1 c.c. to The Government Pleader. S.R.No.36350.W.P.No.10978/2009GG (CO)GSK 02.09.2009.