K.Sundarapandiyan v. The Secretary to Government, Higher Education Department, Chennai-92 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 19.12.2009CORAMTHE HONOURABLE MR.JUSTICE D. HARIPARANTHAMANW.P. No.8715 of 2006K.Sundarapandiyan ... Petitioner-vs-1. The Secretary to Government, Higher Education Department, Chennai-92. The Additional Director of Technical Education, Guindy, Chennai... RespondentsPrayer: This Writ Petition came to be numbered under Article 226of the Constitution of India by way of transfer of O.A. No.1754of 2001 from the file of the Tamil Nadu Administrative Tribunal,to direct the respondents to promote the petitioner as instructoras per the Government Order No.1363 Education Department dated16.08.1988 on completion of Diploma qualification with effectfrom 1982 and give consequential promotion as Associate lectureras given to one Thiru Vinayagamoorthy in G.O. Ms. No.472Technical Education Department, dated 10.09.1998 and fix his payon par with Junior Thiru Vinayagamoorthy and pay arrears.For Petitioner: Mr. G. ElanchezhiyanFor Respondents: Mrs.C.K.Vishnu Priya Additional Government Pleader O R D E RThe Original Application in O.A. No.1754 of 2001 before theTamil Nadu Administrative Tribunal is the present Writ Petition. 2. The petitioner was appointed as a Workshop Assistant on07.09.1979. He was promoted as Draughtsman on 01.02.1980. He wasfurther promoted as Instructor on 21.12.1988. Before 1988, thepost of Instructors in Government Polytechnics were filled uponly by direct recruitment. By G.O. Ms. No.1364, EducationDepartment, dated 16.08.1988, the Special Rules for the TamilNadu Technical Educational Subordinate Service was amendedproviding for promotion to Instructors from the categories ofForeman (Automobile) or Boiler Foreman or Electrical Foreman orWorkshop Instructor or Draughtsman who are possessing diploma https://hcservices.ecourts.gov.in/hcservices/ qualification in the respective branch of engineering relating tothe posts concerned. There is also a stipulation that they shouldhave served atleast for a period of two years in the feedercategory. The amendment was given retrospective effect from23.12.1981. 3. The petitioner acquired diploma qualification inMechanical Engineering in April 1975 and he was promoted on21.12.1988 as Instructor. He made a representation dated27.10.1999 to the first respondent to promote him as per G.O. Ms.No.1364, Education Department, dated 16.08.1988, as the amendmentmade to Special Rules for the Tamil Nadu Technical EducationalSubordinate Service came into effect retrospectively from23.12.1981. The petitioner cited the case of one Mr.Vinayagamoorthy as the same was favourably considered by therespondents by giving deemed promotion retrospectively. Since hisrepresentation was not considered and no order was passed, hefiled O.A. No.1754 of 2001 (W.P. No.8715 of 2006) praying for adirection to the respondents to promote him as Instructor from1982, and also to give consequential promotion as AssociateLecturer as given to one Thiru Vinayagamoorthy, who is a juniorto him, and to fix his pay on par with Thiru Vinayagamoorthy. 4. Heard Mr. G. Elanchezhiyan, learned counsel for thepetitioner and Mrs.C.K.Vishnu Priya, learned AdditionalGovernment Pleader for respondents.5. Though the prayer of the Writ Petitioner is to promotehim with effect from 01.01.1982, as per G.O. Ms. No.1364,Education Department, dated 16.08.1988, the learned counsel forthe petitioner fairly submits that as per G.O. Ms. No.1364,Education Department, dated 16.08.1988, he is entitled topromotion as Instructor only from 01.02.1982, on completion oftwo years of service as Draughtsman, the feeder category. 6. Thiru Vinayagamoorthy joined the service as Draughtsman,which is the feeder category for Instructor. He was promoted asInstructor in December 1988. In view of the amendment made to theSpecial Rules for the Tamil Nadu Technical EducationalSubordinate Service, he approached the Tamil Nadu AdministrativeTribunal and filed an Original Application in O.A. No.4286 of1996, praying to direct the respondents to consider hisrepresentation for promotion to the post of Instructorretrospectively as per the amendment made to the Special Rulesfor Tamil Nadu Technical Educational Subordinate Service. Basedon the order of the Tribunal, the first respondent passed G.O.Ms. No.472, Higher Education Department, dated 10.09.1998,appointing him as Instructor with effect from 07.01.1982retrospectively in the institute of Chemical Technology, Chennai.As stated above, the post of Draughtsman was a feeder post. Whilehe was actually promoted on 20.12.1988, the aforesaid G.O. Ms.No.472 granted him deemed promotion restrospectively with effectfrom 07.01.1982. Armed with G.O. Ms. No.472 the petitioner https://hcservices.ecourts.gov.in/hcservices/ approached the first respondent seeking similar relief. When hisrepresentation was not considered, he filed the O.A. as statedabove. 7. The learned counsel for the petitioner has filed someorders granting retrospective promotion to some persons in theadditional typed set of papers in support of his submissions.Three persons namely, N. Arunachalam, A. Albert Jesudoss and R.Rajagopal filed Original Applications in O.A. Nos.8415, 8416 and8417 of 2000 claiming similar relief as given to ThiruVinayagamoorthy. The Tribunal passed an order on 14.03.2002,directing the respondents to consider the representations ofthose persons on merits, based on the orders passed in the caseof Thiru Vinayagamoorthy. However, the first respondent passed anorder dated 01.12.2004, refusing to grant promotionretrospectively. Hence, the said three persons and also one ThiruG. Mathivanan have filed Writ Petition in W.P. No.4660 of 2005praying for restrospective promotion as given to ThiruVinayagamoorthy. This Court, on 30.10.2006, allowed the WritPetition. Paras 10 and 11 of the said order are extracted hereunder:"10. On the basis of the said notification,the State Administrative Tribunal has issueddirections in favour of Shri. Vinayagamoorthyand also in favour of the petitioners. Therespondents have considered the case ofVinayagamoorthy, whereas, the respondentshave not considered the case of thepetitioners. Thus, the Court is unable tofind the discrimination in the two orders.11. For the simple reason, the Court is ofthe opinion that the petitioners are entitledfor the relief as sought for and accordingly,the impugned order is quashed and therespondents are directed to consider the caseof the petitioners within 30 days from thedate of receipt of a copy of this order andissue necessary orders regularising theservices of the petitioners from the date ofqualifying diploma as mentioned in theirrecord." 8. The respondents filed a Writ Appeal in W.A. No.261 of2008 and the same was dismissed by the first Bench of this Courton 08.04.2008, confirming the order of the learned Single Judge.Thereafter, the first respondent issued G.O. Ms. No.89, HigherEducation Department, dated 31.03.2009 granting retrospectivepromotion to those four persons. 9. In these circumstances, I am of the opinion that thepetitioner is similarly situated like Thiru Vinayagamoorthy andthe four other persons referred to above. As fairly submitted by https://hcservices.ecourts.gov.in/hcservices/ the learned counsel for the petitioner, the petitioner isentitled to retrospective promotion only from 01.02.1982 and notfrom 01.01.1982, as claimed in the application. 10. Further, the learned counsel for the petitioner alsofairly submits that he is not entitled to pay on par with ThiruVinayagamoorthy, though he is his junior. The learned counselsubmits that he is entitled to the pay of Instructor, only from01.02.1982, whereas Thiru Vinayagamoorthy was granted the pay ofInstructor from 07.01.1982. 11. In these circumstances, the respondents are directed togrant deemed promotion retrospectively as Instructor topetitioner with effect from 01.02.1982 with consequentialbenefits as given to other similarly situated persons in terms ofthe order dated 30.10.2006 in W.P. No.4660 of 2005 and the orderdated 08.04.2008 in W.A. No.261 of 2008, within a period oftwelve weeks from the date of receipt of a copy of this order. 12. This Writ Petition is ordered accordingly. No costs. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarrnsTo1. The Secretary to Government, Higher Education Department, Chennai-92. The Additional Director of Technical Education, Guindy, Chennai+ 1 cc to Mr.G.Elanchezhiyan,Advocate,SR.70325+ 1 cc to Government Pleader,SR.70443W.P. No.8715 of 2006RSM(CO)EM/27.1.10