Dismissed

A.Natarajan v. the Principal Secretary

Madras HC21 Apr 2014WP/23327/2009

Case brief

AI extract

What is this about?

Petitioner sought promotion to Instructor post after retirement. Bench dismissed writ noting subsequent Government Orders abolished the Instructor post and reorganized cadres, rendering promotion unworkable.

What did the court decide?

Writ petition dismissed; consequential miscellaneous petition also dismissed.

What the court decided

A.Natarajan Vs the Principal Secretary — Pension and Retirement Benefits | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 21.04.2014

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CORAM

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THE HONOURABLE MR.JUSTICE T.RAJA

W.P.No.23327 of 2009

and

MP.No.1/2009

A.Natarajan .. Petitioner -vs1. The Principal Secretary / Commissioner Directorate of Technical Education Chennai-25 2. The Secretary to Government Higher Education Department Chennai-9 .. Respondents

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Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, to call for records connected in Memo No.27462/B2/2009 dated 17.9.2009 of the 1^st respondent and quash the same and direct the respondents to promote the petitioner as Instructor as per the Rules with all benefits.

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This writ petition has been filed by Mr.A.Natarajan seeking a prayer for issuance of a writ of certiorarified mandamus, to call for the records relating to the Memo No.27462/B2/2009 dated 17.9.2009 issued by the first respondent-Principal Secretary/Commissioner, Directorate of Technical Education and to quash the same with a further direction to the respondents to promote the petitioner as Instructor as per the Rules with all benefits.

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Learned counsel for the petitioner, in support of the prayer, pleaded before this Court that although the petitioner was initially appointed as Skilled Assistant in the year 1971 with ITI qualification at Government Polytechnic, Tiruchirappalli, he was again appointed as Motor Mechanic in the same college in the year

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https://hcservices.ecourts.gov.in/hcservices/

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Subsequently, when he passed the Diploma in Mechanical Engineering in the year 1980 and also passed the P.D.(W.Tech) in the year 1982, he was promoted as Junior Draughting Officer on 29.5.89. Since then he was continuously working till his retirement in June, 2009. Therefore, the grievance of the petitioner is that when he had put in 35 years of unblemished service, at the time of his retirement in the post of Junior Draughting Officer, he was possessing all the requisite qualification to the promotional post of Instructor, which demands the qualification of Diploma in Mechanical Engineering with two years experience. In spite of possessing all the requisite qualification, the respondents have denied promotion to the post of Instructor. Therefore, the petitioner made number of representations, but there was no response. In the meanwhile, similarly placed persons Mr.R.Vijayakumar and others filed Writ Petition No.9111 of 1997 before this Court seeking a direction to consider their claim for the post of Instructor in the available vacancies in accordance with the special rules. This Court, by order dated 10.9.2004, gave a direction to consider their claim in the available vacancies to the post of Instructor in accordance with the special rules. On the basis of the said order, Mr.R.Vijayakumar and others were promoted as Instructors, therefore, based on the said order passed by this Court, the petitioner also once again made a representation to the respondents to consider his case for promotion to the post of Instructor, as was given to others, as per the rules. But there was no progress on the said representation as well. Therefore, he came to this Court by filing Writ Petition No.12279 of 2009 with a prayer for issuance of a writ of mandamus or direction to the respondents to consider his claim and pass orders on his representation. Finally, in the light of the order passed by this Court in W.P.No.9111 of 1997 dated 10.9.2004, the respondents rejected the request of the petitioner, hence, the petitioner has once again come to this Court with the present writ petition challenging the correctness of the rejection order dated 17.9.2009.

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Learned counsel for the petitioner, continuing his arguments, submitted before this Court that when the respondents issued G.O.Ms.No.1081, Education (J1) Department dated 19.8.89 discontinuing the recruitment to the post of Instructor (Teacher) Cadre in Polytechnics and Special Diploma Institutions, this Court, by order dated 23.2.2010 in W.P.No.848 of 2008, while dealing with G.O.Ms.No.1081 dated 19.8.89, held that the said Government Order has no statutory force, as it was not issued by exercising the power under Article 309 of the Constitution of India, however, by taking note of another G.O.Ms.No.1364, Education Department dated 16.8.88, by which the Government framed statutory rules in accordance with Article 309 of the Constitution of India, under which an amendment was also issued to the Special Rules for Tamil Nadu Technical Education Subordinate Services in respect of the post of Instructor (Engineering) by way of promotion, it was held that the action taken by the respondents to dispense with the post of Instructor, which was not made as statutory rule, but as executive instruction, directed

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https://hcservices.ecourts.gov.in/hcservices/

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the respondents to consider the case of the petitioners therein for the post of Instructor as per G.O.Ms.No.1364 dated 16.8.88 read with the order passed by this Court in W.P.No.9111 of 1997 dated 10.9.2004, referring to the earlier order in W.P.Nos.4894 and 7656 of 1993 dated 21.12.2000, and when the order passed by this Court in the above W.P.No.848 of 2008 dated 23.2.2010 was confirmed by the Hon'ble Division Bench in W.A.No.1909 of 2010 dated 22.8.2011, the respondents cannot refuse to consider the case of the petitioner for the promotional post. Adding further, it was stated that although the petitioner retired from service on reaching the age of superannuation in June, 2009, the respondents are not going to face any administrative prejudice or inconvenience by promoting the petitioner, as the petitioner is going to get only the service benefits.

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Opposing the above prayer, a detailed counter affidavit has been filed by the respondents. Learned Additional Government Pleader appearing for the respondents submitted that when G.O.Ms.No.1081, Education (J1) Department dated 19.8.89 was issued stating that the recruitment to the Instructor cadre in Polytechnics and Special Diploma institutions would be discontinued, even after passing of the said Government Order, the then existing Instructors were to be promoted as Associate Lecturers (Lecturers) as and when they acquire the requisite degree qualification. However, after the said Government Order was issued in 1989, recruitment to the post of Instructor in polytechnics was completely stopped. Only in view of the above mentioned situation, the request of the petitioner was rejected in the impugned order. However, when this Court in the above said order passed in W.P.No.848 of 2008 dated 23.2.2010 directed the respondents to consider the case of similarly placed persons on the basis of the order passed by this Court in W.P.Nos.4894 and 7656 of 1993 dated 21.12.2000 along with G.O.Ms.No.1081 dated 19.8.89, promotions were given. But, subsequently, two other Government Orders have been issued by the respondents. One G.O.Ms.No.111, Higher Education Department dated 25.5.2010 was issued revising the scale of pay in respect of teaching faculty in polytechnic colleges and special diploma institutions with effect from 1.1.2006, for the reason that the pay structure has been governed by the AICTE. Moreover, the said G.O.Ms.No.111, Higher Education Department dated 25.5.2010 was passed abolishing the post of Instructor. In view of the above G.O.Ms.No.111 dated 25.5.2010 abolishing the post of Instructor, there is no provision to fix the pay scale for the post of Instructor.

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Adding further, learned Additional Government Pleader for the respondents submitted that pursuant to the above G.O.Ms.No.111 dated 25.5.2010, one another G.O.Ms.No.48, Higher Education (C2) Department dated 28.3.2013 for reorganizing the cadre strength of teaching posts in line with AICTE guidelines had also been issued. Now although the petitioner is right in asking this Court and also the respondents to consider his case on the basis of the order passed by this Court in

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.No.848 of 2008 dated 23.2.2010, much after the order passed by this Court in the above mentioned writ petition, these two Government Orders, namely, G.O.Ms.No.111, Higher Education Department dated 25.5.2010 abolishing the post of Instructor followed by the G.O.Ms.No.48, Higher Education (C2) Department dated 28.3.2010 for reorganizing the cadre strength of teaching posts in line with the AICTE guidelines have also been issued. But the petitioner has not challenged any one of these Government Orders. Therefore, even if a direction is given by this Court, as was given by this Court in the earlier W.P.No.848 of 2008 dated 23.2.2010, since there is no provision to fix the pay scale for the post of Instructor, the respondents would not be in a position to fix the scale of pay for the post of Instructor. Moreover, even as per the G.O.Ms.No.48 dated 28.3.2013, all the senior Lecturer posts and Instructor posts are completely surrendered. In view of that, Lecturer posts are newly created in all the polytechnics and special diploma institutions, as a result, the post of Lecturer has become the entry level teaching post and the post of Instructor is no more available in any one of the Government polytechnics in Tamil Nadu.

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This Court finds merit in the submissions made by the learned Additional Government Pleader for the respondents. Even if this Court, falling in line with the earlier order passed by this Court in W.P.No.848 of 2008 dated 23.2.2010, gives a direction to the respondents to consider the petitioner's case for the promotional post of Instructor, in view of the subsequent Government Orders in G.O.Ms.No.111, Higher Education Department dated 25.5.2010 and G.O.Ms.No.48, Higher Education (C2) Department dated 28.3.2013 abolishing the post of Instructor and reorganizing the cadre strength of teaching posts respectively, the petitioner may not be in a position to enjoy the fruits of promotion. Therefore, this Court is unable to consider the prayer of the petitioner, as much water has flown down after the order was passed by this Court in W.P.No.848 of 2008 dated 23.2.2010. In view of the above, the writ petition fails and the same is dismissed. Consequently, M.P.No.1 of 2009 is also dismissed. No costs.

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Sd/Asst. Registrar. Dt/-23/05/2014. /true copy/

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Sub Asst. Registrar.

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https://hcservices.ecourts.gov.in/hcservices/

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To 1. The Principal Secretary / Commissioner Directorate of Technical Education Chennai 600 025 2. The Secretary to Government Higher Education Department Fort St.George Chennai 600 009 1 CC to the Government Pleader SR NO 19020 1 CC To Mr.G.Elanchezhiyan, Advocate SR NO.19133 W.P.No.23327 of 2009

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RJ[co] gp/26.5.

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https://hcservices.ecourts.gov.in/hcservices/

A.Natarajan v. the Principal Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

A.Natarajan v. the Principal Secretary

Case brief

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What did the court decide?

What the court decided

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