IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.6.2009 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ 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 of India to issue a Writ of Certiorarified Mandamus calling for the records relating to the proceedings in Rc.No.E2/21792/98, dated 8.2.2000 on the file of the Joint Director of Collegiate Education, Tirunelveli Region, Tirunelveli-2 (the first respondent) and to quash the same and direct the respondents 1 and 2 to pass suitable orders to promote the petitioner to the post of Superintendent, Vivekananda College, Agastheeswaram, Nagercoil (the second respondent) with effect from 1.11.1978 with all the benefits. For Petitioner : Mr.S.Subbiah For 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 R The petitioner has come before this court challenging the order of the first respondent in Rc.No.E2/21792/98 dated 8.2.2000. 2. The brief facts of the case is as follows:- The petitioner joined the services of the second respondent college, an aided institution under the provisions of Tamil Nadu Private Colleges (Regulation) Act No.XIX of 1976 and the Rules thereunder. He joined in the second respondent college as a Laboratory Attender on 1.8.1974. He was promoted as Lab Assistant on 20.7.1987. Thereafter, he was promoted as Junior Assistant on 20.1.1995 which is disputed by the second respondent. According to the second respondent the date of promotion to the post of Junior Assistant is 21.5.1995). The petitioner, thereafter was promoted as Assistant on 3.8.1995. The petitioner is aggrieved by the promotion given to the third respondent to the post of Superintendent from the category of Assistant overlooking his claim for promotion to the post of Superintendent. 3. So far as the third respondent is concerned, according to the counter-affidavit of the second respondent college supported by the counter-affidavit filed by the third respondent, she was appointed as typist on 13.1.1988. According the second respondent college, the post of typist is in the cadre of junior assistant. The third respondent was promoted as Assistant on 16.6.1994 based on her seniority in the post of junior assistant. Since there is no adverse remarks, the third respondent was promoted as Superintendent on and from 2.11.1998. Such promotion of the third respondent as Superintendent was approved by the first respondent in proceedings M.M.No.803/E2/99 dated 3.8.1999. 4. Petitioner made an appeal dated 8.2.1999 to the first respondent. The case of the petitioner was considered by the first respondent Joint Director of Collegiate Education on merits and his claim for promotion to the post of Superintendent was rejected. Such order is now under challenge. 5. According to the petitioner, he became a Laboratory Assistant in the year 1987 and in terms of G.O.No.11 dated 4.1.1989 the petitioner falls under the category of junior assistant. Therefore, the third respondent who joined as typist on 13.1.1988, is far junior to the petitioner. Hence, the promotion to the post of Junior Assistant given to the petitioner in the year 1995 has caused great prejudice. If the date of appointment as Laboratory Assistant is taken into consideration, the petitioner is senior over the third respondent. Therefore, his claim to the post of Junior Assistant should 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 of promotion as Junior Assistant was issued. If the date of promotion to Laboratory Assistant is taken as relevant date, the petitioner becomes senior to the third respondent and he is entitled to be promoted as Assistant much earlier to the third respondent and consequently entitled to promotion as Superintendent. On this premise, the writ petition is canvassed. 6. The second respondent college on the other hand contended that the G.O.No.11 dated 4.1.1989 is prospective and in any event the third respondent was appointed as a typist in the year 1988 itself in the category of Junior Assistant. Therefore, third respondent is senior to the petitioner who became a Junior Assistant only in the year 1995. The second respondent also referred to the scale of pay under different category in para 4 of the counter-affidavit, which is extracted below:- "4. I submit that the scale of pay for Lab Assistant is Rs.3,050-75-3950-100-4590. The scale of 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 was promoted as Superintendent based upon cadre seniority in Assistant Cadre. She has got experience of 4 years and 5 months as Assistant on 02-11-1998 whereas the petitioner has got an experience of only 3 years 3 months as Assistant as on 3-11-1998. The 3rd respondent being the senior in the assistant cadre and she was promoted to the post of Superintendent." It is further contended by the second respondent that the petitioner has not challenged his promotion to the post of Junior Assistant made on 21.5.1995 (20.1.1995 as per the petitioner's case) which is the feeder category to the post of Assistant. The petitioner has also not chosen to contest or claim that he should be treated as Junior Assistant in terms of G.O.No.11 dated 4.1.1999. Therefore, he cannot challenge the promotion of the third respondent to the post of Superintendent for which the feeder category is Assistant. In that category, the petitioner is junior to the third respondent. 7. The third respondent, who was promoted to the post of Superintendent, reiterated the stand taken by the second respondent college. The counsel for the third respondent stated that the third respondent had put in much longer period of service in the post of Typist, in the cadre of Junior Assistant. She is also senior and has longer service as Assistant and is therefore, rightly entitled to the promotion as Superintendent. https://hcservices.ecourts.gov.in/hcservices/ 8. It is not disputed by the petitioner that the post of Junior Assistant is a feeder category to the post of Assistant and the post of Assistant is the feeder category to the post of Superintendent. Therefore, the petitioner cannot now canvass to set the clock back and seek promotion as Junior Assistant from the year 1987, particularly when he has not challenged his promotion as Junior Assistant in the year 1995. 9. The order impugned does not deserve to be interfered with by this court for the following reasons:- (i) The admitted fact is that the post of Junior Assistant is the feeder category to the post of Assistant and that the post of Assistant is the feeder category to the post of Superintendent. The third respondent was appointed as Typist in the category of Junior Assistant on 13.1.1988 whereas the petitioner was promoted as Junior Assistant on 20.1.1995 (according to the third respondent 21.5.1995). (ii) The petitioner was promoted as Assistant on 3.8.1995 whereas the 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 Junior Assistant and also in the post of Assistant and that is also not in dispute. (iv) Therefore, the promotion of the third respondent to the post of Superintendent on the basis of seniority and in the absence of any other material to discredit her promotion, the plea of the petitioner that he should be considered for promotion to the post of Superintendent cannot be accepted as the third respondent admittedly is a senior to the petitioner and therefore, the petitioner cannot have any grievance, particularly in view of the Rule 11(4) of Tamil Nadu Private Colleges (Regulation) Rules, 1976. (v) The other contention raised by the learned counsel for the petitioner that in terms of the G.O.No.11 dated 4.1.1989, the appointment of the petitioner to the post of Laboratory Assistant in the year 1987 should be treated as Junior Assistant cannot be accepted at this point of time, because the petitioner has not chosen to challenge his promotion as Junior Assistant made on 20.1.1995 (according to the third respondent 21.5.1995). Having failed to establish his right to his claim as Junior Assistant in accordance with G.O.No.11 dated 4.1.1989, the petitioner cannot now plead that his case should be considered based on the seniority in the post of Junior Assistant. https://hcservices.ecourts.gov.in/hcservices/ 10. Even as per the facts narrated above, it is clear that the petitioner is far junior to the third respondent in the post of Assistant, which is the feeder category to the post of Superintendent. Hence, the claim of the petitioner was rightly rejected and the claim of the third respondent was considered by the second respondent and approved by the first respondent. Petitioner has not made out a case on merits to consider his claim for promotion to 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.Registrar ts To 1. The Joint Director of Collegiate Education, Tirunelveli Division, Tirunelveli 627 002. 1 cc To Mr.C.Godwin, Advocate, SR.22672 1 cc To Mr.S.Subbiah, Advocate, SR.22509 1 cc To Mr.K.Ravichandrababu, Advocate, SR.21832 1 cc To The Government Pleader, SR.22041 W.P.No.9355 of 2000 nsm(co) pmk.18.6.2009. https://hcservices.ecourts.gov.in/hcservices/