IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.11.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.29607 of 2008 G.Elayaperumal ..Petitioner Vs. 1. The State of Tamil Nadu rep. by its Secretary to Government School Education Department Secretariat, Chennai – 600 009. 2. The Director of School Education College Road, Chennai – 600 006. 3. The Chief Educational Officer Villupuram, Villupuram District. ..Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the respondents to consider the petitioner for promotion as Drawing Teacher by recruitment by transfer in any one of the schools in Villupuram District, in the light of the order passed in W.P.No.23412 of 2008, dated 30.9.2008. For Petitioner : Mr.T.Sellapandian for M/s.M.Hidayathulla Khan For Respondents: Mr.R.Murali Government Advocate ORDER The writ petitioner was originally appointed as an Office Assistant on 10.8.1981 and was subsequently promoted as Record Clerk on 22.3.2000. Later, he was further promoted as Laboratory Assistant on 14.5.2003. It is the case of the petitioner that he has qualified himself to be appointed as a Drawing Master, which is a teaching post. However, his claim has not been considered on the ground that he has been holding a non-teaching staff post and therefore, not eligible to transfer into the teaching side. The petitioner has made many representations, including the representation to the third respondent dated 20.10.2008, requesting for considering him for the https://hcservices.ecourts.gov.in/hcservices/ teaching post of Drawing Master. As no orders have been passed, the present writ petition is filed. 2. It is seen that under similar circumstances, N.PAUL VASANTHAKUMAR,J. in W.P.No.23412 of 2008, in the case of A.C.Manikandan v. The Director of School Education, Chennai-6 and another, by order dated 30.9.2008, while referring to Rule 2 of the Tamil Nadu Educational Subordinate Service Rules wherein for the purpose of filling up of the post of Drawing Master various methods have been shown, in which one method is recruitment by transfer from any other service, and relying upon various other judgments and Government Orders, including G.O.Ms.No.753, Education Department, dated 15.7.1985 which is still in force without any amendment, directed the Director of School Education to consider the claim of the petitioner therein as per his representation in the light of G.O.Ms.No.753, Education Department, dated 15.7.1985, without reference to the Government letter dated 18.12.2000. This Court has referred to the Tamil Nadu Educational Subordinate Service Rules in relation to the Drawing Masters and the method of appointment, which is as follows: "(i) Promotion from II Grade for I Grade and III Grade for II Grade (ii) If no qualified and suitable candidate is available for appointment by method (i) above, (a) Direct recruitment, or, (b) Transfer from any post in the service on an identical scale of pay, or (c) Promotion from any post in the service on a lower scale of pay, or (d) Recruitment by transfer from any other service. Relying on the said rule, petitioner contends that as he is serving as Watchman, which comes under the general subordinate service, is entitled to be promoted as Drawing Master by recruitment by transfer.", and ultimately held as under: "9. The contention of the learned counsel for the petitioner that the Government Order issued in G.O.Ms.No.753 dated 15.7.1985 is still in force is not https://hcservices.ecourts.gov.in/hcservices/ controverted. Whether the special rules made by the Tamil Nadu Educational Subordinate Services issued and notified in G.O.Ms.No.753, Education Department on 15.7.1985 can be given a go-bye by the Government through Government letter is the matter in issue in this writ petition. 10. A similar issue was considered by me in the decision reported in (2006) 4 MLJ 1027 (K.Sampath v. State of Tamil nadu and others), wherein I have elaborately considered the validity of the Government letter in the absence of amendment issued to the Government order and held that the Government letter will not over ride the Government Order. In the said judgment I have followed the judgments of the Honourable Supreme Court reported in (2005) 10 SCC 244 (R.P.Bhardwaj v. Union of India and others), 2004 WLR 805 (P.Jaya v. Union of India and others) and AIR 1999 SC 59 (Chandraprakash Madhavrao Dadwa v. Union of India), in support of my finding." 3. That was also the view taken by K.SUGUNA,J. in J.Munusamy v. State of Tamil Nadu, rep. by its Secretary to Government, School Education Department, (W.P.No.35800 of 2004, etc. batch, order dated 31.3.2006). 4. It is also brought to the notice of this Court that the respondents themselves have considered such similar cases for appointment as Drawing Masters, as it is seen in the proceedings of the Chief Educational Officer, Villupuram in Na.Ka.No.14937/M4/04, dated 20.6.2005 in respect of one R.Chinnasamy, who was considered for appointment as teaching staff from the post of Record Clerk, after he obtained necessary qualifications and after he obtained a direction from this Court. 5. For the aforesaid reasons, I am of the considered view that the petitioner being a non-teaching staff is entitled to be considered for the post of teaching staff, viz., as Drawing Master, provided the petitioner is having necessary qualification as required under the Rules concerned. Under such circumstances, the writ petition is disposed with a direction against the third respondent to consider the representation of the petitioner dated 20.10.2008, in the light of the above said judicial pronouncements and also the various Government Orders passed by the respondents themselves, to appoint the petitioner as Drawing Master by way of transfer and pass appropriate orders on merits and in accordance with law expeditiously, in any event within eight weeks https://hcservices.ecourts.gov.in/hcservices/ from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To 1. The Secretary to Government State of Tamil Nadu School Education Department Secretariat, Chennai – 600 009. 2. The Director of School Education College Road, Chennai – 600 006. 3. The Chief Educational Officer, Villupuram, Villupuram District. + 1 c.c. to M/s. M. Hidayathullah Khan, Advocate. S.R.No.62997. + 1 c.c. to The Government Pleader. S.R.No.63112. W.P.No.29607 of 2008 SSK (CO) GSK 03.12.2009. https://hcservices.ecourts.gov.in/hcservices/