IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.02.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.848 OF 2008 .. 1.D.Seralathan 2.K.Sreenivasan 3.R.Kamalaveni 4.E.R.Valarmathi 5.P.Marisami .. Petitioners vs. 1.The State of Tamil Nadu rep. By the Secretary to Government Department of Higher Education Fort St.George, Chennai 9. 2.The Commissioner / Director of Technical Education, Guindy, Chennai. 3.The Principal Thiyagarajar Poly Technic (Autonomous Institution) Salem 636 005. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the respondents to promote the petitioners to the post of Lecturers in polytechnic college including the post of workshop Instructors/ Junior drafts officers in the feeder category to the post of Lecturer in polytechnic. For petitioners : Ms.A.Arulmozhi For respondents : Mr.G.Sankaran Spl.Govt.Pleader for R.1 & 2 Mr.S.R.Rajagopal for R.3 https://hcservices.ecourts.gov.in/hcservices/ ORDER This writ petition is for direction against the respondents to promote the petitioners to the post of Lecturers. 2. The petitioners are working in the third respondent Polytechnic College, out of whom the first petitioner D.Seralathan, who was appointed on 09.12.1991 is working as Workshop Instructor/Mechanical Engineer, K.Srenevasan who was appointed on 02.01.1995, is working as Workshop Instructor/Production Engineer, R.Kamalaveni, who was appointed on 01.04.1990, is working as Workshop Instructor/EEE and P.Marisami, who was appointed on 02.01.1995, is working as Junior Drafting Officer/Mechanical Engineer. 2(a). It is stated that all the petitioners possess B.E. qualification and the 1st and 5th petitioner have completed their Master Degree and others are doing their Master Degree course. It is stated that the petitioners when originally appointed in the third respondent College, they were sponsored through Employment Exchange and their appointment was approved by the Director of Technical Education, Chennai. The post of Workshop Instructors/Junior Drafting Officers is governed by the Tamil Nadu Technical Educational Subordinate Services Rules and their next avenue of promotion is Instructor/Lecturer in the teaching cadre. 2(b). In G.O.Ms.1364 Education Department dated 16.8.1988, by way of amendment to the Special Rules for the Tamil Nadu Technical Education Subordinate Services, the cadre of Workshop Instructor/Draftsman was included as feeder category for promotion to the post of Instructor (teaching cadre), if the candidate possesses Diploma in the respective branch of Engineering relating to the posts concerned with service for a period not less than 2 years. Based on that, persons working as Workshop Instructors/Junior Drafting Officers were promoted to the posts of Instructor and the said benefit continued until the Government passed G.O.Ms.No.1081 Education (J1) Department dated 19.8.1989. 2(c). Under the said Government Order, the Government decided to discontinue the recruitment to Instructor cadre in Polytechnic and Special Diploma Institutions. In the said G.O., it is stated that the existing instructors shall be promoted as Associate lecturers as and when they acquire the required degree qualifications. However, there was no discussion in the said Government Order about the Workshop Instructors/Junior Drafting Officers, whose next avenue of promotion was the post of Instructors. 2(d). As per the said Government Order, the promotion opportunities of the incumbents as Instructors/Associate Lecturers https://hcservices.ecourts.gov.in/hcservices/ holding the post as on 19.8.1989 have been directed to continue irrespective of the class obtained in B.E. degree examination. Similarly, the Instructors or Associate Lecturers with Diploma qualification holding the post as on 19.8.1989 were also made eligible for the post of Associate Lecturer and Lecturer as and when they acquire B.E. degree qualification irrespective of class obtained in the said degree. Subsequently, the post of Associate Lecturer in Polytechnics were redesignated as Lecturer and the ad hoc rules were issued in G.O.Ms.No.597, Higher Education Department dated 1.12.1997. 2(e). As per the Government Order for the post of Lecturer, the recruitment is by direct recruitment or recruitment by transfer from the category of Tamil Nadu Technical Education Subordinate Services and for that, the qualification is first class in Bachelor degree in the branch of Engineering relating to the post concerned. However, by G.O.Ms.No.119 Higher Education (C2) Department dated 26.3.1999, a concession was granted to the Instructors who were appointed after 19.8.1989 but before 1.12.1997 with Bachelor degree/Post Graduate degree qualification irrespective of the class obtained by them and they were directed to be promoted as and when vacancy arose in the normal course and that those Instructors who were in service as on 19.08.1989 with diploma qualification would become eligible for appointment to the post of Lecturer as and when they acquire B.E. Degree. 2(f). Since the posts of Instructors were redesignated as Lecturers, according to the petitioners, the posts of Instructors were also to be considered as feeder cadre to the posts of Lecturers and since the Instructor post has been merged with Lecturers, the feeder categories to the Instructor posts viz., Junior Drafting Officer or Workshop Instructors are next in line for the promotion to the post of Lecturer and by discontinuing the recruitment to the post of Instructors, there is stagnation in the post of Workshop Instructors and Junior Drafting Officers in non-teaching category. 2(g). The petitioners made representation on 06.12.2006 to the respondents to issue suitable orders and the said representation was not considered and therefore, the present writ petition has been filed on various grounds including that as per G.O.Ms.1364 dated 16.08.1988 the posts of Workshop Instructors/Junior Drafting Officers were included for promotion to the post of Instructor (Teaching Cadre) and as per G.O.1081 dated 19.08.1989 it is only the recruitment to the post of Instructors alone was directed to be discontinued by giving protection to the existing Instructors. 2(h) By promoting those working as Instructors, they were redesignated as Lecturers by G.O.Ms.No.119 dated 26.3.1999. According to the petitioners, the posts of Instructors got absorbed into the post of Associate Lecturers, which were subsequently redesignated as Lecturers. Therefore the posts in feeder categories https://hcservices.ecourts.gov.in/hcservices/ to the post of Instructor have to be considered as feeder categories to the post of Lecturer and the petitioners possess necessary qualifications for the post of Lecturer and there is a long time stagnation. 3. In the counter affidavit filed by the second respondent, the Director of Technical Education, it is stated that the third respondent is one of the aided Polytechnic institutions receiving 90% of Government grant and the petitioners presently holding the posts of Workshop Instructors/Junior Drafting Officers which are non-teaching posts. It is stated that in Government Polytechnic colleges appointments are made through Staff Selection Committee constituted for that purpose, as per Clause 11 of the Grant-in-Aid Code of Madras Technical Education Department. 3(a). The petitioners have to appear before the said Committee and there is no method of appointment by promotion available. Therefore, the claim of the petitioner has to be rejected. It is stated that as per the Circular of the Director of Technical Education, the Staff Selection Committee has to draw a list of candidates from the Employment Exchange apart from internal candidates to compete with them in the interview and the Staff Selection Committee would select the best suitable persons for the post and the selection made by the Committee is being sent to the Director of Technical Education for approval. 3(b). As per the ad hoc Rules framed in G.O.Ms.597 Higher Education Department dated 1.12.1997, the appointment is made either by direct recruitment or recruitment by transfer in Tamil Nadu Technical Education Subordinate Services. Therefore, the feeder category for the post of Lecturer is Instructor. However, the petitioners are holding the posts of Workshop Instructors/Junior Drafting officers, which are not at all coming under feeder categories for the posts of Lecturers. 3(c). It is true that the feeder categories to the post of Instructors as per the relevant rules for the Tamil Nadu Technical Education Services have been issued in G.O.Ms.No.1364 Education dated 16.8.1988 and therefore, unless the petitioners are promoted to the posts of Instructors, they cannot be promoted as Lecturers. In other words, it is the case of the second respondent that the posts of Workshop Instructors and Junior Drafting Officers cannot be directly appointed or promoted to the posts of Lecturers. 3(d). It is also admitted that the recruitment to the posts of Instructors in polytechnics and special institutions have been dispensed with with effect from 19.8.1999 as per G.O.Ms. No.1081 Education (J1) Department and therefore, the post of Lecturer is an entry level teaching post, and there is an avenue to become Lecturers as and when they acquire all requisite educational https://hcservices.ecourts.gov.in/hcservices/ qualifications. The method of appointment by promotion is not applicable to the Government institutions. The only method is by way of selection and therefore, the claim of the petitioners for promotion has to be rejected. 4. It is the case of the third respondent that the petitioners are as such holding the posts of Workshop Instructors and Mechanical Engineers and they cannot be directly promoted as Senior Lecturers even as internal candidates for non-teaching categories. For the post of Senior Lecturer there must be an experience as Lecturer for 5 years. The petitioners are presently working in non-teaching cadres. Though it is stated in the petition that there is vacancy in the posts of Senior Lecturers, the petitioners are not entitled for promotion even if they are qualified. They must be sponsored by Employment Exchange and then only they can be considered for the posts of Lecturers. It is also stated that presently for filling up the post of Lecturer in Production and in Civil Engineering, the third respondent requested the Employment Exchange to sponsor candidates for making selection process and the list has been furnished and no interview has been called for. It is stated that there are only two vacancies. It is also sated that Mrs.M.Ponni who is the petitioner in W.P.No.6321 of 2006 has been selected in the selection process by the Staff Selection Committee. Inasmuch as the Junior Drafting Officers and Workshop Instructors are feeder categories to the post of Instructor, such persons cannot be considered as feeder category for the post of Lecturer since the post of Instructor has been dispensed with. After G.O.Ms.No.1081 Education (J1) Department dated 19.8.1989, the post of Lecturer has become entry level for teaching posts and the method of appointment is direct recruitment and therefore, the petitioners are not entitled for the relief claimed. 5. Ms.Arulmozhi, learned counsel for the petitioners would submit that pending the above said writ petition, some of the similarly placed Workshop Instructors in aided polytechnics filed writ petitions seeking direction not to give effect to G.O.Ms.No.1081 Education (J1) Department dated 19.08.1989 and final order was passed on 10.9.2004 directing to consider the Workshop Instructors to the post of Instructors, de hors G.O.Ms.No.1081 Education (J1) Department dated 19.08.1989 and that decision was followed in a series of writ petitions and ultimately the said decision was upheld by the Division Bench of this Court in the judgment dated 1.8.2007 and as per the order of the High Court, the first respondent has promoted the Workshop Instructors/Junior Drafting Officers by implementing the same. It is also stated that in Tamil Nadu Technical Education Subordinate Service Rules framed under Article 309 of the Constitution of India vide G.O.220 Higher Education (B1) Department dated 6.7.2009, the post of Instructor https://hcservices.ecourts.gov.in/hcservices/ (Engineering) in Polytechnics and special institutions remain as class I in the annexure to Rule 9 of the Special Rules and the method of appointment is prescribed including the direct recruitment and promotion and therefore, according to the learned counsel for the petitioners, by virtue of the implementation of the Division Bench judgment, the executive instructions in G.O.Ms.No.1081 dated 19.8.1989 cannot stand in pursuance of the rules framed in G.O.Ms.1364 Education Department dated 16.8.1988. 6. On the other hand, it is the contention of Mr.G.Sankaran, learned Special Government Pleader that the petitioners who are non- teaching staff cannot aspire to become Lecturers by way of promotion even if they are eligible for Instructors and they are not eligible only because they are qualified and as on date, the petitioners cannot claim themselves to be in feeder categories to the post of Lecturer. It is his submission that the right of promotion is not a fundamental right by relying upon the judgment in Secretary, Kamaraj College vs. D.S.Arulmani [2008 (2) MLJ 593]. 7. It is the contention of Mr.S.R.Rajagopal, learned counsel for the third respondent that as far as the case of Ponni is concerned, she was recruited by way of recruitment process by internal arrangements and the right of promotion cannot be conferred on her, by relying upon the judgment in Union of India vs. Somasundaram Viswanath [(1989) 1 SCC 175]. 8. On the admitted fact that the petitioners are holding non- teaching posts either as Workshop Instructors or Junior Drafting Officers, which remain as feeder categories for the post of Instructor, as per G.O.Ms.1364, Education Department dated 16.8.1988 by which the Government framed statutory rules in accordance with Article 309 of the Constitution of India, an amendment has been introduced to the special rules for Tamil Nadu Technical Education Subordinate Services (Section 45 in Volume III of the Tamil Nadu Service Manual 1970) and that amendment came into effect from 23.12.1981. 9. For the post of Instructor (Engineering), in Polytechnics and special institutions and Instructor (Drawing) in Technical High Schools, the amendment has been made enabling promotion and the same is as follows: “AMENDMENTS In the said Special Rules https://hcservices.ecourts.gov.in/hcservices/ (1) in column 3 of the Table under-sub-clause (a) of Rule 2 in Class II, Category 3, against the post of Instructor (Engineering) Polytechnics and Special Institutions and Instructor (Drawing) Technical High Schools, under column (3), for the existing entries, the following entries shall be substituted, namely:- (i) Promotion from the post of Foreman (automobile) in category 6, Boiler Foreman in Category 7, Electrical Foreman in Category 8, Workshop Instructor in Category 9 of the said class and Draughtsman, Grade III in clause IV, Category 2 in the Polytechnics and Special Institutions including Technical High Schools or (ii) District recruitment” 10. Further, an amendment has been made in respect of the post of Instructor (Engineering) by way of promotion and the relevant provision is as under: “ Promotion from the categories of Foreman (Automobile) or Boiler Foreman or Electrical or Workshop Instructor or Draughtsman possessing Diploma Qualification in the respective branch of Engineering relating to the posts concerned, with service for a period of not less than two years.” However, G.O.Ms.No.1081, Education (J1) Department dated 19.8.1989 relates to certain instructions regarding revision of pay scales to teachers and that is not a statutory rule but only an executive instruction. In that, there is a term in Clause IV which is as follows: “The recruitment to Instructor (teacher) cadre in Polytechnics and Special Diploma Institutions will be discontinued. However, the existing Instructors shall be promoted as Associate Lecturers as and when they acquire the requisite degree qualifications”. The said term about dispensing with the post of Instructor which is not being made as a statutory rule but as an executive instruction, has been made in a different context of revision of pay scales of teachers in Polytechnics and Special Diploma Institutions. 11. It is relevant to point out that in spite of the above said reference made in G.O.Ms.No.1081 dated 19.8.1989 in the subsequent https://hcservices.ecourts.gov.in/hcservices/ G.O. passed by the Government in G.O.Ms.No.597 Higher Education Department dated 1.12.1997, for the purpose of appointment to the post of Lecturer, the appointment process is either by direct recruitment or recruitment by transfer from the category of Instructors in the Tamil Nadu Technical Subordinate Service Rules and the relevant rule is as follows: “ 3. Appointment: Appointment to the post shall be made by, i. direct recruitment ii. Recruitment by transfer from the Category of Instructors in the Tamil Nadu Technical Educational Subordinate Service.” 12. Further, as held by the Supreme Court in Union of India vs. Somasundaram Viswanath [(1989) 1 SCC 175] when there is a repugnancy between the statutory rules framed under Article 309 of the Constitution of India and the executive instructions, the statutory rules shall always prevail. Therefore, it is clear that under the Tamil Nadu Technical Education Subordinate Service Rules which are statutory rules framed under Article 309 of the Constitution of India, the post of Instructor is still in existence. 13. Again, by G.O.Ms.No.220, Higher Education (B1) Department dated 6.7.2009, the Government issued the special rules for Tamil Nadu Technical Educational Subordinate Service in continuation of the original statutory rules issued in G.O.Ms.No.2100, Education Department dated 18.9.1981, due to the reason that the Government Engineering colleges are also continuing under the Technical Education Department and the statutory rules were again reissued under Article 309 of the Constitution of India and the said rules came into effect from 6th July, 2009. Under that, in respect of Tamil Nadu Technical Educational Subordinate Service, the post of Instructor (Workshop) is still retained in Engineering Colleges and the posts of Instructors in various departments are retained in Polytechnics and the clause 2, which is relating to the appointment to several categories of posts in service including the post of Instructor (Workshop) has been directed to be made (i) by promotion from Artisan, Grade-I in the Engineering Colleges in Category 4 of Class IV in the service; or (ii) by direct recruitment. 14. Again, for the post of Instructor (Engineering) in Polytechnics and Special Institutions, the method of recruitment has been stated in the said statutory rules as, https://hcservices.ecourts.gov.in/hcservices/ “ Promotion from the post of Foreman(Automobile) in category 3, Boiler Foreman in Category 4; Electrical Foreman in category 5, Workshop Instructor in category 6 of class and Junior Drafting Officer/Draftsman Grade III in category of Class IV in polytechnics and special institutions” Again the said statutory rules contemplate the post of Instructor (Technical) which is filled up either by direct recruitment or recruitment by transfer from any other service. 15. By virtue of the said latest statutory rules framed by the Government, it is clear that the post of Instructor in the technical institutions, especially in polytechnics remains there as on date. Therefore, the contention that the post of Instructor has been dispensed with has no meaning. It is, in those circumstances, certain candidates who were holding the posts of Workshop Instructors or Draftsmen which are non-teaching cadres, have approached this Court by filing a writ of Mandamus to promote them as Instructors and not to give effect to G.O.Ms.1081 Education (J1) Department dated 19.8.1989 which is only an executive instruction and that was in W.P.No.9111 of 1997 which came to be disposed of by order dated 10.9.2004. 16. F.M.Ibrahim Kalifulla,J. while passing orders in the above writ petition, viz., in W.P.No.9111 of 1997 referred to an earlier order passed by this Court in W.P. No.4894 of 1993, etc. batch dated 21.12.2000 and held as follows: “ 5.Having heard the learned counsel appearing for the parties and also on going through an earlier order of this Court in W.P.Nos.4894 and 7656 of 1993 dated 21.12.2000 in respect of two others (workshop instructor and draughtsman) in the Civil and Mechanical Departments, wherein the effect of G.O.Ms.No.1081 dated 19.8.1989 has been considered, I find that after the issuance of the above said Government Order by proceedings of the first respondent dated 19.05.1993 in letter No.488, the Director of Technical Education issued a specific clarification to the effect that the Government decided on principles that the existing establishment/Special Rules can be followed in the matter of service conditions of teachers in Technical Institutions and Special Institutions, until the amendment is carried out in the Special Rules, pursuant to G.O.Ms.No.1081 dated 19.08.1989. By virtue of the https://hcservices.ecourts.gov.in/hcservices/ above said clarification issued by the first respondent- State, the resultant position is that the stipulations contained in G.O.Ms.No.1081 dated 19.08.1989 was not implemented, since necessary amendment to the Special rules were not brought out after the issuance of the above said Government Order. Further, it was made clear that the position, which was existing as on the date of the issuance of the said G.O.Ms.No.1081 dated 19.08.1989 is to be followed in the matter of recruitment as well as promotion to various posts existing in the different Polytechnics and Special Institutions. 6. When once that position was made clear by the first respondent, then having regard to G.O.Ms.No.1363 dated 16.8.1988 persons possessing diploma qualification in the respective branches of Engineering would be eligible for appointment as Instructor in the respective branches of Engineering by recruitment of transfer from the categories of Workshop Instructors/ Draughtsman/ Workshop Foreman/Boiler Foreman/Electrical Foreman/ Foreman(Auto) and Boiler Attender in the Government Polytechnics and other special institutions, provided they have put in more than two years of service in the respective posts. In the light of the above said position in relation to the consideration of petitioners' claims for being considered for the posts of the “Instructors” in the second respondent-Institution, if posts of Instructors in the Electric and Electronic and Mechanical Departments are available, the claims of the petitioners should have been considered. The apprehension of the second respondent-Institution based on the G.O.Ms.No.1081 dated 19.08.1989 having thus been ruled out, the claims of the petitioners should be considered for being promoted to the posts of instructors as and when vacancies arise in the respective branches.” 17. That order came to be confirmed by the Division Bench in the following words: “ 6. (i) We are unable to appreciate the contentions raised by the Learned Government Advocate on the ground that it is not the policy of the Government to make the recruitment. The Government itself as per the request made by the Correspondent passed the order dated 19.2.93 for recruitment to the post of Instructor with qualified persons of computer Science which is contrary to their own institutions. It is not the case of the any party that the writ petitioners are not qualified to hold the post of Instructor. When the Government has taken a policy https://hcservices.ecourts.gov.in/hcservices/ decision not to go on recruitment to the post of Instructor, giving instructions to fill up the post of “Instructor” by a Computer Science candidate is contrary to their own policy decision and it is also not correct. (ii) The amendment made to the Tamil Nadu Technical Educational Subordinate Services was by G.O.Ms.No.1364, Education Department dated 16.8.1988, but it was given retrospective effect from 1981. Therefore, the writ petitioners are qualified even prior to that. When the amendment was given retrospective effect, it cannot be contended that the order of the learned single Judge to consider the case of the Writ petitioners promotion with effect from 1.7.1987 and 1.8.1986 is illegal. (iii) When once the appellant Government has created the promotional avenues, ignoring the eligible candidates for promotion to the post of Instructor from the post of Draughtsman and permitting the institution to fill up the post of Instructor by a Computer Science candidate is illegal. Therefore, the learned Single Judge is right in setting aside the order. 7. Consequently, the writ appeals are dismissed. There will be no order as to costs.” 18. It is relevant to point out that based on the judgment of the Division Bench as stated above, the Government has passed G.O.Ms.No.95, Higher Education (C1) Department dated 26.3.2008, promoting the persons who were working as Junior Drafting Officers as Instructors. It is also relevant to point out that the Madurai Bench of Madras High Court passed such an order in W.P.(MD) No.9428 of 2005 on 6.3.2008 and the Government, following the said series of judgments, implemented the orders by promoting various Junior Drafting Officers to the post of Instructors by creating supernumerary posts. 19. In the light of the above said discussions, the decision of the Division Bench of this Court relied upon by the learned counsel for the respondents in Secretary, Kamaraj College vs. D.S.Arulmani [2008 (2) MLJ 593] has no application to the facts of the present case. 20. In the result, it has to be necessarily construed that the post of Instructor which is a teaching post is still available to the Polytechnics and as per G.O.Ms.1081 Education (J1) Department dated 19.8.1989, which has been reissued in