1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.03.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA and THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY W.A. (MD) No.89 of 2011 & M.P. (MD) No.1 of 2011 S.V. Kathiresh Appellant vs. 1 The Director of Collegiate Education College Road Nungambakkam Chennai 600 006 2 The Joint Director of Collegiate Education Tiruchirappalli Region Tiruchirappalli 3 The Secretary Bishop Heber College Puthur Tiruchirappalli – 17 4 The Assistant Director of Collegiate Education O/o the Joint Director of Collegiate Education Tiruchirappalli Region Tiruchirappalli – 7 5 S. Victor Assistant – Retired Bishop Heber College Puthur Trichirapalli – 7 6 J. Anthony Doss Assistant Bishop Heber College Puthur Tiruchirappallai 7 R. Thirupathi Assistant Bishop Heber College Puthur Trichirappalli – 17 https://hcservices.ecourts.gov.in/hcservices/ 2 8 P.R. Ashokraaj Assistant Bishop Heber College Puthur Trichirappalli – 17 Respondents Writ Appeal filed under Clause 15 of the Letters Patent challenging the order dated 19.11.2010 passed in W.P.(MD) No.8294 of 2009. Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned Order of the second respondent in Na.Ka.No.3699/E2/2008, dated 14.8.2009 and quash the same and consequently direct the respondents 1 and 2 to approve the proposal dated 22.5.2008 submitted by the third respondent for approving the appointment of the Writ Petitioner to the post of Assistant in the third respondent College by transferring him from the post of Steno- Typist. For appellant Mr. G.R. Swaminathan For RR 1, 2 & 4 Mr. M. Rajarajan, Govt. Advocate For R3 Mr. S.K. Mani For RR 6-8 Mr. P. Ganapathi Subramanian For R5 No appearance JUDGMENT (Judgment of the Court was delivered by K. SUGUNA, J.) This writ appeal is filed as against the order dated 19.11.2010 passed in W.P. (MD) No.8294 of 2009. 2. The appellant herein had filed the above said writ petition challenging the order dated 14.08.2009 passed by the second respondent in the writ petition, viz., the Joint Director of Collegiate Education, Trichy Region. As per the said order, the posting of the appellant/writ petitioner as Assistant by transfer of service has been rejected on the ground that it is not permissible as per the relevant rules and on that ground, the proposals of the college were returned. 3. According to the learned counsel for the appellant/writ petitioner, the appellant/writ petitioner was appointed as a Steno Typist with effect from 1988 and so far, he is serving only as Steno Typist; as far as a Steno Typist is concerned, he may be posted either as a Steno Typist, Grade II or as an Assistant; if one is posted as an Assistant by transfer, he will get an opportunity of getting promotion to the post of Superintendent; the Government has issued G.O.Ms.No.34, https://hcservices.ecourts.gov.in/hcservices/ 3 Personnel and Administrative Reforms Department dated 21.02.2001 as per which the Steno Typists can be posted as Assistants on transfer; but, the request of the college has been rejected on the ground that there is no rule at all; consequently, challenging the said order, the appellant/writ petitioner had filed the above said writ petition; however, the said writ petition was dismissed by order dated 19.11.2010; as against the said order, this writ appeal is filed. 4. The stand of the learned counsel for the appellant/writ petitioner is that by the impugned order, the proposal forwarded by the college with regard to the posting of the appellant/writ petitioner as Assistant was rejected on the ground that by transfer, Steno Typists cannot be posted as Assistants; but, this reasoning is contrary to the orders of the Government passed in G.O. Ms.No.34, Personnel and Administrative Reforms Department dated 21.02.2001, wherein, under clause (iii) of paragraph no.3 of the said order, it has been stated as follows: "(iii) RUf;nfOj;Jj; jl;lr;rh; epiy iii-d; Cjpa tpfpjKk;. cjtpahsh; Cjpa tpfpjKk;. xd;whf cs;sjhy;. gzpkhw;wy; Kiw %yk; gzpepakdk; mspf;ff; (by transfer) fUJjy;; Ntz;Lk;/" apart from this, this issue has been dealt with under clause nos.iv–vi of paragraph no.3 of the above said Government Order. 5. A perusal of the above said extracted portion reveals that as per the said Government Order, a Steno Typist can be posted as an Assistant. In spite of specific orders, we are not able to understand as to why this has been rejected by the respondent department and no reason is given during the course of the arguments also. As per the reason stated in the impugned order, that is not permissible. But, that reasoning is wrong as per the above extraction portion of G.O.Ms.No.34, Personnel and Administrative Reforms Department dated 21.02.2001. 6. According to the learned counsel for the private respondents, as per the said Government Order also, to an extent of 5% alone, they are eligible for it, consequently, the appellant/writ petitioner is not eligible for it. As far as this is concerned, this reasoning is not given in the impugned order also and even as per paragraph no.8 of the judgment of the Hon'ble Apex Court reported in (1978) 1 SCC 405, Mohinder Singh Gill v. Chief Election Commissioner, fresh reasons in the form of an affidavit cannot supplement the impugned order. As such, this stand of the learned counsel for the private respondents cannot be accepted. Apart from this, even as far as this 5% is concerned also, unless it is proved that from the cadre of the Assistants, already, more than 5% of the Steno Typists were posted as Assistants, this stand of the private respondents is not acceptable. That apart, no other rule also is brought to our notice wherein any prohibition has been imposed with regard to the posting of the Steno Typists as Assistants by transfer. https://hcservices.ecourts.gov.in/hcservices/ 4 It is not the case of the respondents also that G.O.Ms.No.34, Personnel and Administrative Reforms Department dated 21.02.2001, has been modified. 7. Under such circumstances, in spite of the specific orders of the Government by which Steno Typists can be transferred and posted as Assistants, the reason for rejection cannot be allowed to stand. It is also fairly admitted by the learned counsel appearing for the private respondents that the appellant/writ petitioner is the senior-most as among the eligible candidates also. 8. Hence, for the foregoing reasons, the order of the learned Single Judge as well as the order dated 14.08.2009 passed by the second respondent in the writ petition is set aside and the respondents are directed to post the appellant/writ petitioner as Assistant by transfer. According to the learned counsel for the appellant/writ petitioner, already, the appellant/writ petitioner has been posted as Assistant on 02.05.2008 and in view of the stand taken by the respondent in not approving the said posting, no benefit has been given to the appellant/writ petitioner. In view of our orders passed now, the respondents are directed to extend the benefit of the said post to the appellant/writ petitioner. With the above said direction and observation, the writ appeal is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar To 1 The Director of Collegiate Education College Road, Nungambakkam, Chennai 600 006 2 The Joint Director of Collegiate Education Tiruchirappalli Region, Tiruchirappalli 3 The Assistant Director of Collegiate Education O/o the Joint Director of Collegiate Education Tiruchirappalli Region, Tiruchirappalli – 7 +One CC to Mr.G.R.Swaminathan, Advocate, SR.No.8101 +One cc to Mr.S.K.Mani, Advocate, SR.No.8079 +One Cc to The Spl. Govt. Pleader, SR.No.8343 cad rl/7c – 18.4.2011 W.A. (MD) No.89 of 2011 24.03.2011 https://hcservices.ecourts.gov.in/hcservices/