IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 21.01.2008 Coram The Honourable Mr. Justice S.J. MUKHOPADHAYA and The Honourable Mr. Justice M. VENUGOPAL W.A. Nos.1313 and 1314 of 2007 G.S. Rajendran ... Appellant in W.A.No.1313/2007 S. Rajendran ... Appellant in W.A. No.1314/2007 ..vs.. 1. The Director of Elementary Education, Elementary Education (G) Department, DPI Campus, College Road, Chennai – 600 006. 2. The District Elementary Educational Officer, O/o District Elementary Educational Officer, New Town Hall, Pudukkottai Town and District. 3. The Assistant Elementary Educational Officer, Aranthangi, Pudukkottai District. 4. M. Gopalakannan ... Respondents in W.A. No.1313/2007 1. M. Indira Gandhi 2. The Director of Elementary Education, Directorate of Elementary Education DPI Campus, College Road, Chennai – 600 006. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Elementary Educational Officer, Pudukkottai. 3. The Assistant Elementary Educational Officer, Assistant Elementary Educational Office, Aranthangi, Pudukkottai District. ... Respondents in W.A. No.1314/2007 Appeals filed to set aside the order dated 7.9.2007 passed in W.P. Nos.19660 of 2004 and 4032 of 2007 respectively on the file of this Court. WP No.19660 of 2004:- Petition presented under Article 226 of the Constitution of India for issue of writ of certiorarified mandamus calling for the records of the Impugned order passed by the 2nd respondent herein in his Rc.No.6205/B3/2003 dated 5.7.2004, quash the same as illegal and arbitrary in nature and consequently direct the respondents 1 to 3 herein to appoint the petitioner herein as Tamil Pandit in the existing post in LN Puram Municipal Middle School, Aranthangi, Pudukkottai District, in accordance with the promotion panel prepared for the year 2004 by the 3rd respondent herein. WP No.4032/2007:- Presented under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records relating to the order passed by the first respondent in Na. Ka. 28054/L3/2006 dated 18.1.2007 and the consequential order of the 2nd respondent passed in Na. Ka. No.4715/A3/06 dated 19.1.2007 and quash the same. For Appellant : Mr. G. Thangavel For Respondent : Mr. D. Srinivasan, Addl. Govt. Pleader for R1 to R3 (W.A. No.1313/2007) for R2 to R4 (W.A. No.1314/2007) Mr. A. Gandhi for R1 (W.A. No.1314/2007) https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (Judgment was delivered by S.J. MUKHOPADHAYA, J.) In both writ appeals, since common question is involved, they were heard together and disposed of by common judgment. 2. The matter relates to the appointment to the post of Tamil Pandit from Secondary Grade Teacher in Municipal Middle School, L.N. Puram, Aranthangi (hereinafter referred to as "Middle School"). Both G.S. Rajendran-appellant in W.A. No.1313 of 2007 and M. Indira Gandhi-first respondent in W.A. No.1314 of 2007 were functioning as Secondary Grade Assistant (Teacher) in the said school. One M. Gopalakannan-fourth respondent in W.A. No.1313 of 2007 having been appointed by the District Elementary Educational Officer to the post of Tamil Pandit in the said school, G.S. Rajendran-appellant in W.A. No.1313 of 2007 preferred W.P. No.19660 of 2004, challenging the order of direct recruitment passed in R.C. No.6205/B3/2003 dated 5th July, 2004. During the pendency of the writ petition, Gopalakannan- fourth respondent in W.A. No.1313 of 2007 was transferred to some other District on 4th July, 2006. The post of Tamil Pandit having been again fell vacant, both G.S. Rajendran-appellant in W.A. No.1313 of 2007 and M. Indira Gandhi-first respondent in W.A. No.1314 of 2007 submitted their representations for promotion to the post of Tamil Pandit, which were disposed of. 3. A panel was prepared in 2006, in which Indira Gandhi-first respondent in W.A. No.1314 of 2007 was shown as serial No.1 and S. Rajendran-appellant in W.A. No.1314 of 2007 was shown as serial No.1(a). In view of the direction given by this Court in W.P. No.7454(MD)/2006 preferred by Indira Gandhi- first respondent in W.A. No.1314 of 2007, she was promoted as Tamil Pandit in November, 2006. G.S. Rajendran-appellant in W.A. No.1313 of 2007, who did not expect the same, preferred contempt proceedings, alleging non compliance of the order passed by this Court on 11.8.2006 in W.P. No.25363 of 2006. Thereafter, the respondent-Director of Elementary Education passed an order dated 18th of January, 2007 in RC.No.28054/L3/2006 and consequential order dated 19th of January, 2007 in RC.No.4715/B3/06. By those orders, Indira Gandhi-first respondent in W.A. No.1314 of 2007 was reverted to the substantive post and G.S. Rajendran-appellant in W.A. No.1313 of 2007 was granted promotion to the post of Tamil Pandit. Those orders dated 18th and 19th January, 2007 were challenged by Indira Gandhi-first respondent in W.A. No.1314 of https://hcservices.ecourts.gov.in/hcservices/ 2007, by preferring W.P. No.4032 of 2007, wherein S. Rajendran- appellant in W.A. No.1313 of 2007 was impleaded as fourth respondent. 4. Learned Single Judge, having noticed the rival contentions, by an impugned common order dated 7th September, 2007, while dismissing W.P. No.19660 of 2004, in view of the fact that Gopalakannan had already been transferred to another school, held that Indira Gandhi-first respondent in W.A. No.1314 of 2007 is senior to the appellant in W.A. No.1314 of 2007 and set aside the orders dated 18th and 19th January, 2007. 5. Learned counsel appearing on behalf of the appellants submitted that the post of Tamil Pandit in Middle School fell vacant on 1st January, 2004. A panel was published on 1st January, 2004 indicating S. Rajendran-appellant in W.A. No.1314 of 2007 as the only qualified person for promotion to the post of Tamil Pandit in Middle School. In spite of the same, the post was not filled up by promotion and Gopalakannan- fourth respondent in W.A. No.1313 of 2007 was appointed by direct recruitment by an order dated 5th July, 2004 in Na.Ka.No.6205/a3/2003, which was challenged in W.P. No.19660 of 2004. He placed reliance on Notification issued by the School Education (C1) Department in G.O.Ms.No.1383(Education) dated 23.5.1988 (w.e.f. 01.06.84): G.O.M.S.No.227 Education dated 28.8.2000, whereby and whereunder the method of appointment to the post of Tamil Pandit and other language pandit Grade-1 is provided. 6. According to the appellant in W.A. No.1313 of 2007, in view of the order dated 11th August, 2006 passed by this Court in W.P. No.25363 of 2006, the representation of the appellant has been considered for promotion to the post of Tamil Pandit, by taking into consideration the provisions of amended G.O.Ms.No.227 dated 28.8.2000 issued by the School Education Department and as per the panel published as on 1st January, 2004. Indira Gandhi-first respondent in W.A. No.1314 of 2007 was not qualified for promotion to the post of Tamil Pandit as on 1st January, 2004 when the panel was prepared, since she obtained B.Lit degree in 2005. It was submitted that only qualified in B.Lit in Tamil is legally entitled for promotion to the post of Tamil Pandit and therefore, appellant in W.A. No.1313 of 2007 was the only eligible candidate as on 01.01.2004 as shown in the panel. 7. Indira Gandhi-first respondent in W.A. No.1314 of 2007 filed a caveat petition and contested the writ appeal. The only plea taken by her is that she was senior to the appellant in W.A. No.1314 of 2007 in the Middle School and that https://hcservices.ecourts.gov.in/hcservices/ she had necessary qualification of B.Lit.(Tamil), which was duly entered in the service register on 21st November, 2005 , i.e. prior to the subsequent vacancy which fall vacant on 3rd July, 2006, when Gopalakannan-fourth respondent in W.A. No.1313 of 2007 was transferred to another school. 8. The stand taken by the learned counsel for the State is that in view of common order passed by this Court earlier that the impugned order in the writ petition was passed. 9. We have heard the parties and noticed the rival contentions and facts, as brought forth before this Court. 10. It is not in dispute that fourth respondent in W.A. No.1313 of 2007-Gopalakannan was appointed as Tamil Pandit on 5th July, 2004, who was subsequently transferred to another school and relieved on 3rd July, 2006. After he was relieved from the post of Tamil Pandit, W.P. No.19660 of 2004, preferred by G.S. Rajendran-appellant in W.A. No.1313 of 2007, become infructuous. In this background, no finding having been given by the learned Single Judge, it calls for no interference. 11. So far as S. Rajendran-appellant in W.A. No.1314 of 2007 and Indira Gandhi-first respondent in W.A. No.1314 of 2007 is concerned, the question arises as to who amongst them are eligible for promotion to the post of Tamil Pandit and the date from which the case for promotion be considered. 12. The relevant Rule prescribes the following methods of appointment to the post of Tamil Pandit and other language pandit Grade-1 in the Notification issued by the School Education (C1) Department in G.O.Ms.No.1383(Education) dated 23.5.1988 (w.e.f. 01.06.84) : G.O.M.S.No.227 Education dated 28.8.2000:- " Rule – IV Notification – 2 In exercise of the powers conferred by section 6 volume III of Tamil Nadu Service Manual the Governor of Tamil Nadu hereby makes the following amendment to the Tamil Nadu School Educational Subordinate Service (Municipal/Township Schools) rules which shall be deemed to have come into force from 01.06.88 (As per the recommendation of the One Man Commission of V Pay Commission) https://hcservices.ecourts.gov.in/hcservices/ Amendment 1. In the said rule for item – 1 Appointment – against the entries in column – 1 and 2 of the following item shall be modified namely. Class Category II 2, Tamil Pandit and Other Language Pandit Grade - 1 III 1. Secondary Grade Assistant 2. In the said rule for item No.2 Appointment against the entries in column No.1, 2 and 3 of the Table. Class Category Method of Appointment II 2, Tamil Pandit and other Language Pandit Grade - I 1. Promotion from any category in class III of this service. 2. Transfer from any class and category in this service in an identical scale of pay. 3. In no qualified and suitable candidates are available for appointment by method 1 and 2 above, recruitment by transfer from any other service. 13. It appears that Indira Gandhi-first respondent in W.A. No.1314 of 2007 joined as Secondary Grade Teacher on 29th November, 1988 in one Ramakrishna Vidyalaya Higher Secondary School, Thiruppunavasal and she was transferred to Kamarajar Kalasalai Middle School (Government aided), Aranthangi as per the proceedings dated 30th April, 1999 and subsequently, appointed in Panchayat Union Middle School as Secondary Grade Teacher as per the proceedings dated 26th July, 1999 . Again, she was transferred from Panchayat Union Service to Municipal School Service as per the proceedings dated 21st July, 2001 of the District Elementary Educational Officer, Pudukkottai. 14. On the other hand, G.S. Rajendran, appellant in W.A. No.1314 of 2007 was appointed as Secondary Grade Teacher on 8th August, 1997 in Avudayar Koil Panchayat Union Middle School. He was transferred from Panchayat Union School, Mangudi to the Municipal Elementary School (East) at Aranthangi Town on 1st December, 2003, where he was working as Assistant Teacher. Later, he was transferred to the present school. https://hcservices.ecourts.gov.in/hcservices/ 15. From the materials as quoted above, it would be evident that the Tamil Nadu School Educational Subordinate Service (Municipal/Township Schools) Rules came into force on 1st June, 1988. Indira Gandhi-first respondent in W.A. No.1314 of 2007 became member of the Municipal Educational Subordinate Service since 21st July, 2001 whereas S.Rajendran-appellant in W.A. No.1314 of 2007 became member of said Municipal Educational Service on 1st December, 2003, thereby Indira Gandhi-first respondent in W.A. No.1314 of 2008 is senior to the appellant in W.A. No.1314 of 2007 in the service. 16. We have also noticed that the post of Tamil Pandit was vacant since 2002 as evident from one of the petitions preferred by the appellant. The appellant was not eligible at that time. In January, 2004, though the appellant was the only eligible candidate, he had no right to be promoted as there was no cause of action till 5th July, 2004, when the post of Tamil Pandit was filled up by direct recruitment of Gopalakannan- fourth respondent in W.A. No.1313 of 2007. The said writ petition become infructuous when the said post again fell vacant on 3rd July, 2006, on transfer of Gopalakannan. Thereby, as on the date of vacancy i.e. 3rd July, 2006, it is evident that both the appellant S. Rajendran and first respondent Indira Gandhi were eligible for promotion to the post of Tamil Pandi and for the said reason, since the name of the first respondent-Indira Gandhi was at serial No.1 of 2006 panel and the name of the appellant-S. Rajendran, was below her at 1(a), the promotion as was granted to Indira Gandhi cannot be held to be illegal. 17. We have already observed that the appellant had no right to claim promotion w.e.f. 1st January, 2004. In fact, no person has any right to claim for promotion from retrospective date till any junior is promoted from retrospective date. In this background, the appellant-S. Rajendran cannot claim that the respondent-State should have considered his case for promotion to the post of Tamil Pandit with effect from 1.1.2004, pursuant to 2004. Further, as more than two years have lapsed, we are of the view that the panel prepared as on 1st January, 2004 could not be acted upon for grant of promotion in the year 2006, since the period of earlier panel lapsed. https://hcservices.ecourts.gov.in/hcservices/ 18. We find that no ground is made out to interfere with the order dated 7.9.2007 passed by the learned single Judge in W.P. Nos.19660 of 2004 and 4032 of 2007 respectively. There being no merit, both the appeals are dismissed, but there shall be no order as to costs. Ssa. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Director of Elementary Education, Elementary Education (G) Department, DPI Campus, College Road, Chennai – 600 006. 2. The District Elementary Educational Officer, O/o District Elementary Educational Officer, New Town Hall, Pudukkottai Town and District. 3. The Assistant Elementary Educational Officer, Aranthangi, Pudukkottai District. + 1 cc to Mr. G. Thangavel, Advocate, SR No.2360/08 + 1 cc to Mr. Govt Pleader SR No. 2318/08 + 1 cc to Mr. A. Ganthi, Advocate, SR No.1938/08 W.A. Nos.1313 and 1314 of 2007 SA(CO) SR/31.1.2008 https://hcservices.ecourts.gov.in/hcservices/