IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.24924 of 2004 C.Kirupa ... Petitioner vs. 1. The State of Tamil Nadu, Rep. By the Secretary to Government, Youth Welfare and Sports Development Department, Chennai-9. 2. The Member Secretary, Sports Development Authority of Tamil Nadu, Chennai-84. 3. The Director of Sports and Youth Services, Nehru Park, Chennai-84. ....Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorarified mandamus to call for the records in pursuant to the impugned order passed by the second respondent in D.Dis.No.15533/A1/2001 dated 31.12.2003 and quash the same and consequently direct the respondents to promote the petitioner retrospectively as Sports Hostel Coach with effect from 27.09.1985 as per G.O.Ms.No.80 Education Department dated 20.01.1987 and consequently promote the petitioner as District Sports Officer with retrospective effect on par with his junior with all monetary benefits, arrears and other consequential service benefits. For Petitioner : Mr.S.M.Subramaniam For Respondents : Mrs.S.Anitha for R1 and R3 Government Advocate Mr.P.Srinivas for R2 O R D E R The petitioner has filed this writ of Certiorarified mandamus in calling for the records in pursuant to the impugned order passed by the second respondent in D.Dis.No.15533/A1/2001 dated 31.12.2003 and to quash the same and consequently to direct the respondents in https://hcservices.ecourts.gov.in/hcservices/ promoting the petitioner retrospectively as Sports Hostel Coach with effect from 27.09.1985 as per G.O.Ms.No.80, Education Department dated 20.01.1987 and resultantly to promote the petitioner as District Sports Officer with retrospective effect on par with his junior with all monetary benefits, arrears and other consequential service benefits. 2. According to the petitioner, the Sports Department is functioning as two wings viz., The Directorate of Sports and Youth Services and Tamil Nadu State Sports Development Corporation (erstwhile State Sports Council) and that the Sports Schools and Sports Hostels are coming under the Directorate of Sports and Youth Services. 3. It is the case of the petitioner that as per G.O.Ms.No.1738 dated 30.08.1980, three sports schools were started in Chennai, Coimbatore and Annamalai Nagar in the year 1980-1981. Two posts of coaches were sanctioned in the time scale of pay of Rs.675-35-885-45- 1200. A degree of any University and a Diploma or Certificate in coaching in concerned discipline were the prescribed qualifications for such Coaches. Later three Sports Hostels one each in Madurai, Trichirappalli and Tirunelveli were established as per G.O.Ms.No.1846, Education Department dated 08.09.1980 till 1980-1981. As per the said G.O., a post of one full time Coach in the time scale of pay of Rs.675-35-885-45-1200 was to be created. Since the Sports Hostels were to have separate coaches in each sports disciplines, G.O.Ms.No.1066, dated 29.05.1982 was issued wherein the employment of six Coaches was sanctioned in the required sports disciplines at the ratio of two coaches each in the three sports hostels in Madurai, Tirunelveli and Tiruchirappalli. The graduate coaches with National Institute of Sports Diploma were to be paid in the time scale of pay of Rs.600-30-750-35-890-40-1050 and the non graduate coaches with N.I.S. Diploma were to paid in the time scale of pay of Rs.525-25- 675-30-855-35-925 as per the said G.O. 4. The petitioner was appointed as an Athletic Coach in September 1982 and he was working as an Athletic Coach in sports hostel in Madurai with a pay scale of Rs.600-30-750-35-890-40-1050 till March 1990 and subsequently was promoted as Warden. He was not only possessing the required qualification of a degree with N.I.S. Diploma but also a Master's Degree in Physical Education. 5. The petitioner was appointed as an Athletic Coach and joined at Sports Hostel, Madurai on 27.09.1982 as per G.O.Ms.No.1066 dated 29.05.1982 and Roc.No.8861/A1/82 dated 24.09.1982, based on G.O.Ms.No.1846, Education Department dated 08.09.1980. By means of G.O.Ms.No.1846 Education Department dated 08.09.1980, he might have been promoted as Warden Sports Hostel earlier. However he was denied the promotion even after his repeated request made on 05.01.1984, 21.05.1984, 11.02.1985 and 03.05.1985 respectively. But the District https://hcservices.ecourts.gov.in/hcservices/ Sports Officers were appointed from the graduate coaches of Tamil Nadu State Sports Council in 1983, 1985 and 1986 and some of them were deputed as Warden Sports Hostel, since the basic pay was identical. 6. During the year 1987, Adhoc Rules were framed in G.O.Ms.No.80, Education (Y) Department dated 20.01.1987 in respect of Sports Hostel Warden, University Coach and Sports Hostel Coach which had retrospective effect 08.09.1980. Particulars were called from the petitioner through the Warden, Sports Hostel, Madurai for the purpose of regularization as Sports Hostel coach in Roc.No.4435/A1/87 dated 25.11.1987 and the Warden of the Sports Hostel, Madurai requested the petitioner to furnish his original Certificates like Community Certificate, Date of Birth Certificate with S.S.L.C. Book, Qualification Certificate, Diploma in N.I.S. and the Physical Fitness Certificate obtained from the authorized Medical Attendant before 08.12.1987 and he submitted the same. 7. While this being so, as per the proceedings in Roc.No.1/A1/89 dated 04.01.1989 a panel was released for the appointment of District Sports Officers from the Graduate Coaches working in the Tamil Nadu State Sports Development Corporation and the vacancy positions of Warden in Trichy and Tirunelveli were mentioned in the said proceedings and it also directed an individual to make representation against his non inclusion in the list or the seniority must do the same within a period of one month from the date of the said order. 8. The petitioner submitted his representation on 09.01.1989. To his surprise, 11 District Sports Officers were appointed from the graduate coaches of the Tamil Nadu State Development Sports Corporation and two of them were deputed as Warden as per proceedings in Roc.No.1/A1/89 dated 05.01.1989 and Roc.No.1/A1/89-2. In the 11 District Sports Officers appointed, one Stephen David Jebaraj Singh was junior to the petitioner while comparing the Government and Quasi Government Service. Added further, the Circular Roc.No.1/A1/89 dated 05.08.1989 mentioned that the appointed District Sports Officers were not eligible for joining time, Transfer Travelling Allowance and Pay fixation under Rule FR 22(B) of the Tamil Nadu Financial Code, since it was an entry into a Government Service. He submitted his representations on 10.02.1989, 13.03.1989 and 10.04.1989. He was totally denied the promotion on the ground that his services as Hostel Coach were not regularised and probation declared as per Roc.281/A1/88 dated 30.05.1989. In fact, his services were not regularised because of administrative delay and not on his fault. 9. To his dismay, the District Sports Officers who were appointed in the year 1981 as per G.O.Ms.1550, Education Department dated 24.07.1981 with a condition to satisfy the Adhoc Rules, were promoted as Assistant Directors before regularisation and probation https://hcservices.ecourts.gov.in/hcservices/ declared in the post of District Sports Officer, as per G.O.Ms.No.1841 Education (Y1) Department dated 16.12.1988 and in Roc.10229/A1/88 dated 09.12.1988. Indeed, the services of aforesaid District Sports Officers were regularized as per G.O.Ms.1300 dated 30.12.1992 and the services as Coach was also regularised as per the said G.O. 10. The petitioner projected an appeal to the Government on 10.07.1989. On the basis of his appeal, the Director of Sports and Youth Services was directed to promote the petitioner as Warden Sports Hostel pending regularisation of his services, subject to the condition that it should be purely on temporary basis without any rights in the Letter No.66467/Y1/89-7 dated 07.03.1990. Thereupon he was promoted as Warden as per the proceedings Roc.No.281/A1/89 dated 21.03.1990 and joined as Warden at Tirunelveli. Also as per G.O.Ms.No.641 dated 18.07.1992, the Directorate of Sports and Youth Services and the Tamil Nadu State Sports Development Corporation were merged and named as Sports Development Authority of Tamil Nadu. The petitioner services as Hostel Coach was regularised as per G.O.Ms.No.1300 dated 30.12.1992 and his probation was declared in Roc.No.1090/A1/93-4 dated 26.02.1993. He gave his representation dated 04.03.1994 (after his regularisation) to refix his seniority as per G.O.Ms.80 Education (Y) Department dated 20.01.1987 but his claim was negatived in Roc.No.3769/A1/94 dated 07.11.1994. 11. The petitioner filed an appeal to the State Government to refix his seniority as Warden on 07.11.1994 and 23.12.1996 for which he had not received any reply. In the meanwhile, he gave a representation to his Department to refix his seniority before merging the Directorate of Sports and Youth Services and the Tamil Nadu State Sports Development Corporation. His claim was negatived in Roc.No.21837/A1/96 dated 29.01.1999. He once again filed an appeal to the Government on 11.02.1999 and that proved futile as per proceedings in Roc.No.4204/A1/89 dated 07.02.2001. Further, on 16.08.2001, he submitted an appeal to the State Government to reconsider his matter narrating the facts in detail. His appeal was rejected in Roc.No.15533/A1/2001 dated 31.12.2003. 12. Learned counsel for the petitioner urges before this Court that the petitioner claims his seniority as Warden from 27.09.1985 inasmuch as the Adhoc Rules G.O.Ms.No.80, Education (Y) Department dated 20.01.1987 clearly mentions that promotion to the Warden post required only three years coaching experience in Sports Hostel and the aforesaid G.O. had retrospective effect from 08.09.1980 or from 19.08.1986 because of the fact that the District Sports Officers appointments were made in Roc.No.10083/A1/81-2 dated 19.08.1986 and few of them were deputed as Sports Hostel Warden or atleast on the date of release of the Adhoc Rules G.O.Ms.No.80, Education (Y) Department dated 20.01.1987 which refers to promotion for Sports Hostel Warden and Sports Hostel Coach and as a matter of fact, the https://hcservices.ecourts.gov.in/hcservices/ petitioner was denied promotion because his services were not regularised as Coach but the candid fact was that his services were not regularised because of the administrative delay and on on his fault and the impugned order of the second respondent dated 31.12.2003 was a non speaking order and that the Adhoc Rules to the promotion of the District Sports Officers were not taken into account and the delayed regularisation of the services of the petitioner in the post of Warden could not be a reason for denying retrospective promotion to the petitioner on par with his junior and moreover by a two line order, his claim for promotion was rejected and therefore prays for allowing the writ petition in furtherance of substantial cause of justice. 13. The stand of the second respondent is that Coaches of Sports School are not Employees of Sports Development Authority of Tamil Nadu and they are the employees of particular Sports School in the concerned Government Aided School but the Sports Hostel Coaches are the employees of Sports Development Authority of Tamil Nadu and the District Sports Officers were appointed from the Graduate Coaches of the then Tamil Nadu State Sports Council and some of them were deputed as Warden, Sports Hostel since the basic pay was identical and added further, mere completion of three years of service as Hostel Coach despite non-satisfaction of other conditions to be satisfied will not bestow a right on the petitioner to be promoted as Warden, Sports Hostel and the Coaches working in the then District Sports Council are responsible for coaching activities of the entire Revenue District but the Hostel Coach was confined to the respective Hostel Students' coaching activities and moreover the District Sports Officers and Warden are the same category and the Coaches who are suitable for both the posts will only be promoted. 14. Besides the above, the second respondent takes a plea that the services of the Coaches who were promoted as District Sports Officer from the Tamil Nadu State Sports Development Corporation were already regularised and they were considered and appointed and the petitioner was promoted temporarily as Warden on 28.03.1990 as per the directions of the Government viz., before the regularisation of his services in the post of Hostel Warden as per G.O.Ms.No.1300 Education (Y1) Department dated 30.12.1992 and as per the said G.O., the services were regularised according to the seniority and notwithstanding the fact that G.O.Ms.No.80 Education (Y) Department dated 20.01.1987 had the retrospective effect from 08.09.1980, the promotion could not be given in a retrospective fashion and without regularisation in the feeder category, the promotion to the higher category could not be given as per procedure and the Government in its letter (D) No.2 dated 09.01.2001 observed among other things that the temporary appointment of the petitioner as Coach was regularised only on 30.12.1992 even though such regularisation was ordered from the date of his temporary appointment on 27.09.1982 and even before the orders were issued regularising the services of the petitioner in https://hcservices.ecourts.gov.in/hcservices/ the post of Coach, he was temporarily posted as Warden with effect from 28.03.1990 and therefore his request for retrospective promotion as Warden from 27.08.1995 could not be accepted and therefore rejected his representation dated 11.02.1999 and since there was violation of Rules prescribed by the Government, the request of the petitioner praying for retrospective promotion could not be granted and hence the writ petition is to be dismissed. 15. The learned counsel for the petitioner submits that the petitioner was denied promotion because of the fact that the services were not regularised as Coach but the reason for his services were not regularised was due to an administrative delay and when the G.O.Ms.No.80 Education (Y) Department dated 20.01.1987 had the retrospective effect from 08.09.1980 or from 19.08.1986, the petitioner could not be denied his legitimate promotion and since the petitioner is an eligible person, he ought to be given the promotion with retrospective effect from the date on which his immediate Junior was promoted and to lend support of his contention, he relies on the decision of the Hon'ble Supreme Court in C.O.ARUMUGAM AND OTHERS Vs. THE STATE OF TAMIL NADU AND OTHERS, 1989 (VOL.13) SUPREME COURT SERVICE RULINGS 780, at page 782 wherein at paragraph No.5, it is observed as follows:- "....5. As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Arts.14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge- sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted." 16. He also cites the decision of the Hon'ble Supreme Court STATE OF MADHYA PRADESH AND ANOTHER Vs. SYED NASEEM ZAHIR AND OTHERS, 1992 (VOL.13) SUPREME COURT SERVICE RULINGS 824, at page 825 wherein at paragraph No.7 it is held thus:- "....7. It is no doubt correct that in view of Jankiraman's case the DPC was not justified in keeping the recommendation pertaining to Syed in a "sealed cover", but it is difficult to ignore glaring facts in a given case and act mechanically. Even in https://hcservices.ecourts.gov.in/hcservices/ Jankiraman's case while dealing with Civil Appeals Nos.51-55 of 1990 this Court observed as under:- "In view of the aforesaid peculiar facts of the present case, the DPC which met in July, 1986 was justified in resorting to the sealed cover procedure, notwithstanding the fact that the charge- sheet in the departmental proceedings was issued in August/December, 1987. The tribunal was, therefore, not justified in mechanically applying the decision of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary." Keeping in view the facts of this case we are of the view that the "sealed cover" containing recommendations of the DPC in respect of respondent Syed be not opened till the departmental proceedings against him are concluded. As mentioned above the enquiry report has already been received by Syed and it is a matter of days before the disciplinary proceedings would come to an end. In case he is completely exonerated, the "sealed cover" shall be opened and if the recommendation is in his favour, he shall be nationally promoted with effect from the date when a person junior to him was promoted to the post of Chief Engineer. In that event, he shall be entitled to all consequential benefits including back wages. In case, respondent Syed Naseem Zahir is punished in the proceedings, then action would be taken in accordance with the guidelines as laid down by this Court in Jankiraman's case." 17. Besides the above, the learned counsel for the petitioner invites the attention of this Court to the order passed by this Court in W.P.No.2311 of 2008 between G.JANAKI and THE COMMISSIONER FOR REVENUE ADMINISTRATION, CHEPAUK, CHENNAI-5 and 2 others dated 15.12.2009 wherein at paragraphs 7 to 9, it is held as follows:- "7. On the race of the contents in the counter affidavit, it is clear that further promotion to the post of Deputy Tahsildar, to which the petitioner is entitled to, was stopped only because of the entry in the Service Register of the Petitioner, imposing ban on further promotion in respect of the petitioner who has been promoted from Telex Operator to the post of Assistant by quoting a letter of the Joint Commissioner dated 17.12.2004. It is further stated that till the Government Order is required for clarification, the promotion shall not be given to https://hcservices.ecourts.gov.in/hcservices/ the next post. 8. It is not in dispute that the junior to the petitioner has been promoted as Deputy Tahsildar. It is relevant to point out that the order of the third respondent dated 27.10.2004 in regularising the service of the petitioner in the post of Assistant with effect from 15.6.1999 is in conformity with the order of the Tribunal. The Tribunal has in fact found that the petitioner has not committed any fraud, and directed the petitioner to continue as Assistant and when such order is passed recognising the service of the petitioner as Assistant, certainly the petitioner is entitled to further promotion as per her service condition. 9. In these circumstances, the writ petition stands allowed with a direction to the respondents to promote the petitioner to the post of Deputy Tahsildar from the date on which her junior was promoted as Deputy Tahsildar and pay all monetary and consequential service benefits if there are no other legal impediments and such order shall be passed within a period of four weeks from the date of receipt of copy of this order. No costs. Consequently, connected MP is closed." 18. It is not in dispute that the petitioner was appointed as an Athletic Coach and joined at the Sports Hostel, Madurai on 27.09.1982. A perusal of the G.O.Ms.No.1846 Education Department dated 08.09.1980 indicates that a proposal of starting the Sports Hostels in Madurai, Tirunelveli and Trichirappalli under Part II Scheme for 1980-81 was approved by the Government and the expenditure was also sanctioned. By means of G.O.Ms.No.1550, Education Department dated 24.07.1981, the Government had approved the panel of names mentioned in the Annexure for the appointment temporarily and also authorised the Directors of Sports and Youth Services to fill up the 16 posts of the District Sports Officers in 16 Districts of Tamil Nadu and permitted them to issue posting orders as District Sports Officers immediately and further the Directorate of Sports and Youth Services was informed that these appointments were purely temporary and the incumbents could be allowed to continue in their services as the District Sports Officers provided they satisfy the Adhoc Rules to be approved by the Government and regularisation of services, drawal of increments will be allowed, only if they satisfy the Adhoc Rules and in fact if they do not satisfy the Adhoc Rules they should be reverted back to their old posts for which they have been selected for appointment as District Sports Officers. Later the Government had issued G.O.Ms.No.80, Education (Y) Department dated 20.01.1987 specifying the General and the Special Rules applicable to the https://hcservices.ecourts.gov.in/hcservices/ holders of the permanent posts in the Tamil Nadu School Educational Service to the effect that they shall apply to the holders of the temporary posts viz., i)Sports Hostel Warden; ii)University Coach; iii)Sports Hostel Coach in the Sports and Youth Services Department subject to the modification specified in the Rules thereto. Further more, it is evident that the Commissioner of Sports and Youth Services, Madras-84 in Roc.No.4435/A1/87 dated 25.11.1987 had addressed a communication to the Hostel Warden, Sports Hostel, Madurai in connection with the regularisation of services of Sports Hostel Coaches and directed to verify all the original documents like Community Certificate, Date of Birth verification with reference to SSLC Book, Qualification Entries not attested properly, Diploma in N.I.S, the period of training undergone, the details regarding the successful completion and the date of successful completion were not clearly furnished and not clearly attested; and the Physical Fitness Certificate (except Trichy Hostel Coaches) and requested to obtain the aforesaid detail so as to reach his office on or before 15.12.1987 without fail. As per G.O.Ms.No.1841 Education (Y1) Department dated 16.12.1988, the Government had ordered the promotions of six persons found therein purely on temporary basis and also informed that they were liable to be terminated at any time without assigning any reason and the said temporary post will not confer any claim for seniority, etc., In the aforesaid G.O., out of six persons who were ordered to be promoted temporarily as Assistant Directors in the Directorate of Sports and Youth Services pending formulation of panel (temporary or regular) after fixation of seniority in between the categories appointed by both the methods (i.e, appointment by direct recruitment from among the Coaches and recruitment by transfer from Educational Service). 19. The grievance of the petitioner is that the District Sports Officers appointed in the year 1981 as per G.O.Ms.No.1550, Education Department dated 24.07.1981 a condition to satisfy the Adhoc Rules were promoted as Assistant Directors before regularisation and declaration of probation in the post of the District Sports Officer as per G.O.Ms.No.1841 Education (Y1) Department, dated 16.12.1988 and in Rc.No.10229/A1/88 dated 19.12.1988. As a matter of fact, the petitioner on 10.07.1989 had addressed a representation from Madurai to the Secretary to Government, Chief Minster's Complaint Cell praying for his regularisation of service and declaration of probation and also the inclusion of his name in the panel for the post of Hostel Warden/District Sports Officer and also prayed for placement of his name in the seniority list with due seniority and to give him the promotion as per G.O.Ms.No.80, Education (Y) Department dated 20.01.1987 with effect from 1985. Significantly in the Letter No.66467/Y1/89-7 dated 07.03.1990 addressed by the Deputy Secretary https://hcservices.ecourts.gov.in/hcservices/ to Government to the Director of Sports and Youth Services, Madras- 84, it was mentioned that it would be more appropriate to keep some difference between the scale of pay of Warden and the Coach and that the Government proposed to reject the request of Thiru.C.Kirupala and requested to inform the individual accordingly and further mentioned that pending regularisation of the services of Thiru.C.Kirupala, Athletic Coach, Madurai (petitioner), a request was made to promote Thiru C.Kirupa as Hostel Warden subject to the condition that it should be purely on temporary basis without any rights. In the aforesaid letter of the Government dated 07.03.1990, the Directorate of Sports and Youth Services in his proceedings Roc.No.281/A1/89 dated 21.03.1990 promoted the writ petitioner as Sports Hostel Warden in the time scale of pay of Rs.1820-60-2300-75-3200 and posted him as Sports Hostel Warden, Tirunelveli as per Rule 39(a)(i) of General Rules for the State and Subordinate Services and further the writ petitioner was informed that this promotion was purely on temporary basis and it does not confer any right him for seniority and other benefits and he would be reverted as Coach at any time without assigning any reasons therefor and added further, the individual was informed that he would continue to draw his present pay pending regularisation of service in the post of Coach.