U. A. Palanisamy v. The Government of Tamil Nadu — 1997 DIGILAW 819 (MAD)

Judgment : D. RAJU, J.: 1. The above writ appeal was been filed against the order of the learned single Judge of this Court, dated 8.8.1994 in W.P.No.4229 of 1995 whereunder the writ petition, seeking for the issue of a writ of certiorarified mandamus to quash the letter of the first respondent, dated 13.6.1984 as also the consequential proceedings, dated 9.11.1984 particularly paras. 1 and 4 insofar as it related to the promotion of respondents 3 and 4 as Assistants and consequently direct respondents 1 and 2 to promote the appellants as Assistants as against those vacancies. In the letter dated 13.6.1984, the Government rejected the request of the appellants herein to accord promotion in future vacancies and clarified the position that merely because some juniors acquired the qualification of training before their seniors, mere was no justification to stop the deputation of the seniors who got qualified in passing the required test for the purpose of training in Pyakara Electricity for the required duration. In the proceedings dated 9.11.1984, the third and fourth respondents were appointed and posted to work as Assistants in the City Municipal Corporation, Coimbatore. 2. The appellants based their claim merely on the chance fact of having acquired the training qualification earlier to persons who are indisputably seniors. The first of the appellants Was said to have passed S.S.L.C. examination and was appointed in the Electrical undertaking of the second respondent on 20.8.1960 as cashier and thereafter as Junior Assistant in the year 1963. He has passed the Account Test for Subordinate Officers Part I in December, 1974 and Accountancy Lower Grade in May, 1974. He claims to have completed the prescribed three months, training between 30.4.1975 and 31.7.1975. so far as the second appellant is concerned, he also passed S.S.L.C. Examination and got appointed as Junior Assistant on 17.12.1971 in the Electrical undertaking of the second respondent and was later regularised with effect from 29.9.1972. He has passed the prescribed test for Subordinate Officers Part I in May, 1975 and Accountancy lower Grade in November, 1975 and he claims to have completed the prescribed training between 17.4.1976 and 16.6.1976. 3. So far as respondents 3 to 8 are concerned, they were appointed as Assistants in the erstwhile Coimbatore Municipality and were working in the Electricity Branch. 3. So far as respondents 3 to 8 are concerned, they were appointed as Assistants in the erstwhile Coimbatore Municipality and were working in the Electricity Branch. The third respondent entered into service on 5.11.1956 while respondents 4 to 8 entered service on 24.7.1959, 24.7.1959, 14.5.1960, 25.10.1960 and3.7.1961 respectively. The appellants were admittedly juniors to respondents 3 to 8. In the seniority List prepared also, according to the rules, respondents 3 to 8 ranked as 1 to 6 as against the rank of the first appellant who was assigned No.11 and the second respondent No.32. 4. The Government of Tamil Nadu passed G.O.Ms.No.1139, R.D. & DA., dated 30.4.1974 Stipulating the procedure for deputing persons for undergoing training to acquire the qualification in that regard and as a matter of fact, such period of training were ordered to be treated as on duty for the purpose. In order to effectively ensure proper training and also further ensure uniformity, the second respondent was asked to depute persons for such training according to seniority as and when they acquired the required pass in the test. As respondents 3 to 8 were waiting for being deputed, the appellants, even without a formal deputation for training by the second respondent, appeal to have applied for leave and during such leave period, claim to have undergone the training out Of turn and on the basis of such out of turn training undergone, without being deputed by the department, they have staked their claim for being appointed as assistants. It is this claim that came to be rejected which resulted in the filing of the writ petition by the appellants before this court as noticed earlier. 5. The learned single Judge was pleaded to reject the writ petition on the ground that not only on the merits they had no acceptable case but also on the ground that the appellants retired from service on account of superannuation and they do not have any subsisting claim for being agitated. 5. The learned single Judge was pleaded to reject the writ petition on the ground that not only on the merits they had no acceptable case but also on the ground that the appellants retired from service on account of superannuation and they do not have any subsisting claim for being agitated. So far as the merits of the claim are concerned, the learned single Judge was of the view that merely because juniors like the appellants got qualified earlier, they have no legitimate claim to demand promotion to the detriment of their seniors and merely because the vacancies available were filled up on the return of the seniors after acquiring the qualification relating to training, no malice or improper motive could also be attributed to respondents 1 and 2 and on the facts and circumstances of the case, no grievance of any denial of equality of opportunity or equal protection of law has been made out. The learned single Judge also repelled the grievance of alleged violation of Arts.14 and 16 of the Constitution of India. Hence, the above writ appeal. 6. Mr.P.Subbiah, learned counsel appearing for the appellants, challenged the order of the learned single Judge on the only ground that when admittedly the appellants were qualified in all respects as on the date when the vacancies in question in me post of Assistants occurred, they had a right to be appointed though they were juniors and the filling up of the vacancies could not have been delayed to await the acquisition of qualification by the seniors and consequently, the learned single Judge committed a grave error in rejecting the claims of the appellants. Reliance has been placed in support of their claim on the decisions reported in C.K.Varghese v. State of Kerala C.K.Varghese v. State of Kerala C.K.Varghese v. State of Kerala , 1981 L.I.C 1035 (KB.), Meenakshi and Munshi Lal Verma v. Union of India , A.I.R. 1983 S.C. 915. 7. Per contraMr.P.M.Bhaskaran, learned -counsel appearing for the second respondent and Mr.Hidayathullah, learned Additional Government Pleader for the 1st respondent submitted that the order of the learned single Judge as also the reasons assigned therein are quite in accordance with law and do not call for any interference. 7. Per contraMr.P.M.Bhaskaran, learned -counsel appearing for the second respondent and Mr.Hidayathullah, learned Additional Government Pleader for the 1st respondent submitted that the order of the learned single Judge as also the reasons assigned therein are quite in accordance with law and do not call for any interference. The learned counsel also submitted that by mere acquisition of out of turn qualification on their own, the appellants cannot stake any preperential claim to the detriment of their seniors and if this is allowed to be done it would result in heart-burn among the workers of the Corporation and also amount to denial of equality of opportunity to the respondents. 8. Wehave carefully considered the submissions of the learned counsel appearing on either side. In our view, there is no merit whatsoever in the challenge made to the order of the learned single Judge and the appellants have no justifiable claim for being vindicated in this appeal. 9. The decision reported in C.K. Varghese v. State of Kerala C.K. Varghese v. State of Kerala C.K. Varghese v. State of Kerala , 1981 L.I.C. 1035 (F.B.) is that of a Full Bench of the Kerala High Court wherein it was held that juniors completing promotion test earlier than their seniors and acquiring qualifications are entitled to promotion. That was a case wherein the juniors appear to have been actually promoted by the Government and when challenged, the single Judge upheld the challenge but, on appeal, the Full Bench took a different view. Though the observation made therein by the Full Bench seem to support to some extent the claim of the appellants, the same, in our view, cannot help the appellants to have any relief as prayed for by them, since the rights sought to be vindicated and the relief sought for in these proceedings are totally different, in that can such juniors, who have acquired qualifications prescribed for promotion earlier than their seniors, insist upon being promoted or compel the department to promote them ignoring the claims of the seniors out of the normal turn. So far as the case on hand is concerned, as noticed earlier, the promotion junior assistants as assistants is said to be according to seniority subject to possession of the prescribed qualifications. So far as the case on hand is concerned, as noticed earlier, the promotion junior assistants as assistants is said to be according to seniority subject to possession of the prescribed qualifications. Respondents 3 and 4, who were indisputably seniors as also respondents 5 to 8, were in the normal course and in their due tarn deputed for training in terms of the Government Orders governing the matter in issue and were promoted accordingly. It is only taking into account these aspects, the learned single Judge has categorically held mat mere possession of the required qualifications or acquisition of such, qualifications by juniors earlier to their seniors does not give any right in the juniors to insist that they should be promoted as on the date when the vacancies arose in the post of assistants. We are in this proceeding concerned with such a situation and the rights sought to be asserted to compel the corporation to promote them, unlike the case before the. kerals High Court. 10. Inthe decision reported in Meenakshi v. State of Kerala , 1982 L.I.C. (Noc.) 25 the learned single Judge has also taken the view that the management cannot delay promotion of a junior merely on the ground that the senior was not qualified as on the date of the vacancy. The decision reported in Munshi Lal Verma v. Union of India, A.I.R. 1983 S.C. 915 has no relevance or application to the case on hand. The dispute arose in a peculiar context therein and the question which was the subject matter of decision by the Apex Court was not the same as the one before us, i.e., the entitlement as a matter of right of a junior to insist or compel the department to promote him out of turn on the only ground that he possesses the required qualification for promotion as on the date of the vacancy in a post though indisputably his turn for such promotion has not reached. The decision reported in T.V.Rangaih v. Sreenivash Rao T.V.Rangaih v. Sreenivash Rao T.V.Rangaih v. Sreenivash Rao , A.I.R. 1983 S.C. 852 also turned on a different question and has no relevance to the case on hand. 11. The decision reported in T.V.Rangaih v. Sreenivash Rao T.V.Rangaih v. Sreenivash Rao T.V.Rangaih v. Sreenivash Rao , A.I.R. 1983 S.C. 852 also turned on a different question and has no relevance to the case on hand. 11. Apart from the fact that the decision of the Full Bench of the Kerala High Court did not consider an issue in the context of a claim of the nature projected before us, we are unable to subscribe to the wide propositions laid down therein or accept for our purpose some of the general observations made therein. As pointed out earlier, the case before us is one wherein the appellants, without waiting for deputation through departmental channel in their due turn to acquire the qualification of training seem to have gone on leave and on their own acquired the qualification, in training when their seniors were waiting for formal deputation through the orders of the department. This is not a case where both the seniors and juniors had equal opportunities to acquire the qualifications and the seniors were at default. On the other hand, this is a case where the appellants were clever enough to somehow acquire out of turn qualification except through departmental sources and means and by such acquisition of qualification, in our view, they cannot have any right to defeat the legitimate rights of their seniors. The seniors, as noticed earlier, have been waiting for being deputed in their due turn and were ultimately deputed for training and acquired the qualification also in that regard and it is only thereafter, they came to be promoted. We are of the view that the appellants were indisputably juniors to respondents 3 to 8 and cannot claim to have any statutorily protected rights or could be said to have acquired any rights for immediate promotion the moment they acquired the qualifications, out of turn and also out of normal departmental sources and means. If only such claims are countenanced, the legitimate rights and claims of seniors for promotion in their due turn would be defeated and it will result in denial of equality of opportunity. If only such claims are countenanced, the legitimate rights and claims of seniors for promotion in their due turn would be defeated and it will result in denial of equality of opportunity. Therefore, we are of the view that the learned single Judge was right in coming to the conclusion that the appellants have acquired no rights whatsoever to compel respondents 1 and 2 to promote them out of turn on the basis of the out of turn qualification privately acquired by them otherwise than through the means of deputation by the department. The plea based on alleged violation of Arts. 14 and 16 of the Constitution is misconceived in such circumstances and has been rightly repelled by the learned single Judge. 12. For all the reasons stated above, we are in entire agreement with the decision of the learned single Judge and we find no justice in the claim projected on behalf of the appellants. The writ appeal, mere-fore, fails and shall stand dismissed. No costs.