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K. Raju v/s Apurva Varma The State of Tamilnadu rep. by its Secretary to Government Higher Education Department & Another

    Contempt Petition No. 3034 of 2013 in Cont.P. No. 155 of 2012 in W.P.No. 10308 of 2011

    Decided On, 09 September 2014

    At, High Court of Judicature at Madras


    For the Petitioner: A.V. Bharathi for M/s. E. Martin Jeyakumar, Advocates. For the Respondents: P.H. Arvindh Pandian, AAG Assisted by N. Sakthivel, GA.

Judgment Text

(Prayer: Contempt Petition filed praying to punish the respondents for their wilful disobedience and violation of the orders passed in Contempt Petition No.155 of 2012 dated 29.03.2012 and pass further orders.)

This Contempt Petition has been filed by the petitioner against the respondents for non-compliance of the order passed in Contempt Petition No.155 of 2012 dated 29.03.2012.

2. This Court by order dated 30.06.2011, allowing the Writ Petition No.10308 of 2011 filed by the writ petitioner K. Raju, directed the respondents to extend the same benefits given to the similarly placed persons

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like M. Vinayagamoorthy, G. Mathivanan, A. Albert Jesudas, N.Arunachalam and Rajagopal, who were given retrospective promotions as per the orders passed by this Court in W.P. No.4660 of 2005 dated 30.10.2006 as confirmed by the order of Hon'ble Division Bench in W.A. No.261 of 2008 dated 08.04.2008. Since, the respondents have delayed the implementation of the order, the petitioner came to this Court by filing Contempt Petition No.155 of 2012 to initiate contempt proceedings for their wilful disobedience and failure to implement the orders passed by this Court in W.P. No. 10308 of 2011 dated 30.06.2011. Based on the representation made by learned Government Advocate appearing for the respondents on 29.03.2012, that the order has been complied with by issuance of G.O. Ms. No.36 Higher Education (12) Department dated 21.03.2012, this Court closed the contempt petition. However, not satisfied with the partly implementation of the order, the present Contempt Petition No.3034 of 2014 has been filed, stating that the petitioner's juniors have been promoted as Principal whereas the petitioner was denied promotion to the post of Principal, though they have extended the benefit of promotion till the post of Head of Department.

3. In view of that, notice was issued to the respondents/ contemnors in the contempt petition. A detailed counter affidavit has been filed by the second respondent, the Commissioner, Directorate of Technical Education. The first respondent, Principal Secretary to Government, Higher Education Department has also filed a detailed counter affidavit. Mr. P.H. Arvindh Pandian, learned Additional Advocate General appearing for both the respondents submitted before this Court that the petitioner was appointed as Draftsman Grade III, with Diploma in Civil Engineering on 28.07.1980. Subsequently, the petitioner acquired Degree in B.E and Post Graduate Degree in Civil Engineering, during the year 1987 and 1990 respectively. Though originally he was promoted to the post of Instructor on 23.12.1988, by this court's order, his said promotion was given retrospective effect from 18.10.1983. On the same day, one Mr.R.Sahadevan was also appointed by way of direct recruitment through employment exchange under 10(a)(i) to the post of Instructors. However, after the petitioner was promoted to the post of Instructor, subsequently the petitioner was upgraded to the post of Associate Lecturer in Civil Engineering on 18.10.1986. Similarly, he got orders for appointment to the promotional post of Senior Lecturer on 18.10.1994 and again to the post of Head of Department on 18.10.2004. Therefore, the question of giving promotion to the petitioner, much prior to Mr.R.Sahadevan, who was also appointed as an Instructor under 10(a)(i) through employment exchange on 18.10.1983 does not arise, by virtue of the rule invoked.

4. Admittedly, the petitioner having been appointed to the post of Draftsman Grade III with the Diploma in Civil Engineering on 28.07.1980 and was appointed in the promotional post of Instructor based on the order of this Court on 18.10.1983, the said Mr. R.Sahadevan also was appointed as Instructor by way of direct recruitment on the same day. Therefore, as per rules, the said R.Sahadevan stands above the petitioner for the purpose of considering for promotion to any higher post. In support of his submission he also relied upon the judgement of the Apex Court in the case of K. Madalaimuthu & anr. vs. State of Tamil Nadu & Ors. reported in (2006) 6 SCC 558, wherein the Hon'ble Apex Court, while considering a similar and identical issue has held that, Rule 39(c) of the General Rules indicates that a person temporarily promoted in terms of Rule 39(a) is required to be replaced as soon as possible by a member of the service who is entitled to the promotion under the Rules. The said ratio further states that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such as his appointment is regularised, for the reason that it is only from the date on which his services are regularised that such appointee can count his seniority in the cadre.

5. Although, this Court is not able to appreciate the stand taken in the case referred in the above judgement, it is a well settled legal position that when two persons are considered for higher post, one from service and the other from direct recruitment, it goes without saying that a person coming from direct recruitment stands in a far better position than the service candidates. Similarly, in the present case, the petitioner K. Raju who was appointed as Draftsman Grade III on 28.07.1980, admittedly promoted to the post of Instructor on 18.10.1983. On the said date Mr. R. Sahadevan was also appointed as Instructor under 10(a)(i) by way of direct recruitment. Therefore, the argument advanced by learned counsel for the petitioner that prior to the said Sahadevan, the petitioner should be considered for the post of Principal cannot be countenanced. It is more appropriate to mention here that as per the proceedings dated 02.01.2014 issued by the second respondent, the petitioner K. Raju has been placed in Sl.No. 10. Therefore, it is stated by learned Additional Advocate General representing the respondents/ contemnors that, as and when vacancy to the post of Principal arises, as per the said proceedings dated 02.01.2014, the petitioner will also be considered.

6. In view of the above, this Contempt petition is closed.

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