Soy Varghese vs Union Of India & Others

The present writ petition has been preferred challenging an order dated 20th June, 2018 passed by the learned Tribunal in an original application filed by the petitioner being OA No.00032/A&N/2015.

Shorn of unnecessary details the facts are that the petitioner was appointed as a Graduate Trained Teacher (in short, GTT) in the Education Department vide memo dated 28th December, 1993 and he was posted in the Middle School, East Bay, Katchal. Upon availing necessary permission from the competent authority, the petitioner pursued a Master Degree course and obtained the Master of Science degree in Physics from Annamalai University. A provisional certificate to that effect was issued on 27th August, 1999. Such enhancement of qualification was duly intimated by the petitioner to the respondents. By a memo dated 27th September, 1999 issued by the Assistant Director (Education) a seniority list of GTTs was circulated with a rider that in the event any GTT possessing higher qualification is not included in the said list, he/she may submit the documents pertaining to such higher qualification latest by 31st October, 1999. Thereafter by a memo dated 22nd November, 1999 a seniority list of GTTs possessing higher qualification as on 31st October, 1999 was circulated. The petitioner's name, however, was not included in the same. Aggrieved thereby the petitioner filed an application being OA No.52/A&N/2002 and during pendency of the same the petitioner was promoted to the post of Post Graduate Teacher (in short, PGT) in Physics in the year 2003. As such, the learned Tribunal on 12th September, 2003 disposed of the original application with a direction upon the petitioner to submit a fresh representation highlighting his grievance regarding his seniority. Accordingly, the petitioner submitted a representation dated 23rd December, 2003 and as the same was not considered, the petitioner was constrained to approach the learned Tribunal again by filing an original application being OA No.351/00035/2014. The same was also disposed of by an order dated 9th June, 2015 with a direction upon the respondent no.4 herein to consider the petitioner's representation in view of the order passed on 12th September, 2003. Though the direction was upon the respondent no.4, the Deputy Director Education passed the order on 8th March, 2016 rejecting the petitioner's claim. The said order was challenged by the petitioner by filing an original application being OA No.00032/A&N/2015 and the order dated 20th June, 2018 passed in the same has been impugned in the present writ petition.

Drawing attention of this Court to the order dated 8th March, 2016 passed by the Deputy Director (Education), Mr.Kumar, learned advocate appearing for the petitioner submits that inspite of a clear admission to the effect that the petitioner's representation intimating the fact of enhancement of qualification was received by the competent authority on 21st October, 1999, his name was not included in the final merit list published on 22nd November, 1999.

He contends that the learned Tribunal erred in law in observing that "if provisional certificate will be taken as final and conclusive, why it is required to issue of an original certificate". While passing the order dated 8th March, 2016 the Deputy Director (Education) did not dispute the veracity of the said provisional certificate. The petitioner's claim was, however, rejected on the ground that prior to preparation of the provisional seniority list dated 27th September, 1999, no intimation was received from the petitioner as regards enhancement of qualification.

He argues that there was an existing vacancy under the promotional quota on the date of publication of the final merit list on 22nd November, 1999 and the petitioner was the sole incumbent to be considered for promotion under promotional quota but the respondents illegally did not include his name in the said list inspite of receipt of the petitioner's intimation on 6th October, 1999 that he had obtained the post graduate qualification. The said vacancy was illegally brought under direct recruitment quota and steps were taken by the authorities to fill up the same in terms of the Rules towards direct recruitment.

He submits that accepting the fact that the petitioner had acquired post graduate qualification from Annamalai University, as certified provisionally on 27th August, 1999, the respondents asked the petitioner to appear before a Departmental Promotion Committee (in short, DPC) and upon assessment of his eligibility, he was promoted to a post of PGT (Physics) by an order dated 20th March, 2003.

Per contra, Mr.Tabraiz, learned advocate appearing for the respondents submits that there is no infirmity in the order passed by the learned Tribunal and the petitioner's claim was rightly rejected since prior to the publication of the provisional merit list, he did not intimate the authorities that he had acquired higher qualification.

Drawing attention of this Court to the averments made in paragraphs 13 and 14 of the affidavit-in-opposition, he submits that the vacancy which occasioned after publication of the seniority list was in a direct recruitment quota post and the authorities took appropriate steps to fill up the same. The petitioner being a claimant in respect of a promotional vacancy could not have been considered for the said post.

Records reveal that the petitioner was recommended for promotion in the year 2003 by the Departmental Promotion Committee (in short, DPC) and on the basis of such recommendation, the Director of Education granted promotion to the petitioner to the post of PGT (Physics) by a memo dated 20th March, 2003 accepting the validity of the petitioner's post graduate qualification. No adverse remark was also found against the petitioner. Being satisfied with the petitioner's eligibility the authorities granted him promotion in the year 2003. The observation of the learned Tribunal that "provisional certificate is only accepted in educational institution for higher studies so that during academic session, the student can furnish the original certificate after issuance of the same by the University" is not acceptable. The petitioner's claim was rejected by the learned Tribunal on a new ground that the provisional certificate was not acceptable. Such ground does not even feature in the order dated 8th March, 2016 passed by the Deputy Director (Education). According to the learned Tribunal another ground towards rejection of the petitioner's claim was that "since the applicant accepted his promotion on 28.03.2003, his claim to get promotion from 1998 is not legally tenable". Such observation reveals that the learned Tribunal had proceeded being oblivious of the order dated 12th September, 2003 in OA No.52/A&N/2002 in which liberty was granted to the petitioner to submit a fresh representation highlighting his grievance regarding seniority.

From the contents of the memo dated 22nd November, 1999 issued by the Assistant Director (Education) it appears that a final seniority list of GTTs possessing higher qualification as on 31st October, 1999 was published. The Deputy Director Education in the order dated 8th March, 2016 had observed that "as per this office records, the application of the applicant for considering his higher qualification was initially received by the Directorate of Education on 06/10/1999 vide R.D. No. 1017 and the same was recorded in the concerned section on 21/10/1999" and as such, we do not find any reason as to why the petitioner's name was not included in the final merit list published on 22nd November, 1999.

In the said conspectus, we are of the opinion, that the order passed by the learned Tribunal dated 20th June, 2018 and the order dated 8th March, 2016 passed by the Deputy Director(Education) are not sustainable in law and the same are, accordingly, set aside.

Mr.Kumar has, however, not been able to produce any document to the effect that there was any existing vacancy in a promotional post in between the date of publication of the final merit list on 22nd November, 1999 and the date of advertisement to fill up the post of PGT on 27th December, 1999, in which the petitioner could have been promoted and his seniority could have been determined.

A right accrued in favour of the petitioner to be considered for promotion from the date of publication of the final merit list i.e. on 22nd November, 1999. It is well settled that that although an employee has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor [See the judgment delivered in the case of S.B. Bhattacharjee - vs- S.D. Majumdar & Ors., reported in AIR 2007 SC 2102]. It was thus incumbent on the part of the authorities to ascertain as to whether there was any existing vacancy in the promotional quota prior to advertisement for filling up the direct recruitment post on 27th December, 1999. From the materials on record, we are also not in a position to ascertain as to whether there was any existing vacancy in the promotional quota on 22nd November, 1999, i.e., the date of publication of the final merit list.

Accordingly, this Court directs the respondent no.4 to consider the petitioner's representation dated 23rd December, 2003 afresh, in the light of the observations made in the present order and to take a decision, in accordance with law and to communicate the same to the petitioner.

The above exercise shall be completed by the respondent no.4 within a period of six weeks from the date of communication of this order.

Needless to observe that in the event the petitioner's claim deserves acceptance, necessary follow up steps, including grant of consequential benefits, shall be taken by all the respondents forthwith.

With the above observations and directions, the writ petition being WPCT No.260 of 2018 is disposed of.

There shall be, however, no order as to costs.