Thangavelan and Others vs Union of India (UOI) and Tuticorin Port Trust

K.P. Sivasubramaniam, J.—This petition has been filed seeking to issue a Writ of Certiorarified Mandamus to call for the records on the file

of the second respondent dated 13.1.1992 to quash the same and to direct the second respondent to give notional promotion to the petitioners in

the cadre of Technical Assistant from the date on which direct recruitment was resorted to viz., 1.9.1979 in the case of Technical Assistant

(Electrical) and 30.1.1981 in the case of Technical Assistant (Mechanical) with seniority and grant all attendant monetary benefits with 18%

interest for the arrears of pay.

The issue raised in this writ petition was already a subject matter of an earlier writ petition in W.P. Nos.9360 and 9362 of 1981. The said writ

petitions were filed by 29 diploma holders, including the petitioners herein. They were governed by the Tuticorin Port Trusts Employees

(Recruitment Seniority and Promotion) Regulations, 1979. The next avenue of promotions to Junior Engineers, which category consists of both

Diploma Holders and Degree holders, is the post of Assistant Engineers. The scope for further promotion to the post of Executive Engineer was

restricted to persons possessing a degree in Engineering and consequently, the Diploma holders were held to be ineligible for promotion as

Executive Engineer or to further higher posts. The complaint of the petitioners in those writ petitions was that the category of Junior Engineer

consists of both Diploma holders and Degree holders and that the post carries the same scale of pay and that they also discharged the same nature

of duties. They have in fact been brought under a single seniority list and consequently, when the question of promotion to a higher post arises,

there cannot be any discrimination based on qualification. To deny promotion to Diploma-holders was unjust. With the result, the petitioners

contended that the order of promotion of the Port Trust dated 6.8.1979 and the consequent follow up action for filling up vacancies was improper.

S. Ramalingam, J., on a consideration of the contentions of both sides held that the denial of opportunity for promotion to the petitioners was not

sustainable. But the learned Judge at the same time held that such a declaration would have an adverse effect of unsettling the settled affairs. It was

therefore stated by the learned Judge that during the pendency of the writ petitions for over nine years, many of the respondents might have been

promoted to higher posts and therefore, it was necessary to ensure that any declaration to be given by the Court should not adversely affect the

respondents who have been promoted and that none of them should be reverted on the basis of the declaration. The following is the operative

portion of the judgment of the learned Judge :

It has already been held in W.P.Nos.9361 and 9363 of 1981 that the regulations which restricted the promotions to the post of Technical

Assistant to the degree holders alone are not sustainable. But such a declaration may have the adverse effect of unsettling the settled affairs. During

the pendency of these writ petitions for over nine years, many of the respondents might have been promoted to further higher posts of Assistant

Engineers or Assistant Executive Engineers or even; further to the post of Executive engineers. Therefore, while making the declaration as

aforesaid, it is ordered that such declaration would not adversely affect the respondents, who have since been promoted and none of them would

be reverted on the basis of the declaration made. At the same, it is made clear that the petitioners, who had been denied the right of promotion as

Technical Assistants by reason only of the fact that they do not possess a degree in Engineering should atleast be afforded monetary relief on

notional basis of promotion to that post on the date on which their respective juniors(degree holders) were promoted to the post of Technical

Assistant. The petitioners are at liberty to give representations to the authorities concerned for affording them the said monetary relief and for fixing

their due seniority and when such representations are made, the authorities will pass orders thereon within a period of three months from the date

of receipt of such representations.

A perusal of the above order of the learned Judge shows that even though a declaration was given to the effect that the Diploma holders should

not have been discriminated, yet the learned Judge refused to interfere with the promotions already made. The relief which was given to the writ

petitioners in those writ petitions was limited to the claim of mandatory relief on notional basis and the petitioners were also given liberty to give

representation to the authorities in the said context.

However, five of the said writ petitioners, being aggrieved by the non-promotion, have approached this Court. The only ground on which the

petitioners claim that their right should have been considered and that many individuals came to be promoted after the filing of the earlier writ

petitions viz., W.P.Nos.9360 of 1991 and hence the promotions of such individuals were liable to be set aside.

I have also heard the learned counsel for the respondents.

It is rightly pointed out on behalf of the respondents that the five individuals, who have been named in paragraph 11 of the affidavit, were all, no

doubt, directly recruited and appointed after the filing of the earlier writ petition. However, the earlier writ petition had been disposed of much later

and therefore, the order in the earlier writ petition would govern the situation.

I am inclined to agree with the stand taken by the respondents. In fact, the extract of para 19 as above would show that the learned Judge had,

in his mind, the promotions and appointments made subsequent to the said date also and the learned Judge has specifically held that settled things

cannot be unsettled subsequently. The petitioners, having been parties to the earlier writ petitions, cannot question the orders passed by the learned

Judge at this stage. Any further relief could have been only by way of review or the petitioners should have filed an appeal before the Appellate

Court, and the petitioners cannot be allowed to reagitate the same matter.

In this context, the learned counsel for the petitioners contends that at an earlier stage, they had filed W.M.P.No.4058 of 1992 for the purpose

of clarification. The said petition was, however, disposed of by A. R. Lakshmanan, J. (as he then was) on 16.6.94, reserving the petitioners'' right

to take appropriate steps to challenge the order of the second respondent. I am inclined to hold that the said observation cannot be treated as

granting a right to the petitioner to reagitate the same issue, which had been concluded by the earlier judgment of this Court, specifically holding

that settled promotions/appointments cannot be unsettled.

In the result, there are no merits in the writ petition and the same is dismissed. No costs.