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 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 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 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 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 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 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 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 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 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.
20. A reading of the contents of G.O.Ms.No.1300 Education (Y1) Department dated 30.12.1992 indicates that the Directorate of Sports and Youth Service had stated that in respect of the individuals from Serial Nos.33 to 38 (including the writ petitioner in Serial No.34), no relaxation of rules are necessary as they satisfy the conditions of Adhoc Rules and their services may be regularised with effect from the dates quoted against each after obtaining the concurrence of the Tamil Nadu Public Service Commission and in regard to the writ petitioner, the date of appointment was 27.09.1982 Forenoon as an Athletic Coach and in paragraph No.6 it is mentioned that 'the Government after examining the proposal of the Directorate of Sports and Youth Services had decided to regularise the services of the individuals (Serial Nos.1 to 38) referred to in the aforesaid G.O. (including the writ petitioner figuring in Serial No.34) by relaxing the relevant rules issued in G.O.Ms.No.533, Education dated 21.04.1986 and G.O.Ms.No.80, Education (Y) Department dated 20.01.1987 wherever necessary.'
21. Resting on G.O.Ms.No.1300 Education (Y1) Department dated 30.12.1992 and the office proceedings No.1090/A1/93-3 dated 26.02.1993 in proceedings Roc.No.1090/A1/93-4, the Member Secretary of the Sports Development Authority of Tamil Nadu, Madras-84 had declared the five individuals' period of probation (including the writ petitioner figuring in Serial No.1) to the effect that satisfactorily they completed the same and the date of declaration of probation with respect to the petitioner was 26.09.1984 Afternoon and it was also stated that the Sports Hostel Coaches mentioning in Serial Nos.1 to 3 and 5 (the writ petitioner figuring as Serial No.5) of the proceedings dated 26.02.1993 were eligible to draw arrears of pay and allowances if any eligible to them consequent on the retrospective declaration of probation.
22. In short, from the contents of G.O.Ms.No.1300, Education (Y1) Department dated 30.12.1992 and the proceedings Roc.No.1090/A1/93-4 dated 26.02.1993 of the Member Secretary of the Sports Development Authority of Tamil Nadu, Madras-84, it is candidly clear that the writ petitioner was regularised from the date of his appointment on 27.09.1982 Forenoon and his probation was declared on the afternoon of 26.09.1984. On 04.03.1994, the petitioner had addressed a communication to the Member Secretary, Sports Development Authority of Tamil Nadu, Madras-84 wherein he made a request to place his name above the persons who were appointed as District Sports Officers after 28.09.1985 and that his pay as Warden might be ordered to be fixed with effect from 28.09.1985, etc., However, the petitioner by means of proceedings in Roc.No.3769/A1/94 dated 07.11.1994 was informed by the Sports Development Authority of Tamil Nadu that his request for appointment by transfer from the post of Warden could not be complied with at present since there was no provision in the Adhoc Rules and as far as the seniority was concerned, only after making provision in the respective service rules, his claim could be examined. The Sports Development Authority of Tamil Nadu, Madras-84 in Roc.No.4204/A1/99 had informed the writ petitioner that his request for retrospective promotion with effect from the date of acquiring the qualification prescribed for promotion to the post was rejected by the Government on the following grounds:- "There are no rule provisions to give retrospective promotion to the person with effect from the date of acquiring the qualification prescribed for promotion to the post. Rules do not confer any right for automatic promotion to Govt. Employees. The temporary appointment of Thiru C.Kirupa as Coach was regularised only on 30.12.1992, even though such regularisation was ordered from the date of his temporary appointment on 27.09.82. Even before orders are issued regularising his services in the post of Coach, the petitioner Thiru C.Kirupa was temporarily promoted as Warden, with effect from 28.3.90." Further, he was informed that he was eligible for regularisation in the post of Warden with effect from the date of his temporary promotion from 28.03.1990 and that necessary action was initiated separately in that regard.
23. In the letter of the petitioner dated 16.08.2001, he made a request to promote him with effect from 27.09.1985 i.e., from the date of his completion of three years of service as Sports Hostel Coach or atleast from 19.08.1986 as per G.O.Ms.No.1846, Education Department dated 08.09.1980 and he was informed by the second respondent/Sports Development Authority of Tamil Nadu, in its communication D.Dis.No.15533/A1/2001 dated 31.12.2003 that his request for retrospective promotion as Sports Hostel Warden and fixation of seniority was rejected by the Government in its letter No.1134/S1/2003-4, Youth Welfare and Sports Development Department dated 21.11.2003.
24. It is to be borne in mind that promotion is a positive act of elevation in one's status conveyed by an employer through a written order issued in favour of an individual promoted and communicated to him. It specifies duties and higher responsibilities. One ought to be given an opportunity to advance in one's job career. By and large, retrospective promotions cannot be given as it may result in payment of backwages to the detriment of Government exchequer. Even otherwise, on some occasions the effect of promotion are notionally admitted by administration say as an outcome of a Court verdict. In such circumstances, backwages may or may not be allowed to the petitioner. But the advantage of higher fixation of pay is allowed. An employee so promoted is also entitled to appropriate seniority list and accordingly he is entitled to be considered for further promotion.
25. Admittedly, there is no right to promotion. But an Employee has a fundamental right to be considered for promotion if he satisfies the prescribed eligibility conditions. A promotion creates a right to higher pay commensurate with duties of promotion post as declared by an employer or by the Government. This Court relevantly points out the decision GANGADHAR KAR Vs. DURGA CHARAN PANDA AND OTHERS, C.A.NO.403/95 WITH S.L.P.No.3295/1989, KALI CHARAN DAS Vs. STATE OF ORISSA AND OTHERS, 1995 (SUPPL) 3 SCC 1331, at page 1334, it is among other things held that 'no condition was imposed in regard to seniority while permitting him to repatriate to the parent cadre nor was the decision of the Government to grant him retrospective promotion qualified by a condition that he would not be entitled to seniority and accordingly, retrospective promotion of the first respondent to the post of Assistant Controller on the basis of such seniority upheld.'
26. A right to be considered for promotion cannot be confused with mere chance of promotion, as the latter will not be a condition of service. What Art.14 of the Constitution of India enjoins is not a mathematical nicety but fairness and absence of discrimination.
27. In the decision RAJASTHAN HIGH COURT Vs. BABU LAL ARORA, (2004) 9 SUPREME COURT CASES 71, at page 73, in paragraph No.6, the Hon'ble Supreme Court has observed as follows:-
"...6. The employees who are in service are governed by the conditions of employment and their promotions also take place accordingly and not on any general principle of justice and fair play. Discrimination, if any, will arise only amongst equals and not between those who are in different cadres. As was set out earlier, the respondent had obtained three promotions as per the orders issued by the Registrar-firstly, as UDC on 12.11.1973, secondly, as Court Fee Examiner/Stamp Reporter on 07.04.1984 and lastly, as a Bench Reader on 28.10.1989. Thus in the course of his 27 years' service, he had already obtained three promotions and, therefore, the circular was not attracted to his case at all. It is therefore, that the High Court wanted to rely upon the doctrine of justice and fair play."
28. Also, this Court also points out the decision DR. MS.O.Z.HUSSAIN Vs. UNION OF INDIA, 1990 (SUPP) SUPREME COURT CASES 688, whereby and whereunder the Hon'ble Supreme Court has observed thus:-
" Promotion is a normal incidence of service. There is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the Non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed."
29. One cannot ignore an important fact that a plea of 'Estoppel' will not be applicable in service matters, as opined by this Court. It must be taken note of that when an individual is recruited after fulfilling all the requirements in the service of an organisation, it is not for a particular job he was engaged but for the whole.
30. Sometimes due to administrative errors, the Employees are overlooked for promotion. It may be on account of wrong assignment of relative seniority of the eligible at the time of ordering promotions or some other reasons. Loss of seniority due to administrative errors may be of two types, a) where a person was not promoted and b) Where a person was promoted but not on the date from which he ought to have been promoted. Each such case ought to be dealt with on its own relative merits in the considered opinion of this Court. An employee who loses his promotion on account of an administrative error, the promotion must be assigned the correct seniority vis-a-vis his junior already promoted irrespective of the date of promotion. Pay in the higher grade on promotion may be fixed proforma at the proper time. The enhanced pay may be allowed from the date of actual promotion. If the Court finds that the petitioner ought to have been confirmed in his existing post from (existing an anterior date) and get the chances of promotion on the basis of that confirmation then a Court of Law cannot directly order the petitioner to be promoted to the relevant post. What it can do is only to direct the Promotional Committee to consider his case for promotion on the date which his immediate junior was promoted thereto as per the decision of the Hon'ble Supreme Court in HIGH COURT V. MAHESH, AIR 1994 SC 2595 (Para 23).
31. If regularisation of services was in accordance with the relevant statutory provisions, the services rendered prior to such regularisation will have to be counted towards discrimination of seniority, in the considered opinion of this Court.
32. In VASANT V. UNION OF INDIA, 1993 Supp (2) SCC 324 (Para 1,4), it is observed that 'where an employee was neither suspended nor any disciplinary proceeding was pending against him and yet he could not be promoted for some administrative reasons for which he was not responsible and he fulfilled the conditions for promotion under the Rules, he will (in the writ proceedings) be entitled to recover his due seniority with arrears of emoluments for the higher post when administrative reasons are removed'.
33. Be that as it may, the petitioner even on 1989, had addressed a letter to the third respondent praying for inclusion of his name in the panel of promotion in the post of Hostel Warden since he had fulfilled the requirements classified in the Adhoc Rules. It is evident that as per proceedings of the third respondent dated 03.02.1989 in Roc.No.1/A1/89-2, One P.Thangaraj, Hockey Coach, District Sports Council, Madurai and another Stephen David Jebaraj Singh, Hockey Coach, District Sports Council, Trichy were temporarily appointed as District Sports Officer/Hostel Warden in the time scale of pay of Rs.1160-50-1460-70-1950. Again, the petitioner in his letter dated 13.03.1989 addressed to the third respondent had stated that as per Adhoc Rules G.O.Ms.No.80 Education (Y) Department dated 20.01.1987, after completion of three years, he was eligible for Warden post but seniority along with Sports Council was not considered for appointment of Warden/Sports Officer and his junior Stephen David Jebaraj Singh who was joined on 01.10.1982 was given promotion as District Sports Officer at Salem and therefore had requested to consider his seniority and appoint him as Warden Sports Hostel.
34. On 10.04.1989, the petitioner in his letter addressed to the third respondent had among other things held that seniority combined with Sports Council Coaches was not considered for the appointment of Warden/Sports Officer and his junior Stephen David Jebaraj Singh who joined on 01.10.1982 was given promotion as District Sports Officer at Salem and hence requested to consider his promotion as Warden as per Adhoc Rules/combined seniority with the Sports Council Coaches. For the representations of the petitioner dated 09.01.1989, 13.03.1989 and 10.04.1989, the third respondent in Rc.No.281/A1/88 dated 30.05.1989 had informed the petitioner that as per the Rules 36(a) of General Rules for the Tamil Nadu State and Subordinate Services, he could not be promoted as Warden, Sports Hostel until his services were regularised and his case would be considered for promotion as soon as the orders regularising his services and declaring the probation issued, depending upon the merit, ability and suitability of the individual at the time of consideration.
35. Though a plea is taken on behalf of the petitioner that the impugned order of the second respondent in D.Dis.No.15533/A1/2001 dated 31.12.2003 is a non speaking order and it is a two line one, this Court opines that generally an order of Administrative Authority must spell out an outline of process of reasoning because of the simple fact an unreasoned order may be just but may not appear to be so to the person aggrieved or affected. Instead, a reasoned order will have the appearance of justice.
36. On a careful consideration of the respective contentions and in the light of the qualitative and quantitative discussions mentioned supra, this Court is of the considered view that the petitioner is not any way responsible for the administrative delay caused in respect of his regularisation as Coach and since his immediate junior Stephen David Jebaraj Singh who joined on 01.10.1982 was promoted as District Sports Officer at Salem and taking note of the fact that the petitioner joined on forenoon of 27.09.1982 and his services were regularised with effect from that date and bearing in mind an important fact that the Adhoc Rules G.O.Ms.No.80 Education Department dated 20.01.1987 speaks of the promotion to the Warden post requires only three years experience in coaching in Sports Hostel and also because of the fact that the said G.O. Refers to retrospective effect from 08.09.1980 or atleast from 19.08.1986, the petitioner ought to get his chance of promotion as Warden from 27.08.1995 (since the Adhoc Rules G.O.Ms.No.80 Education Department dated 20.01.1987 specifies that a promotion to a Warden post requires three years experience in coaching in Sports Hostel) and viewed in that perspective, this Court directs the respondents 1 to 3 to consider the case of the petitioner for promotion dispassionately taking into his account earlier different representations given on different dates, in an objective fashion within a period of three months from the date of receipt of a copy of this order and if found eligible and suitable, he may be given the promotion with retrospective effect from the date of which his immediate junior Stephen David Jebaraj Singh was promoted but he shall be given the notional promotion without monetary benefits in doing an equitable justice since no retrospective effect can be given to an order of promotion because the same is unreasonable in law and also against certain rules.
37. With the above observations, the writ petition is disposed of. No costs.
