M. Peer Kaseem Mohideen v. The Chairman,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.02.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY M.Peer Kaseem Mohideen, ... Petitioner vs The Chairman, VOC Port Trust, Tuticorin - 628 004. ...Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, to direct the respondent to regularize the service of the petitioner by promoting him as Junior Engineer (Mechanical) with effect from 1995 and confer him will all consequential benefits.
For Petitioner : Mr.R.Pon Karthikeyan For Respondent : Mr.A.Arivuchandran *****
O R D E R
This Writ Petition is filed for issuance of a Writ of Mandamus, directing the respondent to regularize the service of the petitioner by promoting him as Junior Engineer (Mechanical) with effect from 1995 and confer him will all consequentially benefits.
2. The petitioner joined the service in Tuticorin Port Trust as a Fitter on 02.03.1976. At the time of entering into service, the petitioner's qualification was S.S.L.C and I.T.I certificate in Fitter Grade. The petitioner had passed Diploma Course M.E., in April 1992 and has become eligible for the promotion of Junior Engineer in Mechanical Engineer Branch. The Diploma qualification was entered into the petitioner's service Roll in the year 1995. The petitioner with a hope of becoming Junior Engineer has submitted a representation to the respondent. In the meanwhile, his juniors, namely, David Jebaraj, Srivasan and Gnanendran were promoted in the year 1994 itself. The petitioner has filed a writ petition in W.P.No.
42 of 2009, with a prayer to directing to promote the petitioner as Assistant Engineer (Mechanical) with retrospective effect from the date of promotion of his juniors with all consequential benefits. This Court directed the respondents to consider the representation, dated 14.12.2007 and pass orders. The respondents have promoted the petitioner as Junior Engineer (Mechanical) in proceedings No. E (M)-2/4/2009-P 4672 on 23.10.2009 in pay scale of Rs.5500-200-6100-220-11380 on regular basis.
3. The contention of the petitioner is that the petitioner was promoted as Junior Engineer from Grade-I Fitter post clearly shows that there is no separate channel for the Grade-I post to promote as Junior Engineer. The petitioner ought to have been promoted after the completion of Diploma Course in April 1995. Since the petitioner was not considered, the petitioner again has filed a writ petition in W.P.(MD)No.2136 of 2010. In the meanwhile, the petitioner withdrew the writ petition since the respondents granted assurance that he will be promoted in a regular basis. In the meanwhile, the petitioner has attained superannuation on February 2012. Since the petitioner was not granted any regular promotion, the petitioner has come up with this writ petition with the prayer, directing the respondents to grant promotion from the year 1995.
4. The respondent has not filed any counter affidavit, but relied on the counter affidavit filed in W.P.(MD)No.2136 of 2010. The respondent had filed a counter affidavit has stated that the claim to grant promotion from 1995 onwards with monetary benefits which is against the Port Trust Rules and Regulations. It is also stated that the petitioner was deputed to Sethusamudram Corporation Limited as Junior Engineer. It is incorrect to state that the petitioner was granted adhoc promotion as Junior Engineer. It is wrong to state that the juniors were granted promotion. The qualification prescribed is Graduation or Diploma in Mechanical Engineering with three years experience. The government guidelines stipulate the ratio between the degree holders and diploma holders.
Whenever vacancy arose based on seniority from the panel of Diploma holders promotion would be granted. There is no deviation of any of the promotion granted to candidates. The writ petitioner had earlier claimed the post of Assistant Engineer, knowing fully well that there was no vacancy of Junior Assistant Post prior to 2009 and the petitioner is not eligible for Assistant Engineer post. The petitioner is misconceived to agitate unlawful gain of monetary benefits, has filed writ petition after writ petition and it is abuse of process of law. The respondents never assured any promotion at any point of time. and the same is blatant lies.
5. Heard Mr.R.Pon Karthikeyan, learned Counsel appearing for the petitioner and Mr.A.Arivuchandran, learned Counsel appearing for the respondent.
6. The contention of the petitioner is that the petitioner was granted Junior Engineer post as promotion for only six months in adhoc basis and the said adhoc promotion would be valid for a maximum period of six months. Therefore, the petitioner has filed this present writ petition, directing the respondents to permit the promotion to the petitioner in the Junior Engineer post on permanent basis and grant the terminal benefits. The contention of the respondent is that there is no vacancy, therefore, the petitioner was not granted promotion. The petitioner was not granted any adhoc 2/3
promotion, the petitioner has misconceived the deputation to Sethusamudram project.
7. It is seen that the petitioner is raising the same issue by filing writ petitions, this is the third petition. First, he sought to promote as Assistant Engineer, when he was not even promoted as Junior Engineer, but was holding the post of Grade I fitter. Then he has challenged his own promotion granted in the year 2009 and withdrew the writ petition. Since the said writ petition was impediment for his smooth retirement, he withdrew the writ petition. After retirement and after getting terminal benefits, the petitioner has filed this present writ petition with a prayer to grant promotion as Junior Assistant from 1995 onwards.
In a nutshell, the claim is promotion from 1995, the manifestation is Assistant Engineer, then scaled down to Junior Engineer and this Court is of the considered opinion the writ petition is hit by principles of Res judicata, since the earlier writ petition was withdrawn without liberty. Moreover the employee has no right to claim promotion, but has a right to be considered for promotion. Since there was no vacancy prior to 2009 the petitioner was not granted any promotion. Therefore, this Court is of the considered view that the petitioner is not entitled to be considered for promotion prior to 2009. The petitioner was promoted in the year 2009 and was holding the post until the retirement i.e., February 2012. Therefore this Court is of the considered opinion that the petitioner has not made out any case to interfere with.
Hence the Writ Petition is dismissed. No costs. Sd/- Assistant Registrar (CS-I) // True Copy // / /2022 Sub Assistant Registrar(CS) jbr Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.
To The Chairman, VOC Port Trust, Tuticorin - 628 004.
Order made in 11.02.2022 SK(CO)GC(05.03.2022) 3P 2C 3/3