P LOGANATHAN Vs. DIRECTOR OF TOWN PANCHAYAT KURALAGAM

JUDGEMENT

(1.) THE applicant was promoted to the post of Junior Assistant on 30.04.1985 and subsequently, he was promoted to the post of Executive Officer, Grade II by order dated 29.01.1997 of the second respondent. THE said order came to be passed on the basis of the order passed by the Tribunal in O.A.N o. 5134 of 1996 and O.A. No. 4223 of 1996 dated 20.09.1996. Subsequently, it was found that such a promotion is impermissible. It was also found that the Tribunal merely directed the respondents to consider the petitioner's representation and therefore, the promotion granted to the petitioner was cancelled by a subsequent order dated 13.09.1996. In the said order dated 13.09.1996, it was stated that without reference to the Rule, the petitioner was given promotion, though there is no Rule providing for promotion to the post of Executive Officer by reservation. It was also stated that any promotion made has to be approved by the Director of Town Panchayat, but in the present case, in the absence of any Rule, the promotion given to the petitioner is not legally permissible and therefore, he was reverted to the post of Junior Assistant.

(2.) AGGRIEVED by the said order of reversion, the petitioner has filed O.A. No. 3526 of 1998. The Tribunal granted interim order on 28.04.1998. The only ground on which the Tribunal granted interim stay was the petitioner was not issued with any notice before reversion. Subsequently, the interim order came to be extended until further orders. Since the petitioner was not restored to his promotional post, inspite of the interim stay granted by the Tribunal, the petitioner filed Contempt Application No. 325 of 1998. The Tribunal, did not punish the respondents and passed an order holding that the said order will not apply to the case of the petitioner since he was already reverted to the lower post and disposed of the Contempt Petition on 05.07.2002. By virtue of the same, the petitioner was working only in the lower post. On notice from the Tribunal, the respondents filed Reply Affidavit dated 15.05.1998. In view of the abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 35906 of 2006.

(3.) HOWEVER, the same legal position may not survive now by introduction of Article 16 (4) (A) of the Constitution of India in respect of Schedule Caste and Schedule Tribes. As rightly contended by the respondents and also objections having been raised in the reply affidavit, in the absence of Rule, Article 16 (4) (A) of the Constitution is only an enabling provision and therefore, the petitioner, by any wrong interpretation of provision cannot get promotion. Even, the Division Bench of this Court held that such orders are unconstitutional and therefore the question of granting any opportunity before cancelling the promotion, as contended by the petitioner, does not arise. It is unnecessary to state that any promotion made contrary to the Rules or by fraud or wrong interpretation by the subordinate cannot enure to the benefit of an individual.