WP/1825/2022 of N.Dinesh Vs The Government of Tamilnadu on 23 September 2026

ORDER

The present writ petition has been filed challenging the order dated 13.09.2021.

2. Heard the learned counsel for the petitioner and the learned Government Advocate appearing for the respondents.

3. The learned counsel for the petitioner would submit that the petitioner was a graduate Typist passed B.Sc degree in November 2008. Prior to his appointment as Typist on 02.11.2017, a regular panel for the promotion of the Graduate Typist was prepared pursuant to G.O(4D).No.35 dated 21.12.2020 in the order of seniority. But the petitioner’s name was omitted contrary to the then Rule 14 of the Tamil Nadu Secretariat Service Rules. It is also the submission of the petitioner that his probation was declared on completion of two years of service in the cadre of Typist, and he was qualified for promotion as per Rule 14. In the meanwhile, his name was not considered for the promotion for the year 2020-21. It is the contention of the petitioner that the petitioner was not included for the panel year 2020-21 on account of subsequent Amendment to the Special Rules for Tamil Nadu Secretariat Service in G.O.Ms.No.90 dated 13.09.2021 with retrospective effect from 07.01.2020. It is the contention of the petitioner that, since his right to be considered for promotion has already accrued, his right cannot be denied, based upon the subsequent amendment in the Speical Rules. According to the petitioner, the same is contrary to the judgment of this Court in B.Radhakrishnan and others Vs. Secretary to Government and another reported in 2010 SCC OnLine Mad 6558, and the judgment of the Hon’ble Supreme Court in Bank of Baroda and another Vs. G.Palani and others reported in Civil Appeal No.5525 of 2012 dated 13.02.2018. Hence, prayed to allow the present writ petition.

4. Per contra, the said contention was stoutly objected by the learned Government Advocate and would submit that the petitioner was appointed as a Typist on 02.11.2017 and he completed the probation on 03.12.2019 and that he has also completed the foundational course examination on 09.03.2021. Though the petitioner has requested to include him for the post of Assistant for the panel year 2020-21, as per Rule 14, a new qualification of pass in the foundational training course has become essential. Whereas, the petitioner had passed the foundational course only after the crucial date 01.08.2020. Therefore, he cannot be included in the panel for promotion. Therefore, the impugned order is in accordance with law and does not require any interference. It is also the contention of the learned Government Advocate that, though G.O.Ms.No.90 dated 13.09.2021 was given effect retrospectively, the amendment with regard to the Rule was incorporated by way of an executive order in G.O.Ms.No.7 dated 07.01.2020. Further, though the amendment was introduced with retrospective effect, the petitioner had no vested right to be considered in the relevant panel year. Therefore, would contend that, the present writ petition is liable to be dismissed.

5. I have given my anxious consideration to either side submissions.

6. The following dates and facts are not in dispute. The petitioner was initially appointed on 02.11.2017 as graduate Typist, and he would become eligible for promotion after completion of probation on

03.12.2019. The crucial date for the panel is 01.08.2020. But, on 07.01.2020, a circular was issued proposing an amendment in the Special Rule qua mandating a pass in the foundational training course.

7. It is also not in dispute that by virtue of G.O.Ms.No.90 dated 13.09.2021, the Special Rule was amended with retrospective effect since 07.01.2020. As per the new Rule, a pass in foundational course was fixed as new qualification for the promotion to the post of an Assistant. Now the contention of the petitioner is that on the crucial date viz., on 01.08.2020, being a date for preparing panel for 2020-21, the Rule was not amended and thereby, a vested right which had already accrued upon the petitioner cannot be defeated by giving retrospective effect to the G.O.Ms.90 dated 13.09.2021.

8. It is the well settled principle of law that the promotion is not a matter of right, but the consideration for promotion is a matter of right. Even for consideration for promotion, the employee must possess the prescribed qualification. Admittedly, as on 01.08.2020, no panel was prepared for the post of Assistant. Even according to the petitioner, it is not the case that his name was found a place in the panel year 2020-21. Therefore, to treat any right to be considered as a vested right, the petitioner’s name ought to have been found a place in the relevant panel year. Admittedly, in the case in hand, no panel was prepared.

9. It is well settled principle of law that mere existence of a vacancy in the promotional post does not by itself compel the employer to prepare the panel. In the case in hand, on the date of consideration of the promotion to the post of Assistant, a new Rule viz., G.O.Ms.No.90 dated 13.09.2021 came into force, no doubt with retrospective effect. Under Article 309 of the Constitution of India, the employer has got every right to amend the Service Rule retrospectively, provided it should not affect the vested right.

10. It is relevant to mention that the seniority of a Government Servant is not a vested right. Therefore, by the act of the State Legislature or a Rule made under Article 309 of the Constitution of India retrospectively Rule can be amended, which would result in the alteration of seniority. In this regard, it is relevant to mention the judgment of the Hon’ble Supreme Court in S.S. Bola v. B.D. Sardana, reported in (1997) 8 SCC 522. Similarly, the moment new rule came into force, the employee those who were in service cannot insist upon the employer to follow the old rule with relevant date of arising of vacancy. In this regard, it is relevant to refer the judgment of the Hon’ble Supreme Court in State of H.P. v. Raj Kumar reported in (2023) 3 SCC 773, wherein it was held that there is no universal application of rule that vacancies must be necessarily filled up on the basis of the law which exists on the date when the vacancy arose. Here, the petitioner would contend that the executive circular will not override the statute. But, as already stated, the State has got power to bring the service Rule retrospectively, provided by not affecting the vested right.

11. Though the learned counsel for the petitioner relied upon the judgment of the learned Single Judge to say that the right to promotion is always a vested right to the Government Servant, and the same cannot be taken away by virtue of the subsequent amendment of the Service Rules. Similarly, the petitioner has also relied upon the judgment of the Hon’ble Supreme Court in Bank of Baroda and another Vs. G.Palani & Others [Civil Appeal No.5525/2012 dated 13.02.2018], but the above citation deals about the pension. Since the right to pension would accrue on the date of his retirement and continued to have as right, such vested right cannot be defeated by the subsequent Rule. But, the present case is not arising out of pension, contrarily it is upon the Promotion. Therefore, the above reported judgment is not applicable to the present case.

12. In the case in hand, since the petitioner has no vested right, as no promotion panel was prepared, the contention of the petitioner that he has to be promoted to the next level post, for the panel year 2020-21, is contrary to law. Therefore, this Court does not find any infirmity in the impugned G.O. Hence, the present writ petition deserves to be dismissed.

13. Accordingly, the present writ petition is dismissed. No costs. 23-09-2026 Index: Yes Speaking order Neutral Citation: Yes/No KMI To

1. The Government of Tamilnadu Rep. by its Principal Secretary to Government, Human Resources Management (U2) Department, Fort St. George, Chennai 600009.

2. The Deputy Secretary To Government Human Resources Management Department, Fort St. George, Chennai 600009.

C.KUMARAPPAN, J. KMI WP No. 1825 of 2022 23-09-2026