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R. Palanisamy Vs. The Registrar General High Court of Madras [24/07/2020]

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R. Palanisamy Ors. Vs. The Registrar General, High Court of Madras Ors.

[Special Leave Petition (C) No. 6439 of 2020]

1. Aggrieved by the dismissal by the High Court, of their claim for promotion to the post of Junior Bailiff, persons working as Office Assistants/Record Clerks in various courts in Erode District of the State of Tamil Nadu have come up with this special leave petition.

2. We have heard Mr. Purushottam Sharma Tripathi, learned counsel appearing for the petitioners.

3. 22 persons, of whom 3 are working as Record Clerks and the rest working as Office Assistants in various courts in Erode District filed a writ petition on the file of the High Court of Judicature at Madras, seeking a Mandamus to consider their claim for promotion to the post of Junior Bailiff, without insisting on the educational qualification of a pass in SSLC.

Their claim was based upon (1) a previous order of the High Court dated 22.07.2009 in a batch of cases and (2) the fact that the vacancies to which they lay a claim, arose before the issue of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and that, therefore, a pass in SSLC cannot be insisted upon as a qualification for promotion to the post of Junior Bailiff.

4. The High Court rejected the claim on the ground that the previous judgment of the Court dated 22.7.2009 in the batch of cases is no longer of any relevance, after the coming into force of Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and that the date on which the vacancies arose cannot determine the Rule applicable for recruitment by promotion. Therefore, aggrieved by the said order, the petitioners are before us.

5. As pointed out earlier, there were 22 petitioners before the High Court, out of whom 3 persons are working as Record Clerks and the remaining 19 are working as Office Assistants. The post of Office Assistant falls under category 5 of ClassIII of the Tamil Nadu Basic Service.

All matters concerning the posts in the Tamil Nadu Basic Service, such as their constitution, appointing authority, method of recruitment, qualifications prescribed for appointment, probation, discharge and postings and transfers, are governed by a set of Special Rules known as the Special Rules for Tamil Nadu Basic Service, issued in exercise of the powers conferred by the Proviso to Article 309 of the Constitution. Rule 1 of these Special Rules divides the posts in the entire Tamil Nadu Basic Service into four classes, with each class being subdivided into various categories of posts. While ClassI has 4 categories of posts, ClassII has 5 categories of posts, ClassIII has 6 categories of posts, ClassIV has 86 categories of posts. The post of Office Assistant falls under category 5 of ClassIII of the Tamil Nadu Basic Service. Most of the petitioners before the High Court belonged to this category.

6. Three petitioners before the High Court were working as Record Clerks and this post falls under category 1A of the Tamil Nadu General Subordinate Service. The terms and conditions of service of the posts falling under the Tamil Nadu General Subordinate Service are stipulated in another set of Special Rules known as Special Rules for Class XXII of the Tamil Nadu General Subordinate Service, issued in exercise of the power conferred by the Proviso to Article 309.

7. Thus, in essence, the petitioners who went before the High Court, seeking promotion to the post of Junior Bailiff, belonged to two categories of posts, in 2 different services, one falling in the Tamil Nadu Basic Service and another falling in the Tamil Nadu General Subordinate Service, each of which is governed by a separate set of Special Rules issued in exercise of the power conferred by the Proviso to Article 309.

8. The post to which the petitioners laid a claim by way of promotion, namely the post of Junior Bailiff, was formerly known as the post of “process server” falling under Category 3 of ClassIII of the Tamil Nadu Basic Service. It was a Group ‘D’ post. But after the implementation of the recommendations of the Tamil Nadu V Pay Commission, the post of Process Server, was upgraded from being a Group ‘D’ post into a Group ‘C’ post and consequently deleted from the Basic Service and included in the Tamil Nadu Judicial Ministerial Service (which is a service superior to the Basic service).

This upgradation was accompanied by a consequential upward revision of the payscale also. This exercise of upgradation of the post from Basic Service to Judicial Ministerial Service with a higher pay scale, was done under a Government order in G.O.Ms.No. 1653, Home, (Cts.V) Department, dated 22122008. Though necessary amendments to both sets of statutory rules namely the Special Rules for Tamil Nadu Basic Service (for the deletion of the post therefrom) and the Special Rules for Tamil Nadu Judicial Ministerial Service (for the inclusion of the post therein) were to follow, it never happened.

9. But in the meantime, another event took place. That event related to the implementation of the recommendations of the First National Judicial Pay Commission (Shetty Commission) made in the year 2003. The Report recommended the creation of 2 categories of posts of Bailiffs in the Process establishment of courts, wherever there was only one category of the post. But in the State of Tamil Nadu, there were already 2 categories of posts namely Junior Bailiff and Senior Bailiff.

The First National Judicial Pay Commission also recommended in its report, (i) the grant of higher pay scales for both categories of bailiffs and (ii) the prescription of Matriculation as the minimum general educational qualification both for direct recruitment and for promotion to these 2 categories of posts of Bailiffs.

These recommendations were accepted by the Government of Tamil Nadu and the revision of the pay scales of the posts of Bailiffs took place under G.O.Ms.No. 40, Home (Cts.V) dated 1122008. Thereafter, the Government also issued G.O. Ms.No.761, Home (Cts.V) dated 1072008, accepting the recommendation of the Shetty Commission that the minimum general educational qualification for the posts in the Process Establishment of courts, shall be Matriculation, both for direct recruitment and promotion.

10. Thus 2 things happened during the year 2008, which are as follows: (A) The first was the implementation of the recommendations of the Shetty Commission (i) to create 2 categories of Bailiffs (Junior Bailiff and Bailiff/Senior Bailiff) with a revision of the scales of pay of the posts and (ii) the prescription of the qualification of Matriculation. (B) The second was the implementation of the recommendations of the Tamil Nadu V Pay Commission (i) for deleting the post of Process Server from the Basic Service and including the same in the Judicial Ministerial Service under the name ‘Junior Bailiff’ and (ii) granting a higher scale of pay for the post.

11. As a matter of fact, apart from the aforesaid category of Process Servers in the Moffussil courts, upgraded as Junior Bailiffs and included in the Judicial Ministerial Service, there were also other categories of Bailiffs, already in existence in the Tamil Nadu Judicial Ministerial Service.

They were (1) Bailiff, Court of Small CausescumCourt keeper, City Civil Court, Madras;

(2) Senior Bailiffs of the Presidency Court of Small Causes, Madras;

(3) Junior Bailiffs of the Presidency Court of Small Causes, Madras;

(4) ProcessWriters of the Presidency Court of small Causes, Madras. These posts already existed in categories 1 to 4 of ClassII of the Tamil Nadu Judicial Ministerial Service. Similarly, there was also one more post namely the post of Senior Bailiff in Mofussil Courts, falling under ClassV of the Tamil Nadu Judicial Ministerial Service.

12. For appointment to the aforesaid categories of posts of Bailiff falling under ClassII and ClassV of the Tamil Nadu Judicial Ministerial Service, the Special Rules for Tamil Nadu Judicial Ministerial Service, prescribe the completion of SSLC as an essential qualification. This can be seen from the table below Rule 19 of the Special Rules for Tamil Nadu Judicial Ministerial Service:

13. Therefore, it is clear that after the implementation of the recommendations of (i) the Shetty Commission and (ii) the Tamil Nadu V Pay Commission, no one was entitled to claim a right to promotion to the post of Junior Bailiff, without the qualifications prescribed as above.

14. The petitioners cannot take refuge under (i) the failure of the Government to issue necessary amendment to Statutory Rules and (ii) the previous judgment of the High Court dated 22072009 passed in a batch of cases. Pending the issue of amendment to statutory rules, (i) the nomenclature of the post has changed and (ii) a higher scale of pay also given to the post. One cannot reap the benefit and ignore the requirement. The previous judgment of the High Court did not take note of any of the above developments and hence the same cannot be cited as a precedence by the petitioners.

15. In fact, if the petitioners pitch their claim on the ground that till an amendment to the statutory rules is issued, the higher qualification cannot be insisted, then they will have to stand or fall on the basis of the rule position as it exists. The Special Rules for Tamil Nadu Judicial Ministerial Service (as it remains without amendment) do not contain any post called Junior Bailiff in Moffussil courts. ClassII of the said service comprise of 4 categories of Bailiffs all of which are in the Presidency Court of Small Causes, Chennai. Class V comprises of only one category of post namely Senior Bailiff in Moffussil courts. Therefore, the petitioners cannot lay a claim on the basis of the unamended Tamil Nadu Judicial Ministerial Service Rules.

16. Similarly, the petitioners cannot claim anything even on the basis of the Special Rules for Tamil Nadu Basic Service, since the Basic Service also does not contain any post called Junior Bailiff. There was a post called ‘Process Server’ in the Basic Service, but a higher scale of pay was granted to the said post on the basis of the recommendations of the Pay Commission with a view to delete it from the Basic Service and include it in the Judicial Ministerial Service. The benefit of a higher pay scale having got attached to the post with a corresponding obligation to look for a higher qualification, it is no more open to the petitioners to attack the qualification alone.

17. There is one more reason why the Special Rules for Tamil Nadu Basic Service (as they exist) cannot be pressed into service by such of those petitioners who are working as Office Assistants. Rather than helping them, these rules will actually destroy their claim. The post of ‘Process Server’ is in Category 3 of ClassIII of the Basic Service. The method of recruitment to various posts in the Basic Service are prescribed in the Table below Rule 3 (a) of the Special Rules for Tamil Nadu Basic Service.

This Table below Rule 3 (a) prescribes that all categories of posts in ClassIII can be filled up only by 3 methods of recruitment namely (i) Direct recruitment (ii) Recruitment by transfer from any other service and (iii) Transfer from ClassIV. Since the post of Office Assistant falls in Category 5 of the very same ClassIII of the very same service, those petitioners who are working as Office Assistants, cannot fit their claim for promotion into any one of the above 3 methods of recruitment. Therefore, if the petitioners place too much reliance upon the fact that the rules stand unamended, most of them (19 out of 22) will be knocked off by the prescription contained in the Table below Rule 3(a).

18. The argument revolving around the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, and the fact that vacancies arose in the year 2015, prior to the enactment, are of no relevance. This Act was enacted to consolidate the law relating to recruitment and the terms and conditions of service of persons appointed to the State and Subordinate services in the State of Tamil Nadu, in terms of the mandate contained in Article 309. Until the advent of this Act, the State of Tamil Nadu, like many other States, was only issuing Rules in exercise of the power conferred by the Proviso to Article 309, though such Rules were meant only to be a stop gap arrangement until an Act of the legislature was made.

This 2016 Act actually replaces the General Rules for the Tamil Nadu State and Subordinate Services. But the Act does not override the Special Rules. Section 68 of Tamil Nadu Act No.14 of 2016 makes it clear that the Special Rules will prevail over the provisions of the Act, if any provision of the act is inconsistent therewith. Section 68 reads as follows: “If any provision of this Act is inconsistent with any provision of the special rules applicable to any particular service, the special rules shall, in respect of that service, prevail over the provisions of this Act.”

19. But the petitioners as well as the High Court overlooked the above provision. In view of section 68, the High court may not be right in saying in the impugned order (paragraph 11) that the Special Rules would no longer govern the service of the petitioners. The reliance placed by the High Court on Section 20(2) of the 2016 Act may not also be fully correct, since the same does not, by itself prescribe any qualification. Section 20 merely explains what a reference in the Special Rules to the expression ‘minimum general educational qualification’ would connote.

This provision namely Section 20, is applicable only to cases where the Special Rules prescribe the possession of the minimum general educational qualification as a prerequisite for appointment to any class or category of service. Section 20 of the Act read with ScheduleIII merely defines the expression “minimum general educational qualification” as found in the Special Rules.

20. Therefore, in fine, the ultimate conclusion reached by the High court is unassailable, despite the omission of the High court to take note of section 68 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and the interpretation that Section 20 deserved. Hence we see no ground to interfere with the order of the High court. Therefore, the special leave petition is dismissed.

…………………………..CJI. (S. A. Bobde)

……………………………….J. (A. S. Bopanna)

……………………………….J (V. Ramasubramanian)

JULY 24, 2020

NEW DELHI.

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