R. Palanisamy vs The Registrar General High Court … on 24 July, 2020


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

R. Palanisamy vs The Registrar General High Court … on 24 July, 2020

Author: Hon’Ble The Justice

Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian

                                                    1

                                                                          REPORTABLE

                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION


                            Special Leave Petition (C) No.6439 of 2020


  R. PALANISAMY & ORS.                                              ... Petitioners

                                                 Versus


  THE REGISTRAR GENERAL HIGH COURT OF
  MADRAS & ORS.                                                     ... Respondents




                                               ORDER

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
Signature Not Verified

Digitally signed by

counsel appearing for the petitioners.

DEEPAK SINGH
Date: 2020.07.24
16:19:24 IST
Reason:

2

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.
3

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 Class­

III of the Tamil Nadu Basic Service. Most of the petitioners before the

High Court belonged to this category.

4

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
5

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
6

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 11­2­

2008. 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
7

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 Causes­

cum­Court 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
8

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:

2.(c) Senior Bailiff Direct recruitment or Minimum General
recruitment by transfer Educational Qualification
(Substituted vide G.O.Ms.

No.316, Home (Ser.I)

Dept., dated 12.02.1990
(Proviso Omitted vide
G.O.Ms. Nos.1771, Home
(Cts.v) Dept., dated
25.11.1996)

2.(d) Junior Direct recruitment or Minimum General
Bailiffs and recruitment by transfer. Educational qualification
Process Writers. or a pass in the Indian Air
Force educational test for
reclassification to Leading
Air Craftsman.

                                              Provided that in the case
                                              of     appointment       by
                                              transfer from the Tamil
                                              Nadu Last Grade Service
                                              and Tamil Nadu General
                                              Subordinate Service the
                                              educational qualifications
                                              shall      be    completed
                                              Secondary            School
                                    9

                                             Leaving Certificate.
                                             Provided further that in the
                                             case of a person who was a
                                             member of the Tamil Nadu
                                             Last Grade Service or the
                                             Tamil      Nadu     General
                                             Subordinate Service before
                                             1969,     the   educational
                                             qualification   shall     be
                                             anything higher than the
                                             minimum than prescribed
  (for items 2(b) and                        for the category to which
  2(c), items 2(b), 2(c)                     the transferee belonged
  and 2(d) substituted,
                                             before 1969.
  vide G.O.Ms No.1600,
  Home Dept., dated
  15.06.1971




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
10

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
11

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
12

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
13

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
14

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.



Source link