Madras High Court
K. Boopalan vs The Registrar, High Court Of Judicature ... on 7 April, 1999
Equivalent citations: (1999)3MLJ503
ORDER
1. Petitioner seeks issuance of writ of certiorarified mandamus calling for the records of respondents and quash the impugned order of first respondent in Roc.111/94/C1, dated 9.3.1995 and consequently direct respondents to classify the petitioner as Special Grade Process Server in the last grade servants in the Tamil Nadu Judicial Subordinate Service with immediate effect, and pass such other orders as the court may deem fit and proper.
2. Petitioner was appointed as temporary Masalch on 22.7.1968 and he was regularised as office Assistant on 4.9.1969. On 7.3.1970, Petitioner was appointed as Process Server in District Court, Thanjavur and after completion of his probation, he was also regularised as Process Server on 6.10.1970.
3. Departmental proceedings were initiated against petitioner and District Munsif, Mannargudi after holding the enquiry dismissed petitioner from service. Against the said order, petitioner filed an appeal before District Judge, Tanjore. The appeal was allowed and petitioner was reinstated in service on certain conditions. Though he was reinstated a punishment was imposed on him in the form of reversion from the post of process server to that of peon.
4. On 20.7.1981, as per proceedings of District Judge, Thanjavur, petitioner was promoted to the post of Selection Grade Peon with effect from 7.3.1981 and his pay has been fixed as per the order under the selection grade peon. On 19.6.1982, his service category was altered as selection grade process server. During the said modification of service, petitioner was not given any increment on the ground that he has already worked as Process Server from 1971. On 30.7.1982, petitioner's category of service was entered as Selection grade Process server. According to petitioner, his services as selection grade process server should be calculated from 19.6.1982. Pursuant to the same, petitioner was also given increment in the scale of pay of Selection grade Process Server.
5. While so, on 4.1.1994, second respondent wrote a letter and communicated to petitioner that he has been promoted to the post of Selection grade process Sever from 24.6.1992. According to petitioner, he has already been promoted as selection grade staff even in the year 1982 and passing similar order in 1994 is not proper and it ought to be special grade process server. Aggrieved by the said communication, of second respondent, petitioner moved representation on 31.1.1994. On 23.3.1994, second respondent passed orders on the representation that he cannot be given special grade process Server in view of his earlier proceedings dated 4.1.1994. It is said that second respondent passed the order only on the basis of G.O.Ms.No. 68, Personnel and Administrative Reforms (Per-M), dated 23.1.1986 which is not applicable to petitioner. According to petitioner, the said Government order was passed only after his further promotion as selection grade Process Server which is also given effect from 19.6.1982. Hence, G.O.Ms.No. 68 is not applicable to him. It is said that second respondent also rejected the appeal mechanically without going into the Government order or looking into the Service Register of petitioner.
6. In the various grounds raised in the writ petition it is said that G.O.Ms.No. 68, dated 23.1.1986 is not applicable to him, and the impugned order has been passed without application of mind. It prayed for issuance of writ of certiorarified mandamus for the reasons stated above.
7. Even though counter-affidavit has not been filed by the respondents, learned Government Pleader argued the matter on instructions.
8. The only question that requires consideration is whether the impugned order passed by second respondent and confirmed by first respondent is liable to be interfered with under Article 226 of the Constitution of India.
9. Petitioner, while discharging his services as Process Server was departmentally proceeded with for the alleged misconduct. The District Munsif, Mannargudi removed petitioner from service as per order dated 1.8.1974.
10. Petitioner, aggrieved by the order of removal from service, preferred an appeal before District Judge, Tanjore. On 16.12.1974. District Judge, Thanjavur passed an order holding that the Munsif was justified in initiating proceedings. Act of petitioner was in gross indiscipline and he misbehaved towards the officer. In paragraph 5 of the Order, District Judge considered the question whether petitioner is to be removed from service. While considering the same, appellate authority was of the view that removal from service is disproportionate to the charges and petitioner must be reinstated, of course with certain lesser punishment. The appellate authority held that the removal from service will have to be modified to the one to reduction in the rank and the same will meet the ends of justice. The appellate authority further held thus, ...Accordingly, I direct that the delinquent who is now an approved probationer as a process server is reduced to the rank of dalayat and he will take his place as the last man in the order of seniority. The period of suspension as well as his period of removal from service from 1.8.1974 till reinstatement will be treated as leave on loss pay. The subsistence allowance paid to him if any, during the period of suspension need not be recovered from him.
In the result, the appeal is allowed with reference to the punishment alone and the appellant-delinquent is reinstated in service as dalayat from 19.12.1974 and posted as dalay at in District Munsif's Court, Mannargudi from 19.12.1974. The delinquent is informed that any repetition of his rudeness or misbehaviour will not be tolerated in service.
11. Why I have extracted the order of appellate authority is that the punishment was imposed on petitioner and he was reverted to the post of Dalayat Peon, from that of Process server. According to petitioner, whether he is Process Server or Dalayat, it is same category having same emoluments and therefore, really it cannot be said as reversion but placed to discharge the duties as peon in the same category. We do not find any justification to accept this argument. Petitioner was found to be guilty and punishment was also imposed as reversion to the category of peon is clear from the order of appellate authority.
12. Learned Counsel for petitioner submitted that even as per the G.O.Ms.No. 68, dated 23.1.1986, petitioner will be entitled to selection grade or special grade when he put in 10 or 20 years satisfactory service. In this case, he has been given selection grade when he had completed 10 years of service in 1982 and when he has completed 20 years service in 1992, he should have been given special grade. Instead, twice petitioner has been given selection grade only. According to him, even in 1982 he has been given the status of selection grade Dalayat and in 1992 when he completed 20 years of service, it ought to be special grade process server. But on 4.1.1994, petitioner was informed that is only a selection grade peon and the appeal filed against that Order was also rejected improperly. At the same time, it is also argued by learned Counsel that G.O.Ms.No. 68 will have no application to the facts of this case since the same will take effect only from 10.6.1985. Petitioner who has already been selected as selection grade peon in 1982, cannot be considered on the basis of G.O.Ms.No. 68.
13. We do not find any merit in the said contention. Petitioner relies on paragraph 3(i) of G.O.Ms.No. 68 and argued that 10 years and 20 years of service will give them some benefit as selection grade or Special grade respectively. But reading of paragraph 2 and Clause (vi) to paragraph 3 will show that the contention of petitioner is without any merit. In paragraph 2, it is said that third Pay Commission report which was also implemented years back has suggested certain norms for movement to selection or special grade and the same should not be given a go-by in the interest of standard of efficiency in administration and the same norms should be based for granting selection grade or special grade for completion of 10 or 20 years service. The order also emphasises the criteria of 'satisfactory services' as originally recommended by third Pay Commission. In Clause (vi) of paragraph it is further said that, Services rendered in a lower post on other duty should not be taken into account as qualifying service in the higher post for advancement to the selection/special grade. The service rendered in an equivalent or higher post on other duty alone should be taken into account for advancement to selection/special grades, to the extent he would have acted in his original post in the parent Department but for his deputation.
[Italics supplied]
14. Learned Government Pleader submitted that petitioner cannot be said to have completed 'satisfactory service' in view of his punishment of removal from service initially and subsequent reinstatement to lower post. It is also stressed that when petitioner was reverted to lower rank, his services in that lower post should not be taken into account as qualified service, which alone enables him to selection/special grades.
15. We find force in the said contention. Petitioner was informed that he has been moved to selection grade with effect from 7.8.1992. Petitioner moved representation to rectify the so called mistake as per his representation dated 31.5.1992. Appointing authority/District Judge, Nagapattinam on 23.3.1994 rejected the representation on the ground that the post of regular peon and process server are two different categories of Tamil Nadu Basic Services. The scales of pay and duties and responsibilities of two posts are also different and in fact, the scales of pay and duties and responsibilities of Process Server is higher than regular peon. Therefore, petitioner was informed that the services rendered as Selection grade regular peon cannot be taken as services rendered in the post of Process Server to appoint him as Special grade Process Server. The matter was taken on appeal to Government. Appellate authority also did not think of giving any relief to petitioner.
16. After having heard the counsel on both sides. We do not think that respondents have gone wrong in interpreting the rule.
17. Main contention of petitioner is the post of Dalayat and that of Process Server are governed by Basic Services Rules and both these categories of employees are treated on par. If so, whether petitioner works as peon or as Process server, he will be entitled to selection grade on his completion of 10 years and to the special grade on completion of 20 years of service.
18. We do not find any merit in the said contention. From the impugned order it is clear that the post of Process Server and that of Peon cannot be treated on par. The post of peon is lower in rank than that of Process Server. In fact, contention of the petitioner that both these posts are having the same scale of pay is found against by order of the District Judge dated 23.3.1994. Appointing authority has found that the scale of pay for both these posts are different and peon is always lower in rank than that of process server. The said order could be read along with the order of the District Judge reducing the rank of petitioner. Petitioner was asked to discharge the duties of peon as punishment and District Judge also found that the post of peon is below the rank of the process server. If in 1974, petitioner has begun his services as peon in view of the punishment, on completing 10 years of service in that capacity he may be eligible to the post of selection grade peon. But he cannot claim himself as selection grade process server in view of the reasons stated above.
19. As per G.O.No. 68 of which reference is made also makes it clear that services rendered in lower post should not be taken into account as qualifying service in the higher post for advancement to selection/special grade. When the posts are different, entire edifice of argument of learned Counsel for petitioner also goes.
20. In the result, we do not find any merit in the writ petition and consequently the same is dismissed. No costs. Connected W.M.P.No. 18608 of 1995 is also dismissed.