Madras High Court
N.Vedha vs The Government Of Tamil Nadu on 31 October, 2017
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.10.2017
RESERVED ON : 13.07.2017
PRONOUNCED ON : 31.10.2017
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.(MD)Nos.21358 of 2016 to 21361 of 2016
N.Vedha .. Petitioner in W.P.(MD) No.21358 of 2016
M.Dakshinamoorthy .. Petitioner in W.P.(MD) No.21359 of 2016
B.S.Shyamala .. Petitioner in W.P.(MD) No.21360 of 2016
K.Edison .. Petitioner in W.P.(MD) No.21361 of 2016
-vs-
1. The Government of Tamil Nadu
rep.by the Principal Secretary
Rural Development and Panchayat Raj Department
Fort St.George, Secretariat
Chennai 600 009
2. The Government of Tamil Nadu
rep.by the Principal Secretary
Personnel and Administrative
Reforms Department
Fort St.George, Secretariat
Chennai 600 009
3. The Director of Rural Development and
Panchayat Raj
Panagal Building
Saidapet
Chennai 600 015
4. The District Collector
Pudukkottai District
Pudukkottai
5. The Block Development Officer
Pudukkottai
Pudukkottai District .. Respondents 1 to 5 in all the Writ Petitions
6. S.Ravi .. 6th Respondent in W.P.(MD) No.21358 of 2016
(R6 impleaded vide order dt.
20.6.17 in WMP(MD) No.6268/17)
7. K.Swaminathan .. 6th Respondent in W.P.(MD) No.21359 of 2016
(R6 impleaded vide order dt.
20.6.17 in WMP(MD) No.6270/17)
8. T.Naladhevan .. 6th Respondent in W.P.(MD) No.21360 of 2016
(R6 impleaded vide order dt.
20.6.17 in WMP(MD) No.6276/17)
9. S.Subramanian .. 6th Respondent in W.P.(MD) No.21361 of 2016
10.P.Periyasamy .. 7th Respondent in W.P.(MD) No.21361 of 2016
(R6 & 7 impleaded vide order dt.
20.6.17 in WMP(MD)
Nos.6272 & 6274/17)
Petitions under Article 226 of the Constitution of India, praying for
the issue of a Writ of Certiorari, calling for the records pertaining to the
impugned orders passed by the fourth respondent in Na.Ka.Pa3/14683/2009
(Development) dated 29.08.2016 cancelling the seniority fixed in the cadre of
Assistant, impugned order passed by the fourth respondent in Na.Ka.Pa1/1713/
2013 (Development) dated 29.08.2016 cancelling the seniority fixed in the
cadre of Block Development Officer, impugned selection list for the post of
Block Development Officer issued by the fourth respondent in
Na.Ka.479/2016/Pa1 (Development) dated 30.08.2016 and the impugned promotion
order passed by the fourth respondent in Na.Ka.Pa1/6190/2016 (Development)
dated 02.09.2016, quash the same.
!For Petitioners :: Ms.J.Anandhavalli for Mr.M.Siddharthan
^For Respondents :: Mr.D.Muruganandham
Additional Government Pleader
for R1 to 5
Mr.M.Muthugeethayan for all the
impleaded respondents
:ORDER
Four writ petitions have been filed by Mrs.N.Vedha, Mr.M.Dakshinamoorthy, Mrs.B.S.Shyamala and Mr.K.Edison respectively, seeking issuance of a Writ of Certiorari, calling for the records pertaining to the impugned orders passed by the District Collector, Pudukkottai, the fourth respondent herein in Na.Ka.Pa3/14683/2009 (Development) dated 29.08.2016 cancelling the seniority fixed in the cadre of Assistant, impugned order passed by the fourth respondent in Na.Ka.Pa1/1713/ 2013 (Development) dated 29.08.2016 cancelling the seniority fixed in the cadre of Block Development Officer, impugned selection list for the post of Block Development Officer issued by the fourth respondent in Na.Ka.479/2016/Pa1 (Development) dated 30.08.2016 and the impugned promotion order passed by the fourth respondent in Na.Ka.Pa1/6190/2016 (Development) dated 02.09.2016 and to quash the same.
2. Ms.J.Anandhavalli, learned counsel for the petitioners submitted that Mrs.N.Vedha and Mr.K.Edison were appointed as Steno-typist on 9.5.90 and Mrs.B.S.Shyamala and Mr.M.Dakshinamoorthy were also appointed as Steno-typist on 27.3.92 and 31.3.92 respectively in Pudukkottai. Arguing further, she stated that prior to 1992, the post of Steno-typist was on par with the posts of Typist and Junior Assistant. Therefore, a combined seniority list was maintained in the post of Steno-typist, Typist and Junior Assistant, taking into account the date of appointment made by the Tamil Nadu Public Service Commission. She has also stated that Mrs.N.Vedha and Mr.K.Edison passed the prescribed departmental test within the period of probation in two years, hence, they became eligible for getting promotion on completion of their probatin. However, G.O.Ms.No.256, Personnel and Administrative Reforms Department dated 1.8.92 was issued separating the post of Steno-typist and the salary was also brought on par with the post of Assistant by notionally giving effect from 1.6.88 and the monetary benefits were given from 1.4.92. The said G.O.Ms.No.256 dated 1.8.92 further stated that the Steno-typist will not be considered for promotion to the post of Assistant and they will have a separate list of promotion as Grade II and Grade I. On 19.8.92, Steno-typists other than working in the Secretariat were given the designation as Steno- typist Grade II and the Steno-typists working with the head of the department were to be upgraded as Steno-typist Grade I. It also further stated that the Steno-typists working with the Additional Director and the second level officer were to be upgraded as Stenographer Grade II. While implementing Stenographer Grades I and II in the State level, in the district level, it was not done so.
3. Ms.J.Anandhavalli further submitted that another G.O.Ms.No.93, Personnel and Administrative Reforms Department dated 8.4.94 stated that the bifurcation of the post of Steno-typist from that of Junior Assistant and Typist came into force with effect from 1.6.88 and the Government specifically directed in paragraph-6 therein that the seniority of the candidates allotted by the Tamil Nadu Public Service Commission before 1.8.92 should not be altered. However, in view of the ban imposed in G.O.Ms.No.417, Personnel and Administrative Reforms Department dated 1.12.93 for appointing Steno-typist as Assistant, which remained in vogue for eight years till it was lifted by G.O.Ms.No.34, Personnel and Administrative Reforms Department dated 21.2.2001, both the conversion of Steno-typist Grade III as Assistant provided they worked as Steno-typist for eight years, which was again reduced to five years, vide G.O.Ms.No.122, Personnel and Administrative Reforms Department dated 2.9.2005, whereas because of the ban imposed in 1992, persons who were appointed along with the petitioners and some of them appointed thereafter were promoted to the post of Assistant and further promoted to the post of Deputy Block Development Officer, whereas the petitioners alone were kept in the post of Steno-typist Grade III without any promotion. In that process, Junior Assistants and Typists who were appointed along with the petitioners and juniors to them became seniors holding higher posts. Citing this anomaly, various representations were given to the respondents 1 to 5. Finally, finding no response, W.P.(MD) Nos.4652 to 4655 of 2016 were filed by the petitioners herein for a mandamus to consider their claim on merits and this Court also, by order dated 8.3.2016, directed the Director of Rural Development and Panchayat Raj, the third respondent herein to consider their representation dated 24.2.2016 in the light of the proceedings dated 25.2.2016 within eight weeks. The third respondent wrongly rejected the request of the petitioners in the proceedings bearing Roc.No.47262/2015/C3 dated 18.8.2016 and a limited and reasonable prayer made by the petitioners to count their service under Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules has been rejected.
4. Explaining further, the learned counsel for the petitioners pleaded that the petitioners were transferred and appointed in the post of Assistant by the proceedings dated 12.6.2002, whereas other persons who were appointed along with the petitioners and juniors became seniors to them. Citing the example of Mr.Rajkumar and Mrs.Thilagavathy, it was stated that the persons who were promoted to the post of Block Development Officer were appointed by way of Tamil Nadu Public Service Commission and when all of them joined duty on the same day, Mr.Rajkumar and Mrs.Thilagavathi were promoted, whereas the petitioners are all denied the same, with the result they are put to irreparable loss. Again continuing her arguments, Ms.Anandhavalli submitted that as per Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules, the persons appointed to another post by way of transfer and carrying identical scale of pay are entitled to get counting of seniority from the date of initial appointment. While so, the petitioners drawing identical scale of pay as that of Assistant from 1.4.92, more particularly, when the scale of pay of Steno-typist and Assistant became one and the same, their seniority also ought to have been reckoned from the date of their initial appointment. Instead of fixing the seniority of the petitioners as per Rule 35(a), the respondents should have followed Rule 35(b), which says that the transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for the purpose of seniority and the seniority of a person so transferred shall be determined with reference to the rank in the class or category from which he was transferred. She also submitted that an identical issue was decided by this Court in W.P.(MD) No.13918 of 2010 dated 26.3.2014 giving the benefit of Rule 35(b) for fixing the seniority. Therefore, the stand taken by the first respondent based on the letter of the second respondent stating that the seniority of the petitioners is to be fixed under Rule 35(aa) is liable to be set aside with a consequential direction to determine the seniority of the petitioners under Rule 35(b), failing which the juniors of the petitioners would be seniors, which would cause huge prejudice to the petitioners. Again, referring to the cancellation order dated 29.8.2016 in respect of the seniority fixed in the cadre of Assistant and the subsequent panel drawn on 30.8.2016 followed by the promotion order on 2.9.2016, she stated that the above proceedings would clearly show the mala fide intention of the respondents to promote persons of their choice, therefore, the impugned proceedings are liable to be set aside. Concluding her arguments, she argued that the seniority of the petitioners fixed in 2007 and 2011 were never objected to or questioned by anyone. While so, changing the same without notice to the petitioners amounts to violation of Articles 14, 21 and 311 of the Constitution of India. In support of her submission, a judgment of this Court in A.Babu v. Principal Chief Conservator of Forests, (2014) 1 MLJ 586, giving a direction to fix the seniority of the petitioner therein under Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules, was also relied upon.
5. Detailed counter affidavits have been filed by the District Collector, Pudukkottai, through vacate stay petitions, on behalf of the respondents 1 to 5. The learned Additional Government Pleader appearing for the respondents 1 to 5 submitted that the writ petitions challenging the impugned orders of the third respondent dated 18.8.2016 are not maintainable in law or on facts, hence, they are liable to be dismissed in limine, as they have got an alternative remedy before the first respondent. Proceeding further, the learned Additional Government Pleader submitted that insofar as Junior Assistant/Typist/Steno-typist cadre is concerned, the Government of Tamil Nadu issued G.O.Ms.No.224, Personnel and Administrative Reforms Department dated 8.3.84 fixing 4:1 ratio between the Junior Assistant/Typist/Steno-typist in the matter of promotion as Assistant. While so, so far as the Department of Rural Development and local Administration is concerned, as per G.O.Ms.No.585, Rural Development and Administration Department dated 12.4.94, new posts were created in accordance with the service rules formulated which paved the way for considering the post of Junior Assistant/Rural Welfare Officer Grade II/Cashier/Typist/Steno-typist as belonging to the same cadre. However, when G.O.Ms.No.413, Rural Development Department dated 21.7.88 was issued removing the ratio of 4:1 given between Junior Assistant/Typist/Steno-typist, G.O.Ms.No.256, Personnel and Administrative Reforms Department dated 1.8.92 was issued later on with necessary amendments made to the Tamil Nadu Ministerial Service Rules separating the post of Steno-typist from the post of Typist and a separate category of Steno-typist was formed and a higher scale equivalent to that of Assistant was granted to the Steno-typist at Rs.1200-2040.
6. Explaining further, he has stated that the Junior Assistants and the Typists who were recruited along with the petitioners through the Tamil Nadu Public Service Commission are getting equivalent scale of pay of Assistant only after getting promotion in the post of Assistant, whereas in the case of the petitioners, their scale of pay has already been fixed on par with the scale of pay of Assistant at Rs.1200-2040 from 1.8.92, as per G.O.Ms.No.256, Personnel and Administrative Reforms Department dated 1.8.92. Therefore, the petitioners cannot have any grievance, since there is no monetary loss to them. This apart, within the post of Steno-typist, the categories of promotion as Steno-typist Grade III, II and I with separate time scale of pay for each category was prescribed. Thirdly, G.O.Ms.No.417, Personnel and Administrative Reforms Department dated 1.12.93 was issued imposing ban order for appointing Steno-typist as Assistant, which remained in vogue for a period of eight years and the ban was lifted only in G.O.Ms.No.34, Personnel and Administrative Reforms Department dated 21.2.2001 to enable the conversion of Steno-typist Grade III as Assistant provided they worked as Steno-typist Grade III for eight years with a direction to draw a panel of Steno-typist Grade III eligible for conversion on transfer as Assistant as on 15.3.2001. The period of eight years was later reduced to five years in G.O.Ms.No.122, Personnel and Administrative Reforms Department dated 2.9.2005.
7. When the matter stands as above, even without giving any representation, the petitioners had approached this Court with W.P.(MD) Nos.4652 to 4655 of 2016 seeking a direction to consider their case in the light of the proceedings dated 25.2.2016 issued by the second respondent. In the light of the direction given by this Court, the first respondent, considering the case of the petitioners on the basis of aforementioned G.O., rejected their request by the impugned order dated 18.8.2016, which is in order and in accordance with the rules in vogue. While referring to G.O.Ms.No.417 dated 1.12.93, the learned Additional Government Pleader for the respondents 1 to 5 submitted that the ban order for engaging Steno- typist as Assistant remained in vogue for eight long years till the said ban order was lifted by issuance of G.O.Ms.No.34, Personnel and Administrative Reforms Department dated 21.2.2001, enabling the conversion of Steno-typist Grade III as Assistant provided they worked for eight years as Steno-typist Grade III and further contemplated filling up of 5% of the estimated vacancies of Assistant with Steno-typist Grade III on transfer. In the meanwhile, by G.O.Ms.No.413, Rural Development Department dated 21.7.88, the ratio of 4:1 was given up. The learned Additional Government Pleader further submitted that as the petitioners were appointed as Assistant by way of transfer after 1.8.92, so far as fixing of seniority is concerned, they are all coming under Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, therefore, the impugned orders are legally sustainable. In addition thereto, the ratio of 4:1 will not be applicable in Rural Development department, where the petitioners are working. After the completion of eight years in the cadre of Steno-typist Grade III, the names of the petitioners were included in the 2001 panel of Assistant after the lifting of the ban order. The learned Additional Government Pleader also stated that the Junior Assistant and Steno-typist who were recruited along with the petitioners are getting the scale of pay applicable for Assistant only after getting promotion to the post of Assistant. Insofar as the petitioners are concerned, the scale of pay has already been fixed on par with the scale of pay of Assistant as per G.O.Ms.No.256, Personnel and Administrative Reforms Department dated 1.8.92, therefore, there is no monetary loss to the petitioners. However, with regard to the request of the petitioners to fix their seniority as per Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules, he submitted that since the petitioners were all appointed as Assistant by transfer of service, for which post the method of appointment is more than one method of recruitment, the seniority of the petitioners has to be fixed only as per Rule 35(aa) only.
8. The impleaded private respondents have also filed counter affidavits through vacate stay petitions. Mr.M.Muthugeethayan, learned counsel for the impleaded respondents urged this Court to dismiss the writ petitions on the ground that the writ petitioners have deliberately failed to implead the promotees as party respondents in the respective writ petitions, hence, on the ground of non-joinder of parties, the writ petitions should be dismissed. Secondly, he pleaded that the fourth respondent in his proceedings dated 30.8.2016 published the selection list for the post of Block Development Officer, which contained the names of 16 persons. Out of 16 persons, the persons in Serial Nos.6 to 10, namely, Mr.A.Veerappan, Mrs.M.Saraswathi, Mr.T.Manisekaran, Mr.S.Ramachandran and Mr.V.Sadasivam, have joined the post of Block Development Officer. But the writ petitioners have challenged the consequential orders passed by the fourth respondent dated 29.8.2016, 30.8.2016 and 2.9.2016 respectively and in view of the stay granted by this Court on 08.11.2016, the names in Serial Nos.11 to 16 were not given promotion, therefore, the interim order should be vacated, which is causing immense prejudice to them. Arguing the case of the impleaded respondents, namely, Mr.S.Ravi, Mr.P.Periyasamy, Mr.K.Swaminathan, Mr.T.Naladevan and Mr.S.Subramanian, he has stated that they were selected in the seniority list published by the fourth respondent on 30.8.2016 as Block Development Officers and without even impleading him, the petitioners have wrongly obtained an order of stay from this Court. After knowing the grant of stay, they have come to this Court seeking impleadment, whereas the other affected parties are not impleaded. Replying to the argument made by the petitioners that the persons who were appointed along with them and some of the persons appointed after them were promoted and that the official respondents also have re-fixed the seniority below their juniors, as incorrect, he submitted that because the said grievance has been considered in G.O.Ms.No.122 dated 2.9.2005 rejecting the claim of the service associations with regard to the retrospective effect of promotion from 1992 to 2000, subsequently, justifying the stand of the official respondents in passing the impugned orders, it is stated that the promotion orders among the Junior Assistants as well as the Typists to the post of Assistant has been rightly followed under Rule 35(aa), because as per Rule 35(aa), the seniority of a person in a service, class or category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, be determined with reference to the date on which he is appointed to the service. In view of the above, all the petitioners, who were appointed in the post of Assistant by more than one method of recruitment, namely, promotion by way of transfer from among the Steno-typists, cannot ask for application of Rule 35(b) for determining their seniority. Concluding his arguments, he submitted that when the temporary panel for promotion of the petitioners as Assistant prepared by the fourth respondent in proceedings Na.Ka.No.P3/14683/2010 (Development) dated 19.12.2011 invoking the ratio of 4:1 has been set aside by this Court, against which W.A.(MD) No.1145 of 2006 was filed and the same was also dismissed, as against which S.L.P.(C) No.19324 of 2009 was filed, the Apex Court also has dismissed the same by order dated 13.1.2014, hence, the impugned orders do not call for any interference, he pleaded.
9. Heard the learned counsel for the parties.
10. The petitioners, namely, Mrs.N.Vedha, Mr.M.Dakshinamoorthy, Mrs.B.S.Shyamala and Mr.K.Edison were all appointed as Steno-typist on 9.5.90, 31.3.92, 27.3.92 and 9.5.90 respectively. Even as per the proceedings dated 12.6.2002 passed by the fourth respondent, Mrs.N.Vedha was appointed by way of transfer as Assistant, Mr.M.Dakshinamoorthy and Mrs.B.S.Shyamala were appointed by way of transfer as Accountant on 18.5.2004 and Mr.K.Edison was also appointed as Rural Welfare Officer Grade-I on 13.3.2002, respectively. In this context, it is pertinent to extract the order of transfer issued to one of the petitioners Mr.K.Edison from the post of Steno-typist Grade III to the post of Assistant/Accountant/Rural Welfare Officer Grade-I by the District Collector, Pudukkottai dated 13.3.2002, which reads thus:-
g[Jf;nfhl;il khtl;l Ml;rpj;jiyth; mth;fspd; bray;Kiwfs;
Kd;dpiy/; jpU/c&k;g[ fy;nyhypfh;. ,/M/g/ e/f/g3-8399-2001 ehs; 13/3/2002 bghUs;/; gzpaikg;g[ ? Cuf tsh;r;rp myF ? g[Jf;nfhl;il khtl;lk; ? jpU/f/vord;. Ruf;bfGj;J jl;lr;rh;.
Cuf tsh;r;rp cjtp ,af;Feh; (Cuhl;rpfs;) mYtyfk; g[Jf;nfhl;il ? gzpkhWjy; K:yk; cjtpahsh;-Ch;ey mYtyh; epiy?1 Mf gzpepakdk; tH';fp cj;jutply;/ ghh;it/; 1/ murhiz vz;/34. gzpahsh; kw;Wk; eph;thfr;
rPh;jpUj;jj;Jiw ehs; 21/02/2002/ 2/ ,t;tYtyf bray;Kiwfs; e/f/g3-8499-2001 ehs; 5/3/2002/ ////// cj;jut[ ghh;it 2y; fhQqk; bray;Kiwfspd;go g[Jf;nfhl;il khtl;lj;jpy; gzpg[hpe;J tUk; RUf;bfGj;J jl;lr;rh;fspy; gzpkhWjy; ( by transfer) K:yk; cjtpahsh;fshf gzpakh;j;j jFjpa[ila egh;fisf; bfhz;l 2001k; Mz;Lf;fhd (15/3/2001y;) njh;e;j bgah; gl;oay; tiue;J btspaplg;gl;lJ/ nkw;fhQqk; njh;e;j bgah;g;gl;oaypUe;J Kjepiy mog;gilapy; ghh;it 1y; fhQqk; murhizapy; tH';fg;gl;Ls;s mwpt[iufspd;go. 2001k; Mz;Lf;F (1/3/2001y;) cjtpahsh;-Ch;ey mYtyh; epiy?1 epiyapy; vjph;nehf;fg;gl;l fhypapl kjpg;gPl;oy; 5# mstpw;F cl;gLk; fPH;f;fhQqk; egUf;F gzpkhWjy; K:yk; cjtpahsh;-Ch;ey mYtyh; epiy?1 epiyapy; epakdk; tH';fp ,jd;tHp cj;jutplg;gLfpwJ/ ????????????????????????????????????????????????????????????????????????????? ????????????
t/vz;/ bgah;. gjtp. jw;nghJ gzpkhWjy; K:yk; ahUf;Fg;
gzpg[hpe;J tUk; mYtyfk; epakdk; tH';fg;gLk; gjpyhf
gjtp mYtyfk; vd;w tpguk;
????????????????????????????????????????????????????????????????????????????? ????????????
1/ jpU/f/vord; Ch;ey mYtyh; fhypahf
RUf;bfGj;J jl;lr;rh; epiy?1 cs;s
Cuf tsh;r;rp cjtp Cuhl;rp xd;wpak; gzpaplj;jpy;
,af;Feh; (Cuhl;rpfs;) mhpksk;
mYtyfk;. g[Jf;nfhl;il
????????????????????????????????????????????????????????????????????????????? ???????????
nkw;fhQqk; egiu cldoahf g[jpa gzpapy; nrUk; tifapy;. gzpapypUe;J tpLtpj;jpl Cuf tsh;r;rp cjtp ,af;Feh; (Cuhl;rpfs;) nfl;Lf;bfhs;sg;gLfpwhh;/ gzpapypUe;J tpLtpf;fg;gl;l kw;Wk; gzpapy; nrh;e;j tptu';fSf;F ,t;tYtyfj;jpw;F mwpf;if mDg;gplt[k; bjhlh;g[ila mYtyh;fs; nfl;Lf;bfhs;sg;gLfpd;wdh;/
11. The above order clearly shows that the petitioners were appointed by way of transfer from the post of Steno-typist Grade III to the post of Assistant/Accountant/Rural Welfare Officer Grade I and as such brings the case of the petitioners within Rule 35(b). This fact is further supported by the stand taken by the fourth respondent in the counter affidavit, wherein, in paragraph-8, it is admitted that the petitioners were appointed as Assistant by way of transfer. In this context, let me extract Rule 35(a), 35(aa) and 35(b) of the Tamil Nadu State and Subordinate Service Rules, which read thus:-
?35(a). The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.
35(aa). The seniority of a person in a service, class or category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the service, class, category or grade.
35(b). The transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purpose of seniority and the seniority of a person so transferred shall be determined with reference to the rank in the class or category from which he was transferred, where any difficulty or doubt arises in applying this sub-rule seniority shall be determined by the appointing authority.?
12. Even paragraph-3(vi) of the G.O.Ms.No.34, Personnel and Administrative Reforms (B) Department dated 21.2.2001 shows that Steno-typist Grade III can be appointed by way of transfer, by reserving 5% of vacancies in the post of Assistant, after rendering eight years of service as Steno-
typist Grade III. However, the Government in G.O.Ms.No.122, Personnel and Administrative Reforms (B) Department dated 2.9.2005 reduced the service qualification of the Steno-typist Grade III for appointment by transfer as Assistant from eight years to five years with effect from 2.9.2005. In this regard an amendment also has been made in Rule 9(f) of the Tamil Nadu Ministerial Services, which reads as follows:-
?Five percent of the estimated vacancies, in the category of Assistant in a Department, shall be filled up by transfer from the category of Steno- Typist Grade III, who has put in not less than eight years of service and opts for transfer as Assistant as on the 15th March of the year in which the selection is made and the option so exercised is final. (w.e.f.21.02.2001) Provided that on and from the 2nd September 2005, Steno-Typist Grade III who has put in not less than five years service shall be considered for appointment as Assistant by transfer. (w.e.f.2.9.2005)?
13. In view of the above, the ratio of 4:1 in the category of Junior Assistant/Typist/Steno-typist Grade III for appointment to the post of Assistant is inapplicable. At the time of appointment to the post of Assistant by transfer, the claim of the petitioners is covered by G.O.Ms.No.34 dated 21.2.2001. Therefore, it is a clear case for application of Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules. Hence, the Steno-typists Grade III who are appointed by transfer to the post of Assistant on or after 1.8.92 shall be entitled to count their service rendered in the post of Steno-typist Grade III along with the post of Assistant for seniority under Rule 35(b) of the Tamil Nadu State and Subordinate Service Rules for fixation of inter-se seniority in the post of Assistant. It must be made clear that the Steno-typists Grade III as a matter of right cannot ask for promotion to the post of Assistant or higher post on completion of five years of service, on the basis of G.O.Ms.No.122, Personnel and Administrative Reforms (B) Department dated 2.9.2005 or on the basis of G.O.Ms.No.34, Personnel and Administrative Reforms (B) Department dated 21.2.2001 on completion of ten years of service, unless they are appointed by way of transfer to another post carrying the same scale of pay with their consent. In other words, the Steno-typists Grade III must satisfy the two conditions, namely, they should be transferred to the existing and available post of Assistant/Accountant or any post carrying the same scale of pay and also their consent should be obtained when such transfer is effected.
So long as the Government department allows the Steno-typist Grade III to continue in their post without calling for option, on completion or acquisition of more number of years of service beyond five years, they cannot have an indefeasible right to ask for promotion. Similarly, if the Government by way of transfer appointed them to the post of Assistant/Accountant etc., that would give rise to the Steno-typist Grade III to ask for the benefit of Rule 35(b).
14. But a wrong stand has been taken by the respondents 1 to 5 in paragraph-13 of the counter affidavit stating that since all the petitioners were appointed by way of transfer of service as Assistant/Accountant/Rural Welfare Officer Grade I, for which post the method of appointment is more than one method of recruitment, their seniority has to be fixed only as per Rule 35(aa). However, in my considered opinion, a reading of Rule 35(b) shows that the transfer of a person from one class or category of service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for the purpose of seniority and the seniority of a person so transferred shall be determined with reference to the rank in the class or category from which he was transferred. Therefore, it is a clear case where this Court has no hesitation to order the respondents 1 to 5 to apply Rule 35(b) for the purpose of reckoning the seniority of the petitioners, as they have been appointed by transfer of service and were also drawing the same scale of pay on par with the scale of pay of Assistant. (emphasis supplied)
15. It is also relevant to deal with two of the contentions made by Mr.Muthugeethayan, learned counsel for the impleaded respondents. Firstly, it is his contention that the petitioners failed to implead the beneficiaries/promotees of the select list in the writ proceedings. Since the issue raised in the present writ petitions is only with regard to the application of Rule 35(b) and it is not their case that the juniors who were given promotion overlooking their seniority should be recalled, this Court is not inclined to deal with the same, as this Court has to answer whether rule 35(aa) or 35(b) will apply to the case of the petitioners. Secondly, a reference was made to the order passed in W.A.(MD) No.1145 of 2006, which is also said to have been confirmed by the Apex Court in S.L.P.(C) No.19324 of 2009 on 13.1.2014. I do not find any merit in the said contention. It is the admitted case of the impleaded respondents that the ratio of 4:1 fixed by the Government in G.O.Ms.No.224 dated 8.3.84 was set aside by this Court in the reported judgment in 2007 W.L.R.58. Since the petitioners have not made any prayer for application of the ratio of 4:1, that argument also is bereft of any substance.
16. For all the aforementioned reasons, the impugned orders are set aside and the writ petitions are allowed with a direction to consider the petitioners for promotion to higher post within a period of eight weeks from the date of receipt of a copy of this order. Consequently, W.M.P.(MD) Nos.15274 to 15281 of 2016, 2959 to 2962 of 2017, 6269, 6271, 6273, 6275 & 6277 of 2017 are closed. No costs.
To
1. The Principal Secretary to Government Rural Development and Panchayat Raj Department Fort St.George Chennai 600 009
2. The Principal Secretary to Government Personnel and Administrative Reforms Department Fort St.George Chennai 600 009
3. The Director of Rural Development and Panchayat Raj Panagal Building Saidapet Chennai 600 015
4. The District Collector Pudukkottai District Pudukkottai
5. The Block Development Officer Pudukkottai Pudukkottai District .