Madras High Court
K. Meganathan vs The State Of Tamil Nadu on 22 January, 2014
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri, K.K. Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.01.2014 CORAM: THE HON'BLE MR. JUSTICE SATISH K. AGNIHOTRI and THE HON'BLE MR. JUSTICE K.K. SASIDHARAN W.P. No.14398 of 2012 K. Meganathan Petitioner vs. 1 The State of Tamil Nadu represented by its Principal Secretary to Government Home (Cts. V) Department, Chennai 2 The Registrar General High Court of Judicature at Madras Chennai 600 104 3 The Principal District Judge City Civil Court, Madras Chennai 600 104 Respondents Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus to call for the records in proceedings in Dis.No.4682/2012/W9 dated 02.05.2012 on the file of the third respondent and quash the same as illegal, incompetent and unconstitutional and further direct the third respondent to extend the benefit of G.O. No.329 dated 23.04.2009 to the petitioner. For petitioner Mr. V. Raghavachari For R1 Mr. S. Pattabiraman, Govt. Adv. For RR 2 & 3 Mr. R. Suresh Kumar ORDER
SATISH K. AGNIHOTRI, J.
The petitioner seeks to challenge the legality and validity of the order dated 02.05.2012, whereunder, the representation dated 30.03.2011 of the petitioner was rejected on the ground that the representation cannot be entertained since he had already retired from service and also a direction to the third respondent to extend the benefit of G.O.Ms.No.329, Home (Cts.V) Department dated 23.04.2009 (hereinafter referred to as "the Memo"), to the petitioner.
2 The indisputable facts, in brief, are that the petitioner joined the Judicial Subordinate Service as Junior Assistant with the City Civil Court at Madras on 19.02.1983. He was promoted from time to time. He was working as Assistant (Selection Grade) at the relevant point of time when the first respondent issued the Memo, adopting the Justice Shetty Commission's recommendations for grant of 3 grades of Bench Clerks from Courts of Civil JudgesJunior Division, Civil Judges-Senior Division and Courts of District Judges respectively. Under the Memo, the post of Assistants had been upgraded.
3. The grievance of the petitioner is that the said Memo has been implemented in other District Courts and Mofussil Courts, except in the case of Non-Judicial Staff rendering service at the City Civil Court, Chennai. The petitioner submitted a representation on 30.03.2011 for grant of the benefit to him on the afore-stated grounds. Since no action was taken on his representation, the petitioner preferred a writ petition, being W.P. No.13816 of 2011 (K.Meganathan vs. State of Tamil Nadu and Others).
4. A Division Bench of this Court, by order dated 19.07.2011, passed the following order:
3 Learned counsel appearing for Respondents 2 and 3 produced before us an official memorandum dated 7th July 2011 issued under the signature of the Registrar General informing the Principal Judge, City Civil Court, Chennai that he has been authorised to prepare a consolidated seniority list for all the City Courts and offices and all the appointing authorities are directed to address the Principal Judge, City Civil Court, Chennai to nominate the next senior most persons from the said consolidated seniority list for filling up the vacancies in categories 1 to 5 of Class-I and also to the above upgraded posts of Bench Clerk Grade I, II and III in their respective units without calling for willingness from all city units pending amendment to the Special Rules of the Tamil Nadu Judicial Ministerial Service Rules.
4. Having regard to the aforesaid memorandum issued, the grievance of the petitioner has been redressed. It is made clear that the exercise, as stated by the second respondent in the official memorandum dt. 7th July, 2011 addressed to the third respondent, shall be completed within a period of three months from the date of receipt of a copy of this order. The writ petition is disposed of accordingly. No costs."
Thereafter, the impugned order was passed on 02.05.2012 by the third respondent which is under challenge in this writ petition.
5 Mr. V. Raghavachari, learned counsel appearing for the petitioner, would submit that the other similarly-situated Assistants working in other District Courts and Mofussil Courts have obtained the benefit of the Memo and there is no reason to deny the same to the petitioner on the ground that he was working in the City Civil Court at Chennai. It is further contended that the delay on the part of the respondents in implementing the Memo, cannot be a ground for denying the benefit of the said Memo to the petitioner. The learned counsel would further submit that the petitioner became eligible to the benefit of the said Memo on the date on which the same came into effect and the benefit was given to the other similarly-situated employees and the reason assigned by the third respondent that since the petitioner had retired from service on 31.03.2011 before the Memo could be given effect to, in the Courts in Chennai, he would not be entitled to the benefit is unreasonable, discriminatory and contrary to the well-settled principles of law. According to the learned counsel, it is not a case of grant of promotion, but, grant of benefit of upgradation on account of recommendations made by the Justice Shetty Commission, which was duly adopted by the Government.
6 On the contrary, Mr. Suresh Kumar, learned counsel appearing for the respondents 2 and 3 would submit that from the date of issuance of the Memo till 30.04.2012, 103 persons have retired and thus, the grant of benefit to the petitioner would cause irreparable financial loss; secondly, the process of preparation of the seniority list and further grant of promotion/upgradation has taken time and as such, the petitioner cannot be given the benefit of the Memo with retrospective effect. It is further contended that the case of employees working in other District Courts and Mofussil Courts, has been considered in accordance with law and they had been granted benefit earlier and on that basis, the petitioner cannot claim a right of the same benefit when he had superannuated on 31.03.2011.
7 Pursuant to the directions of the Hon'ble Supreme Court of India dated 11.02.2009 in I.A. Nos. 71A, 135-136, 137-138 and 142 in W.P.Civil No.1022/A89, the Home (Cts.V) Department, Government of Tamil Nadu, adopted the recommendations made by the Justice Shetty Commission (the first National Judicial Pay Commission). The extract of the relevant portion is as under:
Sl. No. Recommendations of the Justice Shetty Commission Orders of the Government 1 Chapter IX BENCH CLERK/READER/BENCH ASSISTANT/PESHKAR Number of Grades of Bench Clerks:
There shall be three grades of Bench Clerks corresponding to three levels of Courts, viz.,
1. Bench Clerk Grade III-Civil Judge (Junior Division)/Magistrate Court
2. Bench Clerk Grade II Civil Judge (Senior Division)/CJM/CMMCourt.
3. Bench Clerk Grade I-District Court/Sessions Court Bench Clerk Grade III shall be in the cadre of Assistants/First Division Assistants/UDCs.
Bench Clerk Grade II in turn shall be in the cadre which is promotional to the Head Clerk cadre, Superintendent cadre of Assistants/First Division Assistants-I UDCs.
Bench Clerk Grade I in turn shall be in the next promotional cadre to the posts for Bench Clerk Grade II.
We have advisedly suggested three cadres of Bench Clerks corresponding to three levels of Court, not only having regard to the workload of such post, but also to provide more promotional opportunity to the existing staff who are suffering from want of promotion. The High Court and State/U.T. May approximately create more number of Bench Clerks in all Courts:
In States/Union Territories where there are more cadres of Bench Clerks, we recommend for suitable restructuring of such cadres on Court-wise basis on the lines suggested as above.
The Commission has recommended to provide three Grades of Bench Clerks for Courts of Civil Judges (Junior Division) in the scale of pay of Rs.4000-6000, Courts of the Civil Judges (Senior Division) in the scale of pay of Rs.5300-8300 and Courts of the District Judges in the scale of pay of Rs.6500-10500.
The Government accept the proposal of the Registrar General, High Court, Madras to upgrade 172 posts of Assistants (Rs.4000-6000) to that of Bench Clerk Grade-I (Rs.6500-10500) and upgradation of 418 posts of Assistants (Rs.4000-6000) as Bench Clerk GradeII (Rs.5300-8300) and redeployment of 752 posts of Assistants as Bench Clerks Grade-III in the scale of pay (Rs.4000-100-6000) with an extra cost of Rs.3.82 crores per annum recurring and direct that the 172 posts of Bench Clerk in the scale of pay Rs.6500-10500, 418 posts of Bench Clerk Grade-II in the scale of pay Rs.5300-8300 be newly created and 752 posts of Assistants be redeployed as Bench Clerks Grade III in the scale of pay Rs.4000-100-6000. Necessary amendments to the Tamil Nadu Judicial Ministerial Service consequent on the creation of the posts of Bench Clerk Grade I, II and III will be made separately. The Registrar General, High Court, Madras is requested to send a proposal to the Government in this regard.
8 Thereafter, the second respondent was requested to send necessary proposals to the Government. Accordingly, the second respondent, by order in ROC No.1163/2003/G2 dated 07.10.2009, directed the Principal District Judges, District Judges/Presiding Officers/concerned appointing authorities to take further steps in this regard in accordance with the provisions of the Tamil Nadu Judicial Ministerial Service Rules, based on the principles of seniority-cum-merit and suitability. In the said order, it was further observed that in the matter of upgradation and re-deployment in each Court of the District/Unit, every care should be taken that they are given effect to, in accordance with the sanctioned strength of the post of Assistant in respect of each Court. The Principal Judge, City Civil Court, Chennai, by communication dated 14.10.2009 to the second respondent, expressed the difficulty in implementing the order on account of the fact that in Chennai, there were so many Subordinate Courts and so many appointing authorities and as such, no consolidated seniority list of all the staff employed in all the Courts was maintained. It was further stated that if the system, as prevailing in Mofussil Courts, is extended to Chennai, the said anomaly will go away, however, Rule 6(b) would become obsolete. The Principal Judge has also recommended amendments accordingly in the TNJMS Rules.
9 It is informed that no clarification has been extended and also no amendment has been made by the second respondent till date. In the meantime, a Division Bench of this Court, in W.P. No.13816 of 2011 filed by the petitioner, recorded the contents of the official memo dated 07.07.2011, issued under the signature of the Registrar General, informing the Principal Judge, City Civil Court, Chennai that a consolidated seniority list for all the said Courts and appointing offices be prepared and all the appointing authorities were directed to address the Principal Judge, City Civil Court, Chennai to nominate the next senior-most persons from the said consolidated seniority list for filling up the vacancies in Categories 1 to 5 of Class 1 and also to the above upgraded posts of Grade I, II and III in their respective units, without calling for willingness from all city units, pending amendment to the Special Rules of the Tamil Nadu Judicial Ministerial Service Rules. It was further directed to redress the grievance of the petitioner within a period of three months from the date of receipt of a copy of the order. The petitioner was ultimately informed that his representation could not be entertained on account of the fact that he had retired on 31.03.2011.
10 It is not a case of promotion wherein a comparative merit and selection is involved. The Memo has accorded upgradation to the existing Assistants on the basis of seniority, as is evident from the perusal of the Memo. Thus, consideration subsequently after the petitioner had got superannuated on 31.03.2011, cannot be denied.
11 The Supreme Court of India, in the matter of Bharat Sanchar Nigam Limited vs. R. Santhakumari Velusamy and Others reported in (2011) 9 SCC 510, after having considered all the cases decided earlier, laid down the principles relating to promotion and upgradation as under:
"29. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge :
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both-that is advancement to a higher position and advancement to a higher pay scale - are described by the common term `promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation."
12 There is no gain-saying that the similarly-situated Assistants posted in Mofussil Courts have been granted benefits on the basis of their seniority, however, the same was denied to the petitioner as the authorities could not consider the case of the petitioner and other similarly situated employees in various Courts situated in Chennai, in time. As held supra, it was a case of upgradation of post and not promotion and as such, the employee was entitled to the benefit of upgradation from the date on which the other similarly-situated Assistants in other Districts and Mofussil Courts have been granted the benefit.
13 For the reasons afore-stated, the impugned order dated 02.05.2012 is set aside and the respondents are directed to consider the case of the petitioner with effect from the date on which the benefit was given to the other similarly-situated Assistants in other Districts. The petitioner shall also be entitled to the benefit of re-fixation of his pension on the basis of the pay scale granted to him at the time of his retirement. The aforesaid exercise shall be completed within a period of four months from the date of receipt of a copy of this order.
The writ petition is allowed in the above terms. However, there shall be no order as to costs.
(S.K.A.J.) (K.K.S.J.)
22.01.2014
cad
Index:Yes
Internet:Yes
To
1 The Principal Secretary to Government
Home (Cts. V) Department, Chennai
State of Tamil Nadu
2 The Registrar General
High Court of Judicature at Madras
Chennai 600 104
3 The Principal District Judge
City Civil Court, Madras
Chennai 600 104
SATISH K. AGNIHOTRI, J.
and
K.K. SASIDHARAN, J.
cad
order in
W.P. No.14398 of 2012
22.01.2014