N.P.Valluvan vs The Registrar on 27 February, 2011

[Cites 15, Cited by 0]

Madras High Court

N.P.Valluvan vs The Registrar on 27 February, 2011

Bench: S.Manikumar

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.02.2011

CORAM:

THE HONOURABLE MR.JUSTICE S.MANIKUMAR

W.P.No.14483 of 2010
M.P.Nos.2 and 3 of 2010

N.P.Valluvan																	... Petitioner 

					Vs.

The Registrar,
State Consumer Disputes
Redressal Commission,
No.212, R.K.Mutt Road,
Mylapore, Chennai-4.														... Respondent 

			Prayer: Writ petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, to call for the records, relating to his proceedings No.RC.No.A1/519/2008, dated 30.06.2010, quash the same, insofar as relates to the petitioner is concerned and consequently, direct the respondent to retain in the post of Head Clerk in Cuddalore District Consumer Disputes Redressal Forum, Cuddalore.

		
						For petitioners		: Mr.Yashod Vardhan, SC
														  for Mr.C.Prakasam

						For Respondent		: Mrs.Lita Srinivasan, GA
O R D E R

Challenge in this writ petition is to quash the proceedings in Rc.No.A1/519/2008, dated 30.06.2010, of the Registrar, State Consumer Disputes Redressal Commission, insofar as relates to the petitioner. Consequently, the petitioner has sought for a direction to retain him in the post of Head Clerk in Cuddalore District Consumer Disputes Redressal Forum, Cuddalore.

2. Facts leading to the writ petition are as follows:

The petitioner was appointed as an Office Assistant by the President, District Consumer Disputes Redressal Forum, Chengalpattu, in his proceedings, D.No.559/94, dated 24.06.1994 and posted as Office Assistant in the said Forum, by way of direct recruitment. His services were regularised with effect from 01.07.1994 and that his probation was declared as satisfactory on 30.06.1994. He was promoted as a Process server (Junior Bailiff) with effect from 16.08.1999 by the Registrar, State Consumer Dispute Redressal Commission, Chennai (South) and he joined the said post on 16.08.1999 AN. His services in the said post were regularised by the Registrar, State Consumer Dispute Redressal Commission, Chennai, respondent herein, with effect from the date of appointment and that he has completed his probation satisfactorily on 16.08.2000, as per the proceedings of the respondent in R.C.No.A-l/45/1997(P.S), dated 16.11.2005.

3. The petitioner has further submitted that he was temporarily promoted as Junior Assistant, vide proceedings of the respondent in RC.No.Al/456/2000 and that he joined in the post on 08.01.2001 FN, at District Consumer Disputes Redressal Forum, Chengalpattu. His services as Junior Assistant were regularised with effect from the date of appointment and that he has completed his probation, satisfactorily on 07.01.2002. He was further promoted as Assistant, vide proceedings of the respondent, in R.C.No.A-1/427/2000, dated 09.07.2004 and posted at District Consumer Disputes Redressal Forum, Chennai(South). He joined the said post on 16.07.2004. Thereafter, he was temporarily promoted to the Cadre of Head Clerk in District Consumer Disputes Redressal Forum, vide proceedings of the respondent in RC.No.A-1/1732-E/2001(5), dated 31.12.2004 and posted to District Consumer Disputes Redressal Forum, Thiruvarur. He joined the said post on 03.01.2005. After serving as Head Clerk in the District Consumer Disputes Redressal Forum, Thiruvarur and Chengalpattu, he was transferred and posted as Head Clerk in District Consumer Disputes Redressal Forum, Cuddalore, with effect from 28.10.2008 AN. Since then, he was serving as Head Clerk in the District Consumer Disputes Redressal Forum, Cuddalore till 01.07.2010.

4. While so, by proceedings in RC.No.Al/519/2008, dated 30.06.2010, the petitioner was reverted from the post of Head Clerk to the post of Process Server. There was reduction in 3 stages, with immediate effect, ie., Head Clerk to Assistant, Assistant to Junior Assistant and Junior Assistant to Process Server. In the order of reduction, the respondent has relied on a Government Order in G.O.Ms.No.43 P & A Reforms (Per B) Department, dated 15.02.1994, which stipulated that an Office Assistant should have completed 7 years of minimum service in the lower category for promotion as Junior Assistant. The above G.O., further stated that it would be applicable to those, who were recruited by transfer from other services. According to the petitioner, he has been put in more than 16 years of service, in the posts of Office Assistant, Process Server, Junior Assistant, Assistant and as Head Clerk.

5. Assailing the impugned order, Mr.Yashod Vardhan, learned Senior Counsel for the petitioner submitted that the respondent has failed to consider that the petitioner was working as Head Clerk in District Consumer Disputes Redressal Forum, Cuddalore for the past five years and that he has reached that post after serving at different levels, as stated supra. He further submitted that the reduction in rank by three stages, from the post of Head Clerk to Process Server, i.e., Head Clerk to Assistant, Assistant to Junior Assistant and Junior Assistant to Process Server, has been done without any notice or opportunity to putforth his case, and therefore, the same has to be struck down for violation of principles of natural justice. In support of his contentions, he placed reliance on a decision of this Court in P.Mani v. Director General, Central Reserve Police Force reported in 2010 (1) MLJ 747.

6. Learned Senior Counsel further submitted that G.O.Ms.No.43, Personnel and Administrative Reforms (Per.B) Department, dated 15.02.1994, which imposes a condition of seven years of service in lower category before getting promotion to the higher posts, is only applicable only to recruitment by transfer, from other services and not for direct recruitees, like the petitioner, who has been directly recruited on 24.06.1994, as Office Assistant.

7. Taking this Court through the averments made in the counter affidavit, particularly, paragraph 12 and to the dates of appointment to the posts from Office Assistant to Head Clerk and the orders of declaration of probation, in each and every post held by the petitioner, Learned Senior Counsel further submitted that the contention of the respondent in Paragraph 12 of the counter that all the promotions granted to the petitioner were only temporary in nature is not correct. He further submitted that when the services of the petitioner in the posts of Process Server and Junior Assistant were duly regularised and that when probation, in the said posts has also been declared satisfactorily, the contentions to the contra, are liable to be rejected.

8. He further submitted that in all services, promotion would be granted only temporarily, subject to satisfactory completion of probation and once the services are regularised, thereafter, the promotions made, cannot be disturbed without giving any opportunity. According to him, none of the promotions were made under Rule 10(a)(1) of the Tamil Nadu State and Subordinate Services Rules, on temporary basis and that therefore, the same cannot be termed as temporary.

9. Referring to the averments made in the counter affidavit that Rule 3(g) of the Tamilnadu Ministerial Service Rules, which originally imposed a condition that the qualifying service for such promotion was 5 years and the amendment in G.O.Ms.No.15, P & AR Department, dated 21.02.2002 increasing the qualifying service to 7 years, with retrospective effect from 15.02.1994. He submitted that the rules ought not to have applied to the case of the petitioner, when he had already reached the level of Head Clerk and when the services in each post, have already been regularised. On the further contention of the respondent that the Tamilnadu Ministerial Service Rules shall apply to the staff employed in the District Consumer Fora and State Commission, as per the ad-hoc rules framed in Notification VI to G.O.Ms.No.285, Co-operation, Food and Consumer Protection (H2) Department, dated 6.8.2001, he further submitted that, on the information furnished by the Deputy Registrar of this Court, in his letter, dated 01.11.2010, in response to a query under the Right to Information Act, the requirement of 7 years service, as stipulated in G.O.Ms.No.43, P & AR Dept, dated 15.2.1994, is not applicable to the case of the petitioner. He further submitted that even assuming that Tamil Nadu Ministerial Service Rules were to be applied, at the time of promotion to the post of Junior Assistant, ie., on 29.12.2000, the petitioner had acquired more than the qualifying service of 5 years, since his services in the lower category admittedly, was 6 years and 6 months.

10. Learned Senior Counsel further submitted that when promotion of the petitioner to the post of Junior Assistant was regularised prior to the amendment to Rule 3(g) of the Tamilnadu Ministerial Service Rules, the abovesaid amendment cannot be applied retrospectively to take away the vested right in the promotional post. In this regard, reliance has been placed on the decisions in Chandra Prakash Madhavarao Dadwa v. Union of India reported in (1998) 8 SCC 154 and M.A.Hameed v. State of A.P., reported in 2001 (9) SCC 261.

11. Inviting the attention of this Court to a decision in W.A (MD) No 551 of 2010, dated 10.12.2010, when a similar order of reversion was challenged, in respect of the petitioner's junior, Mr.Manikandan, Learned Senior Counsel for the petitioner submitted that at Paragraph 19 of the order, the Division Bench of this Court, has observed that there is no need to revert, but the notional promotion can be shifted to the date of completion of 7 years service. According to him, the petitioner stands on better footing, as his promotion to post of Junior Assistant had already been regularsied, whereas, in the case of his Junior, it was not regularised. For the abovesaid reasons, he prayed to set aside to the impugned order and issue a consequential direction, as prayed for.

12. Based on the averments in the counter affidavit filed by the respondent, Mrs.Lita Srinivasan, learned Government Advocate submitted that as per the provisions of the Consumer Protection Act, 1986, the State Consumer Disputes Redressal Commission and 6 District Consumer Disputes Redressal Fora were initially constituted under G.O.Ms.No.391, Co-operation, Food & Consumer Protection Department, dated 24.10.1991, through which, posts like Office Assistant, Process Server, Amin, Examiner, Copyist, Steno-Typist, Assistant, Head Clerk were temporarily sanctioned. Subsequently, vide G.O.Ms.No.641, Co-operation, Food & Consumer Protection Department, dated 07.12.1993, regular District Consumer Disputes Redressal Fora were formed in various Districts and several new posts were temporarily sanctioned. Initially, the post of Junior Assistant and other higher posts were filled up from other departments and the posts like office Assistant, Process Server, copyist, Amin, Examiner were filled up by direct recruitment and by transfer from other services. Pursuant to the recommendation of Bagla Committee established by the National Consumer Disputes Redressal Commission, New Delhi, certain new posts were sanctioned and the persons who were holding the post of Junior Assistants were promoted. Since, there were several vacancies in the post of Junior Assistants, certain staff in the lower categories, below the post of Junior Assistants were temporarily promoted.

13. Learned Government Advocate further submitted that Adhoc Rules were framed for temporary posts in the State Consumer Disputes Redressal Commission and in the District Consumer Disputes Redressal Fora, vide G.O.Ms.No.285, Co-operation, Food & Consumer Protection (H2) Department, dated 6.8.2001, with retrospective effect from 09.10.1990. Adhoc Rules for the post of Process Servers were framed vide G.O.Ms.No.174, Co-operation, Food and Consumer Protection (H1) Department, dated 31.08.2005. Before framing of the Adhoc Rules, several promotions were given to the post of Junior Assistants from the lower categories, such as, Office Assistants, Process Servers etc., without following any specific rules. Therefore, the temporary promotions were not regulated.

14. Learned Government Advocate further submitted that as per Adhoc Rules, Notification - VII, Rule-3, the Appointment to the post of Junior Assistant-cum-Typists shall be made as follows:

			i)        By direct recruitment; or
			ii)       By transfer from among other class or category; or
			iii)      By recruitment by transfer from any other service.

She also submitted that the posts of Junior Assistant and Junior Assistant -cum-Typist fall under the Category of 14 of Rule 1 of Tamil Nadu Ministerial Service Rules and as such, the post of Junior Assistants have to be filled up following the instructions contained in G.O.Ms.No.43, Personnel and Administrative Reforms (Per.B) Department, dated 15.2.1994, r/w Rule 3(g) of Tamil Nadu Ministerial Service Rules.

15. Learned Government Advocate further submitted that the Tamil Nadu Judicial Ministerial Service Rules would apply to Junior Assistants, subject to the modification in the Notification-VII of Rule-3 of Adhoc Rules. She further submitted that the Notification-VII of Rule 3 of Adhoc Rules is entirely different from Tamil Nadu Judicial Ministerial Service Rules in respect of Junior Assistants.

16. Learned Government Advocate further submitted that though the posts of Process Server, Copyist, Examiner, Amin were sanctioned before framing of the Adhoc Rules, no such promotional option as contained in Tamil nadu Judicial Ministerial Service Rules were incorporated in the Adhoc Rules of the Commission/Fora. In such circumstances, the post of Junior Assistants were to be filled up, as per Rule 3(iii) of Notification-VII of Adhoc Rules, i.e., by recruitment by transfer from any other service, following the Rule 3(g) of Tamil Nadu Ministerial Service Rules. No ratio was followed in lower category posts, such as, Office Assistants, Process Servers, Copyists, Examiners, Amins, while giving promotion to the post of Junior Assistants.

17. Learned Government Advocate further submitted that the Tentative Seniority List pertaining to the Commission/Fora was prepared and circulated to the staff, only in the year' 2009. On the representation by the staff, the Commission came to understand that some of the orders of promotion given in the post of Junior Assistants were erroneous and that therefore, steps were taken to regulate the promotions given in the post of Junior Assistants from the posts of Office Assistant and Process Server, in terms of G.O.Ms.No.43, Personnel & Administrative Reforms (Per.B) Department, dated 15.2.1994, r/w Rule 3(g) of Tamil Nadu Ministerial Service Rules. Consequently, personnel were reverted to the original posts, in accordance with the guidelines issued in G.O.Ms.No.1435, Public (Services-A) Department, dated 19.8.1964. The relevant portion of the said G.O., is extracted hereunder:

"(ii) Erroneous orders of promotion or appointment of a Government Servant in an officiating capacity to a higher post.

An order or notification of promotion/appointment of a Government servant in an officiating capacity to a higher post should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from actual error, and the Government servant concerned should immediately on such cancellation be brought to the position he would have held but for the incorrect order of promotion or appointment There is no need to ask the Government servant concerned to show cause against the cancellation of the orders proposed."

18. Pertaining to the case of the petitioner, learned Government Advocate submitted that the petitioner was appointed as Office Assistant through Employment Exchange and that he joined duty on the F.N. of 01.07.1994 in the DCDRF, Chengalpattu. He was temporarily promoted as Process Server and that he joined duty on the A.N. of 16.08.1999 in the DCDRF, Chennai (South). Subsequently, he was temporarily promoted as Junior Assistant and that he joined duty on the F.N. of 08.01.2001 in the DCDRF, Chengalpattu. Further, he was temporarily promoted as Assistant and he joined duty on the F.N. of 16.07.2004 in the DCDRF, Chennai (South). He was also temporarily promoted as Head Clerk and that he joined duty on the F.N. of 3.1.2005 in the DCDRF, Thiruvarur. He was transferred and posted as Head Clerk, DCDRF, Cuddalore. According to learned Government Advocate, the petitioner's total service in the lower posts of Office Assistant and Process Server put together was only 6 years and 6 months and that therefore, he has not completed 7 years of service, in the lower category, as on 08.01.2001, when he was promoted as Junior Assistant, as per G.O.Ms.No.43, Personnel and Administrative Reforms (Per.B) Department, dated 15.2.1994.

19. Learned Government Advocate further submitted that the petitioner ought to have been considered for the post of Junior Assistant only after the completion of 7 years in the lower category, i.e. After 30.06.2001, after fixing seniority in the lower posts. She further submitted that when Tamil Nadu Administrative Tribunal, Chennai, passed an order in O.A.No.1790/1990, dated 11.12.1992, observing that the method of recruitment by transfer, should not be made, by-passing the recruitment by the Tamil Nadu Public Service Commission, and that the same should be ensured, by prescribing a longer period of qualifying service, while considering promotion by transfer of service from the lower categories, pursuant to the directions of the Tribunal, the Government in G.O.Ms.No.15, Personnel & Administrative Reforms (B) Department, dated 21.2.2002, amended Rule 3(g) of Tamil Nadu Ministerial Service Rules, increasing the existing qualifying service from 5 years to 7 years, with retrospective effect from 15.2.1994. Thus, while applying the abovesaid G.O., it was noticed that the petitioner had rendered only 6 years and 6 months of Service in the lower categories, which is not adequate as per Rule 3(g) of the Tamil Nadu Ministerial Service Rules.

20. Learned Government Advocate further submitted that no opportunity of hearing is required to be given as per Article 311(2) of the Constitution of India, which is not applicable to the facts of this case, as it was not a case of punishment and that the petitioner has been reduced to his original position, as per G.O.Ms.No.43, Personnel and Administrative Reforms (Per.B) Department, dated 15.2.1994. In the additional counter affidavit, reliance has been placed on the decision made in W.A.(MD)No.551 of 2010, dated 10.12.2010, wherein, a Hon'ble Division Bench of Madurai Bench of the Madras High Court, Madurai, has dismissed an identical case of one Mr.S.Manikandan, who was also found to be not qualified as per G.O.Ms.No.43, Personnel and Administrative Reforms (Per.B) Department, dated 15.2.1994. For the abovesaid reasons, she prayed for dismissal of the writ petition.

Heard the learned counsel for the parties and perused the materials available on record.

21. There is no dispute with regard to the dates of appointment of the petitioner and promotion to higher levels. Perusal of the order of appointment by the President, District Consumer Disputes Redressal Forum, Chengalpattu, shows that the petitioner was one of the open competition candidates, who had appeared, pursuant to the sponsorship made by the Employment Exchange, Kancheepuram. He was selected and appointed to the post of Office Assistant in the abovesaid Consumer Forum. The induction of the petitioner as Office Assistant to the Consumer Forum by way of direct recruitment and admittedly the post does not fall under the purview of the Tamil Nadu Public Service Commission.

22. Perusal of the order, dated 11.08.1999, of the Registrar, State Consumer Disputes Redressal Commission, shows that in the vacant post of Process Server at the District Consumer Disputes Redressal Forum, Chennai (South), the petitioner has been temporarily promoted as Process Server. Subsequently, when one S.Viswaranthan, Junior Assistant, State Consumer Disputes Redressal Commission, Chennai, was promoted as Assistant, consequently, a post of Junior Assistant has fallan vacant. Thiru.D.Venkatesan, Examiner, District Consumer Disputes Redressal Forum, Chennai (South), has been temporarily converted as Junior Assistant, transferred and posted as Junior Assistant in the abovesaid vacancy. The petitioner, Process Server, District Consumer Disputes Redressal Form, Chennai (South), has also been temporarily promoted and appointed as Junior Assistant and transferred and posted at District Consumer Disputes Redressal Forum, Chengalpattu in the existing vacancy. The above promotion and transfer has been made by the Registrar, State Consumer Disputes Redressal Commission, vide order, dated 29.12.2000.

23. As rightly pointed out by the learned Senior Counsel, none of the promotions have been made, resorting to rule 10(a)(i) of the Tamil nadu State and Subordinate Services Rules, as a temporary measure or under rule 39(a) of the said Rules. At this juncture, this Court deems it fit to extract rule 10(a)(i) of the General Rules, which states that where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualifications prescribed for the post otherwise than in accordance with the said rules.

24. In G.O.Ms.No.285, Co-operation, Food and Consumer Protection (H2) Department, dated 06.08.2001, the Government have issued adhoc rules for permanent and temporary posts in the State Consumer Disputes Redressal Commission and the District Consumer Disputes Redressal Fora. The rules are stated to have come into force from 9th October, 1990. The Rules have been made applicable to the holders of the permanent post of Office Assistant in Category 5 in Clause III of the Tamil Nadu Basic Service and it shall also apply to the temporary post of Office Assistant in the State Consumer Disputes Redressal Commission and the District Consumer Disputes Redressal Fora, subject to the modifications specified in the rules. The appointing authority for the posts in the State Consumer Disputes Redressal Commission shall be the Registrar of the State Commission and the President of District Consumer Disputes Redressal Fora is the appointing authority for the concerned district forum. As per the Notification VI, special rules applicable to the holders of the permanent posts in the Tamil Nadu Judicial Ministerial Service specified in Column (1) of the below provided in the notification, shall apply to the temporary posts of Head Clerks in the District Forum, Chennai, Assistants including Head Clerks in the grade of Assistants and Record Clerks in the grade of Assistants, Junior Assistants, Steno-Typists, Typists, Examiners, Amins and Copyists, in the State Consumer Disputes Redressal Commission and the District Consumer Disputes Redressal fora, subject to the modifications specified in the rules. As per Rule 3, appointment to the Junior Assistant cum Typist shall be made as follows:

(1) by direct recruitment; or (2) by transfer from among other class or categoriy; or (3) by recruitment by transfer from any other service.

25. Perusal of the Adhoc Rules do not indicate any minimum qualifying service. However, as per the notification, the respondent has contended that as the post of Junior Assistant and Junior Assistant cum Typist, fall under category 14 of Rule (1) of the Tamil nadu Ministerial Service and that therefore, such posts ought to have been filled up by following the instructions in G.O.Ms.No.43, Personnel and Administrative Records (Per.B) Department, dated 15.02.1994, r/w. Rule 3(g) of the Tamil nadu Ministerial Service Rules, states as follows:

****3(g) "Besides direct recruitment as provided in rule 2, appointment to the categories of Junior Assistant, Junior Assistant-cum-Typist and Typist shall be made by recruitment by transfer from other services subject to the following conditions, namely:-

(i) Persons in services, other than the Tamil Nadu Ministerial Service, who are in categories having no promotional opportunities or even after more than one promotion in the respective service would still be in a category carrying scale of pay lower than that of Junior Assistant or Junior Assistant-cum-Typist or Typist alone shall be considered for appointment by recruitment by transfer as Junior Assistant or Junior Assistant-cum-Typist or Typist in the Tamil Nadu Ministerial Service, subject to the possession of the prescribed qualifications for direct recruitment.

(ii) .................................................

(iii) Appointment to the post of Junior Assistants, Junior Assistant-cum-Typists or Typists from the lower categories shall not exceed 20% of the vacancies in each of the categories,

(iv) A person to be eligible for appointment as Junior Assistant, Junior Assistant-cum-Typist or Typist should have rendered not less than 7 years of service in the lower categories." **** Substituted vide G.O.Ms.No.15, Personnel & Administrative Reforms (B) Department, dated21.2.2002 w.e.f. 15.2.1994)

26. The qualifications prescribed as per Rule 5 of the Adhoc Rules for the post of Junior Assistant and Junior Assistant cum Typist, are as follows:

"5. Qualifications:- (a) Age: No person shall be eligible for appointment to the post by direct recruitment if he has completed or will complete thirty years of age on the first day of July of the year in which the selection for appointment is made.

(b) Other qualifications:- No person shall be eligble for appointment, (1) must possess the minimum general educational qualifications as prescribed by the Government;

(2) must have passed the Government Technical Examination in Typewriting both in Tamil and English by Higher grade. Provided that if candidates with the qualifications referred to in item (2) above are not available, candidates who have passed the following examinations, in the order of preference indicated below, shall be appointed, namely:-

(a) Government Technical Examination, in Typewriting in Tamil by Higher grade and In English by Lower grade ; or

(b) Government Technical Examination in Typewriting in English by Higher grade and in Tamil by Lower grade."

27. The post of Junior Assistant and Junior Assistant cum Typist in the Tamil Nadu Judicial Ministerial Service, i.e., Mofussail Courts, falls under Class IV, in Category 5. The said post is filled up by promotion from the Assistant Superintendent of Copyist, Examiners, Amins, Readers or Direct recruitment or for special reasons recruitment by transfer from any other service and the same is extracted hereunder:

CLASS - IV (Mofussil Courts) Category 5 :-

Junior Assistants :Promotion from Assistant Superintendent ........... of Copyist, Examiners, Amins, Readers or Typist Direct recruitment or for special reasons recruitment by transfer from any other service

28. As rightly contended by the learned Government Advocate, perusal of the rules framed in G.O.Ms.No.285, dated 06.08.2001, shows that for the post of Process Server, Copyist, Examiner, Amin sanctioned before the framing of Adhoc Rules, there was no such promotional option, as contained in Tamil Nadu Ministerial Service Rules. However, it could be seen from the proceedings pertaining to the appointment orders of the petitioner, as Office Assistant on 24.06.1994, promotion as Process Server, and as Junior Assistant and Assistant on 11.08.1999 and 29.12.2000 respectively, by the competent authority, stated supra, the petitioner has gained promotion, gradually at different levels and that at each and every level, his services have been regularised. At this juncture, it is relevant to consider the effect of G.O.Ms.No.123, Co-operation, Food and Consumer Protection (H2) Department, dated 13.03.2003, to the appointments already made in the State Commission and different Consumer Fora:

GOVERNMENT OF TAMIL NADU ABSTRACT Public Services State Consumer Disputes Redressal Commission and District Consumer Disputes Redressal For a Temporary Posts Amendment to Adhoc Rules Issued.

Co-operation, Food and Consumer Protection (H2) Department

G.O.(Ms)No.123									Dated: 13.03.20003

			Read:
				1. G.O.Ms.No.285, Co-operation, Food and 								Consumer Protection Department, Dt.6.8.2001
				2. From the Registrar, State Consumer Disputes 						Redressal Commission, Lr.No.A1/45/97, 
					Dt. 25.1.2002

Order:

The following Notifications will be published in the Tamil Nadu Government Gazette.

NOTIFICATION-I In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendment to the rules issued with Notification No.SRO.B.66/2001 and published at Pages 116-117 in Part III-Section 1(b) of the Tamil Nadu Government Gazette, dated 29th August, 2001.

2. The amendment hereby made shall be deemed to have come into force on the 9th October, 1990.

AMENDMENT In the said Rules, after rule 8, the following rule shall be added, namely:-

"9. Savings:- Nothing contained in these rules shall adversely affect any person holding the posts on the date of coming into force of these rules.

NOTIFICATION-II In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendment to the rules issued with Notification No.SRO.B.68/2001 and published at Page 118 in Part III-Section 1(b) of the Tamil Nadu Government Gazette, dated 29th August, 2001.

2. The amendment hereby made shall be deemed to have come into force on the 4th December 1990.

AMENDMENT In the said Rules, after rule 7, the following rule shall be added, namely:-

"8. Savings:- Nothing contained in these rules shall adversely affect any person holding the posts on the date of coming into force of these rules.

NOTIFICATION-III In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendment to the rules issued with Notification No.SRO.B.69/2001 and published at Page 119 in Part III-Section 1(b) of the Tamil Nadu Government Gazette, dated 29th August, 2001.

2. The amendment hereby made shall be deemed to have come into force on the 9th October, 1990.

AMENDMENT In the said Rules, after rule 4, the following rule shall be added, namely:-

"5. Savings:- Nothing contained in these rules shall adversely affect any person holding the posts on the date of coming into force of these rules.

NOTIFICATION-IV In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendment to the rules issued with Notification No.SRO.B.71/2001 and published at Pages 120-121 in Part III-Section 1(b) of the Tamil Nadu Government Gazette, dated 29th August, 2001.

2. The amendment hereby made shall be deemed to have come into force in respect of the posts mentioned in Column (1) of the Table in Paragraph 2 of the preamble of the Notification from the dates specified in the corresponding entries in column (2) thereof.

AMENDMENT In the said Rules, after rule 6, the following rule shall be added, namely:-

"7. Savings:- Nothing contained in these rules shall adversely affect any person holding the posts on the date of coming into force of these rules in respect of the respective posts.

(BY ORDER OF THE GOVERNOR) S. RAMAKRISHNAN SECRETARY TO GOVERNMENT

29. Reading of the abovesaid G.O.Ms.No.123, makes it abundantly clear that amendments have been issued by the Government to the Adhoc Rules framed in G.O.Ms.No.285, dated 06.08.2001 and published in the Government Gazette on 29.08.2001, for the temporary posts in the State Consumer Disputes Redressal Commission and the District Consumer Disputes Redressal Fora.

30. Rule 6 in SRO B-71/2001, states that, "the units of appointment, discharge, seniority, etc., for the purpose of recruitment, seniority, discharge for want of vacancies, reappointment of probationer and approved probationers, promotion transfer and posting to various posts, the posts in the State Consumer Disputes Redressal Commission and District Consumer Dispute Redressal Fora shall form one unit." Rule 7 provides for a Saving Clause, which reads that, "Nothing contained in these rules, shall adversely affect any person holding the posts on the date of coming into force of these rules in respect of the respective posts". It is this SRO B-71/2001, which is applicable to the case of the petitioner and others, who were holding the posts on the date of issuance of the notification.

31. By virtue to the amendment made in G.O.Ms.No.123, Co-operation, Food and Consumer Protection (H2) Department, dated 13.03.2003, it has also been made clear that the amendment issued by the Government shall be deemed to have come into force in respect of the posts mentioned in Column (1) of the Table in Paragraph 2 of the preamble of the Notification from the dates specified in the corresponding entries in column (2) thereof. The table is extracted in the latter paragraph in this judgment. Saving Clause in Rule 7, states that, "Nothing contained in these rules shall adversely affect any person holding the posts on the date of coming into force of these rules in respect of the respective posts.", makes it clear that by virtue of the amendment made in G.O.Ms.No.123, all those, who were holding the posts, as on the date of issuance of the amended rule, shall not be disturbed and that the rules would not adversely affect their service condition.

32. Thus, it is evident that even though, the rules were intended to be given with retrospective effect, the saving Clause gives protection to all those personnel, covered under SRO B-71/2001, dated 29.08.2001 and others, as stated in the above G.O. Perusal of the Gazette Notification, dated 16.04.2003, amending G.O.Ms.No.123, dated 13.03.2003, shows that protection has also been given to other personnel also. Once by providing a Saving Clause, protection has been granted to those, who were holding the posts, as on the date of issuance of G.O., this Court is of the view that it is not open to the respondent to rely on G.O.Ms.No.43, Personnel and Administrative Reforms (Per.B) Department, dated 15.02.1994, which deals with the appointment to the posts of Junior Assistant/Junior Assistant-cum-Typist by recruitment by transfer from other services.

33. Perusal of G.O.Ms.No.43, P & AR (Per.B) Department, dated 15.02.1994, shows that by order, dated 11.12.1992 in O.A.No.1790/90, the Tribunal has made certain observations regarding the appointment to the posts of Junior Assistant/Junior Assistant-cum-Typist, by recruitment by transfer from other service and that the Government have examined the matter, in the light of the said orders and after obtaining remarks from the Tamil Nadu Public Service Commission, have prescribed certain qualifications, inter alia, that a person to be eligible for appointment as Junior Assistant/Junior Assistant-cum-Typist/Typist, he should have rendered not less than 7 years of service in the lower categories, as the Tamil Nadu Administrative Tribunal, Chennai, has observed that the method of recruitment by transfer should not be made the means, for by-passing recruitment by the Tamil Nadu Public Service Commission, and that the same should be ensured by prescribing a longer period of qualifying experience, as against the existing qualifying service of 5 years. It is this G.O., which has been considered and applied in the instant case, for revising the position and the seniority, which has resulted in reduction of the personnel, including the petitioner, by applying the guidelines in G.O.Ms.No.1435, Public (Services-A) Department, dated 19.8.1964, which is reproduced hereunder:

"(H) Erroneous orders of promotion or appointment of a Government Servant in an officiating capacity to a higher post.

34. Admittedly, the promotion granted to the petitioner is not on officiating capacity. But, at each and every stage, he has been promoted on temporary basis, as done in all departments and lateron, regularised. There is a difference between officiating capacity and promotions made on regular basis, subject to regularisation and satisfactory completion of promotion. The application of G.O.Ms.No.1435, is not correct.

35. Material on record further discloses that the Government have also issued G.O.Ms.No.174, Co-operation, Food and Consumer Protection (H1) Department, dated 31.08.2005, for the temporary posts of Process Server in the State Consumer Disputes Redressal Commission and the District Consumer Disputes Redressal Fora, which reads as follows:

Order:

The following Notification will be published in the Tamil Nadu Government Gazette.

NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following rules:-

2. The rules hereby made shall be deemed to have come into force on the 5th February, 1992.

RULES The Special Rules applicable to the holder of the permanent post of Junior Balliff of the Presidency Court of Small Causes, Madras in category 3 in Class-II of the Tamil Nadu Judicial Ministerial Service shall apply to the holder of the temporary post of "Process Server" in the District Consumer Disputes Redressal Fora subject to the modifications specified in the following rules.

2. Constitution:- The post shall constitute a temporary addition to the said category in the said class of the said service.

3. Appointment:- Appointment to the post shall be made as follows:-

(i) by direct recruitment, or

(ii) by recruitment by transfer from the combined seniority list of Office Assistants in the State Consumer Disputes Redressal Commission/District Consumer Disputes Redressal Fora and from the post of Night Watchman in the State Consumer Disputes Redressal Commission in the grade of Office Assistant.

4. Appointing Authority:- The Registrar, State Consumer Disputes Redressal Commission, Chennai shall be the Appointing Authority for the post.

5. Qualification:- No person shall be eligible for appointment to the post unless he possess the minimum general educational qualifications.

6. Probation:- (a) Every person appointed to the post by direct recruitment shall from the date on which he joins duty, be on probation for a total period of two years on duty within a continuous period of three years.

(b) Every person appointed by recruitment by transfer shall from the date on which he joins the duty be on probation for a total period of one year on duty within a continuous period of two years.

7. Pay:- There shall be paid to the holders of the post, a monthly pay calculated in the scale of Rs.800-15-1010-20-1150.

Provided that on and from 1st January, 1996 the scale of pay is Rs.2650-65-3300-70-4000.

8. Saving:- Nothing contained in these rules shall adversely affect any person appointed to the post prior to the date of publication of the Rules in the Tamil Nadu Government Gazettee and holding the post on the date of such publication."

36. As per the abovesaid G.O., the post of Process Server can be filled up by direct recruitment or recruitment by transfer from the combined seniority list of Office Assistants in the State Consumer Disputes Redressal Commission/District Consumer Disputes Redressal Fora and from the post of Night Watchman in the State Consumer Disputes Redressal Commission in the grade of Office Assistant. No person shall be eligible for appointment to the post, unless he possess the minimum general educational qualifications and the period of probation is for continuous period of two years.

37. Perusal of the proceedings in Rc.No.A-1/45/1997 (P.S), dated 16.11.2005, of the Registrar, State Consumer Disputes Redressal Commission, shows that only after the approval of the Adhoc Rules by the Government, for the post of Process Server in G.O.Ms.No.174, CF & CP (H1) Dept., dated 31.08.2005, the services of the petitioner in the post have been regularised with effect from 16.08.1999. Likewise, perusal of the proceedings in Rc.No.A-1/45/1997 (JA)/II, dated 27.03.2006 of the Registrar, State Consumer Disputes Redressal Commission, Chennai, shows that his services in the post of Head Clerk have been regularised on 08.01.2001.

38. Perusal of G.O.Ms.No.123, dated 13.03.2003, shows that the posts of Head Clerk, Assistant, including Head Clerk and Record Clerk, Junior Assistant, Steno-Typist, Typist, Examiner, Amin and Copyist, for which, a notification has been made in SRO B-71/2001 and published at Pages 120-121 in Part III-Section 1(b) of the Tamil Nadu Government Gazette, dated 29th August, 2001, wherein rules have been amended in respect of the above mentioned posts in Column No.1 of the Table in Paragraph 2 of the preamble of the Notification from the dates specified in the corresponding entries in column (2) thereof. As per the amendment, after rule 6, the following rule shall be added, "7. Savings:- Nothing contained in these rules shall adversely affect any person holding the posts on the date of coming into force of these rules in respect of the respective posts.

39. Though Adhoc Rules are deemed to have come into effect on 9th October, 1990, from the perusal of the counter affidavit, it is clear that the the State Consumer Disputes Redressal Commission and 6 District Consumer Disputes Redressal Fora were initially constituted under G.O.Ms.No.391, Co-operation, Food & Consumer Protection Department, dated 24.10.1991, through which, posts like Office Assistant, Process Server, Amin, Examiner, Copyist, Steno-Typist, Assistant, Head Clerk were temporarily sanctioned. Subsequently, the Government have issued orders in G.O.Ms.No.641, Co-operation, Food & Consumer Protection Department, dated 07.12.1993, by which, regular District Consumer Disputes Redressal Fora were formed in various Districts and several new posts have been permanently and temporarily sanctioned.

40. Admittedly, the petitioner was appointed as Office Assistant on 24.06.1994 and then promoted as Process server (Junior Bailiff) on 11.08.1999. Thereafter, he was promoted as Junior Assistant on 29.12.2000. Till such time, they were no Adhoc Rules framed by the Government, governing many posts in the State Consumer Disputes Redressal Commission and District Consumer Disputes Redressal Fora. Perusal of G.O.Ms.No.285, Co-operation, Food and Consumer Protection (H2) Department, dated 6.8.2001, shows that in the abovesaid Fora, they were posts, like Personal Assistant, Appeal Examiner and Court Officer, Junior Accounts Officer, Office Assistant, Driver, Head Clerk, Assistant, Head Clerk (Assistant Grade), Record Clerk in the grade of Assistant, Junior Assistant, Steno-Typist, Typist, Examiner, Amin and Copyist, Process Server, etc. Though G.O.Ms.No.123, provides for a Savings Clause to the effect that nothing contained in these rules shall adversely affect any person holding the posts on the date of coming into force of these rules, in respect of respective posts notified in SRO.B.66/2001, SRO.B.68/2001, SRO.B.69/2001 and SRO.B.71/2001 and published in Tamil Nadu Government Gazette, dated 29th August, 2001, the Saving Clauses provided in the abovesaid G.O., ought to have been made applicable to all those persons, who were holding the posts, referred to in the abovesaid notification, as on 29th August, 2001, by which time, the petitioner had already been promoted to the post of Junior Assistant.

41. Though the amendment is stated to have come into force on 9th October, 199o, the State Consumer Disputes Redressal Commission and District Consumer Disputes Redressal Fora, were not even in existence at that time and as stated supra, they came into existence only in the year 1991, pursuant to the issuance of G.O.Ms.No.391, Co-operation, Food & Consumer Protection Department, dated 24.10.1991. Of course, creation of the respective fora, can be made after the issuance of the rules. But in the case on hand, after all the appointments and promotions were made, the rules which came into existence, only in the year 2001, are sought to be applied retrospectively, thus affecting their service conditions and promotions earned through a regular process. In view of the saving clauses and the protection granted in G.O.Ms.No.43 P & A Reforms (Per B) Department, dated 15.02.1994 r/w. Rule 3(g) of the Tamil Nadu Ministerial Service Rules, have no application to those, who were already protected.

42. As stated supra, material on record also disclose that each and every stage, the petitioner has been appointed by the competent authority in the existing vacancy and that his service were also regularised the post of Office Assistant, Process Server, Junior Assistant, Assistant and Head Clerk. His probation has also been satisfactorily confirmed in all the posts. As stated supra, none of his appointments were under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, to claim that they were made under the circumstances, stated thereunder, warranting temporary appointment. But there were regular promotions against sanctioned vacancies, whether temporary or permanent, as the case may be. Nevertheless, the Supreme Court in Merra Massey (Dr.) v. Dr.S.R.Mehrotra reported in 1998 (3) SCC 88, has held that Regularisation as in service jurisprudence means regularising any irregularity or deficiency in the matter of appointment to a post, borne in a cadre. There is a distinction between regularisation and promotion. Regularisation means, one which is already working, doing or has done something, which the law did not permit, but the same is being regularised, treated to be done in accordance with law, treat one as such.

43. Having regularised the services of the petitioner, even before the introduction of the Adhoc Rules in the year 2001, before G.O.Ms.No.285, came to be issued, it is not open to the respondent to contend that the petitioner had not satisfied the minimum required condition of service of 7 years in the post of Office Assistant for promotion to the post of Junior Assistant, relying on G.O.Ms.No.43, which has the effect of nullifying the orders of regularisation of the service of the petitioner in various posts held by the petitioner. Reversion or reduction in the post may be called for, in cases, where the promoted person, does not possess even the educational qualification prescribed for the post.

44. The contention of the respondent that the promotion granted to the petitioner was only temporary and it can be reverted or reduced, at any time, by virtue of the retrospective operation of the rules, dehors regularisation given at various levels, cannot be accepted, in view of the decision of the Apex Court in Santhosh Kumar v. State of A.P., and others reported in 2003 (5) SCC 511, wherein, it has been held that once the Government for good reasons have chosen to regularise the services of the respondent, with effect from the date of temporary promotion, it cannot be contended that their initial appointment was only on adhoc basis and not according to the rules and made as a stop gap arrangement. As discussed in the earlier paragraphs, the appointment of the petitioner, was in exercise of Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules, it was an adhoc appointment or in the officiating capacity, it was a regular promotion in the existing vacancy. By virtue of retrospective application of the rules, the petitioner, who has been appointed as an Office Assistant and gradually promoted to the post of Head Clerk, has been pushed to a lower category and made as a Junior to many, who would have served under him. In such circumstances, it cannot be said that the petitioner has not acquired a vested right in the promotional posts of Junior Assistant, Assistant or Head Clerk, wherein, orders of regularisation, has been duly issued by the competent authority.

45. None of the appointments to the abovesaid posts can be said to be illegal or without the competence of the authority, who has issued the order of appointment or regularisation or declaration of satisfactory service in each post. To reduce the petitioner on par with a person, who had been appointed or promoted as a process server and thereafter to consider his case for promotion to the higher posts of Junior Assistant, Assistant and Head Clerk, which posts, he had already held, regularised and probation satisfactorily completed, would be a travesity of justice, causing irreparable hardship, as he would be forced to serve under his Juniors, when he had already served in the promotional posts.

46. The action of the Government in framing adhoc rules only in the year 2001, by issuance of G.O.Ms.No.283 and giving effect to the same, retrospectively, cannot nullify all the orders of regularisation, by the impugned order and that the same would be contrary to the judgment of the Apex Court in Santosh Kumar's case (cited supra). Neither appointment given to the petitioner nor regularisation cannot be said to be a back door method. The legal right for promotion to the higher posts, which the petitioner earned and regularised and the seniority in the posts held by him, cannot be divested once the competent authority has issued subsequent notifications, to maintain status quo, with regard to appointments already made and it would be clear from the Saving Clauses, the intention of the Government was to protect not only the appointments but also their service conditions, which includes their seniority, accrued to them, as per the initial appointments to various posts.

47. By virtue of the gradual promotion and the consequential orders of regularisation, certainly a vested right is created in favour of the petitioner and as rightly contended by the learned counsel for the petitioner that no order entailing civil consequences can be passed, without affording an opportunity of being heard. In Indian Council of Medical Research v. K.Rajalakshmi reported in 2005 (1) CTC 488, a Division Bench of this Court held that, "28. In service jurisprudence, no post can be treated permanently as temporary. Temporary means only for a certain limited period. When a post being held by a person continues to be held for more than a certain limited period, it cannot be said that it is a temporary post. Such continuance, in a certain post, automatically takes away the character of temporary and takes the character of permanent."

48. The said judgment can be made applicable to the facts of this case, for the limited extent that the posts held by the petitioner, though claimed to be temporary, the appointment do all the posts have been done, as per the then existing procedure and the services have been regularised. It is also worthwhile to extract views of the Apex Court in T.K.Kapur v. State of Haryana [1986 (Supp) SCC 584], at paragraphs 5 and 16, as follows:

"The unamended Rule 6(b) conferred a vested right on persons like the petitioners which could not be taken away by retrospective amendment of Rule 6(b). Any rule which affects the right of a person to be considered for promotion is a condition of service although mere chance of promotion may not be. The power to frame rules to regulate the conditions of service under the proviso to Article 309 carries with it the power to amend or alter the rules with a retrospective effect. An authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is, however, subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the tests of Articles 14 and 16(1)."

49. In the reported judgment, rules were already in existence for the post of Oversees Engineering Service, yet the Apex Court held that by retrospective amendment, it should not impair the vested right. But in the case on hand, the rules have been framed subsequently in respect of posts, permanent or temporary, in State Consumer Commission or District Consumer Fora and that Saving Clause has also been provided.

50. As regards violation of the principles of natural justice, the Division Bench judgment of this Court in P.Mani v. Director General, Central Reserve Police Force reported in 2010 (1) MLJ 747 is squarely applicable to the facts of this case. In the above reported decision, the appellant therein joined as Constable in CRPF on 1.6.1977 and after undergoing training, he was promoted as Sub-Inspector of Police on 20.12.2007, with effect from 19.11.2007. He completed his probation of one year, as contemplated under Rule 58 of the CRPF Rules. Suddenly, by telex message, dated 16.2.2009, his promotion was cancelled and he was reverted from the post of Sub Inspector of Police to Head Constable on the ground that he had not completed two years of mandatory field service in the Duty battalion. While testing the orders of cancellation of promotion, the Division Bench, by placing reliance on AIR 2009 SC 2375 [Uma Nath Pandey v. State of U.P.,] has set aside the impugned order of reversion. It is worthwhile to extract Paragaphs 15 and 19 made in Uma Nath Pandey's case (cited supra), reproduced in Mani's case (cited supra), "15. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

19. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice."

51. In M.Sasikumar v. State of Tamil Nadu reported in 2009 (5) MLJ 167, the petitioner therein was appointed to the post of Office Assistant on compassionate appointment. His services were regularised in the said post. Thereafter, he has passed SSLC examination and requested for posting as Draftsman. By an order, dated 01.06.1994, the petitioner was appointed as Draftsman on temporary basis. As per the rules in force, any person appointed as Draftsman would be given three months in-service training. He had undergone training. Thereafter, in order to regularise him in the post of Draftsman, the concurrence of the State Government was sought for. The Government, after examining the proposal, by an order, dated 7.6.96, held that the petitioner did not possess the minimum general educational qualification for the post of draftsman, at the time of his initial appointment and therefore, considering the Government Order In G.O.Ms.No.1499, Labour and Employment Department, dated 3.8.89, he was reverted. Following the judgment of the Supreme Court in Union of India and Anr. v. Narendra Singh reported in (2008)2 SCC 750, a learned Single Judge set aside the order of reversion, insofar as, it has been passed without notice to the petitioner therein and granted liberty to respondents therein to pass appropriate orders, after due notice.

52. In Union of India and Anr. v. Narendra Singh reported in (2008)2 SCC 750, dealing with a case of reversion, at Paragraphs 32 to 34 of the said judgment, the Supreme Court held as follows:

32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.

33. As observed by us, statutory rules provide for passing of departmental examination and the authorities were right in not relaxing the said condition and no fault can be found with the authorities in insisting for the requirement of law. In the circumstances, the action of the authorities of correcting the mistake cannot be faulted.

34. True it is that before such an action is taken and a person is actually reverted, he must be given an opportunity to show cause why the proposed action should not be taken. He may be able to satisfy the authorities that there was no such mistake. But even otherwise, principles of natural justice and fair play require giving of such opportunity to him. But as observed earlier, in the instant case, in accordance with Rule 31-A of the Fundamental Rules, notice was issued to the respondent employee, explanation was sought and thereafter the order was passed. The said order, in our considered view, was just, proper and in consonance with law and it ought not to have been set aside by the Tribunal or by the High Court. To that extent, therefore, the orders impugned in this appeal deserve to be set aside."

53. In Chandraprakash Madhavrao Dadwa v. Union of India reported in 1998 (8) SCC 154, pursuant to the introduction of certain additional qualifications and job requirements, the appellants therein, who were holding the posts of Date Processing Assistants and Data Processing Supervisors respectively and already confirmed in the said posts, were sought to be reverted to Data Entry Operators and Data Processing Assistants, on account of change of eligibility conditions, including educational qualification. The appellants therein did not satisfy the educational qualifications for the abovesaid posts. Since the rules were introduced subsequently, the same cannot be made applicable to the existing candidates, the Apex Court, at sub-paragraph 10 of paragraph 50, while setting aside the orders of reversion, held that, "the change in the essential qualification made in 1990 or 1998 or the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment qualifications could not be altered or applied with retrospective effect so as to deprive the recruiters of their right to the posts to which they were recruited nor could it affect their confirmations."

54. In yet another case in Gajanan L.Pernekar v. State of Goa reported in 1999 (8) SCC 378, the appellant therein was appointed as the Headmaster in a private school, which was taken over by the Government, alongwith the staff working in the said school w.e.f. 1.4.1974. After taking over of the school, the Government appointed the appellant as Headmaster of Government Middle School at Saligao, on 13th June, 1974 in the pay scale of Rs.300-25-450-EB-25-600. When he made representation against his appointment to the Middle School, by order, dated 16.2.1994, he was absorbed as Headmaster of Government High School with retrospective effect from the date of taking over of the School, i.e. 1.4.1974. He filed Writ Petition No.261/1996 in the High Court of Bombay at Goa, for grant of consequential benefits as Headmaster of High School and that the said Writ petition was dismissed by the High Court, taking note of the appellant's observation of the petitioner therein as consent. Consequent to the dismissal order made by the High Court, the Government withdrew the order, by which, the appellant was earlier treated as High School Headmaster. Setting aside the order, withdrawing its appointment as High School Headmaster, the Supreme Court observed that it is the duty of the Government to give an opportunity of show cause, otherwise, it would adversely affect the person, against whom, an administrative order has been passed in his favour and hence, on the abovesaid grounds, the impugned order therein was set aside.

55. Thus, from the above judgment, it is evident that no administrative order passed in favour of an individual, can be re-called without providing an opportunity of show cause. In the case on hand, violation of natural justice is per se apparent, as the petitioner has been reduced to three positions, even without a show cause notice on the sole ground that had not completed seven years of service in the lower categories of Office Assistant and Process Server. Even as per the counter affidavit, the petitioner had completed six year and six months in the abovesaid position. In any event, not satisfy the criteria, in the lower posts, cannot be raised at this juncture, when the performance of the petitioner in the promotional posts were found to be satisfactory, and that his probation has been satisfactory in all the promotional posts. The petitioner has also satisfied the mandatory educational qualification in each post.

56. Though the learned Government Advocate has pressed into service the judgment of the W.A (MD) No 551 of 2010, dated 10.12.2010 and contended that a similar case had already been dismissed by this Court, with due respect, this Court is of the view that the appellants herein have not placed the correct position that the permanent and temporary posts stated in SRO-B.71/01 in the State Consumer Redressal Disputes Forum and District Consumer Redressal Disputes Fora, specified in Tabular Column thereunder and extracted hereunder are covered and protected in G.O.Ms.No.123, Co-operation, Food and Consumer Protection (H2) Department, dated 13.03.2003.

T A B L E Permanent posts Temporary posts

1. Head Clerk Head Clerk in the District Forum, Chennai

2. Assistant Assistant including Head Clerk in the grade of Assistant and Record Clerk in the grade of Assistant 3 Junior Assistant Junior Assistant

4. Steno-Typist Steno-Typist

5. Typist Typist

6. Examiner Examiner

7. Senior Baliff Amin

8. Copyist Copyist

57. Perusal of the table would clearly show that even assuming that the petitioner was holding a temporary post, which is not the case of the respondents, in their counter affidavit, as they have not given the data, as to how many permanent and temporary posts were created, and as to whether the petitioner was promoted against the temporary posts, etc., yet it is evident from the table, it covers both the temporary as well as permanent posts and that the protection is extended to all. The regularisation of the petitioner's services, do not relate any posts, such as, casual, adhoc or daily rated. They were all sanctioned posts, even as per the respondent.

58. In the light of the above discussion and as violation of principles of natural justice is per se apparent and following the Division Bench judgment in P.Mani v. Director General, Central Reserve Police Force reported in 2010 (1) MLJ 747, this Court is of the view that the vested right accrued to the petitioner, cannot be divested without following the principles of natural justice. Having issued orders of regularisation at each and every level, now after so many years, it cannot be said that promotions granted were purely temporary and that therefore, no notice is required. The decisions of the Supreme Court in Meera Massey's case, Santhosh Kumar's case and T.K.Kapur's case (cited supra), are squarely applicable to the case on hand. This Court is unable to accept the said submissions.

59. In the result, the Writ Petition is allowed, setting aside the impugned order, dated 30.06.2010. Consequently, there shall be a direction to restore the petitioner to the post of Head Clerk. As the respondent has erroneously applied G.O.Ms.No.43 P & A Reforms (Per B) Department, dated 15.02.1994, his pay and other emoluments, have to be worked out, and disbursed accordingly. No costs. Consequently, connected Miscellaneous Petition are also closed.

27.02.2012 skm To The Registrar, State Consumer Disputes Redressal Commission, No.212, R.K.Mutt Road, Mylapore, Chennai-4.

S. MANIKUMAR, J.

Skm W.P.No.14483 of 2010 27.02.2012

Unlock Advanced Research with PRISMAI

Madras High Court