Madras High Court
Tmt. N. Meenakshi And Anr. vs The Secretary Legislative Assembly ... on 19 September, 1997
Equivalent citations: (1998)1MLJ506
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Both petitioners in the above writ petitions have identical grievance, hence the same may be disposed of by the following common order. First I shall refer the case of the petitioner in W.P. No. 17084 of 1993 as found in the affidavit filed by her. According to the petitioner, she is a holder of M.A. degree and B.G.L. decree, she was recruited by the Tamil Nadu Public Service Commission in the year 1976 as Junior Assistant, and she was fully qualified to be appointed as Junior Assistant now designated as Assistant She was allotted to the Legislative Coun-cil Secretariat by, the Service Commission. She was governed by the Tamil Nadu Legislative Council Secretariat Service Rules at the time of her appointment. She was promoted to the time of her appointment. She was promoted to the post of Assistant now designated as Assistant Section Officer on 22.4.1977 in the Legislative Council, Secretariat. The Tamil Nadu Legislative Council was abolished with effect from 31.11.1986 pursuant to the Tamil Nadu Legis-lative Council (Abolition) Act, 1986 (Central Act 40 of 1986). Consequent on the said abolition, the staff of the erstwhile Legislative Council Secretariat were absorbed in the Legislative Assembly Secretariat. On 31.10.1986 in S.O. Ms. No. 244, Legislative Assembly Secretariat, certain posts were created due to increase in work load in the Legislative Assembly Secretariat and also to attend to the additional work that may devolve on the Assembly Secretariat due to the abolition of the Legislative Council.
2. In S.O. Ms. No. 245, Assembly Secretariat dated 31.10.1986, Rule 6 read with Appendix II of the Tamil Nadu Legislative Assembly Secretariat Service Rules were relaxed in favour of the petitioner and also in favour of others who were working in the erst-while Legislative Council Secretariat, the petitioner's name is found as item 11 in the Annexure to the aforesaid S.O. Ms. No. 245, Legislative Assembly Secretariat, dated 31.10.1986. The petitioner joined duty as Assistant Section Officer in the Tamil Nadu Legislative Assembly Secretariat on 1.11.1986 pursuant to the above relaxation. Pursuant to the relaxation of Rule 6 read with Appendix II, the petitioner was appointed as Assistant Section Officer as mentioned in para 2 of S.O. Ms. No. 245, Legislative Assembly Secretariat dated 31.10.1986. Thus the petitioner became a regular member of the Tamil Nadu Legislative Assembly Secretariat with effect from 1.11.1986 and is governed by the Tamil Nadu Legislative Assembly Secretariat Service Rules. Even though para 3 of the S.O. Ms. 245, Legislative Assembly Secretariat, dated 31.10.1986 provided that necessary amendments to the Tamil Nadu Legislative Assembly Secretariat Service Rules and also ad hoc rules will be made, no such amendments or ad hoc rules were framed. Consequently the statutory provisions that govern the petitioner as Assistant Section Officer and Section Officer are only the Tamil Nadu Legislative Assembly Secretariat Service Rules. She was promoted and appointed as Section Officer temporarily on 17.5.1988. For want of vacancy, she was reverted as Assistant Section Officer for some time and thereafter she was reappointed again as Section Officer on 31.5.1989 and has been acting as Section Officer continuously since then.
3. It is further contended that the temporary service of the petitioner as Section Officer was regularised with effect from 17.5.1988 by order dated 8.8.1989 and the seniority of the petitioner among other Section Officers in 'B' wing is placed below one N. Mudigopathy, Section Officer. The said Mudigopathy is now Under Secretary in the Assembly Secretariat. It is further contended that under Rule 20 of the said Rules, seniority of a member of the service or class or category shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to the service, class or category. If any portion of the service, of such person does not count towards probation under Rule 1 his seniority shall be determined by the probation. By virtue of this specific provision in Rule 20, the petitioner's seniority as Section Officer has to be determined with reference to the date of her first regular appointment as Section Officer i.e., from 17.5.1988 F.N. Consequently, the respondents 2 to 10 who were appointed as Section Officers long after the petitioner was appointed as section Officer on 17.5.1988 are juniors to the petitioner in the category of Section Officer, Hence, it is contended that by operation of Rule 20 the petitioner is far senior to respondents 2 to 10. The petitioner is due for promotion to the higher post of Under Secretary as and vacancy arises in accordance with the Rules. However, the first respondent has passed the impugned S.O. Ms. No. 190, Assembly Secretariat, dated 16.9.1992 placing the petitioner below the respondent 10, who was appointed as Section Officer on 18.11.1991, while the petitioner was regularly appointed as Section Officer more than 3 years earlier, that is 17.5.1988. Aggrieved by the said order, the petitioner preferred an appeal on 24.9.1992 claiming her statutory seniority above the respondents 2 to 10. The 1st respondent in his letter No. 10012/93-5 TNLA (OPI), dated 20.7.1993 stated that the request of the petitioner cannot be accepted. It is however, admitted by the first respondent in the said letter than respondents 2 to 10 in the erstwhile 'A' wing are relatively junior to the petitioner. In such circumstances, he approached this Court by way of the present writ petition to quash S.O. Ms. No. 190, Legislative Assembly Secretariat, dated 16.9.1992 head with the letter of the first respondent to the petitioner in letter No. 10012/93-3 TNLAdated 20.7.1993.
4. The case of the petitioner in W.P. No. 17085 of 1993 is briefly stated hereunder: The petitioner is a holder of M.A. degree. She was recruited by the Tamil Nadu Public Service Commission in the year 1974 as Junior Assistant in the Treasuries and Accounts Department and subsequently transferred to Legislative Council Department on 1.12.1978 as Junior Assistant (now designated as Assistant). She was promoted to the post of Assistant now designated as Assistant Section Officer on 15.12.1978 in the Legislative coun-cil Secretariat. In her case also, Rule 6 read with Appendix II of the Tamil Nadu Legislative Assembly Secretariat Service Rules was relaxed. The petitioner's name is found as item 12 in the Annexure to the aforesaid S.O. Ms. 245, Legislative Assembly Secretariat dated 31.10.1986. She was promoted and appointed, as Section Officer temporarily on 27.6.1989 and then reverted.
Subsequently she was reappointed again as Section Officer on 12.7.1990 and has been acting as Section Officer continuously since then; The temporary services of the petitioner as Section Officer were regularised from 27.6.1989 and the seniority of the petitioner among other Section Officers in 'B' wing is placed below N. Meenakshi, Section Officer (petitioner in W.P. No. 17084 of 1993). It is also contended that the first respondent has passed the impugned S.O. Ms. 190, Legislative Assembly Secretariat, dated 16.9.1992 placing the petitioner below respondent No. 9 who was appointed as Section Officer on 18.11.1991 while the petitioner was appointed as Section Officer on 27.6.1989. Aggrieved by the said order, she also preferred an appeal on 24.9.1992. The first respondent in his letter No. 10012/93-5 TNLA (OPI), dated 20.7.1993 rejected her request How-ever, it is admitted by the first respondent in the above letter that respondents 2 to 9 in the erstwhile 'A' wing are relatively junior to the petitioner. In such circumstances, she has approached this Court to issue a writ of certiorarified mandamus to quash S.O. Ms. No. 190, Legislative Assembly Secretariat dated 16.9.1992 read with the letter of the 1st respondent to the petitioner dated 20.7.1993.
5. The first respondent has filed separate but identical counter affidavit. For the convenience, I shall re-fer the case of the 1st respondent in W.P. No. 17084 of 1993. It is contended that the officers and staff of the Legislative Assembly Secretariat are: being governed by the Tamil Nadu Legislative Assembly Secretariat Service Rules. Prior to the abolition of the Legislative Council, the officers and staff of the Leg-islative Council Secretariat were similarly governed by a separate set of rules called 'The Tamil Nadu Legislative Council Secretariat Service Rules'. Irrespective of whether any officer/staff member had previously worked in the Legislative Assembly Secre tariat/Legislative Council Secretariat, both the secretariat had been haying separate cadre strength, and the promotion seniority etc., of all the employees were being governed by the respective Service Rules. When a Government Department is wound up, normally the officers and staff rendered surplus have, to be retrenched from service. On the other hand, in the case of the officials of the Legislative Council Secretariat, Government took a humanitarian decision when the Legislative Council was abolished and the officers and staff rendered surplus consequent on the abolition were given employment mostly in the Legislative Assembly Secretariat. Only a few members of the staff had been appointed in the General Secretariat on transfer and some, who were transfers from other Ministerial Departments, were reverted back to their parent Departments. It is also contended that even before the abolition of the Legislative Council on 1.11.1986 a high level committee was formed to take a decision in this regard. The high level committee, which was very sympathetic towards the plight of the officers and staff of the Legislative Council Secretariat who would be rendered surplus conse-quent on the said abolition did not seem to have taken into consideration the heartburn if would cause to the officers and staff of the Legislative Assembly Secretariat when all the displaced personnel from the Leg-islative Council Secretariat were absorbed in the Leg-islative Assembly Secretariat. It is further contended that in order to solve the problems and reduce the hardship of 'B' wing personnel the case of every category of personnel was examined with care. After detailed examination, certain norms as indicated in para 5 of S.O. Ms. No. 190, Legislative Assembly Secretariat dated 16.9.1992, were devised or integrating the 'A' wing and 'B' wing personnel. The Petitioner became eligible for fixation of seniority applying Rule 20, taking into account the personnel belonging to 'A! wing and 'B' wing only with effect from 16.9.1992, by virtue of orders issued in S.O. Ms. No. 190/92. The formulae as said down in para 5 of the S.O. Ms. No. 190/92 were evolved after a very careful consideration of every individual category. There was actionally no bias against the 'B' wing personnel. It is also contended that for the purpose of integration, certain formulae keeping in mind the principles of natural justice were evolved and only according to the said formula, inter se seniority of the officers and staff of the. erstwhile Legislative Council Secretariat together with the officers and staff of the Legislative Assembly Secretariat was fixed. The decision to intergrate the 'B' wing staff with 'A' wing staff was a further development from the origi-nal policy decision of the Government. Even while taking these decisions. some from the 'A' wing and some from the 'B' wing were adversely affected. When Government takes a major policy decision of such a magnitude, it cannot be helped if a few people are adversely affected. The writ petition in devoid of merit and the same is liable to be dismissed.
6. Respondents 2 to 10 have also filed a common counter affidavit reiterating the defence taken by the first respondent, Hence, I am not ones again referring the same.
7. The averments as in W.P. No. 17084 of 1993 have been made in the counter affidavit filed by the respondents in W.P. No. 17085 of 1993.
8. In the light to the above pleadings, I have heard Mr. S. Vadivelu, learned Counsel for the petitioners, Mr. R. Viduthalai, learned Additional Government Pleader for first respondent in both the cases and Mr. S. Silambanan, learned Counsel for respondents 2 to 10 in both the cases.
9. Mr. S. Vadivelu, learned Counsel for the petitioners in both the W. Ps. submitted that after abolition of the Legislative Council Secretariat, on 1.11.1986 by a statute, the petition in W.P. No. 17084 of 1993 was absorbed as Assistant Section Officer in the Tamil Nadu Legislative Assembly Secretariat with effect from. 1.11.1986 by relaxation of Rule 6 read with Appendix II of the Tamil Nadu Legislative Assembly Secretariat Service Rules (hereinafter referred to as "the Rules"); hence the petitioner's absorption was statutory consequent on the abolition of the Tamil Nadu Legislative Council Secretariat. After absorption, the petitioner become a regular members of the Tamil Nadu Assembly Secretariat (hereinafter referred to a "Assembly Secretariat") with effect from 1.11.1986. the impugned S.O., which places the petitioner below the rank of respondents 2 to 10 is contrary to and is violative of mandatory provisions contained in Rule 20 of the Rules. He also submitted that the impugned S.O., which refers to 'A' wing and 'B' wing which placed the petitioner as Section Officer below respondents 2 to 10 who were appointed as Section Officers long after the petitioner is illegal and arbitrary. For the same reasons the impugned order relating to the other petitioner in W. R No. 17085 of 1993 is also liable to be quashed.
10. On the other hand, Mr. R. Viduthalai, learned Ad-ditional Government Pleader appearing for the first respondent, after taking me through the impugned government order submitted that it is reasonable. He also submitted that due to abolition of Legislative Council and by integration of the persons in the Legis-lative Council and those of Legislative Assembly the Government after taking a policy decision, passed the impugned S.O., on equitable basis. He further submitted that the comparison with respondents 2 to 10 is untenable, since the petitioner who were in the service of the Legislative Council are class by themselves. Mr. S. Silambanan, learned Counsel appearing for respondents 2 to 10 in W.P. No. 17084 of 1993 and for respondents 2 to 9 in W.P. No. 17085 of 1993 after adopting the argument of the learned Additional Government Pleader, submitted that after taking into consideration the grievance of the petitioners as well as the personnel working in the Assembly Secretariat passed the impugned order which protects the inter-ests of all concerned; hence he prayed for dismissal of both the writ petitions. I have carefully considered the rival submissions.
11. There is no dispute that both the petitioners were recruited by the Tamil Nadu Public Service Commission and were appointed and allotted to the Legislative Council Secretariat in the year 1976 and 1974 respectively. Likewise, the petitioners were promoted to the post of Assistant now designated as Assistant Section Officer on 22.4.1977 and 15.12.1978 respectively in the Legislative Council Secretariat. The Tamil Nadu Legislative Council was abolished with effect from 1.11.1986 pursuant to the Tamil Nadu Legislative Council Abolition Act, 1986 (Central Act 40 of 1986). Consequent on the abolition of the Leg-islative Council, the staff members of erstwhile Tamil Nadu Legislative Council Secretariat were absorbed in the Tamil Nadu Legislative Assembly Secretariat. It is been that on 31.10.1986 in S.O. Ms. No. 244, Leg-islative Assembly Secretariat, certain posts were created due to increase in work load in the Legislative Assembly Secretariat and to attend to the additional work that may devolve on the Assembly Secretariat due to the abolition of the Legislative Council. There is no dispute that the cases of both the petitioners were considered and in S.O. Ms. No. 245, Legislative Assembly Secretariat, dated 31.10.1986, Rule 6 read with Appendix II of the Rules were relaxed in favour of them and also in favour of others, who were working in the erstwhile Legislative Council Secretariat.
12. The relevant and operative portion of S.O. Ms. No. 245, Legislative Assembly Secretariat, dated 31.10.1986 reads as follows:
In exercise of the powers conferred under Rule 47 of the Tamil Nadu Legislative Assembly Secretariat Service Rules, the Governor of Tamil Nadu in consultation with the Hon'ble Speaker, relaxes Rule 6 read with Appendix II of the Tamil Nadu Legislative Assembly Secretariat Service Rules in favour of those listed in the annexure to this order and accordingly the officers and staff specified in column I of the Annexure to this order are appointed in the posts in column II of the said Annexure with effect from 1.11.1986 fore-noon.
13. In pursuance of the above S.O., the petitioner's name were mentioned as items 11 and 12 respectively in the Annexure to the aforesaid S.O., Pursuant to this, the petitioners were appointed as Assistant Section Officers in the Legislative Assembly Secretariat. In such a circumstance, it is the definite case of the petitioners that the petitioners herein became regular members of the Tamil Nadu Legislative Assembly Secretariat with effect from 1.11.1986 and are governed by the Tamil Nadu Legislative Assembly Secretariat Service Rules, It is brought to my notice that even though para 3 of the S.O., provided that necessary amendment to Tamil Nadu Legislative Assembly Secretariat Service Rules and also ad hoc rules will be made no such amendment or ad hoc rules were framed.
14. As per proceedings of the first respondent dated 8.8.1989, the temporary service of the petitioner in W.P. No. 17084 of 1993 as Section Officer were regularised from 17.5.1989 and the seniority of the petitioner among other Section Officer in 'B' wing is placed below one Thiru. N. Mudigopathy, Section Officer. Likewise, by proceedings dated 1.4.1992, the temporary services of the petitioner in W.P. No. 17085 of 1993 as Section Officer were regularised from 27.6.1989 and her seniority among other Section Officer in 'B' wing is placed below Tmt. N. Meenakshi, Section Officer, viz., petitioner in W.P. No. 17084 of 1993.
15. In order to appreciate the case of the petitioner, I shall refer Rule 20 of the Rules which is relevant for the present case. Rule 20 read as follows:
20. Seniority:- (a)the seniority of a member of the service or class or category shall unless he had been reduced to a lower rank as punishment be determined by the date of his first appointment to the service, class or category, If any portion of the service of such person does not count towards probation under Rule 17, the seniority shall be determined by the date of commencement of the service which counts towards probation. (b) Subject to these rules, the appointing authority may, at the time of passing an order appointing two or more person simultaneously to any category of the service, fix the order of seniority among them.
As per the said rule, seniority of a member of service, class or category shall, unless he/she has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to the service, class or category. Relying on the said rule, the learned Counsel for the petitioner submitted that in view of the fact that relaxation of Rule 6 read with Appendix II had already been made in the petitioners' case, their seniority as Section Officers has to be determined with reference to the date of their first regular appointment as Section Officers from 17.5.1988 and 27.6.1989 respectively. If that is so, the respondents 2 to 10 in the earlier case and respondents 2 to 9 in the later case, who were appointed as Section Officer long after the petitioners are junior to the petitioners in the category of Section Officers.
16. In order to highlight the case it is better to see the service particulars of the petitioner and respondents 2 to 10 in W.P. No. 17084 of 1993, which are detailed hereunder:
__________________________________________________________________________________________________ Name Date of entry into Date of regularisation Date of regularisation service as Junior in the category of Asst. in the category of Asst./now Asst. Section Officer. Section Officer.
___________________________________________________________________________________________________ (1) (2) (3) (4)
1. Tmt. N. Meenakshi 18.6.1976 22.4.1977 17.5.1988
2. Thiru K.U.K. Subramanian 11.6.1977 13.11.1978 16.2.1989
3. Thiru T. Govindarajan 1.12.1977 13.11.1978 16.12.1989
4. Thiru A.M.P. Jamaluddin 1.12.1977 13.11.1978 20.12.1989
5. Thiru S. Balakrishnan 5.12.1977 13.11.1978 17.12.1990
6. Tmt. R. Amirthavalli 10.4.1978 13.7.1979 11.1.1991
7. Tmt. K. Indira 8.8.1974 9.5.1980 1.3.1991
8. Thiru G. Devarajan 13.7.1979 5.11.1980 1.4.1991
9. Tmt. B. Kasthuri 11.6.1977 10.11.1980 1.11.1991
10. TmtS.H. Saleem Unnisa 5.12.1977 11.5.1981 18.11.1991.
________________________________________________________________________________________________ Likewise the service particular of the petitioner and respondent in W. P No. 17085 of 1993 are follows:
________________________________________________________________________________________________ ________________________________________________________________________________________________ Name Date of entry into Date of regularisation Date of regularisation service as Junior in the category of Asst. in the category of Asst./now Asst. Section Officer. Section Officer.
(1) (2) (3) (4) ______________________________________________________________________________________________
1. B. Sarawathy 30.12.1974 15.12.1978 27.6.1989 in the Treasuries and Accounts Dept. and 1.12.1978 in the Legislative Council Dept.
2. Thiru T. Govindarajan 1.12.1977 13.11.1978 16.12.1989
3. Thiru A.M.P. Jamaludeen 1.12.1977 13.11.1978 20.12.1989
4. Thiru S. Balakrishnan 5.12.1977 134.11.978 17.12.1990
5. Tmt. R. Amirthavalli 10.4.1978 13.11.1978 11.1.1991
6. Tmt. K. Indira 8.8.1974 9.5.1980 1.3.1991
7. Thiru G. Devrajan1 3.7.1979 5.11.1980 1.4.1981
8. Tmt. R. Knsthuri 11.6.1977 10.11.1980 1.11.1981
9. Tmt. S.H. Saleem Unnisa 5.12.1977 11.5.1981 18.11.1991 _____________________________________________________________________________________________ I have already observed that as per Rule 20 of the Rules, seniority of a member of a service has to be determined by the date of his first appointment to the service. If Rule 20 is applied to the petitioners' case, certainly the petitioners are far senior to the contesting respondents as Section Officers.
17. In the light of the above factual position. I shall consider the impugned order passed on 16.9.1992 placing the petitioners below the contesting respondents. By virtue of the impugned order, the petitioner in W.P. No. 17084 of 1993 even though was regularly appointed as Section Officer more than 3 years ear-lier i.e., on 17.5.1988 she has been placed below the respondent No. 10 who was appointed as Section Officer only on 18.11.1991 Likewise, the petitioner in the second case, namely, W.P. No. 17085 of 1993, even though she was appointed as Section Officer on 27.6.1989 was placed below the 9th respondent who was appointed as Section Officer only on 18.11.1991.
18. In S.O. Ms. No. 244, Legislative Assembly Secretariat, dated 31.10.1986, the Government have created certain posts of Additional Officers and staff due to increase in work load in the Assembly Secretariat. It is also decided to fill the above posts from among the officers and staff of the Legislative Assembly Secretariat on the abolition of the Legislative Coun-cil. It is also mentioned that by virtue of Rule 47 of the Rules, the Governor of Tamil Nadu in consultation with the Hon'ble Speaker, relaxed Rule 6 read with Appendix II of the Rules in favour of those listed in the Annexure to the said order and accordingly the officers and staff specified in column I of the Annexure to that order were appointed in the posts in column II of the said Annexure with effect from 1.11.1986. As rightly contended by Mr. Vadivelu, learned Counsel for the petitioners, once the Government relaxed Rule 6 read with Annexure II of the Rules and appointed the petitioners in the post in column I of the said annexure with effect from 1.11.1986, they became the regular member of the Legislative Assembly Secretariat Service. No doubt, Clause 3 of the said S.O., shows that the person drawn from the Legislative Council will constitute a sepa-rate unit in the Legislative Assembly Secretariat for the purpose of seniority. promotion etc. Since the petitioners are very much relying the said clauses in the S.O., the same is reproduced hereunder:
Tamil Nadu Legislature.
Abstract.
Tamil Nadu Legislative Assembly Secretariat--Additional Officers and Staff Sanctioned--Appointments -
Orders--Issued.
Legislative Assembly Secretariat.
S.O. Ms. No. 245. Dated: 31.10.1986, Aispasi 15, Akshaya, Thiruvalluvar Andu 2017, Read:
ORDER:
In the S.O. read above orders have been issued for the creation of certain posts of additional officers and other staff to attend to increase in work load in the Secretariat. It has been decided to fill the above posts from among the officers and staff of the Legislative Council Secretariat consequent on the abolition of the Legislative Council.
2. In exercise of the powers conferred under Rule 47 of the Tamil Nadu Legislative Assembly Secretariat Service Rules, the Governor of Tamil Nadu in consultation with the Hon. Speaker, relaxes Rule 6 read with Appendix II of the Tamil Nadu Legislative Assembly Secretariat Service Rules in favour of those listed in the Annexure to this order and accordingly the officers and staff specified in column I of the Annexure to this order are appointed in the posts in column II of the said Annexure with effect from 1.11.1986 forenoon.
3. The persons so appointed from the Legislative Council Secretariat consequent on the abolition of the legislative council will constitute to a separate unit in the Legislative Assembly Secretariat for purpose of seniority, promotion etc. Necessary amendments to the Tamil Nadu Legislative Assembly Secretariat Services Rules in this regard and also ad hoc rules for the posts for which such rules are necessary will be issued separately, (By Order of the Governer) C.K. Ramamswamy, Commissioner and Secreatary. "
I have already observed that Rule 6 speaks about appointment to the service. It says that appointment to the service in different classes and categories thereof shall be made in accordance with the methods and in the order of preference specified against each category in Appendix II. Since consequent on the abolition of the Legislative Council, the petitioners were transferred to Legislative Assembly Secretariat. Considering the claim made by the petitioners and others, the Government thought that their service conditions should not be affected; hence with the approval of the Governor Rule 6 read with Appendix II has been relaxed in favour of the petitioners. Once the required condition is relaxed and the petitioners were permitted to serve in the Legislative Assembly Secretariat, undoubtedly they are entitled to rely on Rule 20. As per Rule 20, the seniority of a member of the service be determined by the date of his first appointment to the service. I have already mentioned that the petitioners were absorbed in the Legislative Assembly Secretariat and became regular member of the Assembly Secretariat with effect from 1.11.1986. There is no dispute that right from the day of such absorption or integration, the petitioners were governed only by the Tamil Nadu Leg-islative Assembly Service Rules. In such circumstances, their seniority in the category of section Officer should be determined with reference to the date of their regular appointment to the post of Section Officer. In the light of what is stated above placing the petitioners below the contesting respondents both the cases is certainly on tray to rule of seniority ad-umbrated in Rule 20 of the Service Rules. As rightly contended by the learned Counsel for the petitioners, the action of the respondents is rightly unreasonable and also violative of Article 14 of the Constitution of India.
19. The contention that if the claim of the petitioners are accepted, the persons working in 'A' wing would have demoralised cannot be countenanced. I have already extracted the order S.O. No. 245, Legislative Assembly Secretariat, dated 31.10.1986, wherein the Government of Tamil Nadu in consultation with the Hon'ble Speaker relaxed Rule 6 read with Annexure II in favour of the petitioners as well as some others and all of them transferred to Legislative Assembly Secretariat. After such relaxation they are entitled thereby on Rule 20. If that is so, they should he treated on per with the service personnel in 'A' wing. Having given the relaxation as stated above, relaxing Rule 6 read with Annexure II the contra statement made by the Legislative Assembly Secretariat in para 16 of the counter-affidavit cannot be accepted. In para 16 of the counter-affidavit filed in W.P. No. 170984 of 93 it is mentioned thus:
... On the other hand, the said rule had been relaxed in her favour so as to appoint her and keep her in a separate unit for the purpose of promotion, seniority etc. Apparently, there was an ulterior motive. The motive, it appears, was not merely giving employment for a discharged person but also accelerated promotions. Had this ul-terior motive been not present, she would have been appointed on transfer and kept as the junior most Assistant Section Officer in the Legislative Assembly Secretariat Service as on 1.1.1986.
Having given relaxation of the relevant rule in the name of the Governor with the approval of the Hon'ble Speaker, it is not possible for the deponent of the counter to explain in a different way after several years. Likewise, I am unable to accept the argument that Rule 20 was applicable in fixing their inter se seniority in the category of Section Officer among these appointed from the Legislative Council Secretariat and kept as a separate unit.
20. The particulars furnished by the petitioners clearly show, that after abolition of the Legislative Council, the Government have considered their request along with the others and relaxed the relevant rule and regularised them in the Legislative Assembly Secretariat. Both of them were promoted as section Officers the Legislative Assembly Secretariat in the year 1988. However, in the impugned SO., issued by the Legislative Assembly Secretariat laying down different guidelines for the purpose of inter se seniority among the persons appointed from the Legislative Council. Secretariat in the Legislative Assembly Secretariat. It is also relevant that when both the petitioners made a representation to the Secretary, re-questing the maintain their seniority as Section Officers, while rejecting their requests in his letter dated 20.7.1993 the Secretary, Legislative Assembly Secretariat particularly in the last paragraph has stated that, the case of Tmt. Meenakshi and Tmt. Saraswathi who were promoted as Section Officers in 1988 could be examined on merits at the appropriate time. The loss of their promotional opportunities could be borne in mind while their relative juniors in the erstwhile 'A' wing are considered for promotion.
As a matter of fact, the petitioners (W.P. No. 17084 of 1993) increment was sanctioned as Assistant Section Officer on 1.4.1987 taking into account the earlier service in the Legislative Council Department. selection grade was given as Assistant Section Officer with effect from 10.6.1986 taking into account the earlier service in the Legislative Council Department.
21. I have already observed that Rule 6 read with Appendix II relates to appointment, which includes Assistant Section Officer, Rule 6 has been relaxed in favour of the petitioner by the governor by virtue of powers conferred under Rule 47 of the rules. Rule 20 provides that all the seniority of the members of the service of class or category shall be determined by the date of his first appointment to the service, class or category. In Janardhana v. Union of India (1983) 2 S.L.R. 113, the Apex Court has held that promotion becomes valid if the rules are relaxed as they would become the member of the service. The following observation and conclusion of their Lordship in the said judgment is very relevant for our case:
... The promotees being validly promoted as the quota rule was relaxed, would become the members of the service. Whether the vacancies were in the permanent strength or in the temporary cadre is irrelevant because hone of them is re-verted on the ground that no more vacancy is available. Appellant and those similarly situated were recruited by promotion as provided in Rule 3(ii) and it must be conceded that the recruitment by promotion during these years was in excess of the quota as provided in Rule 4, the recruitment of service by relaxing the rules including the quota rule, the promotion in excess of quota would be valid.
22. The power of relaxation given to the Governor is wide to deal with the case of any person is such man-ner as may appear to him to be just and equitable. The above principal has been enunciated by the Apex Court in P.V.T. Philip v. P. Narasimba Reddy, . Their Lordships of the Supreme Court in the above case have observed thus:
... But mere important in this connection are the provisions of Rule 47 of the rules which give wide powers to the Governor to deal with the case of any person in such manner as may appear to him to be just and equitable.
There is no dispute that by S.O. Ms. No. 245, Legislative Assembly Secretariat, dated 31.10.1986 as per Rule 47, the Governor of Tamil Nadu in consultation with the Hon'ble Speaker granted relaxation of Rule 6 read with Appendix II of the Service Rules in favour of these listed in the Annexure to the said order and were appointed them in the post in column 1. In such circumstances, as observed by the Supreme Court, the order referred above cannot be treated lightly.
23. In R.M. Ramual v. State of H. P (1989) 1 S.L.R. 53, their Lordships of the Supreme Court have ob-served thus:
... One of the factors that should have been taken into consideration for the purpose of determination of relative seniority, as mentioned in the said letter of the Joint Secretary, is length of continu-ous service whether temporary or permanent in the equivalent post, excluding periods for which on appointment is held in a purely stopgap of for-tuitous arrangement. "....
The final seniority list, as has been already ob-served, is an anomalous one and does not depict the relative seniority among officers after integration in accordance with the directions of the Central Government.
24. In Writ Petitions Nos. 5513 to 5519 of 1986 etc., and Writ Appeal Nos. 721 of 1985 and 44 of 1986, the Division bench consisting of M.N. Chandurkar, the Hon'ble Chief Justice and Srinivasan, J., (as he then was) have observed thus:
It is well-known that the minority has to be fixed only on the basis of the date of entry into the par-ticular cadre.
25. In Om Prakash Sharma v. Union of India , it is observed that in the case of amalgamation of different units of department, the subsequent repatriation and reamalgamation with earlier units, the earlier seniority has to be maintained.
Their Lordships also observed thus:
... When they were repatriated and reamalga-mated with original two offices and brought back on the common seniority list; they mist find their original place qua the appellants.
26. In the case of Kerala State Electricity Board v. N. Sukesen and Ors. , their Lordships of the Supreme Court have observed as follows:
... The principle of inter se seniority in the order of 1985 has basically sought to do so the same by requires the inter se seniority to be determined on the basis of the length of service in the cadre category at the time of integration and not by taking note of promotions earned in the Secretariat Service.
The said decision makes the position clear that inter se seniority has to be determined on the pass of Length of service in the cadre/category at the time of integration.
27. In a text book by name "service under the State. The author namely, Justice M. Rama Jois in a similar situation has made the following observation;
... The true position in such a case is the service under the erstwhile district board becomes united with the services under the government and such an absorption excluded the concept of termination of previous service and the commencement of service in the now Department. (vide services under the State Page 362).
28. In the light of the above legal position as well as the order of relaxation, relaxing Rule 6 read with Appendix II by the Governor in consultation with the Speaker by exercising power under Rule 47 of the Rules and in the light of Rule 20 of the Rules, I am of the view that the impugned order and the connected letter of the first respondent in both the writ petitions in so far as the petitioners are concerned cannot be sustained and accordingly the same are quashed in both the writ petitions. In view of setting a side the impugned orders there shall be a direction to the first respondent to treat the petitioner in W.P. No. 17081 of 1993 as senior to respondents 2 to 10 in the category of Section Officer with consequential right to promotion to the higher post. Likewise, there shall be a similar direction to the first respondent to treat the petitioner in W.P. No. 17085 of 1993 as senior to the respondents 2 to 9 herein in the category of Section Officer with consequential right to promotion to the higher post. Net result, both the writ petitions are allowed in so far as the petitioners are concerned. However, there will be no order as to costs.