Madras High Court
Y. Mohamed And Ors. vs The State Of Tamil Nadu And Ors. on 11 July, 1990
Equivalent citations: (1991)83MLJ1
JUDGMENT P.S. Mishra, J.
1. These appeals have been preferred against a common judgment in W.P. Nos. 8381 of 1985 and 9480 of 1986 by the writ petitioners. The petitioners are presently working as Junior Assistants in the office of the Government Pleader, High Court, Madras. They belong to the Tamil Nadu Judicial Ministerial Service. The rules framed under the Proviso to Article 309 of the Constitution of India, which were brought into force on and from the 1st January, 1955 and made applicable to the holders of all posts, whether temporary or permanent, in the service appointed thereto, before on or after the 1st January, 1955, except to the extent otherwise expressly provided by or under any law for the time being in force or in respect of any member of the service by a contract or agreement subsisting, between such member and the State Government, define a "member of the Service" to mean a person who has been appointed to the service and who had not retired or resigned, been removed or dismissed, been substantively transferred or reduced to another service or been discharged otherwise than for want of a vacancy, whether a probationer, an approved probationer or a full member of the service. These comprehensive rules provided for direct recruitment, promotion of any member of any class, category or grade of the service to a higher class, category or grade of the service and other conditions of service including the definition of a 'cadre' to mean the permanent cadre of each class, category and grade as determined by the State Government and its constitution consisting of the classes and categories of officers working in the City Civil Courts and offices of the Administrator General and Official Trustee, Tamil Nadu, Advocate General, Tamil Nadu Government Pleader, Madras, Public Prosecutor, Madras and Editor, Indian Law Reports, Madras Series, Madras. It is stated that to meet the increased workload, some proposals were made to increase the strength of the Law Officers and accordingly a decision was taken to provide additional staff in various categories to the offices of the different Law Officers. It is however, found that the State Government sanctioned 2 posts of Superintendents, 3 posts of Assistants, 6 posts of Junior Assistants, 4 posts of steno-typists, 4 posts of typists, 2 posts of record clerks and 4 posts of office Assistants (formerly designated as Basic servants) for a periods of one year from the date of employment of the posts in the office of the Government Pleader, High Court, Madras (vide G.O.Ms. No. 2092, Public (Establishment) Department, dated 15.12.1984). This order issued under the signature of the Chief Secretary to Government said:
...The appointment to these posts will be made by Government Law Department.
Soon thereafter, an order was issued vide Office proceedings No. 83/Law/85 3.7.1985 appointing. Two Assistant Section Officers of the Government Law Department as Superintendents in the Office of the Government Pleader, High Court. Petitioners felt that their right to be considered for appointment in the newly sanctioned posts stood infringed and accordingly filed W.P. No. 8381 of 1985 before this Court. While the said writ petition was pending before this court, a notification was issued in G.O.Ms. No. 18, Law Department, dated 22.1.1986 purportedly in exercise of the powers under the Proviso to Article 309 of the Constitution of India, introducing certain rules with effect from 3.7.1985 saying:
The General and the Special Rules applicable to the holders of the Permanent posts of Record Clerk in category I in Class XXII of the Tamil Nadu General Subordinate Service shall apply to the holder of the temporary post of Record Clerk sanctioned in G.O.Ms. No. 2092, Public, dated 15.12.1984 in the office of the Government Pleader, High Court, Madras, subject to the modification specified in the following Rules.
2. Constitution: The post shall constitute a distinct category in the said class of the said service.
3. Appointing Authority: The appointing authority for the post shall be the Commissioner and Secretary to Government in the Law Department, Madras-9.
Followed by G.O.Ms. No. 19, Law Department, dated 22-1-1986 once again in the purported exercise of the power under the Proviso to Article 309 of the Constitution of India, bringing into effect a set of rules on the 3rd July, 1986, these rules said:
The General and the Special Rules applicable to the holders of the permanent post of Office Assistant in category of Class III in the Tamil Nadu Basic Service shall apply to the holders of the temporary posts Office Assistant sanctioned in G.O.Ms. No. 2092, Public, dated 15.12.1984 in the office of the Government Pleader, High Court, Madras, subject to the modifications specified in the following rules;-
2. Constitution: The post shall constitute a distinct category to the said class of the said service.
3. Appointing Authority: The appointing authority for the post shall be the Commissioner and Secretary to Government Law Department, Madras-9.
Similarly, two more G.Os., vide G.O.Ms. No. 22, Law (OP) Department, dated 22.1.1986 and G.O.Ms. No. 23, Law Department, dated 24.1.1986 issued contained rules inter alia applicable to the temporary posts of Superintendent in the office of the Government Pleader, High Court, created vide G.O.Ms. No. 2092, Public, dated 15.12.1984 and that of the Assistants, Junior Assistants, Typists, Steno-typists in the office of the Government Pleader, High Court, Madras, created vide G.O.Ms. No. 2002, Public, dated 15.12.1984, naming the appointing authority and the service to which the posts were deemed to have been created. It appears that the two incumbents in the post of Superintendent in the office of the Government Pleader completed the tenure of one year and it was felt that a further sanction for the continuance of the posts was necessary. Accordingly, on 24.6.1986, G.O.Ms. No. 1243, Public (Establishment) I Department was issued to continue the posts of Superintendent for a further period of one year from 4.7.1986. When the petitioners found these Rules destructive of their right to be considered for appointment in the post of Assistants, Superintendents, etc., they filed W.P. No. 9480 of 1986 alleging that these Government orders are constitutional, illegal and violative of Articles 14 and 16(1) of the Constitution.
2. Nainar Sundaram, J., dismissed the writ petitions taking the view that the power under the Proviso to Article 309 of the Constitution of India, was not restricted to prospective rule making only and that even though two sets of personnel of the same category having different appointing authorities governed by different sets of rules were going to exist in the office of the Government Pleader, it could not be said that Articles 14 and 16 of the Constitution were violated as the Government's power to create temporary posts and to formulate the rules to govern them could not be disputed and only because certain promotional prospects of the petitioners were likely to be affected, it could not be said that any constitutional right was in jeopardy. These appeals have thus come up before us for hearing.
3. Learned Counsel for the petitioner-appellants has pointed out that the Government's sanction to the posts mentioned in G.O.Ms. No. 2092, Public (Establishment) Department, dated 15.12.1984 mentions such posts only which are were in existence in the office of the Government Pleader, High Court from before and contended that addition of my temporary post in a service cannot said to be a creation of a post in a new service or ex-cadre. Realising that without a cover of a statute it would not be possible to keep such newly created posts separate from the Tamil Nadu Judicial Ministerial Service, notifications in the purported exercise of the power under the Proviso to Article 309 of the Constitution of India were/have been issued.
4. In B.S. Yadav v. Stale of Haryana , Chandrachud, C.J. speaking for the Supreme Court said:
...Since the Governor exercises the legislative power under the Proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But that date from which the rules are made to operate must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case....
5. Yet, in another judgment reported in K.S. Vora v. State of Gujarat , the Supreme Court pointed out:
...Two aspects have to be borne in mind while considering the challenge of the appellants to this situation. It was a historical necessity and the peculiar situation that arose out of Government's decision to create a common cadre with four grades in the entire Secretariat. We would like to point out with appropriate emphasis that there was no challenge to creation of the common cadre and certainly Government was competent to do so. The second aspect to be borne in mind is that rules of seniority are a matter for the employer to frame and even though prospects of promotion in future were likely to be prejudiced, by introduction of a new set of rules to regulate seniority, if the rules were made bona fide and to meet exigencies of the service, no entertain able grievance could be made. If these are the tests to apply, we do not think the appellants have indeed any grievance to make....
Dealing with a case of a set of statutory rules framed under the Proviso to Article 309 of the Constitution of India, with respect to the Bihar School Education Service, a Bench of the Patna High Court in Bhagwat Prasad v. State of Bihar A.I.R. 1989 Pat. 117, said:
We have referred to the judgment, of the Supreme Court in K.S. Vore case , only to illustrate that the courts have at no time ignored the interest of the employees and questioned the authority of the, state to frame rules in terms of the Proviso to Article 309 of the Constitution of India, but the courts have always taken notice of the facts that those who stood together and fell in line to proceed further have to be provided all opportunities in respect of their avenues of promotion alike without breaking that order, so that one who ranks higher in the grade may not go down in due course of service. It is in this context that we have no hesitation in holding that the rules in the notification dated 18.li.1986 are ultra vires Articles l6(1) and 14 of the Constitution.
Proceeding further on the allegation of mala fides, it is said:
We do not propose to predicate into what is alleged to be the mala fide of the respondent State inasmuch as after the judgment of this Court in C.W.J.C. No. 2956 of 1975, the Minister of State decided to find means to disintegrate the already integrated cadre, the Chairman of the Legislative Council, having no apparent role in the process of making rules in terms of Proviso to Article 309 of the Constitution appeared and influenced the process. We refrain from going into this aspect, for we think, with our conclusion as above, the upper division of the Subordinate Education Service shall continue to have the same respect as it got from the judgment of this Court in C.W.J.C. No. 2956 of 1975 and no one in the Government shall in future again attempt to deny to the members of the said service their due rights for promotion to the selection grade and other posts.
The Supreme Court in Jagdish Prasad Sinha v. Bhagwat Prasad , while approving the aforesaid findings conclusions of the Patna High Court, added:
The course of hearing of the matter, counsel for the state was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits. The High Court, in our opinion, rightly found fault with such action.
6. Adverting to the facts of this case, once it is noticed that the Tamil Nadu Judicial Ministerial Service is constituted of both temporary and permanent posts and applied to the holders of all posts, whether temporary or permanent, in the service appointed thereto before on or after the 1st January, 1955, on the date that is to say 15.12.1984 when G.O.Ms. No. 2092, Public (Establishment) Department was issued, the posts of Superintendent, Assistant, Junior Assistant, Steno-typist, Typist, record Clerk and Office Assistant although sanctioned "for a period of one year from the date of employment of the posts" were in respect of Tamil Nadu Judicial Ministerial Service. No appointments thus could have been made against these posts except in accordance with the Rules applicable to the Tamil Nadu Judicial Ministerial Service. We have already taken notice of the definition of the "Member of the service" and the commencement and extent of application of the Rules and also of its constitution as prescribed in Rule 5 thereof which states:
The service shall consist of the following classes and categories of Officers-
CLASS I City Courts and offices of the Administrator General and Official Trustee, Tamil Nadu: Advocate General, Tamil Nadu: Government Pleader, Madras, Public Prosecutor, Madras and Editor, Indian Law Reports, Madras Series, Madras.
In the cadre of posts enumerated therein, posts of superintendent, Assistant etc., as noticed above are included. Rule 6 which provides for appointment to the several classes and categories, says about promotional posts as well as posts to which direct recruitments can be made. It shows clearly that a person who is holding the post of junior Assistant, in the event of availability of a vacancy for a post of Assistant in the office of the Government Pleader or for that matter any office to which the Rules apply, maybe considered for promotion as Assistant. Rule 6 thus gives a substantive right to be considered for promotion to a Junior Assistant in the event of any vacancy for the post of Assistant or addition whether, temporary or permanent post in the service. The position being: (1) sanction of a temporary post in the service will ipso facto include the post to one or the other class or category of post to which Rules apply; (2) those who are in the lower rank, of the service have the opportunity and thus right to be considered for appointment in such a post. It is difficult to think how Articles 14 and 16 of the Constitution of India cannot be applied.
7. Learned single Judge has dealt with though summarily this aspect of the matter and said as noticed by us above that in view of the rules aforementioned which has been formulated to govern the temporary posts sanctioned, these posts make a separate and distinct class by themselves. Having so held, he has said:
...The promotional prospects of the petitioners will not in any manner be stultified by the creation of temporary posts governed by the ad hoc rules, because the promotional avenues of the personnel already in service in the office of the Government Pleader, High Court, Madras, are not at all touched by the present Government orders. Even if there could be a grievance with reference to stultifying of promotional prospects, if any, that could not be countenanced in view of the pronouncement of a Bench of this court, to which I have been a party, in S. Arunachalam and Ors. v. The Slate of Tamil Nadu by its Secretary, Education Department, Madras-9 and Anr. W.P. Nos. 244 of 1978 and 134 and 135 of 1977, order dated 15.12.1978, wherein the ratio of the Supreme Court has also been taken note of to state that though a right to be considered for promotion is inherent in service, mere chances of promotion are not and a rule which merely enacts chances of promotion cannot be regarded as varying a condition of service....
8. The error in the approach of the learned single Judge is apparent. He came to the conclusion that there was no inherent right to be considered for promotion in any of the petitioners because the posts which were sanctioned, were never made a part or integrated with the Tamil Nadu Judicial Ministerial Service. He failed to take notice of the rules aforementioned, which defined the "service", and also said who is appointed to the service and how. It said clearly and categorically that a person appointed, whether temporary or permanent will be deemed to belong to the service, thus showing that a post whether temporary or permanent., i.e. posts of Assistants, etc., in the office of the Government Pleader shall be a post in the service'.
9. The aforementioned G.Os., under which the new set of rules are notified, purported to say that the posts sanctioned vide: G.O.Ms. No. 2092, Public (Establishment) Department, dated 15.12.1984 would be deemed to be in the Tamil Nadu Basic Service, Tamil Nadu General Subordinate Service, and Tamil Nadu Secretariat Services and the appointing authority would either be the Commissioner and Secretary to the Government, Law Department or any other authority in the Department but not the Government Pleader who is the appointing authority under the Tamil Nadu Judicial Ministerial Service. In the counter-affidavit filed on behalf of the respondents, it has been stated:
...The additional posts sanctioned in G.O.Ms. No. 2092, Public (Estt. I) Dept., dated 15.12.1984 to the office of the Government Pleader do not come under the Tamil Nadu Judicial Ministerial Service. In fact these posts are distinct and separate posts coming under Tamil Nadu Secretariat Service, Tamil Nadu General Subordinate Service, and Tamil Nadu Basic Service and the statutory appointing authority for these posts is Commissioner and Secretary to Government in Law Department and not the Government Pleader as contended by the petitioner. It is submitted that these posts are not to be added on to the cadre strength of existing post in Government Pleader's office.
10. It requires no elucidation that one may not be allowed to confuse between a service and a cadre. There can always be more than one cadre in a service. The Tamil Nadu Judicial Ministerial Service Rules have also to state in the case of the service to posts whether temporary or permanent in the service and about cadre the permanent cadre of each class, category and grade shall be determined by the State Government". No service can be allowed to be divided into more than one cadre except by way of an order of the State Government and that too under a Government instrument. A service or a cadre of service can also be created under a statute or under a rule or under the Proviso to Article 309 of the Constitution, but such creation of the cadre of service has to be pronounced so as to keep the cadre or the service separate and distinct from any other cadre or service. The only document under which these posts are created in G.O.Ms. No. 2092, Public Establishment Department, dated 15.12.1984. That only states:
The Government sanction the employment for a period of one year from the dale of employment of the posts mentioned in the annexure to cope up with the increase of work in the office of the Government Pleader, High Court, Madras.
The rider thereafter the appointment to these posts will be made by Government Law Department cannot even remotely suggest that the Government, sanction to posts which follow would constitute a separate service or a separate cadre than the cadre or the service which is known as Tamil Nadu Judicial Ministerial Service. Once it is noticed that the newly created posts although temporary under G.O.Ms. No. 2092, Public Establishment, dated 15.12.1984 pertain or belong to the Tamil Nadu Judicial Ministerial Service, the subsequent notifications to cover these newly created posts by other rules, as would apply to the Tamil Nadu Secretariat Service, Tamil Nadu Basic Service and Tamil Nadu General Subordinate Service would not mean that the posts were created separately for services other than the Tamil Nadu Judicial Ministerial Service. The attempt therefore, of the respondents under the impugned notifications purported to be issued in exercise of the powers under the Proviso to Article 309 of the Constitution of India is evidently an attempt to lake out such temporary posts which formed part of the Tamil Nadu Judicial Ministerial Service and thus fill in such posts by methods other than those prescribed under the Tamil Nadu Judicial Ministerial Service Rules.
11. Law on the subject as we have already noticed, the learned single Judge has also noticed correctly. He has made no mistake when he said that in S. Arunachalam and Ors. v. The State of Tamil Nadu by its Secretary, Education Department, Madras-9 and Anr. W.P. Nos. 244 of 1978 and 134 and 135 of 1977 - order dated 15.12.1978, the ratio of the Supreme Court has been taken note of to state that though a right to be considered for promotion is inherent in service, mere to be chances of promotion are not, and a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. He has, however, erred in treating the case of the petitioners as a mere chance of promotion affected. He has failed to notice that the posts which belonged to the Tamil Nadu Judicial Ministerial Service were sought to be filled in by methods alien to the service and when it came to the rule making, the State Government never came forward with any instrument creating the posts in an of the services other than the Tamil Nadu Judicial Ministerial Service, but said that rules which apply to the personnel belonging to those services would apply to the holders of the temporary posts in the office of the Government Pleader, High Court, Madras. These rules as such are patently arbitrary and hit by Articles 14 and 16(1) of the Constitution of India.
12. As a result of our conclusions above, we hold that the posts created under G.O.Ms. No. 2092, Public Establishment Department, dated 15.12.1984 pertain to Tamil Nadu Judicial Ministerial Service and appointments to these posts can be made only in accordance with the Rules known as Tamil Nadu Judicial Ministerial Service Rules. The notifications as contained in G.O.Ms. Nos. 18, 19, 22 and 23, Law Department, dated 22.1.1986 and 24.1.1986 are nonest in so far as the posts enumerated in G.O.Ms. No. 2092, Public Establishment, dated 5.12.1984 are concerned and accordingly they shall have no application whatsoever in the matter of recruitment/appointment/promotion of eligible candidates (persons) to these posts in accordance with the Tamil Nadu Judicial Ministerial Service Rules.
13. In the result, these appeals are allowed. Let a writ in the nature of certiorari issue quashing the notifications as contained in G.O.Ms. Nos. 18 and 19, Law Department, dated 22.1.1986 and G.O.Ms. Nos. 22, 23, Law Department, dated 24.1.1986. Let also a writ in the nature of mandamus issue restraining the respondents from interfering with the petitioners' right to be considered for appointment by promotion to the posts created by G.O.Ms. No. 2092, Public Establishment, dated 15.12.1984 and directing the third respondent to file up the vacancies in accordance with the Tamil Nadu Judicial Ministerial Service Rules. The writ petitions are accordingly allowed. No costs.