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Judgment
M. Venugopal, J.—The Petitioners have preferred the instant Writ of Mandamus praying for an issuance of an order by this Court directing
the respondent to convert the temporary list for promotion to the post of Assistant Section Officer for the year 2007-2008 issued in G.O. (4D)
No. 11, Personnel and Administrative Reforms (U) Department, dated 05.02.2008 into a regular panel with fixation of seniority and issue a
separate Government Order in this regard. The Summation of Long Germane Facts:
According to the Petitioners, they were originally recruited/appointed as Personal Clerks and subsequently promoted to the post of Senior
Personal Clerks during the course of time. As a matter of fact, the Personal Clerks who had rendered considerable years of service were
promoted to the post of Senior Personal Clerk, which carried a higher scale of pay.
Further, it is the stand of the Petitioners that they are degree holders and as such, they are fully qualified for next promotion in service.
The plea of the Petitioners is that the post of Assistants (Graduates), Assistants (Non-Graduates), Typists, Senior Typists, Personal Clerks,
Senior Personal Clerks and Personal Assistants were formed earlier as feeder category to the post of Assistant Section Officer in the Secretariat.
Also, the Personal Clerks, Senior Personal Clerks and Personal Assistants could opt for the Assistant Section Officer line of promotion. In regard
to the post of Personal Assistants were concerned, they were normally appointed to the post of Assistant Section Officer by transfer, as they both
carry the same pay scale and duties. Indeed, Personal Clerks and Senior Personal Clerks as per the aforesaid mode of appointment were regularly
promoted to the post of Assistant Section Officer upon acquiring the necessary educational qualification and years of service and subject to
available vacancies in the cadre of Assistant Section Officer. A similar method was adopted with regard to Typists, Senior Typist and Assistants
(Non-Graduates) in the promotion to the post of Assistant Section Officer. Added further, Special Rules for Tamil Nadu Secretariat Service
prescribed Rosters for appointment to the Assistant Section Officer post, wherein a roster/avenue for promotion was also done from among the
feeder category of Personal Clerks (which includes Senior Personal Clerks) and Personal Assistant.
The aforesaid method of appointment was periodically amended, while maintaining the promotional avenue from the category of Personal Clerk
and Personal Assistant. Accordingly based on the orders in O.A. No. 1790 of 1996 passed by the Tamil Nadu Administrative Tribunal, the
Respondent/Department amended the Rules to bring in a separate avenue of promotion for Non Graduate Assistants to the post of Assistant
Section Officer, which was challenged by the Tamil Nadu Secretariat Typists and Steno Typists Association vide O.A. No. 1790 of 1996 on the
file of the Tamil Nadu Administrative Tribunal on the ground that the later amendment reduces the chances of promotion to the post of Typists and
Steno-Typists (also referred/equated with Personal Clerks). Later, the said original application came to be converted as W.P. No. 21949 of 2006
on the file of this Court. On 20.11.2006, in the aforesaid W.P. No. 21949 of 2006, amendment in issue was set aside and the
Respondent/Department (Personnel and Administrative Department) was directed to re-examine the matter afresh in regard to the total number of
persons available in various categories of posts such as Graduate Assistants, Non-Graduate Assistants, Personal Clerks, Typists and Personal
Assistants and provide a scientific ratio among the above mentioned category of posts so that all the feeder categories get their due share in the
matter of promotion having regard to the nature of duties performed as well as cadre strength.
Pursuant to the order dated 20.11.2006 in W.P. No. 21949 of 2006, the Respondent/Department issued G.O. (Ms.) No. 237 dated
26.10.2007 wherein the following orders were issued:
(i) to fix the ratio of 4:1:1 in the matter of promotion to the post of Assistant Section Officer from among the feeder category post of Assistant,
Senior Personal Clerk and the Senior Typist, respectively.
(ii) to follow the rotation indicated below in the matter of filling up of the post of Assistant Section Officer from among the different methods of
appointment:
By direct recruitment
By promotion from Assistant
By promotion from Assistant
By promotion from Assistant
By promotion from Assistant
(Provided that the 20th rotation shall be filled up by the Non-Graduate Assistant. If no suitable and qualified Non-Graduate Assistant is available,
then the said rotation shall be filled up from the holders of the post of Assistant).
By promotion from the category of Senior Personal Clerk
By promotion from the category of Senior Typist
By recruitment by transfer from Tamil Nadu Ministerial Service/Tamil Nadu Judicial Ministerial Service.
(iii) to give effect this order from the date of pronouncement of the judgment (i.e.,) from 20.11.2006.
According to the G.O. (Ms.) No. 237 dated 26.10.2007, the feeder category for promotion to the post of Assistant Section Officer was
prescribed as Assistants, Senior Personal Clerks and Senior Typists. Being dissatisfied with the same, the Tamil Nadu Secretariat Typists and
Steno-Typists Association filed W.P. No. 3593 of 2008 challenging the paragraphs 6 and 7 of the aforesaid G.O. (Ms.) No. 237 dated
26.10.2007. An interim stay of the operation of the said Government Order was also sought and this Court granted interim stay of the operation of
the G.O. (Ms.) No. 237 dated 26.10.2007 on 13.02.2008 and later on, the same got vacated on 07.11.2008 as per the order in M.P. No. 2 and
3 of 2008 in W.P. No. 3593 of 2008.
The Respondent/Department taking into consideration the emergent/exigent situation and administrative reasons and also the fact that adequate
vacancies were available in the cadre of Assistant Section Officer, by invoking Rule 39(a)(i) of the Tamil Nadu State and Subordinate Services
Rules, issued G.O. (4D) No. 11 dated 05.02.2008 wherein they prepared a temporary list comprising of eligible persons from the feeder category
of Assistants, Senior Personal Clerks (the Petitioners herein) and Senior Typists to be promoted as Assistant Section Officers on temporary basis.
The Petitioners were included in the said list and they were given promotion on the temporary basis to the post of Assistant Section Officer. The
Petitioners who were so promoted possess the required ''Educational Qualification'' and service qualification that would be required under the
Rules for promotion to the post of Assistant Section Officer.
It transpires that interim stay granted by this Court in W.P. No. 3593 of 2008 dated 13.02.2008 was later vacated by this Court on
07.11.2008 as per the order passed in M.P. 2 and 3 of 2008 in W.P. No. 3593 of 2008 and this Court has observed that the implementation of
G.O. (Ms) No. 237 dated 26.10.2007 by amending the Rule would be subject to the outcome of the result of the Writ Petition. Therefore, the
Respondent/Department issued amendments to the Special Rules for Tamil Nadu Secretariat Service as per G.O. (Ms.) No. 220 dated
04.12.2008 to implement the order issued in G.O. (Ms) No. 237 dated 26.10.2007.
The Primordial stand taken on behalf of the Petitioners is that when this Court vacated interim orders already granted by this Court in W.P. No.
3593 of 2008 as per the order dated 07.11.2008 in M.P. No. 2 and 3 of 2008 in W.P. No. 3593 of 2008 and when the Rules were so amended,
the Respondent/Government is yet to convert the ''Temporary List'' for the year 2007-2008 into ''Regular panel'' to the post of Assistant Section
Officer for the past five years.
Continuing further, the Petitioners take the stand that even before issuance of G.O. (Ms.) No. 237 dated 26.10.2007, a Roster/Avenue was
earmarked for Personal Clerks (which includes Senior Personal Clerks) and Personal Assistants among the feeder categories, for promotion to the
post of the Assistant Section Officer. In G.O. (Ms.) No. 237 dated 26.10.2007, the aforesaid avenue of promotion was trimmed/narrowed only
to include Senior Personal Clerks such as the Petitioners. At this stage, plea of the Petitioners is that irrespective of G.O. (Ms.) No. 237 dated
26.10.2007 is upheld or set aside, it could in no way deprive the Petitioners of their inclusion to the regular panel for the year 2007-2008 for
promotion to the post of the Assistant Section Officer. If G.O. (Ms.) No. 237 dated 26.10.2007 is upheld by the Court, it would only result in
upholding of the list that is drawn presently. Further more, it would only be beneficial to the Petitioners if G.O. (Ms.) No. 237 dated 26.10.2007 is
set aside as the same would result in increase of rotation thereby, increasing their promotional opportunities.
The Petitioners'' contention is that instead of taking appropriate action to convert the temporary list into regular panel for promotion to the post
of Assistant Section Officer, in accordance with the Rules amended vide G.O. (Ms.) No. 220 dated 04.12.2008, the Respondent/Department is
delaying the same causing hardships to them. Also, that they have submitted a Representation to the Respondent on 07.07.2010, requesting the
Respondent to convert the temporary list issued in G.O. (4D) No. 11, Personnel and Administrative Reforms (U) Department, dated 05.02.2008
into regular panel for promotion to the post of Assistant Section Officer for the year 2007-2008 and also fix seniority. Even after several
Representations, the grievance of the Petitioners is that temporary list has not been converted into regular panel. Further more, they submitted
Representation dated 18.04.2012 to convert the above said temporary list into regular panel and furnish the list of Assistant Section Officers by
including Petitioners names also for preparation of regular panel for promotion to the post of Section Officer for the year 2011-2012. Till date,
there has been no response even though nearly five years have elapsed.
The Learned Senior Counsel for the Petitioners urges before this Court that had the Petitioners had been brought to the regular panel from the
temporary list upon stay being vacated by this Court as per order dated 07.11.2008 in M.P. No. 2 and 3 of 2008 in W.P. No. 3593 of 2008, the
Petitioners would have been promoted to next post as Section Officer. The Petitioners remained stagnated in the temporary list in the absence of
any valid reason which resulted in grave hardships to them.
The Learned Senior Counsel for the Petitioners draw the attention of this Court to the fact that persons included in the previous panel namely,
panel for promotion to the post of Assistant Section Officer for the year 2006-2007 were promoted as Section Officer as such the Petitioners
whose names were included in the temporary list for the year 2007-2008, as Assistant Section Officers, are very much within the zone of
consideration for promotion to the post of Section Officer. Also that the next panel for promotion to the post of Section Officer for the year 2012-
2013 fell due as on 01.06.2012 but the panel was not prepared.
That apart, the Learned Senior Counsel for the Petitioners submits that unless and until the aforesaid ''Temporary List'' is converted into
''Regular panel'', the Petitioners may not be considered for ''Regular panel'' and if Petitioners were not considered for ''Regular panel'' in issue, this
would cause serious prejudice, inconvenience and undue hardships.
Per Contra, the Learned Special Government Pleader appearing on behalf of the Respondent/Department submits that as stop-gap
arrangement, the post of Assistant Section Officer was filled up by granting temporary promotion to the persons in the feeder categories including
the Petitioners under Rule 39(a)(i) of the General Rules for the Tamil Nadu State and Subordinate Services with the conditions prescribed in Rule
39(e) therein. Further, it is represented on behalf of the Respondent/Department that in view of the fact that W.P. No. 3593 of 2008 was
dismissed by this Court on 13.02.2013, necessary action is being taken to draw regular panel to the post of Assistant Section Officer by
considering the persons who were given temporary promotion including the Petitioners and therefore, the action of the Respondent/Department (in
granting temporary promotion) is legally correct and valid in the eye of law. The Learned Special Government Pleader contends that while drawing
the regular panel to the post of Section Officer for the year 2012-2013, the persons who are all holding the post of Assistant Section Officer with
all requisite qualification prescribed and appointed in substantive vacancy on regular basis may be considered and promoted as Section Officer.
It cannot be gainsaid based on the facts and circumstances of a given case, ordinarily Court of law cannot direct any positive term that the
promotion should be granted to the persons who make a claim in this regard. At this stage, this Court relevantly points out the decision of the
Hon''ble Supreme Court in The Distt. Registrar, Palghat and Others Vs. M.B. Koyyakutty and Others, wherein it is held:
Special Rules for the purpose of the Kerala Rules, 1958, would be as defined in Rule 2(16) in Part I. That definition contemplated that Special
Rules in Part III would be framed by the Governor of Kerala. But, no such rules had so far been framed. It could not be said that the Special
Rules, within the meaning of Rule 2 in Part II read with the Government Order, S(D) S-43405/56/PD dated February 25, 1957, would mean the
Special Rules contained in the Madras Rules. Hence, in the matter of promotion as an Upper Division Clerk, the respondent K was governed by
Rule 28(b)(ii) in Part II. In the instant case, it could not be said that there was a gap or a void in the statutory provisions in the matter of promotion
from the cadre of Lower Division Clerks to that of Upper Division Clerks. After the enactment of the Kerala Public Services Act of 1968, the
position was that by virtue of S. 3 of that Act, the Kerala State Subordinate Services Rules of 1958 framed by the Governor under the proviso to
Art. 309 of the Constitution were deemed to have been made under the Act and were continued until superseded by rules made under that Act.
As no Special Rules relating to Upper Division Clerks had been framed the General Rules in Part II would be applicable to Upper Division Clerks,
also. Rule 1 in Part II, indicated that all the previous rules had been superseded. These General Rules did not provide any minimum general
educational qualification for promotion to the cadre of Upper Division Clerks from that of Lower Division Clerks. All that was required by rule
28(b)(ii) which governed the promotions from the Lower Division to the Upper Division was that promotions shall be made in accordance with
seniority subject to the person''s fitness for appointment. The respondent K and the others like him who were appointed as Lower Division Clerks
after granting them exemption from possessing the minimum general educational qualification by the Kerala Government Order dated 16.05.1961
had been singled out for discriminatory treatment. There was nothing on the record to show that the case of the respondent K was considered for
promotion and he was found unfit. The Government Order dated 16.05.1961 impinged upon that statutory rule inasmuch as it laid down that even
if a Lower Division Clerk who entered service as a result of exemption from possessing minimum educational qualification, satisfied the criterion of
seniority-cum-fitness prescribed by this Rule, he shall not be considered for promotion unless he qualified in the test. In the peculiar circumstances
of the case, it was proper for the High Court to issue a positive direction requiring the Government to promote respondent K to the Upper Division
and thereafter to determine his rank in the cadre of Roshan Lal Tandon Vs. Union of India (UOI), Rel. on The State of Jammu and Kashmir Vs.
Shri Triloki Nath Khosa and Others, .
In view of the foregoing qualitatively and quantitative discussions as mentioned supra and also, this Court taking note of the entire conspectus
of the attendant facts and circumstances of the case in an integrated fashion comes to an irresistible and inescapable conclusion that the
Respondent/Department themselves in their counter to the Writ Petition in W.P. No. 33421 of 2012 in paragraph 12 has pellucidly stated that
necessary action should be taken to draw regular panel to the post of Assistant Section Officer by considering the persons who were given
temporary promotions including the Petitioners and further in paragraph 13 and also stated that ""while drawing to the post of Section Officer to the
year 2012-2013, the persons who are all holding the post of Assistant Section Officer with all requisite qualification prescribed and appointed in
substantive vacancy on regular basis may be considered and promoted as Section Officer"". As such, taking into account of the specific averments
made by the Respondent/Department in paragraphs 12 and 13 of the counter filed by them in the present Writ Petition, this Court on the basis of
Equity, Fair Play, Good Conscience and even as a matter of prudence directs the Respondent/Department to consider the plea of the Petitioners in
regard to the exercise of converting the ''Temporary List'' for promotion to the post of Assistant Section Officer for the year 2007-2008 issued in
G.O. (4D). No. 11, Personnel and Administrative Reforms (U) Department, dated 05.02.2008 into ''Regular panel'' with fixation of seniority list
(prior to issuance of any Regular panel for promotion to the post of Section Officer) and to pass appropriate reasoned and speaking orders in the
manner known to law and in accordance with law if situation so warrants (by providing adequate opportunities to all concerned by adhering to the
Principles of Natural Justice) within a period of four weeks from the date of receipt of a copy of this Order. With the aforesaid observations, the
Writ Petition is disposed of.
Consequently, connected Miscellaneous Petitions are also closed. No costs.