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Judgment
P. Jyothimani, J.—The Writ Petitioner, who is presently working as P.A. to the Hon''ble Judges, Madurai Bench of Madras High Court, Madurai, has filed the present writ petition challenging the order of the first Respondent/Registrar General, High Court, Madras dated 18.04.2007, by which the first Respondent has rejected the request of the Petitioner for award of Selection Grade, on the ground that he is not eligible for the same.
It is the case of the Petitioner that he joined in the Tamil Nadu Judicial Ministerial Service as a Steno - Typist on 03.09.1990 and was working in the District and Sessions Court, Virudhunagar District at Srivilliputtur. On transfer of service, he was appointed as Steno Typist in the Tamil Nadu Administrative Tribunal and joined duty on 27.12.1993. He was promoted as Court Master on 24.04.1995 and subsequently promoted as Private Secretary on 18.10.1995 in the time scale of pay of Rs. 6500 - 200 - 11000. While he was working in the said capacity in the Tamil Nadu Administrative Tribunal, he was appointed as P.A. to the Hon''ble Judges, High Court, Madras by transfer as per the proceedings dated 27.12.1999 and he accordingly joined duty on 14.01.2000. Presently, he is working in the said capacity in the Madurai Bench of Madras High Court, Madurai. The time scale of pay for the post of P.A. to the Hon''ble Judges is also Rs. 6,500 - 200 - 11000. He has completed 10 years of service in the time scale of pay on 17.10.2005 by taking into account the service rendered by him in the Tamil Nadu Administrative Tribunal from 18.10.1995 to 13.01.2000. According to him, the said period of service rendered by him between 18.10.1995 and 13.01.2000 in the Tamil Nadu Administrative Tribunal should be taken into account for the purpose of awarding Selection Grade.
The Petitioner also relies upon the Government Order in G.O.Ms. No. 68 Personnel and Administrative Reforms (Per.M) Department dated 23.01.1986 to substantiate his case that on completion of 10/20 years of satisfactory service, an individual is entitled for advancement to Selection Grade/Special Grade and also a guideline to the effect that the service rendered in an equivalent or higher post on other duty should be taken into account while the service in the lower post has to be ignored. According to him, his services rendered as Private Secretary in the Tamil Nadu Administrative Tribunal is of the same cadre as that of the P.A. to the Hon''ble Judges, High Court, Madras both on Scale of Pay as well as on performance of functions. He also would rely upon a Government Letter dated 16.02.1987, clarifying the above Government Order in G.O.Ms. No. 68 dated 23.01.1986. Making the above contentions, after completion of 10 years of service, he had applied to the first Respondent by way of a representation dated 17.10.2005, seeking for award of Selection Grade, which was rejected under the impugned order.
The Petitioner challenged the said order on various grounds, including that as per G.O.Ms. No. 68 dated 23.01.1986, having performed the functions of Private Secretary in the Tamil Nadu Administrative Tribunal, which is the same cadre as that of the P.A. to the Hon''ble Judges, High Court, Madras and on the same Scale of Pay, he is entitled to be considered for award of Selection Grade by taking into account his services rendered in the Tribunal. It is also his case that the nature of work as Private Secretary in the Tamil Nadu Administrative Tribunal was more or less the same as that of the P.A. to the Hon''ble Judges, High Court, Madras and even before the Judgment of the Hon''ble Supreme Court in L. Chandra Kumar Vs. Union of India and others, , the orders passed by the Tamil Nadu Administrative Tribunal were appealable only to the Supreme Court and even thereafter, the orders passed by the Tribunal can be challenged only before a Division Bench of the High Court. However, it is admitted that his services in the Tamil Nadu Administrative Tribunal as Private Secretary was not regularized before his appointment as P.A. to the Hon''ble Judges, High Court, Madras for the reason that he had not completed required period of service in the feeder category and the promotion as Private Secretary was a conditional one. It is stated that he has made a representation to the Chairman, Tamil Nadu Administrative Tribunal on 09.09.1999, requesting to regularize his services in the post of Court Master, which is the feeder category for the post of Private Secretary from the date of his appointment as Court Master and before such order could be passed, he was transferred to High Court, Madras. Even thereafter, in continuation of his representation dated 09.09.1999, he sent a reminder to the Chairman of the Tamil Nadu Administrative Tribunal on 30.11.2001 and there has been no reply. With the above said averments, the present writ petition has been filed.
In the Counter Affidavit filed by the first Respondent/Registrar General of High Court, Madras, it is stated that the Petitioner was appointed as Steno - Typist on 03.06.1990 in the Tamil Nadu Judicial Ministerial Service and posted to District Munsif''s Court, Aruppukottai. While he was working as Steno Typist in the Court of District and Sessions Judge, Virudhunagar District at Srivilliputhur, on transfer of service basis, he was appointed as Steno -Typist in the Tamil Nadu Administrative Tribunal and he joined duty on 27.12.1993. Thereafter, he was appointed by way of promotion to the post of Court Master on 27.04.1994 F.N and his services in the category of Court Master has been regularized with effect from 27.12.1998 F.N., i.e., the date of acquisition of prescribed qualification as per Schedule II to the Tamil Nadu Administrative Tribunal Service Rules dated 13.01.1999. It is also stated that he was subsequently promoted as Private Secretary by relaxation of his qualifying service as per the order dated 18.10.1995 and he has joined in the said post on 18.10.1995 F.N. It is stated that the services in the post of Private Secretary will be regularized as and when he becomes fully qualified for promotion as Private Secretary and till then, his promotion will be considered as purely temporary and no rules can be relaxed for the purpose of temporary service and therefore, he is not eligible for the periodical increment until he becomes fully eligible to hold the post. It is also stated that he has been relieved from the Tamil Nadu Administrative Tribunal on 01.07.1999 to take appointment as Private Secretary, High Power Commission, Chennai, on deputation basis, initially for a period of one year and he joined duty there on 01.07.1999. After the project was over, he was relieved on 12.01.2000 and transferred to Tamil Nadu Administrative Tribunal by order dated 12.01.2000 and joined the Tribunal on 13.01.2000. He was relieved from the Tribunal on 13.01.2000 A.N. and directed to join duty as P.A. to the Hon''ble Judges, High Court, Madras on or before 18.01.2000 and he joined duty as P.A. to the Hon''ble Judges on 14.01.2000. It is stated that his services in the post of Private Secretary in the Tamil Nadu Administrative Tribunal was not regularized from 18.10.1995 and he has not been sanctioned the periodical increments from 13.01.2000. However, on his appointment as P.A. to the Hon''ble Judges, High Court, Madras, he was relieved from the Tribunal on 13.01.2000 A.N., with an undertaking that he will not put forth any claim, right or privileges etc., in the Tamil Nadu Administrative Tribunal. The first Respondent also relies upon various guidelines relied upon by the Petitioner stipulated in G.O.Ms. No. 68 P & AR (Per.M) Department dated 23.01.1986 to contend that the services rendered by him as Private Secretary in the Tribunal, without holding the required qualification, should not be taken as the service rendered in the equivalent or higher post for the purpose of advancement of Selection Grade and therefore, the services rendered by him in the Tamil Nadu Administrative Tribunal from 18.10.1995 to 13.01.2000 could not be considered as equivalent or higher post on other duty as per the said Government Order. It is also stated that he is eligible to move to the post of Selection Grade P.A. to the Hon''ble Judges only on completion of 10 years of service with effect from 14.01.2000 viz., the date of regularization of his services in the post of P.A. to the Hon''ble Judges, High Court, Madras. Therefore, the impugned order came to be passed, rejecting the request of the Petitioner, which according to the first Respondent is perfectly in order.
We have heard the submissions of the learned Counsel appearing for the Petitioner, the learned Counsel appearing for the first and second Respondents and the learned Special Government Pleader appearing for the third Respondent.
The fact that while the Petitioner was working as Private Secretary in the Tamil Nadu Administrative Tribunal, he was transferred and posted as P.A. to the Hon''ble Judges, High Court, Madras, in which post, he joined on 14.01.2000 is not in dispute. It is also not in dispute that while he was holding the post of Court Master in the Tribunal, he was promoted to the post of Private Secretary and he joined in the said post on 18.10.1995. It is further not in dispute that the Scale of Pay for both the posts viz., Private Secretary in the Tribunal and P.A. to the Hon''ble Judges, High Court, Madras are one and the same viz., Rs. 6,500 - 200 - 11000. Both the Petitioner and the first Respondent would rely upon the contents of G.O.Ms. No. 68 Personnel and Administrative Reforms (PER M) Department dated 23.01.1986. The said Government Order prescribes certain guidelines for moving a government employee to Selection/Special Grade. It is appropriate to extract guidelines (i) and (vi), which runs as follows:
(i) For advancement to Selection Grade/Special Grades, all employees, who have put in 10/20 years of satisfactory service and who satisfy all the qualifications prescribed under the Special Rules/Ad hoc Rules prescribes for promotion to the higher post shall be eligible.
(vi) Services rendered in a lower post on other duty should not be taken into account as qualifying service in the higher post for advancement to the Selection/Special Grade. The service rendered in an equivalent or higher post on other duty alone should be taken into account for advancement to Selection/Special Grades, to the extent he would have acted in his original post in the parent Department but for his deputation.
It is clear that guideline (i) of the said Government Order contemplates that an employee who has put in 10/20 years of satisfactory service and who satisfies all the qualifications prescribed under the Rules for promotion to the higher post shall be eligible for advancement to Selection Grade/Special Grade. Guideline (vi) stipulates that the services rendered in a lower post on other duty should not be taken into account for the advancement. However, the services rendered in the equivalent or higher post on other duty should be taken into account.
As it is seen from the order of Registrar, High Court, Madras dated 22.12.1999, by which the Petitioner was appointed to act as P.A. to the Hon''ble Judges by transfer on the time scale of pay of Rs. 6500 - 200 - 11,100 plus Special Pay of Rs. 200 per month, he was fully qualified to hold the post of P.A. to the Hon''ble Judges. It is the case of the Petitioner that while he was holding the post of Court Master in the Tamil Nadu Administrative Tribunal, when promotion was given to him as Private Secretary on 18.10.1995, it was indisputably the admitted fact that the post of Court Master was a feeder category for holding the post of Private Secretary. Further, Rule 15 of the Tamil Nadu Administrative Tribunal Service Rules 1992 enables the promotion to be given on temporary basis and subsequently regularizing the services by giving relaxation to Rule 8 read with Schedule II of the Tamil Nadu Administrative Tribunal Service Rules, 1992, which prescribes qualification and such power of relaxation is available to the Government under Rule 31. It is seen that by exercising such power of relaxation, the Government has relaxed the Rules relating to the required qualification as per Rule 8 and regularized the services in respect of three individuals, who were temporarily promoted as Section Officer/Court Officers. It is also not in dispute that the representation made by the Petitioner to the Chairman, Tamil Nadu Administrative Tribunal on 09.09.1999 for regularization of service in the post of Private Secretary and the subsequent reminder dated 13.11.2001 are still pending.
In the absence of such regularization in the post of Private Secretary in Tamil Nadu Administrative Tribunal, the question to be considered is as to whether the services rendered by the Petitioner as Private Secretary in the Tribunal from 18.10.1995 to 13.01.2000 should be taken into consideration for the purpose of conferring benefit of advancement of Selection Grade under G.O.Ms. No. 68 dated 23.01.1986.
It is the admitted fact that the pay structure is the same for both the posts of Private Secretary in Tamil Nadu Administrative Tribunal and P.A. to the Hon''ble Judges, High Court, Madras and there is also no much difference in the nature of work between these posts. Even as per the first Respondent, it is only because of non regularization in the post of Private Secretary in the Tribunal, the functions of the Petitioner as Private Secretary should be only considered as temporary. It is further relevant to point out that there is no illegality in the appointment of the Petitioner as Private Secretary while he was holding the post of Court Master and when he was transferred as P.A. to the Hon''ble Judges, High Court, Madras, there was no break in his service. It is also relevant to point out that while the Petitioner was appointed by transfer as P.A. to the Hon''ble Judges, High Court, Madras, it was not as if the Petitioner had suppressed anything about his service rendered by him either as Court Master or as Private Secretary in the Tamil Nadu Administrative Tribunal. It was only knowing the above said facts, the first Respondent has appointed him to the High Court and therefore, in our considered view, it is not open to the first Respondent now to deny the claim of the Petitioner for award of Selection Grade only due to the reason that he was holding the post of Private Secretary in the Tribunal on temporary basis and subject to his regularization in the said post.
In State of U.P. and Ors. v. Maqbool Ahmad 2006 (7) S.C.C. 521, when a question arose in respect of grant of Time scale and Super time scale, it was held that for the said purpose, one has to take into account the initial date of appointment and not the date of joining in the transferred department and in cases where there was no fault on the part of the employee, such legitimate right should not be denied. The Hon''ble Supreme Court in the said case has held as follows:
There was no break of service and it remained continuous all throughout. In these circumstances, in our opinion, the Respondent was right in submitting before the High Court as well as before us that there was no reason to deprive him of the selection grade or super timescale as per the government order. Ultimately, the policy decision is based on equitable principle that if an employee does not get promotion, not because of his fault, but because there were no sufficient vacancies available which resulted in his stagnation in the cadre to which he was initially appointed, it would be reasonable that he should not suffer and is allowed certain additional benefits. In such cases, an employee is deprived of promotion as the employer is unable to promote him due to limited posts/vacancies in the higher cadre. To avoid stagnation, heart - burning, demoralisation of employees and to provide boosting, a policy decision has been taken by the Government. Keeping in view the said object, it was decided by the State Government that if an employee has to remain in one and the same cadre for 16 or 18 years, he would be granted selection grade as also super time scale. In our opinion, therefore, the High Court was right in holding that it would be totally immaterial whether the employee continues to work in the cadre of Assistant Engineer either in the Irrigation Department or in the Public Works Department. The fact remains that he could not be promoted because of non-availability of promotional avenue and hence there was no reason to deprive him of selection grade or super time scale to which he was otherwise entitled.
In State of Maharashtra and Others Vs. Uttam Vishnu Pawar, , the Supreme Court has held that on transfer of an employee to a new Department, he may not get the seniority but his experience of the past service rendered will be counted for the purpose of other benefits like promotion or for the higher pay to be conferred as settled principle of law. In that case, the Supreme Court, after having discussed a catena of Judgments in this issue relating to transfer of services including the Judgments in Dwijen Chandra Sarkar v. Union of India 1992 (2) S.C.C. 119, Smt. Renu Mullick Vs. Union of India and another, , Scientific Advisor to Raksha Mantri and Another Vs. V.M. Joseph, , A.P. State Electricity Board and Others Vs. R. Parthasarathi and Others, and Union of India (UOI) and Another Vs. V.N. Bhat, has ultimately held as follows:
Therefore, in view of the consistent approach of this Court, it is no more res integra that the incumbent on transfer to the new department may not get the seniority but his experience of the past service rendered will be counted for the purpose of other benefits like promotion or for the higher pay scale as per the Scheme of the Government.
On reference to G.O.Ms. No. 68 Personnel and Administrative Reforms (Per.M) Department dated 23.01.1986, especially guidelines (i) and (vi), we are of the considered view that simply because the services of the Petitioner as Private Secretary in the Tamil Nadu Administrative Tribunal was not regularized, which was due to the administrative reasons, for which no motive can be attributed to the Petitioner and his services rendered as Private Secretary in the said Tribunal cannot be ignored for the purpose of giving advancement to the Selection Grade. There is no element of selection involved in sanctioning such Grade, especially when the Scale of pay for both the posts are one and the same and the nature of work is similar. Therefore, in our considered opinion, it cannot be said that the Petitioner is not found fit to move to the post of Selection Grade P.A. to the Hon''ble Judges, High Court, Madras by also taking into account the services rendered by him in the Tamil Nadu Administrative Tribunal from 18.10.1995 to 13.01.2000. In such view of the matter, the impugned order is liable to be set aside.
Accordingly, this Writ Petition is allowed and the impugned order of the first Respondent dated 18.04.2007 is set aside. However, there will be no order as to costs. There shall be a consequential direction to the first Respondent/Registrar General, High Court, Madras to take into account the period of service rendered by the Petitioner in the Tamil Nadu Administrative Tribunal between 18.10.1995 and 13.01.2000 also for the purpose of conferring the Selection Grade and pass appropriate orders within a period of three months from the date of receipt of a copy of this order.