M. Paul Durai and Others vs The District and Sessions Judge, The Chief Judicial Magistrate and The Registrar General, High Court

F.M. Ibrahim Kalifulla, J.—The petitioners are all employees of the Judicial Department in the Villupuram District Unit. While petitioners 1

to 8 are holding the post of Office Assistant in the Criminal Unit, petitioners 9 and 10 are holding the post of Night Watchman in the same Unit.

They seek for issuance of a writ of mandamus to direct respondents 1 and 2 to promote them to the next higher post in terms of the direction

issued by this Court in ROC.No. 9259/91/Cl dated 10.9.1996, by considering their representations.

According to the petitioners, the first respondent failed to follow the directions of this Court, wherein all the District and Sessions Judges,

including the first respondent herein, have been directed to follow a combined seniority list both in civil and criminal Units whenever occasion arises

for promotion to the next higher post or transfers.

The first respondent has now filed a counter affidavit stating as under:

I most respectfully submit that in the above clarification, the Hon''ble High Court, Madras issued instructions clarifying and codifying the powers

of the District Judge and Chief Judicial Magistrate in the matter of appointments and issued instructions stating that the Chief Judicial Magistrate is

the Appointing Authority in respect of the posts of Record Clerks, office Assistants, Sweepers, Watchmen and Masalchis available in the Criminal

Unit. The Hon''ble High Court, Madras further clarified that in the event of filling up these posts by promotion, the Chief Judicial Magistrate has to

address the District Judge concerned for suggesting the Senior most person from the combined seniority list, since District Judge is maintaining the

combined seniority list for the posts available both in civil and criminal units.

I most respectfully submit that, I will follow the instructions issued by the Hon''ble High Court, Madras and I will take effective steps, and pass

appropriate orders, as per rules, to promote the Senior most Office Assistants in criminal unit as Junior Bailiff as per the combined seniority list

revising the temporary promotions issued by this Office, to various Office Assistants.

We have heard the learned counsel on either side and also perused the materials available on record.

By communication dated 10.9.1996, the District Judges were all instructed to maintain a consolidated seniority list for the categories of posts

available both in civil and criminal Units, namely (1) Attenders (record clerks) (2) process Servers(Junior Bailiff) (3) Office Assistants (4)

Sweepers (5) Watchman and (6) Masalchis. It is further stated that for the above posts where the provisions of direct recruitment is available, the

Additional District Judge cum Chief Judicial Magistrate (as it stood then), after making appointment for the said posts should report the seniority of

the recruited persons to the District Judge, for the purpose of maintaining a consolidated seniority list. It also stated that thereafter any higher post

should be filled up from the consolidated seniority lists.

All the above referred to posts come under Class-III of Rule 1 of Section 19 of the Special Rules for Tamil Nadu Basic Service. Posts of

Watchmen and Masalchis fall under category 13 and 44 of Class IV. Under Rule 3, for all categories falling under Class-III, the appointment can

be made either by way of direct recruitment or recruitment by transfer from any other service or by way of transfer from Class-IV. Rule-5

prescribes the qualification for different posts. Under Rule 5(2)(a), the educational qualification for appointment, by direct recruitment, to any

category of the service in Class I, II and III, is a pass in III Form or VIII standard of a recognised school. The proviso to Rule 5(2)(a) of the

Special Rules for Basic Service reads as under:

Provided that those who have passed III Form or VIII standard or ESLC and completed probation in class-IV or served in the said class for not

less than one year shall be eligible for appointment on transfer from the categories in class-IV to the categories in class-III of the said service.

Since under Rule 3, for all categories in Class-III recruitment by transfer from any other service is provided, it will have to be held that the

expression ""any other service"" will take within its fold the other categories mentioned in class III as well. Therefore, subject to satisfaction of the

qualification prescribed under Rule 5(2)(a) of the Special Rules for Tamil Nadu Basic Service read along with the proviso contained therein even

by such of those other categories falling under Class-III, can be recruited by way of transfer to any other category in the said Class-III. That apart

this Court issued ROC.No. 2448/06/C3 dated 30.6.2006, by which, it was made clear that for the post of Process Server in mofusil courts, which

comes under Class III of Tamil Nadu Basic Service Rules, no ratio is prescribed, while in respect of a equivalent post, namely, Junior Bailiff, there

is a prescription of 1:1 ratio under the Tamil Nadu Judicial Ministerial Service Rules. Therefore, in the said communication, while stating that the

Government had been addressed for bringing out necessary amendment to the Special Rules of Tamil Nadu Judicial Ministerial Service Rules,

instructed all the appointing authorities to make temporary appointments for filling up the existing vacancies in the post of Process Server from

among the Office Assistants working in their Units, until orders of the Government are received.

A combined reading of the above communications and the Rules as contained in Special Rules for Tamil Nadu Basic Service, it is explicit that

for the post of Process Server falling under category-3 of Class-III, the ""Office Assistants as well as ""Watchmen"" and ""Masalchies"" are eligible to

be appointed by way of transfer of service. Further, such appointment by way of transfer of service should necessarily be made by following the

combined seniority list of both the civil and criminal Units, irrespective of the position whether such vacancy in the post of Process Server falling

under Category-3, Class-III is available either in the criminal Unit or in the civil Unit.

In the light of the above said position, the first respondent will have to necessarily go by the combined seniority list prevailing in his Unit in

respect of all those eligible candidates, who can be appointed by way of transfer to the posts of Process Server falling under category-3, Class-Ill

subject to such persons satisfying the required qualification as prescribed under Rule 5 of the Special Rules for Tamil Nadu Basic Service.

Therefore, while taking note of the statement of the first respondent contained in paragraphs 5 and 6 of the counter affidavit, we direct the first

respondent to make the appointments to the posts of Process Server as directed above, without any deviation.

The writ petition stands disposed of at the above terms. No costs. Consequently, connected miscellaneous petition is closed.