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Judgment
R.S. Ramanathan, J.—With the consent of both parties, this writ petition is taken up for final disposal.
The petitioner was appointed on compassionate grounds to the post of "Record Clerk" on 23.06.2000 in the Commercial Department, Madurai Division. Latter his service was regularised by the proceedings of the first respondent in G.O.Ms. No. 66, Commercial Tax & Registration(A2) Department, dated 01.07.2008 and as per the aforesaid G.O. relying upon the G.O.Ms. No. 1499, Labour & Employment Department, dated 03.08.1989, the petitioner was appointed in the post of Junior Assistant and it was stated in that order that the appointment shall come into effect from the date of issuance of that G.O.. Thereafter, the petitioner submitted a representation to the first respondent stating that as per G.O.Ms. No. 1499, Labour & Employment Department, dated 03.08.1989 he ought to have been appointed as "Junior Assistant" and he was appointed only as "Record Clerk". Therefore, when he was made as "Junior Assistant" by order, dated 01.07.2008, it must have been stated that he is deemed to have been appointed as "Junior Assistant" on the date of initial appointment and accordingly, he must be given promotion .
The first respondent after considering the request of the petitioner passed the impugned order, dated 19.11.2009 stating that as per G.O.Ms. No. 66, Commercial Tax & Registration(A2) Department, dated 01.07.2008 he was appointed as "Junior Assistant" from that date and G.O.Ms. No. 1499, Labour & Employment Department, dated 03.08.1989 applies only to employees, who are in service on the date of issuance of that G.O and it will not apply to the persons, who have appointed subsequently and the petitioner was appointed as "Record Clerk" only on 08.06.2000 and hence, the petitioner cannot invoke the benefits of G.O.Ms. No. 1499 and therefore, his request cannot be considered. This order is challenged in this writ petition.
It is submitted by the learned Counsel appearing for the petitioner, Mr. J. Pooventhera Rajan that G.O.Ms. No. 1499 makes it clear that on the date of coming into force of that G.O. if any dependent working as "Record Clerk" and having qualification for being appointed as "Junior Assistant", he may be appointed as "Junior Assistant" and it has been made clear in Clause (iii) in that G.O. that under no circumstances the appointing authorities should appoint a dependent to a lower post when the dependent possess the qualifications required for the post of Junior Assistant/Typist on the ground of non availability of vacancy in the office or the department. He, therefore, submitted that as per G.O.Ms. No. 1499, the authorities are prohibited from appointing the dependent to a lower post when the dependent is having higher qualification required for the post of "Junior Assistant" and on the date of his appointment, the petitioner possessed the qualification for the post of "Junior Assistant" and hence, he ought not to have been appointed as "Record Clerk" and therefore, when he was appointed as "Junior Assistant" by G.O.Ms. No. 66, dated 01.07.2008 his appointment must take back to the date of his initial appointment viz., 23.06.2000 and it is not a question of giving prospective or retrospective effect to the G.O.Ms. No. 1499 and as per G.O.Ms. No. 1499, the benefit was conferred to the existing employees, who were working in the lower cadre and in future, the dependents should be appointed only in the post of Junior Assistant, if they possess sufficient qualification and therefore, the petitioner ought to have been appointed to the post of "Junior Assistant" from the date of his initial appointment and not from the date of passing of the G.O.Ms. No. 66 and therefore, the impugned order is liable to be quashed.
Per contra, Mr. S.C. Herold Singh, the learned Government Advocate appearing for the respondents submitted that as per G.O.Ms. No. 1499, the petitioner was re-appointed to the post of "Junior Assistant" and his service as "Junior Assistant" was regularised with effect from the date of G.O.Ms. No. 66, dated 01.06.2008 and G.O.Ms. No. 1499 is applicable to the candidates, who were appointed prior to that G.O. and as the petitioner was appointed on 23.06.2000, he cannot contend that he ought to have been appointed as "Junior Assistant" from the date of his initial appointment.
Heard both sides.
It is seen from G.O.Ms. No. 1499 that as per G.O.Ms. No. 225, Labour and Employment, dated 23.02.1981, a dependent appointed as "Record Clerk" on compassionate grounds is eligible for the appointment as "Junior Assistant" if he was having the qualification for the post of "Junior Assistant". Earlier, as per G.O.Ms. No. 225, Labour and Employment, dated 15.02.1972 a dependent of the deceased Government servant can be appointed on compassionate grounds to a post, which falls outside the purview of TNPSC. As per G.O.Ms. No. 225, Labour and Employment, dated 03.08.1977, the concession has been extended to the post falling within the purview of TNPSC also. Therefore, considering the various Government Orders by way of clarification, the following directions were issued by the first respondent in that Government Orders:
(i) A dependent appointed to a lower post like Record Clerk, Office Assistant and Sweeper on compassionate grounds but possess the qualification required for the post of Junior Assistant at the time of initial appointment to a lower post may be appointed as Junior Assistant/Typist. This concession is allowed only those who have already been appointed to a lower post like Record Clerk, Office Assistant, Sweeper etc. the dependents should satisfy the conditions prescribed for consideration of appointment under compassionate grounds at the time of their appointment as Junior Assistant/Typist etc.
(ii)If the dependents, who are appointed to lower posts like Sweeper, Office Assistant and Record Clerk with reference to their qualifications possessed at the time of their qualifications prescribed for appointment as Junior Assistant/Typists they can be considered for appointment as Junior Assistant/Typist only with reference to Special rules governing the post of Junior Assistant/Typist and not with reference to the scheme of providing employment assistance on compassionate grounds.
(iii)The appointing authorities under no circumstances should appoint a dependent to a lower post when the dependent possess the qualifications required for the post of Junior Assistant/Typist on the ground of non availability of vacancy in the office or department or the dependent not willing to work in other departments. In such circumstances they should follow the existing procedure of approaching the Collector of district for providing a suitable vacancy as suggested in G.O.Ms. No. 1179 P.& A.R. dated 17.10.79.
Therefore, it is seen from Clause (i) that when a person who was already appointed on compassionate grounds to the post of Record Clerk and if he possess the qualification for the post of Junior Assistant at the time of his initial appointment, he may be appointed as "Junior Assistant".
It is made clear that this concession is allowed only to those who have already been appointed to the lower post. As per clause(ii) if the dependents, who are appointed to the lower post with reference to the qualification possessed at the time of their appointment, they can be considered for the appointment of Junior Assistant/Typist with reference to special rules governing the post of Junior Assistant/Typist and not with reference to the scheme of providing employment assistant on compassionate grounds. As per Clause (iii), the appointing authority under no circumstances should appoint a dependent to a lower post when the dependent possess the qualifications required to the post of Junior Assistant. Therefore, as per the above Government Order, on the date of passing of that G.O. if a person is working as "Record Clerk" and he was having the qualification for appointing himself as "Junior Assistant" he can be appointed as "Junior Assistant" from the date of that G.O. As per Clause (iii), there is a prohibition from appointing the petitioner who possess the qualification for being appointed as "Junior Assistant" or Record clerk . Therefore, considering the various clauses stated in G.O.Ms. No. 1499, after the date of that G.O. nobody should be appointed on compassionate grounds to a lower post of Record Clerk, Office Assistant and Sweeper, if they possess the qualification for the post of Junior Assistant. Therefore, when there is a prohibition for appointing a person to the post if he possess the qualification for the higher post, he ought to have been appointed for the higher post and if he had been appointed to the lower post when his services are regularised to the higher post, it must be given retrospective effect from the date of appointment, Therefore, the first respondent committed an error in regularising the service of the petitioner as "Junior Assistant" from the date of passing of the G.O.Ms. No. 66, Commercial Tax & Registration(A2) Department, dated 01.07.2008 and the first respondent ought to have been regularised the service of the petitioner as "Junior Assistant" from 23.06.2000 i.e. from the date of his initial appointment and the petitioner is also entitled to claim promotion as if he was appointed as "Junior Assistant" from 23.06.2000.
Hence, the impugned order of the first respondent dated 19.11.2000 is quashed and accordingly, this writ petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.