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Judgment
V. Ramasubramanian, J.—The petitioner in W.P. No. 21987 of 2006 was originally appointed as a Field Assistant on 03.08.1981 in the
Office of the Assistant Executive Engineer (Agricultural Engineering), Soil Conservation Scheme, Kovilpatti. The petitioner in W.P. No. 21988 of
2006 was initially appointed as Field Assistant on 05.11.1981 in the same office. Both of them were Approved Probationers in the said post of
Field Assistant.
The Soil Conservation Sub-Division was wound up with effect from 15.07.1988, as a result of which the Field Assistants working in the Sub-
Division were rendered surplus. Similarly, certain posts of Field Assistants in the hill area Development Programme were also disbanded in the
year 1988-89. Thus, 20 Nos. of Field Assistants including the petitioners herein were rendered surplus and the petitioners herein were discharged
for want of vacancies with effect from 14.08.1989 and 16.08.1989, respectively. However, the petitioners were reappointed as Tractor Cleaners
on 24.08.1989 and 11.09.1989, respectively after a small break in service.
While the petitioners were working as Tractor Cleaners, certain vacancies arose again in the post of Field Assistants and both the petitioners
were reappointed as Field Assistants with effect from 22.11.1993 and 08.11.1993, respectively. After such restoration in the original post, the pay
of the petitioners was fixed in the minimum of the time scale of pay of the post of Field Assistants, treating them as fresh appointments for the post
of Field Assistants in November 1993. As a result, the entire services rendered by the petitioners for a period of eight years in the post of Field
Assistants and four years in the post of Tractor Cleaners, got completely wiped out.
Therefore, the petitioners gave representations on 07.09.1995 and 17.03.1995 respectively to the Government, praying for condoning the small
break in service in the year 1989 and to grant the benefits of counting their past service for all purposes. Since the petitioners had not received any
response to those representations, they filed O.A. Nos. 2716 and 2718 of 1996 on the file of the Tamil Nadu Administrative Tribunal, praying for
a direction to the respondents to condone the break in service and to grant the consequential benefits of counting the entire period from the date of
initial appointment as service for the purpose of fixing of pay and the sanction of periodical increments. On the abolition of the Tribunal, these
applications have been transferred to this Court in W.P. Nos. 21987 and 21988 of 2006, respectively.
I have heard Mr. P. Rajendran, learned Counsel appearing for the petitioner as well as Mr. V. Arun, learned Govt. Advocate appearing for the
respondents.
The respondents have filed a reply admitting the fact that the petitioners were originally appointed in the year 1981 on a regular basis in the post
of Field Assistants and they were actually Approved Probationers. After the petitioners have rendered services for eight years, they were rendered
surplus and discharged for want of vacancies, on account of the winding up of the Sub-Division and disbandment of certain posts. After a few days
of such discharge, they were appointed in another post, namely, Tractor Cleaner in the year 1989 and they were again restored to their original
post of Field Assistant in November 1993. On the date of restoration in November 1993, the pay of the petitioners was fixed in the minimum of
the time scale of pay, wiping out the entire past services for a period of twelve years rendered by the petitioners.
The only reason stated by the petitioners for wiping out the entire past services of the petitioners is that after the petitioners were rendered
surplus, they were reappointed as Tractor Cleaners on humanitarian consideration, after relaxing the Rules for appointment in G.O.Ms. No. 1,
Agriculture (ASC) Department, dated 03.01.1992. Therefore, according to the respondents, the relaxation takes effect only from the date of the
order and hence they were entitled to be fixed only in the minimum of the time scale of pay.
But the said stand taken by the respondents is fallacious for the simple reason that the reappointment of the petitioners again to the post of Field
Assistants in November 1993, had an impact upon the fixing of their pay and the said impact is not considered by the Government Order in
G.O.Ms. No. 1. As a matter of fact, there are specific rules both under the General Rules for Tamil Nadu State and Subordinate Services and also
in the Fundamental Rules to cover the cases of persons who were discharged for want of vacancies and the manner in which their pay has to be
fixed upon reappointment. Unfortunately, the Government had not taken note of the provisions contained in these Rules, while fixing the pay of the
petitioners in the post to which they were restored.
Rule 7 of General Rules for Tamil Nadu State and Subordinate Services, deals with the right of the Probationers and Approved Probationers
for reappointment, as the heading given to the Rule itself denotes. The said Rule reads as follows:
Right of Probationers and Approved Probationers to reappointment
A vacancy in any service, class or category not being a vacancy which should be filled by direct recruitment under the Special Rules referred to in
Clause (a) of Rule 6 shall not be filled by the appointment of a person who has not yet commenced his probation in such service, class or category
when an approved probationer or a probationer therein is available for such appointment.
In order to reinforce the said Rule position, Rule 8 of Tamil Nadu State and Subordinate Services Rules also provides that the Approved
Probationers and the probationers discharged for want of vacancies shall be reappointed as and when vacancies arise. Before amendment, Rule
8(a)(ii) and 8(b) read as follows:
8(a)(ii) In other cases the probationers and approved probationers shall be discharged for want of vacancies in the order of juniority.
8(b) Approved probationers and probationers who have been discharged for want of vacancies shall be reappointed in vacancies (not being
vacancies which should be filled by the direct recruitment under the Special Rules referred to in Rule 6 arise, in the inverse of the order laid down
in Clause (i) or (ii) of Sub-rule (a):
After the amendment with effect from 17.06.1996, Rule 8, reads as follows:
Discharge and re-appointment of probationers, approved probationers and full members:
(a) Probationers, approved probationers and full members shall be discharged for want of vacancies in the order of juniority.
(b) Full members, approved probationers and probationers who have been discharged for want of vacancies shall be reappointed in vacancies
which arise, in the order of seniority.
Rule 9 also deals with the rights of the members who are absent from duty, either on account of leave or on account of being on foreign
service, or on account of deputation or for any other reason. In other words, Rule 9 takes care of the contingencies where a member of a service
is absent ""for any other reason"", and the said person who is absent, is entitled for reappointment, by virtue of Rule 9(a). Rule 9(a) reads as follows:
(a) for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an
approved probationer;
Fundamental Rule 26(a) specifically provides that all duty in a post on a time scale counts for increments in that time scale. Note 1 issued under
F.R.26(a), under G.O.Ms. No. 1072 P and A.R. (FR.III) Dept., dated 31.10.1986, makes the Rule position explicit in the following words:
Note 1.-If an officiating Government servant in a post, who has no substantive appointment is discharged from service for want of vacancy, he
shall on appointment to the same post, draw the pay last drawn prior to his discharge from service. The periods prior to the discharge from service
shall count for purpose of future increment in the time scale of pay of that post.
A reading of the above Note 1 in F.R.26(a) makes it clear that even an officiating Government servant, who has no substantive appointment, is
entitled to count his past service for the purpose of pay fixation as well as future increments. While that being the case even in respect of officiating
Government servants who have no substantive appointment, a similar benefit cannot be denied to the petitioners who were actually Approved
Probationers in the post of Field Assistants, by virtue of their regular appointment in the year 1981.
Since the Government had not considered the aforesaid Rule position while fixing the pay of the petitioners, at the bottom-most stage, on
reappointment in the year 1993, treating the petitioners as fresh entrants, the action of the respondents is totally illegal. Therefore, the petitioners
are entitled to the relief prayed for in the Original Applications, now transferred to this Court.
Accordingly, the writ petitions are allowed and the respondents are directed to condone the break in service suffered by the petitioners in the
year 1989 and to grant the benefit of pay fixation as well as future increments by counting the entire period of service rendered by them from the
date of their initial appointment in the year 1981, as duty for all purposes. Such an exercise shall be done by the respondents and completed within
a period of four months from the date of receipt of a copy of this order or on production of this order by the petitioner. No costs.