The Commissioner of Civil Supplies and Another vs P. Annamalai and Others

V. Ramaswami, J.—Writ Appeal Nos. 744, 745 and 746 of 1980: The points raised in all these writ petitions are the same. The facts are also almost identical, except that in one of the Gases an additional point is raised. We, therefore, think that it would be sufficient if we refer to the facts in the case where the additional point is raised.

The writ petitions were for the issue of writs of certiorarified mandamus or certiorari to quash the order made by the Government reverting the writ Petitioners from the Civil Supplies Department to the Revenue Department. The Petitioner Writ Petition No. 895 of 1978 (K. Vaidyanathan v. The Commissioner of Civil Supplies Department, Ezhilagam, Madras-5. (2) The Government of Tamil Nadu, represented by the Secretary to Government, Food Department, Madras-9) in Writ Petition No. 895 of 1978 joined the service of the Government on 20th August, 1954 as a Clerk in the Revenue Unit of Thanjavur District. He was promoted as an Upper Division Clerk in the Agricultural income tax Office, Thiruthuraipoondi, and he was transferred in 1964 from there to the Board of Revenue, (Settlement of Estates), and he joined in the Board of Revenue (Settlement of Estates) on 6th May, 1964. While he was working in the Board if Revenue (Settlement of Estates), he was appointed in the Civil Supplies Department as Assistant Supervisor, and he jointed duty on 7th January, 1966 (A.N.) It is stated that this post of Assistant Supervisor in the Civil Supplies Department is equal in cadre to that of the Deputy, Tahsildar in the Revenue Department. On 20th July, 1971, his services as Assistant Supervisor were regularised with effect from 8th January, 1966, and he was so declared to have satisfactorily completed the period of probation of six months. On 12th February, 1975, he was pr(sic)oted by the Commissioner of Civil Supplies as Senior Superintendent and posted as the Personal Assistant to the Assistant Commissioner of Civil Supplies Department, Perambur Zone. It appears that the posts of Senior Superintendent and Godwon Superintendent and Personal Assistant to the Assistant Commissioner in the Civil Supplies Department are equivalent to the grade of Tahsildar in the Revenue Department. While he was working as such Personal Assistant the Assistant Commissioner of Civil Supplies, the Commissioner of Civil Supplies Madras, in his proceedings, dated 21st February, 1977 ordered the reversion of the writ Petitioner to his parent Department with effect from 21st February, 1977. Afternoon, and further decided him to report before the Collector of Thanjavur for further postings. The Petitioner preferred an appeal to the Government. The Government in Memorandum No. 5924/E2/77-7, dated 18th October,1977 dismissed the appeal holding that then was no reason to interfere with the orders of reversion passed by the Commissioner of Civil Supplies.

The facts in the order two cases are almost identical, but the dates of appointments or promotions are different. In the other cases, we also do not have any evidence of the regularisation order dated 20th July, 1971 as in the case of the Writ Petitioner in Writ Petition No. 895 of 1978.

Before the learned single Judge, it was contended on behalf of the writ Petitioners that they had become full members of the Civil Supplies Department long earlier to the order of reversion, and that therefore, the Commissioner of Civil Supplies had no authority to revert them to their parent Department. In all these cases while they were servicing as such Personal Assistant or otherwise in the Civil Supplies Department, after the Department had been made permanent and Rules framed under Article 309 of the Constitution of India had been given retrospective effect from 1st December 1956, the Petitioners by proceedings dated 28th June, 1976 were asked to exercise their option on or before 15th July, 1976 either to remain in the Civil Supplies Department or to be reverted to their parent Revenue Department. It is not in dispute that these writ Petitioners did exercise their option within the period prescribed to remain in the service of the Civil Supplies Department itself. On the basis that they have been asked to opt and they have opted to remain in the civil supplies department it was contended before the learned single Judge that they had become permanent members with effect from 15th July 1976 before which date they had exercised their option and that it was not open to the Government or the Commissioner of Civil Supplies to revert them back to the Revenue Department. The Petitioners also contended that there are a number of persons who are juniors to the writ Petitioners and who were not reverted, that these Petitioners have been chosen arbitrarily for a hostile discrimination and that the order of reversion offends Articles 14 and 16 of the Constitution of India. They also contended that the order of reversion amounted to a punishment and since the procedure contemplated under Article 311 of the Constitution had not been followed the order is illegal. Though the Petitioners have made certain allegations of malafides, it does not appear that the point malafides was argued before the learned Judge or at any rate or at we have to state that the learned Judge did not deal with the question of malafides, as was not argued before him. However the learned Judge accepted the contention of the Petitioner, that when the service Rules made under Article 309 of the Constitution were applied with retrospective effect to staff of the civil Supplies Department, all those, who were originally transferred and posted from the Revenue Department to the Civil Supplies Department had become permanent members of the Civil Supplies Department and therefore, they could not have been reverted by the Commissioner. In view of this finding, the learned Judge considered it unnecessary to go into the other points raised on the basis of the option given to the respective Petitioners or the argument based on Articles 14 and 16 or Article 311 of the Constitution. However we may mention that in support of the finding that they could not be reverted the learned Judge also relied on the fact that the services of the writ Petitioner in Writ Petition No. 895 of 1978 in the Civil Supplies Department were regularised in the proceedings, dated 20th July, 1971. It is against this order of the learned Judge allowing all the writ petitions that the State has filed these three writ appeals.

The learned Advocate-General assailed the finding of the learned Judge on the ground that though the adhoc rules relating to the services in the Civil Supplies Department may be deemed to have been superseded with effect from 1st December 1956, under the relevant Government orders, the persons who belonged to the Revenue Department, but who were working in the Civil Supplies Department could not be deemed to have been appointed by transfer regular in the Civil Supplies Department, much less they could be considered as permanent employees of that Department, According to the learned Advocate General they continued to belong to the Revenue Department and they could be revert at any time to the parent Department.

The learned Counsel for the Respondent, however, not only supported the finding of the learned Judge but as wanted to support the order making the rule nisi absolute on other grounds which were not dealt with by the learned Judge, though raised by them and argued before him. Those contentions will be considered at a later stage. On the question whether the writ Petitioners should be deemed to have been appointed by transfer, when the service rules made under Article 309 of the Constitution which are applicable to the other services with such modifications as deemed necessary were made applicable with retrospective effect from 1st December, 1956, the learned Counsel for the Respondents contended that the finding of the learned Judge is right and does not call for any interference.

The Civil Supplies Department was originally known as the Board of Revenue (Civil Supplies). As it was originally constituted, it was a temporary Department and the service conditions of all persons who were working in that Department were governed by adhoc rules, so that if the Department had been abolished, the persons working therein would have been recruited originally his services could have been dispensed with without following the procedure prescribed under Article 311 of the Constitution. However the Department later on came to be made permanent with effect from 1st December, 1956. The Petitioners are some of those who were working in the Revenue Department on regular basis and they were transferred and posted to work in the office of the Commissioner of Civil Supplies. The learned Counsel for the Respondent did not dispute that at the time when they were originally posted in the Civil Supplies Department, they were holding their respective positions temporarily and that they had a lien on the parent Department. However, when these ad hoc rules were withdrawn and were superseded by regular Rules framed under Article 309 of the Constitution after the Department had been made permanent, according to the learned Counsel for the Respondents�writ Petitioners they should be deemed to have been appointed by transfer regularly in the Civil Supplies Department. It may be mentioned that the Rules as applicable to the Civil Supplies Department contemplate not only direct recruitment, but also recruitment by transfer. The argument of the learned Counsel for the Respondents was on the ground that if the writ Petitioners are to be fitted in a class of service under the Rules, they could come only under the category of recruitment by transfer. Though the learned Judge held that the adhoc rules have been superseded when the Madras Ministerial Service Rules were made applicable to the Civil Supplies Department, and that finding was on a consideration of the relevant Government Orders with which we agree, no reasons are mentioned in the order as to how the Petitioners could be deemed to be permanent employees of the Civil Supplies Department by reason merely of applying the Madras Ministerial Service Rules to the Civil Supplies Department. We are of the view that unless there is a separate order or any other legal inference by which the Petitioners could be deemed to have been appointed by transfer regularly, merely on the ground of extending the application of the Madras Ministerial Service Rules or the other Rules applicable to the Revenue Department or the other Government servants to those working in the Civil Supplies Department, it is not possible to hold that those who were in the cadre of other Departments but working in the Civil Supplies Department automatically became the permanent employees of the Civil Supplies Department. However, we consider that the Respondents are well-founded in their contention that by reason of the subsequent conduct proceedings and the option given to the Petitioners, they had become the permanent employees of the Civil Supplies Department and had ceased to be the employees of the Revenue Department. We have already stated earlier that after the Madras Ministerial Service Rules and, the other Service Rules applicable to the various Departments were made applicable to the Civil Supplies Department, there was a need to take a follow up action and fix the persons who are working in the Civil Supplies Department in their respective cadres and it appears it is in that direction the memo, dated 28th June, 1976 was issued directing each one of those who are working in the services of the Civil Supplies Department, including the writ Petitioners to exercise his option to continue in the Civil Supplies Department Permanently or to go back to their parent Revenue Department. Paragraph 2 of the communication dated 28th June, 1976 reads as follows:

In order to absorb against the substantive posts to be created in this Department the members of staff having lieu in various other departments and who are now working in the Civil Supplies set up, it is necessary to obtain their willingness or otherwise for being permanent by absorbed in this Department subject to their suitability in preference to their respective parent departments. In view of this position, Thinu/Tmt./Selvi...belonging to...department and at present working as...in this department is requested to state whether he/she is willing to be permanently absorbed in the Civil Supplies Department The option in this regard should be exercised on or before 15th July, 1976.

There is no dispute that the three writ Petitioners who are Respondents in these appeals, did exercise their option before 15th July, 1976 for permanent absorption in the Civil Supplies Department. There can be no doubt that this communication was sent by the Commissioner of Civil Supplies, the first Appellant herein, in consequence of the various Government orders relating to the conditions of service of those who were working in the Civil Supplies Department, but belonging to various cadres in the other Departments. There could, therefore, be no doubt that it was the decision of the Appellants, i.e., the Government and the Commissioner of Civil Supplies, to make all these willing for permanents absorption in the Civil Supplies Department, permanent member of the staff of the Civil Supplies Department and cease to be members of the parent Revenue Department. If that was done, there is nothing further to be done by the Government after the respective members of the staff have exercised their option and have become automatically the members of the Civil Supplies Department. A some what similar question came up for consideration before the Supreme Court in the decision in The state of U.P. and Others Vs. Ram Naresh Lal, . In that case, certain members belonging to the Irrigation Department were transferred and posted as Assistant Accountant in the Office of the Development Commissioner (Planning Department). When difficulty arose as to the authority competent to take disciplinary action against those who were transferred to the Development Commissioner''s Officer, the Government made an order that those transferred Officers should be treated to have beer, transferred to the control of the Development Commissioner from the date of the Government Order, and that those staff at present transferred may be given the option to elect their permanent transfer in the Planning set-up organ back their parent department, viz., Irrigation Department. The order further stated:

You may issue a fresh order of appointment of staff, who elect to remain in Planning Department. Their services will be deemed as continuous.

In pursuance of this Government Order, when the transferred employees were asked to exercise their option, the Respondent before the Supreme Court had exercised his point remains in the Development Commissioner''s Office. But no order reappointing him was passed by the Development Commissioner as stated in the Government Order. When disciplinary proceedings were initiated by the Development of Commissioner, the question that arose for consideration was whether the employees should be treated as a permanent employee of the Development Commissioner''s Officer was a member of the staff of the Irrigation Department. The Supreme Court had held that:

If a person is a member of the service and he is transfer red from one Department to another, it is not necessary that be should be re-appointed to the service or he should be appointed to the department to which he is transferred. As soon as he is transferred permanently he begins to hold the permanent post which he starts holding in the transferee department... It seems to us that the Respondent, having elected not to go back to his parent department, became an employee in the Planning Department and, therefore, the Development Commissioner was entitled to dismiss the Respondent.

This decision is a clear authority for the position that when the Commissioner for Civil Supplies, in pursuance of the various orders of the Government issued the communication, dated 28th June, 1976 requiring the Petitioners to exercise their option for permanent absorption in the Civil Supplies Department, and in pursuance of the same the writ Petitioners exercise their option, they became the permanent members of the Civil Supplies Department and there was no need for any other order of appointment either by the Commissioner for Civil Supplies or by the Board of Revenue or by the Government.

A similar view was taken by the Mysore High Court also in the decision reported in Ramasanjeevayya (K.R.) Vs. State of Mysore and Another, . The learned Judges have arrived at the same conclusion as the Supreme Court has done on the ground that the Government is estopped from contending that they have not become the permanent staff of the transferred Department when once the transferred employees were given the option and they have exercised their option to be absorbed permanently in the transferred department. We are, therefore, of the view that, though we are unable to agree with the learned Judge that by reason of extending the application of the Madras Ministerial Service Rules to the Civil Supplies Department or making the Civil Supplies Department a permanent Department, the writ Petitioners automatically had become the permanent members of that Department, on the facts of this case, and in view of the option given to the Petitioners, they had become the permanent members of the Civil Supplies Department, and they could not have been reverted to their parent Department thereafter.

Though the learned Counsel for the Respondents, as already stated, tried to support the rule nisi on the ground that the impugned orders offend Articles 14, 16 and 311 of the Constitution and also vaguely suggested that the orders are malafide, we are not called upon to decide these questions as even on the other ground they are entitled to the relief prayed for these reasons, we are also not called upon to consider the effect of regularisation in the case of one of the Petitioners, viz., the Petitioner in Writ Petition No. 895 of 1978. In the results we confirm the order of the learned Judge, though for different reasons and the writ appeals fail and they are according by dismissed. But, there will be no order as to costs.

Writ Appeal No. 741 of 1976�This writ appeal arises out of Writ Petition No. 1448 of 1979. The learned Single Judge in disposing of the writ petition, has followed his earlier judgment in Writ Petition No. 895 of 1978, dated 3rd October, 1980 which we have upheld today, though on different grounds. But in their case also, we find that though for some period the writ Petitioner was on deputation to the Tamil Nadu Civil Supplies Corporation Ltd., he had been reverted back to the Civil Supplies Department and continued to remain there as a number of the Civil Supplies Department, the Petitioner''s services were regularise and, therefore he shall be deemed to have been permanently appointed in the Civil Supplies Department. In fact, when he was reverted from the Tamil Nadu Civil Supplies Corporation Ltd., to his parent Department, viz., Director of Treasuries and Accounts, Madras, he filed an appeal to the Government, and the Government in Memorandum No. 21731/OP/74, dated 20th January, 1975, informed the Commissioner of Civil Supplies that the contention of the Petitioner that he is entitled to reversion as a Superintendent in the Civil Supplies Department from the Tamil Nadu Civil Supplies Corporation was in order, and therefore, requested the Commissioner of Civil Supplies to issue suitable postings as a Superintendent in the Civil Supplies Department. This could only on the basis that he had become a permanent staff member of the Civil Supplies Department, and did not continue to be in the service of the Directorate of Treasuries and Accounts. Accordingly, the order of reversion in this case also is liable to be set aside. The Writ appeal, therefore, fails and it is dismissed. There will be no order as to costs.

The learned Advocate-General made a request under Article 134-A of the Constitution for grant of leave to appeal to the Supreme Court. Since we have followed the judgment of the Supreme Court in The state of U.P. and Others Vs. Ram Naresh Lal, . We are not satisfied that any substantial question of law of general importance which need to be decided by the Supreme Court arises out of our order. Accordingly, leave prayed for is not granted.