IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26-04-2010
CORAM :
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
W.P. No. 46697 of 2006
1. B. Radhakrishnan
2. R. Mugunthan
3. K. Chandrasekaran
4. P.M. Arachelvi
5. V. Ayyappan
6. M. Prabhakaran
7. V.K. Baskar
8. N. Padmanabhan
9. M. Ramesh
10. K. Subramanian
11. V. Srinivasan
12. L. Janardhanan
13. V. Anandha Ramakrishnan
14. V. Revathi
15. L. Venkatachalam
16. V. Shanmugavelu
17. A. Prema
18. T.V. Murali
19. Devendran
20. R. Raghu
21. R. Ramachandran
22. G. Alaguvelu
23. M.Baggyalakshmi
24. K.K. Gokulnath Babu
25. V. Sukumar
26. S. Venkatesan
27. K. Suresh Kumar
28. A. Ramakrishnan
29. R. Senthilkumar
30. S. Selvam
31. S. Shankari
32. M. Parimala
33. S.Umamaheswari
34. N.R. Shanthi
35. M. Sathiavani
36. K. Jayanthi
37. S. Rita Lidya
38. V. Vatsala Devi
39. J. Janaki
40. D. David Gnanaraj
41. D.Jacob
42. N. Nagarajan
43. K.P. Sujatha
44. G. Maragatham
45. K. Saraswathi
46. A.C. Aruna
47. N. Swaminathan
48. S.T. Kamal Kumar
49. M. Punithavel
50. P. Narayan
All the applicants are working as
Typists in various Departments
of Secretariat, Chennai 9 . Petitioners
Versus
1. The Secretary to Government
Personnel & Administrative Reforms Dept
Fort St. George
Chennai 600 009
2. The Tamil Nadu Public Service Commission
rep. by its Secretary
Government Estate
Chennai 600 002 .. Respondents
O.A. No. 5527 of 2000 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, which was filed praying to call for the entire records relating to the impugned proceedings of the first respondent in his impugned G.O. Ms. No.67, Personnel & Administrative Reforms Department dated 27.03.1998 and quash the said impugned G.O. Ms. No.67, issued by the first respondent dated 27.03.1998 in so far as it affects the applicants and direct the respondents to promote the applicants as Assistants and further promotions with all consequential benefits.
For Petitioners : Mr. M. Venkatapathy, Senior Counsel
for Mr. M. Sriram
For Respondents : Mrs. Lita Srinivasan
Government Advocate
ORDER
The petitioners were recruitted through Tamil Nadu Public Service Commission as Typist and they were posted in various departments originally under the Tamil Nadu Ministerial service. After serving as Typist (for a period ranging between three years to nine years) they opted to come to Tamil Nadu Secretariat service through recruitment by transfer in 1993 as this post was the entry level post and allotted to the Secretariat. It is pertinent to point out that the petitioners entry into the Tamil Nadu Secretariat service was considered only on their forefeiting their previous service for seniority in the post of Typist in the Tamil Nadu Ministerial Service. According to the petitioners, they opted to enter into Tamil Nadu Secretariat Service with the found hope of serving the secretariat, which provides them more avenues for promotion and other benefits. It is also tobe pointed out that this class of persons by transfer of service are very meager numbering about 49 candidates only. It was also made clear that once the petitioners joined services of Secretariat by transfer of service, their further pay and promotion will have to be worked out as per the Rules and Government order concerning the same. In fact, the petitioenrs have joined duty in the original parent body right from the years 1982, 1984, 1987 and 1990 respectively. At the time of their entry into Tamil Nadu Secretariat Service, there was no scope in the Tamil Nadu Secretariat Service Rules for filling up the post of Assistant by direct recruitment. It is only the Typist, Personal Clerks and others who had the qualification namely graduation with technical qualification will be selected as Assistant by themethod of promotion from the feeder category by recruitment by transfer. In fact, Tamil Nadu Secretariat Service is governed by Tamil Nadu Secretariat Service Rules framed under Article 309 of the Constitution of India with effect from 12.04.1988. Furthermore, on 09.02.1990 by G.O.Ms. No.71, P & AR Department, on the recommendations of the administrative reforms committee, the Government amended Tamil Nadu Secretariat Rules and abolished the system of direct recruitment to the post of Assistant. The Special Rules were amended by invoking Article 309 of the Constitution of India with effect from 09.02.1990. Therefore, there was no scope for any fresh appointment in future for the post of Typist, which has been given effect to in the Government letter dated 03.04.1995 also. Hence, the petitioners were the last and only batch expecting their promotion as Assistant. The petitioners chance for promotion, which is recognised as the fundamental Rules by the Court is being now denied by a subsequent retrospective amendment. As the petitioners joined service as typist by recruitment by transfer, they were the feeder category to the post of Assistant. Subsequently, after the petitioners joined the service, the Government issued GO Ms.No. 315, P& AR dated 19.08.1993 under which the Government issued administrative orders and introduced direct recruitment to the post of Assistant and fixed 50% quota for direct recruitment. Thereafter, G.O. Ms. No.58, P & AR Department dated 20.02.1995 was passed by which the prescription as typewritting qualification was modified for the post of Assistant. By administrative order dated 29.11.1995, made in G.O. Ms. No.362, the Government prescribed method of appointment and fixed 50% quota for direct recruitment and other 50% allotted to four categories. Here again, it was specifically stated that amendment to the special Rules should be made in view of the fact that they were given promotion and making qualification for direct recruitment. This was challenged by the petitioners and others in two Original Applications namely O.A. No. 9448 of and 9886 of 1997 before the Tamil Nadu Administrative Tribunal on the ground that Special Rules are not amended under Article 309 of the Constitution of India hence, it cannot be invoked. By order dated 03.04.1998, the Tribunal accepted the contention of the petitioners and held that the order cannot be given effect to without amendment, but the Tribunal, without quashing the said Government Order, in the last paragraph, gave time for the Government to make amendment as per Article 309 of the Constitution of India within six weeks, failing compliance, the Government Order shall stand quashed. At the same time, direction was also given by the Tribunal to consider the case of the petitioners to the post of Assistants as per Rules. Even before the order was passed on 03.04.1998 by the Tribunal, GO Ms. No.67, P&AR Department dated 27.03.1998 was passed wherein amendment of the Rules were brought in with retrospective effect namely 19.08.1993, the date on which the GO Ms. No.315, P&AR Department 19.08.1993 was passed introducing direct recruitment to the post of Assistant fixing quota. The said amendment with retrospective effect is being questioned by the petitioners by filing the Original Application before the Tribunal. Furthermore, in the amendment brought out the respondents did not consider the name of the petitioners suitably for promotion as Assistant, as directed by the Tribunal. Furthermore, the amendment is also illegal as it was not made out any saving provision in so far as existing typists are concerned. Admittedly, thepetitioners are eligible to be promoted as per the Rules in the year 1994 itself. Therefore, the petitioners would contend that the impugned amendment to the special Rules of Tamil Nadu Secretariat Service, providing for direct recruitment to the post of Assistant is unconstitutional, ultra vires, arbitrary and opposed to public policy and therefore it is liable tobe quashed. The petitioners also contend that thepersons directly appointed as Assistant not only seek for regularisation of essential conditions prescribing qualification by trying to get further promotion on the basis of the proposed regularisation. Therefore, the procedure adopted by the respondents is arbitrary, illegal and discriminatory. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 46697 of 2006.
2. The respondents filed a detailed reply affidavit contending that in the earlier Original Application filed before the Tribunal, being OA No. 9866 of 1997, the petitioners therein prayed to quash the orders passed in G.O. Ms. No.315 dated 19.08.1993 and G.O. Ms. No.362 dated 29.11.1995 and direct the respondents to consider the case of the petitioners for promotion to the post of Assistant under Rule 5 (3) (a) of the Special Rules for Tamil Nadu Secretariat Service, before effecting direct recruitment to the said post. The Tribunal, by judgment dated 03.04.1998 dismissed the said Original Application on the ground of laches and also on the ground that already the petitioners were beneficiaries of executive orders for promotion and they cannot have any grievance in respect of direct recruitment. As per the operative portion of the order, the Government was given six weeks time to amend the Rules. Similarly, another group of seven individuals filed O.A. No. 9448 of 1997 challenging G.O. Ms. No.362 dated 29.11.1995. Aggrieved against the dismissal of the two Original Applications, the petitioners and others filed WP No. 5205 of 1998 before this Court to call for the records in connection with the Order dated 03.04.1998 of the Tribunal and also GO Ms. No.315, P&AR Department dated 19.08.1993 and GO Ms. No.362, P&AR Department dated 29.11.1995 and quash the said orders. On 07.04.1998, this Court granted interim order restraining the respondents from appointing any fresh candidate until further orders. A vacate stay petition was also filed by the respondents in WMP No. 8029 of 1998 to vacate the order of interim stay. On 21.05.1998, the order was modified by this Court to the effect that this Court can appoint persons in the vacancy subject to the result of the writ petition. Only thereafter, orders were issued by the government to candidates selected by the Tamil nadu Public Service Commission. Subsequently, the present O.A. No. 5527 of 2000 was filed challenging G.O. Ms. No.67, P&AR Department dated 27.03.1998 and to direct the respondents to promote the petitioners as Assistants. The respondents further contend that in so far as the present case is concerned, since the petitioners approached the Tribunal and the Tribunal also granted six weeks time to bring in necessary amendment and the amendments were also carried out as per G.O. Ms.No. 67, P&AR Department dated 27.03.1998, the prayer of the petitioners is not sustainable. As the amendments were carried out within the time granteed by the Tribunal and this is a policy decision of the Government to re-introduce direct recruitment to the post of Assistant in the interest of justice, the same cannot be interfered with by this Court. It was also contended that the Government also provided ample chances for promotion of the petitioners in addition to direct recruitment and the petitioners have ample scope for writing competitive examinations and to get selected for appointment by direct recruitment in addition to their chances for promotion under the quota allotted for them. It was also contended that any amendment can be made with retrospective effect and merely because it was given with retrospective effect, that by itself cannot be challenged. Further, by re-introducing direct recruitment, avenues available for promotion for the petitioners are not closed. Even as per the amended Rules, the petitioners can get promotion as Assistants and further they have got avenues open to next higher post also as per the prescribed ratio, hence, the writ petition as such is not legally sustainable or maintainable.
3. The learned Government Advocate brought to the notice of this Court that the writ petition filed by the petitioners challenging the order dated 03.09.1998 passed by the Tribunal on 03.04.1998 in O.A. No. 9448 and 9886 of 1997 was ultimately disposed of this Court by judgment dated 27.03.2002 with a direction to await final result in this original Application challenging the amended Special Rules. The Division Bench has stated that the statuso-quo as on date shall be maintained. Therefore, the present order will bind the entire promotion process. The learned Government Advocate brought to the notice of this Court that even the writ petition filed by the petitioners earlier challenging the order of the Tribunal in WP No. 6928 and 6988 of 1998 was dismissed by a Division bench of this Court on 27.03.2002 stating that the petitioners have to await the final result in the Original Application filed by them challenging the amended Rules.
4. Heard both sides. It is seen from the records that originally, by GO Ms. No.71 dated 09.02.1990, on the recommendation of the administrative reforms committee and III Pay commission, direct recruitment to the p;ost of Assistant were abolished and as per Rule 5 of Special Rules for Tamil Nadu Secretariat Service, appointment to the category of Assistants in the departments of Secretariat, other than Law Department are governed by Secretariat would be made by (i) direct recruitment (ii) transfer from category of personal clerk or typist (iii) for special reasons recorded by transfer from any other service. Subsequent to the recommendations, the appointment to the category of Assistant in the Departments of Secretariat other than law department in the Tamil Nadu Secretariat Service, shall be made only by recruitment (a) recruitment by transfer from among the holders of the posts of Junior Assistants and Assistants in the Tamil Nadu Ministerial Service and Tamil Nadu Judicial Ministerial Service through competitive examinations conducted by the Tamil Nadu Public Service Commission. This method shall be followed from the next recruitment onwards; or (b) by deputation or appointment from among Personal Assistants, Typists including personal clerks and Tamil Typists and who are full members or approved probationers (c) for special reason, by recruitment by transfer from Record Clerks and graduate office assistants in Secretariat and (d) selecting candidates for appointment as Assistant (formerly Junior Assistant) in Law Department by direct recruitment through Tamil Nadu Public Service Commission by way of conducting group V competitive examinations. Subsequent to G.O. Ms. No. 391 dated 14.12.1992, G.O. Ms.No.71, P&AR Department dated 09.02.1990 was amended abolishing the recruitment of Assistants directly with effect from 09.02.1990 i.e., from the date of G.O. Ms. No. 71, P&AR Department dated 09.02.1990. Subsequently, on 16.07.1993, by a government letter No. 23745/Pers/98-1, P&AR Department, instructions were issued that in case of posts governing by Rules without any amendment, the existing Rules are to be issued, promotion or appointment should be made on adhoc basis with reference to proposed amendment to Rules, but shall be made only with reference to existing Rules because amendment has to be carried out as per Article 309 of the Constitution in the Rules. In the meanwhile, the petitioners were all recruitted as Typists by recruitment by transfer in May 1993 and they belonged to feeder category to the post of Assistants. Even though they were originally appointed under the Judicial Ministerial service in the years 1982, 1984, 1987 and 1990, after taking over the post in the Secretariat service, they will be governed by the Tamil Nadu Secretariat Service. So at the time of their joining the post, direct recruitment of Assistants was in force. Then, subsequently, GO Ms. No.315 dated 19.08.1993 was issued on the representation of the Tamil Nadu Secretariat Association whereby the Government decided to restore the method of direct recruitment along with recruitment by transfer and other modes of recruitment to the category of Assistant in Secretariat. It was further held that direct recruitment will be for 50% of vacancies in the first instance and in partial modification to the orders issued in earlier Government orders, it was modified as 50% of the vacancies shall be filled up by direct recruitment and the remaining shall be filled by recruitment by transfer from the holders of the post of Junior Assistant and Assistant in Tamil Nadu Ministerial Service and Tamil Nadu Judicial Ministerial Service as ordered in G.O. Ms. No.71 dated 09.02.1990. In this Government Order, it was further stated as far as direct recruitments as well as for transfer from Tamil nadu Ministerial service/Tamil nadu Judicial Ministerial service, qualification in typewriting senior grade in Tamil and English should be prescribed as additional qualification. It was also directed that Tamil Nadu Public Service Commission has to call for examination and then call for the selection and recruit 50%. Thereafter, on 28.02.1995, G.O. Ms.No.58 dated 28.02.1995 was issued modifying the qualification made in G.O. Ms. No.315 dated 19.08.1993 under which the Rule was modified to the extent that typewritting qualification shall not be insisted upon at the entry stage and persons with knowledge of typewriting need not be given preference at the time of selection, however,they can get the knowledge of typewriting within two years from the date of their initial appointment and probation shall be declared only after getting the qualification. On 03.04.1995, an amendment was sought for in G.O. Ms. No.58 stating that in future, there shall be no recruitment to the post of typist in the Tamil Nadu Secretariat Service through TamilNadu Public Service Commission. Finally, G.O. Ms. No.362 dated 29.11.1995 was passed under which the question of appropriating the 50% vacancies earmarked for the method of appointment other than ‘direct recruitment’ was fixed. In and by the said Government Order, 50% earmarked for other than direct recruitment has been apportioned as follows:-
i) Junior Assistants and Assistants in Tamil Nadu Ministerial Service/Tamil Nadu Judicial Ministerial Service 30% ii) Graduate Record Clerks, Graduate Typists, Graduate Telephone Operators and Graduate Drivers working in Secretaiat 10% iii Non-graduate Record Clerks, Non-graduate typists working in Secretariat 5% iv) Graduate Office Assistants Graduate Van Cleaners working in Secretariat 5%
5. Ultimately, G.O. Ms. No.67 dated 27.03.1998 was passed introducing direct recruitment as well as recruitment by transfer by amending the Special Rules. This amendment has stated to have come into force with effect from 19.08.1993. At this juncture it is to be pointed out that earlier, thepetitioners and others have filed O.A. No. 9866 and 9448 of 1997 before the Tribunal to quash GO Ms. No.315, P&AR Department dated 19.08.1993 and GO Ms. No.362, P&AR Department dated 29.11.1995 and direct the respondents to consider their case for promotion to the post of Assistants under Rule 5 (3) (a) of Tamil Nadu Secretariat Service Rules before effecting direct recruitment to the said post. In that Original Application, it was specifically pleaded that there was no direct recruitment to the post of Typist after 03.04.1995, however, by the Government letter dated 19.08.1993 and 29.11.1995, the government proposed to resort to direct recruitment for appointment to the post of Assistant in Tamil Nadu Secretariat Service and by this Government Order, the promotion chance of the petitioners were affected. Under this order, 50% of vacancies in the post of Assistant in Tamil nadu Secretariat service was decided tobe filled up by way of direct recruitment and as there was no amendment ordered, the same cannot be implemented at all. It was further contended that only by amendment of Service Rules, the Government can resort to direct recruitment, is permissible. It is also contended that by a notification in Dinamalar Tamil Daily dated 29.03.1997, the Tamil Nadu Public Service Commission invited applications from the open market for direct recruitment to the post of Assistant at the Government Secretariat Service. Earlier, in the year 1993-1996, for 183 posts, 210 candidates were stated to have been selected and totally 309 posts reserved for direct recruitment. Between the years 1993 to 1996, only 129 candidates were promoted to the post of Assistant in Tamil Nadu Ministerial service from the post of Typist and 66 candidates brought from other posts. Therefore, the orders are affecting the petitioners adversely and this is in violation of Articles 14 and 15 of the Constitution of India.
6. The Tribunal, after considering the case in detail, held that an amendment to the Rules cannot be made by way of executive instructions as per the decision of the Supreme Court, but the Tribunal held that in view of the fact that the petitioners approached the Tribunal only on 14.11.1997 and by the time the Tamil Nadu Public Service Commission completed the examination and sent the list to the Government and it was also pointed out that the Government intended to amend the Rules retrospectively and further the matter was pending before the Tribunal they are refraining from carrying out the amendment. It was also held that they cannot appoint a candidate selected by the Tamil Nadu Public Service Commission unless the Rules are amended and the vacancy position stood above the estimated number. It was held in Para Nos. 6 and 7 as follows:-
“6. Estimates for recruitment by transfer for 59 vacancies from Tamil Nadu Ministerial Service and Tamil Nadu Judicial Ministerial Service was also sent to the Tamil Nadu Public Service Commission has allotted 210 candidates selected for appointment as Assistants by direct recruitment for the year 1993-96. As requested by the Tamil Nadu Public Service Commission the excess number of 24 candidates have been adjusted and a revised estimate vacancy for 1996-97 has been fixed as 75 and the same has been furnished to Tamil Nadu Public Service Commission on 25.11.1997.
7. Due to delay in recruitment of candidates arose during 1990-96, the available vacancies were filled up by promoting the personal clerks/ Typists (Graduats) totalling about 287 as indicated below:
Year Out of which No. of Graduate Typists Promoted are) 1991 Personal Clerks & Typists 39 24 1992 Personal Clerks & Typists 76 43 1993 (1st list) Personal Clerks & Typists 31 19 1.8.94 1993 (2nd list Personal Clerks & Typists 50 (172) 41 (139) 26.9.94 1994 Personal Clerks & Typists 34 19 1995 Personal Clerks & Typists 32 25 1996 Typists 25 25 ---- ---- 287 196 " 7. It is also clearly mentioned that no direct recruitment was made since 1990-1996. The Tribunal, further held that as the Government has decided toamend the Rules with retrospective effect from the date of issuance of the Government Order, the final order was passed as mentioned below:-
23 In the light of our discussions above and in the peculiar circumstances of the case and on consideration of equality, the respondents are given six weeks time to consider the issuance of necessary amendment to the rules as submitted by them and act pursuant to such amended rules. During this period the interim orders shall stand vacated. On the failure to do so, G.O.Ms.No.315 dated 19.8.93 and G.O.Ms. No.362 dated 29.11.95 shall stand quashed and the respondents are directed to consider the case of the applicants forpromotion to the post of Assistants as per rules. These O.A.s are ordered accordingly.”
8. Therefore, the Tribunal, without considering the whole issue was made to understand and believe that without an amendment to the Rule, appointments cannot be made. Therefore, the instructions cannot be implemented which is known to the Government. It is also made clear that there was no direct recruitment between 1990-1996. So, any appointment also through Tamil Nadu Public Service Commission was made only after the date of the judgment namely 03.11.1998. But in view of the undertaking given in the Court, just seven days before the passing of the judgment, the amendment has come into force with retrospective effect from 19.08.1993 in the impugned government order, which is under challenge. By virtue of this amendment, the present petitioners, who has come into the Secretariat Service, foregoing their earlier seniority, has been totally put to irreparable loss in view of the fact that they were under fond hope of getting promotion and it has been affected. Undoubtedly, the Government has thought it necessary that only 50% was sought to be filed up and the balance 50% shall be equally apportioned within the four categories, therefore, the petitioners cannot have any grievance, which may not be correct as even at the earliest stage namely prior to recruitment, they filed the earlier Original Application challenging the very process of selection itself and the implementation of the same without amendment to the Rule cannot be made and it was also accepted by the Government in the Court but only with a condition that they are going to amend the Rule with retrospective effect.
9. Now the point for consideration at this stage is whether the retrospective amendment can take away the vested right of the petitioners, which under law has been given to them by virtue of their longer experience in the Secretariat Service especially when they have already relinquished their right in respect of their earlier experience before coming into Tamil Nadu Secretariat Service.
10. The learned senior counsel for thepetitioner relied on the decision reported in (State of Gujarat and another vs. Raman Lal Keshav Lal Soni and others) AIR 1984 SC 161 which was a decision rendered by the Constitution Bench of the Supreme Court wherein in para-52, it was held as follows:-
“52. The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the dos and donts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with todays rights and not yesterdays. A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in B.S. Yadav v. State of Haryana. Chandrachud, C.J. speaking for the Court. Since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. Todays equals cannot be made unequal by saying that they were unequal 20 years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 311 and 14 and is arbitrary and unreasonable. We have considered the question whether any provision of the Gujarat Panchayats (Third Amendment) Act, 1978 might be salvaged. We are afraid that the provisions are so intertwined with one another that it is well nigh impossible to consider any life-saving surgery. The whole of the Third Amendment must go. In the result Writ Petitions Nos. 4266-4270 of 1978 are allowed with costs quantified at Rs 15,000. The directions given by the High Court, which we have confirmed, should be complied with before June 30, 1983. In the meanwhile, the employees of the panchayats covered by the appeal and the writ petitions will receive a sum of Rs 200 per month over and above the emoluments they were receiving before February 1, 1978. This Order will be effective from February 1, 1983. The interim Order made on February 20, 1978 will be effective up to January 31, 1983. The amounts paid are to be adjusted later.”
11. It is clear from the decision of the Honourable Supreme Court that the legislature cannot legislate today with reference to a situation that existed long back. Similarly, no law can be made to destroy today’s accrued constitutional rights by artificially referring to a situation which existed earlier, long back. In this case, the petitioners have acquired their right to be promoted as Assistants without the intervention of the direct recruitees to the post of Assistants even before the amendment was sought to be introduced in the year 1998. But the vested right is taken away by retrospective amendment bringing it with effect from 19.08.1993, but for this amendment that too with retrospective effect all the petitioners would have been safeguarded and they would have got benefits. Therefore, the Honurable Supreme Court held that the right of promotion is a right vested with the Government servant and such a right cannot be taken away by virtue of a subsequent amendment especially when earlier they challenged the same knowing fully well they cannot sustain the amendment to the Rules. The respondents, having admitted so in the earlier petition also, to circumvent the order of the Court, they have retrospectively made the amendment. In fact, in the earlier order of the Tribunal in the concluding paragraph, the Government Order was quashed subject to the amendment being made. Therefore, the decision of the Honourable Supreme Court is squarely applicable to the facts of this case.
12. The learned senior counsel also relied on the decision of the three Judges of the Honourable Supreme Court reported in (P. Murugesan and others vs. State of Tamil Nadu and others) (1993) 2 SCC 340 wherein in para No.27, it was held as follows:-
“27. In our opinion Section 87 does indicate and manifest the concern of the legislature that the vacancies occurring in the Corporation Service should not be kept unfilled for a period of more than three months. Sub-section (3) which provides for the consequence of default on the part of the council to abide by sub-section (1) emphasises the concern of the Legislature. So also does sub-section (2). Sub-section (4) says that if there is going to be any delay or if a suitable or qualified person is not available, the council may appoint a person on temporary basis. The said provision is, therefore, analogous to, and indeed more specific than Rule 4 of the Andhra Pradesh Registration and Subordinate Service Rules considered in Rangaiah v. Sreenivasa Rao. Accordingly it must be held that the learned counsel for respondents 3 to 8 is right in his submission that the vacancies occurring prior to three months before the date of commencement of the impugned amendment ought to have been filled in accordance with the rules then obtaining. At the same time we cannot fail to recognise the force in the argument of the learned counsel for the appellants that the respondents not having raised the said contention in the High Court i.e., before the learned Single Judge or the Division Bench should not be allowed to raise the same in this Court for the first time. On a balancing of the contending equities, we are of the opinion that the following direction would be the appropriate one in the particular facts and circumstances of this case. The direction is this:
The Corporation shall ascertain the vacancies in the category of assistant executive engineers, that have arisen three months prior to the coming into force of the impugned amendment (introducing the quota of 3:1 as between degreeholders and diplomaholders) and shall work out the vacancies which would have gone to the diplomaholders if unamended rules had been followed. The Corporation shall also ascertain which of the diploma~holders would have been promoted in those vacancies. Such diplomaholders will be promoted in the vacancies that may be existing as on today and those that may arise in future. Until these ~diplomaholders are so promoted to the category of assistant executive engineers, no degreeholders shall be promoted. After these ~diplomaholders are so promoted and thereafter, it is obvious the amended rules shall be applied and followed. It is further directed that as and when a diplomaholder is promoted in pursuance of this direction, his promotion shall be given effect to from the date he ought to have been promoted. Such diplomaholder promotees shall be entitled to the benefit of seniority and pay fixation flowing from such retrospective promotions, but they shall not be entitled to the arrears of difference in salary for the period they have not actually worked as assistant executive engineers.”
13. In the above ruling, the Honourable Supreme Court held that when the Rules prescribing eligibility criteria for promotion is amended, the vacancy arose within the prescribed period prior to the passing of amendment to be in accordance with the pre-amended Rules.
14. The learned senior counsel for the petitioners also relied on the decision reported in (T.R. Kapur and others vs. State of Haryana and others) AIR 1987 SC 415 wherein in Para No.15, it was held as follows:-
“15. More fundamental is the contention that the impugned notification issued by the State Government purporting to amend Rule 6(b) with retrospective effect from July 10, 1964 which rendered members of Class II service who are diploma holders like the petitioners ineligible for promotion to the post of Executive Engineer although they satisfied the condition of eligibility of 8 years experience in that class of service was unreasonable, arbitrary and irrational and thus offended against Articles 14 and 16(1) of the Constitution. It is urged that they were eligible for promotion under the unamended Rule 6(b) of the Class I Rules and had a right to be considered for promotion to the post of Executive Engineer, and a retrospective amendment of Rule 6(b) seeking to render them ineligible was constitutionally impermissible. It is said that the reason for this was obvious inasmuch as immediately prior to the reorganisation of the State of Punjab i.e. prior to November 1, 1966 even a member of the Overseers Engineering Service, a Class III service, having only a diploma was eligible for being promoted as Executive Engineer in Class I service in due course since in the matter of promotion under the unamended Rule 6(b) it was not necessary to possess a degree in Engineering as held by this Court in A.S. Parmar case. It follows therefore that every member of the Overseers Engineering Service was eligible for promotion first as Assistant Engineer or Sub-Divisional Officer in Class II service and thereafter, in due course, to the post of Executive Engineer in Class I service even without the educational qualification of a degree in Engineering. In substance, the submission is that a retrospective amendment of Rule 6(b) by the impugned notification which seeks to take away the eligibility of members of Class II service who are diploma holders for purposes of promotion to the posts of Executive Engineers in Class I service from a back date ranging over 20 years and thereby renders invalid the promotions already made is constitutionally impermissible.
15. As per the above decision, it was held that today’s equals cannot be made unequals by arguing that they were equals 20 years ago and that they were restored to the position by making a law today and make it retrospectively. In this case, by virtue of an amendment, the legal right of the petitioners cannot be taken away with retrospective effect and it is legally not sustainable.
16. The learned Senior counsel for the petitioners brought to the notice of this Court a decision of this Court reported in (V. Usha vs. Director of Town Panchayat, Kuralagam, Madras 108 and others) 2008 1 MLJ 182 wherein in Para Nos. 10 and 11, it was held thus:-
“10.(a) In the decision in Food Corporation of India etc., vs.OmPrakash Sharma and others, AIR 1998 SC 2682; (1998) 7 SCC 676; 1999-1-LLJ 1215,the Supreme Court held that amendment to service rules cannot be applied retrospectively taking the vested right of the persons who are in service. In Paragraphs 32 and 33 of the decision, the Supreme Court held thus at p.1225 of LLJ:
“32.The last of the above cases has been decided by the Constitution Bench in which one of us (Justice Agrawal), was a Member and he spoke for the Bench. It will be advantageous to quote the following passage in that judgment
In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.
33. If the principle laid down in the above judgment is applied here, there is no doubt that the impugned amendments in the present case cannot operate retrospectively.
(b) The said proposition that retrospective amendment of service Rules is impermissible is held by the Supreme Court in the decision in P. Mahendran and others vs. State of Karnataka and others, AIR 1990 SC 405: (1990) 1 SCC 411;1990-1-LLJ-337 wherein in paragraph 5 it is held thus at p.340 of LLJ:
5. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter. ”
(c) In the decision in Chandraprakash Mahdavarao Dadwa and others vs. Union of India and others, AIR 1999 SC 59: (1998) 8 SCC 154 in paragraph 53, the Supreme Court held as follows:-
“53. To put it in a nutshell, the change in the essential qualification made in 1990 or 1998 or the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of the appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment qualifications could not be altered or applied with retrospective effect so as to deprive the recruitees of their right to the posts to which they were recruited nor could it affect their confirmations.”
11. The Petitioner was fully qualified to hold the post of Typist as she passed Typewriting English Higher Grade in November, 1986, and also passed the departmental tests such as Village Swaraj, Panchayat Act 1958, District Office Manual, Panchayat Development Account Test and Miscellaneous Acts and Rules. Further, the petitioner was holding the Typist post for over three years and seven months. She was given three years annual increment and her name also found a place in the inter se seniority list of Junior Assistants, Revenue Inspectors and Typists and was placed in Sl.No.29. She was regularly appointed as Typist as per the proceedings dated 7.3.94 of the District Collector, Villupuram. Hence, the reversion of the petitioner by the impugned order really affects her vested right and as there is reduction in her salary and status, it definitely have civil consequences.”
17. In the above decision, the learned Judge of this Court followed the decision of the Honourable Supreme Court reported in (Food Corporation of India etc., vs. Om Prakash Sharma and others) AIR 1998 SC 2682 and held that amendment of service Rules cannot be applied retrospectively by taking away the vested right of the persons who are in service.
18. It is seen from the typed set of papers that the directly recruitted Assistants have joined in the secretariat service between 01.06.1998 and 18.12.2000 based on the examination conducted and notified on 21.08.1995 and 04.03.1997. The said directly recruitted Assistants were promoted as Assistant Section Officers with effect from 01.06.1998 and 18.12.2000 and they were further promoted as Section Officer between 11.12.2008 and 31.12.2009. Whereas, after the petitioners joining the Secretariat Service Rules, the Secretariat Service Rules were amended as per G.O. Ms. No.67, P & AR Department dated 27.03.1998, which is challenged in this writ petition, which affected adversely their service rights.
19. As discussed earlier, the amendment itself has been made with retrospective effect, which is challenged and it it is held to be not correct. Even though the petitioenrs are fully qualified for promotion as Assistant as per Secretariat Service Rules with educational qualification of decree and typewritting qualification, besides sufficient experience, when the vacancies arose, such vacancies have to be filled up only as per the then existing Rules. The then existing Rules did not contemplate direct recruitment of the Assistant. It was only amended on 27.03.1998 but with retrospective effect from 19.08.1993. Therefore, the petitioners were definitely affected of their service rights which prompted them to challenge the government order bringing in the amendment.
20. As held by the Honourable Supreme Court, if an amendment takes away the vested right of a person, which is claimed to be his fundamental right, then such an amendment is legally not sustainable. Furthermore, taking into consideration the fact that the employees who are affected by such amendment is only 50 in number and even some of them have retired by now, the Government ought to have taken into consideration the fate of these small group of persons, who have joined the Secretiat Service with the fond hope that they will be getting promotion at an accelerated phase after having relinquished their right in the erstwhile department. Furthermore, they were also selected in accordance with the law, therefore, they cannot be deprived of this right. Furthermore, the Tribunal itself has literally quashed the government order taking into consideration the undertaking given in the Court regarding the proposed amendment. On careful reading of the judgment of the Tribunal, the Tribunal had set aside the impugned Government Order and granted time to the Government to enact the amendment within six weeks from the date of receipt of the judgment. Therefore, even the intention of the Tribunal was not to take into consideration of the proposed retrospective amendment. Under those circumstances, merely because the amendment is brought in with retrospective effect, that will not take away the rights of the petitioners.
21. Considering the over all circumstances of the case, I hold that the petitioners are having vested right to get promotion as Assistants pursuant to their opting to go to secretariat service and it cannot be taken away by an amendment with retrospective effect. Therefore, the claim made by the petitioners are well founded. It is also brought to the notice of this Court that the petitioners are representing a small group of 50 employees and they were also given promotion on a subsequent date, but for the amendment, they would have got the promotion earlier.
22. In the result, the G.O. Ms.No.67 issued by the first respondent dated 27.03.1998 is quashed only in so far as it affects the petitioners and the respondents are directed to consider the claim of the petitioners for promotion and pass appropriate orders on merits and in accordance with law expeditiously.
23. The writ petition is allowed accordingly. No costs.
26-04-2010
rsh
Index : Yes
Internet : Yes
To
1. The Secretary to Government
Personnel & Administrative Reforms Dept
Fort St. George
Chennai 600 009
2. The Tamil Nadu Public Service Commission
rep. by its Secretary
Government Estate
Chennai 600 002
B. RAJENDRAN, J
rsh
WP No. 46697 of 2006
26-04-2010