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Madras High Court
K.A.Baskaran vs State Of Tamil Nadu on 17 July, 2008
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS 

DATE : 17.07.2008

CORAM

THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR. JUSTICE R.SUBBIAH

W.P. NO. 5969 OF 2008
AND
M.P. NO. 1 OF 2008

K.A.Baskaran						.. Petitioner

- Vs -

1. State of Tamil Nadu
    rep. by its Secretary to  Government
    Home (Courts) Department
    Chennai 600 009.

2. The Registrar General
    High Court
    Madras 600 104.

3. The Principal District Judge
    Krishnagiri.

4. The Principal District Judge
    Dharmapuri.						.. Respondents
	Writ petition filed for the issuance of a writ of certiorarified mandamus calling for the records of the 1st respondent in relation to G.O. Ms. No.1006, Home (Courts) Department dated 3.7.07 and the consequent clarifications issued by the 2nd respondent in ROC No.3004/94/G2 dated 11.1.08 and the orders of transfer and promotions issued by respondents 3 and 4 in R.O.C. No.13/2008-A and R.O.C. No.15/2008-A, both dated 14th Feb., 2008 and quash the same and consequently direct the 1st respondent to merge the posts of Examiners/Readers in Category 6 of Class IV with that of Junior Assistants in Category 5 of Clas IV and then draw a combined seniority list from among the Junior Assistants and Typists forming the Category 5 of Class IV for the consideration of promotion to the post of Assistant in Category 4 of Class IV of the Tamil Nadu Judicial Ministerial Service Rules as stated therein.
		For Petitioner	: Ms.Chitra Sampath

		For Respondents 	: Mr. V.Ayyathurai for R-2
					  Mr. D.Sreenivasan, AGP for RR-1, 3 & 4
ORDER

S.J.MUKHOPADHAYA, J.

This writ petition has been preferred by the petitioner against the order contained in G.O. Ms. No.1006 dated 3rd July, 2007, issued by Home (Courts) Department of the State of Tamil Nadu and the consequent clarification issued by the 2nd respondent, Registrar General, Madras High Court in R.O.C. No.3004/94/G2 dated 11th Jan., 2008 and the consequential order of transfer and promotions issued by respondents 3 and 4 in R.O.C. No.13/2008-A and R.O.C. No.15/2008-A, both dated 14th Feb., 2008. Further prayer has been made to direct respondents to merge the post of “Examiner/Readers” in Category-6 of Class-IV with “Junior Assistants” in Category-5 of Class-IV and to draw a combined seniority list of ‘Junior Assistants’ and ‘Typists’ for consideration of their cases for promotion to the higher post of “Assistants” in Category-4 of Class-IV of Tamil Nadu Judicial Ministerial Service.

2. Though the aforesaid prayer has been made, at the time of hearing of the case, learned counsel for the petitioner confined her arguments with regard to seniority, vis-a-vis ‘Typists’, ‘Copyists’, ‘Examiners/Readers’ and ‘Junior Assistants.

Though the order of merger vide G.O. Ms. No.1006 dated 3rd July, 2007, has been challenged, the main grievance was made that the 2nd respondent, vide letter dated 11th Jan., 2008, has ordered to fix the seniority of all the ‘Copyists’ below all the ‘Typists’ as on the date of merger, i.e., 3rd July, 2007, which is illegal.

3. For determination of the issue, it is necessary to refer relevant facts, as appears from different Government Orders and other documents on record.

4. In the State of Tamil Nadu, apart from High Court, there are different Courts and its offices, which are taken as a Unit, which includes the ‘City Civil Court’, ‘Presidency Court of Small Causes’, ‘Courts of Metropolitan Magistrates’, ‘Office of the Administrator General and Official Trustee’, ‘Labour Court, Madras’, ‘Industrial Tribunal, Madras’ and ‘Moffusil Courts’ (within the jurisdiction of the District Judge or the Chief Judicial Magistrate taken as a single unit) and the ‘Labour Courts at Madurai and Coimbatore’. All the units, taken together is known as Tamil Nadu Judicial Ministerial Service, governed by the Tamil Nadu Judicial Ministerial Service Rules framed under proviso to Article 309 of the Constitution of India. The service consists of different classes and categories of officers. In the present case, we are concerned with Class-IV and Class-V, of Moffusil Courts which includes posts of Assistants (Class-IV, Category-4), Typists (Class-IV, Category-5), Examiners, Readers (both Class-IV, Category-6) and Copyists (Class-V).

Prior to 1st June, 1988, “Examiners/Readers” and “Copyists” had lower scale of pay, whereas the post of Typists and Junior Assistants had higher scale of pay. After the recommendation of the 5th Pay Commission, while revised scale of pay were granted with effect from 1st June, 1980, the Examiners/Readers and Copyists continued to receive lower scale of pay than the post of Typists and Junior Assistants, as shown hereunder :-

Post

Scale of Pay
Examiner/Reader
(Class-IV, Category-6)

Rs.825 – 1200
Copyist
(Class-V)

Rs.825 – 1200
Typist
Junior Assistants
(Class-IV, Category-5)

Rs. 975 – 1660

In Dec., 1989, the High Court, Madras, sent its proposal for revision of scale of pay of Copyists in parity with Typist. Similar recommendation was made with regard to Examiners and Readers. As per the recommendation of the Pay Commission, as for grant of scale of Rs.975 1660, the technical qualification of the Copyists, etc., were to be raised. The Government, in G.O. Ms. No.1400, Home (Courts V) Department, dated 15th Sept., 1993, issued orders raising the technical qualification of Copyists prescribing same qualification as prescribed for Typists. By another G.O. Ms. No.903 dated 9th Aug., 1994, issued from Home (Courts V) Department, State Government raised the scale of pay of Copyists from Rs.825-1200 to Rs.975-1660, w.e.f. 15th Sept., 1993, which is the scale of pay of the Typists. Later on, vide G.O. Ms. No.774 dated 2nd June, 1999, issued from Home (Courts V) Department, the scale of pay of Copyists was enhanced to Rs.975-1660 from further retrospective date, 1st June, 1988, on par with that of Typists. The scale of pay of Readers/Examiners were also enhanced to Rs.975-1660 with effect from 1st June, 1988. Thereby, since 1st June, 1988, Typists, Copyists, Readers, Examiners and Junior Assistants, were provided with common scale of Rs.975-1660 with similar qualification.

5. One Tvl.Paramaraj and 11 others filed W.P. Nos.2953 to 2955/05, 3591 to 3598/05 and 4495/05 before this Court for fixation of their pay by allowing two advance increments as allowed to graduate typists. This Court, vide judgment dated 21st Aug., 2006, disposed of the case with direction to the respondents to pass orders of merger of the post of Copyists with Typists based on G.O. Ms. No.1400, Home (Courts V) Department, dated 15th Sept., 1993, and G.O. Ms. No.903, Home dated 9th Aug., 1994. The State Government, implemented the directions vide G.O. Ms. No.1006 dated 3rd July, 2007 and merged the post of Copyists with Typists. The consequential order was issued by this Court in RO.C. No.3004/94/G2 dated 6th Aug., 2007, merging the post of Copyists and Typists w.e.f. 3rd July, 2007, i.e., the date the Order was issued by State Government.

6. In view of the merger of the posts, the Principal District Judge, Dharmapuri @ Krishnagiri, vide D.No.37560/2007-A dated 28th Nov., 2007, circulated a provisional seniority list reflecting the position of members of aforesaid posts of civil and criminal units as on 3rd July, 2007, and called for objection. The Registrar General of this Court, vide R.O.C. No.3004/94/G2 dated 11th Jan., 2008, giving reference to G.O. Ms. No.1006 dated 3rd July, 2007 of the State and High Court’s R.O.C. No.3004/94/G2 dated 6th Aug., 2007, issued clarifications for maintenance of seniority between the Typists and Copyists, which reads as follows :-

In this connection, I am directed to furnish the following clarifications for guidance.

In respect of the clarification Nos. 1 and 4, I am to state that consequent to the merger of the Copyist post with that of the Typist post, the seniority of the Copyist may be fixed below all the Typists in service as on 3.7.2007 and that once the post of Copyist is merged with that of Typist the existing procedure in regard to the promotion to the post of Assistant from the post of Typist may be followed.

7. Learned counsel appearing on behalf of the petitioner submitted that the letter dated 11th Jan., 2008, placing all the Copyists enmass below all the Typists is violative of Article 14 of the Constitution of India, in the matter of seniority date of appointment of individual having ignored.

On the other hand, according to counsel for the 2nd respondent, the guideline issued vide letter dated 11th Jan., 2008, is proper, as the posts of copyists were feeder post for the higher post of Typists.

8. We have heard the learned counsel for the parties, noticed the rival contentions, documents on record and relevant rules.

9. The Tamil Nadu Judicial Ministerial Service Rules, 1953, (hereinafter referred to as the ‘Rules’) came into force on 1st Jan., 1953. Initially the post of Copyists and some other posts having lower scale of pay than Typists, provisions were made for filling up the higher post of Typists, etc., by promotion of Copyists apart from recruitment by transfer from other service. This will be evident from the relevant rules, as quoted hereunder :-

Category 5:

Junior Assistants
Typists

Promotion from Assistants, Superintendent of Copyists, Examiners, Senior Bailiffs, Readers and Copyists; or direct recruitment; or for special reasons, recruitment by transfer from any other service.

Category 6:

Examiners
Readers

Promotion from Senior Bailiffs, and Copyists or direct recruitment; or for special reasons, recruitment by transfer from any other service.

CLASS – V
Copyists
Direct recruitment; or recruitment by transfer from the category of peons and Process peons of the Tamil Nadu Last Grade service or of the Attenders in Class XXII of the Tamil Nadu General Subordinate Service serving in the Judicial Department; or for special reasons, recruitment by transfer from any other service.

10. The scale of pay of Copyists, Examiners and Readers (Rs.825 1200) were lower than the scale of pay of Typists and Junior Assistants (Rs.975 1660) prior to 1st June, 1988. Since 1st June, 1988, the post of Copyists, Readers and Examiners having provided same scale of pay of Typists and Junior Assistants (Rs.975 1660) and same qualification having laid down, for all purposes, the rule for promotion of Copyists to the higher post of Typists or Junior Assistants has become redundant.

11. A post can be stated to be a promotional post or higher post if it fulfils three conditions, namely, (i) it is higher in rank with higher duty and responsibility; (ii) higher status and (iii) higher scale of pay. In absence of any of such condition, such post cannot be stated to be a promotional post. It is settled law that mere grant of higher scale of pay do not amount to promotion. For example, higher scale of pay are granted either by way of time bound promotion or under Assured Career Progression scheme (ACP), but in absence of posting against a higher rank with higher duty and responsibility or grant of higher status, it cannot be held to be a promotion. Therefore, since 1st June, 1988, if any person has been granted promotion from the post of Copyist to any equivalent post of Typist, if the word promotion used in the order, such so called promotion being redundant, cannot be termed as promotion to the higher post, but to be treated as “appointment by transfer” from one post to another. However, if any Copyist has been promoted as Typist prior to 1st June, 1988, the post of Copyists having lower scale of pay than Typists prior to 1st June, 1988, it should be treated to be a promotion for all purpose.

12. So far as seniority is concerned, in absence of a rule, normally a person holding higher post or cadre to be treated as senior to those who are holding lower post or cadre. If posts or cadres are different, the person holding post with higher scale of pay is to be treated as senior to those who are holding posts with a lower scale of pay. If both the persons are holding posts in the same scale of pay, the person appointed in such common scale of pay earlier should be treated to be senior to the person granted such scale of pay later. In cases where appointment in the same scale of pay is made on the same date, in absence of a merit list, age may be a criteria for determination of seniority. However, if there is a rule prescribing determination of seniority, it is to be determined on the basis of such statutory rule and not otherwise.

13. Rule 36 deals with seniority. While sub-rule (a) of rule 36 deals with seniority of direct recruits based on rank obtained by persons in the list drawn by public service commission or the appointing authority, sub-rule (b) of rule 36 relates to seniority between persons transferred from one class or category of service to another class or category carrying same scale of pay, as quoted hereunder :-

Seniority :

36. (a) * * * * * * * *

(b) The transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment o the latter for purpose of seniority; and the seniority of a person so transferred shall be determined with reference to the rank in the class or category from which he was transferred. Where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority.

14. So far as seniority between Copyists and Typists are concerned, we have already held that prior to 1st June, 1988, post of Typists (Rs.975 1660) having higher scale of pay than Copyists (Rs.825 1200), the Typists shall rank senior to Copyists enmass. Therefore, the letter dated 11th Jan., 2008, issued by the Registrar General, High Court, may hold good in respect of the Copyists and Typists, who were appointed prior to 1st June, 1988, but such principle cannot be followed for Copyists and Typists appointed/promoted after 1st June, 1988. Since 1st June, 1988, if any copyist has been appointed by promotion as Typist, for all purposes as they are to be treated to have been transferred to the post of Typists, scale of pay being same, in such cases, rule 36 (b) shall apply for determination of seniority. The date of first appointment will be the criteria for determination of seniority between the Copyists and Typists, if appointed since 1st June, 1988 and the guideline issued by the Registrar General of this Court dated 11th Jan., 2008, to that extent, we hold as illegal. The Principal District Judge/Appointing Authorities cannot act on the basis of letter dated 11th Jan., 2008, for determination of seniority of Copyists and Typists, if appointed/transferred/promoted on or after 1st June, 1988 and provisional seniority list, if so prepared on the basis of letter dated 11th Jan., 2008, is to be recalled.

15. So far as notification of merger dated 3rd July, 2007 is concerned, no specific pleading or submission has been made to show as to how it is illegal or ultra vires. On the other hand, we find the notification dated 3rd July, 2007, is legal and proper as it is always open to the competent authority to merge two cadres or posts having same qualification and scale of pay for the purpose of taking common nature of work.

16. In view of the discussions as made above, while we are not inclined to interfere with the order of merger, direct the respondents, including the Registrar General of this Court to communicate to all the Principal District Judges/Appointing Authorities to determine and finalise the seniority list of combined cadre of Copyists and Typists in accordance with law and as discussed above. The writ petition stands disposed of with the aforesaid observations and directions. Consequently, connected miscellaneous petition is closed. But there shall be no order as to costs.

GLN

To

1. The Secretary to Government
Home (Courts) Department
Government of Tamil Nadu
Chennai 600 009.

2. The Registrar General
High Court, Madras 600 104.

3. The Principal District Judge
Krishnagiri.

4. The Principal District Judge
Dharmapuri


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