C. Natarajan vs The Government of Tamil Nadu and Others

V. Ratnam, J.—In these writ petitions at the instance of the same petitioner, he has prayed for the issue of a writ of certiorari to quash the

orders of the second respondent in No. 3760/E5/78-2 dated 3.4.1979 and in 3760/E5/79-1 dated 2.4.1979 respectively, by which the second

respondent proceeded to give paper promotion to respondents 3 to 53 in W.P.No. 2727 of 1979 and respondents 3 and 4 in W.P. No. 5772 of

1979. Since common questions arise for decision in these writ petitions and the impugned orders in both the writ petitions are identical, these writ

petitions are dealt with together.

The petitioner was recruited as an Assistant Statistical Investigator in the year 1969 through the Tamil Nadu Public Service Commission and

was appointed to that post on 19.8.1970, he having fulfilled all the prescribed qualifications. The Statistics Department was brought into the fold of

Tamil Nadu General Subordinate Service and the following categories of officers were included therein, namely, Statistical Inspectors, Statistical

Assistants, Assistant Statistical Investigators, Computers, Supervisors and Junior Draftsman. Regarding the appointment to the post of Assistant

Statistical Investigators, the appointment was to be made (a) by direct recruitment or (b) by promotion from the category of Supervisor in the

Department of Statistics, or (c) by recruitment by transfer from members of Tamil Nadu Ministerial service in the Department of Statistics. It is not

necessary, for purposes of these writ petitions, to notice the other categories of posts or the mode of appointment to those posts. for the purpose

of direct recruitment of Assistant Statistical Investigators, the applicant should possess a degree in Mathematics, Statistics or Economics of any

University or Institution recognised by the University Grants Commission and should not have completed 25 years of age as on the 1st day of July

of the year in which the selection for appointment is made. For appointment as Assistant Statistical investigator by promotion, the person

concerned was required to possess a degree in Mathematics, Statistics or Economics of any University or Institution recognised by the University

Grants Commission, but that qualification was not to be insisted upon in the case of Supervisors in the Department of Statistics who have put in

service for a period of not less than 10 years and who, in the opinion of the appointing authority, are found to be of exceptional merit and ability.

As regards recruitment by transfer from Tamil Nadu Ministerial Service, the person concerned should possess a degree in Mathematics, Statistics

or Economics of any University or Institution recognised by the University Grants Commission and should not have completed 40 years of age as

on the 1st day of July of the year in which the selection for appointment is made. Preference also was to be given to persons possessing experience

in statistical analysis and computation in the office of the Director of Statistics, Madras, or in the Indian Statistical Institute, Calcutta, or the Central

Statistical Organisation, New Delhi.

By G.O. Ms. No. 3364, Agriculture Department, dated 15.11.1968, rationalisation of various categories of personnel in the Department of

Statistics was brought about and certain changes in the organisational set up were also made. Broadly, the Department was divided into Technical

Side and Non-Technical Side. The posts of Assistant Statistical Investigators, Statistical Inspectors and Research Assistants were brought under

Technical Side of the Department, while the posts of Supervisors, Clerks, Assistants and Superintendents were grouped under Non-Technical

Side. The post of Assistant Statistical investigator was made the entry post on the Technical Side and 75% of posts in that category were to be

filled up by direct recruitment and 25% by transfer from Clerks/Supervisors. Regarding Clerks and Supervisors not possessing a degree in

Mathematics, Statistics or Economics, they were eligible for promotion only as Assistants and for further promotion as Superintendents two years''

experience was also prescribed. By G.O. Ms. No. 2351, Agriculture Department, dated 20.8.1971 certain modifications were made for filling up

the 25% of vacancies in the post of Assistant Statistical Investigators reserved for appointment from among Junior Assistants and Supervisors in

that non-graduates appointed prior to 15.11.1968 can also be considered for promotion as Assistant Statistical Investigators maintaining the ratio

of 1:4 between graduates and others for promotion as Assistant Statistical Investigators. A challenge to G.O. Ms. No. 2531, Agriculture

Department, dated 20.8.1971, was made in W.P. Nos. 2842 and 2844 of 1971 and the Government Order was quashed on the view that the

statutory rules cannot be amended by administrative instructions. This was on 25.8.1972. But persons who had been promoted on 4.9.1971

pursuant to G.O. Ms. No. 2351, Agriculture Department, dated 20.8.1971, in accordance with Rule 39(a) of the Tamil Nadu State and

Subordinate Service Rules viz., the Preliminary and the General Rules) were allowed to continue in their respective posts. Thereafter, G.O. Ms.

No. 123, Agriculture Department, dated 19.10.1973, came to be passed, by which G.O. Ms. No. 2351, Agriculture Department, dated

20.8.1971, was sought to be sustained, but relaxing the conditions with retrospective effect and fixing seniority in a particular manner as per

Memorandum No. 90273/E4/78 dated 8.1.1979 based on G.O. Ms. No. 123, Agriculture Department, dated 19.10.1973. By that, a proviso

was introduced intended to facilitate the absorption of temporarily appointed Supervisors and Junior Assistants who had entered service prior to

15.11.1968 in the 25% reservation and possessed only the minimum general educational qualification, in substantive vacancies. This formed the

subject-matter of attack in W.P. No. 2368 of 1979 at the instance of those directly recruited as Assistant Statistical Investigators for the year

1972 and though the writ petition was dismissed, on further appeal in W.A. No. 360 of 1979, a Division Bench of this court held that the making

of rules retrospectively and the making of appointments in accordance with such rules were two different things and the insertion of a proviso did

not have the effect of enabling the State Government to make appointment retrospectively to the detriment of those already appointed in clear

vacancies through Service Commission. It was also further points out that the effect of regularisation of the temporary appointees under Rule 39(a)

of the Tamil Nadu State and Subordinate Service Rules (viz., the Preliminary and the General Rules) was that they became part of the cadre of

Assistant Statistical Investigators with effect from the date of their initial appointment, namely, 4.9.1971 and that such appointees became seniors

to persons like the petitioner appointed as direct recruits, and that the fixation of seniority in this manner adversely affecting those directly recruited

is not sustainable. In that view, the seniority list was quashed and the seniority of the appellant therein was directed not to be disturbed and the

other persons, like respondents 3 to 53 in W.P. No. 2727 of 1979 and the respondents 3 and 4 in W.P. No. 5772 of 1979 could be given the

benefit of relaxation only after the date of appointment of the directly recruited Assistant Statistical Investigators. The seniority list was accordingly

quashed and the appeal was allowed.

In these writ petitions, the complaint of the petitioner is that by the impugned orders, the second respondent has again attempted to maintain and

perpetuate the seniority of those temporarily promoted on 4.9.1971 and regularised later over that of the petitioner by giving respondents 3 to 53

in W.P. No. 2727 of 1979 and respondents 3 and 4 in W.P. No. 5772 of 1979 paper promotions retrospectively with effect from 7.9.1971,

1.8.1972, 16.6.1971 and 26.8.1971 respectively by invoking Rule 9 of the Tamil Nadu State and Subordinate Service Rules (viz., the Preliminary

and the General Rules). What is urged by the learned Counsel for the petitioner is that Rule 9 of the General Rules can have no application

whatever for fixing the dates of regular promotion as Assistants on paper with reference to the respondents 3 to 53 in W.P. No. 2727 of 1979 and

the respondents 3 and 4 in W.P. No. 5772 of 1979, for, on their appointment temporarily as Assistant Statistical Investigators on 4.9.1971 under

Rule 39(a) of the General Rules and subsequent regularisation on 29.5.1973, they ceased to have lien on the posts in the Tamil Nadu Ministerial

Service. Reliance in this connection was placed upon the decision of the Division Bench in W.A. No. 360 of 1979 dated 18.6.1985 (P.

Mariappan v. The Government of Tamil Nadu and Ors.). On the other hand, the learned Additional Government Pleader submitted that the lien of

respondents 3 to 53 in W.P. No. 2727 of 1979 and respondents 3 and 4 in W.P. No. 5772 of 1979 had not in any manner been terminated or

declared as terminated, and, therefore, the impugned orders granting paper promotions as Assistants from the dates mentioned therein would be

quite valid and unexceptionable.

Under Rule 12(b) of the Fundamental Rules, a Government servant cannot be appointed substantively to two or more permanent posts at the

same time. It is seen from Rule 12(c) of the Fundamental Rules that a Government servant cannot be appointed substantively to a post on which

another Government servant holds a lien. Rule 9(13) of the Fundamental Rules defines a lien as the title of a Government servant to hold

substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post, to which he has

been appointed substantively. There is no dispute in this case that respondents 3 to 53 in W.P. No. 2727 of 1979 and respondents 3 and 4 in

W.P. No. 5772 of 1979 were temporarily appointed under Rule 39(a) of the General Rules on 4.9.1971. The learned Additional Government

Pleader has disputed their appointment to the substantive post of Assistant Statistical Investigators and strongly relies upon paragraphs 24 and 25

of the counter-affidavit to the effect that the question of the termination of the lien has to be considered only when they are appointed permanently

in the post of Assistant Statistical Investigators. However, as noticed earlier, at the instance of one Mariappan, the seniority list by which the

position of direct recruits like the petitioner and others was shown below that of the promotees came to be challenged in W.A. No. 360 of 1979.

In the course of considering the validity of fixation of seniority in the manner one, the Division Bench has pointed out that the services of all the

persons originally appointed under Rule 39(a) of the General Rules by the order dated 4.9.1971 had been regularized and that they became part of

the cadre of Assistant Statistical Investigators with effect from the date of their initial appointment, namely, 4.9.1971. A seniority list, as ordinarily

understood, is only with reference to a substantive appointment to a permanent post. The Division Bench had accepted the regularisation of the

Services of Respondents 3 to 53 in W.P. No. 2727 of 1979 and Respondents 3 and 4 in W.P. No. 5772 of 1979 and only thereafter proceeded

to consider the inequity and injustice resulting therefrom in that the direct recruits had been pushed down and in that view it quashed the seniority

list with a direction that the seniority of the appellant in W.A. No. 360 of 1979 should not be disturbed. This, in my view, clearly indicates that the

services of all the temporary appointees had been regularised and they had all become part of the cadre of Assistant Statistical Investigators on and

from 4.9.1971 and this aspect has also been emphasised by the Division Bench in the course of its judgment in W.A. No. 360 of 1979. It is,

therefore, not possible to accept the contention of the learned Additional Government Pleader that the question of the termination of the lien has to

be considered only at the time when the question of their permanent appointment in the post of Assistant Statistical Investigators arises. It is difficult

to appreciate as to how a seniority list, since quashed, came to be drawn up in the manner done without substantive appointments being made to

permanent posts. It has, therefore, to be held that respondents 3 to 53 in W.P. No. 2727 of 1979 and respondents 3 and 4 in W.P. No. 5772 of

1979 became part of the cadre of Assistant Statistical Investigators having been regularised in that service with effect from 4.9.1971. On such

regularisation, it is difficult to conceive of those persons still retaining a lien over the post of Junior Assistant in order to claim further paper

promotion as Assistant, for, the same persons cannot, under Rule 12(b) of the Fundamental Rules referred to earlier, be appointed substantively to

the post of Junior Assistant as well as Assistant Statistical Investigator.

Rule 9 of the General Rules providing for lien, in my view, is inapplicable on the facts and circumstances of this case. The absence of

respondents 3 to 53 in W.P. Nos. 2727 of 1979 and respondents 3 and 4 in W.P. No. 5772 of 1979 from the service of Junior Assistants cannot

be attributed to leave, or foreign service, or deputation, or for any other reason. The absence in this case is attributable to their having been borne

on the cadre of Assistant Statistical Investigators with effect from 4.9.1971. Apart from this, the absence for any other reason in Rule 9 of the

General Rules would connote such absence on grounds similar or akin to the member being on leave or on foreign service or on deputation and

would not comprehend a case like the present where the absence from service is owing to the member having become part of another cadre,

namely, Assistant Statistical Investigators. Under those circumstances, Rule 9 of the General Rules cannot at all be applied to give the benefit of a

paper promotion to respondents 3 to 53 in W.P. No. 2727 of 1979 and respondents 3 and 4 in W.P. No. 5772 of 1979 from Junior Assistant to

Assistant with effect from anterior dates with a view to make them seniors to direct recruits, like the petitioner. In view of the considerations

pointed out above, there is no need for the termination of the lien as contended by the learned Additional Government Pleader, for, on their

temporary entry into the cadre of Assistant Statistical Investigators and the subsequent regularisation of their services in that cadre, the lien, which

they had earlier in the post of Junior Assistant, came to an end if at all, they can claim to have such a lien over the post of Assistant Statistical

Investigator thereafter and not over the post of Junior Assistant since Rule 9 of the General Rules is inapplicable on the facts and circumstances of

this case, the impugned orders invoking that rule and giving the benefit of a paper promotion to respondents 3 to 53 in W.P. No. 2727 of 1979

and respondents 3 and 4 in W.P. No. 5772 of 1979 are clearly unsustainable.

The learned Counsel for the petitioner next contended that earlier at the instance of some of the Junior Assistants, the claim for paper promotion

as Assistants had been negatived and that there was no subsequent change which required a departure from the stand taken already and that

would also show that the paper promotions in these cases have been given only with a view to push down the position of direct recruits in the

seniority list, if possible. In support of this contention, the learned Counsel drew attention to letter No. 74956/E6/73-14 dated 12.9.1975,

Memorandum No. 34947/ST/74-l dated 24.11.1975 and Memorandum No. 1141/ST/74-21 dated 6.11.1975. The learned Additional

Government Pleader, however, contends that those communications would not bar the second respondent from passing the impugned orders as

the claim of one or two persons alone had been negatived and not the statutory right based upon Rule 9 of the General Rules. It is seen from the

letter first referred to above that one Thiru P. Sundaram, who held the post of junior Assistant, had requested for paper promotion as Assistant

and that was rejected on the ground that he must be deemed to have held the post of Supervisor with effect from 20.8.1971 in implementation of

G.O. Ms. No. 2351, Agriculture Department, dated 20.8.1971, and had been promoted as Assistant Statistical Investigator from the post of

Supervisor on 4.9.1971 and, therefore, he cannot be given the paper promotion prayed for. It is further seen therefrom that administrative difficulty

is also put forth as a ground for rejecting the claim made. From the Memorandum No. 34947/ST/74-l dated 24.11.1975 referred to earlier, it is

seen that one Thiru S. Janakiraman, Assistant Statistical Investigator, had requested for his appointment as Assistant reckoning his services in the

post of Assistant Statistical Investigator and that had been rejected. Likewise, the request of one Thiru P. Sundaram, Assistant Statistical

Investigator, to appoint him as Assistant with effect from 4.9.1971 had also been turned down. The aforesaid communications clearly establish that

even the second respondent had considered that on the temporary appointment of respondents 3 to 53 in W.P. No. 2727 of 1979 and

respondents 3 and 4 in W.P. No. 5772 of 1979, they had ceased to be Junior Assistants with no rights of lien under Rule 9 of the General Rules

so that the question of appointment as Assistant from Junior Assistant did not arise. If, according to the letter and the memoranda of the second

respondent referred to above, the respondents 3 to 53 in W.P. No. 2727 of 1979 and respondents 3 and 4 in W.P. No. 5772 of 1979 could not

be treated as having held the substantive post of Junior Assistant on 4.9.1971, then, it is rather difficult to appreciate how the second respondent

changed the stand already taken for no reason whatever and proceeded to give paper promotion as if they held the substantive post of Junior

Assistant and were entitled to the benefit of Rule 9 of the General Rules as such Junior Assistants, when as a matter of fact they had become part

of the cadre of Assistant Statistical Investigators on 4.9.1971 and had also been regularised thereafter on 29.5.1973 with effect from 4.9.1971.

On a due consideration of the facts and circumstances of the case as well as the relevant rules and the communications already referred to, it is

clear that the impugned orders cannot at all be sustained and they are accordingly quashed. Consequently, the rule nisi is made absolute and the

writ petitions are allowed. There will be, however, no order as to costs.