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Supreme Court of India
R. Palanisamy vs The Registrar General High Court … on 24 July, 2020Author: Hon’Ble The Justice
Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Special Leave Petition (C) No.6439 of 2020
R. PALANISAMY & ORS. … Petitioners
Versus
THE REGISTRAR GENERAL HIGH COURT OF
MADRAS & ORS. … Respondents
ORDER
1. Aggrieved by the dismissal by the High Court, of their claim for
promotion to the post of Junior Bailiff, persons working as Office
Assistants/Record Clerks in various courts in Erode District of the
State of Tamil Nadu have come up with this special leave petition.
2. We have heard Mr. Purushottam Sharma Tripathi, learned
Signature Not Verified
Digitally signed by
counsel appearing for the petitioners.
DEEPAK SINGH
Date: 2020.07.24
16:19:24 IST
Reason:
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3. 22 persons, of whom 3 are working as Record Clerks and the
rest working as Office Assistants in various courts in Erode District
filed a writ petition on the file of the High Court of Judicature at
Madras, seeking a Mandamus to consider their claim for promotion
to the post of Junior Bailiff, without insisting on the educational
qualification of a pass in SSLC. Their claim was based upon (1) a
previous order of the High Court dated 22.07.2009 in a batch of
cases and (2) the fact that the vacancies to which they lay a claim,
arose before the issue of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016 and that, therefore, a pass in SSLC
cannot be insisted upon as a qualification for promotion to the post
of Junior Bailiff.
4. The High Court rejected the claim on the ground that the
previous judgment of the Court dated 22.7.2009 in the batch of
cases is no longer of any relevance, after the coming into force of
Tamil Nadu Government Servants (Conditions of Service) Act, 2016
and that the date on which the vacancies arose cannot determine
the Rule applicable for recruitment by promotion. Therefore,
aggrieved by the said order, the petitioners are before us.
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5. As pointed out earlier, there were 22 petitioners before the High
Court, out of whom 3 persons are working as Record Clerks and the
remaining 19 are working as Office Assistants. The post of Office
Assistant falls under category 5 of ClassIII of the Tamil Nadu Basic
Service. All matters concerning the posts in the Tamil Nadu Basic
Service, such as their constitution, appointing authority, method of
recruitment, qualifications prescribed for appointment, probation,
discharge and postings and transfers, are governed by a set of
Special Rules known as the Special Rules for Tamil Nadu Basic
Service, issued in exercise of the powers conferred by the Proviso to
Article 309 of the Constitution. Rule 1 of these Special Rules divides
the posts in the entire Tamil Nadu Basic Service into four classes,
with each class being subdivided into various categories of posts.
While ClassI has 4 categories of posts, ClassII has 5 categories of
posts, ClassIII has 6 categories of posts, ClassIV has 86 categories
of posts. The post of Office Assistant falls under category 5 of Class
III of the Tamil Nadu Basic Service. Most of the petitioners before the
High Court belonged to this category.
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6. Three petitioners before the High Court were working as Record
Clerks and this post falls under category 1A of the Tamil Nadu
General Subordinate Service. The terms and conditions of service of
the posts falling under the Tamil Nadu General Subordinate Service
are stipulated in another set of Special Rules known as Special
Rules for Class XXII of the Tamil Nadu General Subordinate Service,
issued in exercise of the power conferred by the Proviso to Article
309.
7. Thus, in essence, the petitioners who went before the High
Court, seeking promotion to the post of Junior Bailiff, belonged to
two categories of posts, in 2 different services, one falling in the
Tamil Nadu Basic Service and another falling in the Tamil Nadu
General Subordinate Service, each of which is governed by a
separate set of Special Rules issued in exercise of the power
conferred by the Proviso to Article 309.
8. The post to which the petitioners laid a claim by way of
promotion, namely the post of Junior Bailiff, was formerly known as
the post of “process server” falling under Category 3 of ClassIII of
the Tamil Nadu Basic Service. It was a Group ‘D’ post. But after the
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implementation of the recommendations of the Tamil Nadu V Pay
Commission, the post of Process Server, was upgraded from being a
Group ‘D’ post into a Group ‘C’ post and consequently deleted from
the Basic Service and included in the Tamil Nadu Judicial
Ministerial Service (which is a service superior to the Basic service).
This upgradation was accompanied by a consequential upward
revision of the payscale also. This exercise of upgradation of the
post from Basic Service to Judicial Ministerial Service with a higher
pay scale, was done under a Government order in G.O.Ms.No. 1653,
Home, (Cts.V) Department, dated 22122008. Though necessary
amendments to both sets of statutory rules namely the Special Rules
for Tamil Nadu Basic Service (for the deletion of the post therefrom)
and the Special Rules for Tamil Nadu Judicial Ministerial Service (for
the inclusion of the post therein) were to follow, it never happened.
9. But in the meantime, another event took place. That event
related to the implementation of the recommendations of the First
National Judicial Pay Commission (Shetty Commission) made in the
year 2003. The Report recommended the creation of 2 categories of
posts of Bailiffs in the Process establishment of courts, wherever
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there was only one category of the post. But in the State of Tamil
Nadu, there were already 2 categories of posts namely Junior Bailiff
and Senior Bailiff. The First National Judicial Pay Commission also
recommended in its report, (i) the grant of higher pay scales for both
categories of bailiffs and (ii) the prescription of Matriculation as the
minimum general educational qualification both for direct
recruitment and for promotion to these 2 categories of posts of
Bailiffs. These recommendations were accepted by the Government
of Tamil Nadu and the revision of the pay scales of the posts of
Bailiffs took place under G.O.Ms.No. 40, Home (Cts.V) dated 112
2008. Thereafter, the Government also issued G.O. Ms.No.761,
Home (Cts.V) dated 1072008, accepting the recommendation of the
Shetty Commission that the minimum general educational
qualification for the posts in the Process Establishment of courts,
shall be Matriculation, both for direct recruitment and promotion.
10. Thus 2 things happened during the year 2008, which are as
follows:
(A) The first was the implementation of the recommendations of the
Shetty Commission (i) to create 2 categories of Bailiffs (Junior Bailiff
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and Bailiff/Senior Bailiff) with a revision of the scales of pay of the
posts and (ii) the prescription of the qualification of Matriculation.
(B) The second was the implementation of the recommendations of
the Tamil Nadu V Pay Commission (i) for deleting the post of Process
Server from the Basic Service and including the same in the Judicial
Ministerial Service under the name ‘Junior Bailiff’ and (ii) granting a
higher scale of pay for the post.
11. As a matter of fact, apart from the aforesaid category of Process
Servers in the Moffussil courts, upgraded as Junior Bailiffs and
included in the Judicial Ministerial Service, there were also other
categories of Bailiffs, already in existence in the Tamil Nadu Judicial
Ministerial Service. They were (1) Bailiff, Court of Small Causes
cumCourt keeper, City Civil Court, Madras; (2) Senior Bailiffs of the
Presidency Court of Small Causes, Madras; (3) Junior Bailiffs of the
Presidency Court of Small Causes, Madras; (4) ProcessWriters of the
Presidency Court of small Causes, Madras. These posts already
existed in categories 1 to 4 of ClassII of the Tamil Nadu Judicial
Ministerial Service. Similarly, there was also one more post namely
the post of Senior Bailiff in Mofussil Courts, falling under ClassV of
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the Tamil Nadu Judicial Ministerial Service.
12. For appointment to the aforesaid categories of posts of Bailiff
falling under ClassII and ClassV of the Tamil Nadu Judicial
Ministerial Service, the Special Rules for Tamil Nadu Judicial
Ministerial Service, prescribe the completion of SSLC as an essential
qualification. This can be seen from the table below Rule 19 of the
Special Rules for Tamil Nadu Judicial Ministerial Service:
2.(c) Senior Bailiff Direct recruitment or Minimum General
recruitment by transfer Educational Qualification
(Substituted vide G.O.Ms.
No.316, Home (Ser.I)
Dept., dated 12.02.1990
(Proviso Omitted vide
G.O.Ms. Nos.1771, Home
(Cts.v) Dept., dated
25.11.1996)
2.(d) Junior Direct recruitment or Minimum General
Bailiffs and recruitment by transfer. Educational qualification
Process Writers. or a pass in the Indian Air
Force educational test for
reclassification to Leading
Air Craftsman. Provided that in the case
of appointment by
transfer from the Tamil
Nadu Last Grade Service
and Tamil Nadu General
Subordinate Service the
educational qualifications
shall be completed
Secondary School
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Leaving Certificate.
Provided further that in the
case of a person who was a
member of the Tamil Nadu
Last Grade Service or the
Tamil Nadu General
Subordinate Service before
1969, the educational
qualification shall be
anything higher than the
minimum than prescribed
(for items 2(b) and for the category to which
2(c), items 2(b), 2(c) the transferee belonged
and 2(d) substituted,
before 1969.
vide G.O.Ms No.1600,
Home Dept., dated
15.06.1971
13. Therefore, it is clear that after the implementation of the
recommendations of (i) the Shetty Commission and (ii) the Tamil
Nadu V Pay Commission, no one was entitled to claim a right to
promotion to the post of Junior Bailiff, without the qualifications
prescribed as above.
14. The petitioners cannot take refuge under (i) the failure of the
Government to issue necessary amendment to Statutory Rules and
(ii) the previous judgment of the High Court dated 22072009
passed in a batch of cases. Pending the issue of amendment to
statutory rules, (i) the nomenclature of the post has changed and (ii)
a higher scale of pay also given to the post. One cannot reap the
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benefit and ignore the requirement. The previous judgment of the
High Court did not take note of any of the above developments and
hence the same cannot be cited as a precedence by the petitioners.
15. In fact, if the petitioners pitch their claim on the ground that
till an amendment to the statutory rules is issued, the higher
qualification cannot be insisted, then they will have to stand or fall
on the basis of the rule position as it exists. The Special Rules for
Tamil Nadu Judicial Ministerial Service (as it remains without
amendment) do not contain any post called Junior Bailiff in
Moffussil courts. ClassII of the said service comprise of 4 categories
of Bailiffs all of which are in the Presidency Court of Small Causes,
Chennai. Class V comprises of only one category of post namely
Senior Bailiff in Moffussil courts. Therefore, the petitioners cannot
lay a claim on the basis of the unamended Tamil Nadu Judicial
Ministerial Service Rules.
16. Similarly, the petitioners cannot claim anything even on the
basis of the Special Rules for Tamil Nadu Basic Service, since the
Basic Service also does not contain any post called Junior Bailiff.
There was a post called ‘Process Server’ in the Basic Service, but a
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higher scale of pay was granted to the said post on the basis of the
recommendations of the Pay Commission with a view to delete it
from the Basic Service and include it in the Judicial Ministerial
Service. The benefit of a higher pay scale having got attached to the
post with a corresponding obligation to look for a higher
qualification, it is no more open to the petitioners to attack the
qualification alone.
17. There is one more reason why the Special Rules for Tamil Nadu
Basic Service (as they exist) cannot be pressed into service by such
of those petitioners who are working as Office Assistants. Rather
than helping them, these rules will actually destroy their claim. The
post of ‘Process Server’ is in Category 3 of ClassIII of the Basic
Service. The method of recruitment to various posts in the Basic
Service are prescribed in the Table below Rule 3 (a) of the Special
Rules for Tamil Nadu Basic Service. This Table below Rule 3 (a)
prescribes that all categories of posts in ClassIII can be filled up
only by 3 methods of recruitment namely (i) Direct recruitment (ii)
Recruitment by transfer from any other service and (iii) Transfer
from ClassIV. Since the post of Office Assistant falls in Category 5
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of the very same ClassIII of the very same service, those petitioners
who are working as Office Assistants, cannot fit their claim for
promotion into any one of the above 3 methods of recruitment.
Therefore, if the petitioners place too much reliance upon the fact
that the rules stand unamended, most of them (19 out of 22) will be
knocked off by the prescription contained in the Table below Rule
3(a).
18. The argument revolving around the Tamil Nadu Government
Servants (Conditions of Service) Act, 2016, and the fact that
vacancies arose in the year 2015, prior to the enactment, are of no
relevance. This Act was enacted to consolidate the law relating to
recruitment and the terms and conditions of service of persons
appointed to the State and Subordinate services in the State of
Tamil Nadu, in terms of the mandate contained in Article 309. Until
the advent of this Act, the State of Tamil Nadu, like many other
States, was only issuing Rules in exercise of the power conferred by
the Proviso to Article 309, though such Rules were meant only to be
a stop gap arrangement until an Act of the legislature was made.
This 2016 Act actually replaces the General Rules for the Tamil
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Nadu State and Subordinate Services. But the Act does not override
the Special Rules. Section 68 of Tamil Nadu Act No.14 of 2016
makes it clear that the Special Rules will prevail over the provisions
of the Act, if any provision of the act is inconsistent therewith.
Section 68 reads as follows:
“If any provision of this Act is inconsistent with any provision of
the special rules applicable to any particular service, the special
rules shall, in respect of that service, prevail over the provisions of
this Act.”
19. But the petitioners as well as the High Court overlooked the
above provision. In view of section 68, the High court may not be
right in saying in the impugned order (paragraph 11) that the
Special Rules would no longer govern the service of the petitioners.
The reliance placed by the High Court on Section 20(2) of the 2016
Act may not also be fully correct, since the same does not, by itself
prescribe any qualification. Section 20 merely explains what a
reference in the Special Rules to the expression ‘minimum general
educational qualification’ would connote. This provision namely
Section 20, is applicable only to cases where the Special Rules
prescribe the possession of the minimum general educational
qualification as a prerequisite for appointment to any class or
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category of service. Section 20 of the Act read with ScheduleIII
merely defines the expression “minimum general educational
qualification” as found in the Special Rules.
20. Therefore, in fine, the ultimate conclusion reached by the High
court is unassailable, despite the omission of the High court to take
note of section 68 of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016 and the interpretation that Section
20 deserved. Hence we see no ground to interfere with the order of
the High court. Therefore, the special leave petition is dismissed.
…………………………..CJI.
(S. A. Bobde)
…..…………………………..J.
(A. S. Bopanna)
.…..………………………….J
(V. Ramasubramanian)
JULY 24, 2020
NEW DELHI.
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