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2013 DIGILAW 2077 (MAD)

A. Arunthathi v. V. N. Sivakumar

2013-06-18

N.PAUL VASANTHAKUMAR, P.DEVADASS

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Judgment :- P. Devadass, J. 1. The 5th respondent in W.P.(MD) No.11414 of 2005 is the appellant. 2. Aggrieved by the allowing of the said writ petition filed by the 1st respondent, quashing the appointment of the appellant as Assistant in the Suchindram Temple in Kanyakumari District made by the 5th respondent / Deputy Commissioner-cum-Executive Officer of the temple, as approved by the 3rd respondent / Commissioner, Hindu Religious and Charitable Endowments, this Writ Appeal has been directed. 3. According to the learned counsel for the appellant, on 16.6.2005, as per then prevailing situation, from the post of Selection Grade Library Assistant, appellant has been promoted to the post of Assistant. Then, she was carrying the scale equivalent to the post of Junior Assistant. She was rightly empaneled and promoted. Her such appointment has also been approved by the 3rd respondent / Commissioner, H.R. & C.E. Department by his impugned order, dated 17.10.2005. Therefore, the Writ Court is not right in quashing the said order, relying on subsequent amendments to the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. 4. According to the learned counsel for the first respondent / writ petitioner, the post of Library Assistant carried the scale of last grade servant / Office Assistant. Of course, in the post of selection grade Library Assistant, the appellant received higher scale parallel to the scale of Junior Assistant. But, that cannot be the basis for considering her for the post of Assistant. The post of Library Assistant is not a feeder category to the promotional post of Assistant. From the post of Library Assistant, the next promotion is Junior Assistant. However, by promoting her as Assistant, she has been given double promotion. This is against Service law and rules. 5. The learned Additional Government Pleader submitted that some vital aspects as to her promotion has been burked. Thus, permission accorded to her promotion on 17.10.2005 by the Commissioner has been reviewed. For making such wrong proposal, disciplinary action also has been initiated and notice was also issued to the appellant. However, she questioned it in W.P.(MD) No.644 of 2008. But, on 22.3.2011 that has also been dismissed. 6. Thus, virtually the Commissioner, H.R. & C.E. Supports the stand of the writ petitioner. 7. For making such wrong proposal, disciplinary action also has been initiated and notice was also issued to the appellant. However, she questioned it in W.P.(MD) No.644 of 2008. But, on 22.3.2011 that has also been dismissed. 6. Thus, virtually the Commissioner, H.R. & C.E. Supports the stand of the writ petitioner. 7. We have anxiously considered the rival submissions, perused the entire materials on record and the impugned orders of the Commissioner, H.R. & C.E. and the the Writ Court, dated 22.3.2011. 8. On 10.11.1982, on compassionate ground, appellant was appointed as Library Assistant in the Suchindram group of temples under the administrative control of the Deputy Commissioner / Executive Officer, H.R. & C.E. Department, Suchindram, Kanyakumari District. Later, on 11.7.1996, by direct recruitment, the first respondent / writ petitioner was appointed as Junior Assistant. He is functioning as such even now. 9. During June, 2005, two posts of Assistant fell vacant. On 16.6.2005, the Executive Officer promoted the appellant and one Muthukaruppa Pillai to the said posts and sent proposal for approval to the 3rd respondent / Commissioner, H.R. & C.E. Department, Chennai. On 17.10.2005, by his impugned order, he approved it. There was no challenge to the promotion of Muthukaruppa Pillai. The challenge is only to the promotion of the appellant. 10. Admittedly, during 2005, as per the administrative instructions issued with reference to Rule 16 of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964, the feeder category for the promotional post of Assistant are Junior Assistant, Typist, Steno Typist or identical post carrying regular time scale of pay plus completion of probation or two years of continuous service and passing of certain departmental tests. 11. Appellant is not a Junior Assistant, Typist or Steno Typist. The Executive Officer assumed that she is holding identical post since she was drawing the scale of a Junior Assistant and promoted her to the post of Assistant. The Commissioner approved it by his impugned order, dated 17.10.2005. 12. It is seen that the initial / basic scale / pay for the post of Library Assistant is that of Last Grade Servant / Office Assistant. Of course, its' selection grade pay is analogous to the post of Junior Assistant. The Commissioner approved it by his impugned order, dated 17.10.2005. 12. It is seen that the initial / basic scale / pay for the post of Library Assistant is that of Last Grade Servant / Office Assistant. Of course, its' selection grade pay is analogous to the post of Junior Assistant. Subsequently, the Executive Officer reviewed the pay fixation of the appellant and found it was wrongly fixed and reduced it on par with the scale of Office Assistant with accrued increments. Challenging this, she filed a writ petition before the Principal Bench of this Court and interim stay was also granted. 13. Admittedly, even now, the said writ petition is pending. But, in the facts and circumstances of the case, the pendency of that writ petition is not a bar to decide the issue involved in this writ appeal. Because, the question involved here is the assumption of the Executive Officer / Appointing Authority that her higher pay in the post of selection grade is since analogous to the post of Junior Assistant she attained the status of a Junior Assistant is whether correct or not. 14. As per the instructions issued by the Commissioner, H.R. & C.E. on 25.5.1990 based on the then existing service rules, as stated earlier, the feeder category for the promotional post of Assistant consisted of Junior Assistant, Typist, Steno Typist or identical post carrying equal time scale of pay. On 16.6.2005, the appellant was holding the post of Library Assistant. It is not identical or equivalent to the said posts. The scale for the said purpose must be taken as original or initial pay or rate and not the subsequent increase in her pay due to increment or awarding of Selection Grade or Special Grade pay. By no stretch of imagination, the post of Library Assistant can be equated to the feeder category post of Junior Assistant, Typist, Steno Typist. Thus, the Executive Officer is not right in equating her post with the post of Junior Assistant. In this regard, the Writ Court is right in taking such a view. 15. On 28.6.2010, by way of amendment to Tamil Nadu Religious Institutions (Officers and Servants) Service Rules, 1964, for promotion to various categories of posts certain feeder categories have been mentioned. In this regard, the Writ Court is right in taking such a view. 15. On 28.6.2010, by way of amendment to Tamil Nadu Religious Institutions (Officers and Servants) Service Rules, 1964, for promotion to various categories of posts certain feeder categories have been mentioned. As per the amended rules, for the promotional post of Assistant, feeder category posts are Junior Assistant / Typist / Clerk-cum-Surveyor / Suit Clerk / Assistant Clerk / Collection Clerk / Clerk / Chatram Keeper / Junior Clerk / Ticket Sales Clerk plus passing of test on H.R. & C. E. Act and Rules and Account Test for Subordinate Officers Part-I. Library Assistant is not included in it. This is the present rule for giving promotion to the post of Assistant / Shroff / Treasury Clerk / Cashier Grade-II. 16. During 2005, the said amended rules were not there. However, there are administrative instructions issued by the Commissioner, H.R. & C.E. Department under the H.R. & C.E. Service Rules for giving promotion to the post of Assistant, which we have already seen. Even for an argument sake, if there was no service rules or administrative instructions for giving promotion, that will not enable the appointing authority to make promotion on any arbitrary basis or whimsical reasons. The appointing authority cannot make a person in the last grade / Office Assistant, holding the post of Library Assistant, as Assistant bypassing the intermediary post of Junior Assistant. Such promotions can be questioned by persons holding higher posts, like Junior Assistant than her. Thus, the argument of the appellant that in the absence of any service rules, the appointing authority can make promotion on any basis is not acceptable. 17. In the light of the above, the Writ Court quashing the impugned order dated 17.10.2005 of the third respondent / Commissioner, H.R. & C.E. Department, approving the promotion of the appellant as Assistant from the post of Library Assistant made by the 5th respondent / Executive Officer based on the resolution of the Board of Trustees / 4th respondent, is required to be upheld. 18. 18. Now that the promotion of the appellant has been quashed by the Writ Court and further, the Commissioner, H.R. & C.E. in his counter has also stated that approval to her said promotion has been reviewed and that has been cancelled, the claim of the first respondent for promotion is required to be considered in accordance with the service rules in force. 19. In the result, this Writ Appeal fails and it is dismissed. The order of the Writ Court, dated 22.3.2011 passed in W.P.(MD) No.11414 of 2005 is upheld. The appointing authority and the approving authority shall consider the claim of the first respondent / writ petitioner for promotion as Assistant on merits and in accordance with the service rules in force, within a period of eight weeks from the date of receipt of a copy of this Judgment. No costs.