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2017 DIGILAW 1226 (MAD)

N. Velu Presently Serving as Revenue Assistant, Madurai v. District Revenue Officer Madurai District, Collectorate Campus Madurai

2017-04-25

P.VELMURUGAN, T.S.SIVAGNANAM

body2017
JUDGMENT : T.S. SIVAGNANAM, J. These writ appeals are directed against the common order, dated 11.01.2017, passed in W.P.(MD) Nos.19516 to 19520 of 2015, filed by the respondents 1 and 2 in all these writ appeals. 2. For the sake of convenience, the parties shall be referred to as per the nomenclature in the writ petitions. 3. The writ petitioners are promottee assistants and the private respondents in the writ petitions are direct recruit assistants. In this Judgment, they shall be referred to as “Promottee Assistants” and “Direct Recruit Assistants”. 4. The writ petitions were filed for issuance of a writ of certiorari to quash the order, passed by the first respondent/District Revenue Officer, dated 09.10.2015, by which the petitioners, who were undergoing training as Firka Revenue Inspectors, were re-posted as Revenue Assistants. Though in the prayer sought for in the writ petitions it is termed as reversion, it is not so as there is no change of emoluments or service conditions. This position is not disputed by the writ petitioners. The claim of the petitioners was largely based on the instruction given by the then Board of Revenue, dated 22.06.1970, which states that once a person is deputed for Revenue Inspector Training and commenced to act either as Firka Revenue Inspector or Special Revenue Inspector, he should be allowed to complete the period of two years and he should not be reverted to give place to his seniors, who has qualified later. 5. The petitioners contended that this instruction issued by the then Board of Revenue has been violated and therefore, the order passed by the first respondent, dated 09.10.2015, requires to be set aside. 6. The petitioners contended that the prescribed qualification for being posted as Firka Revenue Inspector is passing of Revenue Test Papers Parts-I, II and III and completion of Survey Training and completion of training in Bhavani Sagar Institute. 6. The petitioners contended that the prescribed qualification for being posted as Firka Revenue Inspector is passing of Revenue Test Papers Parts-I, II and III and completion of Survey Training and completion of training in Bhavani Sagar Institute. It is submitted that the promottee assistants/petitioners passed the Revenue Test during the years 2010 and 2011, on the other hand, the direct recruit assistants passed the Revenue Test during the years 2013-2015 and the passing of the Revenue Test is a pre-requisite qualification for being posted as Firka Revenue Inspector as per the provisions contained in Annexure-IX of Rule 38(b)(ii) of the Tamil Nadu Ministerial Service Rules and for deputation to Bhavani Sagar Institute for training and only after passing of Revenue Tests and completion of Survey Training, they would be posted as Firka Revenue Inspectors and accordingly, the petitioners/promottee assistants were posted as Firka Revenue Inspectors in September and October, 2014. 7. Further, it is submitted that the promottee assistants have to complete eight years of total service for promotion as Deputy Tahsildars and the direct recruit assistants are required to complete five years of service for being eligible to be promoted as Deputy Tahsildars. The direct recruit assistants joined duty as Assistants during December, 2012 and they will complete five years of service only in December, 2017. The crucial date for preparation for the list of Deputy Tahsildar is 15th of September of every year and the direct recruit assistants can compete for inclusion of their names in the list of Deputy Tahsildar for the year 2018. Whereas, the promottee assistants, who have joined duty as Junior Assistants, through TNPSC on 29.05.2009 except one of the petitioners, namely, Thiru.S.Rajkumar, all other promottee assistants would be eligible to compete for inclusion of their names in the list of Deputy Tahsildar of the year 2017. Therefore, it was submitted that the order of the first respondent, dated 09.10.2015, is required to be set aside. 8. Therefore, it was submitted that the order of the first respondent, dated 09.10.2015, is required to be set aside. 8. The contention of the private respondents/direct recruit assistants was that they having been included in the panel of Assistants even in the year 2012 are to be posted as Firka Revenue Inspectors and therefore, the order passed by the first respondent directing the petitioners to be posted as Revenue Assistants is perfectly in order and the same is not an order of reversion, but it is only a case of transfer and posting as Revenue Assistants and as and when vacancy position improves, the petitioners/promottee assistants will be given posting as Firka Revenue Inspectors in accordance with their seniority. 9. The Writ Court, after considering the case, by the impugned common order held that the discontinuance of the Firka Revenue Inspector Training to which the promottee assistants were sent cannot be disrupted or discontinued and if it is done, it would be contrary to the instruction given by the then Board of Revenue, dated 22.06.1970, and accordingly, allowed the writ petitions and set aside the order passed by the first respondent. The direct recruit assistants as well as the District Revenue Officer/ Government are on appeal before us in these batch of cases. 10. Heard Mr. T. Lajapathi Roy, learned counsel and Mr. S. Chandrasekar, learned Government Advocate appearing for the appellants and Mr. S. Visvalingam, learned counsel appearing for the private respondents/writ petitioners and carefully perused the materials placed on record. 11. Before we examine the correctness of the impugned decision, we may note that the appellants, as on date, have completed 1 year 6 months and 8 days out of the two years period of training. Though the writ petitioners obtained an interim order, when the writ petitions were entertained, by then they were all relieved and posted as Revenue Assistants and therefore, pending writ petitions, the appellants/direct recruit assistants were undergoing training and they have another six months to complete the training. 12. Though the writ petitioners obtained an interim order, when the writ petitions were entertained, by then they were all relieved and posted as Revenue Assistants and therefore, pending writ petitions, the appellants/direct recruit assistants were undergoing training and they have another six months to complete the training. 12. The contention of the appellants is that the Writ Court allowed the writ petitions solely on the ground that the promottee assistants having been sent for Firka Revenue Inspector Training should be allowed to continue the training for the period of two years in terms of the instruction of the then Board of Revenue, without adverting to Rule 38(b)(ii) of the Rules, which provide for the requirement of giving training to direct recruit assistants immediately after completion of 1 year and 4 months of their initial training. 13. Earlier, the Government of Tamil Nadu issued G.O.(Ms) No.884, dated 12.08.1992 and G.O.(Ms) No.133, dated 07.02.1995, ordering that the qualified direct recruit assistants will be considered for promotion on completion of five years of service and they will be placed in the seniority list over and above the promottee assistants and the Government Order, in G.O.(Ms) No.884, dated 12.08.1992, was challenged before the Tamil Nadu Administrative Tribunal, which quashed the said Government Order by deciding the case in favour of the promottee assistants. The said order was put to challenge before the Principal Bench of this Court, which reversed the decision of the Tribunal, which order was modified in appeal preferred by the promottee assistants on 08.04.2009 and the rule, which provide for placing the direct recruit assistants above the promottee assistants, will be applicable to those promottee assistants, who are non-graduates, but not applicable to promottee graduate assistants. Sofar as the non-graduate promottee assistants are concerned, whether the preference of graduates and non-graduates among the promottee assistants, the decision was left to the Government. It is not in dispute that the direct recruit assistants were recruited as Revenue Assistants during December, 2012 and the promottee assistants were promoted as Revenue Inspectors during August, 2013. 14. The contention of the appellants is that the instruction given by the then Board of Revenue cannot override the statutory rule, namely, Rule 38(b)(ii) r/w Annexure-IX, which deals with appointment, training and condition of service of directly recruited assistants. 14. The contention of the appellants is that the instruction given by the then Board of Revenue cannot override the statutory rule, namely, Rule 38(b)(ii) r/w Annexure-IX, which deals with appointment, training and condition of service of directly recruited assistants. In terms of Rule-9, the direct recruit assistants shall be imparted first three months with Firka Revenue Inspector, Revenue, Divisional Officer's Office, Collector's Office, Foundation Training at the Civil Service Training Institute, Bhavanisagar. After the three months training, for one year they will work in the Taluk Office as Assistants dealing with revenue subjects and thereafter, for the next four weeks, they will be trained in revenue survey and maintenance of land records and if they pass the Revenue Test Papers Parts-I, II and III, they will be sent for Revenue Inspector Training for two years and thereafter, there will be a training for one year and eight months in the Collector's Office as Assistant. 15. The inter-se seniority between the direct recruit assistants and the promottee assistants is fixed in a cyclical order irrespective of the date of their joining, namely, first two vacancies by promottee assistants, third vacancy by direct recruit assistant, fourth and fifth vacancies by promottee assistants and the sixth vacancy by direct recruit assistant. Therefore, the contention is that the Writ Court did not consider the statutory rule and allowed the writ petitions. As a result of which, the promottee assistants/appellants would not be able to complete the Firka Inspector Training and consequently, they will miss their promotion chance resulting in anomalous situation that the juniors to them in the cadre of assistants will be promoted above them. 16. Further, it is submitted that all the promottee assistants are required to complete six months of training as Special Revenue Inspectors so as to enable them to be promoted as Deputy Tahsildars. But, none of the writ petitioners have completed the six months training and such requirement is not there for direct recruit assistants. Thus, it is their contention that none of the promottee assistants would be eligible for promotion as Deputy Tahsildar in 2017. On the above grounds, the appellants seek to justify the order passed by the first respondent. 17. As observed earlier, the Writ Court was solely guided by the instruction given by the then Board of Revenue. Thus, it is their contention that none of the promottee assistants would be eligible for promotion as Deputy Tahsildar in 2017. On the above grounds, the appellants seek to justify the order passed by the first respondent. 17. As observed earlier, the Writ Court was solely guided by the instruction given by the then Board of Revenue. There can be hardly any quarrel over the legal position that statutory rule will prevail over executive instructions. The relevant rule reads as follows: ANNEXURE - IX (Referred to in rule 38(b)(ii) Appointment - Training and conditions of Service of directly recruited Assistants 1. Appointment to the service may be made in the category of Assistant in the Revenue Department by direct recruitment for employment in the districts. 2.(a) The number of vacancies in any district filled up under Rule 1 shall not exceed in any year one third of the total number of vacancies arising in such district in that year. (b) subject to sub-rule (a)- (i) atleast one vacancy shall be filled up by appointment under rule 1- (I) in each of the districts of Kanyakumari and the Nilgiris every year; and (II) in the City of Madras, once in two years, and (ii) atleast two vacancies, shall be filled up as aforesaid in each of the other districts, in every year. (c) while arriving at the estimate of vacancies in each district temporary vacancies also relating to posts which have been in existence for more than five years shall be taken into account. 3. The Collector of the district concerned shall be the appointing authority. 4. The rule of reservation of appointments (General Rule 22) shall apply to such appointments separately in each district. 5. No person shall be eligible for appointment as Assistant by direct recruitment if he has completed or will complete the age of 26 years on the first day of July of the year in which the selection for appointment is made. 6. No person shall be eligible for appointment as Assistant by direct recruitment unless he possess a B.A., or B.Sc., degree (other than in a professional subject) or B.Com., degree) 7. Every person appointed as Assistant shall be on probation for a total period of two years on duty within a continuous periods of three years. 8. 6. No person shall be eligible for appointment as Assistant by direct recruitment unless he possess a B.A., or B.Sc., degree (other than in a professional subject) or B.Com., degree) 7. Every person appointed as Assistant shall be on probation for a total period of two years on duty within a continuous periods of three years. 8. Every person appointed as Assistant by direct recruitment shall be imparted the training as prescribed below:- Period Items of Training (1) (2) i. First three months 1. With Firka Revenue Inspector : One Week 2. Revenue, Divisional : Officer's Office. : One Week 3. Collector's Office : Two Weeks 4. Foundation Training at the Civil Training Institute, Bhavanisagar : Two months ii. Next one year In Taluk Office as Assistant dealing with Revenue subjects. iii. Next four weeks In Training in Revenue Survey and maintenance of land records. Provided they have passed the Revenue Tests, Parts I to III iv. Next two years Firka Revenue Inspectors v. Next one year and eight months In Collector's Office as Assistant. 9. The inter-se seniority of the directly recruited Assistants in the districts shall be fixed in the following cyclical order irrespective of the date of their joining duty. (a) First two vacancies Persons appointed by promotion (b) Third vacancy Persons appointed by promotion (c) Fourth and fifth vacancies Persons appointed by promotion (d) Sixth vacancy Persons appointed by direct recruitment 10. Consistent with his seniority, a directly recruited Assistant shall be eligible for promotion to any selection category posts provided he has put in one year service in the Collector's Office after he has completed the period of training as Firka Revenue Inspector and has also passed the tests, prescribed. 11. For every such person, there shall be reserved a substantive vacancy arising in the permanent cadre of the category of Assistants in the Revenue Department in the District concerned after his appointment. His appointment to a substantive vacancy shall now however, confer on him any preferential claims to promotion. 12. The directly recruited Assistant shall be allowed straight away to draw the minimum of the time scale of pay applicable to Assistants. The training period shall be allowed to count for increment of pay and for promotion. 13. His appointment to a substantive vacancy shall now however, confer on him any preferential claims to promotion. 12. The directly recruited Assistant shall be allowed straight away to draw the minimum of the time scale of pay applicable to Assistants. The training period shall be allowed to count for increment of pay and for promotion. 13. Any person appointed as Assistant by direct recruitment and who is not found suitable for appointment as full member may be appointed to the category of Junior Assistants in the Revenue Department in the District concerned and such appointment shall be deemed to be first appointment to the category of Junior Assistants in accordance with the Special Rules for the Service. 14. Every person appointed as Assistant by direct recruitment shall, execute an agreement in proper form with two sureties binding himself- (i) to serve in the Revenue Department for a period of not less than two years; and (ii) in case he fails to serve as aforesaid, to refund to the State Government the total amount drawn by him as pay and allowances. 18. The instruction given by the then Board of Revenue is as follows: “When once a person is deputed for Revenue Inspector Training and commenced to act either as Firka Revenue Inspector or Special Revenue Inspector, he should be allowed to complete the period of two years as Revenue Inspector as prescribed under the rules and he should not be reverted to give place to his seniors, who has qualified later.” 19. On a plain reading of the above instruction of the Board of Revenue, it is evidently clear that the purpose for issuing such direction is to ensure that the training should not be disrupted within the period of training i.e., two years. However, it is important to note that once a person has been deputed as a Firka Revenue Inspector, he should be allowed to complete the period of two years as Revenue Inspector as prescribed under the rules and he should not be reverted to give place to his seniors, who has qualified later. Therefore, the instruction given by the then Board of Revenue does not go contrary to the statutory rule. Therefore, the interpretation of the instruction should be in consonance with the statutory rule and not otherwise. However, this aspect of the matter was not considered by the Writ Court. 20. Therefore, the instruction given by the then Board of Revenue does not go contrary to the statutory rule. Therefore, the interpretation of the instruction should be in consonance with the statutory rule and not otherwise. However, this aspect of the matter was not considered by the Writ Court. 20. The other limb of the argument putforth by the petitioners is that they have passed the Revenue Test Parts-I, II and III and completed Survey Training even in 2012-2013, whereas the direct recruit assistants completed the survey training only in July, 2015. 21. The statutory rule does not provide for any advantage on account of passing of the revenue test earlier. Furthermore, nowhere under the rules, there is any provision to state that the seniority should be fixed according to the total period of service in the cadre of assistant. It is not in dispute that the petitioners were promoted as assistants in the year 2013 and will be juniors to the direct recruit assistants, who were recruited and posted as Assistants in the year 2012. 22. One more aspect that has to be noted is that the petitioners will be eligible to be included in the panel of Deputy Tahsildar only after they complete eight years of service, whereas the direct recruit assistants will be qualified to be included in the panel on completion of five years as per Rule 4 of the Tamil Nadu Subordinate Service Rules. 23. In the light of the said position, we see no prejudice is caused to the writ petitioners. It needs to be reiterated that the statutory rule would prevail over an executive instruction and the executive instruction cannot override the statutory rule. Therefore, the first respondent rightly passed the order impugned in the writ petitions and permitted the direct recruit assistants to undergo the training. 24. In the light of the above discussions, we are of the considered opinion that the order passed in the writ petitions calls for interference. 25. In the result, the writ appeals are allowed and the common order, dated 11.01.2017, made in W.P.(MD) Nos.19516 to 19520 of 2015, are set aside. Consequently, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.