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2018 DIGILAW 2278 (MAD)

A. Ahamed Ibrahim v. Secretary to Government

2018-07-27

ANITA SUMANTH, M.DURAISWAMY

body2018
JUDGMENT : ANITA SUMANTH, J. 1. This Writ Appeal challenges an order of the learned Single Judge dated 27.09.2016. We have heard the detailed submissions advanced by Mr. B. Saravanan, learned counsel for the appellant, Mr. A.K. Baskarapandian, learned Special Government Pleader for respondents 1 and 2, Mr. R. Murali, learned standing counsel, for the third respondent, Mr. C. Elanchezhien, learned counsel, for the fifth respondent, Mr. M. Saravanakumar, learned counsel for the sixth respondent, Mr. R. Alagumani, learned counsel for the seventh respondent and Mr. N. Murugesan, learned counsel for the eight respondent. 2. The lis in the present matter concerns the fixation of inter se seniority in the combined list of Tax Collectors and Assistants employed in the Madurai Corporation, the third respondent herein. 3. G.O.Ms.No.237 dated 27.09.1996 brought into effect new Service Rules as per the Tamil Nadu Municipal Corporation General Subordinate Service Rules, 1996 (in short and hereinafter referred to as ‘Service Rules’). 4. The appellant was appointed as Junior Assistant on 25.06.1993 in the Madurai Municipal Corporation. He was promoted to the post of Assistant on 19.11.2009 which is a post falling under Category-I/Group-II/Class-III. The post is a feeder to all posts in Group I, comprising Categories 1, 2 and 3, being Superintendent, Assistant Revenue Officer and Reporter. 5. Respondents 4 to 8 were appointed as Bill(Tax) Collectors in the year 1986. The post of Bill(Tax) Collectors features in Category III/Group III/Class III of the 1996 Service Rules. 6. Rule 3 of the Service Rules provides that the post of Assistant was to be filled in by direct recruitment as well as promotion from the holders of the post of Junior Assistant cum Typist in the ratio of 1:9. 7. The constitution of Class III posts is set out as follows: Class III:- Group-I- Category 1 Superintendent Category 2 Assistant Revenue Officer Category 3 Reporter Group-II- Category 1 Assistant Category 2 Personal Assistant Category 3 Accountant Group-III- Category 1 Junior Assistant Cum Typist Category 2 Steno Typist Category 3 Tax Collector Category 4 conservancy Inspector Group-IV- Category 1 Driver Group-V- Category 1 Record Assistant Category 2 Head Office Assistant Category 3 Conservancy Supervisor 8. It transpires that Tax Collectors employed in various Municipal Corporations had submitted representations both through their service associations as well as individually, seeking relaxation in the matter of fixation of seniority and promotions on various grounds including that there had been no promotions from their category for a period in excess of twenty years. 9. Their grievances were taken note of by the Government and clarifications issued vide G.O.Ms.No.140, Municipal Administration and Water Supply Department, dated 27.05.1997. The pre-condition for promotion, being two years of service as Junior Assistant cum Typist, was relaxed in the case of those Tax Collectors who had completed 20 years of service whereas the Service Rules would continue to govern the service of those holding the post for less than twenty years. The benefit under the aforesaid GO did not however, apply to the Tax Collectors working in the Madurai Municipal Corporation since the Rules had been challenged at their instance. 10. The above WP was subsequently withdrawn. Thereafter, in 1996, GO Ms. No 265 dated 13.07.1996 came to be passed by the Government as per which Tax Collectors who had completed 20 years of service as on 27.05.1997 could also be considered for promotion to the Special Group Post of Revenue Inspectors (Special) in accordance with strict seniority in the post of Tax Collectors. Pursuant to the aforesaid GO, 18 Bill Collectors who had completed 20 years of service as on 27.05.1997 were promoted to the post of Revenue Inspector (Special). 11. This was followed by GO Ms.No.24 dated 11.08.2010. The order directed the promotion of all Bill Collectors who had been appointed prior to 01.10.1996 and not completed twenty (20) years of service as on 27.05.97 to the post of Assistant by relaxing the condition of two years service as a Junior Assistant cum Typist, as a special case. Paragraph 7 thereof reads as under:- '..7. The Government carefully considered the proposal of the Director, Municipal Administration on the basis of the Hon'ble Madras High Court, dated 26.04.2010 in W.P.No.5168 of 2009. Paragraph 7 thereof reads as under:- '..7. The Government carefully considered the proposal of the Director, Municipal Administration on the basis of the Hon'ble Madras High Court, dated 26.04.2010 in W.P.No.5168 of 2009. After consideration, as per the Government order 3rd read above the Government ordered the Commissioner, Madurai Corporation to issue promotion to the Tax Collectors who joined service prior to 01.10.1996 except the persons appointed as Revenue Inspectors (Special), after completion of 20 years of service, if they possess all educational qualification for the post of Assistant, by relaxing the condition that for the purpose of promotion as Assistant they should serve as Junior Assistant and Typist for 2 years as per the 2nd read above, on seniority basis by reckoning the service from the date of joining as Tax Collectors as special case...' 12. The above Government Order came to challenged by several persons including the petitioner in W.P.No.10931 of 2010 as being contrary to the 1996 Service Rules. The GO was upheld vide an order of a learned single judge of this Court on 26.04.2013 and the said order has attained finality. 13. In 2013, the Government issued letter dated 27.08.2013, ostensibly to provide clarity to G.O.Ms.24 dated 11.08.2010, on the question of fixation of inter se seniority as between Tax collectors, who had been promoted and persons already holding the post of Assistants. The clarification provided is as follows: …. After examination, accepted the proposal of the Commissioner, Municipal Administration and issue the following clarifications to G.O. (3.Pa) No.24, dated 11.08.2010. a. The Seniority list should be drawn based on joining of service as Tax Collectors prior to 01.10.1996, and inter se seniority be drawn between Tax Collectors and Junior Assistants, based on the same panel should be drawn for every year and based on approved list promotion should be granted to the vacant post. While granting promotion the salary of the individual may be fixed on the date of joining of the assistant and from that date monetary benefit could be granted. b. Promotion could be granted only if there are vacancies in the sanctioned strength of Assistant Posts. c. In madurai Corporation there are 27 Assistants sanctioned posts, 10 Revenue Tax Collectors now appointed as Assistants. Hence, promotion could be granted only if there are vacancies in the sanctioned post. No additional post could be created.” 14. b. Promotion could be granted only if there are vacancies in the sanctioned strength of Assistant Posts. c. In madurai Corporation there are 27 Assistants sanctioned posts, 10 Revenue Tax Collectors now appointed as Assistants. Hence, promotion could be granted only if there are vacancies in the sanctioned post. No additional post could be created.” 14. Along with further clarifications along the same lines as in communication dated 27.08.2013, an inter se seniority list was drawn up on 23.09.2013. The appellant/petitioner features in serial no.215 whereas the respondents/Tax Collectors, who have been the beneficiaries of the various orders as referred to above, have been placed higher in seniority to the petitioner, R4 at 118, R5 at 82, R6 at 148, R7 at 55 and R8 at 67. 15. The grievance of the petitioner arises from the interpretation sought to be imposed upon letter dated 27.08.2013 and the consequential inter se seniority list dated 12.03.2018 displacing him from his position of seniority to one junior to the Tax Collectors who were promoted out of turn. Since R4 to R8, were placed above him in the inter se seniority list, the petitioner filed the present Writ Petition praying for a writ of Certiorari calling for proceedings dated 27.08.2013 and consequential circular fixing the seniority dated 23.09.2013 and quashing the same. 16. A detailed counter was filed and after hearing the parties the learned Single Judge upholds the impugned order and consequential seniority list, also directing the official respondents to effect promotion to R4 to R8 on par with their Juniors in the light of their imminent retirement, all within a period of four weeks from the date of receipt of a copy of the order. 17. Before us the thrust of the challenge is to the interpretation placed upon the Government clarification letter (2g) No.85 dated 27.08.2013 as revealed from the consequential fixation of inter se seniority. In fact, in our view, the issue revolves around the interpretation of the Government Order and does not constitute a challenge to the order itself or the contents thereof. Before us the thrust of the challenge is to the interpretation placed upon the Government clarification letter (2g) No.85 dated 27.08.2013 as revealed from the consequential fixation of inter se seniority. In fact, in our view, the issue revolves around the interpretation of the Government Order and does not constitute a challenge to the order itself or the contents thereof. The short point to be decided is thus whether parity of placement with the petitioner in the roster of Assistant is to be extended to the Tax Collectors or whether the Tax Collectors, having already received the benefit of waiver of pre-condition as well as special out-of-turn promotion to the post of Assistant, are to be placed at the end of the inter se seniority list, so that the seniority of the persons already in the post of Assistants is maintained. 18. The learned Single Judge, in dismissing the writ petition has proceeded to rely upon the decision of the learned Single Judge of this Court in W.P.(MD)No.6403 of 2006 and 10931 of 2010 dated 26.04.2013. The aforesaid order, however, deals with a challenge to the proceedings in G.O.Ms.No.265, of the Municipal Administration and Water Supply Department dated 13.07.2006, such challenge being specifically on the ground that the said Government Order was made applicable only to the post of Bill(Tax) Collectors and not to other horizontal posts in the same category as Bill(Tax) Collectors. 19. However, this Court, while upholding the said Government Order, made it clear that the issue for consideration before it did not extend to the fixation of the inter se seniority list. In fact, at paragraph 27, this Court states as much in the following words: ‘27. In this case, this Court is not considering the inter se seniority position in the panel to be prepared for promotion to the post of Assistant and this examining the contention as to whether G.O.Ms.No.24 is contrary to the Service Rule. As stated above, the impugned Government order is not contrary to the service Rules and the interpretation given by the petitioners is incorrect.’ 20. Thus, we are of the view that the issue that arises in the present writ petition is liable to be decided dehors reference to, or reliance upon the aforesaid decision. 21. As stated above, the impugned Government order is not contrary to the service Rules and the interpretation given by the petitioners is incorrect.’ 20. Thus, we are of the view that the issue that arises in the present writ petition is liable to be decided dehors reference to, or reliance upon the aforesaid decision. 21. In deciding the proper interpretation to be extended to clarification letter dated 27.08.2013 read with the earlier relevant GOs, one cannot lose sight of the position that G.O.Ms.No.265 of 2006 envisages the promotion of Tax Collectors as a special and out-of-turn case. In fact, much stress has been laid on this by learned counsel for all the parties. 22. The rationale for the promotion of the Tax Collectors to the post of Assistants is set out clearly and unambiguously in G.O.Ms.No.265 dated 13.07.1996 and G.O.Ms.No.24 dated 11.08.2010. The GOs capture the entire background as well as provide perspective to the matter stating that the intention behind the passing of the GOs in question was that Tax Collectors had been deprived of their due in terms of timely promotions. It was for this reason that a waiver was provided from the pre-condition of service as Junior Assistants cum Typists. Thus, a benefit has already been extended to the Tax Collectors by virtue of the waiver and the special, out of turn promotion, as aforesaid. 23. G.O.Ms.24 dated 11.08.2010 itself contains a cue as to how the question of seniority of the Tax Collectors vis-a-vis the existing persons in the category of Assistants is to be reckoned. After setting out the reason for extension of the special benefit, the Government states, in conclusion, that the promotion to the post of assistant upon waiving the pre-condition would be on ?seniority basis by reckoning the service from the date of joining as Tax Collectors as special case.? Thus while the selection of the Tax Collectors who would receive the bounty of the circular was to be based depending on their seniority, the intention nowhere appears to be that the promoted Tax Collectors would usurp the positions and seniority of those already holding the posts as Assistants and there is nothing in the aforesaid GO to indicate so. 24. 24. As we see it, the tenor of communication dated 27.08.2013 is to maintain the status quo as such, while also integrating specified Tax Collectors as a special case into the existing scheme. In fact, the communication contains positive directions at paragraphs (b) & (c) to the effect that the promotion of the Tax Collectors and their integration shall be conditional upon there being vacancies in the existing list of Assistants. The intention and emphasis is therefore upon maintenance of seniority among the existing Assistants. Seen in this light, the present interpretation of the impugned communication as revealed by the consequential inter se seniority list dated 23.09.2013 does not seek to maintain the existing seniority but distorts it. Thus, in our view, is not the purport of the impugned communication. 25. It is an admitted position that the appellant was already in the post of Assistant as on the date when the Tax Collectors were promoted to the post. It would, therefore, not stand to reason that the Tax Collectors, who have been integrated to the post of Assistants by virtue of the special benefit extended to them, be placed above the appellant in order of seniority. No doubt, a special benefit has been extended to the Tax Collectors but this cannot mean that they are entitled, as a matter of right, to supercede those already appointed in the post of Assistants. 26. The proper interpretation of the GOs in question precludes an interpretation that results in those already appointed as Assistants losing their seniority by virtue of the said interpretation. If that were so, it would be a clear case of the State robbing Peter to pay Paul! In other words, such an interpretation would mean that the State, in attempting to compensate the Tax Collectors for the delay in their promotions, compromises and prejudices another group of innocent employees in the process. 27. The appellant was promoted to the post of Junior Assistant on 19.11.2009 and Assistant on 21.06.2013. Admittedly contesting respondents 4 to 8 were appointed as Bill Collector/Revenue Assistants in the year 1996 and were promoted as Assistants as on 18.08.2013 by virtue of the benefit extended to them. 27. The appellant was promoted to the post of Junior Assistant on 19.11.2009 and Assistant on 21.06.2013. Admittedly contesting respondents 4 to 8 were appointed as Bill Collector/Revenue Assistants in the year 1996 and were promoted as Assistants as on 18.08.2013 by virtue of the benefit extended to them. The promotion of the Tax Collectors to the post of Assistant is subsequent to the promotion of the appellant to the post of Assistant and as such, they ought to have been placed in the seniority list after the appellant. 28. The Writ Appeal is allowed and the official respondents are directed to redraw the inter se seniority list consequent upon Government clarification letter 2(g) No.85 dated 27.08.2013 in line with the interpretation set out by us above, within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.