R. Banumathi, J.@mdashWhether reversion of the Appellant as Process Server is the question falling for consideration in this Writ Appeal arises out of the order of the learned single judge in W.P.(MD) No. 8635/2010 dated 11.08.2010.
2. Appellant was appointed as Office Assistant in the District Consumer Disputes Redressal Forum [DCDRF), Tirunelveli on 18.08.1997. After completing years in the said post, the Appellant was promoted as Process Server on 10.01.2001 and posted at DCDRF, Chennai (South). After serving for nearly 7 months, the Appellant was promoted as Junior Assistant on 16.08.2001 and transferred to District Forum, Tuticorin, but retained at the office of the State Consumer Disputes Redressal Commission, Chennai. Thereafter, he was temporarily promoted and posted as Assistant on 12.07.2002 and transferred to the District Forum, Trichy and posted to act as Head Clerk up to 02.01.2005. He was temporarily promoted as Head Clerk on 30.12.2004 and also worked as Head Clerk at the District Forum, Dindigul. Appellant served 12. years in various Consumer Forums. By the impugned Proceedings dated 30.06.2010 in Proc.Rc.A1/519/2008, the Appellant was reverted as Process Server and posted in DCDRF, Salem on the ground that the Appellant was unqualified for promotion to the post of Junior Assistant as he has not rendered 7 years service in the lower category. In the impugned order dated 30.06.2010, it was further stated that the seniority of the individual for the subsequent promotions will be decided on completion of the balance period of 7 years of service in the lower category as per the Rules. Challenging the said order as arbitrary and the reversion by three stages is unjust and against the principles of natural justice, the Appellant has filed W.P.(MD) No. 8635/2010.
3. After hearing the parties, the learned single Judge held that Office Assistants are governed only by the Tamil Nadu Ministerial Service Rules and as contemplated under Rule 3 (g) of Tamil Nadu Ministerial Service Rules read with G.O.Ms.No. 43 P&AR (Per.B) Department dated 15.02.1994, the Appellant has not rendered 7 years of service as Process Server and is not entitled to promotion. The learned single Judge further held that all the promotions of the Appellant as Process Server, Junior Assistant, Assistant and Head Clerk were only temporary and therefore, there was no need to give any opportunity and the learned single Judge held that there was no violation of principles of natural justice.
4. Challenging the impugned order, Mr. G.R. Swaminathan, learned Counsel for the Appellant submitted that Appellant was duly promoted as Process Server and then as Junior Assistant in the year 2001 and he had been further promoted as Assistant in the year 2002 and then as Head Clerk in the year 2004 and therefore, reverting him by three stages is patently unfair. It was further submitted that the impugned order proceeds on the premise that case of the Appellant is governed by G.O.Ms.No. 43 dated 15.02.1994 and the reading of the said Government Order would show that it would apply to the cases of recruitment by transfer from other services while filling up the post of Junior Assistant whereas the Appellant was working from the inception of his career only in various Consumer Disputes Redressal Fora and therefore, G.O.Ms.No. 43 dated 15.2.1994 is not applicable. It was further argued that the Government of Tamil Nadu had issued Adhoc Rules governing the recruitment to the temporary post in various Consumer Disputes Redressal Fora wherein there was no stipulation that the candidate should have put in 7 years of service in the lower post.
5. Mr. Palaramasamy, learned Counsel appearing for the 2nd Respondent contended that promotions given to the Appellant were only temporary in nature with the condition that Appellant will be reverted to substantive post at any time without notice and without assigning any reasons and the Appellant''s post as Process Server is only a substantive post. Learned Counsel for 2nd Respondent further submitted that the impugned order has been passed only after following the rules and the same cannot be termed as illegal, arbitrary.
6. We have heard Mr. V. Rajasekaran, learned Special Government Pleader for 3rd Respondent.
7. Mr. R.R. Kannan, learned Counsel for 4th Respondent submitted that 4th Respondent was appointed as Junior Assistant by direct recruitment through TNPSC on 08.08.2001 and she was promoted as Assistant and thereafter promoted as Head Clerk. Case of 4th Respondent is that Appellant ought to have been promoted only as per Adhoc Rules, Notification VII, Rule (3) (iii) and Rule 3 (g) (I) (iii) (iv) of Tamil Nadu Ministerial Service Rules . According to 4th Respondent the Appellant is not at all having the qualifying service for promotion as Junior Assistnat and the promotions given to the Appellant are erroneous and Appellant was rightly reverted as Process Server.
8. For the trial of cases under Consumer Protection Act, 1986, the State Consumer Disputes Redressal Commission and six District Consumer Disputes Redressal Fora were initially constituted under G.O.Ms.No. 391, Co-operation, Food & Consumer Protection Department, dated 24.10.1991 for which posts like Office Assistant, Process Server, Amin, Examiner, Copyist, Steno-typist, Assistant, Head Clerk were temporarily sanctioned. Subsequently, by G.O.Ms.No. 641, Co-operation, Food & Consumer Protection Department dated 07.12.1993 regular District Consumer Disputes Redressal Fora were formed in various Districts and several new posts were temporarily sanctioned. Considering the pendency of cases and upon the recommendation of Bagla Committee established by the National Consumer Disputes Redressal Commission, New Delhi certain new posts were sanctioned and the persons who were holding the post of Junior Assistant got promotion.
9. Adhoc rules were framed as per G.O.Ms.No. 285, Co-operation, Food and Consumer Protection Department (H2) dated 06.08.2001 with retrospective effect from 09.10.1990. On the next day immediately after the said Government Order i.e. on 07.08.2001 and a day prior to the appointments through direct recruitment, the Appellant was promoted as Junior Assistant.
10. As per the Notification - VI of Adhoc rules, special Rules applicable to the holders of the permanent posts in the Tamil Nadu Judicial Ministerial Service specified in column (1) of the Table shall apply to the temporary posts in the State Consumer Disputes Redressal Commission and the District Consumer Disputes Redressal Fora specified in the corresponding entries in column (2) thereof subject to the modifications specified in the Adhoc Rules. Notification - VII of Adhoc Rules deals with the posts of Junior Assistant. Notification - VII of Adhoc Rules reads as under:
The special rules applicable to the holders of the permanent posts in the Tamil Nadu Judicial Ministerial Service shall apply to the holders of the temporary post of Junior Assistant Cum Typist, sanctioned from time to time for the District Consumer Disputes Redressal Fora, subject to the modifications specified in the rules
Rule 2. The post shall constitute a separate category in a district class in the said service.
Rule 3. The appointment to the post of Junior Assistant Cum Typists shall be made as follows:
i. By direct recruitment; or
ii. By transfer from among other class or category; or
iii. By recruitment by transfer from any other service.
11. In the Tamil Nadu Judicial Ministerial Service, there is no promotional avenues for Process Servers or Office Assistants and therefore, any promotion to be given to the Process Servers could only be under Notification - VII Rule (3) (iii) i.e. recruitment by transfer from any other service for which Tamil Nadu Ministerial Service Rules alone will be applicable. Therefore, Appellant ought to have been promoted only as per the Adhoc Rules, Notification VII, Rule (3) (iii) and Rule 3 (g) (i) (iii) (iv) of Tamil Nadu Ministerial Service Rules.
12. Even though, post of Process Server, Copyist, Examiner, Amin was sanctioned before framing of Adhoc Rules, no such promotional option as in Tamil Nadu Judicial Ministerial Service Rules have been incorporated in the Adhoc Rules of the Commission/Fora. In such circumstances, the post of Junior Assistants had to be filled up as per Rule 3 (iii) of Notification - VII of Adhoc Rules i.e. by recruitment by transfer from any other service following the instructions issued in G.O.Ms.No. 43 Personnel and Administrative Reforms (Per.B) Department dated 15.2.1994. Rule 3 (g) of Tamil Nadu Ministerial Service Rule reads as under:
... (g) Besides direct recruitment as provided in rule 2, appointment to the categories of Junior Assistant, Junior Assistant-cum-Typist and Typist shall be made by recruitment by transfer from other services subject to the following conditions, namely:
(i) Persons in services, other than the Tamil Nadu Ministerial Service, who are in categories in having no promotional opportunities or even after more than one promotion in the respective service would still be in a category carrying scale of pay lower than that of Junior Assistant or Junior Assistant-cum-Typist or Typist alone shall be considered for appointment by recruitment by transfer as Junior Assistant or Junior Assistant-cum-Typist or Typist in the Tamil Nadu Ministerial Service, subject to the possession of the prescribed qualifications for direct recruitment.
(ii) ...
(iii) Appointment to the post of Junior Assistants, Junior Assistant-cum-Typists or Typists from the lower categories shall not exceed 20% of the vacancies in each of the categories.
(iv) A person to be eligible for appointment as Junior Assistant, Junior Assistant-cum-Typist or Typist should have rendered not less than 7 years of service in the lower categories.
(v) ...
(vi) ...
(vii) ...
(viii) ...
(ix) ...
Substituted vide G.O.Ms.No. 43, P & A.R. (B) Dept. dated 21.2.2002 w.e.f. 15.2.1994).
13. By reading of the above, it is clear that for getting the promotion as Junior Assistant, the person should have served in the lower category for not less than 7 years. As pointed out earlier, the Appellant was appointed as Office Assistant on 18.08.1997. He was promoted to the post of Process Server on 10.01.2001 and thereafter promoted as Junior Assistant even on 16.08.2001. Evidently, the Appellant has not rendered service for 7 years in the lower category and therefore, requirement of Rule 3 (g) of Tamil Nadu Ministerial Service Rules was not fulfilled.
14. Learned Counsel for the Appellant mainly contended that Appellant having been allowed to work in various posts for more than 12. years and while so, his reversion by three stages after a number of years is in violation of principles of natural justice. Placing reliance upon 2001 (7) SLR 718 M.A. Hameed v. State of A.P. and Anr. it was contended that when he was allowed to work in the particular post for a reasonable period and even his appointment was temporary or irregular, the reversion of the Appellant is wholly unjustified. As pointed out by the learned single Judge, the Appellant has been promoted only temporarily and the promotion as Process Server, Junior Assistant as well as Assistant, the Appellant was informed that the promotions made are purely temporary basis and will not confer any right. It was made clear that Appellant will be reverted back to his substantive post at any time without assigning any reason in any contingency. When only temporary promotions were given to the Appellant, the Appellant cannot complain of violation of principles of natural justice.
15. In
16. The learned Counsel for the Respondents 2 and 4 has stated that before framing the Adhoc Rules, temporary promotions were given to the post of Junior Assistant from Process Server without following any rules. At that time, there was no communal roster followed for the lower category post such as Office Assistant, Process Server, Examiner and Copyist while giving promotion to the post of Junior Assistant. A tentative seniority list was prepared and circulated to the staff members only in the year 2009. On circulation of the seniority list, the office is said to have received many representations from the staff that many orders of promotion were given to the post of Junior Assistant erroneously and there was violation of the rules. It was then noted that in violation of the rules, promotions were given. Thereafter as per G.O.Ms.No. 43 dated 15.2.1994 read with Rule 3 (g) of Tamil Nadu Ministerial Service Rules, Appellant was reverted to the original substantive post.
17. That apart as per G.O. Ms. No. 1435 Public (Services - A) Department dated 19.08.1964, when there was temporary promotion, there is no need to ask the Government Servants to show cause against against the cancellation of the orders proposed. The relevant portion of G.O.Ms.No. 1435 dated 19.08.1964 reads as under:
...(ii) Erroneous orders of promotion or appointment of a Government Servant in an officiating capacity to a higher post. An order or notification of promotion / appointment of a Government Servant in an officiating capacity to a higher post should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from actual error, and the Government servant concerned should immediately on such cancellation be brought to the position he would have held but for the incorrect order of promotion or appointment. There is no need to ask the Government servant concerned to show cause against the cancellation of the orders proposed.
18. Learned Counsel for the Appellant contended that in any event the Appellant is entitled to the benefit of saving clause which was incorporated by way of amendment vide G.O.Ms.No. 123, Co-operation, Food and Consumer Protection (H2) dated 13.3.2003. As rightly contended by the learned Counsel for the Respondents in G.O.Ms.No. 123 dated 13.3.2003, the Government issued amendment in the adhoc rules saving the persons in Notification I, II, III and IV only. No such saving clause has been ordered by the Government for the persons such as Junior Assistant in Notification - VII. The saving clause will be applicable only to the persons holding the posts on the date of coming into force of these rules in respect of the respective posts. Certainly, the saving clause referred by the Appellant is not applicable to the Appellant.
19. As pointed out by the learned single Judge the Appellant was posted to the higher post on temporary basis and on adhoc basis and when he was reverted to substantive post, the Appellant cannot complain of the same. In the impugned Proceedings of the 2nd Respondent, the Appellant was reverted to the post of Process Server on the ground that he has not rendered 7 years of service in the lower category. It was observed that seniority of the individual for the subsequent promotions will be decided on completion of the balance period of 7 years of service in the lower category as per the Rules. Having allowed the Appellant to serve for a long period of 9 years by way of temporary promotion to the post of Junior Assistant and thereafter, Assistant and then as Head Clerk, in our considered view, there is no need to direct the Appellant once again to serve as Process Server and complete the balance period of 7 years of service in the lower category. The Appellant was appointed on 18.08.1997 as Office Assistant and worked for about 4 years in the said post. He was promoted to the post of Process Server on 10.01.2001 and worked for 7 months as Process Server and was promoted as Junior Assistant on 16.08.2001 and for about one year the Appellant has worked as Junior Assistant till he was promoted as Assistant on 12.07.2002 and thereafter, he worked as Assistant for about 2 years and promoted as Head Clerk on 03.01.2005 and worked as Head Clerk for about 5 years. In other posts, totally the Appellant had worked for nearly 8 years. In our considered view, the service rendered by the Appellant in other posts cannot be ignored altogether and the same to be taken into account. As per Rule 3 (g) read with G.O.Ms.No. 43 dated 15.02.1994 for promoting as Junior Assistant, the Appellant should have completed 7 years of service in the lower category. Having been appointed as Office Assistant on 18.08.1997, the Appellant would have completed 7 years on 17.08.2004. Taking in to account the service rendered by the Appellant in other posts has to be taken in to account and the notional promotion has to be given to the Appellant taking the date of completion of 7 years and his seniority has to be refixed as Junior Assistant on 18.08.2004, the date on which the Appellant would have been eligible to be promoted.
20. In the result, the order passed by the learned single Judge is modified and this Writ Appeal is partly allowed. Respondents 1 to 3 are directed to give notional promotion to the Appellant as Junior Assistant as on 18.08.2004, the date on which he would have completed his 7 years of service in the lower category and refix his seniority accordingly. Consequently, connected M.Ps. are closed. No costs.
