Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 4.7.2007CORAM:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANW.P.No.5166 of 2002& W.P.M.P.No.7259 of 20021. Union of India rep. by its Chief Secretary, Government of Pondicherry, Pondicherry.2. Secretary, Welfare Department, Government of Pondicherry, Chief Secretariat, Pondicherry. .. Petitionersvs.

R.V.Swatantra Kumari2. The Central Administrative Tribunal, Madras Bench, Rep. by its Registrar... RespondentsWrit Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, to call for the recordspertaining to the order passed in O.A.No.495 of 1998 dated 20.4.2000 onthe file of the second respondent herein (Central Administrative Tribunal)and quash the same. For petitioners : Mr.Syed Mustafa for Govt. Pleader (Pondicherry)For respondent-1 : Ms.D.Nagasaila II Tribunal. ORDER(The Order of the Court was made by F.M.Ibrahim Kalifulla,J) The Union of India, represented by its Chief Secretary, Government of Pondicherry, Pondicherry and the Secretary, WelfareDepartment, Government of Pondicherry, Chief Secretariat, Pondicherry, arethe petitioners herein. https://hcservices.ecourts.gov.in/hcservices/

The challenge is to the order of the Central AdministrativeTribunal, dated 20.4.2000 passed in O.A.No.495 of 1998. The said O.A waspreferred by the first respondent herein, praying for the relief ofconsidering her for appointment to the post of Director, Department of Women and child Development, Government of Pondicherry, in the revisedscale of Rs.10,000-325-15,200 with all other consequential benefits.

The Tribunal, by referring to G.O.Ms.No.22/96, Welfare, dated22.8.1996, held that the petitioners are bound to appoint the firstrespondent. Accordingly, the Tribunal directed them to appoint the firstrespondent in terms of paragraph 3 of the said G.O. The Tribunal alsofixed the time limit of one month from the date of receipt of a copy ofthe order, for complying with the direction.

Assailing the said order of the Tribunal, learned counselrepresenting the Government Pleader of Pondicherry contended that whileunder the G.O.Ms.No.22/96, dated 22.8.1996, on bifurcation of the SocialWelfare Department into the Social Welfare Department and the Departmentof Women and Child Development, it was contemplated for creation of Selection Grade PCS Officer to Head the Department and that until theproposed post is duly created and filled up, the seniormost Officer of the Department of Women and Child Development, i.e. Programme Officer, to actas the Head of the Department for Women and Child Development, that whilethe first respondent as Programme officer, was allowed to function as the Head of the Department, a G.O. came to be issued in G.O.Ms.No.9/98,Welfare, dated 24.4.1998, in and by which a temporary Group 'A' post of Joint Director in the Directorate of Social Welfare was revived and re-designated as Director of Women and Child Development in the revised scaleof pay of Rs.10,000-325-15,200 with the approval of the LieutenantGovernor for conversion of the said post into a permanent one and thatafter the issuance of the said G.O., regular PCS Officer has been postedto man the post. Learned counsel further contended that the issuance ofthe said G.O. was by invoking the Pondicherry Civil Service Rules, 1967,in particular Rule 2(c). Learned counsel therefore contended that in thelight of the coming into existence of the said G.O.Ms.No.9/98, dated24.4.1998, there is no right for the first respondent to claim for thepost of the Head of Department of Women and Child Development or to becomeits Director.

As against the above submissions, learned counsel appearing for thefirst respondent contended that G.O.Ms.No.9/98, dated 24.4.1998 was notissued by invoking Rule 2(c) of the Pondicherry Civil Service Rules andtherefore, the said G.O. will not preclude the claim of the firstrespondent for holding the post of the Head of Department of Women and Child Development. Learned counsel further contended that none of thestipulations contained in Rule 2(c) have been taken care of while issuingG.O.Ms.No.9/98, dated 24.4.1998 and therefore, the petitioners are notentitled to rely on the said G.O. to deprive the first respondent's claim. https://hcservices.ecourts.gov.in/hcservices/

We have considered the rival submissions of the parties. When weperuse Rule 2(c) which is a definition clause, which defines 'duty post',we find that it consists of three parts. The first part states that anyposts specified in Schedule-I to the Rules are duty posts. In the secondpart, it is stipulated that the duty post will also include a temporarypost carrying the same designation as any of the posts specified in Schedule-I and that the scale of pay of such post should be identical tothat attached to the service. The third part states that any othertemporary post declared as duty post by the Administrator will also comewithin the definition of 'duty post'. Schedule-I consists of thesanctioned strength of various posts, which are governed by Rule 3. Rule 3classifies the service as Junior Administrative Grade, Grade-I (SelectionGrade) and Grade-II. While Junior Administrative Grade and Grade-I arefurther classified as Central Civil Service Group 'A' posts, the Grade-IIposts have been classified as Central Civil Service Group 'B' posts. Whenwe peruse the Schedule-I, there were as many as 62 sanctioned posts andthe same consists of Junior Administrative Grade posts and Grade-II and Grade-I (Selection Grade) posts. The Grade-II and Grade-I (SelectionGrade) posts have been classified under one caption under Schedule-I. Whenwe peruse the various designated posts mentioned therein, as pointed outby the learned counsel for the first respondent, while there are generalposts as Deputy Secretary/Under Secretary, Deputy Collector, Deputy LabourCommissioner, District Registrar and Transport Commissioner, all the otherposts have got certain definite specifications, such as Director of SocialWelfare, Director of Survey and Land Records, Deputy Director of LocalAdministration Department, etc. Therefore, a strict application of Rule 2(c) will make it clear that either it should be one of the postsspecified, which are in existence as on date in Schedule-I or a temporarypost carrying the same designation as any of the posts specified in that Schedule and the scale of pay should also match the said temporary post. Otherwise, there should be a specific declaration of a temporary post asduty post by the Administrator.

In the case on hand, when we peruse the G.O.Ms.9/98, dated24.4.1998, we find that the main part of the G.O. reads as under: "Approval of the Lieutenant Governor is herebyconveyed to the revival of one temporary Group A postof Joint Director (Rs.3000-4500) in the Directorate of Social Welfare and to redesignate it as Director of Women and Child Development in the revised scale ofRs.10,000-325-15,200 with immediate effect. Approval ofthe Lieutenant Governor is also conveyed for conversionof the said post into a permanent one. "

A reading of the above said main part of the G.O. disclosesthat in the first place, there is no reference to Rule 2(c) at all. Secondly, it states that it is by way of revival of one temporary Group'A' post of Joint Director. In the Schedule-I, there is no post designated https://hcservices.ecourts.gov.in/hcservices/ as Joint Director falling under Group-A. Therefore, it is not one of thespecified posts designated as such in the Schedule-I with reference towhich the G.O. came to be issued on 24.4.1998. The mere mention in theG.O. to the effect that the temporary Joint Director post in the Group 'A'in the Directorate of Social Welfare on being re-designated as Director of Women and Child Development in the revised scale of Rs.10,000-325-15,200by itself would not make the said G.O. to have been validly issued under Rule 2(c) of the Pondicherry Civil Service Rules, 1967.

Secondly, the said G.O. does not state that any temporary post hasbeen declared as a duty post by the Administrator. In this context, reliance placed upon the decision of the Supreme Court reported in AIR1974 SC 555 (E.P.Royappa vs. State of Tamil Nadu) by the learned counselfor first respondent assumes significance. In paragraph 82 of the saidjudgment, the Supreme Court has pointed out that if any post is to becreated by invoking a specific rule, the order creating such post shouldspecify all the stipulations contained in the rule, or otherwise, theorder will be invalid. Relevant part of the said judgment in paragraph 82reads as under: "82. ... If the State Government wants to appointa member of the Indian Administrative Service to a non-cadre post created by it, it cannot do so unless itmakes a declaration setting out which is the cadre postto which such non-cadre post is equivalent in statusand responsibility. The making of such a declarationis a sine qua non of the exercise of power under sub-r.(1). It is not an idle formality which can be dispensedwith at the sweet will of the Government. It has apurpose behind it and that is to ensure that a memberof the Indian Administrative Service is not pushed offto a non-cadre post which is inferior in status andresponsibility to that occupied by him. ... "

The said statement of law was made by the Supreme Court whileapplying Rule 9 of the Indian Administrative Service (Pay) Rules, 1954,which specifically mentions that a declaration to the effect that the postis equivalent in status and responsibility to a post specified in the Schedule, should be made.

The above law laid down by the Supreme court squarely applies tothe facts of this case, where again, if G.O.Ms.No.9/98, dated 24.4.1998 isto be construed as having created a temporary post by invoking Rule 2(c)of the Pondicherry Civil Service Rules, such a temporary post ought tohave been made by way of declaration as 'duty post' by the Administrator. In this context, if we read Rule 4(4) of the Pondicherry Civil ServiceRules, we find creation of the duty post should be for a specified periodin the order itself creating such post. None of the stipulations containedeither in Rule 2(c) or Rule 4(4) have been taken care of while issuing https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.9/98, dated 24.4.1998.

In such circumstances, no reliance can be placed uponG.O.Ms.No.9/98, dated 24.4.1998. Consequentially, it will have to be heldthat the Head of Department for the Department of Women and ChildDevelopment should be governed only by G.O.Ms.No.22/96, dated 22.8.1996.Paragraph 3 of G.O.Ms.No.22/96 is to the specific effect that, "For the Department of Women and Child Development, one Selection Grade PCS Officerwill be the Head of the Department. Until the proposed post is created andfilled up, the seniormost officer of the Department of Women and ChildDevelopment i.e. Programme Officer will be the Head of the Department forthe Department of Women and Child Development. "

In the reply statement filed before the Tribunal, the petitionershave categorically stated in paragraph 7 that the proposal for creatingthe post of Director to Head the Department of Women and Child Developmenthad been initiated with the advice of the Union Public Service Commissionand that due to some administrative reasons, creation with theconsultation of the UPSC could not be done.

In such circumstances, until and unless creation of such post inaccordance with the Rules is duly carried out, it goes without saying thatthe Programme Officer of the Department of Women and Child Developmentalone can act as the Head of the Department of Women and ChildDevelopment. To that extent, the right of the first respondent to hold thepost of the Head of the Department while holding the post of ProgrammeOfficer, cannot be denied by the petitioners. We however make it clearthat as Programme Officer, the first respondent can act as the Head of the Department of Women and Child Development. Therefore, the order of the Tribunal directing the petitioners to appoint the first respondent interms of paragraph 3 of G.O.Ms.22/96, dated 22.8.1996, cannot be foundfault with.

The Writ Petition therefore fails and the same is dismissed. Nocosts. W.P.M.P. is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.cs https://hcservices.ecourts.gov.in/hcservices/ Copy to 1. The Chief Secretary, Union of India, Government of Puducherry, Puducherry,2. The Secretary, Welfare Department, Government of Puducherry, Chief Secretariat, Puducherry.3. The Registrar., The Central Administrative Tribunal, Madras Bench, Chennai.+ 1 CC To Ms.D.Nagasaila, Advocate SR NO.40237+ 1 CC to the Government Pleader, Pondicherry, SR NO 40164W.P.No.5166 of 2002ntk[co]gp/13.7.