V.Kamalasekaran v. The Registrar Genera

In the High Court of Judicature at MadrasDated: 22.07.2009Coram:The Honourable Mr.Justice P.K.MISRAandThe Honourable Mr.Justice R.SUBBIAHWrit Petition Nos.5865 to 5870 and 7017 of 2009and M.P.No.1 of 2009 in all PetitionsV.Kamalasekaran ..Petitioner in W.P.No.5865/2009T.Shenbagavalli ..Petitioner in W.P.No.5866/2009N.Murugesan ..Petitioner in W.P.No.5867/2009M.Krishnan ..Petitioner in W.P.No.5868/2009C.Ramakrishnan ..Petitioner in W.P.No.5869/2009K.Gunasekaran ..Petitioner in W.P.No.5870/2009V.Chandran ..Petitioner in W.P.No.7017/2009Vs.1. The Registrar General, High Court of Madras, Chennai-600 104.2. The Principal District Judge, Dharmapuri, Dharmapuri District...Respondents in W.P.Nos. 5865 to 5870/20091. Secretary, Home Department, Government of Tamil Nadu, Fort St.George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Registrar General, High Court of Madras, Chennai-600 104.3. The Principal District Judge, Salem, Salem District...Respondents in W.P.No. 7017/2009Prayer in W.P.Nos. 5865 to 5870 & 7017 of 2009:Petitions filed under Article 226 of the Constitution of India,to issue a Writ of Declaration, declaring that the recommendationscontained in G.O.Ms.761 Home (Court V) Department dated 10.07.2008particularly relating to Sl.No.4 Chapter-VIII will have noapplication to the claims of the petitioner for promotion andconsequently direct the respondents to promote the petitioner asJunior Bailiff with all attendant service benefits.For Petitioners: Mr.M.Venkatachalapathy S.C. M.Sriram in W.P.5865 to 5870 of 2009 Mr.S.Udayakumar in W.P.7017 of 2009For Respondents: Mr.K.Balasubramaniam Spl.G.P. for R1 in W.P.7017 of 2009 Mr.A.Jinasenan for R1 & R2 in W.P.5865 to 5870 of 2009 and R2 & R3 in W.P.7017 of 2009COMMON ORDERR.SUBBIAH, J.,Since the issue involved in all the writ petitions is one and thesame, they are disposed of by a common judgment.2. Petitioners in W.P.Nos.5865 to 5870 are working as OfficeAssistant under the second respondent and the petitioner inW.P.No.7017 of 2009 is working as Office Assistant under the 3rdrespondent. They approached this Court seeking a declaration,declaring that the recommendations contained in G.O.Ms.761 Home(Court V) Department dated 10.07.2008 particularly relating toSl.No.4 in Chapter-VIII will have no application to the claims of thepetitioners for promotion and consequently directed the respondentsto promote the petitioners as Junior Bailiff with all attendantservice benefits. https://hcservices.ecourts.gov.in/hcservices/

3. It is the case of the petitioners that they were appointed asNight Watchman between 1994 and 2001 and now they are working asOffice Assistants in the various Judicial Magistrate Courts atDharmapuri and Salem. The petitioners have been possessed with thequalification of VIII standard passed. Due to the long tenure ofservice, they have been awarded with Special Grade. As per the TamilNadu Judicial Ministerial Service Rules, their next avenue ofpromotion is Junior Bailiff. As per the existing Rules, the promotionis to be made from among the lower category consisting of O.As.etc.,and according to seniority. While the petitioners were ferventlywaiting for their chance of promotion, the Dharmapuri District wasbifurcated into two, viz., Dharmapuri and Krishnagiri Districts witheffect from 17.02.2008. Due to the bifurcation. 12 vacancies arose inthe post of Junior Bailiff. 4. A Committee, which was constituted under the Chairmanship ofthe Hon'ble Justice Shetty to revamp the administrative structures ofthe Courts functioning all over the Country, viz., The NationalJudicial Pay Commission, Bangalore, forwarded the report of the FirstNational Judicial Pay Commission (for short "Justice ShettyCommission) to the Government of Tamil Nadu vide their letter dated05.05.2003. The Government of Tamil Nadu, accordingly, considered therecommendations and approved the same and issued G.O.Ms.No.40 Home(Court V) Department dated 11.01.2008 while considering therecommendations in Chapter-VIII, Item No.11, which deals with themethod of recruitment to the post of Process Server and reads asfollows:RecommendationsOrder of the GovernmentWe recommend that appointment to50% of the posts of ProcessServers be made by directrecruitment and 50% by promotionfrom Peons/Orderly etc. havingminimum qualifi-cation of 8thstandardAt present the post of JuniorBailiff (Process Server) areappointed by promotion/bytransfer/by direct recruit-mentwith the qualification of 8th Stdpass. There is no ceiling inexistence for appointment asJunior Bailiff by promotion.5. As per the recommendations of the Justice Shetty Commissionand as per G.O.Ms.No.40 Home (Courts V) Department dated 11.01.2008,the petitioners are entitled to be considered for promotion as JuniorBailiff. According to the petitioners, more than 12 Junior Bailiffposts are vacant as on 01.07.2008, but the petitioners are notconsidered for promotion. The petitioners came to understand that theGovernment, while considering the recommendations of the JusticeShetty Commission, seems to have made a recommendation inG.O.Ms.No.761 Home (Courts V) Department dated 10.07.2008, withoutreference to the existing rules, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ RecommendationsOrder of the GovernmentThey recommend that the minimumqualification for ProcessEstablishment should not be lessthan Matriculation for directrecruitment. Even for promotion tothis cadre from lower cadre,persons having matriculationqualification alone should beconsidered.The Government accept therecommendation. The minimumqualification for ProcessEstablishment shall beMatriculation for directrecruitment and for promotion tothis cadre from lower cadre.6. On a perusal of G.O.Ms.No.761 Home (Courts V) Department dated10.07.2008, it could be seen that while considering 52recommendations of the Justice Shetty Commission, the Governmentissued orders on certain recommendations of the said Commission inthe earlier G.Os., namely, G.O.Ms.No.730 Home (Courts V) Departmentdated 18.08.2006 and G.O.Ms.No.40, Home (Courts V) Department dted11.01.2008 and the remaining 27 recommendations of Justice ShettyCommission have been referred to the Registrar General, High Courtfor consideration of the Government.7. Thereafter, the Government had issued G.O.Ms.761, Home (CourtsV) Department dated 10.07.2008, wherein it issued orders on 27recommendations, in which one of the recommendations is the minimumqualification for Process Establishment is fixed as Matriculationboth for direct recruitment and for promotion to the cadre from thelower cadre. Since the petitioners did not have the qualification ofMatriculation, as per G.O.Ms.761, Home (Courts V) Department dated10.07.2008, their names were not considered for promotion. Hence,the petitioners have filed the present writ petitions by raising thecontentions that unless the statutory Rules were framed under Article309 of constitution of India, their promotion cannot be denied, basedon G.O.Ms.761, Home (Courts V) Department dated 10.07.2008.Therefore, they prayed to issue a writ of declaration as stated supra.8. The 2nd respondent filed a detailed counter, denying the claimof the petitioners and stating that the seniority is being strictlyfollowed while giving promotions as per Rule 36 of Tamil Nadu Stateand Subordinate Service Rules and the minimum educationalqualifications prescribed for the promotive posts are also taken intoconsideration, since there should be no violation of Rules andRegulations and the Government Orders.9. Heard the learned counsel appearing on either side and perusedthe materials and also the particulars furnished by the RegistrarGeneral, High Court of Madras in respect of the Office Assistants,who were promoted as Junior Bailiffs in Dharmapuri District. https://hcservices.ecourts.gov.in/hcservices/

10. The main grievance of the petitioners is that according toG.O.Ms.No.40, Home (Courts V) Department dated 11.01.2008, theeligible qualification for promotion from the post of OfficeAssistant to Junior Bailiff is only 8th standard pass. All thepetitioners, who are working as Office Assistants in the Courts atDharmapuri and Salem, for a long time, are satisfied with theeligible qualification. Due to the bifurcation of DharmapuriDistrict into Dharmapuri and Krishnagiri, 12 vacancies arose in thepost of Junior Bailiffs. Based on the recommendations of JusticeShetty Commission, the Government has issued G.O.Ms.761, Home (CourtsV) Department dated 10.07.2008, wherein the minimum qualificationprescribed for direct recruitment as well as for promotion to thepost of Junior Bailiff is Matriculation. Since the petitioners didnot possess the qualification of Matriculation, the juniors to thepetitioners were promoted to the post of Junior Bailiffs.11. On a perusal of the counter filed by the 2nd respondent, weunderstand that so far, no amendment was made in the Service Rulespursuant to G.O.Ms.761, Home (Courts V) Department dated 10.07.2008.Mere acceptance of the recommendations of the Justice ShettyCommission by way of issuing a Government Order is not sufficient tohave a binding effect. Unless the Service Rules are amended inconsonance with Article 309 of the Constitution, the earlier Rulescannot be replaced. Under such circumstances, denial of thepromotion based on G.O.Ms.761, Home (Courts V) Department dated10.07.2008 is not sustainable. Till the Service Rules are amendedpursuant to the acceptance of the recommendations of ShettyCommission made in G.O.Ms.761, Home (Courts V) Department dated10.07.2008, the promotions cannot be denied to the petitioners on theground of not having the prescribed educational qualification. In the light of the above, we are of the view that thepetitioners are entitled for a declaration that till the Tamil NaduState and Subordinate Service Rules are amended, if the question ofany promotion to the post of Junior Bailiff arises, the case of thepresent petitioners can be considered in accordance with the existingRules. All the writ petitions are allowed to the extent indicatedabove. No costs. Consequently, connected M.Ps.are closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ glTo1. The Registrar General, High Court of Madras, Chennai-600 104.2. The Principal District Judge, Dharmapuri, Dharmapuri District.3. The Secretary to Government, Home Department, Government of Tamil Nadu, Fort St.George, Chennai-600 009.4. The Principal District Judge, Salem, Salem District2 ccs To Government Pleader, Advocate, SR.33283, 333031 cc To Mr.S.Udayakumar, Advocate, SR.332261 cc To Mr.M.Sriram, Advocate, SR.33658W.P.Nos.5865 to 5870 and 7017/2009MSM(CO)SRA(28/7/2009)