R. SHOBANA v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 15.10.2009CoramThe Honourable Mr.Justice S.NAGAMUTHUW.P.No.12567 of 2009& M.P.Nos.1 to 4 of 2009R. SHOBANA [ PETITIONER ] Vs1 THE STATE OF TAMILNADU REP. BY ITS SECRETARY BACKWARD CLASSES, MOST BCKWAD CLASSES AND MINORITIES WELFARE (OP) DEAPRTMENT SECRETARIAT CHENNAI -092 THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION REP. BY ITS REGISTRAR NO. 212 R.K.MUTT ROAD 2ND FLOOR MYLAPORE CHENNAI 6000043 THE BACKWARD CLASSES COMMISSION REP. BY MEMBER -SECRETARY NO. 212 R.K.MUTT ROAD FIRST FLOOR MYLAPORE CHENNAI 6000044 GOVERNMENT OF TAMILNADU REP. BY THE SECRETARY PERSONNEL & ADMINISTRATIVE REFORMS (H) DEPARMENT SECRETARIAT CHENNAI 6000095 B. SUBRAMANIAM[ RESPONDENTS ] Petition filed under Article 226 of the Constitution of India,praying to issue a writ of certiorari calling for the recordsrelating to the office proceedings No. 150/2009 dated 14.5.2009issued by the 1st respondent and quash the same as being illegalarbitrary and unconstitutional. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Muthukumarasamy, Sr.counsel for Mr.M.Hidayathulla KhanFor Respondents : Mr.Kabilan, AAG for Mr.S.Sivashanmugam, G.A. For R1, 3 & 4. Mr.K.Kumaran for R2 Mr.R.Suresh Kumar for R5O R D E RThe petitioner was appointed as Steno-Typist Grade II throughTamil Nadu Public Service Commission and was allotted to the DistrictConsumer Disputes Redressal Forum, Chengelpet as Grade IIIStenographer. She joined service on 8.3.1995. Later on, she waspromoted as Grade I Stenographer in the office of the 2nd respondent.2. The 5th respondent was also selected through Tamil Nadu PublicService Commission as Typist in the year 1988 and was allotted to theDepartment of Exservicemen's Welfare and accordingly he joined theservice. Thereafter, in the year 1989, he was promoted as Steno-Typist in the same Department. While he was working as Steno-Typistin the said Department, he was transferred on deputation to the TamilNadu Dr.M.G.R.Medical University in the year 1992 as Steno-TypistGrade III. Accordingly, he was working in Dr.M.G.R.MedicalUniversity till December 1994. By order dated 12.12.1994, theDepartment of Exservicemen's Welfare placed the petitioner at thedisposal of the 2nd respondent, namely State Consumer DisputesRedressal Commission, as per the 2nd respondent's order dated6.12.1994 for appointment as Steno-Typist Grade III. Accordingly, hewas relieved from the Tamil Nadu Dr.M.G.R.Medical University and hejoined the 2nd respondent as Steno-Typist Grade III on 16.12.1994. Hisservice was also regularised as Steno-Typist Grade III. He was thenpromoted as Steno-Typist Grade I with effect from 23.3.2000.3. Admittedly, at the office of the 2nd respondent in the post ofSteno-Typist Grade I, the 5th respondent was senior to the petitioner.While so, a post of Personal Assistant (court work) was created inthe office of the 2nd respondent as per G.O.Ms.No.245, CF & CP (H1)Department dated 25.10.2006. As against the said post, since the 5threspondent was senior most in the post of Steno-Typist Grade I, hewas promoted as Personal Assistant (court work) as per theproceedings of the 2nd respondent dated 7.5.2007. The 5th respondentaccordingly joined the post of Personal Assistant (court work) on17.5.2007.4. When the petitioner and the 5th respondent were so working inthe office of 2nd respondent, the Department of Personnel & https://hcservices.ecourts.gov.in/hcservices/ Administrative Reforms Department called for applications fromeligible candidates, who are in various services in the State forrecruitment on transfer as Personal Assistant in the Secretariat.The 5th respondent applied for the same and got selected. Therefore,as per the order issued by the Personnel & Administrative ReformsDepartment dated 30.6.2008, the 5th respondent was recruited ontransfer with effect from 30.6.2008. He was placed at the disposalof the Backward Classes, Most Backward Classes and Minorities WelfareDepartment for being posted as Personal Assistant in the office ofthe Tamil Nadu Backward Classes Commission. Accordingly, the 5threspondent was working as Personal Assistant in the Tamil NaduBackward Classes Commission.5. Coming back to the case of the petitioner, after the 5threspondent was relieved from the post of Personal Assistant (courtwork) for being recruited on transfer in the Secretariat Service, asagainst the consequential vacancy caused in the post of PersonalAssistant (court work) at the office of the 2nd respondent, since thepetitioner was the senior most, she was promoted and duly appointed.As of now, the petitioner is working as Personal Assistant (courtwork) in the 2nd respondent office.6. When things stood thus, the 5th respondent made a request tothe 1st respondent on 18.3.2009 to revert him back to the 2ndrespondent to the post of Personal Assistant (court work) because ofhis lien allegedly available for the said post. Considering thesame, the Personnel & Administrative Reforms Department issued anorder by office proceedings 150/2009, BC, MBD & MW (OP) Departmentdated 14.5.2009 by which Personnel & Administrative ReformsDepartment directed the 3rd respondent to revert the 5th respondent tothe 2nd respondent office. Accordingly, the 3rd respondent by hisproceedings in O.P.No.87/TNBCC/22009 dated 15.5.2009 relieved the 5threspondent on 15.5.2009 and directed him to report for duty at theoffice of the 2nd respondent. It is the contention of the 5threspondent that when he reported for joining duty at the office ofthe 2nd respondent, he was not permitted to join. He would furtherstate that the 2nd respondent informed him that the petitioner hadapproached the court of law and therefore posting orders shall begiven only later.7. In those circumstances, the petitioner has come forward withthe present Writ Petition seeking to quash the proceedings of the 1strespondent dated 14.5.2009 in his office proceedings 150/2009, BC,MBD & MW (OP) Department as illegal, arbitrary and unconstitutional.8. It is the contention of the petitioner that all the posts atthe office of the 2nd respondent are purely temporary posts and so, inthe post of Personal Assistant (court work) at the office of the 2ndrespondent, the 5th respondent cannot have any lien as per the https://hcservices.ecourts.gov.in/hcservices/ Fundamental Rules and therefore his request for reverting him back tothe 2nd respondent office as though there is lien available for him isnot correct. Alternatively, it is also contended that even assumingthat the petitioner has got lien in the post of Personal Assistant(court work) at the office of the 2nd respondent, since he wasrecruited on transfer in the Secretariat Service in the BackwardClasses Commission, the so called lien which the petitioner wasenjoying got snapped. Therefore, there is no question of existenceof any lien so as to get himself reverted back to the office of the2nd respondent to the post of Personal Assistant (court work). 9. The learned counsel appearing for the 5th respondent wouldcontend that though the post of Personal Assistant (court work) istechnically temporary, nevertheless the same has been treated only asa permanent post. Therefore, the petitioner has got a lien in thesaid post. The learned counsel appearing for the 5th respondentfurther contended that even assuming that the post of PersonalAssistant (court work) at the office of the 2nd respondent istemporary, as per G.O.Ms.No.176 P&AR Department dated 5.7.1994, the5th respondent has got a lien. The learned counsel would furthersubmit that since the 5th respondent's service was regularised at theoffice of the 2nd respondent and since he has been made permanent bysuch regularisation, though the post is temporary, the 5th respondenthas lien in the post of Personal Assistant (court work) at the officeof the 2nd respondent.10. A detailed counter has been filed by the 5th respondentadopting the above stand.11. The 2nd respondent has filed a detailed counter, wherein inparagraph 6, it is specifically stated that all the posts sanctionedto the State Commission including the post of Personal Assistant(court work) as well as the District Fora are temporary posts, whichare renewed every year by further orders from the Government. Thelatest such order, sanctioning further continuance of the post wasissued by the Government in G.O.Ms.No.84, Cooperation, Food andConsumer Protection (H1) Department dated 24.7.2009. It is furtherstated in the counter affidavit sworn by the Registrar of the StateConsumer Disputes Redressal Commission that since the disputeinvolved is a complicated one and the post of the President wasvacant then, the Registrar could not take any decision.12. The respondents 1 and 4 have filed a counter, which has beenadopted by the 3rd respondent. The crux of the counter filed by therespondents 1 and 4 is that on appointment of the 5th respondent inthe 2nd respondent Commission as Grade III Stenographer, his lien inthe earlier post he was holding in the Department of Exservicemen'sWelfare was cut off. It is further stated that the petitionerenjoyed the lien in the post of Personal Assistant (court work) in https://hcservices.ecourts.gov.in/hcservices/ the 2nd respondent office. 13. The contention of the petitioner that lien in the post ofPersonal Assistant (court work) at the office of the 2nd respondentwould have got snapped at the moment when the 5th respondent wasrecruited again in the Department of Backward Classes Commission ontransfer has not been answered. The learned Government Advocateappearing for the respondents 1, 3 and 4 is not in a position toexplain the stand of the Government regarding the said contention ofthe petitioner.14. I have heard Mr. Mr.R.Muthukumarasamy, learned Seniorcounsel appearing for the petitioner,Mr.S.Sivashanmugam, learned Government Advocate appearing for therespondents 1, 3 and 4 and Mr.K.Kumaran, learned counsel appearingfor the 2nd respondent and Mr.R.Suresh Kumar, learned counselappearing for the 5th respondent.15. Before going into the facts of this case, it is relevant torefer to the provisions contained in the Tamil Nadu Fundamental Rulesin respect of lien. Fundamental Rule 9(13) defines the term "lien" asfollows:"(13) Lien means the tltle of a Government servant to holdsubstantively, either immediately or on the termination of aperiod or periods of absence, a permanent post including atenure post, to which he has been appointed substantively.(emphasis supplied)"What is permanent post is defined in Fundamental Rule 9(22) asfollows:(22) Permanent post means a post carrying a definite rate ofpay sanctioned without limit of time."The term "tenure post" has been defined under Fundamental Rule 9(30-A) as follows:"(30-A) Tenure post means a permanent post which anindividual Government servant may not hold for more than alimited period." Fundamental Rule 12-A reads as follows:"12-A. Unless in any case it be otherwise provided in theserules, a Government servant on substantive appointment to anypermanent post acquires a lien on that post and ceases tohold any lien previously acquired on any other post." https://hcservices.ecourts.gov.in/hcservices/

16. A conjoint reading of the above provisions would make itmanifestly clear that a Government servant can acquire lien in aparticular post, if only the said post is permanent or tenure. If itis a purely temporary post, the Government servant who is holding thesaid post, either on a temporary basis or permanent basis cannotacquire any lien in the said post.17. The learned counsel for the 5th respondent would rely onG.O.Ms.No.176, Personnel & Administrative Reforms (Per.S) Departmentdated 5.7.1994, wherein the Government has directed as follows:"The concept of lien that entitles a Government servant tohold substantively a permanent post, shall undergo a change.Lien shall now represent only the right or title of aGovernment servant to hold a regular post whether permanentor temporary, either immediately or on the termination of theperiod of absence. The benefits of having a lien in a gradeshall thus be enjoyed by all officers who are confirmed inthe grade of entry or who have been promoted to a higher postdeclared as having completed the probation where it isprescribed or those who have been promoted on regular basisto a higher post where no probation is prescribed under theRules, as the case may be. The above right/title shall,however, be subject to the condition that the junior mostperson in the grade shall be liable to be reverted to thelower grade if at any time the number of persons so entitledis more than the posts available in that grade. (Forexample, if a person who is confirmed or whose probation in ahigher post has been declared as having been completed orone who is holding a higher post for which there is noprobation on a regular basis, reverts from deputation orforeign service and if there is no vacancy in that grade toaccommodate him, the junior most person in the gradeapplicable to the post shall be reverted, if, however, thisofficer himself is the junior most, he shall be reverted tothe next lower grade from which he was earlier promoted.).18. Relying on the above Government Order, the learned counselfor the 5th respondent would submit that the post of PersonalAssistant (court work) at the office of the 2nd respondent may be atemporary post, still, the 5th respondent has acquired lien in thesaid post because his services have already been regularised in thesaid post. The learned counsel lays emphasize on the words used inthe said Government Order, "whether permanent or temporary". 19. Though the argument of the learned counsel for the 5threspondent appears to be attractive, it cannot be accepted in view ofthe fact that it cannot override the statutory Rules, namely theTamil Nadu Fundamental Rules. It is well settled that executive https://hcservices.ecourts.gov.in/hcservices/ instruction issued by the Government cannot override the statutoryrule. It could be noticed from the said Government Order inparagraph 4 that the Government have directed that the Departments ofSecretariat may be requested to take necessary action to amend allthe relevant rules separately. Though the Government took a policydecision to create a lien for a Government servant even as againstthe temporary post which he has been holding, the learned seniorcounsel for the petitioner contended that instead of making necessaryamendment to the Tamil Nadu Fundamental Rules, the Governmentdeclared a policy by issuing a Government Order. In the light ofthe clear terms of the Fundamental Rules, the Government Order reliedon by the learned counsel for the 5th respondent cannot be applied.20. Now coming to the facts of the case, admittedly the post ofPersonal Assistant (court work) at the office of the 2nd respondent isa temporary post. To that extent, the 2nd respondent State ConsumerDispute Redressal Commission has filed a counter in paragraph 6.Apart from that, the petitioner has produced a Government Orderissued by the Government in G.O.Ms.No.84, Cooperation, Food andConsumer Protection (H1) Department dated 24.7.2009, wherein theGovernment has directed to continue 156 temporary posts, whichincludes the Personal Assistant to the Registrar and PersonalAssistant (court work) for a further period of one year. Therefore,there can be no dispute that the post of Personal Assistant (courtwork) at the office of the 2nd respondent is purely temporary. 21. The learned counsel for the 5th respondent would make anattempt to say that though the post may be technically temporary, inpractice the same has been treated only as a permanent post andtherefore the 5th respondent has got lien over the said post. 22. In my considered opinion, there is no substance in the saidargument. When the facts are so indisputable that the post has beenall along only a temporary post for a period of one year and the samehas been extended by the Government by issuing necessary orders, itcannot be said that the said post is permanent post so that the 5threspondent can have a lien over the said post. 23. The learned counsel for the 5th respondent has produced aStatement of Posts and Scales of pay for the year 2004-2005. Takinga view of the said Table, he would submit that as against 10,67,975posts in the Government Departments in the State of Tamil Nadu,4,13,807 posts are kept temporary, which means 39% of the Governmentservants are only temporary employees. It is the specific contentionof the 5th respondent that though those posts are technicallytemporary, in practice they are treated only as permanent posts. Ihave given anxious consideration to the said contention. Though itis true that 39% of the Government servants in the State of TamilNadu are made as temporary employees, since it is the policy decision https://hcservices.ecourts.gov.in/hcservices/ of the Government, this Court cannot transgress into the powersregarding policy decisions of the Government to make any tangiblelaw. It is for the Government to take appropriate policy decision inrespect of the above decision. Therefore, for the simple reason that39% of posts in the Government Departments are kept temporary, theargument of the learned counsel for the 5th respondent that thesetemporary posts should be treated as permanent posts for the purposeof lien cannot be accepted. So long as the fact remains that thepost of Personal Assistant (court work) remains to be a temporarypost, the person who is holding the said post cannot have a lien inthe said post.24. The learned counsel for the 5th respondent would furthersubmit that the post of Personal Assistant (court work) may be atemporary post, since the 5th respondent's service was regularised asagainst the said post, he has got a lien as per Rule 9 of the TamilNadu State and Subordinate Service. In my considered opinion the saidRule also does not come to the rescue of the 5th respondent.25. The learned senior counsel appearing for the petitionerwould rely on a judgment of the Hon'ble Supreme Court in S.Narayanavs. Md. Ahmedulla Khan reported in AIR 2006 SC 2224, wherein theHon'ble Supreme Court while dealing with the concept of lien has heldas follows:"17. The learned counsel for the appellant also urged thatthe High Court had misunderstood the concept of a lien on apost. He contended, and rightly in our view, that therewas nothing like lien on a post, unless a person was madepermanent in a post. Strong reliance was placed on theobservations of this Court in Triveni Shankar Saxena vs.State of U.P. Wherein after examining the concept of lienin Government service, it was observed: "... a person canbe said to acquire a lien on a post only when he has beenconfirmed and made permanent on that post and not earlier,with which view, we are in agreement...19. For the first respondent, however, it is contendedthat regularisation i the same as confirmation in service,and therefore, lien would operate from the said date. Weare afraid that we cannot accept this contention in theface of clear authority to the contrary, to which we havealready referred. Counsel for the first respondent alsocontended that any relief given to the appellant should notaffect any benefit of service, emoluments, allowance andpension etc. available to the first respondent. We do notsee how this apprehension can arise. The order of the https://hcservices.ecourts.gov.in/hcservices/ Tribunal does not in any way show that the firstrespondent's service benefits are affected. All that itensures is that justice is rendered to the appellant. Thelearned counsel for the State submitted that the Statewould submit to any orders passed by this Court. We alsonotice that the State Government has not filed any counteraffidavit in position to the appeal."26. The principle stated by the Hon'ble Supreme court in theaforesaid decision would clearly settle the issues involved in thecase at rest and it would show that though the 5th respondent wasregularised in the post of Personal Assistant (court work) at theoffice of the 2nd respondent, such regularisation would not give anylien for him in the said post because it is not either a permanentpost or a tenure post. 27. The learned senior counsel relied on two other judgments ofthe Hon'ble Supreme Court in G.K.DUDANI AND OTHERS vs. S.D.SHARMA ANDOTHERS reported in 1986 (Supp) SCC 239 and O.P.SINGLA AND ANOTHERVS. UNION OF INDIA AND OTHERS REPORTED IN (1984) 4 SCC 450 tosubstantiate his contention that there may be a permanent appointmentas against a temporary post. Simply because the appointment ispermanent, it does not mean that the post automatically becamepermanent so as to create a lien for the holder of the said post. 28. A perusal of these two judgments relied on by the learnedsenior counsel appearing for the petitioner would make it clear thatit is not always necessary that as against a temporary post, only atemporary employee can be appointed. Even a permanent employee canbe appointed as against a temporary post. The resultant positionwould be that in the event of temporary post getting abolished, theholder of the said post, since he is a permanent employee, shall beentitled for redeployment in some other Department. Instead of that,because a person, who is holding a temporary post is a permanentemployee, the post will not become automatically permanent. In thecase on hand, indisputably, the post of Personal Assistant (courtwork) at the office of the 2nd respondent is purely temporary and itwas held by the 5th respondent for some time though he is a permanentemployee. Similarly, the petitioner is holding the said post thoughshe is also a permanent employee.29. For all the above reasons, I have no hesitation to come tothe conclusion that the 5th respondent, on appointment as Steno-Typist Grade II at the office of the 2nd respondent and on promotionto the post of Steno-Typist Grade I and then to the post of PersonalAssistant (court work), has not acquired any lien in any of theseposts at the office of the 2nd respondent. 30. Admittedly, as per Rule 12-A of the Fundamental Rules, https://hcservices.ecourts.gov.in/hcservices/ since the 5th respondent was initially appointed in the Department ofExservicemen's Welfare as against a permanent vacancy, he acquiredlien only as against the said post and on deputation to the office ofthe 2nd respondent as against a temporary post, the lien which he hadat the Department of Exservicemen's Welfare would not get snappedbecause under Rule 12-A of the Fundamental Rules, if only a person isrecruited as against a permanent vacancy, the lien which he acquiredin the earlier post will get snapped. Therefore, the 5th respondentwas originally having a lien in the post which he was holding in thepost of Department of Exservicemen's Welfare. From the subsequentevents, as I have already narrated, it could be seen that the 5threspondent was again recruited on transfer in the Backward ClassesCommission. Since the post against which he was so recruited in theSecretariat in the Backward Classes Commission, is a permanent postand since the petitioner was also appointed permanently, the lienwhich he had in the post which he was holding in the ExserviemenDepartment get snapped. As I have already stated, since there was nolien in the post of Personal Assistant (court work) at the office ofthe 2nd respondent, there is no question of claiming of lien by the 5threspondent as against the said post. 31. The present position is that the Bakcward Classes Commissionhas relieved him from the post with a direction to go and join the 2ndrespondent. But the 5th respondent has not joined the post becausethe 2nd respondent has not allowed him to join. In my consideredopinion, the 2nd respondent was right in declining to allow the 5threspondent to join duty. It is for the Backward Classes Departmentto take him forthwith and to allow him to join duty.32. The learned counsel for the 5th respondent would finallysubmit that the petitioner has no locus standi to challenge becauseshe herself does not have any lien over the post of PersonalAssistant (court work) under the 2nd respondent, in my consideredopinion, to acquire locus standi to question the issue involved inthis Writ Petition, the petitioner need not have any lien over thepost she is holding. The petitioner does not claim any lien over thepost. Even according to her, she cannot acquire any lien as againstthe said post because the post of Personal Assistant (court work) ispurely temporary. At the same time because the 5th respondent istrying to join duty as Personal Assistant (court work) at the officeof the 2nd respondent, consequently the petitioner would be disturbedand she would be reverted back to the post of Steno-Typist Grade I.Because of the order passed by the Personnel & Administrative ReformsDepartment reverting the 5th respondent back to the 2nd respondentoffice, the petitioner's future is in peril. Thus, I am of the viewthat the petitioner has locus standi to maintain the present WritPetition.33. The learned senior counsel appearing for the petitioner https://hcservices.ecourts.gov.in/hcservices/ would submit that even assuming without admitting that the 5threspondent had any lien in the post of Personal Assistant (courtwork) at the office of the 2nd respondent, since he was recruited ontransfer in the Secretariat in the Department of Backward Classes,the so called lien also gets snapped. I am in full agreement withthe said argument of the learned senior counsel. Thus, viewing fromany angle, I find that the grievance of the petitioner is justifiableand so the petitioner must succeed in this Writ Petition.34. In the result, the Writ Petition is allowed and theimpugned order is set aside. The 5th respondent is at liberty toapproach the Backward Classes Department and the Personnel &Administrative Reforms Department for restoring his service in theBackward Classes Department. If any such representation is given bythe 5th respondent, the respondents 1, 3 and 4 are directed toconsider the same without any further loss of time and to immediatelyissue him posting order. No costs. The connected MiscellaneousPetitions are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarajrTo1 THE SECRETARY BACKWARD CLASSES, MOST BCKWAD CLASSES AND MINORITIES WELFARE (OP) DEAPRTMENT SECRETARIAT CHENNAI -092 THE REGISTRAR STATE CONSUMER DISPUTES REDRESSAL COMMISSION NO. 212 R.K.MUTT ROAD 2ND FLOOR MYLAPORE CHENNAI 6000043 THE MEMBER -SECRETARY BACKWARD CLASSES COMMISSION NO. 212 R.K.MUTT ROAD FIRST FLOOR MYLAPORE CHENNAI 600004. https://hcservices.ecourts.gov.in/hcservices/ 4 THE SECRETARY GOVERNMENT OF TAMILNADU PERSONNEL & ADMINISTRATIVE REFORMS (H) DEPARMENT SECRETARIAT CHENNAI 600009+1 cc to Mr. R. Sureshkumar, Advocate, SR.No.54178.+1 cc to Mr. M.Hidayathulakhan, Advocate, SR.No.54508.+1 cc to the Government Pleader, SR.No.54669.W.P.No.12567 of 2009ks(co)pmk.26.10.2009.