R. PALANISAMY & ORS. versus THE REGISTRAR GENERAL, HIGH COURT OF MADRAS & ORS. on 24 July 2020

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1. Aggrieved by the dismissal by the High Court, of their claim forFpromotion to the post of Junior Bailiff, persons working as OfficeAssistants/Record Clerks in various courts in Erode District of the Stateof Tamil Nadu have come up with this special leave petition.

2. We have heard Mr. Purushottam Sharma Tripathi, learnedcounsel appearing for the petitioners.

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3. 22 persons, of whom 3 are working as Record Clerks and therest working as Office Assistants in various courts in Erode Districtfiled a writ petition on the file of the High Court of Judicature at Madras,seeking a Mandamus to consider their claim for promotion to the post ofJunior Bailiff, without insisting on the educational qualification of a pass H

in SSLC. Their claim was based upon (1) a previous order of the HighCourt dated 22.07.2009 in a batch of cases and (2) the fact that thevacancies to which they lay a claim, arose before the issue of the TamilNadu Government Servants (Conditions of Service) Act, 2016 and that,therefore, a pass in SSLC cannot be insisted upon as a qualification forpromotion to the post of Junior Bailiff.

4. The High Court rejected the claim on the ground that theprevious judgment of the Court dated 22.7.2009 in the batch of cases isno longer of any relevance, after the coming into force of Tamil NaduGovernment Servants (Conditions of Service) Act, 2016 and that thedate on which the vacancies arose cannot determine the Rule applicablefor recruitment by promotion. Therefore, aggrieved by the said order,the petitioners are before us.

5. As pointed out earlier, there were 22 petitioners before theHigh Court, out of whom 3 persons are working as Record Clerks andthe remaining 19 are working as Office Assistants. The post of OfficeAssistant falls under category 5 of Class-III of the Tamil Nadu BasicService. All matters concerning the posts in the Tamil Nadu Basic Service,such as their constitution, appointing authority, method of recruitment,qualifications prescribed for appointment, probation, discharge andpostings and transfers, are governed by a set of Special Rules known asthe Special Rules for Tamil Nadu Basic Service, issued in exercise ofthe powers conferred by the Proviso to Article 309 of the Constitution.Rule 1 of these Special Rules divides the posts in the entire Tamil NaduBasic Service into four classes, with each class being sub-divided intovarious categories of posts. While Class-I has 4 categories of posts,Class-II has 5 categories of posts, Class-III has 6 categories of posts,Class-IV has 86 categories of posts. The post of Office Assistant fallsunder category 5 of Class-III of the Tamil Nadu Basic Service. Most ofthe petitioners before the High Court belonged to this category.

6. Three petitioners before the High Court were working asRecord Clerks and this post falls under category 1A of the Tamil NaduGeneral Subordinate Service. The terms and conditions of service of theposts falling under the Tamil Nadu General Subordinate Service arestipulated in another set of Special Rules known as Special Rules forClass XXII of the Tamil Nadu General Subordinate Service, issued inexercise of the power conferred by the Proviso to Article 309.

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7. Thus, in essence, the petitioners who went before the HighCourt, seeking promotion to the post of Junior Bailiff, belonged to twocategories of posts, in 2 different services, one falling in the Tamil NaduBasic Service and another falling in the Tamil Nadu General SubordinateService, each of which is governed by a separate set of Special Rulesissued in exercise of the power conferred by the Proviso to Article 309.

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8. The post to which the petitioners laid a claim by way ofpromotion, namely the post of Junior Bailiff, was formerly known as thepost of “process server” falling under Category 3 of Class-III of theTamil Nadu Basic Service. It was a Group ‘D’ post. But after theimplementation of the recommendations of the Tamil Nadu V PayCCommission, the post of Process Server, was upgraded from being aGroup ‘D’ post into a Group ‘C’ post and consequently deleted from theBasic Service and included in the Tamil Nadu Judicial Ministerial Service(which is a service superior to the Basic service). This upgradation wasaccompanied by a consequential upward revision of the pay-scale also.DThis exercise of upgradation of the post from Basic Service to JudicialMinisterial Service with a higher pay scale, was done under a Governmentorder in G.O.Ms.No. 1653, Home, (Cts.V) Department, dated22-12-2008. Though necessary amendments to both sets of statutoryrules namely the Special Rules for Tamil Nadu Basic Service (for thedeletion of the post there-from) and the Special Rules for Tamil NaduEJudicial Ministerial Service (for the inclusion of the post therein) were tofollow, it never happened.

9. But in the meantime, another event took place. That eventrelated to the implementation of the recommendations of the FirstNational Judicial Pay Commission (Shetty Commission) made in the yearF2003. The Report recommended the creation of 2 categories of posts ofBailiffs in the Process establishment of courts, wherever there was onlyone category of the post. But in the State of Tamil Nadu, there werealready 2 categories of posts namely Junior Bailiff and Senior Bailiff.The First National Judicial Pay Commission also recommended in itsGreport, (i) the grant of higher pay scales for both categories of bailiffsand (ii) the prescription of Matriculation as the minimum generaleducational qualification both for direct recruitment and for promotion tothese 2 categories of posts of Bailiffs. These recommendations wereaccepted by the Government of Tamil Nadu and the revision of the pay H

scales of the posts of Bailiffs took place under G.O.Ms.No. 40, Home(Cts.V) dated 11-2-2008. Thereafter, the Government also issued G.O.Ms.No.761, Home (Cts.V) dated 10-7-2008, accepting therecommendation of the Shetty Commission that the minimum generaleducational qualification for the posts in the Process Establishment ofcourts, shall be Matriculation, both for direct recruitment and promotion.

10. Thus 2 things happened during the year 2008, which are asfollows:

(A) The first was the implementation of the recommendations ofthe Shetty Commission (i) to create 2 categories of Bailiffs (Junior Bailiffand Bailiff/Senior Bailiff) with a revision of the scales of pay of theposts and (ii) the prescription of the qualification of Matriculation. (B)The second was the implementation of the recommendations of the TamilNadu V Pay Commission (i) for deleting the post of Process Serverfrom the Basic Service and including the same in the Judicial MinisterialService under the name ‘Junior Bailiff’ and (ii) granting a higher scaleof pay for the post.

11. As a matter of fact, apart from the aforesaid category ofProcess Servers in the Moffussil courts, upgraded as Junior Bailiffs andincluded in the Judicial Ministerial Service, there were also othercategories of Bailiffs, already in existence in the Tamil Nadu JudicialMinisterial Service. They were (1) Bailiff, Court of Small Causes-cum-Court keeper, City Civil Court, Madras; (2) Senior Bailiffs of thePresidency Court of Small Causes, Madras; (3) Junior Bailiffs of thePresidency Court of Small Causes, Madras; (4) Process-Writers of thePresidency Court of small Causes, Madras. These posts already existedin categories 1 to 4 of Class-II of the Tamil Nadu Judicial MinisterialService. Similarly, there was also one more post namely the post ofSenior Bailiff in Mofussil Courts, falling under Class-V of the TamilNadu Judicial Ministerial Service.

12. For appointment to the aforesaid categories of posts of Bailifffalling under Class-II and Class-V of the Tamil Nadu Judicial MinisterialService, the Special Rules for Tamil Nadu Judicial Ministerial Service,prescribe the completion of SSLC as an essential qualification. This canbe seen from the table below Rule 19 of the Special Rules for TamilNadu Judicial Ministerial Service:

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13. Therefore, it is clear that after the implementation of therecommendations of (i) the Shetty Commission and (ii) the Tamil NaduV Pay Commission, no one was entitled to claim a right to promotion tothe post of Junior Bailiff, without the qualifications prescribed as above.

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14. The petitioners cannot take refuge under (i) the failure of theGovernment to issue necessary amendment to Statutory Rules and (ii)the previous judgment of the High Court dated 22-07-2009 passed in abatch of cases. Pending the issue of amendment to statutory rules, (i)the nomenclature of the post has changed and (ii) a higher scale of payalso given to the post. One cannot reap the benefit and ignore the H

requirement. The previous judgment of the High Court did not take noteof any of the above developments and hence the same cannot be citedas a precedence by the petitioners.

15. In fact, if the petitioners pitch their claim on the ground that tillan amendment to the statutory rules is issued, the higher qualificationcannot be insisted, then they will have to stand or fall on the basis of therule position as it exists. The Special Rules for Tamil Nadu JudicialMinisterial Service (as it remains without amendment) do not containany post called Junior Bailiff in Moffussil courts. Class-II of the saidservice comprise of 4 categories of Bailiffs all of which are in thePresidency Court of Small Causes, Chennai. Class V comprises of onlyone category of post namely Senior Bailiff in Moffussil courts. Therefore,the petitioners cannot lay a claim on the basis of the unamended TamilNadu Judicial Ministerial Service Rules.

16. Similarly, the petitioners cannot claim anything even on thebasis of the Special Rules for Tamil Nadu Basic Service, since the BasicService also does not contain any post called Junior Bailiff. There was apost called ‘Process Server’ in the Basic Service, but a higher scale ofpay was granted to the said post on the basis of the recommendations ofthe Pay Commission with a view to delete it from the Basic Service andinclude it in the Judicial Ministerial Service. The benefit of a higher payscale having got attached to the post with a corresponding obligation tolook for a higher qualification, it is no more open to the petitioners toattack the qualification alone.

17. There is one more reason why the Special Rules for TamilNadu Basic Service (as they exist) cannot be pressed into service bysuch of those petitioners who are working as Office Assistants. Ratherthan helping them, these rules will actually destroy their claim. The postof ‘Process Server’ is in Category 3 of Class-III of the Basic Service.The method of recruitment to various posts in the Basic Service areprescribed in the Table below Rule 3 (a) of the Special Rules for TamilNadu Basic Service. This Table below Rule 3 (a) prescribes that allcategories of posts in Class-III can be filled up only by 3 methods ofrecruitment namely (i) Direct recruitment (ii) Recruitment by transferfrom any other service and (iii) Transfer from Class-IV. Since the postof Office Assistant falls in Category 5 of the very same Class-III of thevery same service, those petitioners who are working as OfficeAssistants, cannot fit their claim for promotion into any one of the above A

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A3 methods of recruitment. Therefore, if the petitioners place too muchreliance upon the fact that the rules stand unamended, most of them (19out of 22) will be knocked off by the prescription contained in the Tablebelow Rule 3(a).

18. The argument revolving around the Tamil Nadu GovernmentBServants (Conditions of Service) Act, 2016, and the fact that vacanciesarose in the year 2015, prior to the enactment, are of no relevance. ThisAct was enacted to consolidate the law relating to recruitment and theterms and conditions of service of persons appointed to the State andSubordinate services in the State of Tamil Nadu, in terms of the mandatecontained in Article 309. Until the advent of this Act, the State of TamilCNadu, like many other States, was only issuing Rules in exercise of thepower conferred by the Proviso to Article 309, though such Rules weremeant only to be a stop gap arrangement until an Act of the legislaturewas made. This 2016 Act actually replaces the General Rules for theTamil Nadu State and Subordinate Services. But the Act does not override Dthe Special Rules. Section 68 of Tamil Nadu Act No.14 of 2016 makesit clear that the Special Rules will prevail over the provisions of the Act,if any provision of the act is inconsistent therewith. Section 68 reads asfollows:

“If any provision of this Act is inconsistent with any provisionEof the special rules applicable to any particular service, thespecial rules shall, in respect of that service, prevail over theprovisions of this Act.”

19. But the petitioners as well as the High Court overlooked theabove provision. In view of section 68, the High court may not be right inFsaying in the impugned order (paragraph 11) that the Special Rules wouldno longer govern the service of the petitioners. The reliance placed bythe High Court on Section 20(2) of the 2016 Act may not also be fullycorrect, since the same does not, by itself prescribe any qualification.Section 20 merely explains what a reference in the Special Rules to theexpression ‘minimum general educational qualification’ would connote.GThis provision namely Section 20, is applicable only to cases where theSpecial Rules prescribe the possession of the minimum general educationalqualification as a prerequisite for appointment to any class or categoryof service. Section 20 of the Act read with Schedule-III merely definesthe expression “minimum general educational qualification” as foundHin the Special Rules.

R. PALANISAMY & ORS. v. THE REGISTRAR GENERAL,HIGH COURT OF MADRAS & ORS.

20. Therefore, in fine, the ultimate conclusion reached by the Highcourt is unassailable, despite the omission of the High court to take noteof section 68 of the Tamil Nadu Government Servants (Conditions ofService) Act, 2016 and the interpretation that Section 20 deserved. Hencewe see no ground to interfere with the order of the High court. Therefore,the special leave petition is dismissed.

Ankit Gyan

SLP dismissed.

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