5865 to 5870/2009
1. Secretary, Home Department, Government of Tamil Nadu, Fort St.George, Chennai-600 009.
2. The Registrar General, High Court of Madras, Chennai-600 104.
3. The Principal District Judge, Salem, Salem District. ..Respondents in W.P.No.
7017/2009 Petitions filed under
Article 226 of the Constitution of India, to issue a Writ of Declaration, declaring that the recommendations contained in G.O.Ms.761 Home (Court V) Department dated 10.07.2008 particularly relating to Sl.No.4 Chapter-VIII will have no application to the claims of the petitioner for promotion and consequently direct the respondents to promote the petitioner as Junior Bailiff with all attendant service benefits.
For Petitioners : Mr.M.Sairam For Respondents : Mr.D.Srinivasan, A.G.P., COMMON ORDER R.SUBBIAH, J., Since the issue involved in all the writ petitions is one and the same, they are disposed of by a common judgment.
2. Petitioners in W.P.Nos.5865 to 5870 are working as Office Assistant under the second respondent and the petitioner in W.P.No.7017 of 2009 is working as Office Assistant under the 3rd respondent. 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 to Sl.No.4 in Chapter-VIII will have no application to the claims of the petitioners for promotion and consequently directed the respondents to promote the petitioners as Junior Bailiff with all attendant service benefits.
3. It is the case of the petitioners that they were appointed as Night Watchman between 1994 and 2001 and now they are working as Office Assistants in the various Judicial Magistrate Courts at Dharmapuri and Salem. The petitioners have been possessed with the qualification of VIII standard passed. Due to the long tenure of service, they have been awarded with Special Grade. As per the Tamil Nadu Judicial Ministerial Service Rules, their next avenue of promotion is Junior Bailiff. As per the existing Rules, the promotion is to be made from among the lower category consisting of O.As.etc., and according to seniority. While the petitioners were fervently waiting for their chance of promotion, the Dharmapuri District was bifurcated into two, viz., Dharmapuri and Krishnagiri Districts with effect from 17.02.2008. Due to the bifurcation. 12 vacancies arose in the post of Junior Bailiff.
4. A Committee, which was constituted under the Chairmanship of the Hon'ble Justice Shetty to revamp the administrative structures of the Courts functioning all over the Country, viz., The National Judicial Pay Commission, Bangalore, forwarded the report of the First National Judicial Pay Commission (for short "Justice Shetty Commission) to the Government of Tamil Nadu vide their letter dated 05.05.2003. The Government of Tamil Nadu, accordingly, considered the recommendations and approved the same and issued G.O.Ms.No.40 Home (Court V) Department dated 11.01.2008 while considering the recommendations in Chapter-VIII, Item No.11, which deals with the method of recruitment to the post of Process Server and reads as follows:
Recommendations Order of the Government We recommend that appointment to 50% of the posts of Process Servers be made by direct recruitment and 50% by promotion from Peons/Orderly etc. having minimum qualifi-cation of 8th standard At present the post of Junior Bailiff (Process Server) are appointed by promotion/by transfer/by direct recruit-ment with the qualification of 8th Std pass. There is no ceiling in existence for appointment as Junior Bailiff by promotion.
5. As per the recommendations of the Justice Shetty Commission and 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 Junior Bailiff. According to the petitioners, more than 12 Junior Bailiff posts are vacant as on 01.07.2008, but the petitioners are not considered for promotion. The petitioners came to understand that the Government, while considering the recommendations of the Justice Shetty Commission, seems to have made a recommendation in G.O.Ms.No.761 Home (Courts V) Department dated 10.07.2008, without reference to the existing rules, which reads as follows:
Recommendations Order of the Government They recommend that the minimum qualification for Process Establishment should not be less than Matriculation for direct recruitment. Even for promotion to this cadre from lower cadre, persons having matriculation qualification alone should be considered.
The Government accept the recommendation. The minimum qualification for Process Establishment shall be Matriculation for direct recruitment and for promotion to this cadre from lower cadre.
6. On a perusal of G.O.Ms.No.761 Home (Courts V) Department dated 10.07.2008, it could be seen that while considering 52 recommendations of the Justice Shetty Commission, the Government issued orders on certain recommendations of the said Commission in the earlier G.Os., namely, G.O.Ms.No.730 Home (Courts V) Department dated 18.08.2006 and G.O.Ms.No.40, Home (Courts V) Department dted 11.01.2008 and the remaining 27 recommendations of Justice Shetty Commission have been referred to the Registrar General, High Court for consideration of the Government.
7. Thereafter, the Government had issued G.O.Ms.761, Home (Courts V) Department dated 10.07.2008, wherein it issued orders on 27 recommendations, in which one of the recommendations is the minimum qualification for Process Establishment is fixed as Matriculation both for direct recruitment and for promotion to the cadre from the lower cadre. Since the petitioners did not have the qualification of Matriculation, as per G.O.Ms.761, Home (Courts V) Department dated 10.07.2008, their names were not considered for promotion. Hence, the petitioners have filed the present writ petitions by raising the contentions that unless the statutory Rules were framed under
Article 309 of constitution of India, their promotion cannot be denied, based on 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 claim of the petitioners and stating that the seniority is being strictly followed while giving promotions as per Rule 36 of Tamil Nadu State and Subordinate Service Rules and the minimum educational qualifications prescribed for the promotive posts are also taken into consideration, since there should be no violation of Rules and Regulations and the Government Orders.
9. Heard the learned counsel appearing on either side and perused the materials and also the particulars furnished by the Registrar General, High Court of Madras in respect of the Office Assistants, who were promoted as Junior Bailiffs in Dharmapuri District.
10. The main grievance of the petitioners is that according to G.O.Ms.No.40, Home (Courts V) Department dated 11.01.2008, the eligible qualification for promotion from the post of Office Assistant to Junior Bailiff is only 8th standard pass. All the petitioners, who are working as Office Assistants in the Courts at Dharmapuri and Salem, for a long time, are satisfied with the eligible qualification. Due to the bifurcation of Dharmapuri District into Dharmapuri and Krishnagiri, 12 vacancies arose in the post of Junior Bailiffs. Based on the recommendations of Justice Shetty Commission, the Government has issued G.O.Ms.761, Home (Courts V) Department dated 10.07.2008, wherein the minimum qualification prescribed for direct recruitment as well as for promotion to the post of Junior Bailiff is Matriculation. Since the petitioners did not possess the qualification of Matriculation, the juniors to the petitioners were promoted to the post of Junior Bailiffs.
11. On a perusal of the counter filed by the 2nd respondent, we understand that so far, no amendment was made in the Service Rules pursuant to G.O.Ms.761, Home (Courts V) Department dated 10.07.2008. Mere acceptance of the recommendations of the Justice Shetty Commission by way of issuing a Government Order is not sufficient to have a binding effect. Unless the Service Rules are amended in consonance with
Article 309 of the Constitution, the earlier Rules cannot be replaced. Under such circumstances, denial of the promotion based on G.O.Ms.761, Home (Courts V) Department dated 10.07.2008 is not sustainable. Till the Service Rules are amended pursuant to the acceptance of the recommendations of Shetty Commission made in G.O.Ms.761, Home (Courts V) Department dated 10.07.2008, the promotions cannot be denied to the petitioners on the ground of not having the prescribed educational qualification.
In the light of the above, we are of the view that the petitioners are entitled for a declaration that till the Tamil Nadu State and Subordinate Service Rules are amended, if the question of any promotion to the post of Junior Bailiff arises, the case of the present petitioners can be considered in accordance with the existing Rules. All the writ petitions are allowed to the extent indicated above. No costs. Consequently, connected M.Ps.are closed.