IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.07.2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION NO.41873 OF 2002 1. Union of India, rep. by its Secretary to Government for Arts & Culture, Chief Secretariat, Pondicherry. 2. The Director, Arts and Culture, Pondicherry. .. Petitioners Vs. 1. Central Administrative Tribunal, Madras Bench, rep. by its Registrar 2. I. Rock S/o. Irudayanathan 3. S. Murugappan Department of Arts & Culture, Pondicherry. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records in O.A.No.401 of 2001 dated 17.01.2002, passed by the first respondent Central Administrative Tribunal, and to quash the same. For Petitioner : Mr. Syed Mustafa for Mr.T. Murugesan G.P.,(Puducherry) For Respondent-2 : Mr.V. Ajay Kumar - - - P.K. MISRA, J The Union of India and the Director of Arts and Culture, Puducherry have filed this writ petition against the judgment dated 17.1.2002 passed by the Central Administrative Tribunal, hereinafter https://hcservices.ecourts.gov.in/hcservices/ referred to as "the Tribunal", in O.A.No.404 of 2001. Such Original Application was filed by the present Respondent No.2 for quashing the proceedings dated 11.1.1999 and memorandum dated 3.3.2001 and consequently to direct the present petitioners to give promotion to such applicant to the post of Senior Library Information Assistant with effect from 11.1.1999, the date on which the present third respondent (who was also the third respondent before the Tribunal) was promoted. For convenience, the parties are described in the manner as they were arrayed in the Original Application before the Tribunal. 2. The applicant initially joined services under Respondent Nos.1 and 2 as Assistant Librarian Grade III with educational qualification of "French Brevet" (equivalent to Matriculation) with certificate in Library Science. Subsequently, he was promoted as Assistant Librarian Grade II on 17.9.1971 and to the post of Assistant Librarian Grade I on 12.9.1979. The applicant was posted in Karaikal Public Library and he was in charge of the entire library and subsequently he was transferred on 2.6.1995 to Romain Rolland Library, Puducherry. Since he was not promoted to the post of Senior Library and Information Assistant, he had filed O.A.No.914 of 1998, which was disposed of by the Tribunal by order dated 28.11.2000 by observing to consider the case of the applicant for promotion under the existing recruitment rules. Subsequently, by order dated 3.3.2001, the Government rejected such representation on the ground that the applicant was not qualified for the promotion to the post of Senior Library and Information Assistant as he did not have the required educational qualification for such post. Thereafter, the applicant filed O.A.No.404 of 2001 wherein the orders dated 11.1.1999 and 3.3.2001 were quashed and a direction was issued to the following effect :- "8. In the light of the discussion above, we hold that the applicant succeeds and the ends of justice would be met if the following orders are passed :- (a) The impugned orders 11.1.1999 and 3.3.2001 are quashed. (b) The official respondents shall consider the case of the applicant for the post of Sr. Library Information Asst. from the date when his immediate junior was promoted to the said post. In case the applicant is promoted he is entitled for notional pay and notional seniority benefits only and will not be entitled for backwages. (c) The above exercise shall be completed within three months of receipt of a copy of this order by the official respondents." https://hcservices.ecourts.gov.in/hcservices/ Such direction of the Tribunal is in question, in the present writ petition filed by the Government. 3. Before the Tribunal, it was contended by the Government that the question of promotion, etc., is required to be considered in the light of the existing recruitment rules of the year 1979. The Tribunal, rejected such contention, by observing that in the previous round of litigation the stand taken by the Government was to the effect that new rules were on the anvil and the case of the applicant would be considered in accordance with such new rules. 4. The Tribunal found that the recruitment rules for the staff working under various libraries came into force in 1979. Subsequently, however, Chattobadhyaya Committee was appointed to give certain recommendations, which were accepted by the Government vide G.O.Ms.No.27 dated 2.4.1992 and it was given effect from 24.7.1990. The Tribunal further observed that, having accepted the recommendations of the one man Commission and having issued the order with regard to implementation with effect from 24.7.1990, the Government should have promulgated the new Recruitment Rules in which event 1979 Rules would have automatically become extinguished. On the aforesaid basis and on the basis of the stand taken by the Government in the earlier case, the Tribunal concluded that: "4. ... the libraries and the staff are governed by the new GO and not by the antiquated 1979 rues which became otiose automatically. It is also pertinent to mention that the Govt. is yet to frame new RRs based on the recommendations of the one man Commission. This action of the official respondents would only fortify the fact that there is no new RRs in consonance with the new policy adopted by the Govt. We therefore hold that in such circumstances it is only fair and proper that the official respondents conduct their affairs with reference to the recommendations made by the one man Commission, which were accepted by the Govt. by giving the date of effect from 24.7.1990. We have therefore no hesitation to hold that the argument put forward by the official respondents that they are governed by the 1979 RRs has no merit and the same deserves to be rejected." 5. Having concluded as above, the Tribunal proceeded to hold that the conditions indicated in G.O.Ms.No.27 dated 2.4.1992 would be applicable, wherein the post of Library and Information Assistant is considered as promotional grade from the post of Library Clerks and similarly the post of Senior Library and Information Assistant is considered as promotional grade for Library and Information Assistant. The Tribunal further observed that in such G.O. it had no where stated that for promotion, the individual concerned should possess the same qualification as that of a candidate from direct https://hcservices.ecourts.gov.in/hcservices/ recruitment quota. Accordingly, the Tribunal gave the direction that the case of the applicant for the post of Senior Library and Information Assistant should be considered from the date when his immediate junior was promoted. It was further indicated that in case the applicant was promoted, he would be entitled to notional pay and notional seniority benefits and would not be entitled for backwages. 6. We have perused the schedule in the G.O. containing the required qualification and experience. So far as the Library Clerk is concerned, the schedule contemplates that recruitment would be by direct recruitment and the qualification is matriculation. Next post is the Library and Information Assistant in the pay scale of 1400- 2600. So far as the direct recruitment is concerned, the qualification prescribed appears to be B.A./B.Sc./B.Com. and Bachelor of Library Science. However, for promotion it is simply indicated "Promotional Grade for Library Clerks". Similarly the next post is of Senior Library and Information Asst. in the pay scale of 1640-2900. For direct recruitment, the qualification prescribed is M.A./M.Sc./M.Com + Bachelor of Library Science. For promotion, it is simply indicated that Promotional Grade for Library and Information Assistant. 7. As per such G.O., a Library Clerk can be promoted or otherwise there can be direct recruitment. In case there is direct recruitment, the minimum qualification required is a Bachelor degree with Bachelor degree in Library Science, whereas for promotion no such minimum qualification is prescribed. In other words, a matriculate, who is a Library Clerk, is also eligible to become Library and Information Assistant by promotion. Similarly the post of Senior Library and Information Assistant can be filled up either by direct recruitment or by promotion. In case it is filled up by direct recruitment, the qualification required is M.A./M.Sc./M.Com. with Bachelor degree in Library Science, whereas, if such post is filled up by promotion, a Library and Information Assistant can be promoted. In such column, there is nothing indicated about the minimum qualification. The next post is Assistant Library & Information Officer. Such post can be filled up by direct recruitment, in which event the qualification and experience is M.A./M.Sc./M.Com + Bachelor of Library Science with 3 years experience If a person is in the scale of pay of 1640-2900, he is eligible for promotion, provided he has got 3 years experience and similarly a person in the scale of pay of 1400-2600 is also eligible, provided he has got 8 years experience. Moreover, a Master Degree is essential for language and subject specialised posts. Similarly for the post of Library and Information Officer, similar qualification is prescribed. 8. A careful comparison of the qualification and experience required for promotion to the post of Library Information Assistant and Senior Library and Information Assistant on the one hand as https://hcservices.ecourts.gov.in/hcservices/ compared to the Assistant Library & Information Officer and the Senior Library and Information Officer clearly indicate that for the purpose of promotion in the first two categories, no minimum qualification is prescribed. The Tribunal has rightly interpreted the aforesaid G.O. in the above manner. 9. Even though we have agreed with the main conclusion of the Tribunal relating to interpretation of the requirement as contemplated in G.O.Ms.No.27 dated 2.4.1992, we are unable to agree with the ultimate direction issued by the Tribunal relating to grant of notional promotion to the applicant (present Respondent No.2) with effect from the date when his immediate junior was promoted. This is so because we cannot agree with the conclusion of the Tribunal to the effect that in view of the stand of the Government during the earlier round of litigation, the recruitment rules effective in the year 1979 had ceased to be applicable. Moreover, we cannot agree with the conclusion of the Tribunal relating to the effect of the observation made by the Tribunal in the earlier round of litigation in O.A.No.914 of 1998, wherein the Tribunal gave a direction for consideration of the case of promotion on the basis of the existing recruitment rules. The direction of the Tribunal during the earlier litigation can only mean that whatever rules were available and applicable, the case of promotion should be considered in accordance with such rules. It is no doubt true that on the earlier occasion the Department had contended that new rules were on the anvil. Merely because such rules had not been framed by the time the Tribunal decided the matter and merely because on policy the Government had accepted the recommendation of the Library Review Committee, it cannot be said that the existing Rules of 1979 had become antiquated. A rule framed under Article 309 of the Constitution stands on a much higher pedestal as compared to a mere Government Order or Executive instructions issued under Article 162 of the Constitution and if there is any conflict between the rules framed under Article 309 of the Constitution and the Government Orders or the Executive instructions issued from time to time, the latter has to give way to the former. 10. From the order passed by the Tribunal it appears as if no new rules have been made. Obviously, therefore, the old recruitment rules continue to be applicable. As and when the old rules are amended or replaced by new rules, obviously the case of any eligible candidate is required to be considered in accordance with such new rules. In such view of the matter, even though we agree with the interpretation of the Tribunal relating to the eligibility as envisaged in G.O.Ms.No.27 dated 2.4.1992, yet we are unable to confirm the direction issued by the Tribunal. Accordingly, we modify the same by observing that the case of Respondent No.2 should be considered regarding promotion only in accordance with the recruitment rules applicable at any given point of time. In other words, if the contents of the G.O.Ms.No.27 dated 2.4.1992 have been subsequently https://hcservices.ecourts.gov.in/hcservices/ given effect to in the shape of statutory rules, to the extent such provisions have become rules can be given effect to. 11. The order of the Tribunal is accordingly modified, subject to the above clarification. The writ petition is accordingly disposed of. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. dpk To The Registrar Central Administrative Tribunal, Madras Bench + 1 CC To The Sr.Government Pleader -cum-Senior Public Prosecutor for Pondicherry, SR NO.41172 + 1 CC To Mr.Ajay Kumar, Advocate SR NO.41180 JUDGMENT IN WP.41873/2002 GR(CO) SRA(07/08/2008) https://hcservices.ecourts.gov.in/hcservices/