IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-04-2007 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE J.A.K. SAMPATH KUMAR W.A.NOs.1202, 1208 OF 1997, 1165 & 1166 OF 1998 W.A.Nos.1202 & 1208/1997 1. U.K. Subramaniam ..Appellant No.1 in WA.1202/1997. 2. T. Govindaraju 3. A.M.P. Jamaludeen 4. S. Balakrishnan 5. R.Amirthavalli 6. K. Indira 7. G. Devarajan 8. R. Kasthuri 9. S.H. Saleem Unnisa .. Appellants 2 to 9 in WA.No.1202 and 1 to 8 in WA.No.1208/97. Vs. 1. Tmt.N. Meenakshi W/o.B.V. Venkatasubramanian .. Respondent No.1 in WA.No.1202/1997 2. Tmt.B. Saraswathy, W/o.T.K. Ganesan .. Respondent No.1 in WA.No.1208/1997 2. The Secretary, Legislative Assembly Secretariat, Fort St. George, Madras 9. .. Respondent No.2 in both WAs https://hcservices.ecourts.gov.in/hcservices/ W.A.NOs.1165 of 1998, 1166/98: The Secretary, Legislative Assembly Secretariat, Fort St. George, Chennai 9. .. Appellant in WA. Nos.1165 & 1166/1998 Vs. 1. N. Meenakshi, .. Respondent No.1 in WA.No.1165/1998 2. B. Saraswathi .. Respondent No.1 in WA.No.1166/1998 3. U.K. Subramaniam ..Respondent No.2 in WA.1165/1998. 4. T. Govindaraju 5. A.M.P. Jamaludeen 6. S. Balakrishnan 7. R.Amirthavalli 8. K. Indira 9. G. Devarajan 10. R. Kasthuri 11. S.H. Saleem Unnisa ..Respondents 3 to 10 in WA.1165 and 2 to 10 in WA.1166/98. Writ Appeals filed under Clause 15 of the Letters Patent against the common order dated 19.9.1997 passed in W.P.Nos.17084 and 17085 of 1993 filed under Article 226 of the Constitution of India, praying this Honourable Court to issue a Writ of Certiorarified mandamus calling for the records of the first respondent relating to G.O.Ms.NO.190, Legislative Assembly Secretariat dated 16.9.1992 and the connected letter of the first respondent to the petitioner in No.1002/93-5 TNLA[OP-1] dated 20.7.1993 respectively and quash the same so far as the petitioner is concerned and direct the first respondent to treat the petitioner respectively as senior to respondents 2 to 10 and 2 to 9 respectively in the category of Senior officer with consequential right to promotion to the higher post. For Appellants in : Mr.R. Viduthalai WA.1165 & 1166/98 Advocate General Assisted by Mr.Edwin Prabhakar For Appellants in : Mrs. Rita Chandrasekaran WA.1202 & 1208/97 Mr.V. Kalyanaraman for M/s. Aiyar & Dolia For Respondent-1 in : Mr.S. Vadivel & https://hcservices.ecourts.gov.in/hcservices/ all WAs. Mr.P. Chandrasekar - - - COMMON JUDGMENT P.K. MISRA, J The Tamil Nadu Legislative Assembly Secretariat Service Rules have been framed in exercise of power conferred under Clause (3) of Article 187 of the Constitution of India and such Rules came into force on 24.3.1955. As per Rule 2(1), a person is said to be “appointed to the service” when, in accordance with the rules applicable, he discharges for the first time the duties of a post borne on the cadre of the service or commences the probation or training prescribed for the members thereof. As per Rule 3, the permanent cadre of the service and of each class and category thereof shall be determined by the State Government. As per Rule 4, the service shall consist of the classes and categories of officers specified. Clause II consists of Non-Gazetted Superior posts. Category 1 of such Class II is Section Officers and Category 1A is Section Officer, Delegated Legislation. Category 5 consists of Assistant Section Officers and Category 6 consists of Assistants. As per Rule 6, appointment to the service in different classes and categories shall be made in accordance with the methods and in the order of preference made against each category in Appendix II. For Class II, category 1 Section Officers, the method of appointment is promotion from category 5 of Class II i.e., promotion from Assistant Section Officers or transfer from Category I-A of Class II, i.e., Section Officers Delegated Legislation. Similarly for Class II category 1A, i.e., Section Officer Delegated Legislation, recruitment is by promotion from the category 5 of Class II or by transfer from Category 1 of Class II i.e., from Section Officer. For Appointment to Assistant Section Officer, which is Category 5 in Class II, the method of appointment is promotion from category 6, 7 or 8 of Class II or by transfer from any other service or by direct recruitment. 1.1 It appears that a decision was taken by virtue of G.O.Ms.No.1059 dated 2.7.1960 for bifurcation of Legislative Department into Legislative Assembly and Legislative Council Department. Such position continued till the abolition of the Legislative Council with effect from 31.10.1986. During the continuance of two separate establishments, Smt.N. Meenakshi, the petitioner in W.P.No.17084 of 1993 and Smt.B. Saraswathi, the petitioner in W.P.No.17085 of 1993, were recruited and appointed to the Secretariat of the Legislative Council. Smt. Meenakshi was promoted as Assistant on 22.4.1977 and Smt. Saraswathi was promoted as Assistant on 15.12.1978. Subsequently, such posts were redesignated as Assistant Section Officers. They were continuing as such in such capacity until the abolition of the Legislative Council with effect from 31.10.1986. Similarly the appellants in W.A.Nos.1202 and 1208 of 1997 had been appointed in similar capacities in the Secretariat of the Legislative Assembly. Since the Legislative Council was to be abolished, a High Level Committee had been constituted to suggest ways and means regarding the https://hcservices.ecourts.gov.in/hcservices/ employees of the Secretariat of the Legislative Council. By S.O.Ms.No.244 dated 31.10.1986, sanction was accorded for the employment of additional officers and staff to attend to the increase in work and also due to the abolition of the Legislative Council. The relevant portion of the order is to the following effect :- “After careful consideration, sanction is accorded for the employment for a period of one year from the date of appointment or till the necessity ceases, whichever is earlier of the following additional Officers and Staff in the Legislative Assembly Secretariat to attend to increase in work load in the Secretariat consequent on the constituent of certain new committees in the Legislative Assembly and also to attend to additional work that may devolve on this Secretariat due to the abolition of the Legislative Council: . . . 6. Section Officers .. 3 (Three) (Rs.1160-50=-1460-70-1950/-) 7. Assistant Section Officer .. 6 (Six) (Rs.780-35-1025-40-1385) “ 1.2 On the same day, S.O.Ms.No.245 was issued keeping in view the S.O.Ms.No.244. The said order is being relevant, extracted in extenso :- “ORDER:- In the S.O. Read above orders have been issued for the creation of certain posts of additional officers and other staff to attend to increase in work load in the Secretariat. It has been decided to fill the above posts from among the officers and staff of the Legislative Council Secretariat consequent on the abolition of the Legislative Council. 2. In exercise of the powers conferred under Rule 47 of the Tamil Nadu Legislative Assembly Secretariat Service Rules, the Governor of Tamil Nadu in consultation with the Hon. Speaker, relaxes Rule 6 with the Appendix II of the Tamil Nadu Legislative Assembly Secretariat Service Rules favour of those listed in the Annexure to this order and accordingly the officers and staff specified in Column I of the Annexure to this order are appointed in the posts of Column II of the said Annexure with effect from 1.11.1986 forenoon. 3. The persons so appointed from the Legislative Council Secretariat consequent on the abolition of the Legislative Council will constitute a separate unit in the Legislative Assembly Secretariat for purpose of seniority, promotion etc. Necessary Amendments to the Tamil Nadu Legislative Assembly Secretariat Service Rules in this regard and also ad-hoc rules for the posts for which such rules are necessary will be issued separately." 1.3 Annexure to the said order contains the names of the Officers and staff in the Legislative Assembly Secretariat appointed in the Legislative Assembly Secretariat with effect from 1.11.1986. Three Assistant Section https://hcservices.ecourts.gov.in/hcservices/ Officers in the Legislative Council Secretariat, namely, Smt.S. Vijayalakshmi, Smt.N.Meenakshi andSmt.B. Saraswathi, were posted as Assistant Section Officers in the Legislative Assembly Secretariat. 1.4 Thereafter, on 17.5.1988, Smt. Meenakshi was promoted and appointed as Section Officer temporarily, but subsequently, she was reverted as Assistant Section Officer for want of vacancy. Ultimately, Smt. Meenakshi was re-appointed as Section Officer on 31.5.1989 and by order dated 8.8.1989, her services as Section Officer were regularised with effect from 17.5.1988. Similarly, Smt.Saraswathi was promoted as Section Officer temporarily on 27.6.1989, but was reverted and then appointed as Section Officer on 12.7.1990.It is not disputed that appellants in W.A.Nos.1202 and 1208 of 1997, who were initially appointed in the Legislative Assembly Secretariat and had continued as such, were promoted as Section Officers in 1991 and thereafter. 1.5 While the matter stood thus, S.O.Ms.No.190 was issued on 16.9.1992. Such order purported to fix inter-se seniority of Tamil Nadu Legislative Assembly Secretariat. After referring to S.O.Ms.No.244 dated 31.10.1986, S.O.Ms.No.245 dated 31.10.1986 and other similar orders, the order was issued regarding fixation of seniority in several categories including that of the Section Officer. The relevant paragraphs are extracted hereunder :- “2. The appointment of the Personnel of the Legislative Council Secretariat, rendered surplus to requirements in the Legislative Assembly Secretariat, will not fall under any of the recognised methods of recruitment. The decision to keep them as a separate unit for purposes of promotion, seniority, etc., is also not supported by any rule. Much administrative inconvenience could have been avoided if timely decision had been taken regarding the transfer of the staff of the erstwhile Legislative Council Secretariat instead of resorting to temporary arrangements. It is possible that such a decision would have been taken in the expectation that the Legislative Council would be revived. 3. The Government have since taken a policy decision not to revive the Legislative Council. It has, therefore, become an urgent necessity to decide the question of transfer of the personnel of the erstwhile Legislative Council Secretariat rendered surplus to requirements and to fix their inter-se seniority vis-a-vis the personnel of the Legislative Assembly Secretariat keeping in view the provisions contained in rule 20 of the Tamil Nadu Legislative Assembly Secretariat Service Rules. 4. The normal consequence of the abolition of the Legislative Council would have been the retrenchment of the Officers and staff of the Legislative Council Secretariat rendered surplus to requirements, but a humanitarian view was taken and it was decided to give them suitable positions in the Legislative Assembly Secretariat and certain departments of https://hcservices.ecourts.gov.in/hcservices/ Secretariat. Even if such persons had been appointed on transfer immediately after the abolition of the Legislative Council, they would have been placed below the junior most person in the respective categories as on 1.11.1986 but in view of the peculiar status accorded to them by treating and keeping them as a separate unit for purposes of seniority,and promotion, etc., most of the Officers / Staff transferred from the erstwhile Legislative Council Secretariat got accelerated promotions. 5. Taking into consideration the developments that had taken place during the past five years and more and applying the principles of Natural Justice, the following norms have been evolved regarding the transfer of the staff of the erstwhile Legislative Council Secretariat and the fixation of their inter se seniority: The Officers / Staff transferred from the erstwhile Legislative Council Secretariat and who have so far been kept as a separate unit shall be taken in the Legislative Assembly Secretariat with effect from the date of issue of this order and placed as the junior most in the respective categories irrespective of the dates of their appointment to the said categories in the Legislative Council Secretariat but subject to the exceptions listed below: (for the sake of easy reference, the Officers and staff of the Legislative Assembly Secretariat are referred to as 'A' Wing staff and those belonging to the erstwhile Legislative Council Secretariat and transferred to the Legislative Assembly Secretariat as 'B' Wing Staff) (i) Persons who got promotions in any category in the 'B' wing after 1.11.1986 shall continue in the promoted category without any reversion. The promotions shall be treated as personal to them but such persons shall be placed below the junior most person in the respective categories in the 'A' wing. (ii) Persons who were promoted to any higher category but subsequently reverted for want of vacancy shall be placed as the senior most in the lower category. This principle shall be applicable to all the officers/staff irrespective of the fact whether they belong to the 'A' Wing or 'B' wing. The inter se seniority of such persons shall be fixed with reference to the date of their promotions to the higher category. (iii) The seniority of persons belonging to any category in 'A' and 'B' wings who did not get any promotion after 1.11.1986 shall be fixed with reference to the total service rendered by them in the said category. (iv) Where a list of persons considered fit for promotions to a higher category had been drawn in respect of any category, it shall be operated, provided a period of one year had not elapsed since the approval of the said list. In case a period of one year had elapsed, a fresh list shall be drawn up. (v) In respect of Reporters their inter se seniority should be fixed with reference to the date of their appointment in the https://hcservices.ecourts.gov.in/hcservices/ category in Legislative Assembly Secretariat / erstwhile Legislative Council Secretariat." 1.6 So far as the two writ petitioners are concerned, it was indicated as hereunder :- "(f) SECTION OFFICERS . . . Tmt.N. Meenakshi and Tmt.B. Saraswathi were holding the post of Assistant Section Officers in the 'B' Wing at the time of their transfer in the Legislative Assembly Secretariat. They were promoted subsequently as Section Officers. They shall, therefore, be ranked as the junior to Tmt.S.H. Saleem Unissa in the category of Section Officer. The seniority of Tmt.N. Meenakshi and Tmt.B. Saraswathi in the category of Section Officer shall be as follows:- 1. Tmt.N. Meenakshi 2. Tmt.B. Saraswathi" 1.7 Thereafter, representations were made by two writ petitioners. The request in such representation claiming seniority over the other Section Officers was turned down by letter dated 20.7.1993. Thereafter, two writ petitions were filed for quashing S.O.Ms.No.190 dated 16.9.1992 and the subsequent letter dated 20.7.1993, where under the representations were rejected. 2.The main contentions raised in the writ petitions are to the effect that the two petitioners had been appointed on regular basis by exercising the power to relax as contemplated under Rule 47 of the Tamil Nadu Legislative Assembly Secretariat Service Rules and thereafter they were promoted as Section Officers and the respondents in the writ petitions were admittedly promoted as Section Officers on subsequent dates and, therefore, the two writ petitioners should be treated as seniors, particularly in view of the provisions contained in Rule 20 of the Tamil Nadu Legislative Assembly Secretariat Service Rules. 3. Counter affidavits were filed on behalf of Legislative Assembly Secretariat as well as the private respondents in those writ petitions. 3.1 In the counter affidavit filed by Legislative Assembly Secretariat, it was indicated that prior to abolition of the Legislative Council, the officers and staff of the Legislative Council Secretariat were governed by a separate set of Rules called as Tamil Nadu Legislative Council Secretariat Service Rules" and even though the work in both the Secretariats i.e.,Secretariat of the Legislative Assembly and the Secretariat of Legislative Council were similar, the employees were borne in separate cadres. It was indicated that since the Legislative Council was to be abolished, in normal course, the employees of the Secretariat of Legislative Council would have faced retrenchment, but a decision was https://hcservices.ecourts.gov.in/hcservices/ taken to absorb them in different organizations and many of the employees were thus absorbed in the Assembly Secretariat. At that stage, it was decided in the High Level Committee to keep persons absorbed in the Legislative Assembly Secretariat as a separate unit and it was further decided that the posts were to be created for accommodating the officers of 'B' wing (Those who were to be absorbed in the Legislative Assembly Secretariat). It was further indicated :- "10. As the decision taken at the meeting of the High Level Committee to the effect that the posts held by Officers of 'B' wing should be allowed to lapse when they retired was not implemented, the entire 'B' Wing Officials got accelerated promotions. In fact, one Deputy Secretary who should have retired in the same category, actually got promoted as Joint Secretary and later as even Secretary to the Assembly Secretariat, before his retirement. It may be noted that not only was the post of Secretary ('A' Wing post) filled up by appointing a Joint Secretary from the 'B' Wing, but even the resultant vacancies were also filled up from the 'B' Wing Officers only." 3.2 It was further stated that because of this, many persons belonging to 'B' wing get accelerated promotion. Therefore, with a view to find out equitable solution, after much deliberation, the policy decision as reflected in S.O.Ms.No.190 was taken. It was further stated that appointment of the writ petitioners was not in accordance with the Tamil Nadu Legislative Assembly Secretariat Service Rules and, therefore, Rule 20 of such Rules was not applicable initially and only it became applicable after the amalgamation of 'A' and 'B' wings with effect from 16.9.1992 by virtue of the order issued in S.O.Ms.No.190. In the counter affidavit it was also indicated in great detail as to how the persons who had come from Legislative Council Secretariat got frequent promotions as compared to those originally appointed in Legislative Assembly Secretariat. It was further indicated that with a view to create more opportunity of promotion and for mitigating the grievance of the staff, the Government created new posts. 3.3 In the counter affidavit filed by the other respondents in those writ petitions, a similar stand had been taken. 4. Learned single Judge has allowed the writ petitions by observing that as per Rule 20, seniority is to be determined on the basis of the date of commencement of service. Against such order, Writ Appeal Nos.1202 and 1208 of 1997 have been filed by the private respondents in W.P.Nos.17084 and 17085 of 1993, whereas the connected two writ appeals W.A.Nos.1165 and 1160 of 1998 have been filed by the Legislative Assembly Secretariat. 5. Learned counsels appearing for the appellants have raised the following contentions :- https://hcservices.ecourts.gov.in/hcservices/ Two writ petitioners were serving in the Legislative Council Secretariat and in normal course on the abolition of the Legislative Council such persons would have faced retrenchment, but on compassionate ground they were absorbed by relaxation of rules and because they were considered as part of a separate unit, they got accelerated promotion. Two units were integrated for the first time on issuance of S.O.Ms.No.190 and, therefore, inter se seniority between employees of the two wings, which became integrated for the first time after issuance of S.O.Ms.No.190, is to be decided on the basis of the order contained in S.O.Ms.No.190 and such petitioners cannot be treated as seniors and Rule 20 is not applicable to such peculiar case. 6. Learned counsel appearing for the respondents Meenakshi and Saraswathi (two writ petitioners), on the other hand, submitted that after being absorbed in the Legislative Assembly Secretariat as Assistant Section Officers, their past seniority and increments were respected and the two writ petitioners were given increments on due dates by taking into consideration their previous service and thereafter both of them were promoted as Section Officers before the appellants in W.A.Nos.1202 and 1208 of 1997 were promoted as Section Officers and, therefore, they must be treated as senior as Section Officers. It has been further submitted by him that even though in S.O.Ms.No.245 dated 31.10.1986 it was contemplated that there would be separate unit and Rules would be amended, Tamil Nadu Legislative Assembly Secretariat Service Rules having not been amended, Rule 20 is applicable and, therefore the two writ petitioners must be treated as senior by virtue of Rule 20. 7. Rule 20 of the Tamil Nadu Legislative Assembly Secretariat Service Rules, being relevant, is extracted hereunder :- "20. Seniority:- (a) The seniority of a member of the service or class or category shall, unless he has been reduced to a lower rank as a punishment be determined by the date of his first appointment to the service, class or category. If any portion of the service of such person does not count towards probation under the rule 17, his seniority shall be determined by the date of commencement of the service which counts towards probation. (b) Subject to these rules, the appointing authority may, at the time of passing an order appointing two or more persons simultaneously to any category of the service, fix the order of seniority among them. (c) Where a member of any category has been reduced to a lower category, he shall, in the absence of a special order to the contrary, take the first rank among the members in the latter." 8. Learned counsel appearing for the appellants have placed reliance upon several decisions in support of their contentions. https://hcservices.ecourts.gov.in/hcservices/ 8.1 In (1991) 1 SCC 189 (GURMAIL SINGH AND OTHERS v. STATE OF PUNJAB AND OTHERS), the appellants before the Supreme Court were in service as Tubewell Operators in the Irrigation Branch of the Public Works Department of the Punjab State. The government took a decision to transfer all the tubewells in Public Works Department to Punjab State Tubewell Corporation, a company wholly owned and managed by the State of Punjab and accordingly the appellants were served with a notice in terms of Section 25-F of the Industrial Disputes Act terminating their services on the ground of abolition of posts. The contention of the appellants was to the effect that the State was bound to protect continuity of service of such persons and the Punjab State Tubewell Corporation was under the obligation to employ such appellants with continuity of service under the same terms and conditions. During pendency of the proceedings in the High Court, the appellants had been employed as fresh entrants under the Corporation. The main contention of the appellants was therefore regarding continuity of service and seniority, etc. The Supreme Court observed :- "17... Acting as a model employer, which the State ought to be, and having regard to the long length of service of most of the appellants, the State, in our opinion, should have agreed to bear the burden of giving the appellants credit for their past service with the Government. That would not have affected the Corporation or its employees in any way - except to a limited extent indicated below - and, at the same time, it would have done justice to the appellants. We think, therefore, that this is something which the State ought to be directed to do. 18. We would, however, like to clarify that the sole purpose and object of our above direction is that the appellants should be entitled to count their past service with the Government for the purpose of computation of their salary, length of service and retirement benefits with the Corporation. This, however, should not result in the appellants' claiming any seniority over the staff which the Corporation has otherwise engaged right from its commencement in 1970. To permit such a claim would result in injustice to those employees whose seniority is based on their terms and conditions of service with the Corporation which had been entered into a long time before the present transfer proposal came to be implemented. Though, as we have mentioned earlier, seniority in service is not of much importance in this case as there is no avenue of promotion to tubewell operators, the question of seniority still becomes crucial in case the Corporation should close down any of the tubewells or decide on the retrenchment of its staff by reorganising the operation of tubewells in such a way that some of the staff may become surplus. In such an event, if the appellants are given the benefit of their length of service with the Government for all purposes, some of the present employees of the Corporation may become liable to be retrenched as junior in length