IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26-04-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 46697 of 2006 1. B. Radhakrishnan 2. R. Mugunthan 3. K. Chandrasekaran 4. P.M. Arachelvi 5. V. Ayyappan 6. M. Prabhakaran 7. V.K. Baskar 8. N. Padmanabhan 9. M. Ramesh 10. K. Subramanian 11. V. Srinivasan 12. L. Janardhanan 13. V. Anandha Ramakrishnan 14. V. Revathi 15. L. Venkatachalam 16. V. Shanmugavelu 17. A. Prema 18. T.V. Murali 19. Devendran 20. R. Raghu 21. R. Ramachandran 22. G. Alaguvelu 23. M.Baggyalakshmi 24. K.K. Gokulnath Babu 25. V. Sukumar 26. S. Venkatesan 27. K. Suresh Kumar 28. A. Ramakrishnan 29. R. Senthilkumar 30. S. Selvam 31. S. Shankari 32. M. Parimala 33. S.Umamaheswari 34. N.R. Shanthi 35. M. Sathiavani 36. K. Jayanthi 37. S. Rita Lidya 38. V. Vatsala Devi 39. J. Janaki 40. D. David Gnanaraj 41. D.Jacob 42. N. Nagarajan 43. K.P. Sujatha 44. G. Maragatham 45. K. Saraswathi 46. A.C. Aruna https://hcservices.ecourts.gov.in/hcservices/ 47. N. Swaminathan 48. S.T. Kamal Kumar 49. M. Punithavel 50. P. Narayan All the applicants are working as Typists in various Departments of Secretariat, Chennai – 9 . Petitioners Versus 1. The Secretary to Government Personnel & Administrative Reforms Dept Fort St. George Chennai – 600 009 2. The Tamil Nadu Public Service Commission rep. by its Secretary Government Estate Chennai – 600 002 .. Respondents O.A. No. 5527 of 2000 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, which was filed praying to call for the entire records relating to the impugned proceedings of the first respondent in his impugned G.O. Ms. No.67, Personnel & Administrative Reforms Department dated 27.03.1998 and quash the said impugned G.O. Ms. No.67, issued by the first respondent dated 27.03.1998 in so far as it affects the applicants and direct the respondents to promote the applicants as Assistants and further promotions with all consequential benefits. For Petitioners : Mr. M. Venkatapathy, Senior Counsel for Mr. M. Sriram For Respondents : Mrs. Lita Srinivasan Government Advocate ORDER The petitioners were recruitted through Tamil Nadu Public Service Commission as Typist and they were posted in various departments originally under the Tamil Nadu Ministerial service. After serving as Typist (for a period ranging between three years to nine years) they opted to come to Tamil Nadu Secretariat service through recruitment by transfer in 1993 as this post was the entry level post and allotted to the Secretariat. It is pertinent to point out that the petitioners entry into the Tamil Nadu Secretariat service was considered only on their forefeiting their previous service for seniority in the post of Typist in the Tamil Nadu Ministerial Service. According to the petitioners, they opted to enter into Tamil Nadu Secretariat Service with the found hope of serving the secretariat, which provides them more avenues for promotion and other benefits. It is also tobe pointed out that this class of persons by transfer of service are very meager numbering about 49 candidates only. It was also made clear that once the petitioners joined services of Secretariat by transfer of service, https://hcservices.ecourts.gov.in/hcservices/ their further pay and promotion will have to be worked out as per the Rules and Government order concerning the same. In fact, the petitioenrs have joined duty in the original parent body right from the years 1982, 1984, 1987 and 1990 respectively. At the time of their entry into Tamil Nadu Secretariat Service, there was no scope in the Tamil Nadu Secretariat Service Rules for filling up the post of Assistant by direct recruitment. It is only the Typist, Personal Clerks and others who had the qualification namely graduation with technical qualification will be selected as Assistant by themethod of promotion from the feeder category by recruitment by transfer. In fact, Tamil Nadu Secretariat Service is governed by Tamil Nadu Secretariat Service Rules framed under Article 309 of the Constitution of India with effect from 12.04.1988. Furthermore, on 09.02.1990 by G.O.Ms. No.71, P & AR Department, on the recommendations of the administrative reforms committee, the Government amended Tamil Nadu Secretariat Rules and abolished the system of direct recruitment to the post of Assistant. The Special Rules were amended by invoking Article 309 of the Constitution of India with effect from 09.02.1990. Therefore, there was no scope for any fresh appointment in future for the post of Typist, which has been given effect to in the Government letter dated 03.04.1995 also. Hence, the petitioners were the last and only batch expecting their promotion as Assistant. The petitioners chance for promotion, which is recognised as the fundamental Rules by the Court is being now denied by a subsequent retrospective amendment. As the petitioners joined service as typist by recruitment by transfer, they were the feeder category to the post of Assistant. Subsequently, after the petitioners joined the service, the Government issued GO Ms.No. 315, P& AR dated 19.08.1993 under which the Government issued administrative orders and introduced direct recruitment to the post of Assistant and fixed 50% quota for direct recruitment. Thereafter, G.O. Ms. No.58, P & AR Department dated 20.02.1995 was passed by which the prescription as typewritting qualification was modified for the post of Assistant. By administrative order dated 29.11.1995, made in G.O. Ms. No.362, the Government prescribed method of appointment and fixed 50% quota for direct recruitment and other 50% allotted to four categories. Here again, it was specifically stated that amendment to the special Rules should be made in view of the fact that they were given promotion and making qualification for direct recruitment. This was challenged by the petitioners and others in two Original Applications namely O.A. No. 9448 of and 9886 of 1997 before the Tamil Nadu Administrative Tribunal on the ground that Special Rules are not amended under Article 309 of the Constitution of India hence, it cannot be invoked. By order dated 03.04.1998, the Tribunal accepted the contention of the petitioners and held that the order cannot be given effect to without amendment, but the Tribunal, without quashing the said Government Order, in the last paragraph, gave time for the Government to make amendment as per Article 309 of the Constitution of India within six weeks, failing compliance, the Government Order shall stand quashed. At the same time, direction was also given by the Tribunal to consider the case of the petitioners to the post of Assistants as per Rules. Even before the order was passed on 03.04.1998 by the Tribunal, GO Ms. No.67, P&AR Department dated 27.03.1998 was passed wherein amendment of the Rules were brought in with retrospective effect namely 19.08.1993, the date on which the GO Ms. No.315, P&AR Department https://hcservices.ecourts.gov.in/hcservices/ 19.08.1993 was passed introducing direct recruitment to the post of Assistant fixing quota. The said amendment with retrospective effect is being questioned by the petitioners by filing the Original Application before the Tribunal. Furthermore, in the amendment brought out the respondents did not consider the name of the petitioners suitably for promotion as Assistant, as directed by the Tribunal. Furthermore, the amendment is also illegal as it was not made out any saving provision in so far as existing typists are concerned. Admittedly, the petitioners are eligible to be promoted as per the Rules in the year 1994 itself. Therefore, the petitioners would contend that the impugned amendment to the special Rules of Tamil Nadu Secretariat Service, providing for direct recruitment to the post of Assistant is unconstitutional, ultra vires, arbitrary and opposed to public policy and therefore it is liable tobe quashed. The petitioners also contend that thepersons directly appointed as Assistant not only seek for regularisation of essential conditions prescribing qualification by trying to get further promotion on the basis of the proposed regularisation. Therefore, the procedure adopted by the respondents is arbitrary, illegal and discriminatory. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 46697 of 2006. 2. The respondents filed a detailed reply affidavit contending that in the earlier Original Application filed before the Tribunal, being OA No. 9866 of 1997, the petitioners therein prayed to quash the orders passed in G.O. Ms. No.315 dated 19.08.1993 and G.O. Ms. No.362 dated 29.11.1995 and direct the respondents to consider the case of the petitioners for promotion to the post of Assistant under Rule 5 (3) (a) of the Special Rules for Tamil Nadu Secretariat Service, before effecting direct recruitment to the said post. The Tribunal, by judgment dated 03.04.1998 dismissed the said Original Application on the ground of latches and also on the ground that already the petitioners were beneficiaries of executive orders for promotion and they cannot have any grievance in respect of direct recruitment. As per the operative portion of the order, the Government was given six weeks time to amend the Rules. Similarly, another group of seven individuals filed O.A. No. 9448 of 1997 challenging G.O. Ms. No.362 dated 29.11.1995. Aggrieved against the dismissal of the two Original Applications, the petitioners and others filed WP No. 5205 of 1998 before this Court to call for the records in connection with the Order dated 03.04.1998 of the Tribunal and also GO Ms. No.315, P&AR Department dated 19.08.1993 and GO Ms. No.362, P&AR Department dated 29.11.1995 and quash the said orders. On 07.04.1998, this Court granted interim order restraining the respondents from appointing any fresh candidate until further orders. A vacate stay petition was also filed by the respondents in WMP No. 8029 of 1998 to vacate the order of interim stay. On 21.05.1998, the order was modified by this Court to the effect that this Court can appoint persons in the vacancy subject to the result of the writ petition. Only thereafter, orders were issued by the government to candidates selected by the Tamil nadu Public Service Commission. Subsequently, the present O.A. No. 5527 of 2000 was filed challenging G.O. Ms. No.67, P&AR Department dated 27.03.1998 and to direct the respondents to promote the petitioners as Assistants. The respondents further contend that in so far as the present case is concerned, since the petitioners approached the Tribunal and the Tribunal also https://hcservices.ecourts.gov.in/hcservices/ granted six weeks time to bring in necessary amendment and the amendments were also carried out as per G.O. Ms.No. 67, P&AR Department dated 27.03.1998, the prayer of the petitioners is not sustainable. As the amendments were carried out within the time granteed by the Tribunal and this is a policy decision of the Government to re-introduce direct recruitment to the post of Assistant in the interest of justice, the same cannot be interfered with by this Court. It was also contended that the Government also provided ample chances for promotion of the petitioners in addition to direct recruitment and the petitioners have ample scope for writing competitive examinations and to get selected for appointment by direct recruitment in addition to their chances for promotion under the quota allotted for them. It was also contended that any amendment can be made with retrospective effect and merely because it was given with retrospective effect, that by itself cannot be challenged. Further, by re-introducing direct recruitment, avenues available for promotion for the petitioners are not closed. Even as per the amended Rules, the petitioners can get promotion as Assistants and further they have got avenues open to next higher post also as per the prescribed ratio, hence, the writ petition as such is not legally sustainable or maintainable. 3. The learned Government Advocate brought to the notice of this Court that the writ petition filed by the petitioners challenging the order dated 03.09.1998 passed by the Tribunal on 03.04.1998 in O.A. No. 9448 and 9886 of 1997 was ultimately disposed of this Court by judgment dated 27.03.2002 with a direction to await final result in this original Application challenging the amended Special Rules. The Division Bench has stated that the statuso-quo as on date shall be maintained. Therefore, the present order will bind the entire promotion process. The learned Government Advocate brought to the notice of this Court that even the writ petition filed by the petitioners earlier challenging the order of the Tribunal in WP No. 6928 and 6988 of 1998 was dismissed by a Division bench of this Court on 27.03.2002 stating that the petitioners have to await the final result in the Original Application filed by them challenging the amended Rules. 4. Heard both sides. It is seen from the records that originally, by GO Ms. No.71 dated 09.02.1990, on the recommendation of the administrative reforms committee and III Pay commission, direct recruitment to the p;ost of Assistant were abolished and as per Rule 5 of Special Rules for Tamil Nadu Secretariat Service, appointment to the category of Assistants in the departments of Secretariat, other than Law Department are governed by Secretariat would be made by (i) direct recruitment (ii) transfer from category of personal clerk or typist (iii) for special reasons recorded by transfer from any other service. Subsequent to the recommendations, the appointment to the category of Assistant in the Departments of Secretariat other than law department in the Tamil Nadu Secretariat Service, shall be made only by recruitment (a) recruitment by transfer from among the holders of the posts of Junior Assistants and Assistants in the Tamil Nadu Ministerial Service and Tamil Nadu Judicial Ministerial Service through competitive examinations conducted by the Tamil Nadu Public Service Commission. This method shall be followed from the next recruitment onwards; or (b) by https://hcservices.ecourts.gov.in/hcservices/ deputation or appointment from among Personal Assistants, Typists including personal clerks and Tamil Typists and who are full members or approved probationers (c) for special reason, by recruitment by transfer from Record Clerks and graduate office assistants in Secretariat and (d) selecting candidates for appointment as Assistant (formerly Junior Assistant) in Law Department by direct recruitment through Tamil Nadu Public Service Commission by way of conducting group V competitive examinations. Subsequent to G.O. Ms. No. 391 dated 14.12.1992, G.O. Ms.No.71, P&AR Department dated 09.02.1990 was amended abolishing the recruitment of Assistants directly with effect from 09.02.1990 i.e., from the date of G.O. Ms. No. 71, P&AR Department dated 09.02.1990. Subsequently, on 16.07.1993, by a government letter No. 23745/Pers/98-1, P&AR Department, instructions were issued that in case of posts governing by Rules without any amendment, the existing Rules are to be issued, promotion or appointment should be made on adhoc basis with reference to proposed amendment to Rules, but shall be made only with reference to existing Rules because amendment has to be carried out as per Article 309 of the Constitution in the Rules. In the meanwhile, the petitioners were all recruitted as Typists by recruitment by transfer in May 1993 and they belonged to feeder category to the post of Assistants. Even though they were originally appointed under the Judicial Ministerial service in the years 1982, 1984, 1987 and 1990, after taking over the post in the Secretariat service, they will be governed by the Tamil Nadu Secretariat Service. So at the time of their joining the post, direct recruitment of Assistants was in force. Then, subsequently, GO Ms. No.315 dated 19.08.1993 was issued on the representation of the Tamil Nadu Secretariat Association whereby the Government decided to restore the method of direct recruitment along with recruitment by transfer and other modes of recruitment to the category of Assistant in Secretariat. It was further held that direct recruitment will be for 50% of vacancies in the first instance and in partial modification to the orders issued in earlier Government orders, it was modified as 50% of the vacancies shall be filled up by direct recruitment and the remaining shall be filled by recruitment by transfer from the holders of the post of Junior Assistant and Assistant in Tamil Nadu Ministerial Service and Tamil Nadu Judicial Ministerial Service as ordered in G.O. Ms. No.71 dated 09.02.1990. In this Government Order, it was further stated as far as direct recruitments as well as for transfer from Tamil nadu Ministerial service/Tamil nadu Judicial Ministerial service, qualification in typewriting senior grade in Tamil and English should be prescribed as additional qualification. It was also directed that Tamil Nadu Public Service Commission has to call for examination and then call for the selection and recruit 50%. Thereafter, on 28.02.1995, G.O. Ms.No.58 dated 28.02.1995 was issued modifying the qualification made in G.O. Ms. No.315 dated 19.08.1993 under which the Rule was modified to the extent that typewritting qualification shall not be insisted upon at the entry stage and persons with knowledge of typewriting need not be given preference at the time of selection, however,they can get the knowledge of typewriting within two years from the date of their initial appointment and probation shall be declared only after getting the qualification. On 03.04.1995, an amendment was sought for in G.O. Ms. No.58 stating that in future, there shall be no recruitment to the post of typist in the Tamil Nadu Secretariat Service through TamilNadu Public Service Commission. Finally, G.O. https://hcservices.ecourts.gov.in/hcservices/ Ms. No.362 dated 29.11.1995 was passed under which the question of appropriating the 50% vacancies earmarked for the method of appointment other than 'direct recruitment' was fixed. In and by the said Government Order, 50% earmarked for other than direct recruitment has been apportioned as follows:- i) Junior Assistants and Assistants in Tamil Nadu Ministerial Service/Tamil Nadu Judicial Ministerial Service 30% ii) Graduate Record Clerks, Graduate Typists, Graduate Telephone Operators and Graduate Drivers working in Secretaiat 10% iii Non-graduate Record Clerks, Non-graduate typists working in Secretariat 5% iv) Graduate Office Assistants Graduate Van Cleaners working in Secretariat 5% 5. Ultimately, G.O. Ms. No.67 dated 27.03.1998 was passed introducing direct recruitment as well as recruitment by transfer by amending the Special Rules. This amendment has stated to have come into force with effect from 19.08.1993. At this juncture it is to be pointed out that earlier, thepetitioners and others have filed O.A. No. 9866 and 9448 of 1997 before the Tribunal to quash GO Ms. No.315, P&AR Department dated 19.08.1993 and GO Ms. No.362, P&AR Department dated 29.11.1995 and direct the respondents to consider their case for promotion to the post of Assistants under Rule 5 (3) (a) of Tamil Nadu Secretariat Service Rules before effecting direct recruitment to the said post. In that Original Application, it was specifically pleaded that there was no direct recruitment to the post of Typist after 03.04.1995, however, by the Government letter dated 19.08.1993 and 29.11.1995, the government proposed to resort to direct recruitment for appointment to the post of Assistant in Tamil Nadu Secretariat Service and by this Government Order, the promotion chance of the petitioners were affected. Under this order, 50% of vacancies in the post of Assistant in Tamil nadu Secretariat service was decided tobe filled up by way of direct recruitment and as there was no amendment ordered, the same cannot be implemented at all. It was further contended that only b amendment of Service Rules, the Government can resort to direct recruitment, is permissible. It is also contended that by a notification in Dinamalar Tamil Daily dated 29.03.1997, the Tamil Nadu Public Service Commission invited applications from the open market for direct recruitment to the post of Assistant at the Government Secretariat Service. Earlier, in the year 1993-1996, for 183 posts, 210 candidates were stated to have been selected and totally 309 posts reserved for direct recruitment. Between the years 1993 to 1996, only 129 candidates were promoted to the post of Assistant in Tamil Nadu Ministerial service from the post of Typist and 66 candidates brought from other posts. Therefore, the orders are affecting the petitioners adversely and this is in violation of Articles 14 and 15 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 6. The Tribunal, after considering the case in detail, held that an amendment to the Rules cannot be made by way of executive instructions as per the decision of the Supreme Court, but the Tribunal held that in view of the fact that the petitioners approached the Tribunal only on 14.11.1997 and by the time the Tamil Nadu Public Service Commission completed the examination and sent the list to the Government and it was also pointed out that the Government intended to amend the Rules retrospectively and further the matter was pending before the Tribunal they are refraining from carrying out the amendment. It was also held that they cannot appoint a candidate selected by the Tamil Nadu Public Service Commission unless the Rules are amended and the vacancy position stood above the estimated number. It was held in Para Nos. 6 and 7 as follows:- "6. Estimates for recruitment by transfer for 59 vacancies from Tamil Nadu Ministerial Service and Tamil Nadu Judicial Ministerial Service was also sent to the Tamil Nadu Public Service Commission has allotted 210 candidates selected for appointment as Assistants by direct recruitment for the year 1993-96. As requested by the Tamil Nadu Public Service Commission the excess number of 24 candidates have been adjusted and a revised estimate vacancy for 1996-97 has been fixed as 75 and the same has been furnished to Tamil Nadu Public Service Commission on 25.11.1997. 7. Due to delay in recruitment of candidates arose during 1990-96, the available vacancies were filled up by promoting the personal clerks/ Typists (Graduats) totalling about 287 as indicated below: Year Out of which No. of Graduate Typists Promoted are) 1991 Personal Clerks & Typists 39 24 1992 Personal Clerks & Typists 76 43 1993(1st list)Personal Clerks & Typists 31 19 1.8.94 1993(2nd listPersonal Clerks & Typists 50(172) 41 (139) 26.9.94 1994 Personal Clerks & Typists 34 19 1995 Personal Clerks & Typists 32 25 1996 Typists 25 25 ---- ---- 287 196 " 7. It is also clearly mentioned that no direct recruitment was made since 1990-1996. The Tribunal, further held that as the Government has decided toamend the Rules with retrospective effect from the date of issuance of the Government Order, the final order was passed as mentioned below:- 23 In the light of our discussions above and in the peculiar circumstances of the case and on consideration of equality, the respondents are https://hcservices.ecourts.gov.in/hcservices/ given six weeks time to consider the issuance of necessary amendment to the rules as submitted by1 them and act pursuant to such amended rules. During this period the interim orders shall stand vacated. On the failure to do so, G.O.Ms.No.315 dated 19.8.93 and G.O.Ms. No.362 dated 29.11.95 shall stand quashed and the respondents are directed to consider the case of the applicants forpromotion to the post of Assistants as per rules. These O.A.s are ordered accordingly." 8. Therefore, the Tribunal, without considering the whole issue was made to understand and believe that without an amendment to the Rule, appointments cannot be made. Therefore, the instructions cannot be implemented which is known to the Government. It is also made clear that there was no direct recruitment between 1990-1996. So, any appointment also through Tamil Nadu Public Service Commission was made only after the date of the judgment namely 03.11.1998. But in view of the undertaking given in the Court, just seven days before the passing of the judgment, the amendment has come into force with retrospective effect from 19.08.1993 in the impugned government order, which is under challenge. By virtue of this amendment, the present petitioners, who has come into the Secretariat Service, foregoing their earlier seniority, has been totally put to irreparable loss in view of the fact that they were under fond hope of getting promotion and it has been affected. Undoubtedly, the Government has thought it necessary that only 50% was sought to be filed up and the balance 50% shall be equally apportioned within the four categories, therefore, the petitioners cannot have any grievance, which may not be correct as even at the earliest stage namely prior to recruitment, they filed the earlier Original Application challenging the very process of selection itself and the implementation of the same without amendment to the Rule cannot be made and it was also accepted by the Government in