M. JAYAKUMAR AND ORS. ETC.

A . v.

STATE OF TAMIL NADU AND ORS.

AUGUST 30, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Service Law :

Tamil Nadu Ministe1ial Service Rules/Special Rules under G.O.Ms.

No. 3134, Public (Services) Depaitment dated September 29, 1975: C

Rules 3, I I-Promotion-Assistant to Superintendent-Board of Revenue and other Branches in the City-Whether to be common unit-Tribunal directing that the respondent Assistants be treated as pan of the unit of the Board of Revenue and to consider their cases for promotion--{)11 appeal held, Assistants, if available from the Board of Revenue unit, D would be considered for promotion as Superintendent-In their absence, Assistants available in the units, viz. in the office of the Assistant Commissioner of Urban Land Taxes Etc. are to be considered for promotion.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12033 of 1996 Etc.

From the Judgment and Order dated 13.7.93 of the Tamil Nadu Administrative Tribunal, Madras in T.A. No. 131 of 1990.

B.N. Naik and V. Balachp.ndran for the Appellants.

Ambrish Kumar and V. Krishnamurthy for the Respondents.

The following Order of the Court was delivered :

Delay condoned.

Leave granted.

These appeals by special leave arise from the order of the Tamil Nadu Administrative Tribunal, Madras Bench made on July 13, 1993 made

in T.A. No. 131of1990. The admitted position is that Tamil Nadu Urban Land Tax Act (for short, the "Act") was amended so as to extent the H 393

A provlSlons thereof to Madurai, Coimbatore, Trichy and Salem. It was further amended, inter alia, so as to extend the provisions of the Act to the belt areas of Madras City. As regards the appointments to the post of ministerial staff therein, they are governed by the Tamil Nadu Ministerial Service Rules (for short, the "Rules"). Rule 3 of the Rules provides the B method of appointments and promotions. Rule 3 (hh) (ii) reads as under ;

"3. Method ofRecruitment :

(hh) Besides promotion as provided in rule 4, appointment to the posts of Superintendents and Assistants in the office of the Board of Revenue (Land Reforms) may by made as specified in Column (2) of the Table below, if no suitable candidates are available for promotion in the office of the Board of Revenue (Land Reforms).

POSTS

(i) Superintendents

(ii) Assistants

THE TABLE

METHOD OF APPOINT-

MENT

By recruitment by transfer from among Deputy Tahsildars and Tahsildars in the Tamil Nadu Revenue subordinate Service.

By transfer from among Assistants in the District Revenue Units.

(i) Appointment to the posts of Superintendents (Selection Grade) in the office of the Board of Revenue (Urban Land Tax) - Commissioner of Urban Land Tax and in the Offices of the Assistant Commissioners of Urban Land Tax, shall be made by promotion from among the Superintendents in the Urban Land Tax Department and in other Branches of the Board of Reventl8--0I by recruitment by transfer from the category of Deputy Tahsildars in the Tamil Nadu Revenue Subordinate Service.

(ii) Appointment to the posts of Superintendents in the Office of the Board of Revenue (Urban Land Tax) Commissioner of the Urban Land

M. JAY AKUMAR v. STA TE 395

Tax and in the offices of the Assistant Commissioners of Urban Land A Tax, shall be made by promotion from among the Assistants in the Urban Land Tax Department and from among the Assistants of the District Revenue Unit or other Branches of the Board of Revenue.

(iii) Appointment to the posts of Assistants in the Office of the Board of Revenue (Urban Land Tax) - Commissioner of Urban Land Tax and in the office of the Assistant Commissioners of Urban Land Tax, shall be made by promotion from among the Junior Assistants in the Urban Land Tax Department and from among the Junior Assistants of the District Revenue Unit or other Branches of the Board of Revenue.

(iv) Besides direct recruitment as provided in rule 2, appointment

to the posts of Junior assistants and typists in the office of the Board of Revenue (Urban Land Tax) - Commissioners of Urban Land Tax, and in the office of the Assistant Commissioners of

Urban Land Tax, shall be made by transfer from among the junior D Assistants and typists of the District Revenue Unit or from other Branches of the Board of Revenue, respectively".

Under Rule 11 dealing with recruitment to the departmental units, it is stated that for the purposes of direct recruitment etc. to the service, a E departmental unit shall mean (a) in the City of Madras, each office; and

(b) outside the City of Madras, each department in each District provided that each office or group of offices specified in the table given therein, shall be a departmental unit. Under item (ii) Board of Revenue shall be one unit for all branches excluding settlement of Estates and Commercial Taxes; under item (iii) it shall be departmental unit for Settlement of F Estates Branch and under item (iii) it shall be for Commercial Taxes Branch. It would thus be seen that the Board of Revenue shall have three separate departmental units. The Government have further amended the Rules by making Special Rules under G.O.Ms. No. 3134, Public (Services) Department dated September 29, 1975 which came into force w.e.f. March G 1, 1970 adding below Rule 3 (hh) in the Rules.

The said Special Rules Read as under :

"(ii) (1) Appointment to the posts of Superintendent (Selection Grade) in the office of the Board of Revenue (Urban Land Tax) H 347

Commissioner of Urban Land Tax, and in the offices of the Assistant Commissioner of Urban Land Tax, shall be made by promotion from among the Assistant in the Urban Land Tax Department and from among the Assistants in the District Revenue Unit or other branches of the Board of Revenue.

(iii) Appointment to the posts of Assistants in the office of the Board of Revenue (Urban Land Tax) - Commissioner of Urban Land Tax and in the offices of the Assistant Commissioner of Urban Land Tax, shall be made by promotion from among the Junior Assistants, in the Urban Land Tax departments and from aniong the Junior Assistants of the District C Revenue Unit or other bran(, i1es of the Board of Revenue.

(iv) Besides direct recruitments provided in rule 2, appointment to the posts of Junior Assistants and Typists in office of the Board of Revenue (Urban Land Tax) - Commissioner of Urban Land Tax and in the office D of the Assistant Commissioners or Urban Land Tax, shall be made by transfer from among the Junior Assistants and Typists of the District Unit or from other branches of the Board revenue, respectively".

2. In annexures I, under the heading "Section A - Selection Categories', under the sub-heading 'Revenue Departments' after item 4, the following item shall be added, namely :

5. Office of the Board of Revenue (Urban Land Tax) - Commissioner of Urban Land Tax and the offices of the Assistant Commissioner or Urban Land Tax.

(i) Superintendent

(ii) Assistants.

3. In Annexures II, under the heading 'Revenue Department after G item 4, the following item shall be added, namely :

"5. Office of the Board of Revenue (Urban Land Tax) - Com~ missioner of Urban Land Tax and the offices of the Assistant Commissioner of Urban Land Tax.

H All members of the service : Commissioner of Urban Land Tax

M.JAYAKUMAR v. STATE 397

and the ex-office, Secretary, Board of Revenue (Urban Land Tax) A Board of Revenue (ULT)

In Annere, III

(i) After o category "l Superintendent in the Directorate of Tamil Development in Column (1) and the entries relating thereto in column (2) and (3) the following category and entries shall be inserted, namely :

Superintendents in the By

1. Revenue office of the Board of Transfer Test Revenue (ULT) or

2. Survey Commissioner or Urban Promotion Training for a Land Tax and office of period not the Asstt. Commr. of less than four Urban Land Tax. weeks.

3. ( contd ... 3)

POST

TESTS

(ii) Assistants in the office of Revenue Tests Port I, II and the Board of Revenue III. (Urban land Tax) Commissioners of Urban Tax and the Assistant Commissioners of Urban Land Tax.

6. SERVICE TO COURT FOR PROMOTION :

The Junior Assistants of District Revenue establishment working F as Junior Assistant or working into higher post holding more responsibilities in the Urban Land Tax Department shall be entitled to count their services in the Urban Land Tax Department for the purpose of promotion as Assistants in the District Revenue Unit from which they were drawn to the extent they would have G , otherwise acted as Junior Assistants in the said District Revenue Unit.

EXPLANATION - For the purpose of these rule, "District Revenue

Unit" means, in respect of office located in Madras City the Revenue unit of Madras District and in respect of office located H

398 SUi'REME COURT REPORTS (1996YSUPP. 5 S.C.R.

in other places the Revenue Unit of the District in which the office is located, but shall not include persons whose setvices were not regularised in the respective posts."

The controversy having arisen is : whether for the purpose of promotions from the category of Assistants to the category of Superintendents, the units in respect of the City of Madras, office of the Assistant Commissioner (Urban Land Tax) and the office of the Board of Revenue (Urban Land Tax) and of the Commissioner (Urban Land Tax) would be common unit? In view of the above-quoted Rules, the answer obviously would be in the negative. It is clear from the record that by G.O.Ms. No. 612 Revenue dated May 2, 1989 and abortive attempt was made to infuse all the departments into a common unit for the purpose of promotion but the same came to the cancelled by G.O.Ms. No. 642 Revenue dated April 18,

1990. Consequently, even the administrative decision taken had no statutory base but became fugitive. When the respondents approached the D Tribunal claiming promotions on the premise that there was common unit all the departments in the City, the Tribunal by the impugned order has directed that the respondents be treated as part of the unit of the Board. of Revenue and resultantly their cases be considered for promotion. Thus r these appeals by special leave.

Shri Bhim Rao Naik, learned senior counsel for the appellants, contended that the approach adopted by the Tribunal in considering the Board of Revenue and other branches. in the city as one unit for the purpose of promotion of Assistants as Superintendents is violative of Rule 3 (hh) of the Rules. We find force in the contention. It is seen that Rule 3

(hh) has in unambiguous language expressed unequivocally that "if suitable candidates are not available for promotion in the office of the Board of Revenue (Land Revenue)" then the question of considering the claims of Assistants in other units as amended in G.O.Ms. No. 3134 dated September 29, 1975 would arise. It is sought to be contended by the respondents that for over 20 years the respondents had no opportunity for promotion. The G appellants are juniors in point of time of appointment and, therefore, they cannot well steal inarch over the respondents. The Tribunal has considered . in equity all the linits as one unit for the purpose of promotion and does not call for interference under Article 136 of the Constitution. In similar cases, on an earlier occasion, same view was expressed to which some of H the appellants were parties. We find no force in the contention. We are

M.JAYAKUMARv.STATE 399

called upon to interpret the rule. We cannot avoid correct interpretation A and supplant equity to sway over statutory rule when Assistants in Board of Revenue are available for promotion to consider the cases of Assistants in other units. Equity operates where law is silent It will be for the Rule-making authority to decide the unit for the purpose of recruitment or promotion. The Government did not agree to integrate all the three units as one. In the face of the unambiguous statutory language employed therein, it would be difficult to give acceptance to the contention of the respondents. Even the amended rule has specifically provided that "in rule 3, after sub-rule (hh), the following sub-Rule shall be added", viz., as extracted above. In the light of the language of rnle 3 (hh) and in view of

the amendment brought after rnle 3 (hh), the necessary conclusion would C be that the Assistants, if available from the Board or Revenue unit, would be considered first for promotion as Superintendent. In their absence, Assistants available in the office of the Assistant Commission of Urban Land Taxes etc. are to be considered for promotion.

The appeals are accordingly allowed. The petition filed in the D Tribunal stands dismissed but, in the circumstances, without costs.

G.N.

Appeals allowed.