Y MOHAMED Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) 1.P.S. Mishra, J.: These appeals have been preferred against a common judgment W.P. Nos. 8381 of 1985 and 9480 of 1986 by the writ petitioners. The petitioners presently working as Junior Assistants in the office of the Government Pleader, High Court, Madras. They belong to the Tamil Nadu Judicial Ministerial Service. The rules framed under the Proviso to Art.309 of the Constitution of India, which were brought into force on and the 1st January, 1955 and made applicable to the holders of all posts, whether temporary permanent, in the service appointed thereto, before on or after the 1st January, 1955, except to the extent otherwise expressly provided by or under any law for the time being force or in respect of any member of the service by a contract or agreement subsisting, between such member and the 'State Government, definea 'member of the Service mean a person who has been appointed to the service and who had not retired or resigned, been removed or dismissed, been substantively transferred or reduced to another service been discharged otherwise than for want of a vacancy, whether a probationer, an approved probationer or a full member of the service. These comprehensive rules provided for direct recruitment, promotion of any member of any class, category or grade of the service higher class, category or grade of the service and other conditions of service including definition of a 'cadre'to mean the permanent cadre of each class, category and grade determined by the State Government and its constitution consisting of the classes categories of officers working in the City Civil Courts and offices of the Administrator General and Official Trustee, Tamil Nadu, Advocate General, Tamil Nadu Government Pleader, Madras, Public Prosecutor, Madras and Editor, Indian Law Reports, Madras Series, Madras. It is stated that to meet the increased workload, some proposals were made to increase the strength of Law Officers and accordingly a decision was taken to provide additional staff in various categories to the offices of the different Law Officers. It is however, found that the State Government sanctioned 2 posts of Superintendents, 3 posts of Assistants, 6 posts of Junior Assistants, 4 posts of steno-typists, 4 posts of typists, 2 posts of record clerks and 4 posts office Assistants (formerly designated as Basic servants) for a periods of one year from date of employment of the posts in the office of the Government Pleader, High Court, Madras (vide G.O.Ms.No.2092, Public (Establishment) Department, dated 15.12.1984). This order issued under the signature of the Chief Secretary to Government said: '...., The appointment to these posts will be made by Government Law Department.'Soon thereafter, an order was issued vide Office proceedings No.83/Law/85 3.7.1985 appointing. Two Assistant Section Officers of the Government Law Department Superintendents in the Office of the Government Pleader, High Court. Petitioners felt that their right to be considered for appointment in the newly sanctioned posts stood infringed and accordingly filed W.P.No.8381 of 1985 before this Court. While the said writ petition was pending before this court, a notification was issued in G.O.Ms.No.18, Law Department, dated 22.1.1986 purportedly in exercise of the powers under the Proviso to Art.309 of Constitution of India, introducing certain rules with effect from 3.7.1985 saying: 'The General and the Special Rules applicable to the holders of the Permanent posts Record Clerk in category I in Class XXII of the Tamil Nadu General Subordinate Service shall apply to the holder of the temporary post of Record Clerk sanctioned in G.O.Ms.No.2092, Public, dated 15.12.1984 in the office of the Government Pleader, High Court, Madras, subject to the modification specified in the following Rules.

(2.) CONSTITUTION: The post shall constitute a distinct category in the said class of the said service.

(3.) LEARNED single Judge has dealt with though summarily this aspect of the matter and as noticed by us above that in view of the rules aforementioned which has been formulated to govern the temporary posts sanctioned, these posts make a separate and distinct class themselves. Having so held, he has said: ".... The promotional prospects of the petitioners will not in any manner be stultified creation of temporary posts governed by the ad hoc rules, because the promotional avenues of the personnel already in service in the office of the Government Pleader, High Madras, are not at all touched by the present Government orders. Even if there could grievance with reference to stultifying of promotional prospects, if any, that could countenanced in view of the pronouncement of a Bench of this court, to which I have party, in S.Arunachalam and others v. The State of Tamil Nadu by its Secretary, Education Department, Madras-9 and another (W.P.Nos.244 of l978 and l34 and l35 of 1977, dated 15.12.1978), wherein the ratio of the Supreme Court has also been taken note state that though a right to be considered for promotion is inherent in service, mere of promotion are not and a rule which merely enacts chances of promotion cannot regarded as varying a condition of service...".