S SWAMINATHAN Vs. REGISTRAR TAMIL NADU ADMINISTRATIVE TRIBUNAL

JUDGEMENT

(1.) SINCE all the Writ Peittions arose against common order of Tamil Nadu Administratve Tribunal dated 28-01-2003, they are being disposed of by the following common order. One S. Swaminathan and 7 others, questioning the order of the Tamil Nadu Administrative Tribunal dated 28-01-2003 made in O.A.No.5126/2002, directing the official respondents not to appoint any Superintendent to the post of Divisional Accountant and only to appoint Assistant with qualification prescribed in the rules to the post or Divisional Account, have filed W.P.No.12466/2003.

(2.) CHALLENGING the said common order dated 28-01-2003 in O.A.No.643/1999, Chief Engineer and the Government, represented by its Highways and Rural Works Department have filed W.P.No.14017/2003.

(3.) FOR convenience we shall refer the case of S. Swaminathan and others as narrated in W.P.No. 12466/2003. According to them, all the petitioners were appointed as Junior Assistants and subsequently promoted as Assistants in the Highways Department. The Assistants with five years of service are eligible to sit for the Divisional Accountant Test. The post of Divisional Accountant in the said Department carries much importance since all payments for the works done by the contractors are verified and checked and payment made only at the Divisional level. The Association of Assistants represented to the Government that persons with 5 years of service as Assistants may be permitted to sit for Divisional Accountant test conducted by the Accountant General and the passed candidates can be promoted in accordance with their seniority. The Government accepted the proposal of the Union and permitted the Assistants with 5 years of service to sit for the Divisional Accountant Tests in G.O.Ms.No. 1073 Transport dated 10-9-1982. Further necessary rules were also amended. Based on that, all the petitioners have appeared for Divisional Accountant Test while they were working as Assistants except the 7th and 8th petitioners who were passed the test after being temporarily upgraded as Superintendent. Since there was acute stagnation in the Ministerial Service and those who have completed more than 25 years were not in a position to get the promotion of Superintendent, the Government passed G.O.Ms.No. 595 Finance (PC) Department dated 01-8-1992, according to which, one post of Assistant was upgraded as Superintendent for every 5 posts of Junior Assistants and Assistants. In the Highways Department, about 212 post of Assistants were upgraded as Superintendents in terms of G.O.Ms.No. 991 Public Works (HMI) dated 2-7-1993. All the petitioners were promoted as Superintendents under Rule 39-A of Tamil Nadu State and Subordinate Service Rules and they were holding the said post only in the upgraded posts of Assistants and they were not actually promoted as Superintendents in the regular capacity under Rule 36(B) of Tamil Nadu State and Subordinate Service Rules. The senior most Assistant who had passed the Divisional Accountant test was appointed as Divisional Accountant so far. But, in view of the upgradation of the existing Assistants as Desk Superintendents, the Assistants who have been temporarily promoted as Superintendents by way of upgradation were also promoted as Divisional Accountant after 1993, as their substantive post is Assistants, and in which post they have got a lien over it, in case of reversion. After the year 1993, the post of Divisional Accountant is mostly filled by the upgraded Superintendents. Therefore, taking into consideration of the latest development in the department after 1993, in view of the creation of upgradation of Assistants as Superintendents in terms of G.O.Ms.No. 595 Finance dated 1-8-92, the Government thought it fit to propose necessary amendment to include the post of Superintendent also as feeder category for promotion to the post of Divisional Accountant and it is pending with the Government. Pending amendment of the Service Rules, the Government permitted the Assistants who have been temporarily promoted as Superintendents also to sit for the Divisional Accountant test in terms of G.O.3 (D) No. 101 Highways dated 8-12-98 and they have also been promoted as Divisional Accountant with reference to their seniority in the category of Assistants, without referring to their promotion as Superintendent. While so, the Tribunal on the wrong premise, that promotion from the post of Superintendent was also made by transfer of service as in the case of Divisional Accountant and without taking the relevant fact that both the category of Assistants and Superintendents falls within the same ministerial service, prohibited the department from appointing any Superintendent to the post of Divisional Accountant and issued positive direction only to appoint Assistants with qualifications to the post of Divisional Accountant. Similar averments have been made in the other writ petitions.