C NATARAJAN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) In these writ petitions at the instance of the same petitioner, he has prayed for the issue of a writ of certiorari to quash the orders of the second respondent in No.3760/F5/78-2 dated 3.4.1979 and in 3760/F5/79-1 dated 2.4.1979 respectively, by which the second respondent proceeded to give paper promotion to respondents 3 to 53 in W.P.No.2727 of 1979 and respondents 3 and 4 in W.P. No.5772 of 1979. Since common questions arise for decision in these writ petitions and the impugned orders in both the writ petitions, are identical, these writ petitions are dealt with together.

(2.) The petitioner was recruited as an Assistant Statistical Investigator in the year 1969 through the Tamil Nadu Public Service Commission and was appointed to that post on 19.8.1970, he having fulfilled all the prescribed qualifications. The Statistics Department was brought into the fold of Tamil Nadu General Subordinate Service and the following categories of officers were included therein, namely, Statistical inspectors. Statistical Assistants, Assistant Statistical Investigastors, Computers, Supervisors and Junior Draftsman. Regarding the appointment to the post of Assistant Statistical Investigators, the appointment was to be rule (a) by direct recruitment or (b) by promotion from the category of Supervisor in the Department of Statistics, or (c) by recruitment by transfer from members of Tamil Nadu Ministerial service in the Department of Statistics. It is not necessary, for purposes of these writ petitions, to notice the other catego-ries of posts or the node of appointment to those posts. For the purpose of direct recruitment of Assistant Statistical Investigators, the applicant should possess a degree in Mathematics, Statistics or Economics of any University or Institution recognised by the University Grants Commission and should not have completed 25 years of age as on the 1st day of July of the year in which the selection for appointment is made. For appointment as Assistant Statistical investigator by promotion, the person concerned was required to possess a degree in Mathematics, Statistics or Economics of any University or Institution recognised by the University Grants Commission, but that qualification was not to be insisted upon in the case of Supervisors in the Department of Statistics who have put in service for a period of not less than to years and who, in the opinion of the appointing authority, are found to be of exceptions merit and ability. As regards recruitment by transfer from Tamil Nadu Ministerial Service, the person concerned should possess a degree in Mathematics, Satistics or F.conomics of any University or institution recognised by the University Grants Commission and should not have completed 40 years of age as on the 1st day od July of the year in which the selection for appointment is made. Preference also was to be given to persons possessing experience in statistical analysis and computation in the office of the Director of Statistics, Madras, or in the Indian Statistical Institute, Calcutta, or the Central Statistical Organisation, New Delhi.

(3.) By G.O.Ms.No. 3364, Agriculture Department, dated 15.11.1968, rationalisation of various categories of personnel in the Department of Statistics was brought about and certain changes in the organisational set up were also made. Broadly, the Department was divided into Technical Side and Non-Technical Side. The posts of Assistant Statistical Investigators, Statistical Inspectors and Research Assistants were brought under Technical Side of the Department, while the posts of Supervisors, Clerks, Assistants and Superintendents were grouped under Non-Technical Side. The post of Assistant Statistical Investigator was made the entry post on the Technical Side and 75% of posts in that category were to be filled up by direct recruitment and 25% by transfer from Clerks/Supervisors. Regarding Clerks and Supervisors not possessing a degree in Mathematics, Statistics or Economics, they were eligible for promotion only as Assistants and for further promotion as Superintendents two years’ experience was also prescribed. By G.O.Ms.No. 2351, Agriculture Department, dated 20.8.1971 certain modifications were made for filling up the 25% of vacancies in the post of Assistant Statistical Investigators reserved for appointment from among Junior Assistants and Supervisors in that non-graduates appointed prior to 15.11.1908 can also be considered for promotion as Assistant Statistical Investigators maintaining the ratio of 1:4 between graduates and others for promotion as Assistant Statistical Investigator. A challenge to G.O.Ms.No. 2531, Agriculture Department, dated 20.8.1971, was made in W.P.Nos. 2842 and 2844 of 1971 and the Government Order was quashed on the view that the statutory rules cannot be amended by administrative instructions. This was on 25.8.1972. But persons who had been promoted on 4.9.1971 pursuant to G.O.Ms.No. 2351, Agriculture Department, dated 20.8.1971, in accordance with rule 39(a) of the Tamil Nadu State and Subordinate Service Rules viz., the Preliminary and the General Rules) were allowed to continue in their respective posts. Thereafter, G.O.Ms.No. 123, Agriculture Department, dated 19.10.1973, came to be passed, by which C.O.Ms.No.2351, Agriculture Department, dated 20.8.1971, was sought to be sustained, but relaxing the conditions with retrospective effect and fixing seniority in a particular manner as per Memorandum No. 90273/F4/78 dated 8.1.1979 based on G.O.Ms.No. 123, Agriculture Department, dated 19.10.1973. By that, a proviso was introduced intended to facilitate the absorption of temporarily appointed Supervisors and Junior Assistants who had entered service prior to 15.11.1968 in the 25% reservation and possessed only the minimum general educational qualification, in substantive vacancies. This formed the subject-matter of attack in W.P.No. 2368 of 1979 at the instance of those directly recruited as Assistant Statistical Investigators for the year 1972 and though the writ petition was dismissed, on further appeal in W.A.No.360 of 1979, a Division Hench of this court held that the making of rules retrospectively and the making of appointments in accordance with such rules were two different things and the insertion of a proviso did not have the effect of enabling the State Government to make appointment retrospectively to the detriment of those already appointed in clear vacancies through Service Commission. It was also further pointe out that the effect of regularisation of the temporary appointees under rule 39(a) of the Tamil Nadu State and Subordinate Service Rules (viz,, the Preliminary and the General Rules) was that they became part of the cadre of Assistant Statistical Investigators with effect from the date of their initial appointment, namely, 4.9.1971 and that such appointees became seniors to persons like the petitioner appointed as direct recruits, and that the fixation of seniority in this manner adversely affecting those directly recruited is not sustainable. In that view, the seniority list was quashed and the seniority of the appellant therein was directed not to be disturbed and the other persons, like respondents 3 to 53 in W.P.No. 2727 of 1979 and the respondents 3 and 4 in W.P.No. 5772 of 1979 could be given the benefit of relaxation only after the date of appointment of the directly recruited Assistant Statistical Investigators. The seniority list was accordingly quashed and the appeal was allowed.