R. Elumalai Vs. the State of Tamil Nadu Rep. by the Commissioner and Secretary to Government Public Works Department, - Court Judgment

Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. orderelipe dharma rao, j.1. aggrieved by the order of the tamil nadu administrative tribunal dated 31.12.2003 wherein and by which the application filed by the petitioner / applicant in t.a. no. 31 of 1994 seeking for regularisation of his services from the date of initial appointment, was dismissed, the present writ petition has been filed.2. the brief facts leading to the filing of the present writ petition are as follows:the petitioner, who joined as junior assistant in the office of the executive engineer, public works department [p.w.d.), kancheepuram division on 14.6.1975 and later on posted as typist, and came out successful in the special qualifying examination held on 27.12.1977 by the tamil nadu public service commission [for short, 'tnpsc'], was allotted to the p.w.d. unit for the post of junior assistant in the tamil nadu ministerial service; that the chief engineer (general), p.w.d. vide his proceedings dated 29.8.1980 on which date he was holding the post of typist temporarily, posted him as junior assistant; that pursuant to g.o. ms. no. 715 personnel & administrative reforms (placements) department dated 06.7.1981 which provided for fixation of pay of the candidates like the petitioner, he submitted representation dated 30.12.1981 to the chief engineer (irrigation), p.w.d. under whom he was working on that date, seeking permission to draw pay in the regular post of junior assistant as he was drawing earlier till 31.8.1980; that the same was rejected by the government vide letter dated 19.4.1983 stating that the concession of pay last drawn was given only to those temporary typists, steno-typists and junior assistants, who were allotted to the same category subsequent to the selection by the tnpsc; that the government issued instructions under g.o. ms. no. 1074 personnel & administrative reforms (placements) department dated 12.11.1982 to the effect that the services of junior assistants, typists and steno-typists under the tamil nadu ministerial service and who became successful in the special qualifying examination 1977 and allotted to different departments, should be regularised from 28.12.1977 if they were in temporary service in any department on that date; that vide letter dated 06.10.1983, the government had not accepted the clarification sought for by the chief engineer (general) with regard to regularisation of the services of the petitioner from 28.12.1977 with protection for pay drawn earlier by virtue of g.o. ms. no. 1074; that subsequently, the government vide letter dated 05.10.1984, clarified to the chief engineer (irrigation) that the services of the petitioner should be regularised from 01.9.1980 only in the post of junior assistant as he was holding a different post, viz., typist, on the crucial date ie., 28.12.1977 and that his services as typist cannot be taken into account for regularisation as junior assistant and that the chief engineer (irrigation) vide proceedings dated 20.10.1984, regularised the services of the petitioner as junior assistant from 01.9.1980. the further case of the petitioner is that similarly situated persons were given the benefits of retrospective regularisation from 28.12.1977 and fixation of pay after taking into account their temporary services prior to 27.12.1977; that for the representation submitted by him seeking for the same benefit, the government by letter dated 20.7.1988 informed the chief engineer (general), p.w.d. that as he was holding different post, ie., typist, on 28.12.1977 at the time of selection to the post of junior assistant by the tnpsc, his services in the category of junior assistant could not be regularised with effect from 28.12.1977 and that the pay last drawn in the post of typist could not be taken into account for the fixation of pay in the post of junior assistant. as against the same, he filed w.p. no. 10719 of 1988, which stood transferred to the tribunal consequent on its formation in december 1988 and re-numbered as t.a. no. 31 of 1994.3. the tribunal, upon hearing the learned counsel for the parties and on consideration of the materials on record, held that he has been regularly selected by the tnpsc and appointed and only from that date, his appointment can be regularised and the earlier services rendered under rule 10(a)(1) of the general rules for the tamil nadu state and subordinates services rules [for short, 'rules'] shall not be taken into consideration and they cannot be added to regular service and accordingly, dismissed the application. challenging the said order of dismissal, the present writ petition has been filed.4. learned counsel appearing for the petitioner submitted that the 1977 special qualifying examination held by the tnpsc was common to both the temporary junior assistants and temporary typists and that the petitioner, who was functioning as junior assistant from 14.6.1975 to 18.10.1977, was posted as typist only for 2 months and 8 days by the chief engineer (general), p.w.d. and for no fault on the part of the petitioner, he has been penalised on the ground that on the crucial date, ie., 28.12.1977, he was not functioning as junior assistant. she contended that the reason given by the government in its letter dated 20.7.1988 that the pay last drawn by the petitioner in the post of typist cannot be taken into account for fixation of pay in the post of junior assistant, is totally contrary to the statutory provision made in rule 7 of the tamil nadu special recruitments (1977 and 1981) rules, 1983. he also submitted that the petitioner, having functioned as a junior assistant and having come out successful in the qualifying examination, has acquired the vested right in the category of junior assistant and the same cannot be divested unilaterally by the respondent and the order of the tribunal upholding the same is bad and on these grounds, he sought for setting aside the order of the tribunal.5. learned special government pleader representing the respondents, has filed a counter affidavit reiterating the proceedings issued by the government rejecting the proposals made by the chief engineer on the basis of the representations submitted by the petitioner. she submitted that the petitioner was appointed as junior assistant under emergency provisions of the rules and emergency services could not be regularised due to the reason that selection and allotment of the petitioner by the tnpsc was to the post of junior assistant, which is a different category and when the selection and allotment of the petitioner was notified by tnpsc, he was not officiating in the post of junior assistant and actually, he was working as typist. according to her, rule 10(a)(i) of the rules does not confer any right for regular appointment. she submitted that the tribunal taking into cognizance of the rule provisions pertaining to candidates recruited through special recruitment 1977, rightly dismissed the application and the same requires no interference from this court. 6. heard the learned counsel for the parties and perused the materials available on record.7. on the above stated facts and circumstances of the case, the issue for consideration is as to whether the services of the petitioner can be regularised in the post of junior assistant when he was working as typist on temporary basis subsequent to his appointment as a junior assistant, on the basis of the result of the special qualifying examination conducted by the tnpsc as directed by the state government.8. the fact remains that the petitioner was working in the capacity of junior assistant from 14.6.1975 till the issuance of g.o. ms. no. 1074 personnel & administrative reforms (placements) department dated 12.11.1982 with regard to regularisation of the services of the temporary employees who have put in some years of service in the category of junior assistants, typists and steno-typists pursuant to which special qualifying examination was conducted by the tnpsc on 18.12.1977. after considering rule 23(a)(i) of the rules which contemplates that the appointing authorities have the discretion to appoint a person either from the date of first temporary appointment or from a subsequent date as the case may be and to ensure an uniform procedure in the matter of regularisation of the candidates recruited through the special qualifying examination 1977, certain conditions were imposed by the government in consultation with the tnpsc and point nos. (i) and (ii), which are relevant for consideration of this issue, are extracted below:(i) the services of those who have been allotted to secretariat service for appointment as regular junior assistants and preferred for such appointment should be regularised from 18.12.1977 if they were in the temporary service in the secretariat on that date. if they were not in the secretariat service on that date, their services should be regularised from the date on which they joined in the secretariat service.(ii) the services of all other candidates - candidates joined as typists and steno-typists in the secretariat service and as junior assistants, typists and steno-typists joined in the tamil nadu ministerial service should be regularised from 28.12.1977, if they were in temporary service in any department on that date. in other cases, the services should be regularised from the date on which they joined the units to which they were allotted by the commission.9. further, a reading of both the executive instructions in g.o. ms. no. 1074, personnel and administrative reforms (placements) department dated 12.11.1982 and the tamil nadu special recruitments (1977 and 1981) rules, 1983 notified in g.o. ms. no. 1034, personnel and administrative reforms (placements) department dated 01.10.1983 makes clear that the services of the candidates, who have been allotted through special recruitments in 1977 and appointed to the post of junior assistants in the tamil nadu ministerial services shall be regularised with effect from 28.12.1977 if they were working temporarily in any department on the said date. therefore, when the petitioner satisfies this requirement fully, his services ought to have been automatically regularised as junior assistant from 28.12.1977. 10. that apart, the petitioner, who was working as junior assistant in the office of the chief engineer for irrigation, was appointed as typist - cum - junior assistant vide order dated 08.4.1982 passed by the senior deputy chief engineer (irrigation) pursuant to issuance of g.o. ms. no. 618 p.w.d. dated 25.3.1982, in the same office, which shows that the posts of junior assistant and typists carry same scale of pay and they are interchangeable. therefore, a junior assistant qualified in typewriting is put on additional duty as typist and such holder of such a post cannot be denied the usual conditions of service like regularisation, fixation of pay, etc. and denial of the same amounts to violation of articles 14 and 16 of the constitution of india. a perusal of paragraph 11 of the counter affidavit would show that the petitioner was working as junior assistant from 14.6.1975 to 18.10.1977 and thereafter, from 19.10.1977 to 15.5.1978, he worked as a typist. again, from 16.5.1978 to 10.9.1978, he worked as junior assistant and from 11.9.1978 to 31.8.1980 he was holding the post of typist. 11. it is also pertinent to note that when it is not in dispute that the posts of typist, junior assistant and steno typists are interchangeable carrying identical scale of pay, the question whether the petitioner worked as a typist of junior assistant or steno-typist prior to the date of appointment is immaterial. further more, it is evident from a perusal of the records that similarly placed persons were regularised from the date of initial appointment and fixation of pay was also made favourbly. in such a situation, denial of extending the same benefit to the petitioner is arbitrary and violative of articles 14 and 16 of the constitution of india. 12. having regard to the fact that the posts of junior assistant, typist and steno-typist fall within one category carrying same pay scale and also considering the fact that as per g.o. ms. no. 1074 personnel & administrative (placements) department dated 12.11.1982, the petitioner was selected and posted in the same ministerial service in the office of the chief engineer, p.w.d., we are of the considered view that the tribunal has not considered the issue in its proper perspective and the order of the tribunal has to be interfered with since the same suffers from infirmity. 13. in view of the above, the writ petition is allowed and the order of the tribunal will stand set aside. the petitioner is entitled for regularisation of his services as junior assistant from 28.12.1977 with consequential fixation of pay in the said post with effect from 28.12.1977. the respondents are directed to complete the exercise within a period of six weeks from the date of receipt of a copy of this order. no costs.

Judgment:
ORDER

Elipe Dharma Rao, J.

1. Aggrieved by the order of the Tamil Nadu Administrative Tribunal dated 31.12.2003 wherein and by which the application filed by the petitioner / applicant in T.A. No. 31 of 1994 seeking for regularisation of his services from the date of initial appointment, was dismissed, the present writ petition has been filed.

2. The brief facts leading to the filing of the present writ petition are as follows:

The petitioner, who joined as Junior Assistant in the Office of the Executive Engineer, Public Works Department [P.W.D.), Kancheepuram Division on 14.6.1975 and later on posted as Typist, and came out successful in the Special Qualifying Examination held on 27.12.1977 by the Tamil Nadu Public Service Commission [for short, 'TNPSC'], was allotted to the P.W.D. Unit for the post of Junior Assistant in the Tamil Nadu Ministerial Service; that the Chief Engineer (General), P.W.D. vide his proceedings dated 29.8.1980 on which date he was holding the post of Typist temporarily, posted him as Junior Assistant; that pursuant to G.O. Ms. No. 715 Personnel & Administrative Reforms (Placements) Department dated 06.7.1981 which provided for fixation of pay of the candidates like the petitioner, he submitted representation dated 30.12.1981 to the Chief Engineer (Irrigation), P.W.D. under whom he was working on that date, seeking permission to draw pay in the regular post of Junior Assistant as he was drawing earlier till 31.8.1980; that the same was rejected by the Government vide letter dated 19.4.1983 stating that the concession of pay last drawn was given only to those temporary Typists, Steno-Typists and Junior Assistants, who were allotted to the same category subsequent to the selection by the TNPSC; that the Government issued instructions under G.O. Ms. No. 1074 Personnel & Administrative Reforms (Placements) Department dated 12.11.1982 to the effect that the services of Junior Assistants, Typists and Steno-Typists under the Tamil Nadu Ministerial Service and who became successful in the Special Qualifying Examination 1977 and allotted to different Departments, should be regularised from 28.12.1977 if they were in temporary service in any Department on that date; that vide letter dated 06.10.1983, the Government had not accepted the clarification sought for by the Chief Engineer (General) with regard to regularisation of the services of the petitioner from 28.12.1977 with protection for pay drawn earlier by virtue of G.O. Ms. No. 1074; that subsequently, the Government vide letter dated 05.10.1984, clarified to the Chief Engineer (Irrigation) that the services of the petitioner should be regularised from 01.9.1980 only in the post of Junior Assistant as he was holding a different post, viz., Typist, on the crucial date ie., 28.12.1977 and that his services as Typist cannot be taken into account for regularisation as Junior Assistant and that the Chief Engineer (Irrigation) vide proceedings dated 20.10.1984, regularised the services of the petitioner as Junior Assistant from 01.9.1980. The further case of the petitioner is that similarly situated persons were given the benefits of retrospective regularisation from 28.12.1977 and fixation of pay after taking into account their temporary services prior to 27.12.1977; that for the representation submitted by him seeking for the same benefit, the Government by letter dated 20.7.1988 informed the Chief Engineer (General), P.W.D. that as he was holding different post, ie., Typist, on 28.12.1977 at the time of selection to the post of Junior Assistant by the TNPSC, his services in the category of Junior Assistant could not be regularised with effect from 28.12.1977 and that the pay last drawn in the post of Typist could not be taken into account for the fixation of pay in the post of Junior Assistant. As against the same, he filed W.P. No. 10719 of 1988, which stood transferred to the Tribunal consequent on its formation in December 1988 and re-numbered as T.A. No. 31 of 1994.

3. The Tribunal, upon hearing the learned Counsel for the parties and on consideration of the materials on record, held that he has been regularly selected by the TNPSC and appointed and only from that date, his appointment can be regularised and the earlier services rendered under Rule 10(a)(1) of the General Rules for the Tamil Nadu State and Subordinates Services Rules [for short, 'Rules'] shall not be taken into consideration and they cannot be added to regular service and accordingly, dismissed the application. Challenging the said order of dismissal, the present writ petition has been filed.

4. Learned Counsel appearing for the petitioner submitted that the 1977 Special Qualifying Examination held by the TNPSC was common to both the temporary Junior Assistants and temporary Typists and that the petitioner, who was functioning as Junior Assistant from 14.6.1975 to 18.10.1977, was posted as Typist only for 2 months and 8 days by the Chief Engineer (General), P.W.D. and for no fault on the part of the petitioner, he has been penalised on the ground that on the crucial date, ie., 28.12.1977, he was not functioning as Junior Assistant. She contended that the reason given by the Government in its letter dated 20.7.1988 that the pay last drawn by the petitioner in the post of Typist cannot be taken into account for fixation of pay in the post of Junior Assistant, is totally contrary to the statutory provision made in Rule 7 of the Tamil Nadu Special Recruitments (1977 and 1981) Rules, 1983. He also submitted that the petitioner, having functioned as a Junior Assistant and having come out successful in the Qualifying Examination, has acquired the vested right in the category of Junior Assistant and the same cannot be divested unilaterally by the respondent and the order of the Tribunal upholding the same is bad and on these grounds, he sought for setting aside the order of the Tribunal.

5. Learned Special Government Pleader representing the respondents, has filed a counter affidavit reiterating the proceedings issued by the Government rejecting the proposals made by the Chief Engineer on the basis of the representations submitted by the petitioner. She submitted that the petitioner was appointed as Junior Assistant under emergency provisions of the Rules and emergency services could not be regularised due to the reason that selection and allotment of the petitioner by the TNPSC was to the post of Junior Assistant, which is a different category and when the selection and allotment of the petitioner was notified by TNPSC, he was not officiating in the post of Junior Assistant and actually, he was working as Typist. According to her, Rule 10(a)(i) of the Rules does not confer any right for regular appointment. She submitted that the Tribunal taking into cognizance of the rule provisions pertaining to candidates recruited through Special Recruitment 1977, rightly dismissed the application and the same requires no interference from this Court.

6. Heard the learned Counsel for the parties and perused the materials available on record.

7. On the above stated facts and circumstances of the case, the issue for consideration is as to whether the services of the petitioner can be regularised in the post of Junior Assistant when he was working as Typist on temporary basis subsequent to his appointment as a Junior Assistant, on the basis of the result of the Special Qualifying Examination conducted by the TNPSC as directed by the State Government.

8. The fact remains that the petitioner was working in the capacity of Junior Assistant from 14.6.1975 till the issuance of G.O. Ms. No. 1074 Personnel & Administrative Reforms (Placements) Department dated 12.11.1982 with regard to regularisation of the services of the temporary employees who have put in some years of service in the category of Junior Assistants, Typists and Steno-Typists pursuant to which Special Qualifying Examination was conducted by the TNPSC on 18.12.1977. After considering Rule 23(a)(i) of the Rules which contemplates that the appointing authorities have the discretion to appoint a person either from the date of first temporary appointment or from a subsequent date as the case may be and to ensure an uniform procedure in the matter of regularisation of the candidates recruited through the Special Qualifying Examination 1977, certain conditions were imposed by the Government in consultation with the TNPSC and point Nos. (i) and (ii), which are relevant for consideration of this issue, are extracted below:

(i) The services of those who have been allotted to Secretariat Service for appointment as regular Junior Assistants and preferred for such appointment should be regularised from 18.12.1977 if they were in the temporary service in the Secretariat on that date. If they were not in the Secretariat Service on that date, their services should be regularised from the date on which they joined in the Secretariat Service.

(ii) The services of all other candidates - candidates joined as Typists and Steno-Typists in the Secretariat Service and as Junior Assistants, Typists and Steno-Typists joined in the Tamil Nadu Ministerial Service should be regularised from 28.12.1977, if they were in temporary service in any department on that date. In other cases, the services should be regularised from the date on which they joined the units to which they were allotted by the Commission.

9. Further, a reading of both the executive instructions in G.O. Ms. No. 1074, Personnel and Administrative Reforms (Placements) Department dated 12.11.1982 and the Tamil Nadu Special Recruitments (1977 and 1981) Rules, 1983 notified in G.O. Ms. No. 1034, Personnel and Administrative Reforms (Placements) Department dated 01.10.1983 makes clear that the services of the candidates, who have been allotted through Special Recruitments in 1977 and appointed to the post of Junior Assistants in the Tamil Nadu Ministerial Services shall be regularised with effect from 28.12.1977 if they were working temporarily in any Department on the said date. Therefore, when the petitioner satisfies this requirement fully, his services ought to have been automatically regularised as Junior Assistant from 28.12.1977.

10. That apart, the petitioner, who was working as Junior Assistant in the office of the Chief Engineer for Irrigation, was appointed as Typist - cum - Junior Assistant vide order dated 08.4.1982 passed by the Senior Deputy Chief Engineer (Irrigation) pursuant to issuance of G.O. Ms. No. 618 P.W.D. Dated 25.3.1982, in the same office, which shows that the posts of Junior Assistant and Typists carry same scale of pay and they are interchangeable. Therefore, a Junior Assistant qualified in typewriting is put on additional duty as Typist and such holder of such a post cannot be denied the usual conditions of service like regularisation, fixation of pay, etc. and denial of the same amounts to violation of Articles 14 and 16 of the Constitution of India. A perusal of paragraph 11 of the counter affidavit would show that the petitioner was working as Junior Assistant from 14.6.1975 to 18.10.1977 and thereafter, from 19.10.1977 to 15.5.1978, he worked as a Typist. Again, from 16.5.1978 to 10.9.1978, he worked as Junior Assistant and from 11.9.1978 to 31.8.1980 he was holding the post of Typist.

11. It is also pertinent to note that when it is not in dispute that the posts of Typist, Junior Assistant and Steno Typists are interchangeable carrying identical scale of pay, the question whether the petitioner worked as a Typist of Junior Assistant or Steno-Typist prior to the date of appointment is immaterial. Further more, it is evident from a perusal of the records that similarly placed persons were regularised from the date of initial appointment and fixation of pay was also made favourbly. In such a situation, denial of extending the same benefit to the petitioner is arbitrary and violative of Articles 14 and 16 of the Constitution of India.

12. Having regard to the fact that the posts of Junior Assistant, Typist and Steno-Typist fall within one category carrying same pay scale and also considering the fact that as per G.O. Ms. No. 1074 Personnel & Administrative (Placements) Department dated 12.11.1982, the petitioner was selected and posted in the same Ministerial Service in the Office of the Chief Engineer, P.W.D., we are of the considered view that the Tribunal has not considered the issue in its proper perspective and the order of the Tribunal has to be interfered with since the same suffers from infirmity.

13. In view of the above, the writ petition is allowed and the order of the Tribunal will stand set aside. The petitioner is entitled for regularisation of his services as Junior Assistant from 28.12.1977 with consequential fixation of pay in the said post with effect from 28.12.1977. The respondents are directed to complete the exercise within a period of six weeks from the date of receipt of a copy of this order. No costs.