A temporary Steno-Typist selected through TNPSC for the same post in another department without a service break was entitled to protection of pay and earned increments. The court dismissed the Government's appeal and upheld pay protection, leaving the denial of retrospective seniority undisturbed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.12.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.1832 of 2018
Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent, against the order made in W.P.No.11858 of 2010, dated 12.01.2017.
W.P.No.11858 of 2010:-
Writ Petition filed under Article 226 of the Constitution of India. to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 1st respondent herein in Letter No.5999/E7/2009-7 Rural Development and Panchayat Raj (E7) Department dt.10.3.2010 and quash the same and consequently direct the respondents herein to regularize the petitioner period of temporary services as Steno-Typise from 27.9.14989 FN to 23.8.1994 AN as duty for all service benefits and direct the respondents herein to issue orders retrospectively regularizing his service from 27.9.1989 with all consequential benefits.
For Appellants : Mr.P.S.Sivashanmugasundaram, Special Government Pleader
For Respondent : Mr.Ravi Shanmugam
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J.)
Challenge in the instant writ appeal is to the order of the writ court dated 12.01.2017 made in W.P.No.11858 of 2010, by which, the writ court, while quashing the impugned order, dated 10.03.2010, allowed the writ petition filed by the respondent and issued directions to regularise the services of the respondent from the date of initial appointment.
request of the respondent, stating that both G.O.Ms.No.85, P & AR Department, dated 20.2.1990 as well as the Government letter of P & AR department, dated 05.2.1996 are not be applicable to the case of the respondent.
"16. The very short issue to be decided in this writ petition is as to whether the plea of the petitioner to regularise his services rendered earlier on temporary basis from 27.9.1989 to 23.8.1994 for regularization as a continuous duty period for the purpose of all his service benefits, is to be accepted or not.
the petitioner had been subsequently appointed and his service also got regularised, his pay is prejudicially affected as has been fixed lower pay than what he was drawing at the time of relieving from his temporary service. Therefore, he had made a request to the respondent and the said request was rejected. Ultimately, he had approached the Tamil Nadu Administrative Tribunal and the said case was transferred to this court and by order dated 29.9.2009, the request of the petitioner was directed to be considered by the respondents. Pursuant to the said direction of this Court, the present impugned order dated 10.3.2010 was passed. As has been pointed out by the learned counsel for the petitioner, the first respondent had given two reasons for rejecting the request of the petitioner. Firstly, the respondent has stated that G.O. Ms.No. 85 dated 20.2.1990 was the one time relaxation given to those who had been selected by the Service Commission between 1983 and 1986 and therefore, the same shall not be made applicable to the petitioner. Secondly, the Government letter dated 5.2.1996 was to regularise the irregular appointments made before 5.2.1996 with retrospective effect and therefore, the said letter also would not be made applicable to the case of the petitioner.
"7. The learned Judge negatived the claim of the appellant based on F.R. 22-B. The proviso to F.R. 22-B reads as follows:-
"Provided that if a Government servant has previously held substantively or officiated in -
(i) the same post, or
(ii) a permanent or temporary post on the same time-scale, or
(iii)a permanent post on an identical time-scale or a temporary post on an identical time-scale, such post being same time-scale as a permanent post then
the initial pay shall not be less than the pay other than special pay, personal pay or emoluments classed as pay by Government under rule 9(21)(a)(iii) which he drew on the last such occasion and he shall count the period during which he drew that pay on such last occasion and any previous occasions, for increment in the stage of time-scale equivalent to that pay."
5.2.1996 reflected the Government's decision to regularise the irregular appointment made before 5.2.1992. Whatever be the irregular appointment made by various departments and various authorities of the State Government prior to 5.2.1992 were directed to be regularised. In fact, the said Government letter was issued pursuant to the directives of the Tamil Nadu State Administrative Tribunal as well as the Hon'ble Supreme Court of India in several cases. When a blanket permission was given to regularization of services which were made irregularly prior to 5.2.1992, the reasoning now given by the first respondent that such benefit cannot be extended to the petitioner blindly, is totally unacceptable for the reason that the petitioner also was temporarily appointed in the year 1989 i.e., well prior to 05.2.1992. When the very irregular appointments themselves made prior to 05.2.1992 had been directed to be regularised by virtue of the policy decision reflected in the Government letter, why the first respondent has refused to extend such a benefit to the petitioner, who had been appointed before 1992 i.e.,27.9.1989 under 10 (a) (1) of the General Rules of Tamil Nadu State and Subordinate Services and subsequently, had been permanently selected and appointed from 24.8.1994. In fact the benefits sought to be extended through the said Government letter is for those, who had been temporarily appointed or irregularly appointed who have never been permanently appointed by selection made by the Service Commission. When that being so, the petitioner, though was initially appointed temporarily has been subsequently appointed on permanent basis through the selection by Service Commission, is in far better footing than those who had been given such a benefit under Government letter and therefore, the denial of such benefit to the petitioner only for the said temporary period of service from 27.9.1989 and 23.8.1994, is totally unlawful and unjustifiable and therefore, this reason adduced by the first respondent in the impugned order is liable to be interfered with.
appointed on permanent basis and their probation would have been declared so well before the probation of the petitioner. Therefore, only in that context, the Hon'ble Apex Court in the Judgment cited supra has given the finding that the giving retrospective regularization to the promotees from the date of the initial appointment of such promotees as the starting point of their seniority, who had been subsequently, appointed on permanent basis as their probation also would have been declared so, well before the probation of the petitioner, may not be justifiable. Therefore, only in that circumstances, the Hon'ble Apex Court in the Judgment cited supra has given a finding that the retrospective regularization of the promotees from the date of initial appointment of such promotees as the starting point of their seniority could be erroneous and contrary to the well established principles relating to regularization and seniority. Therefore, the Hon'ble Apex Court in fact disapproved such course of action adopted by the Government. As such the retrospective regularization giving undue benefit of seniority for those who had been given such benefit would be dehors of the Rule and therefore, such benefit has been negated by the said decision of the Hon'ble Apex Court.
(i) The impugned order is liable to be quashed, accordingly is quashed;
(ii) The petitioner shall be entitled to seek regularization of his services as a continuous duty from 27.9.1989 to 23.8.1994 and consequently, the petitioner shall be eligible to claim salary benefits and other financial benefits including increment and fixation of pay;
(iii) However, the petitioner by virtue of such regularization of his service from 27.9.1989 shall not be entitled to claim seniority than any other person, who had been selected and appointed permanently prior to the appointment of the petitioner on permanent basis i.e., on 24.8.1994. In other words, no senior than the petitioner considering his permanent date of joining service i.e.,24.8.1994 shall be put on
disadvantageous position pertaining to their seniority because of the regularization given to the petitioner's services from 27.9.1989;
(iv) For all other service benefits other than the seniority under clause 3 of the direction above, the petitioner shall be entitled to and accordingly, his pay benefits and other financial benefits shall be calculated and if any difference of pay is noticed the same shall also be calculated and the arrears shall be given to the petitioner.
(v) The above directions shall be complied with by the respondents within a period of three months from the date of receipt of a copy of this order.
(ii) Similarly, such prolonged continuance in the temporary post of Steno-Typist was not assured to the seniors of respondent, who were sponsored Steno-Typist from Employment Exchange to different departments. When regular Steno-Typist is appointed, they would be ousted from service and surrender back to local Employment Exchange. When temporary candidate is sought from the Employment Exchange in different departments, they would gain their priority over the Stenographers who were waiting for the jobs. Therefore the pay protection is seized, as and when the temporary service concludes. Such being the position, if the pay protection is given to the respondent only because of the reason that he was allowed to work in the department for 4 years, it is against the ‘Principles of Natural Justice’, because such protection was not possible to his seniors in the Employment Exchange, who were subsequently got through TNPSC and appointed to different departments, since the service condition in each department unit in the district level varies.
(iii) Writ Court has failed to note the
provisions of F.R.27(2) of Tamilnadu Government Servants and that the respondent was allowed for the 3 stage advancement at the initial regular appointment. If the respondent is given pay protection and 3 stage hike at the first appointment, such similarly placed candidates in other departments, who are seniors to him, would claim for the similar hike in one stoke, which would pave the way to administrative mishap, besides heavy financial burden to the Government.
(iv) Writ Court has further failed to note that if the orders issued in para No.3 in W.P.No.11858 of 2010, dated 12.01.2017, is in proper perspective of the Judgement of the Hon'ble Apex court reported in (2006) 6 SCC 558 [K.Madalaimuthu and another vs. State of Tamil Nadu and others], then judgement in Para 24(i) and (ii) are contrary. While the retrospective seniority is disallowed, the entitlement for pay protection for the temporary service is also seized.
(v) Though service right is protected in para 24(iii), it is only for the senior persons, who were appointed in his batch or the employees already working in the department. But the pay protection of senior person as per Employment Exchange, would defeat the procedure of giving equal opportunity to Government servants.
(vi) Writ Court has failed to note that the respondent was appointed by the Deputy Registrar (Public Distribution System) initially on 27.09.1989, under 10(a)(i) of General Rules duly sponsored by local employment exchange. As the posts of Steno-Typist Grade III is falling under the preview of Tamil Nadu Public Service Commission, any appointment to that post should be filled in by Tamil Nadu Public Service Commission, through the successful candidates, from the competitive examinations conducted by Tamil Nadu Public Service Commission. When there is a circumstance to fill the vacancy temporarily until a regular candidate is sponsored by Tamil Nadu Public Service Commission, the post can be filled up by temporary candidates under Rule 10(a)(i) purely on temporary basis. As and when the post is filled up by a regular candidate by Tamil Nadu Public Service Commission, the services of such temporary employee shall be ousted and surrendered to the local employment exchange so that they can be sponsored to any other needy departments on
temporary basis.
(vii) The respondent is a temporary candidate sponsored by Local Employment Exchange worked in the office of the Deputy Registrar (Public Distribution System). His services were utilized in the office of Deputy Registrar (Public Distribution System) as temporary service. The respondent was subsequently selected by Tamil Nadu Public Service Commission through the competitive examination and he was appointed by Tamil Nadu Public Service Commission in Rural Development Department and he joined duty on the forenoon of 24.08.1994. His services were only temporary service from 27.09.1989 to 23.08.1994. He was not successful in the competitive examinations conducted by the Tamil Nadu Public Service Commission in the time span from 27.09.1989 to 23.08.1994. Had he been selected by the Tamil Nadu Public Service Commission in the earlier years before 23.08.1994, he would have appointed in the new department earlier. Tamil Nadu Public Service Commission has not filled up the post of StenoTypist Grade III in the office of Deputy Registrar (Public Distribution System) due to the administrative reasons, such as no vacancy was reported by the Office or no sufficient candidates are available with Tamil Nadu Public Service Commission for filling the vacancy in the Public Distribution System. Therefore he was allowed to work in the office of the Deputy Registrar (Public Distribution System), by gaining the annual increments. Had any candidate filled in the time span from 27.09.1989 to 23.08.1994, the respondent would have ousted from service and surrendered to local employment exchange. Other candidates, who are senior as per employment seniority, happened to ousted earlier in other departments and they were surrendered back to concerned local employment exchange. Therefore, the continuous service rendered by the respondent cannot alone be considered for retaining the increment gained in the temporary service when he was appointed to a regular post. If the respondent is allowed to gain the increments to retain his last pay in the newly appointed post, is liable for 3 stage advancement on the date of his appointment. This would certainly defeat the “Recruitment Notification” of The Tamil Nadu Public Service Commission. The Tamil Nadu Public Service Commission has also communicated the seniority list as per the marks
secured by the respondent and also by adopting reservation policies. The persons who appointed in the same batch, who is senior to the respondent may also claim for 3 stage advacement. Such temporary candidates in different departments would claim similar increase in pay to them and it may cause severe financial burden to the Government besides administrative discrepancies. This may trigger more number of cases before the court of law claiming for temporary service to the regular service since there is more number of candidates in every department worked as temporary service. It is submitted that the respondent has given appeal petition to the Government on 05.05.1997 and the Government have carefully examined each and every aspect of the case and recorded the reasons in written for rejection of the request of the petitioner. The said order is a speaking order in which the service condition of the petitioner (herein respondent) is clearly discussed.
(viii) The respondent cannot seek 3 stage advacement at the time of his regular appointment in the regular post only for the reason that he had allowed to continue in temporary service in the office of the Deputy Registrar (Public Distribution System), because no regular candidate was made available to that office. This may be attributed to the reason that the vacancy position from the office of the Deputy Registrar (Public Distribution System) has not been reported to Tamil Nadu Public Service Commission in time. Such defects cannot claim any right over such administrative lapses for gaining his increment in the temporary post."
8. Respondent herein has filed a detailed counter affidavit and contended that the Government have issued instructions in U.O. Note No.l6076/S/95-9 P & A R (S) Department, dated 05.02.1996, to all the Departments to regularize all irregular appointments made before 05.02.1992. He was appointed under rule 10(a)(i) on 27.09.1989 FN., which falls before 05.02.1992 and therefore, as per the Government instructions, his period of service, from 27.09.1989 to the date of his regular appointment, has to be regularized.
Assistants of Tamil Nadu Ministerial Service, recruited through competitive examination held by the Tamil Nadu Public Service Commission during 1983 - 1986, by extending the benefit of G.O.Ms.No.399, Personnel and Administrative Reforms Department, dated 12.07.1988. According to him, facts of his case are identical, and the above Government guidelines would apply to the facts of his case.
Heard the learned counsel appearing for the parties and perused the materials available on record.
"22-B. Nothwithstanding anything contained in these rules, where a Government servant holding a post in a substantive or officiating capacity, is promoted or appointed in a substantive or officating capacity, to another post carrying duties and responsiblities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment, at the stage at which such pay has accrued. If the monetary benefit after such fixation falls short of five per cent of the pay drawn in the lower post, his pay in higher post shall be so fixed, allowing a minimum increase of five per cent of the pay drawn in the lower post. Where the pay drawn in the lower post on the date of promotion or appointment plus five per cent of the pay drawn in the lower post is a stage in the time-scale of pay of the higher post, the pay shall be fixed at such stage in the time-scale of pay of the higher post. Where the pay drawn in the lower post on the date of promotion or appointment plus five per cent of the pay drawn in the lower post exceeds the amount arrived at for fixation of pay in the higher post under this rule but where there is no corresponding stage in the time-scale of pay of the higher post, the pay shall be fixed at the next higher stage in the time-scale of pay of the higher post.
[G.O. Ms. No. 778, Personnel and Administrative Reforms (FR.III), dated 8th August 1986-with effect from 1st October 1984.]
Provided that no fixation of pay under this rule shall be made in the case of a Government servant, who has opted for fixation of pay under rule 22(1) (a) (i) or under rule 22(1) (b) (i) read with rule 22(1)(a) (i), within 15 days from the date of receipt of the orders of promotion:
Provided further that the provisions of rule 22 (1)(b)(i) shall not be applicable to a case where the initial pay has been fixed under this rule F.R.22-B:
Provided also that where a Government servant, who had not drawn stagnation allowance, before his promotion or appointment to a higher post, is drawing pay at the maximum of the time-scale of pay applicable to the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment
above the maximum of the lower post equivalent to the amount of the last increment in that scale.
[G.O.Ms. No. 975, Finance (FR.I), dated 10th July 1974.]
Provided also that where a Government servant is promoted or appointed to a higher post, the maximum of the scale of pay up to which stagnation increment is admissible and where the pay plus notional increment in the lower post exceeds the maximum of the timescale of pay of the higher post, pay shall be fixed at a stage that is admissible under this rule and the other provisions thereunder, by increasing the maximum of the time scale of pay of the higher post by stages equivalent to the amount of last increment:
Provided also that where the pay so arrived at under this rule exceeds the maximum limit upto which stagnation increment is admissible, pay shall be fixed at the stage in the time-scale 36 of pay of the higher post next below such maximum limit upto which the stagnation increment is admissible and the difference between the stage at which pay is fixed and the maximum limit upto which stagnation increment is admissible, shall be allowed as ‘personal pay.’ The ‘personal pay’ shall be treated as pay for all purposes and shall be allowed to continue till the incumbent vacates the post:
Provided also that where the maximum of the scale of pay of the higher post exceeds the maximum limit upto which stagnation increment is admissible, pay shall be fixed under this rule not exceeding the maximum of the time scale of pay of the higher post:
[G.O. Ms. No. 476, Personnel and Administrative Reforms (FR.Special) Department, dated 19th November 1990-with effect from 1st October 1978.]
Provided also that where a Government servant gets promotion or appointment to a higher post even before reaching the maximum of the time-scale of pay of the lower post and if the fixation arrived at under this rule (including five per cent benefit) exceeds the maximum of the time-scale of pay of the higher post, then, subject to the provisions contained in the fifth and sixth provisos above, pay shall be fixed by increasing the maximum of the time-scale of pay of the higher post by stages equivalent to the amount of last stage in that post:
[G.O. Ms. No. 292, Personnel and Administrative Reforms (FR.IV) Department, dated the 15th December 1998 - with effect from 1st June 1988.]
Provided also that where a Government servant is promoted or appointed to a higher post involving the
assumption of duties and responsibilities of greater importance than those attaching to the post held by him, option shall be given:
(i) for fixation of pay under this rule on the date of promotion or appointment, taking into account, the pay in the lower post immediately prior to promotion or appointment to the higher post without any further review on accrual of increment in the time-scale of pay of the lower post,
Or
(ii) for fixation of pay on the date of promotion or appointment to the higher post in the manner as provided in rule 22 (1) (a) (i) or rule 22 (1) (b) (i) and for re-fixation of pay under this rule on the date of accrual of next increment in the time-scale of pay of the lower post. Such option shall be exercised within a period of one month from the date of promotion or appointment. The option once exercised shall be final. If no such option is exercised within the said period of one month, the pay shall be fixed in the manner as provided in clause (i) above. If the pay is fixed in the manner as provided in clause (ii) above, next increment shall be allowed on completion of the required qualifying period of one year with effect from the date of re-fixation of pay.
[G.O. Ms. No. 830, Personnel and Administrative Reforms (F.R.III), dated 2nd September 1983 — With effect from 1st May 1981.]
Provided that if a Government servant has previously held substantively or officiated in—
(i) the same post, or
(ii) a permanent or temporary post on the same time-scale, or
(iii) a permanent post on an identical time-scale or a temporary post on an identical time- scale, such post being on the same time-scale as a permanent post then the initial pay shall not be less than the pay other than special pay, personal pay or emoluments classed as pay by Government under rule 9 (21) (a) (iii) which he drew on the last such occasion and he shall count the period during which he drew that pay on such last occasion and any previous occasions, for increment in the stage of the time-scale equivalent to that pay.
If, however, the pay last drawn by the Government servant in a temporary post has been inflated by the grant of premature increments, the pay which he would have drawn but for the grant of those increments shall, unless otherwise ordered by the authority competent to create the new post, be taken for the
purposes of the proviso to be, the pay which he last drew in the temporary post.
(G.O. Ms. No. 1744, Finance, dated 21st November 1969.) Explanation 1:- Where a Government servant is appointed or promoted to a higher post in his regular line while he is holding an intermediary post outside his regular line, the presumptive pay of the Government servant in the lower post which he would have drawn in his regular line but for his appointment on deputation or transfer of service to an intermediary post outside his regular line alone shall be taken into account for the purpose of fixation of his pay under this rule.
[G.O.Ms.No.434, Finance (F.R.I.), dated 2nd May 1975.]
Explanation 2:- Where a Government servant is appointed or promoted to a higher post in his regular line while he is holding an intermediary post outside his regular line and on which he is having a lien or service rights shall be allowed initial fixation of pay under Fundamental Rule 22 (a) or (b) according as the higher post carries duties and responsibilities higher than those attached to the intermediary post outside the regular line. For this purpose, his pay in the post outside the regular line shall be taken only where he has a lien or service rights in that post. Where a Government servant does not have lien or service rights in intermediary posts outside the regular line, his initial pay fixation shall be governed by F.R. 22-B as in Explanation-1.
[G.O. Ms. No. 956, Personnel and Administrative Reforms (F.R.I.), dated 30th August 1976 - with effect from 2nd May 1975.]
Explanation 3:- Omitted.
[G.O. Ms. No. 778, Personnel and Administrative Reforms (F.R.III) Department, dated 8th August 1986— with effect from 1st October 1984.]
Explanation 4:- Cases where the period of absence is treated as “non-duty” under rule 18, the sixth proviso to this rule shall not apply and the period of service prior to such “non-duty” shall not count for increment.
[G.O. Ms. No. 764, Personnel and Administrative Reforms (FR. III) Department, dated 31st July 1985— with effect from 31st July 1985.]
Junior Assistants of Tamil Nadu Ministerial Service, recruited to the same post in Tamil Nadu Ministerial Service, through the competitive examination held by the Tamil Nadu Public Service Commission during 1983 and 1986. The said Government Order is extracted hereunder:
GOVERNMENT OF TAMIL NADU
ABSTRACT
FUNDAMENTAL RULES - Pay - Typists, Personal Clerks and Junior Assistants appointed in Tamil Nadu Ministerial Service through Tamil Nadu Public Service Commission during 1993 and 1986 - Fixation of pay in relaxation of Ruling (6) under Fundamental Rule 22-B Orders - Issued.
PERSONNEL & ADMINISTRATIVE REFORMS (FR.I) DEPARTMENT
G.O.Ms.No.85 Dated: 20.02.1990 READ: G.O.Ms.No.399, Personnel and Administrative Reforms, dated 12.07.1988. ORDER:
In the Government Order read above, the Government have, as a special case, ordered for relaxation of Ruling (6) under Fundamental Rule 22-B in favour of those who were members of Tamil Nadu Ministerial Service and have been appointed to Tamil Nadu Secretariat Service in the same post they held prior ie. as Typist/Personal Clerks/Assistants respectively through the recruitments made by Tamil Nadu Public Service Commission during the years 1983 and 1986 to enable them to draw the pay last drawn in the, same post at Tamil Nadu Ministerial Service. As the said orders are not applicable to those who have been appointed to Tamil Nadu Ministerial Service by Tamil Nadu Public Service Commission recruitments during the same years viz. 1983 and 1986, it has been represented for the extension of the said concession to those recruited for Tamil Nadu Ministerial Service also.
of such of those who held the post of Typists/Personal Clerks/Junior Assistants of Tamil Nadu Ministerial Service and have been selected and appointed to the same category through the recruitments of Tamil Nadu Public Service Commission during the years 1983 and 1986 shall be the pay last drawn by them in the same post prior to their appointment.
3.In exercise of the powers conferred by Rules 5- A of FundamentaI Rules, the Governor of Tamil Nadu hereby relaxes the provision in Ruling (6) under Fundamental Rule 22-B, so as to enable the Typists/Personal Clerks and Junior Assistants of Tamil Nadu Ministerial Service recruited to the same post in Tamil Nadu Ministerial Service through the competitive examinations held by the Tamil Nadu Public Service Commission during 1983 and 1986 alone, for fixation of their pay at the same stage at which pay was drawn by them immediately prior to their appointment through the Tamil Nadu Public Service Commission. They shall be eligible to draw the next increment only after completion of one year of service from the date of appointment by the Tamil Nadu Public Service Commission.
(BY ORDER OF THE GOVERNOR)
S.Sivasubramanian, Secretary to Government.
"In the case a Government servant already in service in a post is appointed to another post through the Tamil Nadu Public Service Commission by direct recruitment, or when the mode of his appointment to the new post is by direct recruitment, the Government servant concerned should be allowed to draw the minimum of the time scale of pay or as provided in the service rules relating to such appointments and
fixation of pay under Fundamental Rule 22 or 22-B is not admissible."
(i) In Prem Chand Somchand Shah v. Union of India reported in (1991) 2 SCC 48, the Hon'ble Supreme Court in paragraph 8 held thus,
"8. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute in question."
(ii) In State of Karnataka v. N.Parameshwarappa reported in 2003 (12) SCC 192, the Hon'ble Supreme Court, at paragraph 8, held thus:
"8........ we do not find any reasonable justification to confine the relief to only such of the teachers who approached the court and having regard to the fact that relief related to the revision of scales of pay, every one of that class of teachers who approached would be entitled to the benefit, notwithstanding that they have not approached the court. We are in equal agreement with the Division Bench in denying the payment of interest at compounded rates which, in our view, cannot be justified at all on the facts and circumstances of the case wherein a serious and genuine doubt existed about the
applicability of the government order dated 30-3-1990, as raised in the proceedings."
(iii) In State of U.P. v. Dayanand Chakrawarty reported in 2013 (8) Scale 74 : (2013) 7 SCC 595, the Hon'ble Supreme Court held that there cannot be any discrimination in treating equally placed persons on same footing, for all purposes.
(iv) The Hon'ble Supreme Court in State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others reported in 2015 (1) SCC 347, wherein, the Hon'ble Apex Court dealt with the issue as to the entitlement of benefit of judgment in rem with an intention to benefit all similarly situated persons irrespective of whether they had approached the Court or not. It is held therein that when a particular set of employees is given relief by Court, all other identically situated persons should be treated alike by extending the same benefit, since not doing so would amount to discrimination and be violative of Article 14 of the Constitution of India.
GOVERNMENT OF TAMIL NADU
ABSTRACT
PUBLIC SERVICES - SPECIAL QUALIFYING EXAMINATION, 1995 - Personnel qualified in the examination - Conditions of service - Special Rules - Issued.
PERSONNEL & ADMINISTRATIVE REFORMS (P) DEPARTMENT
G.O.MS.NO.71 Dated: 7.4.2000 Read:-
ORDER:
In the Government Orders read above, the Government have ordered for conducting a Special Qualifying Examination by the Tamil Nadu Public Service Commission for bringing the temporary employees in the common categories of Junior Assistant/Typist and Steno-Typist into regular service. Accordingly, the Tamil Nadu Public Service Commission had conducted the Special Qualifying Examination (SSLC Standard) on 24.6.95 and allotted the successful candidates to the various departments for appointment.
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following rules.
(2) They shall apply to all candidates appointed through Special Qualifying Examination in 1995.
(a) “candidates appointed through Special Qualifying Examination in 1995” means Typist appointed to the Tamil Nadu Secretariat Service or Junior Assistant, Typist or Steno-Typist appointed to the Tamil Nadu Ministerial Service or to the Tamil Nadu Judicial Ministerial Service, as the case may be, through the Special Qualifying Examination conducted by the Tamil Nadu Public Service Commission in 1995;
(b) “General Rules” means the General Rules in Part II of the Tamil Nadu State and Subordinate Services rules; and
(c) “Special Rules” means the Special Rules for the Tamil Nadu Secretariat Service, the Tamil Nadu Ministerial Service or the Tamil Nadu-Judicial Ministerial Service, as the case may be.
these rules are repugnant to the corresponding provisions of the General Rules, Special Rules, Fundamental Rules, Tamil Nadu Leave Rules, 1933 of the Tamil Nadu Travelling Allowances Rules, the candidates appointed through the Special Qualifying Examination in 1995 shall, notwithstanding such repugnancy, be governed by these rules.
(b) Educational Qualification:- The candidates appointed through the Special Qualifying Examination in 1995 shall possess the educational qualifications prescribed in the Special Rules concerned.
(c) Technical Qualifications:- The candidates appointed through the Special Qualifying Examination in 1995 shall possess the technical qualifications prescribed in the Special Rules concerned.
Provided that a candidate appointed through the Special Qualifying Examination in 1995 and he does not possess the Technical qualifications prescribed in the Special Rules concerned shall acquire the technical qualifications prescribed in the Special Rules concerned within a period of two years from the date of issue of these rules, failing which, his services shall be terminated following the procedure laid down in General Rules for the Tamil Nadu State and Subordinate Services and the Special Rules concerned. 5. Commencement of Probation:- (1) A candidate who has been allotted through the Special Qualifying Examination in 1995 and appointed to the post of Typist in the Tamil Nadu Secretariat Service or Junior Assistant, Typist or Steno-Typist in the Tamil Nadu Ministerial Service or Tamil Nadu Judicial Ministerial Service shall commence his probation with effect from the 24th June 1995, if he was working temporarily in the said service on the said date:
Provided that if such candidate was not working in the said service on the said date, he shall commence his probation with effect from the date on which he was appointed temporarily in the said service subsequent to 24th June 1995 or with effect from the date of joining duty in the said service on allotment by the Tamil Nadu Public Service Commission.
(2) If any candidate has been allotted to a department other than the department in which he was previously working temporarily or to the same department and joined therein, but has commenced his probation from a date earlier than the date of joining
duty on allotment by the Tamil Nadu Public Service Commission as provided in sub-rule (1), such candidate shall not acquire any preferential right in the department in which he was previously working temporarily.
(3) The provisions contained in the above subrules (1) and (2) shall also be applicable to the candidate who has been allotted through Special Qualifying Examination in 1995 and appointed to the post of Typist in the Tamil Nadu Secretariat Service, or Junior Assistant, Typist or Steno-Typist in the Tamil Nadu Ministerial Service or in the Tamil Nadu Judicial Ministerial Service, even if he was not temporarily working in the said category service, provided the post held by a candidate before and after allotment by Tamil Nadu Public Service Commission carries identical scale of pay.
(4) In cases wherein a candidate is appointed to a post which carries higher scale of pay after allotment by Tamil Nadu Public Service Commission, he shall commence his probation only on the date of joining after allotment by the Tamil Nadu Public Service Commission in the said post.
(6) Probation:- (1) Every person who has been appointed through the Special Qualifying Examination in 1995, shall, from the date on which he commences probation as provided in sub-rules (1) (3) and (4) of rule 5, be on probation for a total period of two years on duty within a continuous period of three years.
(2) The past services rendered by the candidates in any category/service after the date of commencement of probation as provided in rule 5 shall count for probation in the category/service to which he was appointed after allotment by the Tamil Nadu Public Service Commission.
(8) Fixation of Pay:- (1) Every person appointed to the post of Junior , Assistant, Typist or StenoTypist, as the case may be, shall continue to draw the same pay drawn by him prior to. the date of his commencement of probation if he had been allotted to the same category in the same department where he had been previously working temporarily. The pay of a person allotted to the same category in a different department shall be fixed at the same stage in the time scale of pay applicable to tire post prior to such allotment.
(2) The pay last drawn prior to the commencement of probation allowed in sub-rule (1) shall also be made applicable to the person who was appointed in a different category/service after allotment by the Tamil Nadu Public Service Commission, provided the post he holds before and after allotment by the Tamil Nadu Public Service Commission carries identical scale of pay. However special pay allowed to the post of Typist shall not be taken into account for las, pay drawn in case he is appointed as untor Assistant on allotment by the Tamil Nadu Public Service Commission.
(3) In case where a person is appointed to a post which prior higher scale of pay after allotment by Tamil Nadu Public Service Commission, he shall draw the minimum scale of pay applicable to the said post;
Provided that the above fixation shall no, be applicable to a person who was ousted from such temporary appointment in a service for want of vacancy and was appointed in any department on allotment by the Tamil Nadu Public Service Commission. In such cases, the pay shall be fixed at the minimum of the time scale of pay applicable to the post to which he is appointed.
(4) The unavoidable breaks in services of a candidates appointed temporarily to the post of Junior Assistant, Typist or Steno-Typist, as the case may be, caused while on joining duty in a different department on allotment by the Tamil Nadu Public Service Commission shall be condoned.
(5) (i) The temporary services of Junior Assistant, Typist or Steno-Typist, as the case may be, prior to the date of commencement of probation shall count for increment in the time scale of pay, provided such services were continuous.
(ii) The provision contained in clause (i) shall also be applicable to a person who was appointed to a different category/service after allotment by the Tamil Nadu Public Service Commission.
prescribed as a qualification for declaration of completion of probation in a service, the candidate shall pass such test or undergo such training within two years from the date of issue of these Rules, failing which, his increments shall be stopped without cumulative effect. However if he fails to pass such test or undergo such training within four years from the date of issue of these Rules, his services shall be terminated following the procedure laid down in the General Rules for the Tamil Nadu State and Subordinate Services and the Special Rules concerned.
(2) If any candidate who has been appointed through the Special Qualifying Examination in 1995 does not possess an adequate knowledge of Tamil, he shall pass the second class Language Test in Tamil conducted by the Tamil Nadu Public Service Commission within two years from the date of issue of these Rules. If he fails to pass the said language Test within the said period of two years, his services shall be terminated following the procedure laid down in the General Rules for the Tamil Nadu State and Subordinate Services and the Special Rules concerned.
A.P.MUTHUSWAMY CHIEF SECRETARY TO GOVERNMENT
GOVERNMENT OF TAMIL NADU
ABSTRACT PUBLIC SERVICES - SPECIAL QUALIFYING EXAMINATION conducted by Tamil Nadu Public Service Commission in 1995 for temporary Government Servants in common categories of Junior Assistants/Typists and StenoTypits - Writ Petitions filed by unqualified candidates who are still continuing in service based on interim orders passed by High Court, Madras - Orders of High Court, Madras for regularization of their services - Implementation of Court orders - Orders - Issued.
-----------------------------------------------------PERSONNEL & ADMINISTRATIVE REFORMS (P) DEPARTMENT G.O.MS.NO.124 Dated: 12.09.2009 Read:1. G.O.Ms.No.433, Personnel and Administrative Reforms (PC) Department, Dated 14.12.1993.
W.P.No.18339 of 2008.
ORDER:
In the Government Order 1st read above, orders were issued for conducting a Special Qualifying Examination for all the temporary Junior Assistants/Typists and Steno-typists who were recruited through Employment Exchanges to the posts which are under the purview of Tamil Nadu Public Services Commission since 1986 and subsequently ousted from service and those, who were appointed on or before 15.05.1991 and continued in service irrespective of the length of service put in by them. Accordingly, a Special Qualifying Examination was conducted by the Tamil Nadu Public Service Commission in the year 1995. In the Government Order 2nd read above, orders were issued framing Special Rules for those qualified in the above mentioned Special Qualifying Examination conducted by the Tamil Nadu Public Service Commission in 1995. Consequently, the services of all the temporary Junior Assistants/Typists and Steno-Typists who were qualified in the above examination were regularised.
"In the light of the above legal pronouncements and also in view of the policy decision taken by the State in G.O.Ms.No.22, Personnel & Administrative Reforms Department, dated 28.02.2006 and considering the fact that the State itself had implemented the earlier orders of the Tribunal in identical situations and also the fact that under Rule 48, they have necessary power to grant relaxation and further the fact that the individuals have entered service on
being sponsored by Employment Exchange and have put in more than two decades of service, we feel that it is a fit case that the order of the Tribunal challenged in W.P. No. 6331 to 6336 of 2004 must be affirmed though not for the reasons indicated therein. Accordingly, W.P. Nos. 6331 to 6336 of 2004 will stand dismissed. The other writ petitions being W.P. No. 15177 of 2001 and W.P. Nos. 12031 and 23887 of 2004 will stand allowed. The State Government is directed to implement the order of the Tribunal within a period of eight weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed."
(BY ORDER OF THE GOVERNOR)
K.N.VENKATARAMANAN SECRETARY TO GOVERNMENT."
In the Special Qualifying Examination conducted in 1995, some of them were successful and their services were regularised. Some of them did not. They moved the Tamil Nadu State Administrative Tribunal, Madras and obtained interim orders. Ultimately, the Tribunal, by its order, in O.A.Nos.423 to 427 and 1112 of 1997, dated 11.07.2002, directed the services of the petitioners therein to be regularised, from the date of their initial appointment and that they would be entitled to service benefits only.
"6. The fact remains that the appellant was appointed as Steno - Typist in the Tamil Nadu Judicial Ministerial Service with effect from 19.01.1987 and she was regularised in the post. While in service, she had applied for the post of Steno-typist by appearing in Group IV Examination. It is not in dispute that she was relieved from the Judicial Department with effect from 06.9.1994 afternoon and she joined in Transport Department on 07.9.1994 and hence, it cannot be said that she resigned her service in the Judicial Department. It is to be noted that both the posts carry same scale of pay. The appellant had applied for the post through proper channel and that too, after getting No Objection Certificate from the Judicial Ministerial Service. Further, in the relieving order dated 05.9.1994 issued by the Chief Judicial Magistrate, Vellore, reference has been cited only as
application of the appellant and nowhere in the records, it is mentioned as resignation by the appellant. Therefore, it is clear that she was appointed to an identical post with identical scale of pay and as such, it cannot be said that she resigned her earlier service so as to disentitle the benefits of past service rendered by her.
"Provided that if a Government servant has previously held substantively or officiated in -
(i) the same post, or
(ii) a permanent or temporary post on the same time-scale, or
(iii)a permanent post on an identical time-scale or a temporary post on an identical timescale, such post being same time-scale as a permanent post then the initial pay shall not be less than the pay other than special pay, personal pay or emoluments classed as pay by Government under rule 9(21)(a)(iii) which he drew on the last such occasion and he shall count the period during which he drew that pay on such last occasion and any previous occasions, for increment in the stage of time-scale equivalent to that pay."
circumstances of the case, we set aside the order dated 20.8.1996. The respondents are directed to reconsider the claim of the appellant and pass appropriate orders taking into consideration her past services in the Judicial Department and also in the light of the exception to F.R. 22-B and G.O. Ms. No. 85 Personnel and Administrative Reforms Department dated 20.02.1990.
GOVERNMENT OF TAMIL NADU
ABSTRACT - - Establishment Transport Department Tmt.G.D.Rajeswari, Steno-typist Grade.II, Office of the Transport Commissioner, Chennai - Implementation of the Orders of Hon'ble High Court of Madras in W.A.No. 928/2009 dated 30.8.2010 - Orders - Issued.
ORDER:
Tmt.G.D.Rajeswari, Steno Typist had filed O.A.No.6021/97 against the order of the Transport Commissioner, Chennai in Memo.No.89874/R2/94, dated 20.08.1996 before the Tamilnadu Administrative Tribunal, Madras for not having sanctioned the last pay drawn in Judicial Department. Consequent on the abolition of Tamil Nadu Administrative Tribunal, the matter was transferred to the Hon'ble High Court of Madras in its order first read above have dismissed the W.P.No.26605/2006 dated 17.03.2009 on the ground that the petitioner is not eligible for her previous services to be counted for pay fixation.
the light of the orders of the Division Bench of the Honourable High Court of Madras in Writ Appeal No.928/2009, dated 30-08-2010, have decided to implement the orders of the Division Bench in Writ Appeal No.928/2009, dated 30.8.2010, taking into consideration of her past services rendered in the Judicial Department in the light of the exception to Fundamental Rule 22-B and G.O.(Ms.) No. 85, Personnel and Administrative Reforms Department, dated 20.02.1990, subject to outcome of the Special Leave Petition to be filled before the Supreme Court of India.
(BY ORDER OF THE GOVERNOR)
APURVA VARMA PRINCIPAL SECRETARY TO GOVERNMENT."
Office of the Deputy Registrar (Public Distribution System), or no sufficient candidate was available with the Tamil Nadu Public Service Commission, cannot be put against the respondent, for denial of pay fixation.
30 Though the appellants have contended that had the respondent been successful in the competitive examination conducted earlier, he would have been selected during the period between 27.09.1989 and 23.08.1994, the appellants have not given the particulars of any such examination conducted by TNPSC, during the abovesaid period. That apart, the contention that he was unsuccessful in the competitive examination conducted earlier, is not substantiated.
"15. In service jurisprudence the expressions “pay” and “pay scale” are conceptually different connotations. Pay is essentially a consideration for the services rendered by an employee and is the remuneration which is payable to him. Remuneration is the recurring payment for services rendered during the tenure of employment. Pay and salary are necessarily not interchangeable concepts. Their meanings vary depending upon the provisions providing for them.
“9. (21)(a) Pay means the amount drawn monthly by a government servant as—
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a
cadre, and
(ii) overseas pay, special pay and personal pay, and (iii) any other emoluments which may be specially classed as pay by the President.”
cadre, (iv) minimum educational/technical qualifications required, (v) avenue of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, and (x) the employer's capacity to pay etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause unavoidable ripples in other cadres as well. (See Secy., Finance Deptt. v. W.B. Registration Service Assn. [1993 Supp (1) SCC 153 : 1993 SCC (L&S) 157 : (1993) 24 ATC 403 : AIR 1992 SC 1203] )"
"13. “Increment” has a definite concept in service law jurisprudence. It is an increase or addition on a fixed scale; it is a regular increase in salary on such a scale. As noted by this Court in SBI v. Central Govt. Labour Court [(1972) 3 SCC 595], under the labour and industrial laws, an increment is when in a timescale of pay an employee advances from the lower point of scale to the higher by periodic additions. In other words, it is addition in the same scale and not to a higher scale. An increment is an incidence of employment and an employee gets an increment by working the full year and drawing full salary."
"An increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by Government or by any authority to whom Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments."
(a) All duty in a post on a time-scale counts for increments in that time-scale:
Provided that the increments of all Government servants shall be so advanced as to fall due on the commencement of the quarter concerned, that is advanced to 1st January for all those drawing increments between 2nd January and 31st March, or 1st April, 1st July or 1st October, as the case may be:
Provided further that for the purpose of arriving at the date of next increment in that timescale, the total of all such periods as do not count for increment in that time-scale shall be added to the normal date arrived at after advancing the date of increment to the first of the quarter.
In cases where the punishment of stoppage of increment has been imposed with cumulative effect, the benefit of advancing the date of increment to the first of the quarter shall stand withdrawn permanently and that all future increments shall be given effect to only from the date of actual accrual.
The amendment hereby made shall be deemed to have come into force on 1st January 1974.
"11. The Government service is not a contract. It
is a status recognised by Constitution of India and governed by the Rules made by the President under the proviso to Article 309 of the Constitution of India. These have force of law. Under these Service Rules, consideration for service rendered by a Government servant is the remuneration payable to him commonly known as 'pay' during the tenure of employment. Again, the Rules or administrative instructions govern the pay paid to a Government servant periodically; once in a calendar month. The pay of a Government servant may consists of substantial pay, special pay, additional pay, personal pay, and presumptive pay. The pay of a Government servant does not remain static and Government periodically gives an increase in pay after completion of one year of service, which in service parlance referred to as "increment". The increments as
we presently see are generally given annually in a routine manner to officers with good conduct unless such increments are withheld as a measure of punishment or linked with efficiency in which event after certain period of service the Government servant could not be given any increment on the ground of "efficiency bar". The grant of increment depends on and is linked to the efficiency of a Government servant to be of utility in the continued service.
........ 16. As per F.R. 17, extracted hereinabove, a Government servant shall begin to draw the pay and allowances attached to his post with effect from the date when he assumes the duties of that post until he ceases to discharge those duties. "Pay" as defined in F.R.9(21)(a) means, the amount drawn monthly by a Government servant which also includes the increment given at an anterior date. Therefore, after retirement, a person will not be entitled to any pay including the increment that may be due from the posterior date. F.R.22 regulates the initial pay of a Government servant who is appointed to a post in timescale and F.R.24 and F.R.26 regulate the sanction of increment to a Government servant, who is on duty. A reading of various Fundamental Rules extracted hereinabove would show that a person appointed as a Government servant is entitled to pay in time- scale of pay. He is also entitled to draw the increment as per time-scale of pay as a matter of course as long as such Government servant discharges duties of the post and such Government servant shall not be entitled to draw the pay and allowances attached to the post as soon as he ceases to discharge those duties. In other words, as per F.R. 17 read with F.Rs.24 and 26 annual increment is given to a Government servant to enable him to discharge duty and draw pay and allowances attached to the post. If such Government servant ceases to discharge duties by any reason say, by reason of attainment of age of superannuation, such Government servant will not be entitled to draw pay and allowances. As a necessary corollary, such employee would not be entitled to any increment if it falls due after the date of retirement, be it on the next day of retirement or sometime thereafter."
Principles laid down in the above judgment, can be made applicable to the case on hand.
in Registration Department, cannot be placed in the minimum scale of pay in the same post, after induction into Rural Development and Panchayat Raj Department, Government of Tamil Nadu, after qualifying in the Tamil Nadu Public Service Commission, more so, when his services are without any break.
+1cc to Mr.Ravi Shanmugam, Advocate, S.R.No.82783 +1cc to the Government Pleader, S.R.No.83723
W.A.No.1832 of 2018 BS(CO) CS/08/01/2019
2 issues framed by the court
Was a temporary Steno-Typist appointed through TNPSC to the same post in another department without a service break entitled to protection of pay and earned increments?
Could pay protection be denied because comparable concessions covered other recruitment years or because other employees might seek similar benefits?
Colour shows how this judgement treated each authority
Prem Chand Somchand Shah v. Union of IndiaRelied on¶139
Prem Chand Somchand Shah v. Union of India reported in (1991) 2 SCC 48 · Who else cites this
State of Karnataka v. N.ParameshwarappaRelied on¶141
State of Karnataka v. N.Parameshwarappa reported in 2003 (12) SCC 192 · Who else cites this
State of U.P. v. Dayanand ChakrawartyRelied on¶145
State of U.P. v. Dayanand Chakrawarty reported in 2013 (8) Scale 74 : (2013) 7 SCC 595 · Who else cites this
State of Uttar Pradesh and others v. Arvind Kumar Srivastava and othersRelied on¶146
State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others reported in 2015 (1) SCC 347 · Who else cites this
O.A.Nos.423 to 427 and 1112 of 1997, dated 11.07.2002Referred¶229
G.D.Rajeswari v. The Commissioner, Transport Department, ChennaiApplied¶231
W.A.No.928 of 2009, dated 30.08.2010 [G.D.Rajeswari v. The Commissioner, Transport Department, Chennai]
State Bank of India and others v. K.P.Subbiah and othersRelied on¶272
State Bank of India and others v. K.P.Subbiah and others reported in 2003 (11) SCC 646 · Who else cites this
State of Punjab v. Jaswant Singh KanwarRelied on¶289
State of Punjab v. Jaswant Singh Kanwar reported in 2014 (13) SCC 622 · Who else cites this
Principal Accountant General v. C.Subba RaoApplied¶301
Principal Accountant General v. C.Subba Rao reported in 2005 (2) ALD 1 = 2005 (2) ALT 25
6 provisions across 2 enactments
The Principal Secretary to Government, Rural Development and Panchayat Raj (E7) Department
The Commissioner of Rural Development & Panchayat Raj
The Collector, The Nilgris District
B.Suresh
S.MANIKUMAR
SUBRAMONIUM PRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
