The Secretary to Government Vs T.Santhi

The respondents/writ petitioners have filed the above writ petitions seeking direction to the appellants to re-fix their seniority in the cadre of Assistant, based on the combined inter-se seniority, in the cadre of Junior Assistant/Typist/Steno Typist, as per Rule 35(a) of the Tamil Nau State and Subordinate Service Rules and consequently promote them to the post of Assistant and Superintendent retrospectively with effect from the date on which their juniors in the combined seniority was promoted, with all monetary and consequential service benefits.

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The learned Single Judge, by relying upon the decision of this court in an identical issue, concerning the application of Rule 35(a), Rule 35(aa), Rule

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35(b) of the General Rules, in W.P.(MD) No.21358 to 21361 of 2016 (N.

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Vedha and others Vs. The Government of Tamil Nadu represented by the Principal Secretary. Rural Development and Panchayat Raj Department and others), allowed the writ petitions.

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Challenging the said order, the present writ appeals have been filed. Further, W.P.No.28803 of 2016 has been filed to quash the impugned order dated 20.05.2016 passed by the authorities concerned and consequently, direct the respondents concerned to re-fix the seniority of the petitioner in the cadre of Assistant, based on the combined Inter-se-seniority, in the cadre of Junior Assistant/Typist/Steno Typist, as per Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules and consequently promote her to the post of Assistant, Superintendent and Research Assistant retrospectively.

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The learned Additional Advocate General appearing for the appellants submitted that, as against the orders passed in the above said W.P(MD) No.21358 to 21361 of 2016, dated 31.10.2017, which was relied on by the learned Judge in the impugned order, the government had filed W.A.(MD) Nos.339 to 342 of 2018.

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The learned Additional Advocate General further submitted above said W.A.(MD) Nos.339 to 342 of 2018 were allowed by a Division Bench of Madurai Bench of this Court, vide common judgment dated 17.10.2019 and consequently, the said writ petitions were dismissed. Therefore, on the same 6 of 20

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line, he seeks to allow the present writ appeals and consequently, dismiss the writ petition in W.P.No.28803 of 2016.

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In the said W.A.(MD) No.339 to 342 of 2018, the Division Bench observed as follows.

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6.The following facts would be relevant to decide the controversy raised in these appeals:

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The Government of Tamilnadu issued G.O.Ms.No.224, Personnel and Administrative Reforms Department dated 08.03.1984, fixing the ratio 4:1 between the Junior Assistant and Typist/Steno Typist in the matter of promotion as Assistant. This Government order was followed by all the departments but was made inapplicable to the Rural Development and Panchayat Raj Department, in which, the first respondent in these appeals are working. By G.O.(Ms) No.237, Personnel and Administrative Reforms (Pers-b) Department dated 17.07.1992, amendments were made to the Tamil Nadu Ministerial Service Rules, which made the position clear that the proportion 4:1 prescribed in the third proviso in Rule 5 shall not be applicable in respect of appellants Panchayat Development Department. This proviso was inserted as the fifth proviso to Rule 5. Therefore, the post of Steno-Typist was separated from Typist and a separate category of Steno-Typist was formed and a higher scale of pay equivalent to that of Assistant viz., Rs.1200-2040 was granted. The scale of pay of the first respondent in these appeals was already on par with the scale of Assistant from 01.08.1992 in terms of G.O.(Ms) No.256, Personnel and Administrative (Per.B) Department dated 01.08.1992. The Government by G.O.Ms.No.417

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Personnel and Administrative Reforms Department dated 01.12.1993, issued ban on appointment of Steno Typists as Assistants and this ban remained in force for 8 years and was lifted in the year 2001 by G.O.Ms.No. 34 Personnel and Administrative Reforms Department dated 21.02.2001. The said Government Order provides for conversion of StenoTypist Grade III as Assistant, provided they ought to have worked as Steno Typist Grade III for 8 years and a panel of Steno Typist Grade III, eligible for conversion on transfer as Assistant as on 15.03.2001 was ordered to be drawn to fill up the 5% estimated vacancies in the post of Assistant with Steno Typist Grade III. Subsequently, the Government by G.O.Ms.No.122 Personnel and Administrative Reforms Department dated 02.09.2005, reduced the period of 8 years to 5 years. The first respondent in these Writ Appeals/Writ Petitioners had submitted representation for fixing their seniority in the cadre of Assistant by reckoning the entire length of service as Steno-Typist Grade III. Stating that the said representation has not been disposed of, they approached this Court by filing W.P.(MD) No.4652 of 2016. The said writ petition was disposed of by an order dated 08.03.2016, directing the third appellant herein to consider the representation. The third appellant rejected their request by order dated 18.08.2016.

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7.The question to be considered is as to whether the first respondent in these appeals are entitled to reckon the five years service as Steno-Typist Grade III for reckoning their seniority in the post of Assistant.

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8.The learned Single Judge proceeded on the basis that the first respondent in these appeals were transferred

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from the post of Steno-Typist Grade III to that of Assistant and this is a transfer simpliciter and the scales of pay were identical and it is not an appointment by transfer. To examine the correctness of the said finding rendered by the learned Single Bench, we need to peruse the Government Order in G.O.Ms.No.34 Personnel and Administrative Reforms Department dated 21.02.2001. Admittedly, the said order has not been challenged. At this juncture, it would be relevant to take note of the following paragraphs in G.O.Ms.No. 34 dated 21.02.2001:

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,e;epiyapy;> 5.8.2000 md;W eilbgw;w 55-Mk; Mz;L jkpH;ehL muR mYtyh;“

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xd;wpa khehl;oy; mikr;Rgzpahsh;fspy; Xh; m';fkhf css; RUf;bfGj;Jj; jl;lr;rh;fSf;F jil bra;ag;gl;Ls;s cjtpahsh; gjtpia kPz;Lk; tH';fpl ntz;Lk; vd;w jkpH;ehL muR mYtyh; xd;wpaj;jpd; Bfhhpf;ifia Vw;W khz;g[kpF Kjyikr;rh; mth;fs;> RUf;bfGj;Jj; jl;lr;rhf; s; cjtpahsh;fshf gjtp cah;t[ bgw ,Ue;Jte;j“ jil cldoahf ePf;fg;gLfpwJ vd;W mwptpj;jjhh;.”

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3.khz;g[kpF Kjyikr;rhpd; mwptpg;gpw;fpzq;f fPH;f;fz;lthW Miz btspaplg;gLfpwJ.

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(i); jl;lr;rh; epiy III-,y; gzpahw;Wgth;fSf;F> cjtpahsuhf gzpepakdk; bgWtjw;F tpjpf;fg;gl;oUe;j jil 5.8.2000 Kjy; ePf;fg;gLfpwJ.

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(ii)JkpH;ejhL mikr;Rg; gzpapy;> ,sepiy cjtpahsh; gjtpapypUe;J> cjtpahsuhf gjtp cah;t[ bgw> Rkhh; gj;jhz;Lfs; MfpwJ. Vdnt> RUf;bfGj;Jj; jl;lr;rh; epiy III gjtpapy; gzpahw;Wgth;fSf;F cjtpahsuhfg; gzpepakdk; bgw> 1.8.92 Kjy; jil tpjpf;fg;gl;Ls;sjhy;> ,e;j ,ilg;gl;l vl;L Mz;L fhyg; gzpapidna> RUf;bfGj;Jj; jl;lr;rh; gjtpapy; jFjp fhykhf eph;zapj;J> cjtpahsuhf gzpakh;j;jf; fUJjy; ntz;Lk;.

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(iii)RUf;bfGj;Jj; jl;lr;rh; epiy III-,d; Cjpa tpfpjKk;> cjtpahsh; Cjpa tpfpjKk; xd;whf cs;sjhy;> gzpkhw;w Kiw K:yk; gzp epakdk; mspf;ff; (By Transfer) fUJjy; ntz;Lk;.

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(iv)cjtpahsh; njh;e;jg; bgah; gl;oay; jahhpf;f eph;za ehs; xt;bthU Mz;Lk; khh;r; jpq;fs; 15Mk; ehshFk;. vdnt> 2001-2002Mk;

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Mz;ow;F 13.3.2001-I eph;za ehshff; bfhz;l gl;oayhz;oy; nrh;j;J gzpakh;jf; fUJjy; ntz;Lk;.

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(vv),t;thW cjtpahsuhfg; gzpakh;j;jf; fUJKd;dh;> jw;nghJ RUf;bfGj;Jj; jl;lr;rh;

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(vv),t;thW cjtpahsuhfg; gzpakh;j;jf; fUJKd;dh;> jw;nghJ RUf;bfGj;Jj; jl;lr;rh; epiy III-I gjtpapy; gzpahw;wpf; bfhz;oUf;Fk; egh;fsplk; RUf;bfGj;Jj; jl;lr;rh; gjtpapnyna bjhlh;e;J RUf;bfGj;Jj; jl;lr;rh; epiy II-Mf gjtp cah;t[ bgw;W gzpahw;w tpUk;g[fpwhh;fsh my;yJ cjtpahsh;fshfg; gzpahw;w tpUk;g[fpwhh;fsh vd; tpUg;gj; (option) bjhptpid me;je;j epiyapy;> ve;jtpjkhd gjtp cah;t[ Kd;dh; epfGnkh me;ehspy; Kothd tpUg;gk; bgw;W> mjw;nfw;g gzpakh;j;jf; fUJjy; ntz;Lk;.

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(vi)RUf;bfGj;Jj; jl;lr;rh;fSf;F ,sepiy cjtpahsh; kw;Wk; jl;lr;rh; nghd;W cjtpahshfshf gjtp cah;t[ Kiw K:yk; gjtp 11/27 http://www.judis.nic.in W.A.(MD) Nos.339 to 342 of 2018 cah;t[ mspf;ff; fUj ,ayhJ. Vbddpy;> RUf;bfGj;Jj; jl;lr;rh; -III Mk; epiy Cjpa tpfpjKk;> xd;whf ,Ug;gjhy;> bghJ tpjp 4-,d;go> gzpkhWjy; K:ynk (By Transfer) gzpakh;j;j fUj ,aYk;. vdnt> ,t;thW xj;j Cjpaj;jpy; gzpahw;wptUk; RUf;bfGj;Jj; jl;lr;rh;fisa[k; ,sepiy cjtpahsh; kw;Wk; jl;lr;rh;fSld; nrh;j;J cjtpahsh;fshf gjtp cah;t[ mspf;ff; fUJtJ Kiwahf mikahJ. Vdnt> xU fhyp gzpapl kjpg;gPl;L (estimate of vacancy) Mz;oy; cjtpahsh; gjtpapy;> xU Jiwapy; Vw;gLk; fhyp gzpaplq;fspy; 5 tpGf;fhL mstpw;F RUf;bfGj;Jj; jl;lr;rh;fSf;F cjtpahsh;fshf gzpkhw;wk; mspf;ff; fUJjy; ntz;Lk;.”

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9.Sub para (ii) in para 3 clearly states that the period of 8 years service as Steno-Typist Grade III is considered as qualifying service. The stipulation in sub-para (vi) of the Government Order makes the position much clearer as there is a fixed percentage of persons, who can be permitted to be accommodated in the post of Assistant, which is 5% of the estimated vacancies. By G.O.Ms.No.122 Personnel and Administrative Reforms Department dated 02.09.2005, the initial stipulation of 8 years as qualifying service was reduced to 5 years and the third appellant in his proceedings dated 18.08.2016, while rejecting the representation of the first respondent in the appeals has mentioned about the qualification required to be possessed

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“murhiz (epiy) vz;.34> gzpahsh; kw;Wk; eph;thf rPh;jpUj;j Jiw ehs;& 21.02.2001-

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by the incumbent to be eligible for appointment on transfer. At this juncture, the following portion of the proceedings of the third appellant would be relevant to be noted: “murhiz (epiy) vz;.34> gzpahsh; kw;Wk; eph;thf rPh;jpUj;j Jiw ehs;& 21.02.2001d;go> RUf;bfGj;J jl;lr;rh; epiy-3y; gzpahw;Wgth;fSf;F> cjtpahsh;fshf gzp epakdk; bgWtjw;F tpjpf;fg;gl;oUe;j jil 05.08.2000 Kjy; ePf;fg;gl;L> RUf;bfGj;J jl;lr;rh; epiy-3 gjtpapy; gzpahw;Wgth;fSf;F cjtpahsuhfg; gzp epakdk; bgw> jil tpjpf;fg;gl;l 8 Mz;L fhyg; gzpapdina RUf;bfGj;J jl;lr;rh; gjtpapy; jFjp – fhykhf eph;zapj;J 2001-02k; Mz;ow;F 15.03.2001 eph;za ehshf bfhz;l gl;oay; Mz;oy; nrh;j;J gzpakh;j;jg;gl ntz;Lk; vdt[k;> xU fhypg;gzpapl kjpg;gPl;L (Estimate of Vacancy) Mz;oy; (Panal Year) cjtpahsh; 13/27 http://www.judis.nic.in W.A.(MD) Nos.339 to 342 of 2018 gjtpapy; Vw;gLk; fhypg;gzpaplq;fspy; 5 rjtPjk; mstpw;F RUf;bfGj;J jl;lr;rh;fSf;F cjtpahsh;fshf gzp khw;wk; mspf;fg;gl ntz;Lk; vdt[k; Fwpg;gplg;gl;Ls;sJ.”

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Therefore, the first respondent in these writ appeals cannot contend that the period of 8/5 years is not a qualifying service.

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10.The next aspect to be considered is as to whether the first respondent in these appeals can rely upon Rule 35(a) of the Rules. The learned counsel appearing for the first respondent in these appeals has drawn the attention of this Court to the letter dated 22.08.2003 of the Deputy Secretary to Government, Personnel Administrative Reforms (B) Department addressed to all Heads of Department and District Collectors. By referring to the said Government Letter it is submitted that there is a specific reference to Rule 35(a) of the Rules, which has to be applied for fixing seniority in respect of Assistants, who have been transferred from the post of Steno-Typist Grade

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III. Similarly, the learned counsel referred to another Government Letter dated 25.03.2008 of the Special Commissioner and Secretary to Government, Personnel Administrative Reforms (B) Department addressed to all Heads of Department and District Collectors and submitted that 1:4 ratio is to be made applicable and Rule 35(a) has to be applied to the case of the first respondent in these appeals.

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11.This submission is not acceptable for the reason that the ratio is not applicable to appellants Panchayat Development Department and in terms of G.O.(Ms) No.237 Personnel and Administrative Reforms (Pers.b) Department dated 17.07.1992, the Tamil Nadu Ministerial Service Rules have been amended and the fifth proviso to Rule 5 has been added and the ratio prescribed in the third proviso has been held as not applicable in respect of appointment in Panchayat Development Department. If such is the position, the question of referring to the ratio or to Rule 35(a) of the Rules does not arise.

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12.It was strenuously contended by the learned counsel appearing for the first respondent in these appeals that the first respondent in these writ appeals were transferred as Assistants from the post of Steno Typists Grade III and both posts had the same scale of pay.

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13.To examine the correctness of the said submission, we may refer to the Tamil Nadu Ministerial Service Rules and in particular Rule 9, which deals with transfers between cadres. Sub Rule (f) of Rule 9 would be of relevance to the case on hand, which reads as follows:

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“(f) Five percent of the estimated vacancies, in the category of Assistant in a Department, shall be filled up by transfer from the category of Steno-typist Grade – III, who has put in not less than eight years of service and opts for transfer as Assistant as on the 15th March of the year in which the selection is made and the option so exercised is final.

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Provided that on and from the 2nd September 2005, Steno-typist Grade-III who has put in not less than five years of service shall be considered for appointment as Assistant by transfer.”

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14.In terms of the above Rule, 5% of the estimated vacancies in the cadre of Assistant in a department shall be filled by transfer from the cadre Steno Typists Grade III, who have put in not less than 8 years service and opts for transfer as Assistant as on the 15th March of the year in which the selection is made and the option so exercised. Proviso to sub-rule (f) of Rule 9 states that on and from 2nd September, 2005, the Steno-Typist Grade – III, who has to put in not less than five years of service shall be considered for appointment as Assistant by transfer.

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15.We are to consider as to what would mean by appointment by transfer. This aspect has been lucidly explained in the decision of the Hon'ble Apex Court in Palure Bhaskar Rao v. P.Ramaseshaiah [(2017) 5 SCC 783] , wherein it has been held that Transfer and recruitment by transfer are entirely two different concepts. It was further pointed out that if it is a transfer simpliciter it conveys a different meaning and if it is a recruitment by transfer it is a mode of selection/recruitment to the service.

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It would be beneficial to refer to the following paragraphs in the said judgment:

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14.Transfer and recruitment by transfer are entirely two different concepts. No doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class. Any other transfer both intra-category and inter-category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another. If it is a transfer simpliciter it conveys a different meaning and if it is a recruitment by transfer, as we have clarified above conveys a different concept altogether. The latter is a mode of selection/recruitment to a service.

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15.Transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. It is a method of recruitment to a service, in the instant case to a different category in the same service initially and thereafter to a different service altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from

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what would have been the normal course had he continued in the parent service. Thus the recruitment by transfer terminates the lien of an employee in the parent cadre/service whereas transfer simpliciter to a similar post in the same cadre results only in change of place of employment and therefore there is no termination of lien, (see V. Jagannadha Rao v. State of A.P. [(2001) 10 SCC 401] and B. Thirumal v. Ananda Sivakumar [(2014) 16 SCC 593] ).”

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16.Rule 9 of the Rules clearly says it is an appointment by transfer, in other words, recruitment by transfer, which is one of the mode of appointment. The other mode would be by promotion from Junior Assistant. One more aspect, which makes things clearer is stipulation of 5 years of service as Steno-Typist Grade – III. This is the qualifying service for Steno-Typist Grade III to opt for appointment by transfer to the post of Assistant. The parity in the scale of pay between the Steno-Typist Grade III and Assistant is not a matter to be the basis for determining the seniority in the light of the specific Rule which provides for a minimum qualifying service, which was initially 8 years and subsequently reduced to 5 years. Therefore, the contention of the first respondent in these Writ Appeals that the transfer of the respondents from the post of StenoTypist Grade III to Assistant is transfer simpliciter is incorrect and not tenable.

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17.The learned counsel appearing for the first respondent in these appeals referred to various inter se seniorities which were drawn and those orders had been set aside by the orders, which were impugned in the Writ

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Petitions. The arguments of the learned counsel appearing for the first respondent in these appeals is based on Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules. The said Rule will apply in cases where seniority of a person in a service to be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, subject to the rule of reservation where it applies and the date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority. In our considered view, Rule 35(a) has absolutely no application to the case of the first respondent in these appeals and the method of recruitment is by transfer and therefore, Rule 35(a) of the Rules cannot be app lied.Further, the position is made clear if we peruse the Government Order in G.O.(Ms) No.417 Personnel and Administrative Reforms (Per.B) Department dated 01.12.1993, wherein it has been stated as follows:

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“Consequent on the splitting of the category, a separate line of promotion has been provided for Steno-Typists in the Government Order fourth read above. A steno-typist in the Tamilnadu Ministerial Service has initially to be appointed as Stenotypist Grade III which post carried the scale of pay identical to that of Assistant in the Tamilnadu Ministerial Service and he is eligible for promotion and as steno-typist Grade II and Grade I as per the above order dated 19.8.92. In Government letter fifth read above, it has also been clarified that stenotypists, Grade III are not to be considered for appointment to the post of Assistant along with Typist and steno-typists stand excluded for promotion as Assistant in the Tamilnadu Ministerial Service with effect from 1.8.1992. Typists are however, eligible for

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promotion as Assistants.”

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18.As pointed out by the learned counsel appearing for the second respondent in W.A.(MD) Nos.348 to 342 of 2018 that the position becomes further clear if we peruse G.O.Ms.No.122 Personnel and Administrative Reforms (B) Department dated 02.09.2005, by which the service qualification of the Steno-Typist Grade III for appointment as Assistant was reduced from 8 years to five years. In the said Government Order, the representation given by the Steno Typist Association has been extracted in paragraph 2 of the Government Order, wherein, apart from praying for reduction in service qualification, other reliefs were sought for. Thus, the Tamil Nadu Typists and Stenographers Association had clearly understood that the period of qualifying service, either it is 8 years or 5 years is a qualifying service.

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19.We had perused the promotion order issued by the then District Collector, Pudukottai District dated 19.12.2011 and we find that promotion was granted by applying the ratio 4:1, which has been held to be not applicable as early as on 17.07.1992 in G.O.(Ms) No.237 Personnel and Administrative Reforms (Pers.b) Department dated 17.07.1992. Therefore, the drawal of seniority list done by the District Collector is wholly erroneous and against the Rules.

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20.The learned Special Government Pleader appearing for the appellants is right in his submission that Rule 35(a) will have no application to the case of the first respondent in these appeals as it deals with the normal

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method of recruitment to the service and when there are two modes available, the seniority shall be determined with reference to the date he was appointed to the service.

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21.Similarly, Rule 35(b) will also have no application as it deals with transfer of person from one class or category to other class or category carrying the same scale of pay. This Rule would not have application since 5 years service as Steno-Typist is the minimum qualification for appointment as Assistant. Therefore, the first respondent cannot be heard to say that the qualifying service also should be reckoned for the purpose of determining their seniority in the post of Assistant.

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22.Thus, for all the above reasons, we are of the clear view that the order and direction issued in W.P.(MD) Nos.21358 to 21361 of 2016, dated 31.10.2017, is liable to be set aside. Accordingly, the Writ Appeals are allowed and the common order dated 31.10.2017 made in W.P.(MD) Nos.21358 to 21361 of 2016 is set aside and consequently, the Writ Petitions are dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.

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In the light of the ratio laid down by the Division Bench of this court in W.A.No(MD) No.339 to342 of 2018, dated 17.10.2019, the writ appeals in

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W.A.Nos.314, 355, 361, 407 of 2021 and W.A.Nos.543, 544, 545, 546 of 2020 are allowed and W.P.No.28803 of 2016 is dismissed. There shall be no order as to costs. Connected miscellaneous petitions are closed.

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(J.NISHA BANU J.) (M.JOTHIRAMAN J.)

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11.08.2025

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Index:Yes/No Internet:Yes Neutral Citation:Yes/No MST