R. Ramaswamy
Vs. Government of Tamil Nadu & Ors [1995] INSC 373 (11 August 1995)
Ramaswamy,
K. Ramaswamy, K. Hansaria B.L. (J)
CITATION:
1995 SCALE (5)26
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
The
appellant was appointed, thought temporarily, as a Project Officer in the
Directorate of Tamil Culture Centre on May 21, 1979. The Government stated in G.O.M.S.
No. 296 dated September
6, 1989 that both the
post of Project Officer in the erstwhile Directorate of Traditional Tamil Arts
and that of Assistant Director in the Tamil Development Directorate are
equivalent in status and carry an identical scale of pay. The service of the
appellant as a Project Officer was also regularised by G.O.M.S. No. 88 dated May 21, 1990 wherein the Government has stated
that "the service of Thiru R. Ramaswamy in the cadre of Project officer in
the erstwhile Department of Tamil Culture Centre be regularised w.e.f.
22.5.1979, namely, the date of his appointment".
Thereby
he is a permanent incumbent for the post of Project Officer in the erstwhile
Department.
When
he was temporarily promoted as Assistant Director and sought promotion as
Deputy Director, the question arose whether the appellant was senior to
respondent Nos.3 and 4, who were appointed as Assistant Directors on December 10,1979 and April 25, 1981 respectively. When that status was not given, he approached
the Administrative Tribunal in O.A. No. 632/93, which by order dated February
4, 1994 held that since respondent Nos. 3 and 4 were substantively holding the
post as Assistant Directors, the appellant is junior to them and the order of
appointment by transfer clearly indicates that his claim for seniority would be
determined at a later date. In pursuance of the statutory order now made in
G.O.M.S. No. 296 dated September 6, 1989 constituting the Tamil Nadu Ad-hoc
Rules for Temporary Posts of Assistant Directors, the appellant cannot be said
to be senior to the respondent Nos. 3 and 4.
Shri
K.K. Mani, the learned counsel appearing for respondent Nos. 3 and 4, sought
support for the conclusion reached by the Tribunal under Rule 8 of the said
Ad-hoc Rules which envisages that "Nothing contained in these rules shall
adversely affect the persons holding the post of Assistant Director of Tamil
Development Directorate on the date of issue of the Rules". Ms. A. Subhashini,
the learned counsel appearing for the State also sought to contend that even
Rule 35 (b) of the Tamil Nadu State and Subordinate Services Rules, on which
the appellant sought to place reliance in support of his claim, itself mentions
that when any difficulty or doubt arises in applying the sub-rule, seniority
needs to be determined by the appointing authority. The Government being the
appointing authority has been considering the matter and even at the stage of
consideration in the light of the directions issued by the Tribunal, this
appeal was filed and that, therefore, the Government could not be blamed for
not determining the inter se seniority of the persons.
In
view of the diverse contentions, the only question that arises for
consideration is whether the appellant can be considered as senior to
respondent Nos. 3 and 4 as Assistant Directors in the present Directorate. Rule
35 (b) of the Tamil Nadu State and Subordinate Services Rules
states thus:
"The
transfer of a person from one class or category of a service to another class
or category carrying the same pay or scale of pay shall not be treated as first
appointment to the latter for purpose of seniority and the seniority of a
person so transferred shall be determined with reference to the rank in the
class or category from which he was transferred; where any difficulty or doubt
arises in applying this sub-rule seniority shall be determined by the
appointing authority." In view of the order passed by the Government
appointing the appellant substantively as Project Officer w.e.f. May 22, 1979
and treating the said post as equivalent to the post of Assistant Director
carrying the same status and scale of pay, the necessary implication is that he
is holding the status and scale of pay of the post of Assistant Director in the
present Directorate. However, the question is whether the appellant is senior
to respondent Nos. 3 and 4. As already observed, respondent Nos. 3 and 4 were
appointed on December
10, 1979 and May 25, 1981 respectively, i.e. later than the
appellant. Rule 35 (b) clearly envisages that the seniority of the transferred
persons shall be determined with reference to the rank in the class or category
from which he was transferred, which in the case of the appellant was the post
of Project Officer. The necessary implication is that the appellant was deemed
to have been transferred with the same status and scale of pay as of Assistant
Director w.e.f. May 21,
1979.
Consequently,
he became senior to respondent Nos. 3 and 4 in that category, i.e., Assistant
Director.
Rule 8
of Ad-hoc Rules pressed into service by Sri Mani, does not have any effect on
the claim for inter se seniority of the appellant and respondent Nos. 3 and 4
which needs to be determined by aid of Rule 35 (b) of the General Rules. It
only prohibits causing of adverse effect on persons named in the rule. The
Government, therefore, should determine the inter se seniority, and consider
the question of promotion to the next cadre, viz., Deputy Director, according
to rules.
The
appeal is accordingly allowed but, in the circumstances, without costs.
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