S. Kalyanasundaram
& Ors Vs. State of Tamil Nadu & Ors [1996] INSC 1045 (30 August 1996)
K. Ramaswamy,
G.B. Pattanaik
ACT:
HEAD NOTE:
O R D
E R
Delay
condoned.
Leave
granted.
These
appeals by special leave arise from the order of the Tamil Nadu Administrative
Tribunal Madras Bench made on July 13, 1993
made in T.A. No.131 of 1990. The admitted position is that Tamil Nadu Urban
Land Tax Act [for short, the "Act"] was amended so as to extend the
provisions thereof to madurai, Coimbatore, Trichy and Sales. It was further amended inter alia so as
to extend the provisions of the Act to the belt areas of Madras City. As regards the appointments to the post of ministerial
staff therein, they are governed by the Tamil Nadu Ministerial Service Rules
[for short, the "Rules"]. Rules 3 of the Rules provides the method of
appointments and promotions. Rule 3 [hh] (ii) reads as under:
"3.
Method of Recruitment :
(hh)
Besides promotion as provided in rule 4, appointment to the posts of
Superintendents and Assistants in the office of the Board of Revenue (Land
Reforms) may be made as specified in Column (2) of the Table below, if no
suitable candidates are available for promotion in the office of the Board of
Revenue (Land Reforms.).
THE
TABLE POSTS METHOD OF APPOINTMENT
(1)Superintendents
By recruitment by transfer from among Deputy Tahsilders and Tahsildars in the
Tamil Nadu Revenue Subb- rdinate Service.
(ii)
Assistants By transfer from among Assistants in the district Revenue Units.
(1)
Appointment to the posts of Superintendents (Selection Grade) in the office of
the Board of Revenue (Urban Land Tax)- Commissioner of Urban Land Tax and in
the Offices of the Assistant Commissioners of Urban Land Tax, shall be made by
promotion form among the Superintendents in the Urban Land Tax Department and
in other Branches of the Board of Revenue or by recruitment by transfer form
the category of Deputy Tahsildars in the Tamil Nadu Revenue Subordinate
Service.
(ii)
Appointment to the posts of Superintendents in the office of the Board of
Revenue (Urban Land Tax) - Commissioner of the Urban Land Tax and in the
offices of the Assistant Commissioners of Urban Land Tax, shall be made by
promotion from among the Assistants i the Urban Land Tax Department and from
among the Assistant of the District Revenue Unit or other Branches of the Board
of Revenue.
(iii)
Appointment to the posts of Assistants in the Office of the Board of Revenue
(Urban Land Tax )- Commissioner of Urban Land Tax and in the office of the
Assistant Commissioner of Urban Land Tax, shall be made by promotion form among
the junior Assistants in the Urban Land Tax Department and from among the
junior assistants of the District Revenue Unit or other Branches of the Board
of Revenue.
(iv)
Besides direct recruitment as provided in rule 2, appointment to the posts of
junior Assistants and typists in the office of the Board of Revenue (Urban Land
Tax)- Commissioner of Urban Land Tax and in the office of the Assistant
Commissioners of Urban Land Tax, shall be made by transfer from among the
junior Assistants and typists of the District Revenue Unit or prom other
Branches of the Board of Revenue, respectively," Under Rule 11 dealing
with recruitment to the departmental units it is stated that for the purpose of
direct recruitment etc, to the service, a departmental unit shall mean [a] in
the City of Madras, each office; and [b] outside the City of Madras, each
department in each District provided that each office or group of offices
specified in the table given therein, shall be a departmental unit.
Under
item (ii) Board of Revenue shall be one unit for all branches excluding
settlement of Estates and Commercial Taxes; under item (iii) it shall be
departmental unit for Settlement of Estates Branch and under item (iii) it
shall be for Commercial Taxes Branch. It would thus be seen that the Board of
Revenue shall have three separate departmental units. The Government have
further amended the Rules be making special Rules under G.O.Ms No.3134, Public
(Service) Department dated September 29. 1975 which came into force w.e.f. March 1, 1970 adding below Rule 3 [hh] in the
Rules The said Special Rules read as under :
"ii)
(i) Appointment to the posts of Superintendent (Selection Grade) in the office
of the Board of Revenue (Urban Land Tax) Commissioner of Urban Land Tax, and in
the offices of the Assistants Commissioner of Urban Land Tax, Department and
from among the Assistants in the District Revenue Unit or other branches of the
Board of Revenue.
iii)
Appointment to the Posts of Assistants in the office of the Board of Revenue
(Urban Land Tax and)- Commissioner of Urban Land Tax, shall be made by
promotion from among the Junior Assistants, in the Urban Land Tax Departments
and from among the Junior Assistants of the District Revenue Unit or other
branches of the Board of Revenue.
iv)
Besides direct recruitments provided in rule 2, appointment to the posts of
Junior Assistants and Typists in office of the Board of Revenue (Urban Land
Tax) - Commissioner of Urban Land Tax and in the office of the Assistant
Commissioners or Urban Land Tax, shall be made by transfer from among the
Junior Assistants and Typists of the District Unit or from other branches of
the Board of revenue, respectively".
2. In annexures
I, under the heading "Section A - Selection Categories', Under the
sub-heading `Revenue Departments' after item 4, the following item shall be
added, namely :-
5.
Office of the Board of Revenue (Urban Land Tax) - Commissioner of Urban Land
Tax and the offices of the Assistant Commissioner or Urban Land Tax.
i)
Superintendent ii) Assistants.
3. In Annexures
II, under the heading `Revenue Department after item 4, the following item
shall be added, "5. Office of the Board of Revenue (Urban Land Tex)-
commissioner of Urban Land Tax and the offices of the Assistant Commissioner of
Urban Land Tax.
All
members of the service :
Commissioner
of Urban Land Tax and the ex-office, Secretary, Board of Revenue (Urban Land
Tax) Board of Revenue (ULT)
4. In
Annexure. III (i) After o category "1 Superintendent in the Directorate of
Tamil Development in Column (1) and the entries relating thereto in column (2)
and (3) the following category and entries shall be inserted, namely :-
1.Superintendents By 1.Revenue in the office of Tran Test the Board of sfer
Revenue (ULT) or Commissioner or pro 2.Survey Urban land Tax motion Training
and office of for a the Asstt.Commor period not of Urban Land less than Tax
four weeks 3.(contd...3) POSTS TESTS ii) Assistants in the Revenue office of
the Board Tests Port of Revenue(urban land I,II and Tax Commissioner of III.
Urban
Land Tax and the Assistant COmmi- ssioners of Urban Land Tax 6.
SERVICE
TO COURT FOR PROMOTION:
The
junior Assistants of District Revenue establishment Working as Junior Assistant
or working into higher post holding more responsibilities in the Urban Land Tax
Department shall be entitled to count their services in the Urban Land Tax
Department for the Purpose of promotion as Assistants in the District Revenue
Unit from which they were drawn too the extent they would have otherwise acted
as Junior Assistants in the said District Revenue Unit.
EXPLANATION
- For the purpose
of these rules, District Revenue Unit" means, in respect of office Located
in Madras City the Revenue unit of Madras District and in respect of office
located in other places the Revenue Unit of the District in which the office is
located, but shall not include persons whose services were not regularised in
the respective posts." The controversy having arisen is: whether for the
purpose of promotions from the category of Assistants to the category of
Superintendents, the units in respect of the City of Madras, office of the
Assistant Commissioner [Urban Land Tax and of the Commissioner [Urban Land Tax]
would be common unit? In view of the above quoted Rules the answer obviously
would be in the negative. It is clear from the record that by G.O. Ms. No. 612.
Revenue dated May 2
1989 an abortive
attempt was made to infuse all the departments into a common unit for the
purpose of promotion but the same came to be cancelled by C.D. M.s No.642
Revenue dated April 18
1990. Consequently,
even the administrative decision taken had no statutory base but became
fugitive. Even the respondents approached the Tribunal claiming promotions on
the premise that there was common unit all the departments in the City, the
Tribunal by the impugned order had directed that the respondents be treated as
part of the unit of the Board of Revenue and resultantly their cases be
considered for promotion. Thus these appeals by special leave.
Shri Bhai
Naik, learned senior counsel for the appellants contended that the approach
adopted by the Tribunal in considering the Board of Revenue and other branches
in the city as one unit for the purpose of promotion of Assistants as Superintendents
is violative of Rule 3 [hh] of the Rules. We find force in the contention.
It is
seen that Rule 3 [hh] has in unambiguous language expressed unequivocally that "
if suitable candidates are not available for promotion in the office of the
Board of Revenue [Land Revenue )", then the question of considering the
claims of Assistants in other units as amended in G.O.Ms.No.3134 dated
September 29 1975 would arise. It is sought to be contended by the respondents
that for over 20 years the respondents had no opportunity for promotion. The
appellants are juniors in point of time of appointment and , therefore, they
cannot well steal march over the respondents. The Tribunal has considered in
equity all the units as one unit for the purpose of promotion and does not call
for interference under Article 136 of the Constitution.
In
similar cases, on an earlier occasion same view was expressed to which some of
the appellants were parties. We find no force in the contention. We are called
upon to interpret the rule. We cannot avoid correct interpretation and supplant
equity to sway over statutory rule when Assistants in Board of Revenue are
available for promotion to consider the cases of Assistants in other units.
Equity operates where law is silent it will be for the rule-making authority to
decide the unit for the purpose of recruitment or promotion. The Government did
not agree to integrate all the three units as one. In the face of the
unambiguous statutory language employed therein, it would be difficult to give acceptance
to the contention of the respondents.
Even
the amended rule has specifically provided that "in rule 3, after sub-rule
(hh), the following sub-Rule shall be added", viz., as extracted above. In
the light of the language of rule 2 [hh], the necessary conclusion would be
that the Assistants, if available from the Board or Revenue unit, would be
considered first for promotion as Superintendent. In their absence, Assistants
available in the office of the Assistant Commission of Urban Land Taxes etc. are
to be considered for promotion.
The
appeals are accordingly allowed. The petition filed in the Tribunal stands
dismissed but, in the circumstances, without costs.
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