TMI Blog1984 (10) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... writ Appeals Nos. 394 to 396 of 1979, filed by the State Government, District Collector of Salem, arid the Director of Rural Development, Madras and since the contentions raised on behalf of the appellant in W.A. No. 462 of 1984, which was taken up along with the writ petitions which raise the same point, challenge the correctness of the judgment of the learned single Judge as confirmed by the Division Bench. This Full Bench is necessarily called upon to consider the correctness of the view of the learned single Judge, as confirmed by the Division Bench of this Court. 2. At the very outset it may be stated that at the instance of three petitioners, G.O.Ms. No. 862, dt. 27-4-1968. which dealt with Managers and Accountants. Who were appointed subsequent to 16- 10- 1968, was called in question, because, according to the petitioners before the learned Judge, G.O.Ms. No. 862 was given effect to and the petitioners were reverted front the post of Manager to the post of Accountant, Panchayat Union. The learned Judge by his order, to the details of which we shall refer later, held that the reversions were bad and that the petitioners before him were entitled to seniority on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry III by direct recruitment. Sub-cl. (e) of Cl. 5 prescribed the tests. This clause reads as follows : 5(3)Tests : No person shall be appointed to the posts of Accountants and Managers in Panchayat Union Offices and the posts of Accountants in Panchayat Development Sections in Revenue Divisional Offices and the Panchayat Development Branches in District Collectorates, unless he has passed both the 'Departmental Test in Panchayat Development and the Panchayat Development Account Test. It is to be noted that these tests were restricted to the posts of Accounts and Managers, and it was not till Nov. 1972, that retrospectively the tests were made a condition precedent for appointment to the post of Assistants, This Government Order was amended on 13-9-1966 by introducing sub-cl. (g) in Cl. 5, and the amendment stated: Nothing contained in this order shall adversely affect any person holding any of the posts referred to in sub-paragraph (1) of para. 4 as on the date of issue of these orders . The effect of this Government Order as on 16-10-1964 was that, if an Assistant, i.e., Upper Division Clerk, wanted to be promoted to the Post of Accountant and Manager, he had t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of which are not necessary, were substituted. Two sub-rules, (q) and (r), were added under R. 35. These rules run as follows : (q) If any person holding the post of Manager or Accountant or Assistant in Panchayat Union Offices or the post of Accountant or Assistant in the Panchayat Development Branch of the Collectorates and in Panchayat Development Section of Revenue Divisional Offices as on 16th Oct. 1964, fails to pass the Departmental Test and Panchayat Development Account Test within the first four chances, their increments shall be postponed without cumulative effect until they pass the said tests. (r) Such of those persons who were appointed subsequent to 16th Oct. 1964, as Manager/Accountant/Assistant in Panchayat Union Offices or as Accountant/Assistant in the Panchayat Development Section in Revenue Divisional Offices and in Panchayat Development Branch in the Collectorate, if they do not pass the tests before 31st Dec. 1969, shall be reverted. 6. Later by an amendment a proviso was added to R. 35 (r), which runs as follows : Provided that persons selected from the Panchayat Union Service by the Screening Committee and appointed as Provided that persons A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preamble: The General and Special Rules applicable to the holders of permanent posts in the Tamil Nadu Ministerial Service shall apply to the Ministerial posts in the Panchayat Development Unit. subject to the following modification ; (ii) For Rule I the following rule shall be substituted, namely :- 'Constitution : These rules shall apply to the following categories of posts and shall be treated as temporary additions to the corresponding posts in the Tamil Nadu Ministerial Service; Category (i): Managers in Panchayat Union Office, Accountants in Panchayat Development Section in Revenue Divisional Offices arid in Panchayat Development Branches - in Collectorates. Category (ii) : Assistants and Accountants in Panchayat Union Offices, Assistants in Panchayat Development Sections in Revenue Divisional Offices and in Panchayat Development Branches in Collectorates. Category (iii)- Junior Assistants in Panchayat Development Sections in Revenue Divisional Offices and in Panchavat Development Branch in Collectorates . These are the rules which are now relevant 8. Coming to the facts of W.P. Nos. 401, 402 and 413 of 1975, which were filed by three petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner Manoharan got reverted and it was this reversion which he made a grievance of before Mohan, J. After referring to promotions and reversions made, and, when it was not disputed before the learned Judge that the petitioners had qualified themselves to become Managers by passing the requisite tests and that the reversions were justified because the respondents in the case had passed the examination within the due dates, that is, before 31st Dec. 1969, and that having regard to the fact that they were seniors to the petitioners in the lower cadre the respondents were entitled to be promoted first in preference to the petitioners the learned Judge observed as follows : There is no rule which enables the authority to place the respondents 4 to 7 as seniors merely because they were so in the lower cadre. Admittedly the petitioners have qualified themselves to the post of Managers long before respondents 4 to 7 by passing the required tests. It is not necessary for me to deal with the nature of G.O. Ms. No. 2155 R.D. L.A. dt. 16-10-1964 and G.O. Ms. No. 862 R.D., and L.A. dt 27-4-1968. Since it is clearly admitted that there is no rule which enables the authority to take on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the Judgment of the learned Judge and therefore the appeal was not tenable. The relevant observations areas follows : - In any event, there being no charge that the petitioners in the writ petitions were disqualified or inefficient or were not honest in the performance of their duties, if at all any person who could be said to have been aggrieved by the order of the learned Judge, it is respondents 4 to 7 and the State cannot be said to have been aggrieved. From this point of view also, we see no justification for admitting these appeals and hence these appeals are dismissed. 15. There is no doubt that the judgment of Mohan, J., confirmed by the Division Bench, laid down a principle for the determination-of seniority. The State Government implemented the decision of Mohan, J. by issuing G.O.Ms. No. 783 dt. 30th April, 1981. The State Government's reading of the judgment of Mohan, J. is indicated by the following passage in the preamble to the Government Order in para 2 : The High Court allowed the writ petitions with a direction to the Government that the writ petitioners, who had qualified themselves earlier ought to be posted as Managers over the unqualifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed. That is how the appeal has been filed against that judgment. 18. Since common questions were involved in these petitions and the writ appeal though the main argument was advanced in the writ appeal by Mr. Doraiswami, we have heard Mr. Sukhaotha Raj, Mr. P. Chidambaram, Mr. Desappan, Mr. Muthuramalingam, Mr. Ramamurthi and Mr. Radhakrishnan on behalf of the petitioners, and Mr. Selvaraj, Government Advocate on behalf of the Government. 19. It is now conceded by all concerned, that the impugned Government Order had necessarily to be issued by the Government in order to give effect to the judgment of Mohan, J. confirmed by the Division Bench. What is, however, argued before us is that the decision of Mohan, J., as well as the decision of the Division Bench must be considered as a decision per incuriam, inasmuch as not only does it proceed on the assumption that G.O.Ms. No. 2155 dated 16th October, 19 64, is a statutory rule, but that the statutory rules framed on 6-11-1972, 28-4-1973, 28-8-1973 as well as 9-8-1974, have not at all been considered. Learned counsel have, therefore, contended that the view taken by Mohan, J., that for the purpose of seniority the date of acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners were different. There could not have been any estoppel against. the statute, much (less?) in respect of rules which were promulgated later in the exercise of power under the proviso to Art. 309 of the Constitution. From this infirmity will also follow the second infirmity, namely, that, if there are service rules which are made under the proviso to Art. 309 of the Constitution, then whether one likes it or not, unless they are challenged as being ultra vires the Court is bound to give effect to such rules. Neither the judgment of Mohan, J., nor that of the Division Bench shows that the very relevant and important rules, i.e. Rr. 35 (q) and 35(r), which were framed by the State Government relating them ' in categories of Managers and Assistants, have noticed Managers and Assistants, or Accountants, for whose benefit these rules have been made, are entitled to the benefit of those rules, and they cannot be prevented from enforcing their rights under those rules, merely on the ground that those rules had not been brought to the notice of the Court on an earlier occasion when a similar question, arose or that the State Government had not appealed against the earlier j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute, and that assumption formed the basis of the decision. This exception to the rule of stare decisis is probably best regarded as an aspect of a broader qualification of the rule, namely, that courts are not 'bound to follow decisions reached per incuriam . The proposition that a decision per incuriam need not be followed as a binding precedent is well established. If authority is needed for this proposition, we may refer to the decision of the. Court of Appeal in Young v. Bristol Acroplane Co. Ld., (1944) 2 All ER 203 , where Lord Greene, M.R. observed as follows.- Where the Court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of statute, the position is very different. It cannot in our opinion; be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when. that provision was not present to its mind. Cases of this description are examples of dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 16-10-1964 to pass the departmental tests within the first four chances. Passing the departmental tests has become condition for appointment to the posts of Manager or Accountant with effect from 16-10-1964. Hence, in the case of those who were appointed after 16-10-1964, and were notable to comply with this condition by Dec. 1969, which was the date fixed by the State Government, the natural consequence was, they would be reverted. The Appointing Authorities seem to be in doubt as to the implementation of the Government's decision, dt. 27th April, 1968. This doubt, on record is in the form of a query which was made by the Collector of Salem, to which a clarification was issued by the State Government in Memo dt. 24-2-1970. The query made by the Collector was as follows : Whether juniors appointed after 16-10-1%4 will have to be reverted though they have since qualified now, and replace them by posting seniors though they have not yet passed the test in view of G.O.Ms.. No. 862 R.D. L.A. dt. 27-4-1968 . The Government gave the clarification to the effect that according to the orders issued in G.O.Ms. No. 962 RD LA dt. 27-4-1968 the promotions made after 16-10-196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cumulative effect until they pass the said tests . The language is plain and simple. The rule deals, as already stated, with persons who are holding the posts described therein as on the 16th Oct. 1964, which means that they have been appointed to the posts prior to 16th Oct. 1964, when there was no specification or requirement with regard to passing departmental tests. The rule says that, if such persons failed to pass the departmental tests within the first four chances, then their increments shall be postponed without cumulative effect until they passed the said tests. The rule therefore contemplated that the only action which can permissibly be taken in respect of those officers would be that they would not earn their increments as and when they became due, if they did not pass the necessary tests within the first four chances, and they would earn their increments only after they passed the tests. The rule says nothing about their reversion in contradistinction to the words of R. 35 (r), which specifically refers to reversion. We shall refer to sub-r. (q) a little later. Reading sub-r. (r), it deals specifically with such of those persons who were appointed subsequent to 16t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with rules, which would mean that an unqualified person can be, promoted, subject, of course, to the requirement that such a promotion is necessary in public interest owing to an emergency which has arisen requiring the vacancy to be filled up immediately and that there was likely to be undue delay in making a promotion in accordance with rules. What is relevant for our purpose is General Rule 39(a)(ii), which reads as follows : No person who does not possess the qualifications, if any, prescribed for the said service, class or category, shall ordinarily be promoted under Cl. (i). Every person who does not possess such qualifications and who hits been or is promoted under Cl. (i) shall be replaced as soon as possible by promoting a person possessing such qualification . Rule 39 (a)(ii) therefore contemplates that the promotion of any unqualified person to a post in the higher cadre must necessarily be by way of a temporary measure. Any promotion made by way of a permanent arrangement of a person who is not qualified will be clearly in breach of the relevant recruitment rules. The express provision made in R. 39(a)(ii) that every person who has been temporarily promoted has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r), Strictly speaking, the case before Mohan, J. was concerned with the first category of those employees, that is, those who have passed their examinations at different points of time, but before 31st Dec. 1969, all of them having been appointed after 16-10-1964. Some of the persons. who were junior to those appointed earlier, but all of them appointed after 16-10-1964, had passed their examinations earlier. Now it is in that class of cases that it was directed that the passing of the qualifying tests would be determinative of seniority. Now one thing which has to be appreciated is that, when R. 35( r) was framed, in so far as Assistants were concerned, the passing of examination before 31st Dec. 1969, was only relevant for the purpose of further promotion. If juniors had passed their examinations earlier than the seniors, in the category of employees appointed between 16-10-1964 and 31-12-1969, the question is whether merely by virtue of having passed the examination they would become senior to persons who had not ' passed the tests, but who were appointed after 16-10-1964. All of these are persons who were not liable to be reverted at all, because they had' passed the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified therein in their respective posts up to 31-12-1969 and they were not liable to be disturbed in their placement of seniority merely on account of the fact the some of the juniors have passed their examination earlier and some of the seniors have passed later. 32. In so far as junior Assistants are concerned. sub-rr. (q) and (r) do not apply to them at all, and their promotions will be dependent upon their qualifying for the post of Assistants. Rules 35 (q) 35 ( r) are special rules and they must prevail over the general rules, in so far as preference to qualified persons in the matter of appointment is concerned. Once we appreciate the correct scope of sub-rr. ( r) and (q), then the principle which is applicable for determining seniority will be that seniority in cases covered by sub-rr. (q) and (r) will be dependent upon their continuous length of service, and that will be the seniority which will have to be considered, when the question of, promotion arises. 33. There are further sub-rr. (s), (t), (u), (v) and (w) in R. 35, but those rules do not relate to seniority directly, but they provide for certain exemptions. Sub-rr. (s) and (t),are not relevant for our purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows : 37. Now the proposed -seniority list as a result of implementing G.O. Ms. No. 783 dt. 30-4-1981 has resulted in Syed Mohideen going down from serial Nos. 25 to 54 in the new-List, H. M. A 11i Baig going up from 94 to 48: and P. Krishnaraj; going, up from 122 to 17. If G i O.Ms. No. 783 is implemented there is no doubt that this will be the result, because Krishnaraj has passed the examination as early as in Nov. 1966; H. M. Ali Baig has passed the examination in May, 1968, and Syed Mohideen has passed the examination in Nov. 1968. However, having regard to the specific and special provision in R. 35 (1), Syed Mohideen being already an Assistant on 16-10-1964 and not liable to be reverted at all, his placement could not have been disturbed, notwithstanding the fact that he passed the examination only in Nov. 1968. Syed Mohideen's passing the examination in Nov. 1968, would become material for the limited purpose of considering as to when he should be treated as qualified for promotion to the higher post, if his name had to be considered under the normal rule. Undoubtedly P. Krishnaraj and H. M. Ali Baig were appointed after 16-10-1964 and prior to 31-12-1969. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r) were not entitled to have their seniority over those who were promoted on the basis of their qualifications. The learned Government Pleader contended that the limited effect of Rr. 35(q) and 35(r) was that reversion was being prevented and that this was in the nature of a protection to employees who were already promoted. Apart from this, according to the learned Government Pleader, there was no other purpose in making Rr. 35(q) and 35(r). We have already indicated earlier that R. 35(q) was intended not merely for the purpose of avoiding the effect of R. N(a)(ii), but the further consequence of that sub-rule was that the employees who fell within that sub-rule have acquired a right to continue in their respective posts, without earning increments, up to their date of superannuation, and they could be treated as validly holding the posts with reference to their respective dates of appointment. This would necessarily enure for their benefit in so far as the determination of their placement in the seniority list was concerned. 41. An argument was advanced before us, while attacking G.O.Ms. No.783, by Mr. Sukantharaj. that the said Government Order violated the statutory provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temporary or officiating posts. On this basis, those who were already covered by R. 35(q) would be seniors to those appointed to their respective posts after 16-10-1964. 45. Mr. Desappan has also referred us to the decision of this Court in Venkataranian v. Director of Postal Services, (1970) 2 Mad 49. In that case the Division Bench was concerned with a circular issued by the Post and Telegraph Department, which provided that in the matter of confirmation for the purpose of seniority of persons, who had passed the examination, whether officiating or not, it would be refixed in accordance with the date of their passing the examination. The Division Bench, while laying down the law, held that though it would be open to the authorities to fix the seniority before persons were promoted to the accountants grade on the date of their qualifying by the examination, once a number of people had been promoted and had begun to officiate in the higher grade, all of them being qualified at the time of their promotion to officiate by having passed the examination. It would be discriminatory to ignore the seniority by the length of service and revert to the date of passing the qualifying exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right of the petitioners or the right of respondent6, how those rights have to be determined by the State Government is a matter of policy decision and the State Government is entitled to canvass that the view taken by it while laying down the policy decision was correct. 47. Having regard to what we have stated. earlier, the propositions which follow may now be laid down : (1) As a result of making R. 35(q), any person who was already promoted to the post of Manager, Accountant, or Assistant in the Panchayat Union Offices or the Post of Accountant or Assistant in the Panchayat Development Branch of Collectorates and the Panchayat Development Section of Revenue Divisional Offices as on 16-10-1964 could not be reverted, notwithstanding the fact that he had failed to pass the qualifying tests. (2) The consequence of such failure to pass the qualifying test was simply that his increments are postponed without cumulative effect until he passed the said tests. His further promotions and seniority would be dependent upon passing the tests. (3) All those persons who were appointed subsequent to 16-10-1964 to the posts mentioned above, were given the facility of passing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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