R. PALANISAMY & ORS.versusTHE REGISTRAR GENERAL, HIGH COURT OF MADRAS & ORS.

588                      [2020]REPORTS
               SUPREME COURT    6 S.C.R. 588                [2020] 6 S.C.R.


A                          R. PALANISAMY & ORS.
                                        v.
                        THE REGISTRAR GENERAL,
                     HIGH COURT OF MADRAS & ORS.
B                 (Special Leave Petition (C) No. 6439 of 2020)
                                 JULY 24, 2020
                 [S. A. BOBDE, CJI, A. S. BOPANNA AND
                      V. RAMASUBRAMANIAN, JJ.]

C            Service Law – Promotion to the post of Junior Bailiff – Claim
      for – Various persons working as Record Clerks and Office
      Assistants in Erode District filed a writ petition before the High
      Court seeking promotion to the post of Junior Bailiff without insisting
      on the educational qualification of a pass in SSLC – Their claim
      was based on the High Court order dated 22.07.2009 in batch of
D     cases and the fact that present vacancies arose before the enactment
      of Tamil Nadu Government Servants (Conditions of Service) Act,
      2016 – The High Court rejected the claim on the ground that the
      previous judgment dated 22.07.2009 in the batch of cases is no
      longer of any relevance after coming into force of 2016 Act and
E     that date on which vacancies arose cannot determine the Rule
      applicable for recruitment by promotion – On appeal, held: After
      the implementation of the recommendations of (i)The Shetty
      Commission and (ii) The Tamil Nadu v Pay Commission, no one was
      entitled to claim a right to promotion to the post of Junior Bailiff,
      without the prescribed essential qualification – The petitioners
F     cannot take refuge under the failure of the Government to issue
      necessary amendment to Statutory Rules and the previous judgment
      of the High Court dated 22.07.2009 – Pending the issue of
      amendment to Statutory Rules, (i) The nomenclature of the post has
      changed and (ii) a higher scale of pay also given to the post – One
      cannot reap the benefit and ignore the requirement – The previous
G
      judgment of the High Court dated 22.07.2009 did not take into
      considerations any of these developments and hence cannot be cited
      as precedence by petitioners – Further, 2016 Act actually replaces
      the General Rules for the Tamil Nadu State and Subordinate Services
      – But Act does not override the Special Rules for Tamil Nadu Basic
H
                                       588
   R. PALANISAMY & ORS. v. THE REGISTRAR GENERAL,                     589
            HIGH COURT OF MADRAS & ORS.

Service – The High Court and petitioners overlooked s.68 of the A
2016 Act – However, the ultimate conclusion reached by the High
Court is unassailable – No ground to interfere with the order of the
High Court.
      Dismissing the Special Leave Petition, the Court
      HELD: 1. It is clear that after the implementation of the       B
recommendations of (i) the Shetty Commission and (ii) the Tamil
Nadu V Pay Commission, no one was entitled to claim a right to
promotion to the post of Junior Bailiff, without the qualifications
prescribed. [Para 13][594-F-G]
      2. The petitioners cannot take refuge under (i) the failure C
of the Government to issue a necessary amendment to Statutory
Rules and (ii) the previous judgment of the High Court dated
22-07-2009 passed in a batch of cases. Pending the issue of
amendment to statutory rules, (i) the nomenclature of the post
has changed and (ii) a higher scale of pay also given to the post. D
One cannot reap the benefit and ignore the requirement. The
previous judgment of the High Court did not take note of any of
the above developments and hence the same cannot be cited as
a precedence by the petitioners. [Para 14][594-G-H; 595-A]
       3. The argument revolving around the Tamil Nadu                E
Government Servants (Conditions of Service) Act, 2016, and the
fact that vacancies arose in the year 2015, prior to the enactment,
is of no relevance. This Act was enacted to consolidate the law
relating to recruitment and the terms and conditions of service
of persons appointed to the State and Subordinate services in
the State of Tamil Nadu, in terms of the mandate contained in         F
Article 309. Until the advent of this Act, the State of Tamil Nadu,
like many other States, was only issuing Rules in exercise of the
power conferred by the Proviso to Article 309, though such Rules
were meant only to be a stop gap arrangement until an Act of the
legislature was made. This 2016 Act actually replaces the General     G
Rules for the Tamil Nadu State and Subordinate Services. But
the Act does not override the Special Rules. Section 68 of Tamil
Nadu Act No.14 of 2016 makes it clear that the Special Rules will
prevail over the provisions of the Act, if any provision of the act
is inconsistent therewith. [Para 18][596-B-D]
                                                                      H
590             SUPREME COURT REPORTS                           [2020] 6 S.C.R.


A           4. But the petitioners as well as the High Court overlooked
      the above provision. In view of section 68, the High court may
      not be right in saying in the impugned order (paragraph 11) that
      the Special Rules would no longer govern the service of the
      petitioners. The reliance placed by the High Court on Section
      20(2) of the 2016 Act may not also be fully correct, since the
B
      same does not, by itself prescribe any qualification. Section 20
      merely explains what a reference in the Special Rules to the
      expression ‘minimum general educational qualification’ would
      connote. This provision namely Section 20, is applicable only to
      cases where the Special Rules prescribe the possession of the
C     minimum general educational qualification as a prerequisite for
      appointment to any class or category of service. Section 20 of the
      Act read with Schedule-III merely defines the expression
      “minimum general educational qualification” as found in the Special
      Rules. [Para 19][596-F-H]
D            CIVIL APPELLATE JURISDICTION: Special Leave Petition
      (Civil) No. 6439 of 2020.
            From the Judgment and Order dated 05.11.2019 of the High Court
      of Judicature at Madras in Writ Petition No. 3312 of 2019.
            Purushottam Sharma Tripathi, Praveen Vignesh, Mukesh Kumar
E     Singh, Advs. for the Petitioners.
            The following Order of the Court was passed :
                                     ORDER
            1. Aggrieved by the dismissal by the High Court, of their claim for
F     promotion to the post of Junior Bailiff, persons working as Office
      Assistants/Record Clerks in various courts in Erode District of the State
      of Tamil Nadu have come up with this special leave petition.
           2. We have heard Mr. Purushottam Sharma Tripathi, learned
      counsel appearing for the petitioners.
G             3. 22 persons, of whom 3 are working as Record Clerks and the
      rest working as Office Assistants in various courts in Erode District
      filed a writ petition on the file of the High Court of Judicature at Madras,
      seeking a Mandamus to consider their claim for promotion to the post of
      Junior Bailiff, without insisting on the educational qualification of a pass
H
   R. PALANISAMY & ORS. v. THE REGISTRAR GENERAL,                            591
            HIGH COURT OF MADRAS & ORS.

in SSLC. Their claim was based upon (1) a previous order of the High         A
Court dated 22.07.2009 in a batch of cases and (2) the fact that the
vacancies to which they lay a claim, arose before the issue of the Tamil
Nadu Government Servants (Conditions of Service) Act, 2016 and that,
therefore, a pass in SSLC cannot be insisted upon as a qualification for
promotion to the post of Junior Bailiff.
                                                                             B
       4. The High Court rejected the claim on the ground that the
previous judgment of the Court dated 22.7.2009 in the batch of cases is
no longer of any relevance, after the coming into force of Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 and that the
date on which the vacancies arose cannot determine the Rule applicable
for recruitment by promotion. Therefore, aggrieved by the said order,        C
the petitioners are before us.
       5. As pointed out earlier, there were 22 petitioners before the
High Court, out of whom 3 persons are working as Record Clerks and
the remaining 19 are working as Office Assistants. The post of Office
Assistant falls under category 5 of Class-III of the Tamil Nadu Basic        D
Service. All matters concerning the posts in the Tamil Nadu Basic Service,
such as their constitution, appointing authority, method of recruitment,
qualifications prescribed for appointment, probation, discharge and
postings and transfers, are governed by a set of Special Rules known as
the Special Rules for Tamil Nadu Basic Service, issued in exercise of        E
the powers conferred by the Proviso to Article 309 of the Constitution.
Rule 1 of these Special Rules divides the posts in the entire Tamil Nadu
Basic Service into four classes, with each class being sub-divided into
various categories of posts. While Class-I has 4 categories of posts,
Class-II has 5 categories of posts, Class-III has 6 categories of posts,
Class-IV has 86 categories of posts. The post of Office Assistant falls      F
under category 5 of Class-III of the Tamil Nadu Basic Service. Most of
the petitioners before the High Court belonged to this category.
       6. Three petitioners before the High Court were working as
Record Clerks and this post falls under category 1A of the Tamil Nadu
General Subordinate Service. The terms and conditions of service of the      G
posts falling under the Tamil Nadu General Subordinate Service are
stipulated in another set of Special Rules known as Special Rules for
Class XXII of the Tamil Nadu General Subordinate Service, issued in
exercise of the power conferred by the Proviso to Article 309.
                                                                             H
592             SUPREME COURT REPORTS                           [2020] 6 S.C.R.


A           7. Thus, in essence, the petitioners who went before the High
      Court, seeking promotion to the post of Junior Bailiff, belonged to two
      categories of posts, in 2 different services, one falling in the Tamil Nadu
      Basic Service and another falling in the Tamil Nadu General Subordinate
      Service, each of which is governed by a separate set of Special Rules
      issued in exercise of the power conferred by the Proviso to Article 309.
B
             8. The post to which the petitioners laid a claim by way of
      promotion, namely the post of Junior Bailiff, was formerly known as the
      post of “process server” falling under Category 3 of Class-III of the
      Tamil Nadu Basic Service. It was a Group ‘D’ post. But after the
      implementation of the recommendations of the Tamil Nadu V Pay
C     Commission, the post of Process Server, was upgraded from being a
      Group ‘D’ post into a Group ‘C’ post and consequently deleted from the
      Basic Service and included in the Tamil Nadu Judicial Ministerial Service
      (which is a service superior to the Basic service). This upgradation was
      accompanied by a consequential upward revision of the pay-scale also.
D     This exercise of upgradation of the post from Basic Service to Judicial
      Ministerial Service with a higher pay scale, was done under a Government
      order in G.O.Ms.No. 1653, Home, (Cts.V) Department, dated
      22-12-2008. Though necessary amendments to both sets of statutory
      rules namely the Special Rules for Tamil Nadu Basic Service (for the
      deletion of the post there-from) and the Special Rules for Tamil Nadu
E     Judicial Ministerial Service (for the inclusion of the post therein) were to
      follow, it never happened.
             9. But in the meantime, another event took place. That event
      related to the implementation of the recommendations of the First
      National Judicial Pay Commission (Shetty Commission) made in the year
F     2003. The Report recommended the creation of 2 categories of posts of
      Bailiffs in the Process establishment of courts, wherever there was only
      one category of the post. But in the State of Tamil Nadu, there were
      already 2 categories of posts namely Junior Bailiff and Senior Bailiff.
      The First National Judicial Pay Commission also recommended in its
G     report, (i) the grant of higher pay scales for both categories of bailiffs
      and (ii) the prescription of Matriculation as the minimum general
      educational qualification both for direct recruitment and for promotion to
      these 2 categories of posts of Bailiffs. These recommendations were
      accepted by the Government of Tamil Nadu and the revision of the pay

H
   R. PALANISAMY & ORS. v. THE REGISTRAR GENERAL,                              593
            HIGH COURT OF MADRAS & ORS.

scales of the posts of Bailiffs took place under G.O.Ms.No. 40, Home           A
(Cts.V) dated 11-2-2008. Thereafter, the Government also issued G.O.
Ms.No.761, Home (Cts.V) dated 10-7-2008, accepting the
recommendation of the Shetty Commission that the minimum general
educational qualification for the posts in the Process Establishment of
courts, shall be Matriculation, both for direct recruitment and promotion.
                                                                               B
      10. Thus 2 things happened during the year 2008, which are as
follows:
       (A) The first was the implementation of the recommendations of
the Shetty Commission (i) to create 2 categories of Bailiffs (Junior Bailiff
and Bailiff/Senior Bailiff) with a revision of the scales of pay of the        C
posts and (ii) the prescription of the qualification of Matriculation. (B)
The second was the implementation of the recommendations of the Tamil
Nadu V Pay Commission (i) for deleting the post of Process Server
from the Basic Service and including the same in the Judicial Ministerial
Service under the name ‘Junior Bailiff’ and (ii) granting a higher scale
of pay for the post.                                                           D

       11. As a matter of fact, apart from the aforesaid category of
Process Servers in the Moffussil courts, upgraded as Junior Bailiffs and
included in the Judicial Ministerial Service, there were also other
categories of Bailiffs, already in existence in the Tamil Nadu Judicial
Ministerial Service. They were (1) Bailiff, Court of Small Causes-cum-         E
Court keeper, City Civil Court, Madras; (2) Senior Bailiffs of the
Presidency Court of Small Causes, Madras; (3) Junior Bailiffs of the
Presidency Court of Small Causes, Madras; (4) Process-Writers of the
Presidency Court of small Causes, Madras. These posts already existed
in categories 1 to 4 of Class-II of the Tamil Nadu Judicial Ministerial        F
Service. Similarly, there was also one more post namely the post of
Senior Bailiff in Mofussil Courts, falling under Class-V of the Tamil
Nadu Judicial Ministerial Service.
       12. For appointment to the aforesaid categories of posts of Bailiff
falling under Class-II and Class-V of the Tamil Nadu Judicial Ministerial      G
Service, the Special Rules for Tamil Nadu Judicial Ministerial Service,
prescribe the completion of SSLC as an essential qualification. This can
be seen from the table below Rule 19 of the Special Rules for Tamil
Nadu Judicial Ministerial Service:

                                                                               H
594              SUPREME COURT REPORTS                               [2020] 6 S.C.R.


A      2.(c)     Senior Direct recruitment or Minimum Ge neral Educational
       Bailiff          recruitment by transfer Qualification
                                                (Substituted vide G.O.Ms. No.316,
                                                Home (Ser.I)

                                                    Dept., dated 12.02.1990 (Proviso
                                                    Omitted vide G.O.Ms. Nos.1771,
B                                                   Home     (Cts.v)   Dept.,  dated
                                                    25.11.1996)
       2.(d)     Junior Direct recruitment or Minimum Ge neral Educational
       Bailiffs     and recruitment by transfer. qualification or a pass in the Indian
       Process                                   Air Force educational test for
       Writers.                                  reclassification to Leading Air
                                                 Craftsman.
C                                                Provided that in the case of
                                                 appointment by transfer from the
                                                 Tamil Nadu Last Grade Service
                                                 and      Tamil     Nadu      General
                                                 Subordinate         Service       the
                                                 educational qualifications shall be
                                                 comple ted Secondary School
D                                                Leaving Certificate.
                                                 Provided further that in the case of a
                                                 person who was a member of the
                                                 Tamil Nadu Last Grade Service or
                                                 the Tamil Nadu General Subordinate
                                                 Service before 1969, the educational
                                                 qualification shall be anything
       (for items 2(b)                           higher than the minimum than
E      and 2(c), items                           prescribed for the category to which
       2(b), 2(c) and                            the transferee belonged before 1969.
       2(d) substituted,
       vide     G.O.Ms
       No.1600, Home
       Dept.,      dated
       15.06.1971
F
            13. Therefore, it is clear that after the implementation of the
      recommendations of (i) the Shetty Commission and (ii) the Tamil Nadu
      V Pay Commission, no one was entitled to claim a right to promotion to
      the post of Junior Bailiff, without the qualifications prescribed as above.
G            14. The petitioners cannot take refuge under (i) the failure of the
      Government to issue necessary amendment to Statutory Rules and (ii)
      the previous judgment of the High Court dated 22-07-2009 passed in a
      batch of cases. Pending the issue of amendment to statutory rules, (i)
      the nomenclature of the post has changed and (ii) a higher scale of pay
      also given to the post. One cannot reap the benefit and ignore the
H
   R. PALANISAMY & ORS. v. THE REGISTRAR GENERAL,                                  595
            HIGH COURT OF MADRAS & ORS.

requirement. The previous judgment of the High Court did not take note             A
of any of the above developments and hence the same cannot be cited
as a precedence by the petitioners.
       15. In fact, if the petitioners pitch their claim on the ground that till
an amendment to the statutory rules is issued, the higher qualification
cannot be insisted, then they will have to stand or fall on the basis of the       B
rule position as it exists. The Special Rules for Tamil Nadu Judicial
Ministerial Service (as it remains without amendment) do not contain
any post called Junior Bailiff in Moffussil courts. Class-II of the said
service comprise of 4 categories of Bailiffs all of which are in the
Presidency Court of Small Causes, Chennai. Class V comprises of only
one category of post namely Senior Bailiff in Moffussil courts. Therefore,         C
the petitioners cannot lay a claim on the basis of the unamended Tamil
Nadu Judicial Ministerial Service Rules.
       16. Similarly, the petitioners cannot claim anything even on the
basis of the Special Rules for Tamil Nadu Basic Service, since the Basic
Service also does not contain any post called Junior Bailiff. There was a          D
post called ‘Process Server’ in the Basic Service, but a higher scale of
pay was granted to the said post on the basis of the recommendations of
the Pay Commission with a view to delete it from the Basic Service and
include it in the Judicial Ministerial Service. The benefit of a higher pay
scale having got attached to the post with a corresponding obligation to           E
look for a higher qualification, it is no more open to the petitioners to
attack the qualification alone.
       17. There is one more reason why the Special Rules for Tamil
Nadu Basic Service (as they exist) cannot be pressed into service by
such of those petitioners who are working as Office Assistants. Rather             F
than helping them, these rules will actually destroy their claim. The post
of ‘Process Server’ is in Category 3 of Class-III of the Basic Service.
The method of recruitment to various posts in the Basic Service are
prescribed in the Table below Rule 3 (a) of the Special Rules for Tamil
Nadu Basic Service. This Table below Rule 3 (a) prescribes that all
categories of posts in Class-III can be filled up only by 3 methods of             G
recruitment namely (i) Direct recruitment (ii) Recruitment by transfer
from any other service and (iii) Transfer from Class-IV. Since the post
of Office Assistant falls in Category 5 of the very same Class-III of the
very same service, those petitioners who are working as Office
Assistants, cannot fit their claim for promotion into any one of the above         H
596             SUPREME COURT REPORTS                           [2020] 6 S.C.R.


A     3 methods of recruitment. Therefore, if the petitioners place too much
      reliance upon the fact that the rules stand unamended, most of them (19
      out of 22) will be knocked off by the prescription contained in the Table
      below Rule 3(a).
              18. The argument revolving around the Tamil Nadu Government
B     Servants (Conditions of Service) Act, 2016, and the fact that vacancies
      arose in the year 2015, prior to the enactment, are of no relevance. This
      Act was enacted to consolidate the law relating to recruitment and the
      terms and conditions of service of persons appointed to the State and
      Subordinate services in the State of Tamil Nadu, in terms of the mandate
      contained in Article 309. Until the advent of this Act, the State of Tamil
C     Nadu, like many other States, was only issuing Rules in exercise of the
      power conferred by the Proviso to Article 309, though such Rules were
      meant only to be a stop gap arrangement until an Act of the legislature
      was made. This 2016 Act actually replaces the General Rules for the
      Tamil Nadu State and Subordinate Services. But the Act does not override
D     the Special Rules. Section 68 of Tamil Nadu Act No.14 of 2016 makes
      it clear that the Special Rules will prevail over the provisions of the Act,
      if any provision of the act is inconsistent therewith. Section 68 reads as
      follows:
            “If any provision of this Act is inconsistent with any provision
E           of the special rules applicable to any particular service, the
            special rules shall, in respect of that service, prevail over the
            provisions of this Act.”
             19. But the petitioners as well as the High Court overlooked the
      above provision. In view of section 68, the High court may not be right in
F     saying in the impugned order (paragraph 11) that the Special Rules would
      no longer govern the service of the petitioners. The reliance placed by
      the High Court on Section 20(2) of the 2016 Act may not also be fully
      correct, since the same does not, by itself prescribe any qualification.
      Section 20 merely explains what a reference in the Special Rules to the
      expression ‘minimum general educational qualification’ would connote.
G     This provision namely Section 20, is applicable only to cases where the
      Special Rules prescribe the possession of the minimum general educational
      qualification as a prerequisite for appointment to any class or category
      of service. Section 20 of the Act read with Schedule-III merely defines
      the expression “minimum general educational qualification” as found
H     in the Special Rules.
   R. PALANISAMY & ORS. v. THE REGISTRAR GENERAL,                             597
            HIGH COURT OF MADRAS & ORS.

       20. Therefore, in fine, the ultimate conclusion reached by the High    A
court is unassailable, despite the omission of the High court to take note
of section 68 of the Tamil Nadu Government Servants (Conditions of
Service) Act, 2016 and the interpretation that Section 20 deserved. Hence
we see no ground to interfere with the order of the High court. Therefore,
the special leave petition is dismissed.
                                                                              B

Ankit Gyan                                                   SLP dismissed.




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                                                                              H