(Common Prayer: Writ Appeals filed under Clause 15 of Letters Patent, to set aside the order dated 26.03.2018 passed by this Court in WP(MD).Nos. 6374 & 7644 of 2017 and allow the writ appeals.

Prayer in WP(MD).No.19784 of 2017: This petition filed under Article 226 of Constitution of India, to issue a writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the 4th respondent in his proceedings in Na.Ka.No.1103/2012/B3 dated 04.06.2012 and the consequential impugned order passed by the 4th respondent in his proceedings in Na.Ka.No.B3/431/2016 dated 30.11.2016 and quash the same as illegal and consequentially to direct the respondents to draw the inter se seniority list of Assistants directly recruited through TNPSC and the promotive Assistants by placing the Promotive Assistants below the directly recruited Assistants in the light of the fact that the Promotive training Assistants did not complete the one year Junior Assistant training as contemplated under Rule 30(c) of the Tamil Nadu Ministerial Service Rules and other training required under the Service Rules.)

Common Judgment

R. Vijayakumar, J.

1. These writ appeals have been preferred by the petitioners in WP(MD).Nos.6374 and 7644 of 2017 challenging the dismissal of their writ petitions by way of a common order dated 26.03.2018 passed by the writ Court.

(A).Factual Matrix:

2. WP(MD).No.19784 of 2017 has been filed by the petitioner in WP(MD).No.6374 of 2017 seeking to challenge the order of the District Collector, Virudhunagar dated 04.06.2012 and the consequential impugned order dated 30.11.2016. The petitioner had further prayed for a direction to the respondents to draw the inter-se seniority list of Assistants directly recruited through TNPSC and the promotive Assistants by placing the Promotive Assistants below the directly recruited Assistants in the light of Rule 30(c) of the Tamil Nadu Ministerial Service Rules.

3. The private respondents in the writ appeals as well as in the writ petition who were working as Junior Assistants/Typists were promoted as Assistants on 04.06.2012. The writ appellants and the writ petitioner in WP(MD).No.19784 of 2017 were directly recruited as Assistants and appointed on 23.11.2012.

4. One K.Balamurugan who is a direct recruitee had preferred WP(MD).No.6374 of 2017. The other direct recruitees have preferred WP(MD).No.7644 of 2017. Both these writ petitions have been filed with a prayer for issuance of writ of mandamus to draw the inter se seniority list of Assistants directly recruited through TNPSC and the promotive Assistants by placing the Promotive Assistants below the directly recruited Assistants in the light of the fact that the Promotive Assistant did not complete one year Junior Assistant training as contemplated under Rule 30(c) of the Tamil Nadu Ministerial Service Rules and other training required under the Service Rules.

5. The one and only contention of the writ appellants was that the private respondents who are promotive assistants had not undergone training as a Junior Assistant for a period of one year before being promoted as an Assistant. Undergoing this training is a precondition for being promoted as an Assistant. None of the private respondents have undergone such a training. Therefore, their promotion as Assistants is illegal. Once the promotion is illegal, they cannot be placed over and above the directly recruited Assistant merely because they were promoted as Assistants six months prior to the directly recruited Assistants.

6. The official respondents have filed a counter before the writ Court contending that the promotive Assistants were appointed as Junior Assistants in July 2003 on temporary basis and they were appointed in the regular capacity in May 2009. Their services were also duly regularized. The official respondents also relied upon G.O(Ms).No.22, Rural Development & Panchayat Raj (E4) Department, dated 18.03.2010 wherein the precondition of undergoing training for a period of one year as Junior Assistant has been given a go-by.

7. The writ Court was pleased to dismiss the writ petition on the following grounds:

                     a).The writ petitioners (directly recruited Assistants) have not questioned the promotion granted in favour of the private respondents. In such circumstances, mandamus cannot be issued to redraw the inter se seniority.

                     b).The promotee Assistants were appointed prior to the direct recruits and the order of promotion having not been challenged by the writ petitioners, the inter se seniority cannot be redrawn.

                     c).The writ petitioners have not challenged the issuance of G.O(Ms).No.22, dated 18.03.2010. In the absence of any formal challenge to G.O(Ms).No.22, dated 18.03.2020 placing of promotee Assistants over and above the direct recruitees cannot be found fault with.

                     d).When the Government has consciously done away with the precondition of one year training as Junior Assistants, the promotion granted to promotee Assistants without undergoing training as Junior Assistant cannot be considered to be illegal or in violation of Rule 30(c) of Tamil Nadu Ministerial Service Rules.

                     e)As per Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules, a seniority of a person in service will be in reference to the date of appointment. The writ petitioner having been appointed later than the private respondents, they cannot claim seniority.

8. The common order passed by the writ Court in these writ petitions is put to challenge in the writ appeals in WA(MD).Nos.987 & 988 of 2018 by respective petitioners.

9. One K.Balamurugan has filed WP(MD).No.19784 of 2017 on 26.10.2017 challenging the order of promotion granted in favour of the private respondents on 04.06.2012. In the said writ petition, the order of District Collector, Virudhunagar dated 30.11.2016 wherein a tentative panel for the year 2012 for the post of Assistant/Rural Welfare Officer Grade-I was published is also challenged.

10. Since the issue involved in the writ appeals and the writ petition are interconnected, they are tagged together.

(B).Submissions of the learned counsels appearing on either side are as follows:

11. The learned counsel appearing for the writ appellants and the writ petition in WP(MD).No.198784 of 2017 had submitted that the private respondents were working as Typists and they have been promoted as Assistants in June 2012. As per Rule 30(c) of Tamil Nadu Ministerial Service Rules, whenever a Typist is sought to be promoted as Assistant, he should have mandatorily undergone training as a Junior Assistant at least for a period of one year. This is a precondition for granting promotion to the post of Assistant. Admittedly, the private respondents have not undergone such a training. Therefore, their promotion is illegal. Though the official respondents have relied upon G.O(Ms).No.22, Rural Development & Panchayat Raj (E4) Department, dated 18.03.2010 wherein a relaxation has been granted, the statutory Service Rules have not been amended pursuant to the said Government Order. Executive Order cannot amend the statutory Service Rules. In such circumstances, the authorities were not right in relying upon the said Government Order.

12. The learned counsel for the writ appellants had further submitted that the writ petition was primarily dismissed on the ground that the promotion granted in favour of the private respondents has not been challenged. However, WP(MD).No.19784 of 2017 has been filed challenging the promotion order granted in favour of the private respondents. This writ petition was pending while the common order was passed in WP(MD).Nos. 6374 and 7644 of 2018. Without taking into consideration of the pendency of WP(MD).No.19784 of 2017, orders have been passed by the writ Court dismissing the writ petitions as if the direct recruitees have not challenged the promotion granted in favour of the private respondents.

13. The learned counsel for the appellants had further submitted that the writ Court has not considered the fact that when the statutory Service Rules mandate one year training as Junior Assistant for promoting a Typist as an Assistant, an executive orders passed in G.O(Ms).No.22 dated 18.03.2010 cannot supersede the statutory Service Rules. Therefore, the writ Court was not right in relying upon the said Government Order. He had further submitted that the writ Court has relied upon Rule 35 (aa) of Tamil Nadu State and Subordinate Service Rules which states that the seniority of a person in the service will be with reference to the date of appointment to reject the request of the writ petitioner.

14. When the writ petitioners have challenged the promotion granted in favour of the private respondents and in case, their promotion order is set aside, the private respondents would have to be placed below the writ petitioners granting seniority to the private respondents from the date on which they have completed one year training as Junior Assistant. Therefore, Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules could not have been relied upon.

15. Per contra, the learned Additional Advocate General appearing for the respondents had submitted that the private respondents were promoted as Assistants six months prior to the direct recruitees. The writ petitioners have not mentioned whether the promotees were working as Junior Assistants or Typists. In fact, all the private respondents were not appointed as Typists. Many of them were appointed only as Junior Assistants. In such circumstances, the writ Court cannot rely Rule 30(c) of Tamil Nadu Ministerial Service Rules. That part, the Government has issued G.O(Ms).No. 22 dated 18.03.2010 wherein the service qualification for working as Rural Welfare Officer Gr-II for a period of not less than one year has been dropped. He had further submitted that the writ petitions have been filed belatedly after 4 ½ years of granting promotion.

16. The learned Additional Advocate General had further submitted that when the writ petitioners were intimated about their selection, TNPSC pointed out, the order of seniority will be sent separately. TNPSC had sent the order of seniority of the directly recruited persons only on 01.06.2015. Their tentative seniority was published on 24.05.2016 and the same was issued as per G.O(Ms).No.35, Personnel & Administrative Reforms Department dated 15.04.2015. As per Rule 35(aa) of the General Rule of Tamil Nadu State and Subordinate Service Rules, the inter se seniority between the directly recruited Assistants and the Assistants appointed by promotion shall be determined with reference to the date on which they were appointed to the services. Therefore, the impugned tentative seniority list published by the respondents is strictly in accordance with the above said Rules.

17. The learned Additional Advocate General had further submitted that in the absence of any specific provisions to place the directly recruited candidates above the promotees, the prayer of the writ petitioner cannot be considered. He had further submitted that most of them were initially appointed only as Junior Assistants. In such circumstances, the mandatory Rule of undergoing training as Junior Assistant is not at all essential. The writ petitioners have suppressed the fact that many of the private respondents were initially appointed only as Junior Assistants. Hence, he prayed for sustaining the order passed by the writ Court and to dismiss WP(MD).No. 19784 of 2017.

18. We have considered the submissions made on either side and perused the material records.

(C).Discussion:

19. A perusal of the affidavit filed in support of WP(MD).Nos.6374 and 7644 of 2018 reveals that all the private respondents have been clubbed under a single category of Junior Assistant/Typist. There is no segregation between the Junior Assistant and the Typist. Only if a segregation is made, the applicability of Rule 30(c) of Tamil Nadu Ministerial Service Rules and G.O. (Ms).No.22 Rural Development & Panchayat Raj (E4) Department, Dated 18.03.2010 can be taken into consideration.

20. For easy reference, Rule 30(c) of Tamil Nadu Ministerial Service Rules is extracted as follows:

                     30(c).No Typist shall be eligible for promotion as Assistant or to the posts which carry the scale of pay of Assistant in any department unless he had undergone training as Junior Assistant for a period of one year without detrimental to his Typist work:

                     (d).Typist appointed by transfer as Junior Assistant shall undergo the Foundational Training conducted at Civil Services Training Institute, Bhavanisagar. Provided that those who have crossed the age of 53 years need not undergo the said Foundational Training.”

21. As could be seen from the Service Rules, a Typist cannot be promoted to the post of Assistant unless he has undergone training as Junior Assistant for a period of one year without detrimental to his Typist work.

22. The District Collector, Virudhunagar has filed a counter in WP(MD).No.19784 of 2017. A reading of Paragraph No.7 of the said affidavit reveals that the respondents 5, 6, 8 to 12 have been working in Virudhunagar District as Junior Assistants while they were promoted as Assistants. The respondents 22, 24, 25, 30 and 31 have been transferred from other District to Virudhunagar District in the post of Junior Assistant by way of District transfer. These transferred candidates have been appointed in Virudhunagar District in between December 2010 to June 2011 much prior to the appointment of the writ petitioners. In fact, these transferred candidates have been directly recruited as Junior Assistants through TNPSC in the year 2009. Therefore, it is clear that the initial appointment of the above referred respondents was in the post of Junior Assistant and not as Typist. It is clear that they need not undergone the training as Junior Assistant as contemplated under Rule 30(c) of Tamil Nadu Ministerial Service Rules.

23. The counter of the 4th respondent further reveals that the 7th respondent in WP(MD).No.19784 of 2017 was initially working as a Radio Supervisor in Rural Development Department. The said post was abolished and as per G.O.(Ms).No.229, Rural Development (E4) Department, dated 30.08.2000, he was absorbed in Rural Development Department for the post of Assistants. The 7th respondent has joined the post of Assistant in Virudhunagar District on 09.02.2012 much prior to the appointment of the direct recruitees. When the appointment of the 7th respondent as Assistant is by way of G.O.(3D).43, Rural Development (E4) and Panchayat Raj Department dated 30.08.2011, without challenging the said Government order, the present writ petition challenging his seniority in the post of Assistant is not at all maintainable.

24. The respondents 13 to 21, 23, 26 to 29 and 32 were working as Typists and from the post of Typist, they have been promoted as Assistants. The official respondents have relied upon G.O.(Ms).No.22 dated 18.03.2010 wherein the Government had approved the proposal of the Commissioner of Rural Development and Panchayat Raj to do away with the service qualification of working as Rural Welfare Officer Grade-II for a period of not less than one year for promotion to the post of Assistant. However, it is the contention of the writ petitioner that the necessary amendment to the relevant special Rules have not been issued by the Government. Therefore, the said Government Order cannot come to the rescue of the Typist. This Government Order has been issued in the year 2010. Only based upon this Government Order, the authorities have proceeded to issue promotion orders to some of the respondents who were working as Typist. Merely because the consequential amendments have not been carried out by the official respondents, the promotion order issued to the Typist as Assistant cannot be found fault with. There is no fault on the part of these respondents.

25. The writ petitioners have admittedly been appointed as Assistants through direct recruitment in December 2012. The promotees have been appointed to the post of Assistant in June 2012. Therefore, the seniority has to be reckoned only from the respective date of their appointment. The writ petitioners cannot claim seniority from the date in which they were not borne into the service as Assistants. This would be against the settled service law jurisprudence. Without even verifying the fact that out of 28 private respondents, 12 respondents were initially appointed as Junior Assistant and not Typist and one of the respondents was directly appointed as an Assistant, the present writ petitions have been filed.

(D).Conclusion:

26. In view of the above said deliberations, we find no reason to interfere in the common order of the writ Court and there are no merits in the writ petition. The writ appeals and the writ petition stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.