By Anurag Mishra–
A special leave petition was filed by Office Assistants/Record Clerks in various courts in Erode District of the State of Tamil Nadu challenging the dismissal of their claim for promotion to the post of Junior Bailiff by the State High Court.
The Petitioners had previously approached the High Court of Madras for relief. There the contentions by the Petitioners was that they had approached the High Court praying that their claim for promotion to the post of Junior Bailiff, be considered without insisting on the educational qualification of a pass in SSLC. They based their claim on a previous order of the High Court dated 22nd July 2009. They also contended that the vacancies that they were claiming arose before the issue of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and, therefore, a pass in SSLC cannot be insisted upon as a qualification for their promotion.
Observations of High Court:
The High Court was of the opinion that it the court disagrees and rejects their claim on the ground that the previous judgment of the Court was no longer of any relevance, after the coming into force of Tamil Nadu Government Servants (Conditions of Service) Act, 2016. The Court also added that the date on which the vacancies arose cannot determine the Rule applicable for recruitment by promotion.
Observations by Supreme Court:
The Supreme Court has upheld the Madras High Court order rejecting claim of promotion of office assistants to the post of Junior Bailiff without insisting on the educational qualification of a pass in SSLC.
The petitioners cannot claim anything even on the basis of the unamended Special Rules for Tamil Nadu Basic Service, since the Basic Service does not contain any post called Junior Bailiff. There was a post called ‘Process Server’ in the Basic Service, but a higher scale of pay was granted to the said post and benefit of a higher pay scale having got attached to the post with a corresponding obligation to look for a higher qualification, it is no more open to the petitioners.
According to the Court, the argument that the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 will not apply as the vacancies arose in the year 2015, prior to the enactment, are of no relevance since the Act was enacted to consolidate the law relating to recruitment and the terms and conditions of service of persons appointed to the State in terms of the mandate contained in Article 309.
The Supreme Court, in the present case noted that it is clear that after the implementation of the recommendations of the Shetty Commission and 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 as prescribed in the Special Rules.
According to the Apex Court, the petitioners cannot take refuge under the failure of the Government to issue necessary amendment to Statutory Rules and the previous judgment of the High Court, since while the issue of amendment to statutory rules was pending, the nomenclature of the post had changed and a higher scale of pay was also given to the post. The previous judgment of the High Court therefore did not take note of any of the above developments and hence the same cannot be cited as a precedence by the petitioners.
Concluding remarks by the apex court.
The ultimate conclusion reached by the High 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 which makes it clear that the Special Rules will prevail over the provisions of the Act, in case of any inconsistency.