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PETITIONER: R. RAMASWAMY

       Vs.

RESPONDENT: GOVERNMENT OF TAMIL NADU & ORS.

DATE OF JUDGMENT11/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCALE  (5)26

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R Leave granted.      The appellant  was appointed, thought temporarily, as a Project Officer  in the  Directorate of Tamil Culture Centre on May  21, 1979.  The Government stated in G.O.M.S. No. 296 dated September  6, 1989  that  both  the  post  of  Project Officer in  the erstwhile  Directorate of  Traditional Tamil Arts and that of Assistant Director in the Tamil Development Directorate are  equivalent in status and carry an identical scale of  pay. The  service of  the appellant  as a  Project Officer was  also regularised  by G.O.M.S.  No. 88 dated May 21, 1990 wherein the Government has stated that "the service of Thiru R. Ramaswamy in the cadre of Project officer in the erstwhile Department  of Tamil Culture Centre be regularised w.e.f. 22.5.1979,  namely, the  date  of  his  appointment". Thereby he  is a permanent incumbent for the post of Project Officer in the erstwhile Department.      When he  was temporarily promoted as Assistant Director and sought  promotion as Deputy Director, the question arose whether the  appellant was senior to respondent Nos.3 and 4, who  were  appointed  as  Assistant  Directors  on  December 10,1979 and  April 25,  1981 respectively.  When that status was not  given, he approached the Administrative Tribunal in O.A. No.  632/93, which by order dated February 4, 1994 held that since  respondent  Nos.  3  and  4  were  substantively holding the  post as  Assistant Directors,  the appellant is junior to  them and  the order  of appointment  by  transfer clearly indicates  that his  claim for  seniority  would  be determined at  a later  date. In  pursuance of the statutory order now  made in  G.O.M.S. No. 296 dated September 6, 1989 constituting the Tamil Nadu Ad-hoc Rules for Temporary Posts of Assistant  Directors, the  appellant cannot be said to be senior to the respondent Nos. 3 and 4.      Shri K.K.  Mani,  the  learned  counsel  appearing  for respondent Nos.  3 and  4, sought support for the conclusion reached by  the Tribunal  under Rule  8 of  the said  Ad-hoc

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Rules which envisages that "Nothing contained in these rules shall adversely  affect the  persons  holding  the  post  of Assistant Director  of Tamil  Development Directorate on the date of  issue of the Rules". Ms. A. Subhashini, the learned counsel appearing  for the State also sought to contend that even Rule  35 (b)  of the  Tamil Nadu  State and Subordinate Services Rules,  on which  the  appellant  sought  to  place reliance in  support of his claim, itself mentions that when any difficulty  or doubt  arises in  applying the  sub-rule, seniority  needs   to  be   determined  by   the  appointing authority. The Government being the appointing authority has been considering  the  matter  and  even  at  the  stage  of consideration in  the light  of the directions issued by the Tribunal, this  appeal was  filed and  that, therefore,  the Government could not be blamed for not determining the inter se seniority of the persons.      In view  of the  diverse contentions, the only question that arises  for consideration  is whether the appellant can be considered  as senior  to respondent  Nos.  3  and  4  as Assistant Directors  in the present Directorate. Rule 35 (b) of the  Tamil Nadu  State  and  Subordinate  Services  Rules states thus: <SLS>      "The transfer of a person from one class      or category  of  a  service  to  another      class or  category carrying the same pay      or scale  of pay shall not be treated as      first  appointment  to  the  latter  for      purpose of  seniority and  the seniority      of a  person  so  transferred  shall  be      determined with reference to the rank in      the class  or category from which he was      transferred;  where  any  difficulty  or      doubt arises  in applying  this sub-rule      seniority shall  be  determined  by  the      appointing authority." <SLE>      In  view   of  the   order  passed  by  the  Government appointing the  appellant substantively  as Project  Officer w.e.f. May 22, 1979 and treating the said post as equivalent to the  post of  Assistant Director carrying the same status and scale  of pay,  the necessary  implication is that he is holding the status and scale of pay of the post of Assistant Director in  the present  Directorate. However, the question is whether  the appellant is senior to respondent Nos. 3 and 4. As  already  observed,  respondent  Nos.  3  and  4  were appointed  on   December  10,   1979  and   May   25,   1981 respectively, i.e.  later than  the appellant.  Rule 35  (b) clearly envisages  that the  seniority  of  the  transferred persons shall  be determined  with reference  to the rank in the class  or category  from which he was transferred, which in the  case of  the  appellant  was  the  post  of  Project Officer. The necessary implication is that the appellant was deemed to  have been  transferred with  the same  status and scale of  pay as  of Assistant Director w.e.f. May 21, 1979. Consequently, he became senior to respondent Nos. 3 and 4 in that category, i.e., Assistant Director.      Rule 8  of Ad-hoc  Rules pressed  into service  by  Sri Mani, does  not have  any effect  on the  claim for inter se seniority of the appellant and respondent Nos. 3 and 4 which needs to  be determined by aid of Rule 35 (b) of the General Rules. It  only  prohibits  causing  of  adverse  effect  on persons named in the rule. The Government, therefore, should determine the  inter se seniority, and consider the question of promotion  to the  next  cadre,  viz.,  Deputy  Director,

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according to rules.      The  appeal   is  accordingly   allowed  but,   in  the circumstances, without costs.