P.Dharni Vs Govt.Of T.Nadu .

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“ REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4832 OF 2013 (Arising out of SLP (C) No. 3464 of 2012)

P. Dharni & Ors. … Appellants

Versus

Govt. of Tamil Nadu & Ors. … Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. Leave granted.

2. The controversy raised in the instant appeal revolves around the

genuineness of the claim of respondent no. 5, K.V. Karthalingan, for

promotion from the post of Motor Vehicles Inspector (Grade II) to the post

of Regional Transport Officer. In order to understand the veracity of the

aforesaid claim it would be relevant to mention, that the post of Motor

Vehicles Inspector (Grade II) is the lower most entry level post. The post

of Motor Vehicles Inspector (Grade II), is filled up only by way of direct

recruitment. Onward promotion therefrom is to the post of Motor Vehicles

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Inspector (Grade I). It is not a matter of dispute, that Special Rules framed

under Section 42 of the Tamil Nadu Transport Subordinate Service

exclusively prescribe the conditions of eligibility and the manner/method of

promotion from the post of Motor Vehicles Inspector (Grade II) to the post of

Motor Vehicles Inspector (Grade I). The aforesaid rules came into force with

effect from 19.8.1981. The said rules have been made available to us from the

Tamil Nadu Service Manual, Volume III. For purposes of the present

controversy, a relevant extract of rules 2, 5 and 9 of the said Special Rules is

being reproduced hereunder:-

“2. Appointment – (a) Appointment to the category mentioned in column (1) of the table below shall be made by the methods specified in the corresponding entries in column (2) thereof:-

TABLE

Category (1)

Method of Recruitment (2)

1. Motor Vehicle Inspector Grade-I

Promotion from Motor Vehicles Inspector, Grade – II

2. Motor Vehicles Inspectors Grade - II

Direct Recruitments:

(b) Promotion to category – 1 shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal.

xxx xxx xxx

5. Qualifications – (a) Age—(i) No per shall be eligible for appointment to category-2 by direct recruitment, unless he possesses the qualifications specified below, namely :-

(1) Must have completed 21 years of age;

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(2) Must not have completed 32 years of age :

Provided that a person belonging to the Scheduled Caste/Scheduled Tribes shall be eligible for appointment by direct recruitment to category-2 if he has not completed 37 years of age.

Provided further that the minimum age limit of 21 years prescribed above shall apply also to the candidate belonging to Scheduled Caste/Scheduled Tribes and Backward Classes.

(ii) The age limit prescribed in this rule shall be reckoned so far as direct recruits are concerned with reference to the first day of July of the year in which the selection for appointment is made.

(b) Other Qualifications.—No person shall be eligible for appointment to the category specified in column (1) by the method specified in column (2) of the table below unless he possess the qualifications specified in the corresponding entries in the column (3) thereof :-

TABLE

Sl.No. (1)

Category (2)

Method (3)

Qualification (4)

1. Motor Vehicles Inspectors, Grade-I

Promotion i) Must have served as Motor Vehicles Inspector, Grade-II for a period of not less than 5 years and must be an approved probationer in that category.

2. Motor Vehicles Inspectors

Direct Recruitment xxx xxx xxx

xxx xxx xxx

9. Preparation of Annual List of approved candidates – For the purpose of preparation of the annual list of approved candidates for appointment by promotion, the crucial date on

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which the candidates shall be qualified shall be the 15 th March of every year.”

A perusal of the rules extracted hereinabove reveals, that the post of Motor

Vehicles Inspector is to be filled up exclusively by promotion (Rule 2(a)).

The above rules postulate, that merit and ability would be the criterion for

such promotion (Rule 2(b)). It is also clarified that seniority would be taken

into consideration, only when merit and ability of the competing candidates

is found to be almost the same. The above Special Rules lay down, that

Motor Vehicles Inspectors (Grade II) would be considered for promotion to

the post of Motor Vehicles Inspector (Grade I) only after rendering five

years’ service (Rule 5(b)). Eligibility, on the basis of the qualifications

prescribed for promotion to the posts of Motor Vehicles Inspectors (Grade

I) is to be determined annually. For the said exercise the cut off date is

15th of March of every year (Rule 9).

3. It is also relevant to mention, that Special Rules have been framed

under Section 28 of the Tamil Nadu Transport Service for regulating the

conditions of eligibility and the manner/method of appointment, inter alia to

the post of Regional Transport Officer. Under the above rules, the post of

Regional Transport Officer can be filled up only by way of transfer. The

above Special Rules came into force with effect from 15.9.1974. The

same have been made available to us, from the Tamil Nadu Service

Manual, Volume II. Relevant extracts of Rules 2, 3 and 6 of the above

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Special Rules, which have a bearing on the present controversy, and are

being reproduced hereunder:-

“2. Appointment.—(a) Appointment to these categories shall be as follows :

Category (1)

Method of Appointment (2)

Category–1: Deputy Transport Commissioner

1) By promotion from category-2; or

2) For special reasons by recruitment by transfer from any other service on tenure basis.

Category-2: (1) Regional Transport Officer and Additional Transport Officer

(2) Assistant Secretary State Transport Authority

1) By recruitment by transfer from among—

(i) Motor Vehicles Inspectors, Grade-I in the Tamil Nadu Transport Subordinate Service; or

(ii) Superintendents, Selection Grade and Personal Assistant to Regional Transport Officers, in the Tamil Nadu Ministerial Service;

(or)

(2) For special reasons by recruitment by transfer from any other service on tenure basis;

(3) Appointment of an Officer on tenure basis from any State Transport Undertakings.

(b) Promotion to Category-I shall be made on grounds of merit and ability, seniority being considered only where merit and ability of competing candidates are approximately equal.

(c) The posts in category 2 other than those filled up by recruitment by transfer from any other service on a tenure

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basis shall be filled up by rotation, the first, second, fourth and fifth vacancies being filled up by recruitment by transfer from among Motor Vehicles Inspectors, Grade I, and the third vacancy being filled up by recruitment by transfer from Superintendents in the Selection Grade and Personal Assistants to Regional Transport Officers in the Ministerial Service :

Provided that this rotation shall be followed in respect of appointments made on and from the 26th June 1978 :

Provided further that the temporary appointments to Category- 2 made on and from the 15th September 1974 to the 25th June 1978 shall be regulated in the proportion of 1 : 1 between Motor Vehicles Inspectors, Grading – I, and Superintendents, Selection Grade, including Personal Assistants to Regional Transport Officers in the Ministerial Service.

3. Qualification:- No persons holding the post specified in Column (2) of the Table below, shall be eligible for appointment to the category specified in column (1) unless he posses the qualifications specified in column (3) thereof :

TABLE

CATEGORY (1)

POST (2)

QUALIFICATION (3)

Category – 1 Deputy Transport Commissioner

1. Regional Transport Officer and Additional Regional Transport Officer

2. Assistant Secretary, State Transport Authority

xxx xxx xxx

Category-2

(1) Regional Transport Officer and Additional Regional Transport

Motor Vehicles Inspector, Grade-I

Must have served for a total period of not less than five years as Motor Vehicles Inspector, Grade-I out of which not less than two years must be in a field office

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Officer.

(2) Assistant Secretary State Transport Authority

Superintendents, Selection Grade and Personal Assistants to the Regional Transport Officers

Must have served for a total period of not less than five years as Superintendent or a Personal Assistant to the Regional Transport Officer of which not less than two years shall be as a Personal Assistant to Regional Transport Officer.

Provided that this rule shall not be applicable to appointments prior to the date of 1st July 1978.

6. Preparation of Annual List of Approved Candidates – A list of approved candidates for appointment by promotion to Category 1 and recruitment by transfer to category 2 shall be prepared every year. The crucial date for inclusion in the panel of all eligible officers for such appointment shall be the 1st July of the year in which the selection for appointment is made.”

A perusal of the rules extracted above reveal, that appointment to the post

of Regional Transport Officer is to be made only by way of transfer,

interalia, from amongst Motor Vehicles Inspectors (Grade I) (Rule 2(a)).

Appointment by way of transfer to the post of Regional Transport Officer

from other services, (including the post of Motor Vehicles Inspectors

(Grade-I) is to be only on tenure basis (Rule 2(c)). It is significant to notice,

that to be eligible for appointment to the post of Regional Transport Officer

(from amongst Motor Vehicle Inspectors (Grade I)), the incumbent in

question must have served for a total period of not less than five years as

Motor Vehicles Inspector (Grade I), out of which not less than two years

must be in a field office (Rule 3). Eligibility, on the basis of the

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qualifications prescribed for transfer to the post of Regional Transport

Officer, is to be determined annually. For the said exercise, the cut off

date stipulated under the Special Rules is 1st July of every year (Rule 6).

4. The career of respondent no. 5, K.V. Karthalingan, in the Transport

Department of the State Government commenced on his appointment by

direct recruitment as Motor Vehicles Inspector (Grade II), on 9.2.1995.

While serving as Motor Vehicles Inspector (Grade II), he claimed that he

had detected on a single date 14 cases of passenger vans being used as

public careers. He asserted, that he had seized the concerned vehicles,

whose owners were evading payment of tax (to the Transport Department).

He also asserted, that he had detected irregularities being committed by

certain dealers, for evading revenue (payable to the Transport

Department). He also claimed to have detected various instances where

dealers were found meddling with chassis numbers of vehicles. By a

process of tempering, chassis numbers were being altered, by the dealers.

According to respondent no. 5, his actions had resulted in bringing to book,

numerous persons evading payment of tax to the Transport Department.

According to respondent no. 5, K.V. Karthalingan, the above actions were

taken by him despite grave personal risks. In this behalf, it was his

assertion, that he had received a number of threatening letters, for having

revealed the aforesaid irregularities. In the above letters he was

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threatened, that he would be eliminated. Despite receipt of such letters,

respondent no. 5 claims to have continued to discharge his duties with

dedication and devotion.

5. In appreciation of the above alleged exemplary devotion of duty

displayed by respondent no. 5, the Managing Director of the Tamil Nadu

State Transport Corporation, Kumbakonam Division-1, as well as, the

Managing Director of Cholan Roadways Corporation, recommended the

name of respondent no. 5, K.V. Karthalingan, for accelerated/out of turn

promotion as Regional Transport Officer. On 26.9.1997, having

considered the recommendations made by the Managing Directors

(referred to above), the Regional Transport Officer by citing Rule 36(b)(ii)

of the Tamil Nadu State and Subordinate Services Rules, also

recommended the claim of respondent no. 5 for out of turn/accelerated

promotion. The Deputy Transport Commissioner, Trichy, on 10.7.1998,

having considered the above recommendations, endorsed the claim of

respondent no. 5, K.V. Karthalingan, for accelerated/out of turn promotion,

to the Commissioner of Transport, Chennai. In order to appreciate the

recommendation made on 26.9.1997 by the Regional Transport Officer, it

is essential to extract hereunder Rules 36 and 36A of the Tamil Nadu State

and Subordinate Services Rules, which came into force with effect from

1.1.1955. It was pointed out, that the above rules were framed in exercise

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of powers conferred by the proviso under Article 309 of the Constitution of

India. The said rules are reproduced below :-

“36. (a) Promotion — No member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category:

Provided that a member of a service or class of a service who, having satisfactorily completed his probation in the category in which he was appointed to the service, has been promoted to the next higher category shall, notwithstanding that he has not been declared to have satisfactorily completed his probation in such higher category be eligible for promotion from such higher category:

Provided further that if scales of pay of posts in the feeder categories are different, the persons holding post carrying a higher scale of pay in the feeder category shall be considered first and that, if no qualified and suitable persons holding post in that feeder category are available, the persons holding post carrying the next higher scale of pay in descending order in other feeder categories shall be considered.

(b) (i) Promotions to selection category or grade.— Promotions in a service or class to a selection category or to a selection grade shall be made on grounds of merit and ability, seniority, being considered only where merit and ability are approximately equal. The inter-se- seniority among the persons found suitable for such promotion shall be with reference to the inter-se- seniority of such persons in the lower post.

(ii) Promotion according to seniority—All other promotions shall, be made in accordance with seniority unless-

(1) the promotion of a Member has been withheld as a penalty, or

(2) a Member is given special promotion for conspicuous merit and ability.

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(c) Appointment of a member to higher category not to be considered if he had been on leave for three or four years or more continuously.—Notwithstanding anything contained in sub-rules (a) and (b), a member of a service who had been on leave for a period of three years continuously for any reason except higher studies or for a period of four years continuously for higher studies, shall not be considered for appointment as a higher category either by promotion or by recruitment by transfer unless he has completed service for a period of one year from the date on which he joins duty on return from leave.

36A. Appointment by Recruitment by Transfer.—Appointments by recruitment by transfer to a class or category in a State Service from among the holders of posts in a Subordinate Service, shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal.”

6. Whilst it is the claim of respondent no. 5, that he had a genuine

claim for out of turn/accelerated promotion under Rule 36(b)(ii), it is the

vehement contention of the learned counsel for the appellants before us,

that the aforesaid rule could neither be invoked for promotion to the post of

Motor Vehicles Inspector (Grade I) nor for appointment by way of transfer

to the post of Regional Transport Officer.

7. Before examining the merits of the controversy, it will be essential for

us to narrate the sequence of events leading to the direction by the High

Court of Judicature at Madras (hereinafter referred to as the ‘High Court’),

for promoting respondent no.5, K.V. Karthalingan, to the post of Regional

Transport Officer. Insofar as the instant aspect of the matter is concerned,

it would be relevant to mention, that respondent no. 5 addressed a

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representation dated 30.6.1998 seeking out of turn/accelerated promotion.

For his instant prayer, he sought consideration of his sincere, efficient and

unblemished record of service, detailed above. On receipt of the aforesaid

representation, relying on the recommendation made by the Managing

Director of the Tamil Nadu State Transport Corporation, Kumbakonam

Division-1 and Managing Director of Cholan Roadways Corporation, on

26.9.1997 the Regional Transport Officer, also recommended the claim of

respondent no. 5. Thereupon, the Deputy Transport Commissioner,

Trichy, on 10.7.1998, further recommended respondent no. 5, K.V.

Karthalingan, for accelerated promotion, to the Commissioner of Transport,

Chennai.

8. Despite the above recommendations, no action was taken by the

authorities. It is, therefore, that respondent no. 5, K.V. Karthalingan,

approached the Tamil Nadu Administrative Tribunal, at Chennai

(hereinafter referred to as, the Administrative Tribunal), by filing Original

Application no. 5918 of 1998. The aforesaid Original Application was

disposed of by an order dated 6.11.1998, without issuing notice to the

respondents. A perusal of the order dated 6.11.1998 reveals, that the

Transport Secretary of the State Government, was directed to pass orders

on the recommendations made by the Deputy Transport Commissioner,

Trichy dated 10.7.1998.

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9. Consequent upon the issuance of the above directions, the State

Government passed an order dated 8.12.1998. By the instant order, the

claim of the respondent no. 5 K.V. Karthalingan, for out of turn/accelerated

promotion came to be rejected. While rejecting the prayer of respondent

no. 5, the State Government recorded, interalia, the following reasons:-

“2. The government have examined the representation of Mr. V. Kathalingam, taking into consideration of the direction the Hon’ble (Tribunal). (The) Tamil Nadu Transport Subordinate Service do not provide for out of turn or accelerated promotion. Besides, there is no merit in the claim of the petitioner. Instances of extraordinary services quoted by him are common in Transport Department as well as in Civil Service.

3. Accordingly, the Government rejects the request of Mr. Kathalingam, Motor Vehicles Inspector, Grade-II for accelerated Promotion.”

A perusal of the order passed by the State Government reveals, that the

rules regulating the conditions of service of respondent no. 5 do not

provide for an avenue for out of turn/accelerated promotion. The State

Government also arrived at the conclusion, that the instances of

extraordinary service relied upon by respondent no. 5 (to claim out of

turn/accelerated promotion), could not be treated as exceptional or

unprecedented, because such instances were common in the Transport

Department.

10. Dissatisfied with the order of the State Government dated 8.12.1998,

respondent no. 5 preferred Original Application no. 429 of 2002 before the

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Administrative Tribunal. The aforesaid Original Application was allowed by

the Administrative Tribunal vide an order dated 10.7.2002. In the instant

matter, the Administrative Tribunal had issued notice to the respondents

(i.e, different functionaries of the State Government). The respondents

were duly served. But the matter was disposed of without waiting for a

reply from them. While allowing the aforesaid application, even though the

State Government while rejecting the claim of respondent no. 5 vide order

dated 8.12.1998 had recorded that the instances indicated by him for out of

turn/accelerated promotion, could not be treated as exceptional or

extraordinary, the Administrative Tribunal held that the same constituted

conspicuous merit and ability, and were sufficient to earn respondent no.5,

K.V. Karthalingan, out of turn/accelerated promotion as Regional Transport

Officer. In its aforesaid determination, the Administrative Tribunal recorded

the following observations:-

“5. The rejection order is found in G.O.Ms. No.2535 Home (Transport II) Department, dated 8.12.1998. There is no dispute about the extraordinary performance of the petitioner. In one of the leading English Journals circulated in Tamil Nadu, the publication is to the following effect :

“Parambalur October 31 Instance of dealers in two-wheelers illegally altering the chassis and registration numbers of vehicles to distribute vehicles with numbers as desired by the clients have come to light during inspections here.

On July 18, a two-wheeler with the chassis number A 606 F 376242 was brought to the office of motor vehicle Inspector here. During the Inspection the digit ‘6’ in the chassis number

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was found repunched. Following this the inspector verified the papers relating to the vehicle issued by a local dealer. It came to light that as per the invoice issued by the manufacturers of June 8, 1996, the chassis number was A 606 F 3708242 and the vehicle has been registered from June 10. The Inspector found that the digit ‘6’ had been repunched in lieu of ‘0’.

Consequently, the Inspector has reportedly written to the manufacturers and the Regional Transport Officer recommending cancellation of the grade licence issued to the dealer.

Instance of meddling with the chasis number were also found in the vehicle brought for registration on earlier occasions. The digits ‘0’ ‘3’ and ‘1’ were found tampered to read as ‘6’, ‘8’ and ‘7’.

The Inspector has sent letters to the individual owners calling for explanation. The replied were similar. We parted with a bribe of Rs.2300 to avoid registration numbers totaling to ‘8’ but the Vehicles allotted to us carried numbers totaling to ‘8’ only. We returned the vehicles and after a few days got vehicles with fresh registration numbers.

It is said though it is three months since the irregularity was detected, no action has been taken so far. On the contrary the Inspector who detected the irregularity has reportedly received threat letters from a number of sources.”

6. There is already a direction from this Tribunal in O.A. No.5918 of 1998 to consider the case of the petitioner and pass orders. Accordingly the government has passed orders rejected the claim of the petitioner stating that special rules for Tamil Nadu Transport Subordinate Service do not provide for out of turn for accelerated promotion.

7. Mr. P. Jayaraman, Senior Counsel relied upon General Rule 36(b)(2). It reads as follows :-

“Promotion according to seniority:-

All the other promotion shall be made in accordance with seniority unless :

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(i) The promotion of a member shall be withheld as a penalty or

(ii) A member is given special promotion for conspicuous merit and ability.

By this Sub-rule (ii), there is an implication for grant of special promotion for conspicuous merit and ability. In this case, it is not disputed that the petitioners has rendered meritorious service. Therefore, rejecting the claim of the petitioner on the ground that there are no rules is not proper. Hence the rejection order is set aside. The petitioner shall be given promotion as Regional Transport Officer. The orders shall be passed within a period of six months from today.”

A perusal of the determination rendered by the Administrative Tribunal

reveals, that a clear and categorical finding was recorded by it, that there

was no dispute about the extraordinary performance of respondent no. 5,

K.V. Karthalingan. Reliance was also placed on Rule 36(b)(ii) of the Tamil

Nadu State and Subordinate Service Rules to conclude, that the claim of

respondent no. 5 for out of turn/accelerated promotion could have validly

been considered under Rule 36(b)(ii) of the General Rules. Having

recorded the aforesaid factual finding, as also having concluded that there

was a statutory provision whereunder the claim of respondent no. 5 for out

of turn/accelerated promotion could be granted, the Administrative Tribunal

directed the respondents, to issue an order promoting the respondent no. 5

as Regional Transport Officer, within a period of six months (from the date

of the order dated 10.7.2002).

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11. Now that respondent no. 5 had succeeded before the Administrative

Tribunal, the State Government filed Writ Petition (Civil) no. 21562 of 2003

before the High Court, to assail the order passed by the Administrative

Tribunal dated 10.7.2002 (whereby respondent no. 5 was directed to be

promoted to the post of Regional Transport Officer). The instant challenge

raised by the State Government did not achieve the desired purpose,

inasmuch as, the aforesaid writ petition came to be dismissed by an order

dated 13.10.2004. In paragraph 2 of the order passed by a Division Bench

of the High Court, on a consideration of the instances relied upon by

respondent no. 5, as also, the recommendations made by the Managing

Directors of Tamil Nadu Transport Corporation, Kumbakonam Division-1

and Cholan Roadways Corporation, and the recommendation made by the

Deputy Transport Commissioner, Trichy, dated 10.7.1998, it came to be

concluded, that respondent no. 5, K.V. Karthalingan, was entitled to out of

turn/accelerated promotion. The High Court also took into consideration

Rule 36(b)(ii) of the Tamil Nadu State and Subordinate Service Rules, and

on the basis thereof held, that the statutory rules regulating the conditions

of service of respondent no. 5, provided for out of turn/accelerated

promotion, based on meritorious/outstanding service. Having so

concluded, the High Court also expressed the view, that there was nothing

in the Special Rules (the rules framed under Section 42 of the Tamil Nadu

Transport Subordinate Service, and/or Section 28 of the Tamil Nadu

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Transport Service), that was repugnant to the General Rules (the Tamil

Nadu State and Subordinate Service Rules) providing for accelerated

promotion. Accordingly, the High Court upheld the order passed by the

Administrative Tribunal. The High Court while disposing of Writ Petition

(Civil) no. 21562 of 2003, directed the State Government (i.e. the

petitioners before the High Court) to implement the order passed by the

Administrative Tribunal, within four months from the date of receipt of a

copy of the High Court order.

12. Aggrieved with the decision rendered by the High Court in Writ

Petition no. 21562 of 2003 (decided on 13.10.2004), the State Government

filed Petition for Special Leave to Appeal (Civil) bearing no. 11538 of 2005.

Besides the above petition filed by the State Government before this Court,

one P. Mani also approached this Court by filing Petition for Special Leave

to Appeal (Civil) bearing no. 11542 of 2005, for assailing the order of the

High Court dated 13.10.2004. Both the above mentioned petitions were

withdrawn by the State Government, as also, by the said P. Mani, on

7.7.2006. As a result of the withdrawal of the aforesaid petitions, the order

passed by the High Court on 13.10.2004 directing the State Government to

promote respondent no. 5 to the post of Regional Transport Officer,

attained finality.

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13. Despite the above legal position, namely, that the order of the High

Court dated 13.10.2004 had attained finality, the State Government did not

implement the order passed on 10.7.2002 (in O.A. no. 429 of 2002) by the

Administrative Tribunal, or the order passed by the High Court dated

13.10.2004 (in Writ Petition No.21562 of 2003). It is in the aforesaid

background, that respondent no. 5, K.V. Karthalingan, filed Contempt

Petition no. 5188 of 2006 before the High Court. The High Court having

taken notice of the entire factual position upto the date of withdrawal of the

petitions for special leave to appeal preferred before this Court, recorded

the following observations:-

“6. After dismissal of the SLPs as withdrawn, the Special Commissioner and Transport Commissioner has sent a proposal to the Government on 19.7.2006, recommending the name of the petitioner for the post of Joint Transport Commissioner also after implementing the orders of the Tribunal and this Court, since the petitioner would reach that position if the orders are implemented properly. But, pending remarks from the Transport Commissioner, the Government issued G.O.2(D) No.111, Home (Trpt-II) Department dated 21.2.2007, temporarily promoting the petitioner as Regional Transport Officer and posted him at the office of the Regional Transport Officer, Chennai (West). According to the petitioner, the Special Commissioner and Transport Commissioner, by his considered remarks dated 10.05.2007, sent a proposal that his name has to be included in the list of panel of Regional Transport Officers for the year 1996, next to Mr. A.A. Khader Moideen, who was lastly promoted on 2.4.1996, vide G.O.Rt. No.831, Home (Tr-II) Department. According to the petitioner, while the above process was on, on some complaints by a dealer, whose irregularities were found out by him, certain charges were framed against the petitioner by the authorities and on enquiry, final orders were passed in favour of the petitioner. The petitioner would further contend that the properties purchase through the business income of his wife and her brothers were shown as his disproportionate assets, charges were

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framed against him, but on enquiry, they dropped on 15.12.2008, in consultation with TNPSC, and the former Principal Secretary and Transport Commissioner. In his letter dated 29.4.2010 addressed to the Director of vigilance and Anti-corruption denied permission to prosecute the petitioner. But, however, on the very same allegations, the succeeding Transport Commissioner, took a contrary view and accorded sanction for prosecution on 24.11.2010. But, again on 4.2.2011, the very same Transport Commissioner sent remarks, by referring the pleading that a person once convicted or acquitted shall not be tried for the same offence again, and sent his remarks to the Government stating that the Government is the competent authority to withdraw the case referred to Tribunal for Disciplinary Proceedings, Trichy at any stage, as per Rule 8(b) of the TNSC (D&A) Rules. A reminder was also sent by the said authority on 20.6.2011 and the petitioner has also sent a representation dated 14.7.2011, but no orders have been passed till date by the Government.

7. A perusal of the entire materials placed on record, prima facie, would establish the fact that in order to deprive the petitioner from getting his accelerated promotion as ordered by the Tribunal and by this Court, the respondents have adopted various dilatory tactics and are trying to water down the order of the Tribunal and this Court. When this Court has ordered to grant the petitioner accelerated promotion as Regional Transport Officer, the respondents have issued orders temporarily promoting him to that cadre. Today, during the course of arguments, it has been submitted on behalf of the respondents that there is a criminal case pending against the petitioner for possessing assets disproportionate to his known sources of income.”

14. The appellants before us filed Petition for Special Leave to Appeal

(Civil) no. 3464 of 2012 on having realised, that the claim raised by

respondent no. 5, for promotion to the post of Regional Transport Officer,

had now fructified into a reality. The reason for approaching this Court

directly was, that it would be an exercise in futility for the appellants to

approach the High Court, as a Division Bench of the High Court had

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already adjudicated the controversy, and while doing so, examined the

factual, as well as, the legal propositions involved. And furthermore, a

challenge raised to the order passed by the Division Bench of the High

Court, before this Court had been withdrawn. It was also their contention,

that the petitioners (now the appellants before this Court) were never

arrayed as party respondents in the litigation preferred by respondent no.

5, K.V. Karthalingan, even though their rights were liable to be prejudicially

affected by the promotion of respondent no. 5, K.V. Karthalingan, to a

higher post in the service. Since respondent no. 5 was junior to all of

them, it was their submission, that they ought to have been arrayed as

party respondents. Insofar as the instant aspect of the matter is

concerned, it was pointed out, that whilst respondent no. 5, K.V.

Karthalingan, was appointed against the post of Motor Vehicles Inspector

(Grade II) on 9.2.1995, appellant no.1 P. Dharni was appointed as such on

18.1.1988, i.e., more than seven years before the appointment of

respondent no.5. It was further pointed out, that even though respondent

no. 5 was promoted as Motor Vehicle Inspector (Grade I) on 10.5.2000,

appellant no. 1 P. Dharni was promoted as such, on 5.9.1994 i.e., almost

six years before the promotion of respondent no. 5 K.V. Karthalingan as

Motor Vehicles Inspector (Grade I). It was sought to be pointed out, that in

the seniority list of the cadre of Motor Vehicles Inspector (Grade I), whilst

the name of P. Dharni (appellant no. 1 herein) figured at serial no. 81, that

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of respondent no. 5, K.V. Karthalingan was placed at serial no. 141. In the

above view of the matter it was submitted, that despite respondent no. 5

being 60 steps below the appellant P. Dharni, he was being promoted

unjustifiably above him, and many other similarly situated persons, senior

to respondent no. 5, K.V. Karthalingan. It was submitted, that even the

other appellants were likewise superiorly placed vis–a-vis respondent no.

5, K.V. Karthalingan.

15. Based on the above pleas, this Court entertained the petition for

special leave to appeal preferred by the appellants on 21.12.2011. While

issuing notice in the matter, this Court also directed the parties to maintain

status quo. After being served, all the respondents have filed counter

affidavits. The appellants have also filed a rejoinder affidavit, to the

counter affidavit filed by respondent no.5, K.V. Karthalingan. Pleadings

are, therefore, complete.

16. Having heard learned counsel for the rival parties we realised, that

Original Application no.5918 of 1998 filed by respondent no.5 was

disposed of (on 6.11.1998), without issuing notice to the State or the

affected parties. Insofar as Original Application no.429 of 2002 is

concerned, the same was disposed of (on 10.7.2002) without seeking a

reply from the State, even though it had been duly served. In fact, in

neither of the said Original Application, persons senior to respondent no.5

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K.V. Karthalingan were impleaded as respondents, despite his claim for

promotion before them. After the dismissal of Writ Petition no. 21562 of

2003 by the High Court, the Petitions for Special Leave to Appeal filed by

the State Government, as also by a private individual, were withdrawn.

There was therefore no adjudication on merits, by this Court. These

factors persuade us to feel, that the questions raised had far reaching

consequences, and therefore, needed to be examined on merits.

Remanding the matter back to the Administrative Tribunal or the High

Court, for re-determination of the issue, by affording an opportunity of

hearing to the appellants before us, as also to those senior to respondent

no. 5, K. Karthalingan, was one available option. Having heard learned

counsel for the rival parties at great length, even on merits, we felt that it

would be best for us to adjudicate upon the matter ourselves. It was

possible for us to do so, because the rival parties had an opportunity for

the first time before us, to raise their claims and counterclaims, through

detailed pleadings and submissions.

17. During the course of hearing, submissions advanced at the behest of

the appellants were based on the peculiar facts of the case, as also, purely

on the basis of the rules regulating the conditions of service of the

appellants, as well as, respondent no. 5, K.V. Karthalingan. Even though

the chronological order in which the submissions were advanced during

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the course of hearing were different, we have chosen to deal with the same

in a different sequence so as to bring out the true effect of the statutory

rules, on the basis whereof rival claims were projected.

18. We shall first deal with the legal aspects in the matter. Principally

the contention advanced at the hands of the appellants before us was, that

Rule 36(b)(ii) of the Tamil Nadu State and Subordinate Services Rules

relied upon by respondent no. 5, K.V. Karthalingan, as also the authorities

which had recommended his claim for out of turn/accelerated promotion, is

a part of the General Rules, as it figures in Part II of the Tamil Nadu State

and Subordinate Services Rules. It was submitted, that the Special Rules

override the General Rules. Based on the Special Rules framed under

Section 42 of the Tamil Nadu Transport Subordinate Service, and under

Section 28 of the Tamil Nadu Transport Service, it was sought to be

contended, that Rule 36(b)(ii) of the General Rules relied upon by

respondent no. 5, K.V. Karthalingan, could not have been taken into

consideration, for granting him out of turn/accelerated promotion, as the

same is in conflict with the Special Rules.

19. To substantiate the contention noticed in the foregoing paragraph,

learned counsel for the appellants invited our attention to the Tamil Nadu

State and Subordinate Services Rules. The aforesaid rules are divided

into two parts. Part I bears the heading – “Preliminary”, whereas Part II

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bears the heading “General Rules”. Rule 36(b)(ii) relied upon by

respondent no. 5, K.V. Karthalingan, falls in Part II – “General Rules”. For

all intents and purposes Rule 36(b)(ii) should therefore be perceived as a

General Rule. In fact, for the instant inference, there was no dispute

amongst the rival parties. Having substantiated that Rule 36(b)(ii) is a

General Rule, learned counsel for the appellants, invited our attention to

Rules 9 and 19 of Part I – “Preliminary”, of the Tamil Nadu State and

Subordinate Services Rules. The same are being extracted hereunder:-

“9. “General Rules” shall mean the rules in Part II of these rules;

xxx xxx xxx

19. “Special Rules” shall mean the rules in Part III applicable to each service or class of service;”

Rules 9 and 19 extracted above, define “General Rules” and “Special

Rules” respectively. It was reiterated, that it was further clear from the

above definition of “General Rules” recorded in Rule 9 extracted above,

that Rule 36(b)(ii) is a General Rule, because it is a rule in Part II of the

Tamil Nadu State and Subordinate Services Rules.

20. Thereupon, it was submitted, that the rules referred to in the earlier

part of this order, framed under Section 42 of the Tamil Nadu Transport

Subordinate Service, and under Section 28 of the Tamil Nadu Transport

Service, would fall in the category of Special Rules. For the said inference,

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reliance was placed on Rule 19 contained in Part I – Preliminary, of the

Tamil Nadu State and Subordinate Services Rules. The above inference

was drawn on the assertion that the said rules were framed specially to

cater to posts in different cadres of the Transport Department. Again, for

the instant inference, there was no dispute amongst the rival parties. We

find merit in this contention as well, for the reasons expressed by the

learned counsel for the appellants. Therefore, for all intents and purposes,

the rules framed under the above provisions must be deemed to be

Special Rule.

21. For demonstrating the superiority of one set of rules, over the other,

learned counsel for the appellants brought to our attention, Rule 2 from

Part II – “General Rules”, of the Tamil Nadu State and Subordinate

Services Rules, which reads as under:-

“2. Relation to the special rules – If any provision in the general rules contained in this part is repugnant to a provision in the special rules applicable to any particular service, contained in Part III, the latter shall, in respect of that service, prevail over the provision in the General Rules in this part.”

A perusal of Rule 2 extracted above, leaves no room for any doubt, that in

case of repugnancy between the Special Rules and the General Rules, the

Special Rules will prevail over the General Rules. We acknowledge and

affirm the aforesaid inference. We may now summarise our conclusions.

Firstly, that Rule 36(b)(ii) of the Tamil Nadu State and Subordinate

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Services Rules, falls in Part II – General Rules, is clearly a General Rule.

Secondly, the rules prescribing the conditions of eligibility and the

manner/method of appointment by promotion from the post of Motor

Vehicles Inspector (Grade II) to the post of Motor Vehicles Inspector

(Grade I), framed under Section 42 of the Tamil Nadu Transport

Subordinate Service, are Special Rules. Thirdly, the rules prescribing the

conditions of eligibility and the manner/method of appointment by transfer

to the post of Regional Transport Officer, interalia out of Motor Vehicles

Inspectors (Grade I), framed under Section 28 of the Tamil Nadu Transport

Service, are Special Rules. And fourthly, in case of a conflict between the

Special Rules and the General Rules, the Special Rules will have an

overriding effect over the General Rules.

22. The first contention advanced at the hands of the learned counsel for

the appellants in order to demonstrate that Rule 36(b)(ii) of the Tamil Nadu

State and Subordinate Services Rules, contained in Part II – “General

Rules”, is in conflict with the Special Rules, was sought to be substantiated

by placing reliance on the Special Rules framed under Section 42 of the

Tamil Nadu Transport Subordinate Service, which exclusively prescribe the

conditions of eligibility and the manner/method of appointment by

promotion from the post of Motor Vehicles Inspector (Grade II) to the post

of Motor Vehicles Inspector (Grade I). Referring to Rule 2 of the Special

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Rules it was asserted, that the only avenue of promotion from the post of

Motor Vehicles Inspector (Grade II) is to the post of Motor Vehicles

Inspector (Grade I), and as such, on the subject of out of turn/accelerated

promotion, the claim of respondent no. 5, K.V. Karthalingan, could only

have been considered for promotion to the post of Motor Vehicles

Inspector (Grade I). Relying on Rule 5(b) of the above Special Rules it

was submitted, that for promotion to the post of Motor Vehicles Inspector

(Grade I) the concerned incumbent must have served as Motor Vehicles

Inspector (Grade II) for a period of not less than five years. Referring to

Rule 9 of the said Special Rules it was asserted, that a Motor Vehicles

Inspector (Grade II) would acquire eligibility after fulfilling the aforesaid

eligibility criteria with reference to 15th of March of the year in which he

completes the prescribed conditions of eligibility. Taking into consideration

the fact, that respondent no. 5, K.V. Karthalingan, was appointed as Motor

Vehicles Inspector (Grade II) in 1995, it was submitted, that he would

acquire eligibility for promotion to the post of Motor Vehicles Inspector

(Grade I) only on 15th of March, 2000. It was accordingly contended, that

when respondent no. 5, K.V. Karthalingan, made his representation dated

30.6.1998, seeking out of turn/accelerated promotion, he was not even

eligible for promotion to the post of Motor Vehicles Inspector (Grade I). In

the above view of the matter, it was the contention of the learned counsel

for the appellants, that granting promotion to respondent no. 5, K.V.

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Karthalingan, prior to his having acquired the eligibility even for

appointment to the post of Motor Vehicles Inspector (Grade I), would

violate Rules 5 and 9 of the Special Rules.

23. Having given our thoughtful consideration to the contention

advanced at the hands of the learned counsel for the appellants, we are

constrained to uphold the first contention raised at the hands of the learned

counsel for the appellants. It is not as if we are oblivious of the fact that

the question to be considered is whether respondent no. 5, K.V.

Karthalingan, has rightfully been granted out of turn/accelerated promotion

to the post of Regional Transport Officer, whereas, the instant first

contention advanced at the hands of the learned counsel for the appellants

is with reference to promotion to the post of Motor Vehicles Inspector

(Grade I). The reasons for accepting the instant contention will flow from

the conclusions drawn by us with reference to the next two legal

submissions advanced at the hands of the appellants. All the same, we

are satisfied, that even if the claim of respondent no. 5, K.V. Karthalingan,

was considered for out of turn/accelerated promotion to the post of Motor

Vehicles Inspector (Grade I), such a claim could not have been accepted

without his having acquired eligibility under Rules 6 and 9 of the Special

Rules. Allowing him out of turn promotion even to the post of Motor

Vehicles Inspector (Grade I) by relying no Rule 36(b)(ii), would have

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violated the mandate of the Special Rules. Rule 2 contained in Part II –

“General Rules” of the Tamil Nadu State and Subordinate Service Rules,

itself specifically mandates, that in case of a conflict between the Special

Rules and the General Rules, the Special Rules will prevail. Rules 6 and 9

being Special Rules must therefore, be satisfied, before an individual can

make a claim for out of turn/accelerated promotion under Rule 36(b)(ii),

which is a General Rule. For the reasons recorded hereinabove, we have

no hesitation in holding, that even if promotion had been granted to

respondent no. 5, K.V. Karthalingan against the post of Motor Vehicles

Inspector (Grade I), on out of turn/accelerated basis by relying on Rule

36(b)(ii) of the General Rules, the same would have been unacceptable in

law, and as such, would have been liable to be set aside.

24. The second contention advanced at the hands of the learned

counsel for the appellants was, that for the same reasons and on same

logic as has been indicated above, for demonstrating that promotion of

respondent no. 5, K.V. Karthalingan, to the post of Motor Vehicles

Inspector (Grade I) could not have been treated as valid under Rule 36(b)

(ii), so also, the promotion of respondent no. 5, K.V. Karthalingan, to the

post of Regional Transport Officer cannot be accepted as valid. Insofar as

the post of Regional Transport Officer is concerned, learned counsel for

the appellant placed reliance on Rules 3 and 6 of the Special Rules framed

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under Section 28 of the Tamil Nadu Transport Service. To be eligible for

appointment as Regional Transport Officer, a Motor Vehicles Inspector

must have served for a total period of not less than five years as Motor

Vehicles Inspector (Grade I), out of which not less than two years must be

in a field office. It is also clear, that the aforesaid eligibility would be

determined with reference to the 1st of July every year. Even if it is

assumed, that respondent no. 5, K.V. Karthalingan, came to be promoted

as Motor Vehicles Inspector (Grade I) immediately on completion of five

years’ service as Motor Vehicles Inspector (Grade II), he would still need

another five years’ service before he could be appointed as Regional

Transport Officer. Out of the said service, two years ought to have been in

a field office. In the above view of the matter it was submitted, that a

minimum of 10 years of service must mandatorily be rendered by a Motor

Vehicles Inspector (Grade II), before he can contemplate appointment to

the post of Regional Transport Officer. In view of the fact that respondent

no. 5, K.V. Karthalingan was appointed as Motor Vehicles Inspector

(Grade II) on 9.2.1995, he would acquire eligibility for the same only on

1.7.2005. It was submitted, that if respondent no. 5, K.V. Karthalingan,

was promoted as Regional Transport Officer, before fulfilling the aforesaid

ten years of service, his promotion would be in violation of Rules 3 and 6 of

the Special Rules referred to above.

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25. We have given our thoughtful consideration to the second legal

proposition canvassed at the hands of the learned counsel for the

appellants. We find merit therein as well. The question to be considered

is, whether the Special Rule prescribing the minimum period of eligibility for

appointment to the post of Regional Transport Officer, can be overlooked

while allowing out of turn/accelerated appointment to respondent no. 5, to

the post of Regional Transport Officer. We are satisfied in answering the

aforesaid query in the negative. We are of the view, that if promotion is

granted to respondent no. 5, K.V. Karthalingan, under Rule 36(b)(ii) of the

General Rules, prior to his having rendered five years’ service as Motor

Vehicles Inspector (Grade I), out of which two years must be in a field

office, the same would violate the Special Rules. Since the Special Rules

override the General Rules, the claim made by respondent no. 5, for out of

turn promotion under Rule 36(b)(ii) of the General Rules, would be valid

only if respondent no.5, had satisfied the conditions of eligibility stipulated

in the Special Rules for appointment to the post of Regional Transport

Officer. Insofar as the present controversy is concerned, even though

respondent no. 5, K.V. Karthalingan, was appointed as Motor Vehicles

Inspector (Grade II) on 9.2.1995, he made a representation on 30.6.1998

claiming out of turn/accelerated promotion. By that time, he had rendered

just over three years of service as Motor Vehicles Inspector (Grade II). At

that stage, there was no question of his being considered for appointment

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against the post of Regional Transport Officer, as he had by then, not

rendered even a single days service as Motor Vehicles Inspector Grade-I

(as against the prescribed five years’ service). The instant issue can be

examined from another angle as well. It would be legitimate to accept, that

in the hierarchy of posts in the Transport Department, the post of Motor

Vehicles (Grade I) must be treated as a post higher in stature, as

compared to the post of Motor Vehicles (Grade II). At the juncture, when

respondent no.5 had made his representation claiming out of

turn/accelerated promotion he was not even eligible for promotion to the

post of Motor Vehicles Inspector (Grade-I), as a minimum of five years’

service as Motor Vehicles Inspector Grade-II is required before such

promotion. Since a minimum of five years’ service as Motor Vehicles

Inspector (Grade I) is required before an individual can be appointed to the

post of Regional Transport Officer, it is essential to further conclude, that

respondent no. 5 ought to have fulfilled the prescribed condition, before

claiming appointment as Regional Transport Officer. Having already

concluded, that respondent no.5 could not have legitimately been

promoted to the post of Motor Vehicles Inspector (Grade-I), it is out of the

question to accept or assume, that he could have nonetheless been

promoted to the post of Regional Transport Officer, which required a

further five years’ service. Besides the above, we are of the view, that the

Special Rules laying down the conditions of eligibility and the

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manner/method of promotion to the post of Regional Transport Officer,

would stand violated if the claim of respondent no. 5, K.V. Karthalingan, for

out of turn/accelerated promotion, was to be acceded to on the basis of his

representation dated 30.6.1998. It needs to be kept in mind that

respondent no. 5 had first approached the Administrative Tribunal for

claiming out of turn/accelerated promotion in 1998 (having filed Original

Application no. 5918 of 1998). He again approached the Administrative

Tribunal in 2002 (having filed Original Application no. 429 of 2002) when

his claim for out of turn/accelerated promotion was rejected by the State

Government. In the instant latter case, his claim for out of turn/accelerated

promotion to the post of Regional Transport Officer was accepted by the

Administrative Tribunal (on 10.7.2002). At the cost of repetition, it may be

noted, that a minimum of ten years service after appointment as Motor

Vehicles Inspector (Grade-II) is required under the Special Rules, before

an individual can be appointed as Regional Transport Officer (five years’

service for promotion as Motor Vehicles Inspector (Grade-I), and another

five years’ service as Motor Vehicles Inspector (Grade-I) before

appointment as Regional Transport Officer). Respondent No.5, K.V.

Karthalingan, did not fulfill the prescribed minimum service for promotion,

when the courts below directed his promotion to the post of Regional

Transport Officer. It would not be out of place to mention, that he had

neither fulfilled the conditions of eligibility of appointment to the post of

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Regional Transport Officer at the time of filing of the Original Applications,

nor when his claim was allowed. We are, therefore of the view, that the

order passed by the Administrative Tribunal, as also, by the High Court by

relying on Rule 36(b)(ii) of the General Rules, was in clear derogation of

the Special Rules referred to above. We may now summarize the

conclusions drawn in the instant paragraph. Firstly, respondent no. 5, K.V.

Karthalingan, could not have been appointed as Regional Transport Officer

because he did not satisfy the conditions of eligibility expressed therefor in

the Special Rules. Secondly, because respondent no. 5, K.V.

Karthalingan, was not even eligible to be appointed to the lower post of

Motor Vehicles Inspector (Grade I), it was out of the question to accept that

he was nonetheless eligible to be appointed to the post of Regional

Transport Officer, which required a further five years’ experience. And

thirdly, it needed a minimum of ten years’ service to become eligible for

being appointed as Regional Transport Officer. Since respondent no. 5,

K.V. Karthalingan, had not even rendered such minimum service, his

appointment to the post of Regional Transport Officer cannot be

considered as valid. For all the above reasons, we are satisfied, that the

order passed by the Administrative Tribunal, as also, the High Court

directing the promotion of respondent no. 5, K.V. Karthalingan, to the post

of Regional Transport Officer is liable to be set aside.

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26. The validity of the claim of appointment of respondent no. 5, K.V.

Karthalingan, against the post of Regional Transport Officer can be

examined from another perspective. Rule 36(b)(ii) contained in Part II –

“General Rules”, of the Tamil Nadu State and Subordinate Services Rules,

clearly envisage, that an employee can be given special promotion for

conspicuous merit and ability. But then, the Special Rules framed under

Section 28 of the Tamil Nadu Transport Service, laying down the

conditions of eligibility and the manner/method of appointment to the post

of Regional Transport Officer, do not postulate appointment to the post of

Regional Transport Officer by way of promotion. Rule 2 of the Special

Rules clearly envisage, that appointment against the post of Regional

Transport Officer, would be made only by way of transfer, interalia from

amongst Motor Vehicles Inspectors (Grade I). Rule 36(b)(ii) of the General

Rules does not postulate out of turn/accelerated appointment by way of

transfer. In the above view of the matter we are satisfied, that Rule 36(b)

(ii) of the General Rules, would clearly be inapplicable for considering the

claim of respondent no. 5, K.V. Karthalingan, for appointment to the post of

Regional Transport Officer. For the instant reason as well, the direction

issued by the Administrative Tribunal, as also, the High Court requiring the

State Government to appoint respondent no. 5, K.V. Karthalingan by way

of promotion to the post of Regional Transport Officer, is not acceptable in

law.

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27. There is another legal parameter on the basis of which the validity of

the claim of respondent no. 5, K.V. Karthalingan, for out of turn/accelerated

promotion under Rule 36(b)(ii) of the General Rules, cannot be accepted.

Insofar as the instant parameter is concerned, it requires a close

examination of Rule 36(b) of the General Rules. Rule 36(b) of the General

Rules has two clauses, clause (i) thereof deals with promotions by way of

selection, whereas clause (ii) thereof deals with promotions on the basis of

seniority alone. Respondent no. 5, K.V. Karthalingan, as also, the various

recommending authorities have referred to clause (ii) of Rule 36(b) of the

General Rules, while recommending the claim of respondent no. 5, K.V.

Karthalingan, for out of turn/accelerated promotion. We are of the

considered view, that the aforesaid clause (ii) of Rule 36(b) of the General

Rules, could have been invoked only in matters where promotions are to

be made solely on the basis of seniority. Rule 2(b) of the Special Rules

laying down the manner/method for promotion to the post of Motor

Vehicles Inspector (Grade I) clearly mandates, that promotion to the said

post, would be made on grounds of merit and ability, seniority being

considered only where merit and ability are approximately equal. It is,

therefore apparent, that the post of Motor Vehicles Inspector (Grade I) is a

selection post. That being the undisputed position, it would not have been

possible for the authorities to invoke Rule 36(b)(ii) of the General Rules,

even for promoting respondent no. 5, K.V. Karthalingan to the post of

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Motor Vehicles Inspector (Grade I). Insofar as the post of Regional

Transport Officer is concerned, we have already expressed above that the

same could be filled up only by way of transfer from amongst Motor

Vehicles Inspectors (Grade I), and not by promotion. Even though the

Special Rules do not lay down the method or manner of making

appointments by way of transfer, Rule 36A (introduced with effect from

30.1.1996) contained in Part II – ‘General Rules’, of the Tamil Nadu State

and Subordinate Services (extracted in paragraph 5 above), postulates,

that appointment by transfer shall be made on grounds of merit and ability,

seniority being considered only where merit and ability are approximately

equal. In the aforesaid view of the matter, it is imperative to conclude, that

even for appointments by way of transfer, the appointing authority must

sieve the eligible candidates by adopting a process of selection. Since the

post of Regional Transport Officer, is to be filled up by way of transfer, i.e.,

by way of selection amongst eligible candidates, Rule 36(b)(ii) of the

General Rules would be inapplicable. Stated in other words, the General

Rules contemplate out of turn/accelerated promotion, only in cases where

seniority is the sole criterion for promotion, whereas, the post of Regional

Transport Officer is not to be filled up on the basis of seniority. For the

instant reason also, it is not possible for us to accept, that Rule 36(b)(ii) of

the General Rules could have been invoked for granting out of

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turn/accelerated promotion to respondent no. 5, K.V. Karthalingan, against

the post of Regional Transport Officer.

28. From the conclusions recorded by us, while considering the issue of

out of turn/accelerated promotion, with reference to respondent no. 5, K.V.

Karthalingan, we have repeatedly arrived at a firm determination, that for

onward promotions (from the post of Motor Vehicles Inspector (Grade II)

held by respondent no. 5, K.V. Karthalingan), the criterion to be adopted

was that of selection. Seniority was only to be taken into consideration

where merit and ability of two eligible candidates was found to be

approximately equal. This would lead us to yet another relevant inference

on the issue in hand. In the above view of the matter, every claim for

onward promotion from the post of Motor Vehicles Inspector (Grade II) was

liable to be considered on the basis of merit. Therefore, an individual with

superior merit would steal a march over those less meritorious. Thus

viewed, if respondent no.5, K.V. Karthalingan, was actually possessed of

outstanding and exceptional merit, as is sought to be suggested, he would

have stolen a march over his seniors even under the existing Special

Rules. Thus viewed, even by the manner/method of onward progression

postulated in the Special Rules, a person with conspicuous merit and

ability (as postulated under Rule 36(b)(ii) of the General Rules), would

overtake others without having to invoke Rule 36(b)(ii) of the General

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Rules. This does not seem to have happened in case of respondent no. 5,

K.V. Karthalingan. On his consideration, after he had acquired eligibility for

promotion to the post of Motor Vehicles Inspector (Grade I), he was

promoted as such only on 10.5.2000. The merit and ability possessed by

respondent no. 5, K.V. Karthalingan, is not shown to have resulted in his

having superseded other members of the cadre senior to them. For the

instant reason also, reliance placed by respondent no. 5, K.V.

Karthalingan, for out of turn/accelerated promotion under Rule 36(b)(ii) of

the General Rules deserves outright rejection.

29. We shall now deal with the factual aspect of the matter. It is clear

from the factual narration recorded above, that the claim of respondent no.

5, K.V. Karthalingan, for out of turn/accelerated promotion was based on

his alleged conspicuous merit and ability. The aforestated exemplary and

outstanding merit was based on actions allegedly taken by respondent no.

5, K.V. Karthalingan, while working as Motor Vehicles Inspector (Grade II).

The very facts relied upon by respondent no. 5, K.V. Karthalingan,

constituted the basis of the recommendations of various authorities

supervising his work and conduct. Having examined the recommendations

made in favour of respondent no. 5, K.V. Karthalingan (by the various

authorities adverted to above), the State Government vide its order dated

8.12.1998 concluded, that the factual basis relied upon by respondent no.

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5, K.V. Karthalingan, would not entitle him to out of turn/accelerated

promotion, as the instances of extraordinary service relied upon by him,

were common in the Transport Department. Despite the aforesaid

assertion of the State Government in its order dated 8.12.1998, the

Administrative Tribunal adjudicated upon the said disputed question of fact.

It reversed the factual finding recorded by the State Government. While

doing so, the Administrative Tribunal did not await a response by the State

Government. The matter came to be disposed of without any reply having

been filed by the State Government. Even though the State Government

while seeking recourse to the writ jurisdiction of the High Court, brought out

other related facts showing that respondent no. 5, K.V. Karthalingan, could

not be treated as an employee entitled to out of turn/accelerated

promotion, the High Court rejected all those submissions and reversed the

factual finding recorded by the State Government (in its order dated

8.12.1998). We find it difficult to appreciate the approach of the

Administrative Tribunal, as also, the High Court. The simple reason

depicted in the State Government’s order dated 8.12.1998 was, that the

instances of extraordinary service relied upon by respondent no. 5, K.V.

Karthalingan, to claim out of turn/accelerated promotion, could not be

treated as exceptional or unprecedented, as such instances were common

in the Transport Department. Even though respondent no. 5, K.V.

Karthalingan, had not disputed the aforesaid factual position, it is difficult to

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understand how the Administrative Tribunal, as also, the High Court had

accepted the claim of respondent no. 5, K.V. Karthalingan, by concluding

that he had actually rendered extraordinary and exemplary service. Since

the factual assertion made by the State Government in its order dated

8.12.1998, had remained unrebutted, we are of the view, that the

Administrative Tribunal, as also, the High Court, were wholly unjustified in

recording such a conclusion. For the instant reason also, the impugned

orders dated 10.7.2002 (passed by the Administrative Tribunal) and

13.10.2004 (passed by the High Court) deserve to be set aside.

30. For the reasons recorded hereinabove, we find merit in the various

contentions advanced by the learned counsel for the appellants. The order

passed by the Administrative Tribunal on 10.7.2002 (while disposing of

Original Application no. 429 of 2002) and the order passed by the High

Court on 13.10.2004 (while disposing of Writ Petition (Civil) no. 21562 of

2003) directing the promotion of respondent no. 5, K.V. Karthalingan, to

the post of Regional Transport Officer, are clearly unsustainable. They are

accordingly hereby set aside.

31. Allowed in the aforesaid terms.

…..…………………………….J. (P. Sathasivam)

…..…………………………….J.

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(Jagdish Singh Khehar) New Delhi; July 1, 2013

43

P.DHARNI Vs GOVT.OF T.NADU .

P.DHARNI Vs GOVT.OF T.NADU .