PROMOTION = 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 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 The merit and ability possessed by respondent no. 5, K.V. Karthalingan, is not shown to have resulted in his having superseded other members of the cadre senior to them.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. 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 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.

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40460
Page 1
“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 VehiclesPage 2
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;
2Page 3
(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
3Page 4
which the candidates shall be qualified shall be the 15th 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
4Page 5
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
5Page 6
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
6Page 7
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
1
st 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
7Page 8
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
8Page 9
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
9Page 10
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-seseniority among the persons found suitable for such
promotion shall be with reference to the inter-seseniority 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.
10Page 11
(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
11Page 12
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.
12Page 13
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
13Page 14
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
14Page 15
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 :
15Page 16
(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).
16Page 17
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
17Page 18
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.
18Page 19
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
19Page 20
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
20Page 21
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
21Page 22
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
22Page 23
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
23Page 24
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
24Page 25
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,
25Page 26
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
26Page 27
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
27Page 28
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.
28Page 29
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
29Page 30
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
30Page 31
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.
31Page 32
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
32Page 33
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
33Page 34
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
34Page 35
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.
35Page 36
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.
36Page 37
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
37Page 38
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
38Page 39
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
39Page 40
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
41Page 42
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