Does seniority for further promotion in a transferred service run from the date of appointment to the transferred post?

(Judgment of the Court was delivered by S.M.Subramaniam J.) The State preferred the present intra Court Appeal challenging the writ order dated 25.04.2025 passed in W.P.No.41826/2016

The respondent/writ petitioner filed a Writ of Mandamus seeking a direction to the appellants herein to fix seniority of the respondent in the post of Assistant and for further promotion to the post of Superintendent by taking into account the petitioner’s initial date of appointment as Steno-typist Grade- III i.e., 24.10.1994 by applying Rule 35(b) of the Tamil Nadu State and Subordinate Services Rules.

The writ Court allowed the writ petition by relying on the order of the Division Bench passed in W.A.(MD).No.1402 of 2014, in the context of Rule 35(b) of Tamil Nadu State and Subordinate Services Rules.

Now, the question arises whether Rule 35(b) of the Tamil Nadu State and Subordinate Services Rules would apply to the facts of the present case and if so, what is the Rule applicable to the facts of the present case.

The facts in brief in the present case are that the respondent was appointed to the post of Steno-typist Grade-III with effect from 24.10.1994. The promotional avenue available to the post of Steno-typist Grade-III is to the post of Steno-typist Grade-II and Grade-I. However, the post of Junior Assistant, Assistant and Superintendent are falling under the Ministerial Service Rules.

Initially, the scale of pay for the posts of Junior Assistant and Stenographer Grade-III were identical. Based on the representation of the Steno-typist Grade-III, the Government issued G.O.Ms.No.162 Finance, Pay Cell Department dated 13.04.1998, enhancing the pay of Steno-typist Grade-III identical to the pay to the post of Assistant. Therefore, enhancement of pay of the Steno-typist Grade-III equivalent to the pay applicable to the post of Assistant per se would not be a ground to claim any promotion to the post of Assistant. However, Stenographer Grade-III is provided with an opportunity to exercise option for promotion to the post of Assistant in Ministerial line and based on option, they are appointed to the post of Assistant by way of transfer of service.

In the present case, the respondent opted to go for Ministerial line and based on his option, the respondent was appointed to the post of Assistant by way of transfer of service.

In respect of an appointment made from one service to another service, the date of appointment to the transferred post is to be taken into consideration for fixation of seniority for further promotion in the transferred services. In the present case, respondent was appointed by way of transfer to Ministerial service. Therefore, the date of appointment as Assistant is to be taken into consideration for fixation of seniority for further promotion to the post of Superintendent.

Fixation of seniority is governed under Rule 35 of the Tamil Nadu State and Subordinate Services Rules and in respect of the facts of the present case, Rule 35(aa) would alone apply. The said rule reads as under:

Subsequently, Tamil Nadu Government Servants (Conditions of Service) Act, 2016 was enacted. Rule 40(2) is the corresponding rule, which reads as under:

In the present case, the relief sought for by the respondent is to fix seniority, taking into account, the date of his initial appointment to the post of Stenographer Grade-III i.e., 24.10.1994. It is not in dispute that the seniority of the respondent was fixed by the Department from the date of his appointment to the post of Assistant by way of transfer of service in the year 2008.

The only question is whether he is entitled for claiming seniority from the initial date of appointment to the post of Steno-typist Grade-III.

The answer would be that posts of Steno-typist Grade-III and Assistants are different. The post of Assistant is falling under the Tamil Nadu Ministerial Service. The promotional avenue for the post of Stenographer Grade-III is to the post of Stenographer Grade-II and Grade-I. In Ministerial Services promotion avenue to the post of Junior Assistant is Assistant and Superintendent. Stenographer Grade III, by option are appointed to the post of Assistant by way of transfer of service. Stenographer Grade-III are appointed by way transfer of service to the post of Assistant, since the scale of pay to the post of Stenographer Grade-III and Assistant are identical.

Learned Senior counsel for the respondent would rely on the orders of the Division Bench of the Madurai Bench of Madras High Court in W.A.(MD).No.1402/2014. A reading of the said judgment would show that Rule 35 of the Tamil Nadu State and Subordinate Services Rules was taken into consideration for fixation of seniority of a person after he entered into service. Rule 35(b) in clear terms stipulates that transfer of a person from one clause of category of service to another class or category carrying the same scale pay shall not be treated as a first appointment to the latter for the purpose of seniority and the seniority of a person so transferred shall be determined with reference to rank in the class or category from which he was transferred. The said Rule will apply for fixing seniority in the post of Assistant in the present case.

In the present case, respondent was appointed to the post of Assistant by way of transfer of service on exercise of his option. His appointment cannot be treated as fresh appointment nor promotion. Thus, his seniority in the post of Assistant is to be fixed based on the date of appointment in the post of Assistant by way of transfer of service. In other words, for further promotion on the Ministerial line to the post of Superintendent, services rendered in the post of Stenographer Grade-III cannot be taken into account for fixing seniority. Since because, the scale of pay for the post of Stenographer Grade-III and Assistant are identical, seniority cannot be claimed on that basis, in view of the fact that the said two posts are different services. In the event of considering the seniority from the date of initial appointment to the post of Stenographer Grade-III, it will result in unsettling the seniority amongst employees serving as Junior Assistant in Ministerial line and awaiting promotion to the post of Assistant and Superintendent. As far as Ministerial services are concerned, entry service of the respondent herein is to the post of Assistant. Thus, the date of appointment is to be taken into consideration for fixing seniority. Rule 35(b) of Tamil Nadu State and Subordinate Services Rules states that appointment cannot be treated as fresh appointment. But, the seniority is to be reckoned from the date on which the appointment is made. Therefore, there is no conflict between Rule 35(b) and 35(aa). In the context of facts in the present case, seniority is to be fixed by applying Rule 35(aa) of Tamil Nadu State and Subordinate Services Rules. Therefore, judgment of Division Bench (cited supra) would be of no avail to the respondent.

In view of the facts and circumstances, the seniority of the respondent was rightly fixed by the department from the date on which he was appointed to the post of Assistant by way of transfer of service and the post of Assistant is feeder category for promotion to the post of Superintendent. The seniority was further fixed by applying Rules 35(aa) of the Tamil Nadu State and Subordinate Services Rules. [corresponding provision is Section 40(2)of the Tamil Nadu Government Servants (Conditions of Service) Act].

In view of the above discussions, the writ order impugned dated 25.04.2025 is set aside and the writ Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed. (S.M.S.,J.) (N.S.,J.) 29-07-2026