Dated : 13.2.2009

C o r a m :

The Honourable Mr.Justice P.K.MISRA

and

The Honourable Mr.Justice K.CHANDRU

W.P.Nos.36522, 1941, 2717 and 36794 of 2005

and

W.P.M.P.Nos.987 of 2007 and 39404 of 2005

1.N.Subramanian

2.A.Balaguru

3.S.Jaganathan

4.K.Thangavelu

5.S.Krishnan

6.B.Mohankumaran

7.M.Ganeshan

8.K.Kathiresan

9.S.Manogaran

10.S.Kasiviswanathan

11.S.Muthuraman

12.A.Pulivakanan

13.S.Arunpandian

14.L.Chandirasekaran

15.M.Amarnathan ... Petitioners in W.P.Nos.

36522 & 36794 of

2005

M.Vijayan ... Petitioner in W.P.No.

1941 of 2005

V.Kathali Rajan ... Petitioner in W.P.No.

2717 of 2005

vs.

1.The State of Tamil Nadu, rep.

by Secretary to Government,

Commercial Taxes/Religious

Endowments Department,

Fort St.George, Chennai-9.

2.The Tamil Nadu Public Service

Commission, rep.by Secretary,

Anna Salai, Chennai-600 002.

3.The Registrar,

Tamil Nadu Administrative Tribunal,

Chennai-600 104.

4.M.Vijeyan ... Respondents in W.P.No.

36522 of 2005

1.State of Tamil Nadu rep.by

Secretary to Government,

Tamil Development Culture and

Religious Endowments Department,

Fort St.George, Chennai-9.

2.The Special Commissioner and

Commissioner for Religious and

Charitable Endowments Department,

Nungambakkam, Chennai-34. ... Respondents in W.P.Nos.

1941, 2717 & 36794 of

2005

3.R.Harihara Subramanian

4.Mrs.Lakshmi Baskaran

5.S.Vasu

6.B.Oviamathi

7.R.Gnanamani

8.P.Murugiah

9.R.Seshadri

10.D.Rajendran

11.S.Gnanasekaran

12.A.Raja

13.N.Kanagavel ... R3 to R13 in W.P.No.

36794 of 2005

(R3 to R13 impleaded as per order

dated 05.2.2008 in M.P.No.63 of

2008 in WP.No.36794 of 2005)

PRAYER in WP.No.36522 of 2005 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records of the order of the third respondent dated 20.11.2003 in O.A.No.3078 of 1994 and quash the same. PRAYER in WP.Nos.1941 and 36794 of 2005 : Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the first respondent in G.O.Ms.No.341, Tamil Development Culture and Religious Endowments (RE 2-2) Department dated 10.11.2004 and quash the order passed therein and directing the respondents to consider the case of the petitioner for appointment to the post of Assistant Commissioner with retrospective effect from the date on which the first set of persons were considered and appointed under the 20% quota created under G.O.Ms.No.61, Commercial Taxes and Religious Endowments Department, dated 02.3.1994 with all consequential monetary and other service benefits. PRAYER in WP.No.2717 of 2005 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the first respondent in G.O.Ms.No.341, Tamil Development Culture and Religious Endowments (RE 2-2) Department dated 10.11.2004 and quash the same, and direct the respondents to restore 20% reservation for Law Graduates working in the Department for the Non-Gazetted Ministerial Service Staffs and Executive Officers irrespective of the Grades and draw panel for the post of Assistant Commissioner. For Petitioners : Mr.Karthik Rajan (WP.No.36522 &

36794 of 2005)

Mr.R.Thiagarajan, SC for

Mr.K.Sanjay (WP.1941 of 2005)

Mr.T.S.Sivagnanam (WP.2717/2005)

For Respondents : Mr.M.Dhandapani, Spl.GP (R1 in

WP.36522 of 2005

Ms.C.N.G.Ezhilarasi (R2 in WP.No.

36522 of 2005)

Mr.R.Thiagarajan, SC for

Mr.K.Sanjay (R4)

Mr.T.Chandrasekaran, Spl.GP (R1 &

R2 in Wps.1941, 2717 of 2005 and

R2 in WP.36794 of 2005)

Mr.M.M.Sundresh (R1 in WP.36794

of 2005)

Mr.Muthukumaraswamy, SC for

Mr.B.Ravi (R3 to R13 in WP.36794

of 2005)

*****

O R D E R

K. CHANDRU, J.

W.P.No.36522 of 2005 is filed by one Subramanian and 14 others against the order of the Tamil Nadu Administrative Tribunal made in O.A.No.3078 of 1994 dated 20.11.2003.

2. The very same petitioners have also filed W.P.No.36794 of 2005 challenging the order of the State Government made in G.O.Ms.No.341, Tamil Development, Culture and Religious Endowments Department, dated 10.11.2004 and for a consequential direction to the respondents to consider the case of the petitioners for appointment to the post of Assistant Commissioner with retrospective effect from the date when they complete 15 years of service in the feeder category department and to appoint them under 20% quota as was ordered in G.O.Ms.No.61, Commercial Taxes and Religious Endowments Department, dated 02.3.1994.

3. W.P.No.1941 of 2005 was filed by one Vijayan challenging the very same order of the Government dated 10.11.2004 and for a consequential restoration of the G.O. dated 02.3.1994. W.P.No.2717 of 2005 was also for a similar relief. In view of the interconnectivity of all the four writ petitions, they were heard together and a common order is being passed.

4. The State Government by G.O.Ms.No.61, CT & RE Department, dated 02.3.1994 directed amendments to the special rules for the Tamil Nadu Hindu Religious and Charitable Endowments Administration Service (for short 'HR & CE' service). These amendments were issued pursuant to the representation received by the Government. Originally, the HR & CE service rules provided for 40% of the post of Assistant Commissioner to be filled up by direct recruitment and 60% to be recruited from among the service candidates. By G.O.No.61, the direct recruitment quota was reduced to 20% and the balance 20% of the post of Assistant Commissioner to be filled up among the law graduates of ministerial service and subordinate service of the HR & CE department with 15 years of regular service and apart from graduation, they must also possess a degree in law as an essential qualification.

5. This amendment came to be challenged before the Tamil Nadu Administrative Tribunal by one M.Vijayan (petitioner in W.P.No.1941/ 2005) being O.A.No.3078 of 1994. Before the Tribunal, it was contended that 20% reserved for persons with law degree and 15 years service was insisted upon. In case of other categories like Executive Officer Grade I, Superintendent, Manager, Head Clerk, Inspector who are having law degrees, they will also come under the very same category of 20%. Therefore, when 20% was specially reserved for service candidates with law degree, it must be given to all the employees irrespective of the categories to which they belong to, of course excluding the OAs and basic servants.

6. The Tribunal carried away by this argument set aside the amendment and held that it was open to the Government to issue an amendment by including the categories of Assistants, Junior Assistants and make them eligible for appointment by transfer of service to the post of Assistant Commissioner. The Tribunal also stated that if the Government for any reason considers that it was not possible to extend the quota to those categories then they may restore the original 40% quota for the direct recruitment as was done all these years so that the Assistants and Junior Assistants will not be appointed by transfer from other service.

7. Consequent upon the directions issued by the Tribunal, the Commissioner for HR & CE Department made a recommendation dated 08.1.2004 as follows:-

''The order of the Tamil Nadu Administrative Tribunal has been perused. If amendment as suggested by the Tamil Nadu Administrative Tribunal is made, Grade IV Executive Officers will also press for inclusion of their category. In the fresh Amendment. This will lead to unhealthy competition for the post of Assistant Commissioner among various categories of subordinate staff. Even law graduates are recruited to Grade IV categories of Executive Officers. In the absence of supervisory experience in the Ministerial Service for a reasonable period, the choice of selecting Junior Assistants and Grade IV Executive Officers directly to the cadre of Assistant Commissioner may not be advisable and practicable if efficiency is taken into account."

8. The Tamil Nadu Public Service Commission was also consulted and after obtaining its opinion and accepting the recommendation of the Commissioner for HR & CE, the Government passed the impugned G.O.Ms.No.341, Tamil Development, Culture and Religious Endowments Department, dated 10.11.2004. In paragraph 6, the Government had stated as follows:-

''The Government accordingly direct that 40% quota to direct recruitment and 60% to the recruitment by transfer from both substantive and temporary vacancies in the post of Assistant Commissioners and the order of rotation in every cyclic of ten vacancies already existed prior to 2.3.94 be restored by suitably amending the Special Rules for the Tamil Nadu Hindu Religious and Special Rules for the Tamil Nadu Hindu Religious and Charitable Endowments Administration Service in this regard".

9. Therefore, the rules were accordingly amended. The petitioners aggrieved by the stand taken by the State Government have come forward to challenge the order of the Tribunal in O.A.No.3078 of 2004 dated 20.11.2003 which made the Government to amend the rule as well as the Amendments made to the special rules vide G.O.Ms.No.341, dated 10.11.2004 and filed these writ petitions.

10. The contentions raised by the petitioners were that the Tribunal was not correct in granting a direction to make a positive amendment to the Government. The Government was not bound to follow such a direction. It was also stated that the amendment to the special rules was made pursuant to the order passed by the Tribunal. Therefore, if the Tribunal's order is set aside, the consequent order of the State Government amending the service rules must also be removed.

11. A reference was also made to the reply affidavit filed by the State Government in O.A.No.3078 of 1994 wherein the earlier amendment increasing the quota for inservice candidate to 80% was justified. Having justified those amendments, the Government cannot turn back and follow the direction issued by the Tribunal.

12. Mr.Karthick Rajan, learned counsel appearing for the petitioners in W.P.No.36522 of 2005 and W.P.No.36794 of 2005 placed reliance upon the judgment of the Supreme Court in Mallikarjuna Rao v. State of A.P., reported in (1990) 2 SCC 707. The following passage found in paragraph 12 is relevant and it may be usefully reproduced below:- ''Para 12. This Court relying on Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh1 and State of Himachal Pradesh v. A Parent of a Student of Medical College, Simla2, held in Asif Hameed v. State of Jammu & Kashmir3 as under: (SCC p. 374, para 19) When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive.... (Emphasis Added)

13. Further reliance was placed upon the judgment of the Supreme Court in Indian Railway Service of Mechanical Engineers Association and others -vs- Indian Railway Traffic Service Association and another reported in 1993 Supp (4) SCC 473. The following passages found in paragraphs 19 and 20 are relevant, which may be extracted below:- ''Para 19. In the light of this background, when we examine the order of Tribunal, we find it had erred in interfering with a scheme. It is well-settled in law that the Government has got a right to notify the scheme. It has equally a right to issue amendments. Therefore, it could amend the scheme including the provisions relating to the predominant factor from 6 to 37.5%. This is a matter of policy. This Court had taken the view in Union of India v. Tejram Parashramji Bombhate6 that no court or tribunal could compel the Government to change its policy involving expenditure. Again in Asif Hameed v. State of J&K7 in paragraph 19, page 1906 this Court observed thus: (SCC p. 374, para 19) When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. Para 20. Unfortunately, the Tribunal has transgressed its limits while questioning the correctness of a policy. We are afraid that the Tribunal has failed to appreciate that Rule 8 is an independent provision. Appendix I and Item 9 thereof to the scheme only indicate that it will also apply to the posts which may be created in future. The same formula is retained as Item 12 in the amendment dated February 26, 1988".

14. The learned counsel also brought to the notice of this Court the judgment of the Supreme Court in Government of Tamil Nadu -vs- S.Arumugham reported in (1998) 2 SCC 198. A reference was made to the following passage found in paragraph 10, which may be usefully reproduced below:- ''Para 10. The Tribunal itself came to the conclusion that combining all the departments and having a common seniority list was neither justified nor feasible. But it has given directions for a different kind of allocation and a different scheme. These directions pertain to policy matters. The Tribunal ought not to have directed the Government to change its policy. The Government has a right to frame a policy to ensure efficiency and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. In Indian Rly. Service of Mechanical Engineers Assn. v. Indian Rly. Traffic Service Assn.1 this Court reiterated that the correctness of a policy should not be questioned by the Tribunal. The appellants in their affidavit before the Tribunal have given in detail the history of these provisions and the justification for these provisions in the interests of efficiency and proper administration. The Tribunal cannot substitute its own views for the views of the Government or direct a new policy based on the Tribunals view of how the allocation should be made. The three groups which have been formed as far back as in 1977 for the purposes of allocation consist of officers performing different functions and having different prospects and different avenues of promotion. They cannot be equated for the purpose of Articles 14 or 16. In the case of Govind Dattatray Kelkar v. Chief Controller of Imports & Exports2 this Court held that the concept of equality in the matter of promotion can be predicated only when promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the difference between the two sources, the recruitment can be justified as legitimate classification. This reasoning directly applies in the present case. Therefore, the scheme does not violate Articles 14 or 16, nor is it arbitrary. The quota which should be fixed or the allocation which should be made for the purpose of deputing officers to the Tamil Nadu Revenue Subordinate Service is basically in the domain of the executive. Unless there is a clear violation of any provision of the Constitution, the Tribunal ought not to have given directions for formulating a new policy and a different quota." (Emphasis Added)

15. The learned counsel thereafter referred to the decision of the Supreme Court in Union of India -vs- N.Y.Apte reported in (1998) 6 SCC 741 and referred to paragraphs 6, 11 and 13, which may be usefully reproduced below:- ''Para 6. We have heard learned counsel on both sides and perused the records. We are unable to agree with the view expressed by the Tribunal that by the amended Rules, unequals are treated as equals. Before setting out our reasons, it is necessary to point out that at the time when the respondents filed the writ petition before the High Court of Delhi, they were not even in the zone of consideration for promotion to the post of MG I. In fact, the Tribunal has taken note of the same and observed that they have not earned eligibility for promotion to the cadre of MG I as they did not have to their credit five years of approved service in the grade as on that date. Thus when the respondents approached the Court, they could not even claim that they had a chance of promotion at that time. The writ petition ought not to have been entertained at their instance. In view of the passage of time, we do not propose to rest our conclusion on that aspect of the matter. Para 11. With reference to the amendment brought in 1983, it is obvious that the same was introduced on the footing that a person holding the post of AM with 8 years approved service in the grade could be equated to a person in combined service of 8 years in the posts of MG II and AM. There is no difference in the educational qualification and the scales of pay are almost equal. If the rule-making authority has thought it fit to equate those posts on the basis of longer experience in the lower post, we do not find any justification to interfere with the same. The respondents are not in a position to satisfy us that MG II with five years approved service is superior to MG II with eight years combined service in the posts of MG II and AM or AM with eight years approved service in the grade. Para 13. The fallacy in the argument of the respondents is apparent. The educational qualifications for the post of MG I as per the 1978 Rules are at least second class Masters degree in Science or second class degree in Engineering from a recognized university or equivalent plus five years experience in a responsible capacity in the relevant field. Any person holding the post of MG II with five years approved service in the grade or eight years combined service in the grades of MG II and AM or AM with eight years approved service in the grade will be considered for promotion to the post of MG I only if such person fulfils the essential qualifications prescribed for that post. Hence, there is no substance in the contention that a person holding the post of AM having been promoted thereto from the post of Professional Assistant with lesser educational qualification would be equated to those having the essential qualifications requisite for the post of MG I."

16. Thereafter, a reference was made to the decision of the Supreme Court in All India Federation of Central Excise -vs- Union of India reported in (1999) 3 SCC 384. The passage found in paragraph 22 may be usefully reproduced below:- ''Para 22. It may be noted that as long as a particular quota is fixed by a rule, it will have to be followed till the quota fixed therein is altered by appropriate amendment of the relevant rules. As held in V.B. Badami v. State of Mysore7 (SCC at p.910) quotas which are fixed can only be altered by a fresh determination of the quota. It will be for the applicants to take such steps as they deem fit, if they feel aggrieved about the existing quota but the filing of this IA is not the proper remedy. We are also not prepared to accept that the proposals of the Government of India dated 8-6-1989 themselves visualised a constant change in the quota from time to time. Such a change, in our view, has to be done by a fresh determination and it is for the applicants to make out a case therefor and take the necessary steps for such modification."

17. The passages over which reliance was placed upon does not help the case of the petitioners because those decisions of the Supreme Court are against the case put forth by the petitioners. The latest amendment which is impugned in the writ petition was also through an exercise of power vested under Article 309. Hence, it will not be open to this Court to interfere with such an exercise unless such amendment to the rules offends Articles 14 and 16 of the Constitution. It is precisely for this reason they wanted to contend that the State Government had blindly followed the direction issued by the Tribunal. It was argued that once the basis of the conclusion goes away, the resultant order must also go.

18. Mr.R.Thiagarajan, learned Senior Counsel appearing for some of the petitioners also supported the very same argument. Most of the objections of the petitioners were to assail the decision of the Tribunal, thereby resultant amendment will be set at naught.

19. Mr.T.S.Sivagnanam, learned counsel appearing for some of the petitioners also brought to the notice of this Court the decision of the Supreme Court in Dwarka Prasad and others -vs- Union of India and others reported in (2003) 6 SCC 535 and placed reliance upon paragraph 16 and 17 which are as follows:- ''Para 16. Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the policy-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in the feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of posts in feeder categories. Para 17. Normally, where officers are to be drawn for promotion from different posts in the feeder cadre, quota for each post in the feeder cadre is maintained proportionately to the sanctioned strength in that post. This, however, cannot be an inviolable rule of strict application in every case, with an absolute equality of arithmetical exactitude but may vary from case to case depending upon the pattern, structure and hierarchies in the departmental set-up as well as exigencies and balancing needs of administration. There are other relevant considerations, some of which have been mentioned above, which may require departure from the practice of fixation of quota for each post in the feeder cadre, solely proportionate to its strength".

20. He also referred to the decision of the Supreme Court in Technical Executive (Anti-Pollution) Welfare Association v. Commr. of Transport Department and another, reported in (1997) 9 SCC 38, Reliance was placed upon para 4 which reads as follows:- ''Para 4. It would be seen that, admittedly, members of the appellant-Association are Technical Anti-Pollution Level Test Inspectors. Under the Motor Vehicles Act, the cadre of Motor Vehicles Inspectors has statutory base and, therefore, the Motor Vehicles Inspectors are distinct from TAPLT Inspectors represented through the appellant-Association. When we had put a question to Shri Krishnamani, learned Senior Counsel, whether the appellants are entitled to claim under the statutory rules, to be on a par with Junior Motor Vehicles Inspectors, he admitted that they are not members of the same cadre or service and are not governed by the Rules. Therefore, they cannot have any parity with statutory cadre officers. It would be for the appropriate Government to take policy decision. The Tribunal is not competent to give directions to lay down the policy or to issue directions to create promotional avenues. Such a direction would amount to entrenching upon area of policy-making which is exclusively within the purview of the appropriate Government. The Tribunal, therefore, was right in rejecting the application and holding that there was no contempt. (Emphasis added)

21. We do not agree with the submission made by the learned counsels for the simple reason that whether the Tribunal has given a direction or not, the State Government is entitled to take a decision in the matter of amendment to the service rules as noted from the decisions cited above. The power of the courts in reviewing the decision of the Government when it frames a rule under Article 309 of the Constitution is limited as it is legislative exercise. It is not as if the Government had not applied its mind when it amended the rules by restoring status quo ante. May be, the Government was induced by the Tribunal's suggestion. But in the present case, the Tribunal did not give any particular direction and gave a choice to the Government.

22. In this context, it is necessary to refer to the counter affidavit filed by the State dated ''nil" (2008). The following averments made in paragraphs 7, 13 and 14 may be usefully extracted below:- ''Para 7. ... the first respondent after careful examination of the nature of the case and the various litigations filed by various personnel belonging to the various categories that centered around the said Government order, sensed the adverse effect that it might bring, came to conclusion to withdraw the Government Order and accordingly issued an amendment in G.O.Ms.No.341, Tamil Development, Culture and Religious Endowments Department, dated 10.11.2004, withdrawing the provision of allotment of 20% to the Law Graduates of this Department and restoring the 40% originally earmarked for the direct recruitment. Aggrieved by this, the petitioner has filed the present writ petition...."

Para 13. ......, it is submitted that if the post of Assistant is included for being promoted as Assistant Commissioner, it will definitely create an unhealthy competition with that of Superintendents, Managers, Inspectors who have got experience both in supervisory and field works which is very much needed for the post of Assistant Commissioner.

Para 14. ... ..., it is submitted that the averment of the petitioner that the observation made by the Government while withdrawing the Government Order that the absence of supervisory experience in the Ministerial service disentitled the Assistant and Junior Assistant is a folly ''as a person who is directly recruited to the post of Assistant Commissioner will also have no experience" is unsound. The direct recruits who have the bar experience are alone recruited to the post of the Assistant Commissioner. Hence, they will be better placed and more experienced taking into consideration of the nature of work involved in this Department."

23. Ultimately, the grievances of the petitioners are that the change that has been effected by the State affects their chance of promotion. Unless such rule offends Articles 14 and 16, it cannot be impugned in a writ petition under Article 226 of the Constitution. A reference may be made to the decision of the Supreme Court in Sheshrao Jangluji Bagde -vs- Bhaiyya, S/o.Govindrao Karale and others reported in 1991 Supp (1) SCC 367 wherein similar proposition has been laid by the Supreme Court.

24. In the present case, there is no obligation for the State to go by the Tribunal's advice, and there was an independent application of mind by the State. Reasons are also supplied in the counter affidavit for effecting the present impugned amendment the status quo ante. Merely because the Government has accepted the option given by the Tribunal it cannot be challenged on the ground that since the Tribunal's decision was illegal and therefore the consequential decision of the State must also be invalid. In as much as the respondent State has made an amendment to the statutory rule under Article 309, the same cannot be challenged on the lines pleaded by the petitioners. Though the State is not required to supplement reasons for framing the rules in the present case, the reasons adduced by the respondent State in the form of a counter cannot be said to be arbitrary or reasonable.

25. In the light of the above, the writ petitions are dismissed. There will be no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed.

js

To

1.The Secretary to Government,

Commercial Taxes/Religious

Endowments Department,

Fort St.George, Chennai-9.

2. The Secretary,

The Tamil Nadu Public Service

Commission,

Anna Salai, Chennai-600 002.

3. The Registrar,

Tamil Nadu Administrative Tribunal,

Chennai-600 104.

4.The Secretary to Government,

Tamil Development Culture and

Religious Endowments Department,

Fort St.George, Chennai-9.

5. The Special Commissioner and

Commissioner for Religious and

Charitable Endowments Department,

Nungambakkam,

Chennai 34