TWAD Board Engineer's Associationrep. by its General Secretary31, Kamarajar SalaiChennai – 5 v. Drainage Board

G.O.Ms.No.1837 Rural Development and Local Administration Departmentdated 29.11.1982, i.e., as obtained prior to the issue of impugnedorder dated 29.12.2006.For Petitioner: Mr.N.SubramaniyanFor R-1 & 2: Mr.P.S.Raman Additional Advocate General for Mrs.Lita Srinivasan Government AdvocateFor R-3: Mr.Patty B.JeganathanO R D E RThe petitioner herein has filed the present writ petitionchallenging the Government Order passed by the first respondent inG.O.Ms.No.191, Rural Development and Panchayat Raj Department dated29.12.2006 with a consequential direction, directing the respondents1 to 3 to post only the engineers of the third respondent as AEE andAE in charge of Water Supply and Drainage Works of the localauthorities in accordance with G.O.Ms.No.1837, Rural Development andLocal Administration Department dated 29.11.1982.2.The brief facts of the case in a nutshell are as follows:The Tamil Nadu Water Supply and Drainage Board which is astatutory authority has been created under the TWAD Board Act, 1970.The petitioner is an Association of TWAD Board Engineers who areworking with the third respondent Board. The members of thepetitioner are working with the third respondent as AssistantEngineers, Assistant Executive Engineers, Executive Engineers,Superintending Engineers. The third respondent was looking after theimplementation of the New Water Supply Works and maintenance of bothhand pumps and power pumps in the rural local bodies.Thereafter by the Government Order passed inG.O.Ms.No.1326, RD & LA Department dated 23.07.1981, the maintenanceof hand pumps was transferred from the third respondent to thePanchayat Unions. Further by the subsequent Government Order passedin G.O.Ms.No.1837, RD & LA Department dated 29.11.1982, themaintenance of power pumps (over head tanks) was also transferredfrom the third respondent to the respective Panchayat Unions. Theabove said orders have been passed prior to the introduction of the73rd Constitutional Amendment, 1992 and the subsequent enactment ofthe Tamil Nadu Panchayats Act, 1994. By virtue of the said GovernmentOrder passed on 29.11.1982 a post of Assistant Executive Engineer wascreated for each District and another post of Assistant Engineer wascreated for each Sub-Division to look after the maintenance of the https://hcservices.ecourts.gov.in/hcservices/ water supply systems. At that point of time, the respondents 1 and 2did not have its own engineering service and as a result thetechnical posts have been filled up by deputation from the thirdrespondent Board. Similarly for other projects engineers from otherdepartments have been taken on deputation and utilised. After thedeputation the engineers of the parent department have been paid bythe respondents 1 and 2. It is also seen that a reading of theGovernment Order dated 29.11.1982 would indicate that the postscreated by virtue of the said Government Order are Government postsand that is the reason why persons from other departments have beenappointed to the said posts on deputation.The Government Order passed in G.O.Ms.No.84, RuralDevelopment Department dated 05.05.1998 which was amended byG.O.Ms.No.63, RD & PR Department dated 29.06.2006, the respondents 1and 2 have empowered the Village Panchayats to spend up to Rs.600/-per hand pump per year and Rs.7,500/- per power pump per year withoutreference to the Assistant Engineers or Assistant Executive Engineersas the case may be. Accordingly, the Village Panchayats have beengiven most of the maintenance work load of over 95% by delegatingwork of the Assistant Executive Engineers and Assistant Engineers tothe Village Panchayats themselves.As per the Government Order referred earlier inG.O.Ms.No.1837, RD & LA Department dated 29.11.1982, the sanctionedGovernment posts are to be filled by the engineers of the thirdrespondent. The Assistant Executive Engineers are also to work underthe overall technical control of the Executive Engineers /Superintending Engineers of the third respondent.Applications have been filed by the engineers of therespondents 1 and 2 before the Tamil Nadu Administrative Tribunalcontending that since they have become sufficiently senior, theircase for promotion as Assistant Executive Engineers will have to beconsidered. It was further contended before the Tribunal that therespondents 1 and 2 shall not receive any persons from otherdepartments such as Highways and the third respondent. Similarly,writ petitions have been filed by engineers of the third respondentwho incidentally are members of the petitioner seeking directionsthat they should be absorbed by the respondents 1 and 2. The Hon'bleTribunal as well as the Hon'ble High Court have rejected the case ofthe deputationist from the third respondent and accepted the case ofthe engineers of the respondents 1 and 2 by holding that the servicerules of the respondents 1 and 2 do not authorise the absorption fromother department and the deputationist cannot seek permanentabsorption in another department in the absence of any rule providingfor the same. The Hon'ble Division Bench has passed the above said orderin W.A.No.500 of 2005 etc. on 29.01.2007. In the meanwhile, another https://hcservices.ecourts.gov.in/hcservices/ order was passed by the first respondent in G.O.Ms.No.191, RD & PRDepartment dated 29.12.2006, by which the Commissioner of RuralDevelopment and Panchayat Raj and the District Collectors concernedhave been given the powers of issuing the postings of AssistantExecutive Engineers and Assistant Engineers for the Water SupplyWing. Accordingly, the earlier practice of posting orders issued bythe third respondent to the post of AE and AEE to the engineers ondeputation to the respondents 1 and 2 has been dispensed with and thesaid power has been conferred upon the Commissioner of RuralDevelopment and Panchayat Raj and the District Collectors. Inpursuant to the said Government Order, a writ petition was filed bythe 4th respondent seeking consideration of the representation made tothe respondents 1 and 2. The above said writ petition was ordered bythe Hon'ble High Court. Some of the members of the petitioner filedimpleading petition seeking to set aside the order but however forthe reasons known to them they have withdrawn the said petitionlater. Thereafter, the petitioner has filed the present writ petitionchallenging the Government Order passed by the first respondent inG.O.Ms.No.191, RD & PR dated 29.12.2006 with a consequentialdirection, directing the respondents 1 to 3 to post only theengineers of the third respondent as AE and AEE in charge of watersupply and drainage work of the local authorities in accordance withG.O.Ms.No.1837, Rural Development and Local Administration Departmentdated 29.11.1982.3.The present writ petition has been filed on 10.05.2009 bywhich time the said Government Order impugned has been given effectto substantially and the beneficiaries of the impugned GovernmentOrder have not been made as parties. The 4th respondent has been madeas a party which is an association of the employees of therespondents 1 and 2. It is also seen that after the filing of thewrit petition a subsequent Government Order was passed inG.O.Ms.No.67, Rural Development and Panchayat Raj Department dated20.07.2009 re-designating and re-deploying the posting of AssistantEngineer and Assistant Executive Engineer as Assistant Engineer /Junior Engineer and Assistant Executive Engineer with a view tostrengthen the technical supervision of roads and bridges.Accordingly as per the said Government Order obsolescence of theexclusive post of Assistant Executive Engineer and Assistant Engineerin the water supply section has been ordered.4.The learned counsel for the petitioner made the followingsubmissions based upon the affidavit, reply statement and the writtenarguments. The submissions are extracted hereunder:(i)The first respondent has no power or authority to passthe impugned Government Order under Article 162 of the Constitutionof India. Inasmuch as the TWAD Board Act, 1970 provides for the https://hcservices.ecourts.gov.in/hcservices/ carrying out of the works of the local bodies there is no power forthe first respondent to pass the impugned Government Order which isunconstitutional and against the Tamil Nadu Panchayat Act, 1994. Thefirst respondent cannot interfered with the work and power of thelocal bodies by exercising its power under Article 162 of theConstitution of India.(ii)The posts of AE and AEE are the posts of the thirdrespondent alone and therefore it cannot be construed that they arethe Government posts. Inasmuch as the said posts belong to the thirdrespondent the impugned Government Order cannot be sustained.(iii)A reading of the TWAD Board Act, 1970 particularlywith reference to the provisions contained in Section 16(b) read withSection 27 would mean that the water and sewerage work of the localbodies will have to be done by the local bodies only by and with thetechnical assistance and advice of the third respondent.(iv)The contention of the respondents that under Section110(g), 112(aa) and 112(aaa) of the Tamil Nadu Panchayat Act, 1994, aduty is cast on the local bodies cannot be accepted since a readingof the said provisions would show that the above said provisionsprovide for making provisions in the budget. Therefore a conjointreading of the TWAD Board Act, 1970 and the Tamil Nadu Panchayat Act,1994 would reveal that it is the third respondent who is thecompetent authority to execute the work.(v)Further the contention of the learned Advocate Generalthat the writ petition is liable to be dismissed on the ground ofprinciples of constructive res judicata is not sustainable. The issueinvolved in the earlier writ petition was one of absorption of thedeputationist from various departments to the department of therespondents 1 and 2 whereas the issue involved in the present writpetition is challenging the Government Order by which the respondents1 and 2 have taken away the power of the third respondent.(vi)There is no laches in filing the writ petition sincethe petitioner has approached this Court when the cause of actionarises. Further the contention that the writ petition is notmaintainable by the petitioner cannot be accepted since thepetitioner has been recognised by the third respondent and therefore,the petitioner is entitled to represent its members.5.The learned counsel for the petitioner in support of hissubmissions has relied upon number of judgments and contended thatthe impugned order is a nullity, one without jurisdiction, nonest inthe eye of law and therefore, the same will have to be set aside andunder those circumstances, the question of res judicata would notarise for consideration. In support of his contention that a writpetition will have to be filed only when there is a cause of action, https://hcservices.ecourts.gov.in/hcservices/ the learned counsel for the petitioner is relied upon the judgmentreported in (2004) 6 SCC 254 [KUSUM INGOTS AND ALLOYS LTD. v. UNIONOF INDIA AND ANOTHER]. He submitted that when an order is withoutjurisdiction the principle of res judicata would not apply. Thelearned counsel has relied upon the judgment reported in (2007) 2 SCC481 [NATIONAL INSTITUTE OF TECHNOLOGY AND OTHERS v. NIRAJ KUMARSINGH]. Further in support of his contention that the respondentscannot act in the absence of statutory provisions, the judgmentreported in (2007) 13 SCC 154 [POONAM VERMA AND OTHERS v. DELHIDEVELOPMENT AUTHORITY] was relied upon. The learned counsel alsorelied upon the judgments reported in (2008) 7 SCC 738 [M.V.JANARDHANREDDY v. VIJAYA BANK AND OTHERS]; (2001) 8 SCC 676 [BHARATHIDASANUNIVERSITY AND ANOTHER v. ALL-INDIA COUNCIL FOR TECHNICAL EDUCATIONAND OTHERS]; (2008) 1 SCC 341 [SURESH JINDAL v. BSES RAJDHANI POWERLTD. AND OTHERS]; (2008) 7 SCC 748 [DEEPAK AGRO FOODS v. STATE OFRAJASTHAN AND OTHERS] and (2007) 13 SCC 255 [RAM SUNDER RAM v. UNIONOF INDIA AND OTHERS] and contended that an order without authoritywill have to be ignored and such an order cannot be justified onrationale or any other ground.The learned Advocate General appearing for the respondents1 and 2 has made his submissions both on the question of fact andlaw. The submissions include the maintainability of the writ petitionas well as on the merits of the case. 6.The submissions of the learned Advocate General are asfollows:(i) Inasmuch as the posts involved in the impugned orderare Government posts created by the respondents 1 and 2, thepetitioner cannot challenge the same being an associationrepresenting the employees of the third respondent. The writ petitionis liable to be dismissed for laches since the impugned order passedin G.O.Ms.No.191, RD & PR Department dated 29.12.2006 was challengedon 10.05.2009 by which time rights have been accrued to differentpersons. (ii) The local bodies have the power under Section 110(g),112(aa) and 112(aaa) of the Tamil Nadu Panchayat Act, 1994 andtherefore the impugned order has been passed to the benefit of thelocal bodies. The power has been conferred on the District Collectorconcerned who is the Inspector of Panchayat under the Panchayat Act.Funds have been allocated by the Government Orders empowering thework to the local bodies and therefore 95% of the maintenance workhas been entrusted to the local bodies. In any case the local bodiesare not parties to the present writ petition and neither the localbodies nor the third respondent have any objection for passing of theimpugned Government Order. https://hcservices.ecourts.gov.in/hcservices/ (iii) The present writ petition is nothing but a re-litigation by the petitioner whose members have filed the earlierpetition in W.A.No.500 of 2005 etc. seeking absorption and havingfailed to get the favourable orders has now challenged the presentimpugned order. In pursuant to the impugned order, the deputationisthave been reverted and therefore the impugned order has been giveneffect to.(iv) There is a subsequent Government Order passed inG.O.Ms.No.67, Rural Development and Panchayat Raj Department dated20.07.2009 which has not been challenged and hence the present writpetition is not maintainable. Further, the contention of the learnedcounsel for the petitioner relying upon the Section 16(b) read withSection 27 of the TWAD Board Act, 1970 has no relevance since Section27 of the Act clearly stipulates that in so far as hand pumps orpower pumps are concerned there is no necessity for prior concurrencefrom the third respondent.The proviso to Section 27 of the TWAD Board Act, 1970 makesit clear that the approval of the third respondent is not required.Further the new water supply schemes ought to be implemented inaccordance with the proviso to Section 27 of the TWAD Board Act, 1970read with Section 112(aa) and 112(aaa) of the Tamil Nadu PanchayatAct, 1994. The impugned Government Order has been passed inconsultation with the third respondent and therefore, the petitionercannot in effect represent the third respondent. The learned AdvocateGeneral also submitted that the writ petition is liable to bedismissed for laches since after knowing the passing of the impugnedorder the writ petition has been filed belatedly.7.Before going into the merits of the case, this Court isof the opinion that it is to be seen as to whether the writ petitionis maintainable in law and facts.8.In the present case on hand, the petitioner has filed thewrit petition seeking to set aside the impugned order by which thepower of posting of AEE / AE has been taken away from the thirdrespondent and given to the District Collector and the Commissionerof Rural Development and Panchayat Raj. The petitioner has challengedthe said Government Order seeking a further direction by way of awrit of mandamus to implement the earlier Government Order passed inG.O.Ms.No.1837, RD & LA Department dated 29.11.1982. A reading of thesaid Government Order dated 29.11.1982 and the impugned order wouldshow that the posts involved in both the Government Orders areGovernment posts. Therefore, the petitioner having its members asemployees of the third respondent does not have any legal right tochallenge the impugned order. Moreover the posts have been created bythe earlier Government Orders relied on by the petitioner. When suchis a position the petitioner cannot turn round and say that the postsinvolved are the posts of the third respondent and not the Government https://hcservices.ecourts.gov.in/hcservices/ posts. In other words while being the beneficiary of the earlierGovernment Order by which Government posts have been created andpayment have been made by the respondents 1 and 2, the petitionerthereafter cannot contend that the said posts are not Governmentposts. Hence this Court is of the opinion that the petitioner isneither an aggrieved body nor an affected party to challenge theimpugned order. 9.A Writ of Mandamus can only be issued when there is alegal right. As observed earlier the petitioner does not have thelegal right. When there is no legal right the extraordinary relief byinvoking the jurisdiction of this Court cannot be extended to thepetitioner. The power under Article 226 of the Constitution of Indiais a discretionary relief and such a power cannot be exercised to thepresent case on hand. Moreover nobody has got a vested right to seeka promotion. The main contention of the petitioner is that by virtueof the Government Order impugned in the writ petition the chances ofpromotion to the members of the petitioner would be reduced. ThisCourt is of the considered opinion that even assuming the same istrue it cannot be a ground to challenge the impugned order sinceright to promotion is neither a vested right nor a fundamental right.The decision taken by the respondents 1 and 2 is being a policydecision, this Court cannot go into the rationale behind the saiddecision since the policy decision evolved by an authority on aconsideration of a material available on record cannot be challengedand set aside until and unless the same bristles with arbitrarinessand malafides. A reading of the impugned order would show that thesame is based upon a consideration of the materials available onrecord and on a rationale basis. Therefore under those circumstances,the impugned order cannot be questioned. Moreover the writ petitionerhas not given any sufficient reasons for challenging the impugnedorder at a belated stage by which time the impugned order has beengiven effect to. 10.Hence taking into consideration of the above said factsand also the subsequent development by which the post involved in thewrit petition have been re-designated and re-deployed for some otherpurpose by virtue of the Government Order passed in G.O.Ms.No.67,Rural Development and Panchayat Raj Department dated 20.07.2009 thepresent writ petition is not maintainable in law and facts.11.In the judgment reported in (2009) 1 SCC 297 [VIRENDERCHAUDHARY v. BHARAT PETROLEUM CORPORATION] the Hon'ble Apex Court hasheld that a delay of 1 ½ years in challenging the impugnedproceedings is fatal and the writ petition is liable to be dismissedon the ground of estoppel, waiver and acquiescence. Therefore underthose circumstances, the Hon'ble Apex Court was pleased to hold thatthe discretionary and equitable relief under Article 226 of theConstitution of India need not be exercised if the writ petitioner is https://hcservices.ecourts.gov.in/hcservices/ guilty of delay and laches. The Hon'ble Apex Court in the saidjudgment has observed as follows:"14.He, however, filed a writ applicationonly on or about 23.11.2004. The High Court maybe correct in its view that the purportedcancellation of empanelment of the fifthrespondent was made on a wrong premise. Thoughthe advertisement published in Navbharat Timesmentioned "framing of charge in a criminal case"as a disqualification, in the advertisementpublished in The Tribune and Dainik Tribuneframing of charge in a criminal case was notmentioned as a disqualification. In theapplication form also, the applicant was notrequired to furnish any information regarding anyframing of charge in a criminal case. It wasneither necessary nor possible for the fifthrespondent to disclose the fact that two firstinformation reports had been lodged against himand in one of them he had been charge-sheeted.The purported disqualification attributed to him,therefore, led to an unjust decision. The HighCourt, however, in our opinion failed to takeinto consideration the effect of delay and lacheson the part of respondent 5 in approaching theHigh Court. A writ remedy is a discretionaryremedy. The court exercises its jurisdiction onlyupon satisfying itself that it would be equitableto do so. Delay and/or laches, indisputably, arethe relevant factors.15.The superior courts, times withoutnumber, applied the equitable principles for notgranting a relief and/or a limited relief infavour of the applicant in a case of this nature.While doing so, the Court although not obliviousof the fact that no period of limitation isprovided for filing a writ petition, but emphasisis laid that it should be filed within areasonable time. A discretionary jurisdictionunder Article 226 of the Constitution of Indianeed not be exercised if the writ petitioner isguilty of delay and laches.16.In Uttaranchal Forest Development Corpn.v. Jabar Singh this Court held:"43.... It is not in dispute that theeffective alternative remedy was not availed of https://hcservices.ecourts.gov.in/hcservices/ by many of the workmen as detailed in paragraphssupra. The termination order was made in the year1995 and the wit petitions were admittedly filedin the year 2005 after a delay of 10 years. TheHigh Court, in our opinion, was not justified inentertaining the writ petition on the ground thatthe petition has been filed after a delay of 10years and that the writ petitions should havebeen dismissed by the High Court on the ground oflaches."17.In NDMC v. Pan Singh this Court held:"16.There is another aspect of the matterwhich cannot be lost sight of. The respondentsherein filed a writ petition after 17 years. Theydid not agitate their grievances for a long time.They, as noticed herein, did not claim paritywith the 17 workmen at the earliest possibleopportunity. They did not implead themselves asparties even in the reference made by the Statebefore the Industrial Tribunal. It is not theircase that after 1982, those employees who wereemployed or who were recruited after the cut-offdate have been granted the said scale of pay.After such a long time, therefore, the writpetitions could not have been entertained even ifthey are similarly situated. It is trite that thediscretionary jurisdiction may not be exercisedin favour of those who approach the court after along time. Delay and laches are relevant factorsfor exercise of equitable jurisdiction. 17.Although, there is no period oflimitation provided for filing a writ petitionunder Article 226 of the Constitution of India,ordinarily, writ petition should be filed withina reasonable time.18.In Ramdev Food Products (P) Ltd. v.Arvindbhai Rambhai Patel it was held:"104...'26.Acquiescence is sitting by, whenanother is invading the rights and spending moneyon it. It is a course of conduct inconsistentwith the claim for exclusive rights in a trademark, trade name, etc.'"19.Recently in Khoday Distilleries Ltd. v.Scotch Whisky Assn. this Court applied theprinciple of waiver and acquiescence being a case https://hcservices.ecourts.gov.in/hcservices/ involving equity and justice. Conduct of theparties has also been considered to be a groundfor attracting the doctrine of estoppel byacquiescence or waiver.20.The fifth respondent did not acquire anindefeasible right. He was selected by the OilSelection Board. The said selection wassubsequently cancelled and a letter of intent wasissued in favour of the appellant in May 2004. Itwas not questioned immediately after issuance ofthe letter of intent in favour of the appellantin May 2004. In his writ application, the fifthrespondent did not question the grant ofdealership in favour of the appellant. He wasafforded an opportunity to amend the writpetition. He filed such an application only after16 months. However, the writ petition itself waswithdrawn and only in October 2006, the presentwrit application was filed. From the facts asnoticed hereinbefore, there can, therefore, be nodoubt that from May 2004 to October 2006, therespondent did not take any step to challenge theinsurance (sic issuance) of the letter of intentgranting dealership in favour of the appellant."12.In the judgment reported in (2007) 6 SCC 44 [RAM SINGHVIJAY PAL SINGH v. STATE OF U.P.] the Hon'ble Supreme Court waspleased to observe that in so far as the policy matters areconcerned, the judicial review under Article 226 of the Constitutionof India is very limited. Therefore in the absence of any legal rightthe said decision cannot be challenged. The Hon'ble Supreme Court hasobserved as follows:"11.Mr.Dinesh Dwivedi, learned SeniorCounsel for the appellant has next submitted thatthe writ petitioners were earlier carrying onbusiness from their own premises in Purana GallaMandi in the city of Pilibhit and they shifted toNawin Mandi Sthal, where the Mandi Samiti hadmade construction of shops and godowns, etc,which is at considerable distance from the cityand which lacked basic infrastructure, on theassurance given by the Mandi Parishad that thebusiness premises would be sold to them on hire-purchase basis. Learned counsel has submittedthat after having shifted to the Nawin MandiSthal which caused considerable inconvenience tothe traders, it is not open to the respondents tocontend that the business premises would be given https://hcservices.ecourts.gov.in/hcservices/ to them by the Mandi Samiti on lease or rentalbasis. In this connection it may be pointed outthat the writ petitioners have not filed anydocument whatsoever to show that either it washeld out or any assurance was given by therespondents that the business premises would besold to the petitioners on hire-purchase basis orotherwise. In fact, there is not a single pieceof paper on record to substantiate the allegationmade by the writ petitioners. Whether the shops,godowns and sheds of the Mandi Samiti, which havebeen allotted to the writ petitioners, should begiven to them on lease or should be sold to themon hire-purchase basis, is purely a matter ofpolicy as the property belongs to the MandiSamiti or the Mandi Parishad. It is for the MandiSamiti or the Mandi Parishad to take a policydecision in this regard and the Court cannotexamine the correctness or otherwise of the saidpolicy except in a very narrow compass.12.In Netai Bag v. State of W.B. this Courtheld as under in para 20 of the Reports:"20.The Government is entitled to makepragmatic adjustments and policy decision whichmay be necessary or called for under theprevalent peculiar circumstances. The courtcannot strike down a policy decision taken by theGovernment merely because it feels that anotherdecision would have been fairer or wiser or morescientific or logical. In State of M.P. v.Nandlal Jaiswal it was held that the policydecision can be interfered with by the court onlyif such decision is shown to be patentlyarbitrary, discriminatory or mala fide. In thematter of different modes, under the rule ofgeneral application made under the M.P. ExciseAct, the Court found that the four differentmodes, namely, tender, auction, fixed licence feeor such other manner were alternative to oneanother and any one of them could be resorted to."13.In the well-known case of BALCOEmployees' Union (Regd) v. Union of India athree-Judge Bench summarised the law on the pointas under:"In a democracy, it is the prerogative ofeach elected Government to follow its own policy. https://hcservices.ecourts.gov.in/hcservices/ Often a change in Government may result in theshift in focus or change in economic policies.Any such change may result in adversely affectingsome vested interests. Unless any illegality iscommitted in the execution of the policy or thesame is contrary to law or mala fide, a decisionbringing about change cannot per se be interferedwith by the Court. It is neither within thedomain of the courts nor the scope of thejudicial review to embark upon an enquiry as towhether a particular public policy is wise orwhether better public policy can be evolved. Norare the courts inclined to strike down a policyat the behest of a petitioner merely because ithas been urged that a different policy would havebeen fairer or wiser or more scientific or morelogical.Wisdom and advisability of economic policiesare ordinarily not amenable to judicial reviewunless it can be demonstrated that the policy iscontrary to any statutory provision or theConstitution. In other words, it is not for thecourts to consider relative merits of differenteconomic policies and consider whether a wiser orbetter one can be evolved. In matters relating toeconomic issues, the Government has, while takinga decision, right to 'trial and error' as long asboth trial and error are bona fide and withinlimits of authority. For testing the correctnessof a policy, the appropriate forum is Parliamentand not the courts."14.In Federation of Rly. Officers Assn. v.Union of India it was held as under in para 12 ofthe Reports:"12.In examining a question of this naturewhere a policy is evolved by the Governmentjudicial review thereof is limited. When policyaccording to which or the purpose for whichdiscretion is to be exercised is clearlyexpressed in the statute, it cannot be said to bean unrestricted discretion. On matters affectingpolicy and requiring technical expertise thecourt would leave the matter for decision ofthose who are qualified to address the issues.Unless the policy or action is inconsistent withthe Constitution and the laws or arbitrary or https://hcservices.ecourts.gov.in/hcservices/ irrational or abuse of power, the court will notinterfere with such matters."This being the settled position of law nodirection can be issued to the respondents totransfer the shops, godowns or sheds to the writpetitioners on hire-purchase basis."13.While considering the scope of the policy decision in arecent judgment of the Hon'ble Supreme Court reported in (2009) 4 SCC753 [DILIP KUMAR GARG v. STATE OF U.P.] has held as follows:"15.In our opinion Article 14 should not bestretched too far, otherwise it will make thefunctioning of the administration impossible. Theadministrative authorities are in the bestposition to decide the requisite qualificationsfor promotion from Junior Engineer to AssistantEngineer, and it is not for this Court to sitover their decision like a court of appeal. Theadministrative authorities have experience inadministration, and the Court must respect this,and should not interfere readily withadministrative decisions.16.The decision to treat all JuniorEngineers, whether degree-holders or diploma-holders, as equals for the purpose of promotionis a policy decision, and it is well settled thatthis Court should not ordinarily interfere inpolicy decisions unless there is clear violationof some constitutional provision or the statute.We find no such violation in this case.17.In Tata Cellular v. Union of India it hasbeen held that there should be judicial restraintin administrative decision. This principle willapply all the more to a rule under Article 309 ofthe Constitution."Therefore on a consideration of the above said judgments,this Court is of the opinion that the impugned order being the policydecision cannot be challenged.14.In the judgment reported in (2009) 7 SCC 734 [FOODCORPORATION OF INDIA v. ASHIS KUMAR GANGULY] the Hon'ble Apex Courtwas pleased to hold that a Writ of Mandamus cannot be issued unless aright exists to the petitioner with the corresponding duty on therespondents. The Hon'ble Apex Court has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "29.A statutory authority or anadministrative authority must exercise itsjurisdiction one way or the other so as to enablethe employees to take recourse to such remediesas are available to them in law, if they areaggrieved thereby. The question which, however,arises for consideration is as to whether havingexercised its jurisdiction in favour of a classof employees, a statutory authority can deny asimilar relief to another class of employees. Ina case of this nature, in our opinion, the writcourt was entitled to declare such a stand takenby the statutory authority as discriminatory onarriving at a finding that both the classes areentitled to the benefit of a statutory rule."15.In the judgment reported in 2009 (1) CTC 174 [CITYINDUSTRIAL DEVELOPMENT CORPORATION v. DOSU AARDESHIR BHIWANDIWALA]the Hon'ble Supreme Court was pleased to observe that the inordinatedelay in moving the Court for a writ petition is an adequate groundfor refusing the relief. The Hon'ble Apex Court was pleased toobserve that the Court should not encourage the agitation of staleclaims where rights have been accrued to the parties. The Hon'bleApex Court has observed that the relief under Article 226 of theConstitution of India being discretionary the same cannot be claimedas a matter of right. The Hon'ble Apex Court has observed as follows:"19.It is well settled and needs norestatement at our hands that under Article 226of the Constitution, the jurisdiction of a HighCourt to issue appropriate writs particularly aWrit of Mandamus is highly discretionary. Therelief cannot be claimed as of right. One of thegrounds for refusing relief is that the personapproaching the High Court is guilty ofunexplained delay and the laches. Inordinatedelay in moving the Court for a Writ is anadequate ground for refusing a Writ. Theprinciple is that Courts exercising public lawjurisdiction do not encourage agitation of staleclaims and exhuming matters where the rights ofthird parties may have accrued in theinterregnum."16.In so far as the contention of the learned AdvocateGeneral that the writ petition is liable to be dismissed on theground of constructive res judicata is concerned, this Court is ofthe opinion that no ground is made out for holding that the writpetition is to be dismissed on the ground of constructive res https://hcservices.ecourts.gov.in/hcservices/ judicata. It is a well settled principle of law that a party whichraised the plea of res judicata will have to substantiate his caseand prove the same. A reading of the order passed by the Hon'bleDivision Bench in W.A.No.500 of 2005 etc. and the relief sought forin the present writ petition would show that the issues involved inboth the cases are distinct and different. What is sought for in theearlier proceedings is absorption of some of the members of thepetitioner whereas the relief sought for in the present writ petitionis on the ground that the posts involved belong to the thirdrespondent. The issue raised in the present writ petition has notbeen raised in the earlier writ petition. Therefore when a ground ora question is not susceptible of being raised earlier. The subsequentwrit petition is not barred by constructive res judicata. The Hon'bleApex Court in the judgment reported in (2009) 7 SCC 734 [FOODCORPORATION OF INDIA v. ASHIS KUMAR GANGULY] has held that when aquestion is not susceptible of being raised earlier, the bar ofconstructive res judicata would not be made applicable.17.In so far as the contention raised by the respondentsabout the maintainability of the writ petition by the petitioner whois an association, the learned Advocate General fairly submitted thatinasmuch as the arguments have been made on the merits of the casethe said issue need not be decided. Accordingly in view of the saidposition that this Court has gone into the merits of the case and theissue of maintainability of the writ petition by the petitioner hasnot been gone into. 18.Therefore this Court on a consideration of the abovesaid legal principle of law and applying the same to the present caseon hand is of the considered opinion that the writ petition is liableto be dismissed.19.Coming to the merits of the case, as observed earlierthe posts involved in the writ petition are Government posts and thesalary is paid by the respondents 1 and 2. Therefore the contentionof the learned counsel for the petitioner that the posts should beconstrued as the one belonging to the third respondent has no factualbasis. The other contention of the learned counsel for the petitionerthat the respondents do not have the power to invoke under Article226 of the Constitution of India also does not merit acceptance. Thesaid power has been exercised by the respondents even while passingthe earlier Government Order in G.O.Ms.No.1837, RD & LA Departmentdated 29.11.1982 and the petitioner has not challenged the saidGovernment Order but relies upon the same. Therefore the impugnedorder cannot be challenged by the petitioner who does not have theright to challenge the same. In any case if the state has thelegislative competence to frame the rules then it can issueGovernment Orders in exercising the power under Article 162 of theConstitution of India. The said legal principle is supported by thedecision of the Hon'ble Supreme Court reported in (2009) 5 SCC 1 https://hcservices.ecourts.gov.in/hcservices/ [A.P.PUBLIC SERVICE COMMISSION V. BALOJI BADHAVATH]. The Hon'bleSupreme Court has observed as follows:"15.The vacancies which were to be filled upby the State pertained to Group I Services. TheState indisputably subject to the constitutionallimitations having regard to its power containedin the proviso appended to Article 309 of theConstitution of India is entitled to frame ruleslaying down the mode and manner in whichvacancies are to be filled up. If the State hasthe legislative competence to frame rules,indisputably, it can issue governmental orders inexercise of its power under Article 162 of theConstitution of India. It adopted one procedure.It was held to be ultra vires by the AndhraPradesh High Court in S.Jaffer Saheb. It attainedfinality."20.Hence a reading of the said judgment would show that thecontention of the learned counsel for the petitioner does not meritacceptance even though the same is not required to be gone into.Further as submitted by the learned Advocate General the earlierGovernment Order was passed in the year 1982 much prior to the 73rdConstitutional Amendment, 1992 and the enactment of the Tamil NaduPanchayat Act, 1994. Moreover neither the local bodies nor the thirdrespondent has got any objection to the passing of the impugned order.20(a).A similar view has been taken by the Hon'ble ApexCourt in the recent judgment reported in (2009) 8 SCC 492 [JANTIAHILL TRUCK OWNERS ASSOCIATION v. SHAILANG AREA COAL DEALER AND TRUCKOWNER ASSOCIATION AND OTHERS] wherein it has been observed that thepower under Article 162 of the Constitution of India in unequivocalterms provides that the executive power of the State shall extent tothe matters with respect to which the legislature of the State haspower to make law. Therefore this Court is of the opinion that thecontention of the learned counsel for the petitioner that in theabsence of any enactment by the legislature the first respondent isnot competent to exercise the power under Article 162 of theConstitution of India cannot be accepted.21.The petitioner herein has not challenged the GovernmentOrders passed in favour of the local authorities in G.O.Ms.No.84,Rural Development Department dated 05.05.1998 and G.O.Ms.No.63, RD &PR Department dated 29.06.2006, by which the first respondent hasempowered the Village Panchayats to spend certain amount for themaintenance of pumps by the local bodies. Accordingly 95% of the workhas been allotted to the local bodies. The petitioner has not chosento challenge the said orders. https://hcservices.ecourts.gov.in/hcservices/

22.The contention of the learned counsel for the petitionerthat power is given to the third respondent alone under Section 16 ofthe TWAD Board Act, 1970 read with Section 27 of the said Act toexecute the works cannot be accepted. For better appreciation, theabove said Sections have been extracted:"16.Function of the Board:- The Board shallperform all or any of the following functionsnamely:-(a) at the instance of the Government or a localauthority-(i) investigating the nature and type of schemesthat can be implemented in the area of any localauthority for the provision of drinking water anddrainage facilities;(ii) planning and preparing of schemes includingschemes covering areas falling within thejurisdiction of more than one local authority forthe purpose of providing the supply of drinkingwater or drainage facilities;(iii) executing such schemes under a phasedprogramme for the provision of drinking water anddrainage facilities within the areas of localauthorities to which such schemes relate.(b) providing technical assistance or givingadvice to local authorities in the execution andmaintenance of water supply and drainage works.27.Power of Local Authority to undertakeschemes:- No local authority other than theMunicipal Corporations of Madurai, Coimbatore,Tiruchirapalli, Tirunelveli, Salem and any otherMunicipal Corporation that may be constitutedunder any law for the time being inforce and thespecial grade municipalities, shall without theapproval of the Board.investigate, prepare or execute any scheme: Provided that no such approval shall be necessaryfor any local authority to undertake workconnected with hand pump, extension of pipelineand development of existing water sources bypower pumps."23.A reading of Section 16 would show that the thirdrespondent shall perform all or any of the functions at the instanceof the Government or local authority. Similarly Section 16(b) statesabout the giving of advice by the third respondent to the localauthorities. Hence it is clear that what is provided is a meretechnical assistance or advice. The said provision cannot beconstrued to hold that the work should be carried out by the localauthorities regarding hand pump, extension of pipe line and https://hcservices.ecourts.gov.in/hcservices/ development of existing water sources by power pumps only through thethird respondent alone. Similarly, the proviso to Section 27 is veryclear that an approval from the third respondent is not required fora local authority to undertake work connected with hand pump,extension of pipeline and development of existing water sources bypower pumps. It is seen that Section 27 as stood originally containedsub-clause (b) which states that the local authority without theapproval of the Board cannot authorise any person or body orassociation of individuals to investigate, prepare or execute anyscheme on behalf of such local authority. The said clause has beenremoved from the statute. The very fact that the said clause has beenremoved itself would indicate that the contention of the learnedcounsel for the petitioner cannot be countenanced. Therefore thecontention of the learned counsel for the petitioner that as per theTWAD Board Act, 1970 only the third respondent is alone competent tocarry the work of the local body cannot be accepted.24.In so far as the judgments relied upon by the learnedcounsel for the petitioner is concerned, this Court is of the opinionthat the said judgments are not applicable to the present case onhand. In the judgments reported in (2004) 6 SCC 254 [KUSUM INGOTS ANDALLOYS LTD. v. UNION OF INDIA AND ANOTHER] the challenge was to thevalidity of the legislation. Therefore under those circumstances, theHon'ble Supreme Court was pleased to hold that a writ Court would notdetermine a constitutional question in a vacuum. Further issueinvolved in the said case was about the territorial jurisdiction forfiling the writ petition. A reading of the said judgment would showthat the said judgment is against the petitioner since it wasobserved therein that a constitutional question cannot be decided inthe vacuum. Since in the present case the petitioner is not anaggrieved person, this Court is of the opinion that the judgmentrelied upon by the learned counsel for the petitioner is notapplicable to the present case on hand. 25.The learned counsel for the petitioner also relied uponthe judgment reported in (2007) 2 SCC 481 [NATIONAL INSTITUTE OFTECHNOLOGY AND OTHERS v. NIRAJ KUMAR SINGH] and submitted that anorder passed without authority is a nullity and therefore theprinciple of res judicata would not apply. A reading of the saidjudgment would show that the issue involved therein was of acompassionate appointment made in favour of the respondents. TheHon'ble Apex Court was pleased to observe that when an order ispassed by an authority lacking jurisdiction principles of resjudicata would not apply. This Court is of the opinion that the saidjudgment also is not applicable to the present case it is alreadyheld that there is no constructive res judicata in the present case.The learned counsel for the petitioner also relied upon the judgmentreported in (2008) 7 SCC 738 [M.V.JANARDHAN REDDY v. VIJAYA BANK ANDOTHERS] and submitted that an order passed without an authority has https://hcservices.ecourts.gov.in/hcservices/ no effect. The Hon'ble Apex Court was pleased to observe that anorder passed without an authority creates neither any right in favourof a party for whom such order is made nor imposes any obligation onthe party against whom it was passed. In the present case on hand,the impugned order does not impose any obligation on the petitionerand it does not also create any right in favour of any party. Hencethis Court is of the opinion that the said judgment is not applicableto the present case on hand. 26.The learned counsel for the petitioner has also reliedupon the judgment reported in (2008) 1 SCC 341 [SURESH JINDAL v. BSESRAJDHANI POWER LTD. AND OTHERS] and submitted that an Act donewithout an authority cannot be supported. As submitted earlier itcannot be held that the impugned order passed herein is one withoutauthority and in fact the said judgments supports the case of therespondents since it has been stated that while exercising thestatutory power, the statutory authority may do all things which arenecessary. Moreover the facts involved in the said case are totallydifferent and not applicable to the present case on hand.27.Hence on a consideration of the above said factual andlegal position, this Court is of the considered view that the writpetition is liable to be dismissed and accordingly the same isdismissed. No costs. Consequently, connected miscellaneous petitionis closed.sri Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1.The Secretary State of Tamil Nadu Rural Development and Panchayat Raj Department Secretariat Chennai – 600 009.2.The Director of Rural Development & Panchayat Raj Panagal Buildings Saidapet Chennai – 15. https://hcservices.ecourts.gov.in/hcservices/

3.The Managing Director Tamil Nadu Water Supply and Drainage Board Chepauk, Chennai – 5.4.The General Secretary Tamil Nadu Rural Development Engineer's Association 80, Lawrence Road Cuddalore.+ 1 cc to Mr.N.Subramaniyan, Advocate SR.56410+ 1 cc to Government Pleader CC SR.56511W.P. NO.9307 OF 2009 GV(CO)EU 6.11.2009.