Madrasdated High Court · 2008

5.A.Rajeswaran6.G.Selvi7.T.Mathivanan8.R.Malathi9.D.Nataraj10.R.Kamaraj..Petitioner in WP No.13342/2008K.Gopu..Petitioner in WP No.13344/2008A.K.Tharaneethar..Petitioner in WP No.13345/2008D.Balasaravanan..Petitioner in WP No.13346/20081.N.Vaithi2.V.Govindaraj3.P.Surendrakumar4.K.Sri Sivasamy..Petitioner in WP No.13348/2008M.Lakshmikanth Kalathy..Petitioner in WP No.13352/2008R.Kalidass..Petitioner in WP No.13376/2008S.Gokuladass..Petitioner in WP No.13377/2008K.Srinivasan..Petitioner in WP No.13378/2008E.Francis..Petitioner in WP No.13379/2008N.Dhanasekaran..Petitioner in WP No.13380/2008R.Bharathiraja..Petitioner in WP No.13381/2008K.Mohan..Petitioner in WP No.13382/2008M.Sathish..Petitioner in WP No.13383/20081.S.Viswabharathi2.C.Vishnu Parthiban3.C.Senthil Kumar..Petitioner in WP No.13386/2008M.Gowrisankar..Petitioner in WP No.13576/2008J.Senthil Kumar..Petitioner in WP No.13635/2008 https://hcservices.ecourts.gov.in/hcservices/ V.Anthoni Muthu..Petitioner in WP No.13636/2008A.Nambi Venkatesh..Petitioner in WP No.13725/2008E.Nehru..Petitioner in WP No.13879/2008A.G.Ilangeswar..Petitioner in WP No.13880/2008S.Siddiq..Petitioner in WP No.14519/2008T.Udayakumar ..Petitioner in WP No.14915/2008K.Balasubramaniyan..Petitioner in WP No.15335/2008Vs.1.The Chairman,Tamil Nadu Public Service Commission,Chennai - 600 002.2.The Secretary to Government,Home Department,Secretariat,Chennai - 600 009.3.The Special Commissioner &Transport Commissioner,Chepauk, Chennai - 600 005. ...Respondents in WP.14169 & 14170/2008Secretary to Government HomeTransport) Dept., Chennai-9. 1st Respondent in W.P.9687/08, 10824,10825, 12931,12932,12289,12290,13229,13283,13284,13352,13386,13725/08Transport Commissioner,Chepauk, Chennai-5. 2nd Respondent in W.P.No.9687/08,12931,12932,12289,12290,13229,13352,13386/08Secretary to GovernmentPersonnel and AdministrativeReforms Department, SecretariatChennai-9.. 3rd Respondent in W.P.No.9687/08,12931,12932,12289,12290,13229,13342,13352,13386,14915/08 https://hcservices.ecourts.gov.in/hcservices/ The Director,Employment and Training DepartmentGunidy, Chennai-32. ..4th Respondent in W.P.No.9687/08,12931,12932,12289,12290,13229,13352,13386/08The Special Commissioner &Transport CommissionerChepauk,Chennai-5.2nd Respondent in W.P.No.10413/08,10824,10825,10901,10959,10960/08,11094,11095/082nd Respondent in W.P.11246/08,11247,11248,13283,13284,13297,13342,13576,13725,13879,13880,14519,14915, and 15335/083rd Respondent in W.P.No.11036/08,11037,11038,11039,11040,11157,11158,11159,11160,11161,12397,13244,13245,13341 to 13344,13345,13346,13348,13376 to 13383,13635,13636/08The Secretary,Tamil Nadu Public Servicecommission, Chennai-2. 3rd Respondent in WP.10413/08,10909,11094,11095,11246,12247,11248,13297 & 15335/084th Respondent in W.P.No.13342/08, 14915/08The Chairman,Tamil Nadu Public ServiceCommission,Chennai.2. 1st Respondent in W.P.No.11036,11037,11038,11039,11040,11157,11158,11159,11160,11161,12397,13244,13245,13341,13344,13345,13346,13348,13376 to 13383,13635,13636/08The Secretary to the Government Home DepartmentSecretariat, Chennai-9. 2nd respondent in W.P.No.11036,11037,11038,11039,11040,11157,11158,11159,11160,11161,12397,13244,13245,13341,13344,13345,13346,13348,13376 to 13383,13635,13636/08 https://hcservices.ecourts.gov.in/hcservices/ 1st Respondent in WP Nos. 11246,11247,11248,14519/08Secretary to the Government ofTamil Nadu, Home (Transport IIA) Chennai-9. 1st Respondent in WP.Nos. 10909,10959,10960,13342,13879,13880,14915/08Secretary to the Govt. of Tamilnadu Home(Transport-II)Chennai-9... 1st Respondent in W.P.No.10413,11094,11095,13297,15335/08Secretary to Govt. of Tamil Nadu, Transport DepartmentF.St.G.Chennai-9. 1st Respondent in W.P.No.13576/08.WP.14169 & 14179/2008Prayer: This writ petition is filed under Article 226 of Constitutionof India, praying this Court to issue a writ of Certiorarified mandamuscalling for the records of the third respondent pertaining to thenotification dated nil, published in Newspaper "Thinakaran" on13.4.2008 in pursuance of the order of the 2nd respondent made inG.O.Ms.No.324 Home (Tr.II-A) Department, dated 6.3.2008 and quash thesame, consequently direct the second and third respondents to considerthe name of the petitioner for the post of Motor Vehicle Inspector,Grade-II by contract as per section 10(a)(i)(1) of Tamil Nadu State andSubordinate Service Rules, 1955.Calling for the records vide proceedings in G.O.Ms.No.324 dated6.3.08, Home (Tr.II-A)Department and quash the same, consequentlydirect the respondents to fix the educational qualification of Diplomain Automobile Engineering / Diploma in Mechanical Engineering insteadof Bachelor of Engineering for the post of Motor Vehicle InspectorGrade - II. (W.P.No.9687/08) (W.P.13386/08)Calling for the records relating to the notification dated13.4.2008, published by the 2nd Respondent herein in Dinakaran Daily on13.4.2008, and quash the same and direct the respondent to re notifyfor the post of Motor Vehicle Inspector Grade - II with thequalification prescribed by the Tamilnadu Public Service Commission inits notification dated 18.4.2001 and as per the Central Motor VehicleRule 1989, and further direct the respondents to finalise the selectionthrough Tamilnadu Public Service Commission for 65 Vacancies(W.P.10413/08) https://hcservices.ecourts.gov.in/hcservices/ Calling for the records relating to the notification No.Nil issuedby the 2nd Respondent herein dated Nil calling for application forappointment of Motor Vehicle Inspector Grade II on contract basis aspublished in the daily "Thina Thanthi" dated 13.4.2008 in so far asclause (B) (i) and Clause (A) respectively is concerned and quash thesame and consequently direct the 2nd Respondent to consider thepetitioner for being appointed Motor Vehicle Inspector Grade - II oncontract basis (W.P.10824 & 10825/08)calling for the records relating to G.O.Ms.No.324, Home (Tr.II-A)Department dated 6.3.08 issued by the Secretary to government, HomeDepartment, Fort St.George, Chennai - 9, the 1st Respondent herein andthe consequential notification issued by the Special Commissioner andTransport Commissioner, Chepauk, Chennai -5, the 2nd Respondent hereindated 13.4.2008 quash the same and direct the Tamilnadu Public ServiceCommission, Chennai - 2, the 3rd Respondent herein to publish theresult of regular selection pursuant to the examination conductedduring the year 2007 and consequently appoint the selected candidatesin the existing vacancies in the post of Motor Vehicle Inspector Gr.IIlon a permanent basis or in the alternative till or regularly selectedcandidates through TNPSC is made, direction may be issued to the 2ndRespondent herein to fill the existing vacancies from out of thepersons who have already applied to the TNPSC for the post of MotorVehicle Inspector Gr.II pursuant to 2007 Notification based on the ageof the applicants therein either on a temporary basis or on acontractual basis till the above said regular appointment is madethrough TNPSC (W.P.10909/08)calling for the records of the Advertisement issued in English NewsDaily The Hindu, made in DIPR/713/Dis/2008 dt.13.4.2008 in so far as itimposes age restriction contained in sub clause (a) (S) & (a)(z)respectively of Clause (xii) of the terms and conditions issued by thespecial Commissioner and Transport Commissioner, Chepauk, Chennai - 5,the 2nd Respondent for the post of Motor Vehicle Inspector Grade II inthe Tamilnadu Transport Subordinate Service, and quash the same andconsequently direct the respondents (1) to permit the petitioner tosend the required certificate along with resume (W.P.10959 & 10960/08)(2) to consider the application of Petitioner and issue hall ticket(W.P.13879 & 13880 of 2008) so as to enable him to participate in theselection to the post of Motor Vehicle Inspector Grade II in theTamilnadu Transport Subordinate Service and consequently direct therespondent to consider the petitioner for appointment to the said post(W.P.10959 and 10960/08)calling for the records of the 3rd Respondent pertaining to thenotification published on 13.4.2008 in pursuance of the order of the2nd Respondent made in G.O.Ms.No.324 Home (Tr.II-A) Department dated6.3.08 and quash the same and consequently direct the 3rd respondent to https://hcservices.ecourts.gov.in/hcservices/ consider the petitioner for the appointment to the post of MotorVehicle Inspector, Grade II by contract (W.P.11037, 11038, 11039 &11040 of 2008)calling for the records relating to the notification dated 13.4.08published by the 2nd Respondent herein in Dinakaran daily on 13.4.08and quash the same and direct the respondents to renotify for the postof Motor Vehicle Transport, Grade II with the qualification prescribedby the Tamilnadu Public Service Commission in its Notification dated18.4.07 and as per the Central Motor Vehicle Rule 1989 & further directthe respondent to finalise the selection through TNPSC for 65 vacancies(W.P.11094 and 11095/08)calling for the records of the 3rd respondent pertaining to theNotification No.Nil published in Newspaper "Thinakaran" on 13.4.08 inpursuance to the order of the 2nd Respondent made in G.O.Ms.No.324 Home(Tr.II-A) Department dated 6.3.08 and quash the same and consequentlydirect the 3rd Respondent to consider the petitioner for theappointment to the post of Motor Vehicle Inspector Grade - II bycontract (W.P.11157, 11158, 11159, 11160, 11161/08) W.P.12397/08,W.P.13244/08, 13245/08, W.P.13344, 13345, 13346, 13348, 13376 to 13383,13635, 13636 & W.P.14519/08.Calling for the records available on the file of respondents 1 and2 pertaining to the issue of the advertisement published in the HinduNewspaper on 13.4.08 for making contract appointments to the post ofMotor Vehicle Inspector Grade-II and quash the same and consequentlydirect the respondents 1 and 2 to make the contract appointments to thepost of Motor Vehicles Inspector Grade-II only from the candidates whoposses the requisite qualifications for the regular appointment to thepost of Motor Vehicle Inspector Grade - II, in Tamilnadu TransportDepartment only for a temporary period till the regularly selectedcandidates from the 3rd Respondent join the service (W.P.11246, 11247,11248 / 08)Calling for the records vide proceedings in G.O.Ms.324 dated 6.3.08Home (Tr.II-A) Department and Quash the same, consequently direct theRespondents to fix the educational qualification in Diploma inAutomobile/Mechanical Engineering instead of Bachelor of Engineeringfor the post of Motor Vehicle Inspector (WP.12931, 12932/08)WP.12290/08, WP/13229/08.Calling for the records with regarding to vide proceedings inG.O.Ms.No.324 dated 6.3.08 Home (Tr.II-A) Department and Quash thesame, consequently direct the Respondents to give the age Relaxation tothe petitioner as per Rule 12(d) of the Amended in Tamil Nadu State andSubordinate Service Rules (WP.12289/08) https://hcservices.ecourts.gov.in/hcservices/ Calling for the records pertaining to the notification issued bythe 2nd Respondent in DIPR/713/Dis/2008 dt. Nil as published in theHindu dated 13.4.08 and quash the same, and direct the Respondents tofill up the post of Motor Vehicle Inspector Grade II as per the specialrules by considering the Diploma holders in Mechanical Engineering orAutomobile Engineering alone (WP.13283/08, 13284/08), 13725/08.Calling for the records relating to G.O.Ms.No.324 Home (Tr.II-A),Department dated 6.3.08 on the file of the Ist Respondent and theconsequential notification issued by the 2nd respondent which waspublished in the Hindu News paper dated 13.4.08 on the file of the 2ndRespondent quash the same in so far as the qualification of age limitis concerned and direct the respondents to appoint the petitioner inthe existing vacancies in the post of Motor Vehicle Inspector Grade-IIon a contractual basis till the regular appointment is made thro' TNPSC(WP.13297/08).Calling for the records of the 3rd respondent pertaining to thenotification published on 13.4.08 in pursuance of the order of the 2ndrespondent made in G.O.Ms.No.324 Home (Tr.II-A) Department dated 6.3.08and quash the same and consequently direct the 3rd respondent toconsider the petitioner for the appointment to the post of MotorVehicle Inspector Grade-II by contract in so far as the petitioner isconcerned (WP.13341/08).Calling for the records of respondents in connection with theimpugned order passed by the Ist respondent in G.O.Ms.No.324 HomeTransport-II A Department dated 6.3.08 and consequential notificationissued by the Special Commissioner and Commissioner of Transport,Chepauk, Chennai -5 dated 13.4.08 in English Daily “The Hindu” dated13.4.08 and quash the same (1) and further direct the 4th Respondent(WP.13342/08) (2) in so far as the age restriction contained in subclause (a)(2) of clause XII of terms & conditions prescribing upper ageof 32 years & further direct the respondents (WP.14915/08) to conductrecruitment to the post of Motor Vehicle Inspector, Grade-II(WP.13342/08).Calling for the records with regarding to vide proceedings inG.O.Ms.324 dated 6.3.08 Home (Tr.II-A) Department and Notificationdated Nil published in News Paper Thinakaran on 13.4.08, quash thesame, consequently direct the respondents to consider the Diploma inAutomobile Engineering candidates for the post of Motor VehicleInspector Grade II (WP.13352/08)Writ of Mandamus directing the respondents more particularly the2nd respondent to consider the representation made by the petitioner on13.5.2008 to 29.5.08 (WP.13576/08). https://hcservices.ecourts.gov.in/hcservices/ Calling for the records to the notification dated 13.4.08 publishedby the 2nd Respondent herein and quash the same and direct therespondents to fill up 65 vacancies through Tamil Nadu Public ServiceCommission pursuant to its notification dated 27.7.01 for the post ofMotor Vehicle Inspector Grade-II (WP.15335/08).For Petitioners :Mr.N.R.Chandran, Senior Counsel,for Mr.N.Umapathi, M.Elango, Mr.K.Venkataramani, Senior Counselfor Mr.M.MuthappanMr.A.Kalaiselvan,Mr.N.Subramaniyan,Mr.D.Krishnakumar,Mr.K.Rajkumar,Mr.R.Govindasamy,Mr.S.Xavier Felix,Mr.V.Venkatasamy,Mr.S.Mani,Mr.P.R.Dinesh Kumar,Mr.S.Doraisamy,Mr.V.Harikrishnan, andMr.S.P.B.DhuraishamyFor 1st Respondent/TNPSC:Mr.A.Arul,Standing Counsel for TNPSCFor Respondents 2 & 3/ :Mr.P.S.Raman, Addl. Adv. GeneralState of Tamil Naduassisted byMrs.Lita Srinivasan,Government AdvocateCOMMON ORDERThis batch of 58 cases are filed challenging in entirety theG.O.Ms.No.324 Home Department, dated 6.3.2008 or in part of the saidGovernment order by the petitioners, seeking further direction toconsider the name of the petitioners for selection to the post of MotorVehicle Inspectors Grade-II on contract basis as per section 10(a)(i)of the Tamil Nadu State and Subordinate Service Rules, 1955.2.As the issue involved in all the writ petitions are one andthe same, all the 58 writ petitions are disposed of by this commonorder. For the sake of convenience, W.P.No.14169 of 2008 is taken aslead case and the parties in this common order are referredaccordingly. https://hcservices.ecourts.gov.in/hcservices/

3.The case of petitioners are that they have completed Diplomain Mechanical Engineering and gained experience of more than one yearin the Government approved and reputed Automobile Workshops and theyare having valid driving licence for driving Motor vehicles, HeavyGoods Vehicles and Heavy Passenger Motor Vehicles. The Tamil NaduPublic Service Commission issued notification in advertisement No.107for filling up 49 vacancies estimated in February, 2007, pursuant towhich the petitioners herein applied for the above said posts, asaccording to them, they are all qualified candidates. Written test wasconducted on 29.7.2007 by the TNPSC for preliminary selection and thepetitioners are awaiting for results.4.In the meanwhile, the Government issued G.O.Ms.No.324, HomeDepartment, dated 6.3.2008 and invited applications for appointment of65 Motor Vehicle Inspectors Grade-II on contract basis till the regularrecruitment process is completed by the TNPSC. In the said GovernmentOrder, the respondents prescribed the qualification as pass in B.E.degree in Automobile Engineering or related branches of Engineering.It is further stated that the said appointments will be initially for aperiod of one year from the date of joining or till the date of theregularly appointed candidates join duty and the contract may beextended further at the discretion of the Contract AppointmentCommittee/Government, depending upon the performance and need. Thefurther condition prescribed are that the persons to be appointed shalladhere to the working hours assigned to the regular Motor VehicleInspectors and discharge all other duties and responsibilities assignedto the post. The post of Contract Motor Vehicle Inspector Grade-IIshall carry consolidated pay of Rs.8,000/- per month. Since the postinvolve heavy money transaction, production of bank guarantee orsuitable security to the tune of Rs.5,00,000/- (Rupees Five Lakhs) isalso insisted. It is further stated that the performance of thecandidates will be assessed on quarterly basis.5.Pursuant to the said Government Order, the TransportCommissioner issued further instructions on 13.4.2008 wherein minimumage of 21 and upper age limit of 32 is prescribed and for BC, MBC, SC &ST candidates, relaxation of five years upto 37 years is also given.It is also prescribed that the candidate must also possess experienceof six months after obtaining Heavy Motor Vehicle licence. The totalseats are distributed based on reservation norms. The Government alsoinvited applications through advertisement dated 13.4.2008.6.The said orders of the respondents are challenged in thisbatch of 58 writ petitions either in toto or some of the clauses on theground that the notification is contrary to Section 213 of the MotorVehicles Act, 1988, and the notification issued by the CentralGovernment prescribing minimum qualification through S.O.443(E) dated12.8.1989. The said notification is also in violation of Rule 10(a)(i) https://hcservices.ecourts.gov.in/hcservices/ of the Tamil Nadu State and Subordinate Service Rules, 1955,particularly with regard to the prescription of qualification and bypermitting the respondents to proceed with the impugned selection,petitioners' right to get selected based on the Diploma qualificationand one year experience certificate, will be affected. It is furtherstated that directing to produce bank guarantee/security for a sum ofRs.5 lakhs is arbitrary and the said condition deprives the rights ofseveral qualified candidates and it is in violation of Articles 14 and16 of the Constitution of India. The right of the BC, MBC, SC and STcandidates are affected as Rule 12(d) of the Tamil Nadu State andSubordinate Service Rules, 1955, enables the said candidates to applywithout reference to age restriction.7.The Special Commissioner and Transport Commissioner, Chepauk,Chennai-5, filed counter affidavit wherein it is contended as follows:(a)The Motor Vehicle Inspectors Grade-II post is coming withinthe purview of the TNPSC. The transport department of the Governmentis periodically sending proposal for filling up of vacancies throughTNPSC. The estimate of vacancies for the years from 2000 to 2008 (from1.5.2000 to 30.4.2008) are 122 and out of this, only 8 appointmentpertaining to 2000-2001 was made through the TNPSC during September,2007. The subsequent request of the Government to fill up thevacancies numbering 49 was notified by the Government in February,2007. For 49 vacancies, till date the selection process is notcompleted and at present out of 139 sanctioned posts of Motor VehicleInspectors Grade-II, 91 posts amounting to nearly 66% are lyingvacant. (b)The TNPSC is likely to take not less than 8 to 10 months tocomplete the selection process and to meet the immediate requirements,the Government thought fit to appoint Motor Vehicle Inspectors Grade-IIon contract basis, pending selection by the TNPSC. The Grade-II MotorVehicle Inspector post is the feeder category post for other higherlevel technical cadres and therefore it is impossible to complete theday to day works in the department. Since the post is coming withinthe purview of the TNPSC and the TNPSC is taking time due to theirinternal lengthy procedures, alternative and expeditious measures areto be found out and therefore the Government had to explore thepossibility of filling up of these 65 vacancies on contract basis. Theselected candidates may have to attend to the following important itemsof works:a)Conduct of driving tests and issue of driving licences;b)Inspection of vehicles for registration, for issue/renewal ofFitnessCertificates; https://hcservices.ecourts.gov.in/hcservices/ c)Inspection of vehicles involved in accidents; andd)To enforce the provisions of the Motor Vehicles Act & Rules so astodetect the irregularities resulting incollection of fine/tax/compounding fee due to the Government and also to curb otherirregularities.Pointing out the said urgency, the respondents are justifying theissuance of the impugned orders.(c)Insofar as the contention that the Government has no power toappoint Motor Vehicle Inspectors Grade-II on contract basis, accordingto the respondents, Rule 11 of the Tamil Nadu State and SubordinateService Rules, 1955, empowers the Government to make such contractappointments. Rule 10(a)(i) of the Tamil Nadu State and SubordinateService Rules, 1955, also empowers the respondents to call for a listfrom the employment exchange and make temporary appointment. Followingthe said rules, application from eligible candidates were called for byfixing last date as 30.4.2008 through advertisement in prominentnewspapers like 'The Hindu, The Indian Express, Dina Thandhi andDinakaran' and 419 applications were received upto 30.4.2008 by 5.45p.m.(d)Regarding prescription of educational qualification isconcerned it is stated that Motor Vehicle Inspectors Grade-II requirepersons with higher qualification due to modernisation of industry, dueto the change in the circumstances like manufacturing of hi-techvehicles, etc., the department has to fully equip itself to meet thechallenges of the present situation. It is also contemplating toacquire latest technologies such as introduction of smart-card system,high security number plates, various E-Governance measures incollection of taxes, fees and other administrative matters and thepresent officers are unable to cope up with the said challenges due tolesser educational qualification. Therefore the Government prescribeda pass in B.E.(Automobile Engineering) or related branch of Engineeringfor contract appointments.(e)Insofar as the direction to produce security/bank guarantee ofRs.5 lakhs from the selected candidates it is stated that the selectedcandidates shall have to handle huge amount of cash while checkingvehicles, collecting taxes/fine/ compounding fees, etc. The saidamount will have to be remitted to the Government account either on thesame day or on the next day and some times, due to interveningholidays, the amount collected could not be remitted immediately anddue to the said facts, there is possibility of misappropriation ofamounts so collected and if it happens, the loss could be compensated https://hcservices.ecourts.gov.in/hcservices/ from the security to be furnished, as no other action could be takenagainst the selected persons, who are holding temporary posts for aperiod of one year for whom service rules are not applicable.(f)Insofar as not prescribing the minimum experience isconcerned, it is stated that to verify the genuineness of theexperience certificate it will take enormous time, which will causeunnecessary delay in appointment. Pointing out the above reasoning theimpugned order is sought to be justified by the respondents. 8.Heard Mr.N.R.Chandran, learned Senior Counsel,Mr.K.Venkataramani, learned Senior Counsel, Mr.A.Kalaiselvan,Mr.N.Subramaniyan, Mr.D.Krishnakumar, Mr.K.Rajkumar, Mr.R.Govindasamy,Mr.S.Xavier Felix, Mr.V.Venkatasamy, Mr.S.Mani, Mr.P.R.Dinesh Kumar,Mr.S.Doraisamy, Mr.V.Harikrishnan and Mr.S.P.B.Dhuraishamy, learnedcounsels on behalf of the petitioners and Mr.A.Arul, learned StandingCounsel for the TNPSC/1st respondent and Mr.P.S.Raman, learnedAdditional Advocate General, for the State of Tamil Nadu/respondents 2and 3.9.The learned Senior Counsels and other counsels appearing forthe petitioners submitted that the impugned order is contrary toSection 213 of the Motor Vehicles Act, 1988, as well as to thenotification issued under the Central Motor Vehicles Rules, whereinDiploma in Mechanical Engineering and working experience of at leastone year with possession of driving licence to drive Motor Vehicles,Heavy Goods Vehicle and Heavy Passenger Motor Vehicles are prescribed.It is further contended that under Rule 10(a)(i) of the Tamil NaduState and Subordinate Service Rules, 1955, only qualified persons withprescribed qualification under the recruitment rules can be appointedtemporarily, if there is undue delay in selecting persons regularly.The notification issued is contrary to the recruitment rules andtherefore the proposed appointments cannot be treated as under Rule 10(a)(i). In the TNPSC notification issued for selecting candidates forthe very same post, there is no age limit fixed for B.C., MBC, SC andST candidates in terms of Rule 12(d) of the Tamil Nadu State andSubordinate Service Rules, 1955, and in the impugned orders only fiveyears relaxation i.e, upto the age of 37 is given to such categories ofcandidates and therefore the rights of the said candidates areaffected. The learned counsels also pointed out that in the Governmentorder, no minimum or upper age limit is fixed, whereas the TransportCommissioner in his order dated 13.4.2008 prescribed minimum age as 21and upper age as 32 years and with relaxation 37 years of age to thesaid categories of the candidates and the said action of the TransportCommissioner is contrary to the Government Order and therefore the sameis illegal. Mr.N.R.Chandran, learned Senior Counsel submitted thatRule 11 of the Tamil Nadu State and Subordinate Service Rules, 1955,cannot be applied for appointments and appointments are to be made onlyunder Rule 10(a)(i) and conditions of service alone can be fixed by https://hcservices.ecourts.gov.in/hcservices/ agreement. The learned Senior Counsel further submitted that even ifthere is urgency, since the notification issued by the TNPSC is of theyear 2007 and written test also having been conducted, directions couldbe issued to the TNPSC to complete the selection process within a giventime, so that the contractual appointments through the impugned ordercan be avoided.10.The learned Additional Advocate General appearing for therespondents 2 and 3 submitted that even though notification was issuedthrough the TNPSC for selection of 49 Motor Vehicle Inspectors Grade-IIand written test was conducted on 29.7.2007, there is delay incompletion of the selection process and there are 91 vacanciesavailable for the post as on date and to cope up with the work asstated in the counter affidavit, the impugned procedure is prescribedby the Government under Rule 11 of the Tamil Nadu State and SubordinateService Rules, 1955, for recruiting 65 Motor Vehicle Inspectors Grade-II/Examiners, and the Government is vested with such power under Rule11 and therefore there is no illegality in the said Government Order.The learned Additional Advocate General also submitted that a degree inMechanical Engineering was prescribed as the qualification due to thenature of the work they have to perform even though the recruitmentrules are yet to be amended and by virtue of the said prescription ofthe qualification, higher qualified persons are ordered to be selectedthan the prescribed qualification mentioned in the recruitment rules.Insofar as the fixing of minimum age of 21 by the TransportCommissioner is concerned, the Government order nowhere prescribed thesaid minimum age or upper age and therefore the Transport Commissioneris not right in fixing the minimum age. With regard to the conditionthat the selected candidates must produce bank guarantee or suitablesecurity to the tune of Rs.5 lakhs, the same is insisted on the basisof the duties to be performed by the selected candidates includinghandling of huge amounts and as no disciplinary control is vested withthe department, the said bank guarantee or suitable security isinsisted upon to realise the amount collected, if there is non-remittance or misappropriation and the same cannot be treated asunreasonable. The learned Additional Advocate General furthersubmitted that the selected candidate will not get any vested right byvirtue of their selection and they will be permitted to continue towork only till the regularly selected candidates, by the TNPSC inaccordance with the recruitment rules, assume office/join duty.11.The learned counsel appearing for the TNPSC/first respondenton instructions submitted that the TNPSC will be in a position topublish the written test results conducted on 29.7.2007 within onemonth and thereafter final selection could be completed. According tothe learned counsel, the delay in completing the selection is only onthe part of the Transport Commissioner in completing the verificationof the experience certificates with regard to the experience of thecandidates and immediately on receipt of the report of the genuineness https://hcservices.ecourts.gov.in/hcservices/ of the said certificates from the Transport Commissioner, finalselection would be made. The learned counsel also submitted thatexcept the 49 vacancies which are notified in the year 2007, no othervacancy position was intimated by the respondents 2 and 3 to the TNPSCfor issuing notification inviting applications and therefore there isno delay on the part of the first respondent in conducting selections.12.I have considered the rival submissions made by the respectivecounsels for the petitioners and the respective counsels for therespondents.13.From the narration of above facts and the arguments advancedon behalf of the petitioners as well as respondents, the followingissues arise for consideration in these cases.1)Whether candidates can be appointed on contract basis inviolation of the qualifications prescribed in the MotorVehicles Act, 1988, and the recruitment rules viz., Tamil NaduTransport Subordinate Service Rules ?2)Whether the respondents 2 and 3 are justified in passingthe impugned order invoking Rule 11 of the Tamil Nadu Stateand Subordinate Service Rules, 1955 ?3)Whether the respondents 2 and 3 are justified inprescribing Rs.5 lakhs as bank guarantee or security from theselected candidates for their engagement as Contract MotorVehicle Inspectors Grade-II?4)Whether the respondents 2 and 3 are justified in issuingthe impugned order when Tamil Nadu Public Service Commissionhas notified 49 vacancies and recruitment process is inprogress ?5)Whether the action of the respondents 2 and 3 amounts toencouraging back door entry in public employment ?14.The qualification prescribed for the post of Motor VehicleInspectors Grade-II under Motor Vehicles Act, 1988, in section 213reads as follows:213.Appointment of motor vehicles officers.- (1) The State Government may, for the purpose ofcarrying into effect the provisions of this Act,establish a Motor Vehicles Department and appoint asofficers thereof such persons as it thinks fit. https://hcservices.ecourts.gov.in/hcservices/ (2)Every such officer shall be deemed to be apublic servant within the meaning of the IndianPenal Code (45 of 1860).(3)The State Government may make rules toregulate the discharge by officers of the MotorVehicles Department of their functions and inparticular and without prejudice to the generalityof the foregoing power to prescribe the uniform tobe worn by them, the authorities to which they shallbe subordinate, the duties to be performed by them,the powers (including the powers exercisable bypolice officers under this Act) to be exercised bythem, and the conditions governing the exercise ofsuch powers.(4)The Central Government may, having regardto the objects of the Act, by notification in theOfficial Gazette, prescribe the minimumqualifications which the said officers or any classthereof shall possess for being appointed as such.(5)In addition to the powers that may be conferred on any officer of the Motor VehiclesDepartment under sub-section (3), such officer asmay be empowered by the State Government in thisbehalf shall also have the power to,-(a)make such examination and inquiry as hethinks fit in order to ascertain whether theprovisions of this Act and the rules made thereunderare being observed;(b)with such assistance, if any, as he thinksfit, enter, inspect and search any premises which isin the occupation of a person who, he has reason tobelieve, has committed an offence under this Act orin which a motor vehicle in respect of which suchoffence has been committed is kept:Provided that,-(i)any such search without a warrant shall bemade only by an officer of the rank of aGazetted Officer;(ii)Where the offence is punishable with fineonly the search shall not be made after sunsetand before sunrise; https://hcservices.ecourts.gov.in/hcservices/ (iii)where the search is made without awarrant, the Gazetted Officer concerned shallrecord in writing the grounds for not obtaininga warrant and report to his immediate superiorthat such search has been made;(c)examine any person and require theproduction of any register or other documentmaintained in pursuance of this Act, and take on thespot or otherwise statements of any person which hemay consider necessary for carrying out the purposesof this Act;(d)seize or take copies of any registers ordocuments or portions thereof as he may considerrelevant in respect of an offence under this Actwhich he has reason to believe has been committed;(e)launch prosecutions in respect of anyoffence under this Act and to take a bond forensuring the attendance of the offender before anyCourt;(f)exercise such other powers as may beprescribed:Provided that no person shall be compelledunder this sub-section to answer any question ormake any statement tending to incriminate himself.(6)The provisions of the Code of CriminalProcedure, 1973 (2 of 1974) shall, so far as may be,apply to any search or seizure under this section asthey apply to any search or seizure under theauthority of any warrant issued under section 94 ofthe Code."(Emphasis supplied)The Central Government, bearing in mind the duties to be performed bythe Motor Vehicle Inspectors and the powers conferred under Section213(A) prescribed the minimum qualification for the class of officersconsisting of the category of Inspector of Motor Vehicles or AssistantInspector of Motor Vehicles as follows:"Qualifications.(1)Minimum general educational qualificationof a pass in X standard; and https://hcservices.ecourts.gov.in/hcservices/ (2)A diploma in Automobile Engineering (3year course)ora diploma in Mechanical Engineering awarded by theState Board of Technical Education (3-year course);and(3)working experience of at least one year ina reputed automobile workshop which undertakesrepairs of both light motor vehicles, heavy goodsvehicles and heavy passenger motor vehicles fittedwith petrol and diesel engine; and(4)must hold a driving licence authorisinghim to drive motor cycle, heavy goods vehicles andheavy passenger motor vehicles."The statutory rule viz., Tamil Nadu Transport Subordinate Service Ruleswhich came into force from 1981 enables only direct recruitment ofMotor Vehicle Inspectors Grade-II. Rule 5 prescribes the educationalqualification/experience and the age qualification which reads asfollows:"5.Qualifications- (a) Age - (i) No person shall be eligiblefor appointment to category-2 by direct recruitment, unlesshe possesses the qualifications specified below, namely:-(1)Must have completed 21 years of age;(2)Must not have completed 32 years of age:Provided that a person belonging to the ScheduledCaste/Scheduled Tribe shall be eligible for appointment bydirect recruitment by category 2 if he has not completed 37years of age.Provided further that the minimum age limit of 21 yearsprescribed above shall apply also to the candidate belongingto scheduled caste, scheduled tribes and Backward classes.i.The age limit prescribed in this rule shall be reckonedso far as direct recruits are concerned with reference to thefirst day of July of the year in which the selection forappointment is made;ii.Other Qualifications:No person shall be eligible forappointment to the category specified in column (1) by themethod specified in column (2) of the table below unless he https://hcservices.ecourts.gov.in/hcservices/ possess the qualifications specified in the correspondingentries in the column (3) thereof:-TABLE-----------------------------------------------------------------------Sl.CategoryMethodQualificationsNo. (1) (2)(3)-----------------------------------------------------------------------1.MotorPromotion(i) Must be an approved Vehicles probationer in the post Inspectors specified in category 2, andGrade-I (ii)Musthave served for a total period of not less four years in the post specified in category 2out of which not less than oneyear should be in the flyingsquad or in the checking squad.Provided that this rule shall notapply to appointments bypromotion made prior to the1st January, 1988.2.MotorDirecti) Minimum General EducationalVehicles Recruitment Qualification prescribed in theInspectorsSchedule to the General RulesGrade-IIfor the Tamil Nadu State andSubordinate Service.ii) A Diploma in AutomobileEngineering (3 years) or adiploma in Mechanical Engineering (3 years) awardedby the State Board of TechnicalEducation and Training, TamilNadu.iii) Experience of havingworked for a period of not lessthan one year, both on vehiclesfitted with petrol engines andvehicles fitted with dieselengines on a full time basis in anAutomobile Workshop whichundertakes repairs of light https://hcservices.ecourts.gov.in/hcservices/ motor vehicles, heavy goodsvehicles and heavy passengermotor vehicles."iv) Must hold a driving licenceauthorising him to drive motorcycle, heavy goods vehicle andheavy passenger motor vehiclesand must have experience indriving heavy transport vehiclesfor a period of not less than"six months".Provided that, other things beingequal preference shall be givento those who possess PostGraduate Diploma in AutomobileEngineering awarded by theState Board of TechnicalEducation and Training, TamilNadu.Explanation: 'AutomobileWorkshop' for the purpose ofentry (iii) above means,a) An Automobile Workshopowned by the Government orthe State Transport Corporation;orb) and Automobile Workshoprecognized or approved orcertified by the TransportCommissioner or the Director,Motor Vehicles MaintenanceDepartment for carrying out allkinds of repairs."-----------------------------------------------------------------------15.Following the above said statutory rules and on the basis ofintimation given by the Government, the TNPSC issued advertisementNo.107 for filling up 49 posts of Motor Vehicle Inspectors Grade-II inFebruary, 2007, fixing the last date as 23.5.2007 and the scale of paywas notified as Rs.5500-175-9000. In the said notification the agequalification is also stated as between 21 to 32 years as on 1.7.2007.Age relaxation is given to BC, MBC, SC & ST candidates is given interms of Rule 12(d) of the Tamil Nadu State and Subordinate Service https://hcservices.ecourts.gov.in/hcservices/ Rules, 1955. One experience certificate is also required to beproduced apart from driving licence. Preference is also given tothose who possess Diploma in Automobile Engineering, awarded by theState Board of Technical Education and Training, Tamil Nadu. Thewritten test was proposed to be conducted on 29.7.2007 and the same wasalso conducted and results are awaited.16.Thus, it is evident that the respondents 2 and 3 are alsofollowing the qualifications prescribed under the statutory recruitmentrule as well as the Motor Vehicles Act, 1988. For the post of MotorVehicle Inspectors Grade-II B.E. degree is not the prescribedqualification however the same is prescribed as the only qualificationin the impugned order for selection to the Motor Vehicle InspectorsGrade-II on contract basis. Thus, the Diploma holders, who are havingone year experience with driving licence and who are eligible to beappointed as Motor Vehicle Inspectors, Grade-II as per the recruitmentrules are prevented from applying for the very same post now sought tobe filled up on contract basis. The legitimate expectation of suchcandidates are very much affected due to the enhancement of thequalification fixed in the impugned order that too without amending therules. At this juncture, it is to be noted that for regular andpermanent appointment of Motor Vehicle Inspectors Grade-II, DiplomaHolders are found eligible. However, for the appointment to the verysame post on contract basis, they are found ineligible. The saidprescription of qualification by the respondents 2 and 3 isunreasonable and also to be treated as inconsistent and it will createan anomalous situation as the Diploma holders will be in a position toreplace the Degree holders on their selection through TNPSC.17.Insofar as the contention that Rule 11 of the Tamil Nadu Stateand Subordinate Service Rules, 1955, empowers the Government to appointpersons on contract basis, as rightly contended by the learned counselsfor the petitioners, the contract appointments can be made even for aspecific period only from among the qualified persons. The respondentscannot contend that merely because they have got power to appointpersons on contract basis, dehors the rules they are entitled to fixhigher qualification, thereby denying the right of the qualifiedcandidates to compete. For proper appreciation, Rule 11 of the TamilNadu State and Subordinate Service Rules, 1955, is extracted hereunder:"11.Appointment by agreements. (1) When in theopinion of State Government Special provisionsinconsistent with any of these rules or of any otherrules made under the proviso to article 309 of theConstitution of India or continuing by Article 313of that Constitution (hereinafter referred to inthis rule as the said rules) are required in respectof conditions of service, pay and allowances,pension, discipline and conduct with reference toany particular post, or any of them, it shall be https://hcservices.ecourts.gov.in/hcservices/ open to the State Government to make an appointmentto such post otherwise than in accordance with theserules or the said rules and to provide by agreementwith the person so appointed for any of the mattersin respect of which in the opinion of the StateGovernment special provisions are required to bemade and to the extent to which such provisions aremade in the agreement, nothing in these rules or thesaid rules shall apply to any person so appointed inrespect of any matter for which provision is made inthe agreement:Provided that in every agreement, made inexercise of the powers conferred by this rule itshall further be provided that in respect of anymatter in respect of which no provision has beenmade in the agreement the provisions of these rulesor of the said rules shall apply.(2)A person appointed under sub-rule (1)shall not be regarded as a member of the service inwhich the post to which he is appointed is includedand shall not be entitled by reason only of suchappointment to any preferential claim to any otherappointment in that or any other service."Rule 10(a)(i)(1) of the very same Rules enables the respondents to maketemporary appointments due to public interest owing to an emergency, ifthere is undue delay in making appointments in accordance with therules. Person, who possess the qualification prescribed for the postalone can be appointed. The said Rule 10(a)(i)(1) reads thus,"10.Temporary appointments:-a(i)(1) where itis necessary in the public interest owing to anemergency which has arisen to fill immediately avacancy in a post borne on the cadre of a service,class or category and there would be undue delay inmaking such appointment in accordance with theserules and the Special Rules, the appointingauthority may temporarily appoint a person, whopossesses the qualifications prescribed for the postotherwise than in accordance with the said rules.Provided that no appointment by directrecruitment under this clause shall be made of anyperson other than the one sponsored by the TamilNadu Public Service Commission from its regular orreserve list of successful candidates to any of the https://hcservices.ecourts.gov.in/hcservices/ posts within the purview of the Tamil Nadu PublicService Commission.Provided further that the reserve list ofsuccessful candidates shall be in force until theregular list of successful candidates is drawn upsubsequently; and that candidates shall be allottedfrom such reserve list for the vacancies in theplace of those who have not joined duty.Provided also that appointment by directrecruitment under this clause (1) in respect ofposts within the purview of Tamil Nadu PublicService Commission shall be made, only where newposts with new qualifications are createdtemporarily and where the Tamil Nadu Public ServiceCommission does not have a regular or reserve listof successful candidates for sponsoring." (Emphasis supplied)Thus, it is clear that qualified persons according to the recruitmentrules can be appointed even temporarily to meet the emergent situationwarranting immediate appointment and they shall be replaced byregularly selected candidates.18.By a harmonious reading of Rules 10(a)(i)(1) and 11, extractedabove, it could be safely concluded that even under Rule 11, only aqualified person who can be appointed in the permanent post, can beappointed on contract basis and unqualified persons, who cannot competefor the regular selection, cannot be permitted to apply for the post,merely because their appointment is on the basis of theagreement/contract. If the interpretation given by the respondents 2and 3 are accepted, the recruitment rules can be ignored andunqualified persons can be appointed on contract basis in thesanctioned vacancies, which will be in contravention of the statutoryrules framed under Article 309 of the Constitution of India. It isthe consistent case of the respondents that as and when regularcandidates are appointed through TNPSC, the persons to be appointed oncontract basis shall vacate their seats. Therefore the said stand ofthe respondents is also unreasonable and liable to be rejected.19.(a) The Honourable Supreme Court considered the validity ofappointment made dehors to the rules in the decision reported in (2006)4 SCC 1 (Secretary, State of Karnataka v. Umadevi). In paragraphs 11and 12 the Supreme Court held thus:"11. ............... the equality clauserepresented by Article 14 of the Constitution, https://hcservices.ecourts.gov.in/hcservices/ Article 16 has specifically provided for equality ofopportunity in matters of public employment.Buttressing these fundamental rights, Article 309provides that subject to the provisions of theConstitution, Acts of the legislature may regulatethe recruitment and conditions of service of personsappointed to public services and posts in connectionwith the affairs of the Union or of a State. In viewof the interpretation placed on Article 12 of theConstitution by this Court, obviously, theseprinciples also govern the instrumentalities thatcome within the purview of Article 12 of theConstitution. With a view to make the procedure forselection fair, the Constitution by Article 315 hasalso created a Public Service Commission for theUnion and the Public Service Commissions for theStates. Article 320 deals with the functions of thePublic Service Commissions and mandates consultationwith the Commission on all matters relating tomethods of recruitment to civil services and forcivil posts and other related matters. As a part ofthe affirmative action recognised by Article 16 ofthe Constitution, Article 335 provides for specialconsideration in the matter of claims of the membersof the Scheduled Castes and Scheduled Tribes foremployment. The States have made Acts, rules orregulations for implementing the aboveconstitutional guarantees and any recruitment to theservice in the State or in the Union is governed bysuch Acts, rules and regulations. The Constitutiondoes not envisage any employment outside thisconstitutional scheme and without following therequirements set down therein.12. In spite of this scheme, there may beoccasions when the sovereign State or itsinstrumentalities will have to employ persons, inposts which are temporary, on daily wages, asadditional hands or taking them in without followingthe required procedure, to discharge the duties inrespect of the posts that are sanctioned and thatare required to be filled in terms of the relevantprocedure established by the Constitution or forwork in temporary posts or projects that are notneeded permanently. This right of the Union or ofthe State Government cannot but be recognised andthere is nothing in the Constitution which prohibitssuch engaging of persons temporarily or on dailywages, to meet the needs of the situation. But the https://hcservices.ecourts.gov.in/hcservices/ fact that such engagements are resorted to, cannotbe used to defeat the very scheme of publicemployment. Nor can a court say that the Union orthe State Governments do not have the right toengage persons in various capacities for a durationor until the work in a particular project iscompleted. Once this right of the Government isrecognised and the mandate of the constitutionalrequirement for public employment is respected,there cannot be much difficulty in coming to theconclusion that it is ordinarily not proper for theCourts whether acting under Article 226 of theConstitution or under Article 32 of theConstitution, to direct absorption in permanentemployment of those who have been engaged withoutfollowing a due process of selection as envisaged bythe constitutional scheme."(Emphasis Supplied)(b)A Division Bench of this Court in the decision reported in(2005) 3 MLJ 538 (M.Saravanakumar v. The Secretary, to Government,Education Department, Chennai) considered the question of appointingGuest Lecturers in various Government Colleges in the State of TamilNadu, who were appointed dehors the recruitment rules for yearstogether. In paragraphs 31 to 33 the Division Bench held as follows:"31.However, before parting with these caseswe wish to observe that it was not proper for theState Government to keep making appointments ofguest lecturers year after year since the year 2000.This is demeaning to the lecturers who are treatedalmost like casual or daily wage employees, and aregiven remuneration on an hourly basis and that toowithout even giving them any formal appointmentorder. What interest in their work will suchteachers take, and what commitment will they have ?There is no security of tenure for such teachers.Also, they are paid a paltry sum upto a maximum ofRs.4,000 per month. Is this the way to treat thegurus of our youth ? Even a peon in governmentservice often gets more than Rs.4,000 per month.Should our teachers be treated worse than peons?32.It is also not in the interest of thestudents or the public to appoint guest lecturers ona large scale, because teachers who are given suchappointments are not likely to take much interest intheir work. They will not be able to work with a https://hcservices.ecourts.gov.in/hcservices/ free mind and will feel all the time that there is aDamocle Sword hanging over their heads. Surely thestudents in Tamil Nadu deserve good teachers. Goodeducation is of paramount importance for theprogress of society in the modern age.33.We fail to understand why for the past 5years no regular recruitment has been made throughthe teachers recruitment board, and instead thispolicy of appointing guest lecturers has beencontinued year after year. The teachers are thegurus of society, and they must be given properrespect, proper status, and a secure job, so thatthey can function with a free mind and take interestin their work. This policy of making appointmentsof guest lecturers is not conducive to this end, andmust now be revoked."(c)Whether the Government can issue directions to make contractappointment by issuing Government Order under Article 162 of theConstitution of India was also considered by the Supreme Court in thedecision reported in (2007) 2 SCC 491(Punjab Water Supply and SewerageBoard v. Ranjodh Singh). In the said judgment it is held that a schemeissued under Article 162 cannot prevail over the statutory rules framedunder Article 309 of the Constitution of India. The policy decisionadopted by the State Government under Article 162 would be illegal andwithout jurisdiction if it is contrary to the statutory rule framedunder Article 309 of the Constitution of India.20.In the impugned order, the respondents 2 and 3 have imposed afurther condition that the selected candidates must give a bankguarantee or security worth Rs.5 lakhs. By imposing the saidcondition, the qualified candidates, without means to give bankguarantee or security worth Rs.5 lakhs, are prevented fromparticipating in the selection for public employment and the saidaction of the respondents is arbitrary and violative of Articles 14 and16 of the Constitution of India. By imposing the said condition, therespondents are restricting the choice of participants/applicants, andonly affluent class of candidates can apply and the same isimpermissible as it is violative of Article 14 and 16 of theConstitution of India. Even assuming that the impugned order issustained by permitting the respondents to select B.E. Degree Holdersfor appointment on contract basis, only the B.E. Degree holders havingsufficient means can apply and participate in the selection process.Therefore, such a condition imposed in the impugned order is arbitraryand unsustainable. Similar method adopted to impose ban on appointmentand make massive appointment on the above basis dehors to the rules andthen resorting to regularise such appointments by issuing GovernmentOrders, was considered illegal by the Honourable Supreme Court in the https://hcservices.ecourts.gov.in/hcservices/ decision reported in AIR 1991 SC 284 = 1992 Supp (1) SCC 272 (KeshavChandra Joshi v. Union of India), which was followed by the SupremeCourt in the subsequent decision reported in AIR 1995 SC 586 = 1995(Supp) 1 SCC 572. In paragraphs 21 and 22, the Supreme Court held asfollows:"21. It was reiterated in Keshav Chandra Joshicase and it is common experience that it is avicious circle that initially Governments impose banon recruitment and make massive ad hoc appointmentsdehors the rules giving a go-by to make recruitmentin accordance with the rules and then resort toregularisation of such appointments exercising thepower under Article 320(3) proviso or Article 162 tomake them the members of the service. This practicenot only violates the mandates of Articles 14 and 16but also denies to all eligible candidates, theirlegitimate right to apply for and stand forselection and get selected. In State of Orissa v.Sukanti Mohapatra and J & K Public ServiceCommission v. Dr Narinder Mohan it was held thatappointments made in violation of recruitment rulesviolate Articles 14 and 16. Therefore, as statedearlier, the Administrative Tribunal has rightlyexpressed unhappiness on the exercise of the powerby the State Government by resorting to proviso toclause (3) of Article 320 to make massive departureto make recruitment in accordance with the Rules. Weagree with Shri Guru Raja Rao, the learned counselfor PSC candidates that the PSCs must be made morefunctional and its efficacy be streamlinedappointing people of eminence, experience andcompetence with undoubted integrity to recruit thecandidates in accordance with rules for appointmentto the posts and back-door entry by nepotism be putan end. Free play of exercise of the power underproviso to clause (3) of Article 320 would underminethe efficacy of constitutional institution i.e.PSCs. Be that as it may, we have to consider whetherthe regularisation of the service of the temporaryappointees is in accordance with the special rulesand the rules vis-à-vis condition (iii) of the Orderunder GOMs No. 413, dated 29-8-1983. 22. In R.N. Nanjundappa v. T. Thimmiah,placitum C & D, dealing with the contention thatArticle 309 speaks of rules for appointment andgeneral conditions of service, held thatregularisation of appointment in exercise of https://hcservices.ecourts.gov.in/hcservices/ executive power process notwithstanding any rule,cannot be a form or kind of appointment and if it isin infraction of the rules and if it has effect ofthe violation of the rules or the Constitution,illegality cannot be regularised. If it does notviolate the law, it would be permissible. Otherwisethe rule itself gets criticised on the ground thatit is in violation of Articles 14 and 16(1)."21.Insofar as the contention that to meet the emergent situationthe impugned selection procedure is resorted also has no basis since asalready stated, the TNPSC as early as in February, 2007, called forapplications for selecting 49 Motor Vehicle Inspectors Grade-II forwhich written test was also conducted on 29.7.2007 itself and accordingto the learned counsel for the TNPSC, the first respondent TNPSC willbe in a position to publish the results within a period of one monthand that the delay in completing the selection process is on the partof the third respondent in not furnishing the report regarding thegenuineness of the experience certificates produced by the applicants.The said delay on the part of the third respondent cannot be asufficient reason to select the candidates on contract basis whenregular selection for the very same post is under progress. It is alsoto be noted that for filling up the remaining vacancies so far nointimation is given by the respondents 2 and 3 to the TNPSC fornotifying the vacancies. If really the respondents have takeneffective steps and still there is delay on the part of the firstrespondent to complete the process of selection then only the contractappointment/temporary appointment to meet the emergent situation can beresorted to. The TNPSC, having been created under Article 320 of theConstitution of India, is also having a constitutional obligation tocomplete the selection without delay. It is unfortunate that evenafter over 11 1/2 months, the TNPSC/first respondent has not chosen topublish the written test results. The selection process is notcompleted in spite of the expiry of about 17 months from the date ofnotification issued for selection of Motor Vehicle Inspectors Grade-II.22.Finally, the learned counsels for the petitioners vehementlyargued that permitting the respondents 2 and 3 to appoint the MotorVehicle Inspectors Grade-II on contract basis, may lead to appointmentthrough back door to public employment. Admittedly Motor VehicleInspectors Grade-II post is a public office/employment. If, pendingfinalisation of selection by the TNPSC without reference to the rules,persons are appointed on contract basis, there is possibility ofseeking regularisation of their services by asking for relaxation ofthe recruitment rules. Hence I am of the view that by permitting therespondents 2 and 3 to fill up the posts of Motor Vehicle InspectorsGrade-II on contract basis, it may amount to encouraging back doorentry in public employment. The said entry through back door method in https://hcservices.ecourts.gov.in/hcservices/ public employment is condemned by the Supreme Court and this Court invery many decisions.23.In Ram Ganesh Tripathi and Others v. State of U.P. and others,reported in AIR 1997 SC 1446 = (1997) 1 SCC 621, the Supreme Courtobserved that bye-passing the process of selection, regularisation ofadhoc employees are not permissible. In Punjab Water Supply andSewerage Board v. Ranjodh Singh, reported in (2007) 2 SCC 491, theSupreme Court held thus,"........ the State may have some control withregard to recruitment of employees to local bodies,but such control must be exercised by State strictlyin terms of provisions of the Act. The statutorybodies are bound to apply the rules and regulationlaid down under the statutory rule. Neither thestatutory body could refuse to fulfil suchconditional data nor could the State issue anydirection contrary to or inconsistent with theconstitutional principles adumbrated under Article14 and 16 of the Constitution. Even a scheme issuedunder Article 162 of the Constitution would notprevail over statutory rules. In the aforesaid caseof Punjab Water Supply & Sewerage Board (supra), theSupreme Court also noticed that the High Court didnot issue a writ of mandamus on arriving at afinding that the respondent had a legal right inrelation to their claim for regularisation, which itwas not obligated to do. The Court proceeded toissue the direction only on the basis of thepurported policy decision and failed to notice thatany departmental letter or executive instructioncannot prevail over the statutory rule andconstitutional provisions. The Supreme Court heldthat any appointment, thus, made without followingthe procedure would be ultra vires."24.In the light of the above findings, I am of the view that theimpugned order proposing to select and appoint Motor Vehicle InspectorsGrade-II on contract basis when regular selection process through TNPSCis in progress, is impermissible and the impugned Government Order andthe circular issued by the Transport Commissioner/third respondentherein, are liable to be set aside and accordingly set aside.25.In view of the order passed above setting aside the impugnedorder in toto, the respondents 2 and 3 are not entitled to proceed withselection process. Since there is urgency in the selection of MotorVehicle Inspectors, Grade-II, the TNPSC is directed to publish thewritten test results held on 29.7.2007, before 29.7.2008 and complete https://hcservices.ecourts.gov.in/hcservices/ the selection process and submit the list of selected candidates to thesecond respondent on or before 30.9.2008.The writ petitions are disposed of with the above directions. Nocosts. Connected miscellaneous petitions are closed. vr Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar ToTo1. The Secretary to the Government of Tamil Nadu,Home (Transport) Department,Chennai - 9.2. The Transport Commissioner,Chepauk, Chennai - 5.3. The Secretary to the Government,Personnel and Administrative Reforms Department,Secretariat, Chennai - 9.4. The Director,Employment and Training Department,Guindy, Chennai - 32.5. The Special Commissioner and Transport Commissioner,Chepauk, Chennai - 9.6. The Secretary,Tamil Nadu Public Service Commission,Chennai - 2.7. The Chairman,Tamil Nadu Public Service Commission,Chennai - 2.8. The Secretary to the Government,Home Department, Chennai - 9. https://hcservices.ecourts.gov.in/hcservices/

9. The Secretary to the Government of Tamil Nadu,Home (Transport - IIA) Chennai - 9.10. The Secretary to the Government of Tamil Nadu,Home (Transport - II), Chennai - 9.11. The Secretary to the Government of Tamil Nadu,Transport Department, Chennai - 9.1 cc To Mr.A.Arul, Sr. Standing Counsel for TNPSC, SR.36908.1 cc To M/s.N.Umapathi, Advocate, SR.10959.1 cc To M/s. S.Washimraja, Advocate, SR.37068. W.P.No.14169 of 2008, etc., Batch DV/SMK/KM/RVL/SRA & GKG/16.7.