High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:22.10.2007CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMW.P.NO.28891 OF 2007AND M.P.NO.3 OF 20071.D.Rathinavel Pandian2.M.Annakodi3.S.Arunpandian4.S.Manokaran5.S.Sivaji6.S.Amaranathan7.S.Muthuraman8.V.Vetriselvan9.M.Ramanikanthan10.R.Pon Swamynathan11.S.Ajith 12.A.Raja13.S.Jawahar14.A.Pulivaganan15.S.Kasiviswanathan16.A.Venmani17.S.Jeganathan18.M.Ganesan19.A.Ramesh20.U.Jayachandran21.R.Murugan22.Pazhanikumar23.N.Chandrasekaran24.M.Thirugnanasambandar ...PetitionersVs.1.State of Tamil Nadu rep. by Secretary to Government Thamizh Development and Culture and Hindu Religious and Charitable Endowments Fort St.George, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam, Chennai 600 034.3. Thamizh Naadu Public Service Commissioner rep. by its Secretary, Oomanthoorar Government Estate, Anna Saalai, Chennai 600 002....RespondentsPetition filed under Article 226 of the Constitution ofIndia to issue a writ of Certiorarified Mandamus calling for therecords of the respondents touching the Notification/AdvertisementNo.122, of the third respondent, published in Dinamani on 01.08.2007and quash the same and direct them to re-notify by permitting theserving Executive Officers having B.L.Degree and five years experienceas Executive Officers and without any age stipulation as statedwithin.For Petitioners: Mr.A.E.Chelliah Senior Counsel for Mr.K.RamanajamFor Respondents 1 & 2: Mr.T.ChandrasekaranSpecial Government Pleader (HR & CE)For Respondent No.4: Mr.A.Arul(TNPSC)----O R D E R Invoking the writ jurisdiction of this Court, thepetitioners who are serving as Executive officers at different templesattached to the Hindu Religious and Charitable Endowments Department(hereinafter referred to as HR & CE) State of Chennai, have broughtforth this writ petition seeking to issue a writ of CertiorifiedMandamus to quash the Notification/Advertisement No.122 of the thirdrespondent , Public Service Commission, Tamil Nadu, made On 1.8.2007,and also to issue a direction to the respondent to re-notify bypermitting the petitioners who are serving as Executive officers andhaving B.L. Degree and five years experience as Executive Officers andwithout any age stipulation. 2. Affidavit filed in support of the writ petition alongwith the grounds and the counter affidavits filed by the respondentsare looked into.3. The Court heard the learned counsel on either side. https://hcservices.ecourts.gov.in/hcservices/

4. The following facts would emerge as facts admitted. Thepetitioners are Law graduates working as Executive Officers in theTemples under the HR & CE Department. For the appointment of AssistantCommissioner by direct recruitment, persons who are actuallypracticing in the Bar for a period of not less than three years in theCourt of Civil or Criminal side, are allowed. The petitioners havejoined as Executive officers Grade-II and have been serving so in thepast. For the appointment of Assistant Commissioners, the Departmenthas been following the procedure viz., 30% by way of promotion fromthe Executive officers, 30% of the Ministerial staff and 40% throughdirect recruitment. While doing so, the law graduates who are actuallypracticing in the bar in civil or criminal side, are allowed toparticipate in the said examination for the direct Recruitment ofAssistant Commissioners. Pursuant to the request made, for theappointment of Assistant Commissioners for direct recruitment, anotification was made by the third respondent, the Tamil Nadu PublicService Commission, on 1.8.2007. The petitioners have challenged thesaid notification in the above writ petition.5. Advancing his arguments on behalf of the petitioners,learned Senior Counsel would submit that the notification issued bythe third respondent for the purpose of direct appointment asAssistant Commissioner to the HR & CE Department, is as bad as itcould be. The petitioners are serving as Executive Officers indifferent temples for more than a decade and they have thus acquiredsufficient experience not only in the administration of the temple andReligious Institutions attached to the Department, but also they haveconducted number of cases on behalf of the Department in differentCourts. Out of the persons who are appointed as AssistantCommissioners, 30% is originally allotted to Executive Officers whoare serving in the Department and the remainder 30% is allotted to theMinisterial staff and rest the 40% has to be made by directrecruitment. While doing so, the Department has called forapplications from the persons who have not only passed the law decree,but also been practicing as lawyers for a period of not less thanthree years in a Court of Civil or Criminal side. This has greatlyaffected the petitioners who have been serving in the Department andthis should be relaxed permitting the petitioners to participate inthe process towards the direct recruitment. Learned Senior Counselwould further submit that the petitioners have rendered their valuableservice to the Department not only in the administration of thetemple, but also in advancing the cases of the temple and defendingthe litigations filed against the temple in the past. There is noreason or rationale behind as could be seen that for the directrecruitment for the post of Assistant Commissioners, only the lawyerswho have practiced not less than for three years, could be allowed.When the notification is looked into, the age limit is fixed as 21years, which would be indicative of the fact that while fixing theage, there was no application of mind since completing the decree in https://hcservices.ecourts.gov.in/hcservices/ law is possible at the age of 21 or 22 and as regards the experiencein the Court of Civil or Criminal law for not less than three years,one would attain it at the age of 24 or 25 and calling applicationsfrom the persons who are practicing as lawyers for a period of notless than three years at the age of 21, is nothing but non-applicationof mind and when the syllabus for the examination of Grade-I Executiveofficer is looked into, the same is exactly the one that are given toapplicants who are coming under direct recruitment, and in so far asexperience is concerned, the petitioners who have been serving asExecutive Officers for more than a decade could have certainlyacquired more and better experience than the law graduates though theyhave got a practice in the Court of civil law or criminal side. It isfurther to be added that the syllabus does not contain the criminalsubject; but, the applications were called for from the lawyers havingthree years' practice in civil or criminal side . Learned Seniorcounsel would further add that there are certain provisions in otherdepartments for the people serving in the same Department to competein Direct recruitment. But, in the instant case, the respondents havenot afforded opportunity to the personnel like the petitioners toserve which is clearly indicative of the fact that it is unjust,unfair and arbitrary. Even in Madras State Judicial Service, theJudicial Officers are permitted to participate and compete in theexamination conducted for the higher Court while they are serving inthe Judicial Division. Learned Senior counsel would further add thatthe issue involved and the relief sought for by the petitioners arethe same and identical and further a reading of the counter filed bythe HR & CE Department, would clearly be indicative of the fact thateven 40% which was made available for direct recruitment of theAssistant Commissioner at one point of time, was part of the same viz.20% that was allotted to the Executive Officers like the petitioners.But the rule which was subsequently withdrawn would be indicative ofthe fact that the department itself was of the considered opinion thatExecutive officers can also be allowed to participate in theexamination for direct recruitment. Why and under what circumstancesit was dropped remained unknown and hence the notification issued bythe third respondent, the Public Service Commission, pursuant to therequest of the department, is bad and unjust and is violative of theprovisions of Constitution and hence it has got to be quashed. Apartfrom that, a direction has got to be issued to the respondents to re-notify whereby the petitioners who are Executive officers having B.L.degree and five years experience,should be allowed to participate inthe examination of the direct recruitment of the AssistantCommissioner of the Department.6. Contrary to the above, learned counsel for therespondents 1 and 2 would submit that requisite qualification for theappointment of a candidate to the post of Assistant Commissioner bydirect recruitment is that he must possess law decree besides adecree and also should be a practicing advocate in a Court of civil https://hcservices.ecourts.gov.in/hcservices/ or criminal law for a period of not less than three years. For thepurpose of appointment of Assistant Commissioners by directrecruitment, the impugned notification was issued. The contention putforth by the petitioners' side that the notification has taken away achance of their becoming Assistant Commissioner is unsound for thesimple reason that direct recruitment would in no way take away theentitlement of their right to become Assistant Commissioner by thecourse of their promotion. Under the said rule, Executive officerGrade I working in the Department, could be appointed by transfer tothe post of Assistant Commissioner. For the post of AssistantCommissioner, 30% is allotted to the executive officers serving in thedepartment by way of promotion, and 30% is allotted to the Ministerialstaff and the remaining viz. 40% is by way of direct recruitment. Itis true that representations were given by the Executive officers forrelaxing the rules and they are kept pending for consideration. It istrue that for the purpose of direct recruitment of the AssistantCommissioners, the candidate should not only be a law graduate, butalso have a practice in civil or criminal law for a period of not lessthan three years. It was stipulated with a view that the candidateshaving sufficient experience in the filed of law and procedure ,should be appointed. The petitioner though they have been working asExecutive officers, cannot claim that they have gained knowledge orexperience as practicing lawyer in Courts.7. The contention put forth by the petitioners' side thatthe persons who are in the lower grade, are allowed to compete forexamination at the time of direct recruitment along with others cannotbe made applicable to all the Departments. While doing so, the natureof work, staff pattern and feeder category have got to be taken intoaccount. Since it would differ from department to department, allcannot be treated alike. As far as the petitioners are concerned, onpromotion they can get the post of Assistant Commissioner, in duecourse according to their seniority and that too, since 40% isallotted to them, they cannot find fault with the notification made tothe effect that a practicing lawyer in a civil or criminal court withthree years experience for the post of Assistant Commissioner alonecould participate and compete in the examination and it cannot bestated that the notification is bad in any way. Learned counsel forthe respondent would further add that since the notification has beenissued by the third respondent, pursuant to the rules which was inpractice from 1968 onwards, without challenging the rules, the writpetition is not maintainable. Even G.O.Ms.No.1498, Revenue Departmentdated 27.7.1968 reads that for the direct recruitment, not only thebasic graduation is a must, but also the candidate must be actuallypracticing as an advocate or pleader in the civil or criminal side fora period not less than three years and so long as the rules is inforce for more than three decades, even without challenging the rules,now the petitioners challenged the notification by way of writpetition which cannot be maintained. https://hcservices.ecourts.gov.in/hcservices/

8. Learned counsel for the third respondent would submitthat the impugned notification has been issued for the purpose ofdirect recruitment of Assistant Commissioners to HR & CE departmentand this notification is based on the rules which has been in forceand practiced from 1968 and so long as the rules are continued to bein force, the petitioners cannot challenge the notification which isbased on the said Rule and hence, the writ petition has got to bedismissed. 9. The Court paid its anxious consideration on thesubmissions made.10. As could be seen above, the grievance of the petitionerswho are serving in the HR & CE Department, Tamil Nadu as ExecutiveOfficer in different places is that despite their experience, theywere not allowed to participate in the examination conducted for thepurpose of direct recruitment of the Assistant Commissioner to theDepartment. According to the petitioners, they have acquired richexperience not only in the temple administration, but also byconducting cases before the Courts. Learned Senior Counsel for thepetitioners also brought to the notice of the Court that in differentdepartments, the officials working in the lower category, while inservice are permitted to compete for higher post. According to thelearned Senior Counsel, there is no rationale or reason to deter or toprevent or to disallow the Executive Officers having rich experiencein the field, to participate in the examination for the AssistantCommissioner post. The reply given by the department, is that so faras the appointment of the Assistant Commissioners are concerned, 30%is already allotted to the Executive Officers who are in service; but,they can get by way of promotion, 30% to the Ministerial staff andthus, the remainder 40% is open for direct recruitment and thus thepetitioners though served as executive officers, cannot have grievancethat they are likely to lose their promotion. It is also contended bythe learned counsel for the respondent-department that for directrecruitment for the post of Assistant Commissioner, one should notonly have a basic graduation, but also be a law graduate and alsoactually practicing as an advocate or pleader in the Court of Civilor Criminal law for a period of not less than 3 years.11. After careful consideration of the submissions made,this Court is of the considered opinion that notification nowchallenged has got to be quashed for more reasons than one. A readingof the notification does not indicate under which rule it is issued.The Department wants to rely on G.O.Ms.No.1498 Revenue dated 27.7.1968wherein it is stipulated that for the direct recruitment, thequalifications were prescribed as stated above. But it is highlydoubtful whether the rule relied on by the department, was followed inthe past. Though it is claimed by the department that 40% of the https://hcservices.ecourts.gov.in/hcservices/ vacancies were earmarked for direct recruitment, pursuant to the aboveG.O., that too from the year 1968, a reading of the counter wouldreveal that 20% out of 40% in the direct recruitment was allotted tothe law graduates for both ministerial staff and the subordinate staffviz. Executive Officers in the department for a period of a decadefrom 1994 which could have been only with an intention to providepromotional opportunities in the past. A query was made by the Courtas to when this allotment of 20% out of 40% was given to ministerialstaff and the Executive Officers in the department. Learned counselfor the Department would submit that it was pursuant to the G.O. ofthe year 1994, and the same was subsequently withdrawn in the year2003. From the submission made by the learned counsel, it would bequite clear that though originally 40% was earmarked for directrecruitment from 1968, from 1994 to 2003 for a period of nine years,that was not followed. 20% was allotted to the ministerial staff andExecutive Officers for the interregnum period and thus it would bequite clear that during the said period of nine years, only 20% wasmade by way of direct recruitment and the rule which is now relied onby the department of the year 1968 and referred to above was given ago-bye. It is further pertinent to point out that under whatcircumstances such a procedure was taken away i.e. 20% from 40% andwhether it was again modified or amended or cancelled remainedunknown. This Court is at a loss to understand how such a change wasmade. Now at this juncture, this Court is able to see sufficientforce in the contention put forth by the learned Senior counsel forthe petitioners. The department itself thought it fit to allot 20% outof 40% of the Executive Officers and Ministerial staff for appointingthem as Assistant Commissioners. 12. Nextly, as far as the question of experience isconcerned, this Court is at a loss to understand that the executiveofficers who have been in service for more than a decade will nothave experience in the field. Now, the contention put forth by theDepartment that a person to be appointed by way of direct recruitmentshould not only possess a law decree, but also must be actuallypracticing as an Advocate or as a Pleader in a Court of Civil orCriminal side for a period of not less than three years. In theinstant case, all the Executive Officers who seek to compete in theexamination, are not only law graduates, but also having experiencein the field of administration of the temple and they haveparticipated in so many proceedings for and against the temple duringthe said period. Merely because a person is practicing as an advocatefor a period of three years either in civil or criminal law, it cannotbe stated that his experience would become more than what the Officersin the administration of the temple are having. Now it is not the caseof the petitioners that they should be given higher percentage in thepromotion as Assistant Commissioners; but, what are all requested bythem is to allow them to participate in the examination for theappointment of Assistant Commissioner. On examination, if they are https://hcservices.ecourts.gov.in/hcservices/ found to be fit, they can be selected and appointed and if they arenot fit, they can be rejected. Further as rightly pointed out by thelearned Senior Counsel for the petitioners, in the JudicialDepartment, an individual who is serving in the Department in thejunior division, can be allowed to compete for the higher post andsince he is fit to compete, there cannot be any impediment for hisappointment. If the petitioners who are executive officers serving formore than a decade, at the time of examination, are found fit tocompete, there cannot be any impediment for appointing them asAssistant Commissioners.13. As regards the Notification now challenged, all typesof criticisms can be leveled against the same. At the outset, it hasgot to be pointed out that if a person is to participate in theexamination for the post of Assistant Commissioner, the minimum ageprescribed, is 21 years. A person who gets a degree in law, he wouldbe not less than 22. If to be so, one could acquire the saidqualification only at the age of 24 or 25 years. Hence, fixing minimumage as 21 years is not consistent to reality or having any basis.Further, the notification says that the person must be a lawyerpracticing in civil or criminal law for a period of three years; butthe syllabus does not contain any subject in criminal law. As statedabove, the notification does not speak about any rule, pursuant towhich ,the notification is issued. In the instant case, for thereasons stated above, this Court is of the considered opinion that thenotification can be declared as bad. 14. Further in the instant case, though the petitionershave not directly challenged the rules of the year 1968, but at thesame time, it is pertinent to point out that the notification itselfis highly unjust, since the department has not followed the abovereferred G.O. for a period of 9 years; but, again how it was broughtinto force remained unknown. Under such circumstances, it would be fitand proper to issue a direction to the first respondent State to takeinto consideration all the observations made above, and to amend therules in such a way that the Executive officers having experience ofnot less than six years, can also participate in the examination forthe post of Assistant Commissioners by direct recruitment. Hence, thenotification now challenged, has got to be necessarily quashed, andaccordingly, it is quashed and a direction is issued. Consequently,theHR & CE department is also directed to act as per the new guidelinesto be framed by the Government in this regard. https://hcservices.ecourts.gov.in/hcservices/

15.With the above observation, the writ petition is orderedaccordingly. No costs. Consequently, M.P.No.3 of 2007 is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar VJYTo1.The Secretary to Government Thamizh Development and Culture and Hindu Religious and Charitable Endowments Fort St.George, Chennai 600 009.2. The Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam, Chennai 600 034.3. The Secretary, Thamizh Naadu Public Service Commissioner Oomanthoorar Government Estate, Anna Saalai, Chennai 600 002.+1cc to Mr.K.Ramanujam, Advocate Sr 63612+1cc to Spl. Govt. Pleader Sr 63672+1cc to Mr.A.Arul, Advocate Sr 63716ASM (CO)km/30.10.W.P.NO.28891 OF 2007ANDM.P.NO.3 OF 2007