K. Raghavendran v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 18.02.2008CoramThe Honourable Mr. Justice P.K. MISRAandThe Honourable Mr. Justice K. CHANDRUW.P. No.3953 of 2002andW.P.M.P. No.5531 of 20021. K. Raghavendran2. K.S. Shanmugasundaram3. N. Ramachandran4. C. Mallika5. M. Bagyalakshmi6. K. Rangasamy7. S. Chandra... Petitioners..vs..1. The State of Tamil Nadu, rep. by its Secretary to Government, Department of HigherEducation, Fort St. George, Chennai – 9.2. The Director of CollegiateEducation, E.V.K. Sampath Maligai, Chennai – 6.3. N. Ramachandran4. A. Kathirvelu5. A.K. Duraisamy6. A.P. Duraisingh7. P. Vilvanathan8. P. Manivasagam9. D. Rajasekaran10. A. Vellaichamy11. P. Thiruvengadam12. J. Baskaran13. P. Kasinathan14. J. Daisy Jenet Xavier... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution ofIndia, praying to issue a writ of certiorarified mandamus, tocall for the records relating to the order of the Tamil NaduAdministrative Tribunal in O.A. No.1776 of 2001 dated21.12.2001 and quash the same and consequently direct therespondents 1 and 2 to make necessary amendments to thespecial rules for the Tamil Nadu Collegiate EducationalService so as to include the post of Bursars in the specialrules with retrospective effect from 31.1.83 from the date ofissuance of G.O.Ms.No.202 Education, Science and TechnologyDepartment without providing reservation and to makeappointments strictly according to seniority and set aside theorder of promotion to the respondents 3 to 14 to the post ofBursars since made after 16.11.1997 applying the rule ofreservation.For Petitioner : M/s. La LawFor Respondents: Mr. S. Rajasekar,Addl. Govt. Pleaderfor R1 and R2 Mr. D. Rajagopal for R3Mr. S.M. Subramanianfor R5 to R8, R11, R13 & R14O R D E R(Order of the Court was made by K. CHANDRU, J.)This writ petition is filed by the petitioners, whoare working as Superintendents under the Directorate ofCollegiate Education, against the order dt.21.12.2001 passedby the Tamil Nadu Administrative Tribunal in O.A. No.1776 of2001.2. Before the Tribunal, these petitioners sought fora direction to the Officials respondents to make necessaryamendments in the Special Rules for the Tamil Nadu CollegiateEducation Services, so as to include the post of Bursar inthe Special Rules with retrospective effect from 31.3.1983i.e. the date on which the State Government issuedG.O.Ms.No.202, Education, Science and Technology departmentdated 31.3.1983 and without providing rule of reservation tothe said post.3. In the said G.O., the Government had notifiedvarious feeder categories, who were eligible to getappointment to the post of Bursar, which included posts coming https://hcservices.ecourts.gov.in/hcservices/ from Treasuries and Accounts department, Secretariatdepartment, Local Fund Accounts department, CollegiateEducation department, School Education department. TheGovernment also specified the number of posts, which areavailable to the various departments. 4. However, the employees like the petitioners, whoare aggrieved about the feeder posts being held by employeesof other departments, demanded that the entire vacancies forthe post of Bursars to be exclusively filled up bySuperintendents, working under the Directorate of CollegiateEducation. In G.O.Ms.No.202 Education, Science and Technology(GI) department dated 31.3.1983, the Government appointed 14persons (including respondents 3 to 14) on a temporary basisunder Rule 10(a)(i) of the General Rules as Bursars. 5. The Tribunal, by its order dated 21.12.2001, heldthat G.O.Ms.No.202 cannot override the specific provisionscontained in the ad hoc Rules and also held that the Rules donot prescribe the post to be filled up by direct recruitmentand the only method of recruitment is by transfer. TheTribunal also held that since the appointment is only throughrecruitment by transfer and as it is not a case of promotion,no direction can be given to the State Government to make anystatutory amendment to the existing Rules. 6. We are of the view that insofar as the findingsof the Tribunal that no direction can be given to the StateGovernment to amend the Special Rules/ad hoc Rules in aparticular manner is concerned, we hold that the said findingis in consonance with the parameters of judicial review. TheSupreme Court, vide its decision in MALLIKARJUNA RAO v. STATEOF ANDHRA PRADESH reported in 1990(2) SCC 707, has held thatthe Courts cannot usurp the functions assigned to theexecutives under the Constitution and cannot indirectlyrequire the executive to exercise its rule making power in anymanner. 7. The other finding that since the posts of Bursarcan be filled up by appointment by transfer as per the Rulesand that as it is a case of direct recruitment, rules ofreservation can be followed in terms of Rule 22A of the T.N.State & Subordinate Service cannot be accepted. 8. Admittedly, the post of Bursar carries a scale ofpay of Rs.8000-275-13500 whereas the post of Superintendentcarry the scale of pay of only Rs.5700-175-9200. The natureof duties, responsibilities and allocation of work to Bursarshave been specified by the Government vide G.O.Ms.No.1625Education Department dated 16.9.1974. A copy of the saidG.O. has been circulated by the learned Additional GovernmentPleader. A perusal of the same, we find that the post of https://hcservices.ecourts.gov.in/hcservices/ Bursar certainly carries not only an higher pay, but alsohigher responsibilities than that of Superintendent and anyappointment by transfer posting to that post cannot belabelled as a direct recruitment so as to bring in the rule ofreservation applicable to direct recruitment. 9. In such circumstances, a Division Bench of thisCourt vide decision reported in the case of REGISTRATIONDEPARTMENT, S.C./S.T. AND M.B.C. EMPLOYEES' GENERAL WELFARESANGAM v. S. CHANDRASEKAR (2005(2) CTC 36) has held that bylabeling a particular method of recruitment as a transfer fromother service, the Government cannot camouflage it as directrecruitment so as to bring in the rule of reservation. Ifsuch posts are held to be promotional posts, then in theabsence of a valid rule, no reservations can be made to suchposts. Speaking for the Division Bench, P. SATHASIVAM, J.(as he then was) held in paragraph 17 as follows:-"In the light of the above principles,we have to see that the persons all alongmembers of Ministerial Service have to beappointed as State Subordinate Service andthey were appointed by transfer of service.We have already demonstrated that the postof Sub-Registrar Grade II/ACTO/DeputyTahsildar are higher service with higherscale of pay as well as with higher rank.We have also demonstrated the scale of payof Assistant in the Registration Departmentas well as his scale of pay afterappointment by transfer of service as Sub-Registrar Grade II. As rightly observed bythe Tribunal, even though it is called asappointment by transfer of service, itactually amounts to promotion in rank,status and also higher emoluments. Weconcur with the conclusion of the Tribunalthat in the light of the factual details andmaterials, the transfer of service whatevername it is called, it actually amounts topromotion."10. If the said test is applied, certainly the postof Bursar, which carries higher responsibility and higher payscale, can only be considered as a promotional post. Merelybecause the method of recruitment is by transfer from otherservice, it cannot be labeled as direct recruitment.Consequently, no Rules of reservation can be introduced. Inthe light of the same and in so far as Tribunal's findingthat rules of reservation can be provided as found inparagraph 9 of the Tribunal's order it is clearly notsupported by any constitutional provisions. https://hcservices.ecourts.gov.in/hcservices/

11. Learned Special Government Pleader's contentionthat even if it is a case of promotion, the State can providereservation as it is within the power of the State Governmentas found by the Tribunal is also not acceptable. In fact, theabove quoted decision of the Division Bench, in the case ofregistration department (cited supra), an S.L.P. by the Statewas also dismissed by the Supreme Court. The Division Benchhad categorically held that even though it is open to theState to provide for reservation in promotion to variouscategories in terms of the enabling provision provided underArticle 16(4-A) in so far as no such rules of reservation havebeen framed by the State, no support can be drawn from thatarticle.12. In the present case, such is not the stand ofthe State Government that after the introduction of Article 16(4-A) into the Constitution, rules were provided forreservation in promotion in the State service. The presentcase admittedly arose before the amendment to the Constitution(i.e. from 17.6.1995) and in the absence of clear cutGovernment order, the findings rendered by the Tribunal cannotbe accepted and to the extent that the petitioners areentitled to succeed in this writ petition. 13. Therefore, the State Government cannot providefor reservation in the matter of filling up the post of Bursarfrom various feeder category by way of transfer. However,since such practice had been followed over the years, thisCourt is not inclined to reopen the promotions already made onthe basis of the existing practice. Further pursuant to theorder dt.31.3.83 the respondents 3 to 14 have been appointed.Their orders were challenged only in the year 2001 and thoserespondents have continued in service and most of them wouldhave also retired by now. However, the respondent-State isdirected not to follow the rule of reservation in the matterof filling up the post of Bursar until it provides for rule ofreservation in promotion by having recourse to the enablingprovision found under Article 16(4A) of the Constitution. 14. The other prayer of the petitioners before theTribunal seeking for amendment to the special Rule, suchprayer is clearly impermissible as this Court, in exercise ofpower, under Article 226 of the Constitution of India, cannotgrant any such direction as an amendment to rule framed underArticle 309 is held to be legislative in character and it hasbeen correctly disallowed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/

15. Therefore, in the light of the above, the writpetition is allowed to the extent indicated above.Consequently, the connected M.P. is closed. No costs.Ssa.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government of Tamil nadu, Department of HigherEducation, Fort St. George, Chennai – 9.2. The Director of CollegiateEducation, E.V.K. Sampath Maligai, Chennai – 6.•1 cc to M/s. La Law Advocate SR No. 8765•1 cc to MR. S. M. Subramaniam, Advocate SR No. 8849•1 cc to the Government Pleader, SR No.8633W.P No.3953 of 2002 andconnected W.P.M.P.IV(CO)SR/3.3.2008