BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12/10/2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.255 of 2010
W.P.(MD)No.189 of 2010
W.P.(MD)No.1394 of 2010
W.P.(MD)No.12918 of 2009
W.P.(MD)No.12919 of 2009
W.P.(MD)No.13405 of 2009
and
W.P.(MD)No.13757 of 2009
and
M.P.(MD)Nos.4/2010, 2/2010, 1,2,3/2010, 1/2010, 2/2009, 1/2010, 2/2009, 2/2010,
3/2009, and 3/2009
W.P.(MD)No.255/2010:
1.A.Thangaraju
2.C.Shanmugam
3.P.Paramasivam ... Petitioners
vs.
1.The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
2.The Principal Secretary & Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai-600 005.
3.The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
4.M.Baladhandayudham
[R-4 impleaded as per order of this Court
23.03.2010 made in M.P.(MD)No.5/2010]
5.P.Ravindran
6.N.Neelavathi
7.P.Ashok Kumar
8.D.Chandrasekaran
9.S.Christi
10.P.S.Pangajavalli
11.P.Pushpam
12.P.Veeramani
13.T.Gopal
14.M.Mohanasundaram
15.N.Subramaniyan
16.N.Janaki
17.S.Soundaramani
18.A.Chinnadurai
19.M.P.Mathivanan
20.M.Manoharan
21.H.Kalyani
22.T.Muthulakshmi
23.R.Shanmugaraja
24.L.Vijayalakshmi
25.V.Saratha Rukumani
26.M.Periyasamy
27.M.Balasubramanian
28.S.Sarathiganesan
29.A.Jeyanthi
30.J.Balaji
31.A.Jeenatha Banu
32.S.Jeyanthi
33.T.Elangovan
34.S.Periyasamy
35.K.Malligaisundaram
36.V.Savithri
37.P.Srirangan
38.R.Mathivanan
39.R.Leelavathi
40.S.Manoharan
41.T.S.Badrinath
42.M.Kadar Moideen
43.R.Gunasellan
44.R.Kalavathi
45.A.Metilda
46.A.R.A.Jeyaraj
47.R.Umapathi
48.R.Naganathan
49.V.Rengarajan
50.A.Kulathur Pandiyan
51.S.Ubhaharam
[R-5 to R-51 impleaded as per order of
this Court dated 20.07.2010 made in
M.P.(MD)No.6 of 2010] ... Respondents
W.P.(MD)No.189/2010:
R.Selvaraju ... Petitioner
vs.
1.The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
2.The Principal Secretary & Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai-600 005.
3.The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
4.M.Baladhandayutham
[R-4 impleaded as per order of this
Court dated 19.04.2010 made in
M.P.(MD)No.3 of 2010]
5.T.Elangovan
6.S.Periyasamy
7.K.Malligaisundaram
8.V.Savithri
9.P.Srirangam
10.R.Mathivanan
11.R.Leelavathi
12.S.Manoharan
13.T.S.Badrinath
14.M.Kadar Moideen
15.R.Gunaseelan
16.R.Kalavathi
17.A.Metilda
18.A.R.A.Jeyaraj
19.R.Umapathi
20.R.Naganathan
21.V.Rengarajan
22.A.Kulathur Pandiyan
23.S.Ubhaharam
24.P.Selvam
25.S.Subramanian
26.R.Sudamani
27.R.Radha Krishnan
28.M.Srinivasan
29.K.Kaliyamoorthy
30.R.Jeyabarathi
31.N.Vasuki
32.P.L.Shanmugadurai
33.S.Arumugam
34.A.Malarkodi
35.M.Veeramani
36.K.Sulochana
[R-5 to R-36 impleaded as per order of
this Court dated 13.07.2010 made in
M.P.(MD)No.4 of 2010] ... Respondents
W.P.(MD)No.1394/2010:
K.Muthusamy ... Petitioner
vs.
1.The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
2.The Principal Secretary & Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai-600 005.
3.The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
4.C.Nallappa Udayar
5.William Sil Vester Louisraj
6.V.Shanthi
7.T.Malar
8.M.Karunakaran
9.R.Sridar
10.S.Sathya Bala Gangadaran
11.P.Ravi
12.M.Sumathi
13.R.Thangavel
14.G.Shanthi
15.V.Manoharan
16.P.Rajendran
17.S.Balasubramanian
[R-4 to R-17 impleaded as per order of this Court
dated 20.07.2010 made in M.P.(MD)No.4 of 2010]
... Respondents
W.P.(MD)No.12918/2009:
A.Rajagopalan ... Petitioner
vs.
The District Collector,
Tiruchirappalli District,
Tiruchirappalli. ... Respondent
W.P.(MD)No.12919/2009:
A.Sivagami ... Petitioner
vs.
The District Collector,
Tirunelveli District,
Tirunelveli. ... Respondent
W.P.(MD)No.13405/2009:
1.C.Bhavani
2.A.Sivasubramania Pillai
3.T.Manjula
4.C.Stella Gnanamani Premeela
5.S.Kamalakannan ... Petitioners
vs.
1.The District Collector,
Trichirappalli District,
Trichirappalli.
2.S.John
3.P.Gnanavel
4.R.Sri Mohana
5.G.R.Rajasekaran
6.R.Ganesan
7.S.Sivasankaran
8.A.Selvamathi
9.T.Valarmathi
10.J.Shornambi Beaula
11.K.Muthukumareshwarai
12.K.Nagarathinam
13.T.Johnsiponnu
14.V.Meenal
15.M.Natarajan
16.S.V.Sirajudeen
17.A.Shobha
18.R.Rengarajan
19.A.Akbarali
20.T.Nirmala
21.S.R.Srinivasan
22.S.Hendrysamidurai
23.S.Sivakamasundari
24.N.Jeyakumar
25.S.Kasthurirengan
26.C.Deiveegan
27.P.Sendhamarai
[R-2 to R-27 impleaded as per order of
this Court dated 20.07.2010 made in
M.P.(MD)No.3 of 2010] ... Respondents
W.P.(MD)No.13757/2009:
1.A.Rajagopalan
2.K.Mathialagan
3.M.Ravichandran ... Petitioners
vs.
1.The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
2.The Principal Secretary & Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai-600 005.
3.The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
4.The District Collector,
Tirunelveli District,
Tirunelveli.
5.The District Collector,
Tuticorin District,
Tuticorin. ... Respondents
PRAYER in W.P.(MD)No.255/2010
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records relating to the third respondent
R.C.A.2/16892-2009, dated 02.12.2009 regarding re-drawal of the list of Deputy
Tahsildars of the year 1996, 1998, 2000, 2001, 2002, 2003 and quash the same and
direct the third respondent to retain the old approved lists till the Revenue
Subordinate Service Rules are suitably amended by the Government.
PRAYER in W.P.(MD)No.189/2010
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorari, to
call for the records relating to the third respondent R.C.A.2/16892-2009, dated
02.12.2009 regarding re-drawal of the list of Deputy Tahsildars of the year
2001, 2002, 2003, 2004 and 2005 and quash the same.
PRAYER in W.P.(MD)No.1394/2010
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records relating to the third respondent
R.C.A.2/16892-2009, dated 02.12.2009 regarding re-drawal of the list of Deputy
Tahsildars of the year 2008 and quash the same and direct the third respondent
to retain the old approved list till the Revenue Subordinate Service Rules are
suitably amended by the Government.
PRAYER in W.P.(MD)No.12918/2009
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records of the respondent relating to R.C.A.2/16892-
2009, dated 02.12.2009 and quash the same so far it relates to the petitioner in
Serial No.9 and consequently, direct the respondent to retain the petitioner's
name in the original place in the list of Deputy Tahsildars of the year 2001
within a specified time frame.
PRAYER in W.P.(MD)No.12919/2009
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records of the respondent relating to A-6/Pdl-
30/2006/A-6/57490 of 2009, dated 30.11.2009 and quash the same so far it relates
to the petitioner in Serial No.23 and consequently, direct the respondent to
retain the petitioner's name in the original place in the list of Deputy
Tahsildars of the year 2005 within a specified time frame.
PRAYER in W.P.(MD)No.13405/2009
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records of the first respondent relating to
R.C.A.2/16892-2009, dated 02.12.2009 in the revision of Deputy Tahsildars list
of the year 2006 and 2007 and quash the same and consequently, direct the
respondent to redraw the list strictly in accordance with the orders dated
08.04.2009 of the Supreme Court and in accordance with the principles of carried
over vacancy as stipulated in proviso to Rule 22-d of the Tamil Nadu State and
Subordinate Service Rules within a specified time frame.
PRAYER in W.P.(MD)No.13757/2009
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records relating to the first respondent letter
(MS)No.305, Revenue Department, dated 07.08.2009 and to the second respondent in
his letter No.Ser.3(3)/47368/2006, dated 26.08.2009 and quash the same and
consequently, direct the first and second respondents to amend the Rule 5(g) of
the Tamil Nadu Revenue Subordinate Service Rules as per the orders dated
08.04.2009 of the Supreme Court and issue specific instructions regarding the
placement of the Directly Recruited Assistants in the approved list of Deputy
Tahsildars with prospective effect within a specified time frame.
W.P.(MD)No.255/2010:
!For Petitioners ... Mr.S.Visvalingam
^For Respondents 1to3 ... Mr.M.Govindan
Special Government Pleader
For Respondent No.4 ... Mr.G.R.Swaminathan
For Respondents 5to51 ... No Appearance
W.P.(MD)No.189/2010
For Petitioner ... Mr.S.Visvalingam
For Respondents 1to3 ... Mr.M.Govindan
Special Government Pleader
For Respondent No.4 ... Mr.G.R.Swaminathan
For Respondents 5to36 ... No Appearance
W.P.(MD)No.1394/2010
For Petitioner ... Mr.S.Visvalingam
For Respondents 1to3 ... Mr.M.Govindan
Special Government Pleader
For Respondents 4to17 ... No Appearance
W.P.(MD)Nos.12918& 12919/2009:
For Petitioners ... Mr.S.Visvalingam
For Respondent ... Mr.M.Govindan
Special Government Pleader
W.P.(MD)No.13405/2009
For Petitioners ... Mr.S.Visvalingam
For Respondent No.1 ... Mr.M.Govindan
Special Government Pleader
For Respondent No.19 ... Mr.G.R.Swaminathan
For Respondents 2to18 &
20 to 27 ... No Appearance
W.P.(MD)No.13757/2009
For Petitioners ... Mr.S.Visvalingam
For Respondents ... Mr.M.Govindan
Special Government Pleader
******
:COMMON ORDER
*******
Heard both sides.
2. In W.P.(MD)Nos.12918, 12919 of 2009, 189, 255 and 1394 of 2010,
the prayer is more or less identical. The petitioners, who are direct recruit to
the post of Assistants in Revenue Department, seek for a restraint order against
the District Collector from re-drawing the panel for various years starting from
1996 and seek for a further direction to the Collector to retain the old
approved list till the time frame fixed by this Court. They also seek for
quashing of the fresh panel prepared by the District Collector.
3. In W.P.(MD)No.13757 of 2009, the prayer of the petitioners is for
setting aside the orders of the Secretary to Government, Revenue Department,
Secretariat, Chennai and the Principal Secretary and Commissioner of Revenue
Administration, Chennai, and after setting aside the same, seek for amendment of
Rule 5(g) of the Tamil Nadu Revenue Subordinate Service Rules, as per the order
of the Supreme Court.
4. In W.P.(MD)No.13405 of 2009, the prayer is for setting aside the
panel drawn by the District Collector and revising the earlier panel of Deputy
Tahsildar and for a further direction to strictly implement the judgment of the
Supreme Court, in accordance with the principles of carried over vacancies.
5. The subject matter of the present Writ Petitions is squarely
covered by the judgment passed by this Court in W.P.(MD)Nos.3481, 2785 of 2010,
etc., batch, dated 11.10.2011. However, Mr.S.Visvalingam, learned counsel for
the petitioners contended that in the absence of the relevant service rules
being amended, the State should not give effect to the order passed by the
Supreme Court and secondly, the judgment of the Supreme Court should be made
applicable prospectively and not retrospectively and in the light of the
approved panels made already, there is a vested right created in favour of the
petitioners. Therefore, there is no question of taking advantage of the judgment
of the Supreme Court to re-draw the panels, thereby affecting the interest of
the petitioners, after so many years.
6. For the purpose of deciding the contention raised, one must look
into the judgment of the Supreme Court, which arose out of the interpretation of
Rule 5 of the Tamil Nadu Revenue Subordinate Service Rules. The said judgment
has been reported in 2009(5) SCC 625 with the caption “M.Rathinaswami v. State
of T.N.”. In that case, while upholding the right of the State Government in
making a distinction, which is in the same cadre of Assistant, based upon
educational qualification, for further promotion and holding in such cases, even
though persons may be found in the same category, there will not be any
discrimination and any distinction based upon academic qualification for the
higher posts is valid. But, at the same time, the Supreme Court held that even
among the rank promotees, if there are graduates (it was alleged before the
Supreme Court there were also many post graduates), in such cases, the promotee
graduates also stand on par with direct recruit assistants and, therefore, the
rule, as it stands, is discriminatory and violative of Articles 14 and 16,
insofar as it excludes the graduate promotees from being considered for higher
posts. The higher post being the post of Deputy Tahsildar, coming under the
Tamil Nadu Revenue Subordinate Service, the qualified Assistants are transferred
and promoted and posted as Deputy Tahsildar. The Supreme Court, instead of
directing the State Government to amend the rules, held, in the exercise of its
power under Article 142, that by reading down the rule, it can be made
consistent with Articles 14 and 16 and, therefore, held that the graduate
promotees are also eligible to be treated on par with direct recruit assistants
for being promoted to the next higher cadre. The said direction is binding on
the State Government and it is unnecessary for the State Government to make any
formal amendment, as under Article 142, the State Government is bound to give
effect to the judgment, order or decree passed by the Supreme Court and it does
not require any formal order to be passed and, therefore, the prayer of the
petitioners in some of the Writ Petitions that there must be a direction to
amend the rule of Revenue Subordinate Service Rules is unnecessary.
7. Insofar as the submission that the respondents are not carrying
out the order of Supreme Court and there is nothing in the order of the Supreme
Court to recast the old panels is concerned, the counsel, in effect, submits
that the judgment of the Supreme Court read to mean that they are prospective.
It must be noted that the doctrine of prospective overruling will apply only to
the Supreme Court, in view of the special power conferred under Article 142 of
the Constitution and unless and until the Supreme Court, in its judgment,
expresses its right to make a particular judgment applicable prospectively, all
judgments are declaratory. Once the law is declared, it must be understood, that
was the law at all times and this Court cannot reinterpret the Supreme Court to
mean that the judgment is prospective.
8. Such a power does not exist for this Court under Article 226 of
the Constitution of India and a reading of M.Rathinaswami’s case (cited supra)
would clearly show that but for the Supreme Court reading down the rule to bring
it consistent with the principles laid down under Articles 14 and 16, the rule
would have become unconstitutional and all the panels drawn on the basis of the
unconstitutional rule would have become automatically invalid. Therefore, the
petitioners must thank that their position for getting further promotion is not
disturbed by the order of the Supreme Court. But, at the same time, merely
because their names were included earlier in the panel on that basis, otherwise,
the unconstitutional rule can be implemented by orders passed by this Court.
Therefore, the submission made that a direction should be issued to the District
Collector to implement the judgment of the Supreme Court is unnecessary and the
impugned panel itself has been prepared only pursuant to the directions issued
by the Supreme Court, which direction is bound to be obeyed by all authorities
including the District Collector.
9. In that view of the matter, the Writ Petitions seeking for a
direction to the authority to strictly implement the orders is unnecessary and
it has been done by the authorities.
10. Insofar as the other submission that there is a vested interest
in favour of persons whose names were included in the panel is concerned, it
must be noted that mere inclusion in the panel or found in the select list
without there being any further orders will not confer any right on the part of
the petitioners. The Supreme Court, vide its judgment in S.S.Balu v. State of
Kerala reported in 2009(2) SCC 479, has held that mere inclusion in the rank
list no right of appointment accrues and the Government is free to fill up or
not to fill up such posts and in such circumstances, no Writ in the nature of
Mandamus can be issued by the High Court. In the present case, the fact that the
names of some of the petitioners were found in the earlier panel does not give
them any vested right to continue in the panel, especially when the respondent
authorities were bound to re-cast the panel, to give effect to the judgment of
the Supreme Court.
11. In the said circumstances, there is no case made out to
entertain anyone of the Writ Petitions and hence, all the Writ Petitions are
dismissed. Consequently, the connected miscellaneous petitions are closed. No
costs.
SML
To
1.The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
2.The Principal Secretary & Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai-600 005.
3.The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
4.The District Collector,
Tirunelveli District,
Tirunelveli.
5.The District Collector,
Tuticorin District,
Tuticorin.
