BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/10/2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.3481 of 2010
W.P.(MD)No.2785 of 2010
W.P.(MD)No.1102 of 2010
W.P.(MD)No.4085 of 2010
W.P.(MD)No.14746 of 2010
W.P.(MD)No.1579 of 2011
W.P.(MD)No.1580 of 2011
and
W.P.(MD)No.1797 of 2010
and
M.P.(MD)Nos.1,2,3,4/2010, 2/2011, 2,3/2010, 1,2/2010, 1/2010, 1,2/2010, 1,1/2011
and 2/2010
W.P.(MD)No.3481/2010:
T.Mathavan ... Petitioner
vs.
1.The Principal Secretary and
Commissioner of Revenue Administration,
Chepauk,
Chennai-5.
2.The District Collector,
Karur District,
Karur.
3.The District Revenue Officer,
Karur District, Karur.
4.Mr.M.Pugazhendhi
5.C.Ravichandran
[R-5 impleaded as per order of this Court
dated 28.04.2011 in M.P.(MD)No.1 of 2011]
... Respondents
W.P.(MD)No.2785/2010:
S.Sivakumar ... Petitioner
vs.
1.The State of Tamil Nadu represented by
its Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
2.The Principal Secretary/
Commissioner of Revenue Administration,
Chepauk,
Chennai-600 005.
3.The District Collector,
Karur District,
Karur-639 007.
4.C.Ravichandran
[R-4 impleaded as per order of this Court
dated 14.06.2011 in M.P.(MD)No.1 of 2011]
... Respondents
W.P.(MD)No.1102/2010:
R.Muniappan ... Petitioner
vs.
1.The Principal Secretary and
Commissioner of Revenue Administration,
Chepauk,
Chennai-5.
2.The District Collector,
Karur District,
Karur.
3.The District Revenue Officer,
Karur District, Karur.
4.C.Ravichandran
[R-4 impleaded as per order of this Court
dated 28.04.2011 in M.P.(MD)No.1 of 2011]
... Respondents
W.P.(MD)No.4085/2010:
P.Duraisamy ... Petitioner
vs.
1.State of Tamil Nadu,
Rep. by its Secretary,
Revenue Department,
Fort St. George,
Chennai-600 009.
2.The Principal Secretary/
Commissioner of Revenue Administration,
Chepauk,
Chennai-600 005.
3.The District Collector,
Karur District,
Karur-639 007.
4.C.Ravichandran
[R-4 impleaded as per order of this Court
dated 28.04.2011 in M.P.(MD)No.1 of 2011]
... Respondents
W.P.(MD)No.14746/2010:
C.Ravichandran ... Petitioner
vs.
1.The Registrar General,
High Court, Madras.
2.The State of Tamil Nadu,
Rep. by its Principal Secretary
to Government, Home (Courts) Department,
Secretariat, Chennai-9.
3.The Principal Secretary/
Commissioner of Revenue Administration,
Chepauk,
Chennai-5.
4.The District Collector,
Karur.
5.R.Muniappan,
Superintendent,
Office of the Assistant Commissioner (Excise),
Collector's Office, Karur.
6.T.Mathavan,
Superintendent,
Office of the District Supply & Consumer,
Protection Department,
Collector's Office, Karur. ... Respondents
W.P.(MD)No.1579/2011:
R.Muniappan,
Superintendent,
Office of the Assistant Commissioner (Excise),
Collector's Office,
Karur District-639 007. ... Petitioner
vs.
1.The District Collector,
Karur District,
Karur-639 007
2.C.Ravichandran
[R-2 impleaded as per order of this Court
dated 14.06.2011 in M.P.(MD)No.2 of 2011]
... Respondents
W.P.(MD)No.1580/2011:
Mr.T.Mathavan,
Superintendent,
Office of the District Supply and
Consumer Protection Department,
Collector's Office,
Karur-639 007. ... Petitioner
vs.
1.The District Collector,
Karur District,
Karur-639 007
2.C.Ravichandran
[R-2 impleaded as per order of this Court
dated 14.06.2011 in M.P.(MD)No.2 of 2011]
... Respondents
W.P.(MD)No.1797/2010:
1.R.Muniappan
2.G.Kamalesh
3.S.Chellapandian
4.A.Garpagam
5.K.Lenin ... Petitioners
vs.
1.The State of Tamil Nadu,
Rep. by its Secretary to Government,
Revenue Department,
Fort St. George,
Chennai-9.
2.The Principal Secretary/Commissioner
of Revenue Administration,
Chepauk, Chennai-5.
3.The District Collector,
Karur, Karur District.
4.The District Collector,
Madurai, Madurai District.
5.The District Collector,
Dindigul, Dindigul District.
6.The District Collector,
Tuticorin, Tuticorin District.
7.C.Ravichandran
[R-7 impleaded as per order of this
Court dated 28.04.2011 made in
M.P.(MD)No.1 of 2011] ... Respondents
PRAYER in W.P.(MD)No.3481/2010
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 pertaining to the impugned notification in
Rc.A2/4126/2009, dated 17.11.2009 and the subsequent notification in
Rc.A2/20195/2009, dated 21.12.2009 on the file of the second respondent and
quash the same as illegal and consequently, to retain the petitioner in the list
of Deputy Tahsildars for the year 2007 in pursuance to the earlier notification
in Pdl 279/2007(A2) dated 12.01.2008 on the file of the second respondent.
PRAYER in W.P.(MD)No.2785/2010
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 pertaining to the impugned proceedings in
Rc.A2/20195/09, dated 21.12.2009 on the file of the third respondent redrawn
panel of list of Deputy Tahsildars of Karur District for the year 2007 and
consequential proceedings in Rc.A2/20195/09, dated 21.12.2009 on the file of the
third respondent redrawn panel of list of Deputy Tahsildars of Karur District
for the year 2008 and quash the same as illegal as far as the petitioner is
concerned and consequently, direct the third respondent to maintain the approved
list of Deputy Tahsildars for the years 2007 and 2008 as originally drawn up as
per rules and Government Orders in force vide the third respondent's
notification Pdl/A2/279/2007, dated 12.01.2008 and Pdl/279/2008(A2), dated
26.11.2008 and send the petitioner to the police and Magisterial training
immediately, give further promotion.
PRAYER in W.P.(MD)No.1102/2010
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 pertaining to the impugned proceedings in Rc.A2/20915/09, dated
21.12.2009 on the file of the second respondent and quash the same as illegal as
far as the petitioner is concerned.
PRAYER in W.P.(MD)No.4085/2010
Writ Petition is filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Mandamus, directing
the third respondent to send me for police training before 30.04.2010 enabling
the petitioner to become eligible to be included in the panel for Tahsildars for
the year 2010.
PRAYER in W.P.(MD)No.14746/2010
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 notification in ROC
No.12601/2010(B6) Notification 211/2010, dated 23.11.2010 issued by the first
respondent and quash the same, insofar as the respondents 5 and 6 are concerned,
and direct the official respondents 1 to 4 to confer magisterial power on the
petitioner, so as to enable the petitioner to acquire the qualification for the
post of Tahsildar.
PRAYER in W.P.(MD)No.1579/2011
Writ Petition is filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Mandamus, directing
the first respondent to send the petitioner for Magisterial Training in
pursuance to the Notification No.211/2010 in ROC.No.12601/2010-B6.
PRAYER in W.P.(MD)No.1580/2011
Writ Petition is filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Mandamus, directing
the first respondent to send the petitioner for Magisterial Training in
pursuance to the Notification No.211/2010 in ROC.No.12601/2010-B6.
PRAYER in W.P.(MD)No.1797/2010
Writ Petition is filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Declaration,
declaring that the Special Rules for the Tamil Nadu Revenue Subordination
Service in Section 28 in Volume III of the Tamil Nadu Service Manual 1970 in
annexure III in Item (II) as illegal to the extent to which define that a
"provided also that an Assistant appointed by direct recruitment in the office
of the erstwhile Board of Revenue, who has completed a total service of five
years, passed all the tests prescribed and undergone training as Firka Revenue
Inspector for a period of two years successfully shall be eligible for inclusion
of his name in the approved list of Deputy Tahsildars for Madras city, above his
seniors appointed other than by direct recruitment or for re-fixation of his
seniority over such seniority, if his name has already been included in one list
of Deputy Tahsildrs. The consideration of his claim shall be against the first
vacancy that follows the carried over vacancies. After the proviso so
substituted, the following proviso shall be added:- provided also that an
Assistant appointed by direct recruitment in the District Revenue Unit, who has
completed a total period of five years, passed all the tests prescribed and
undergone training as Firka Revenue Inspector for a period of two years
successfully, shall be eligible for inclusion of his name in the approved list
of Deputy Tahsildars in the District above his seniors appointed other than by
direct recruitment or for re-fixation of his seniority over such seniors, if his
name has already been included in the list of Deputy Tahsildars. The
Constitution of his claim shall be against the first vacancy that follows the
carried over vacancies" or in the alternative directing the respondents to apply
the same criteria of providing the eligible service of four years as Assistants
to enable them appointment by transfer as the Deputy Thasildar as provided for
the Promotee Assistants form the Cadre of Junior Assistant.
W.P.(MD)No.3481/2010::
!For Petitioner ... Mr.T.Lajapathi Roy
^For Respondents 1to3 ... Mr.M.Govindan
Special Government Pleader
For Respondent No.4 ... No Appearance
For Respondent No.5 ... Mr.V.Panneerselvam
For M/s.C.s.Associates
W.P.(MD)Nos.2785,1102 &4085/2010::
For Petitioners ... Mr.T.Lajapathi Roy
For Respondents 1to3 ... Mr.M.Govindan
Special Government Pleader
For Respondent No.4 ... Mr.V.Panneerselvam
For M/s.C.s.Associates
W.P.(MD)No.14746/2010::
For Petitioner ... Mr.V.Panneerselvam
For M/s.C.s.Associates
For Respondent No.1 ... Mr.D.Venkatesh
For Respondents 2to4 ... Mr.M.Govindan
Special Government Pleader
For Respondents 5&6 ... Mr.T.Lajapathi Roy
W.P.(MD)Nos.1579 & 1580/2011::
For Petitioners ... Mr.T.Lajapathi Roy
For Respondent No.1 ... Mr.M.Govindan
Special Government Pleader
For Respondent No.2 ... Mr.V.Panneerselvam
For M/s.C.s.Associates
W.P.(MD)No.1797/2010::
For Petitioners ... Mr.T.Lajapathi Roy
For Respondents 1to6 ... Mr.M.Govindan
Special Government Pleader
For Respondent No.7 ... Mr.V.Panneerselvam
For M/s.C.s.Associates
******
:COMMON ORDER
*******
In these batch of Writ Petitions, the petitioners are directly
recruited Assistants holding posts in the Revenue Department. In W.P.(MD)No.1797
of 2010, the petitioners have come forward with a prayer seeking for a
declaration declaring that the Special Rules for the Tamil Nadu Revenue
Subordination Service in respect of Annexure III in item II as illegal and seek
for a direction to modify the rule. They have also given two options to the
State Government to modify the rule, in essence, the petitioners, who are
holding the post of Assistants and who also completed the training as a Firka
Revenue Inspector for two years, are eligible for being promoted to the post of
Deputy Tahsildars, but wanted the eligibility service of five years as
Assistants to be reduced to four years to enable them to get appointed by
transfer to the new service into the post of Deputy Tahsildar. They also wanted
the first available vacancy to be given to them.
2. In W.P.(MD)No.4085/2010, the petitioner has sought for a
Mandamus, directing the third respondent to send him for police training before
30.04.2010 so as to enable him to become eligible to be included in the panel
for Tahsildars for the year 2010.
3. In W.P.(MD)Nos.1579 and 1580 of 2011, the petitioners have sought
for a Mandamus, directing the first respondent to send them for Magisterial
Training.
4. In the other Writ Petitions, the directly recruited Assistants
seek to challenge the panel prepared by the District Collector, pursuant to the
judgment of the Supreme Court in Civil Appeal No.2251 of 2009 and other cases,
dated 08.04.2009. The said judgment has been reported in 2009(5) SCC 625 with
the caption “M.Rathinaswami v. State of T.N.”
5. The grievance projected in those Writ Petitions was that the
District Collector has no right to undo the earlier panel, in which the names of
the petitioners have been included and the judgment of the Supreme Court cannot
be made use of for undoing the earlier panel prepared, in essence, the
petitioners wanted to contend that M.Rathinaswami’s case (cited supra) should
have a prospective effect and should not affect the earlier panel prepared by
the Revenue Department in the respective District.
6. The second contention was that before altering the panel and
bringing persons from down below the list to the top of the list, no notice was
given. The petitioners have made certain persons as contesting respondents and
also one C.Ravichandran, who was working as a Zonal Deputy Tahsildar, Taluk
Office, Karur, got himself impleaded in all these Writ Petitions.
7. When the matter came up before this Court, it was strongly
contended by the official respondents as well as the impleaded respondent that
the Writ Petitions are misconceived and the petitioners are not entitled to
contend contrary to the ratio laid down by the Supreme court in respect of the
very same rule and in essence, they cannot get any order contrary to the
directions issued by the Supreme Court. A reference was also made to the orders
passed in respect of similar Writ Petitions filed by similarly placed persons in
other revenue districts.
8. Taking the first contention viz., that whether the petitioners
have any vested right to be kept in the panel and whether the District Collector
was right in recasting the panel, the question has to be answered in the light
of the directions issued by the Supreme Court. It must be noted that the Supreme
Court dealt with an appeal against the judgment of the Division Bench in
W.P.No.27173 of 2003, dated 10.09.2005, in which, the Division Bench held that
the existing rule giving preference to the directly recruited Assistants and
getting them on the top of the seniority list over the rank promotees was valid.
The aggrieved promotees went to the Supreme Court. The Supreme Court held that
the Government can make a discrimination, even though if the persons holding the
post either by direct recruitment or by promotion or in the same cadre, but are
having different educational qualifications. But, at the same time, the Supreme
Court was informed that many of the rank promotees have got graduation and some
of them are also post graduates. Therefore, the Supreme Court held that in such
cases if the criteria for promotion was based upon graduation, then even the
graduate rank promotees also should be considered for further promotion.
Otherwise, it will result in discrimination and the rule will be violative of
Articles 14 and 16 of the Constitution of India. Therefore, the Supreme Court
read down the rule to accommodate the rank promotees also to be considered for
the purpose of further promotion as Deputy Tahsildars by transfer from
Ministerial service to the Revenue Subordinate service.
9. In M.Rathinaswami’s case cited supra, at paragraph No.26 to 32,
the Supreme Court observed as follows:
“26. Whether graduate degree is a sufficient basis for classification for
promotion vis–vis non-graduates, and whether such classification has rational
relation to the nature of duties of a Deputy Tahsildar, is, in our opinion for
the State Government to decide, and not the Court. Hence, we uphold the validity
of the impugned Rule to the extent that it gives preference to the directly
recruited Assistants over the promoted Assistants who are non-graduates.
27. However, we cannot find any rational basis for giving preference to
the direct recruits over those promotee Assistants who are graduates, since the
very basis for the distinction sought to be drawn by the respondents is that the
direct recruits are graduates and hence intellectually superior to non-
graduates. Hence we have to read down the impugned rule in order to save it from
becoming violative of Articles 14 and 16 of the Constitution.
28. It is well settled that to save a statutory provision from the vice of
unconstitutionality sometimes a restricted or extended interpretation of the
statute has to be given. This is because it is a well-settled principle of
interpretation that the Court should make every effort to save a statute from
becoming unconstitutional. If on giving one interpretation the statute becomes
unconstitutional and on another interpretation it will be constitutional, then
the Court should prefer the latter on the ground that the legislature is
presumed not to have intended to have exceeded its jurisdiction.
29. Sometimes to uphold the constitutional validity the statutory
provision has to be read down. Thus, in Umayal Achi v. Lakshmi Achi5, the
Federal Court was considering the validity of the Hindu Women’s Right to
Property Act, 1937. In order to uphold the constitutional validity of the Act,
the Federal Court held the Act intra vires by construing the word “property” as
meaning “property other than agricultural land”. This restricted interpretation
of the word “property” had to be given otherwise the Act would have become
unconstitutional.
30. Similarly, in Kedar Nath Singh v. State of Bihar6 this Court had to
construe Section 124-A of the Penal Code which relates to the offence of
sedition which makes a person punishable who “by words, either spoken or
written, or by signs, or by visible representation, or otherwise, brings or
attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards, the Government established by law”. This Court gave a
restricted interpretation to the aforesaid words so that they apply only to acts
involving intention or tendency to create disorder or disturbance of law and
order or incitement to violence. This was done to avoid the provisions becoming
violative of Article 19(1)(a) of the Constitution which provides for freedom of
speech and expression.
31. Several other decisions on the point have been given in Justice G.P.
Singh’s Principles of Statutory Interpretation (7th Edn., 1999, pp. 414-17).
32. For the reasons given above these appeals are partly allowed and the
impugned judgment is partly set aside, and it is held that the impugned rule so
far as it places directly recruited Assistants above the promotees for promotion
as Deputy Tahsildar shall only apply to those promotees who are non-graduates,
but it is inapplicable to those promotees who are graduates.”
10. Once the Supreme Court reads down the law, then it is binding on
all the Subordinates under Article 141 of the Constitution of India. Therefore,
the District Collector is bound to enforce the order, in terms of Article 142 of
the Constitution of India and there is no other option. It is not as if the
Supreme Court made any further direction that the panels, which are already
prepared on the basis of the impugned rule, will be held intact and that only
for future, the constitutionally read down rule will be applicable. No doubt,
the Supreme Court has power to make any judgment applicable prospectively, in
the light of the peculiar power vested under Article 142. But in the absence of
the Supreme Court itself stating so, this Court cannot read between the lines
and find favourable points in favour of the petitioners.
11. In this regard, it is relevant to refer to a Larger Bench
judgment of the Supreme Court, in which, the doctrine of prospective overruling
was analysed. In Golak Nath v. State of Punjab, (1967)2 SCR 762 = AIR 1967 SC
1643, in paragraph Nos.51 an 52, it was observed as follows:
“51.Our Constitution does not expressly or by necessary implication speak
against the doctrine of prospective overruling. Indeed, Articles 32, 141 and 142
are couched in such wide and elastic terms as to enable this Court to formulate
legal doctrines to meet the ends of justice. The only limitation thereon is
reason, restraint and injustice. Under Article 32, for the enforcement of the
fundamental rights the Supreme Court has the power to issue suitable directions
or orders or writs. Article 141 says that the law declared by the Supreme Court
shall be binding on all courts; and Article 142 enables it in the exercise of
its jurisdiction to pass such decree or make such order as is necessary for
doing complete justice in any cause or matter pending before it. These articles
are designedly made comprehensive to enable the Supreme Court to declare law and
to give such directions or pass such orders as are necessary to do complete
justice. The expression “declared” is wider than the words “found or made.” To
declare is to announce opinion. Indeed, the latter involves the process, while
the former expresses result. Interpretation, ascertainment and evolution are
parts of the process, while that interpreted, ascertained or evolved is declared
as law. The law declared by the Supreme Court is the law of the land. If so, we
do not see any acceptable reason why it, in declaring the law in supersession of
the law declared by it earlier, could not restrict the operation of the law as
declared to future and save the transactions, whether statutory or otherwise
that were effected on the basis of the earlier law. To deny this power to the
Supreme Court on the basis of some outmoded theory that the Court only finds law
but does not make it is to make ineffective the powerful instrument of justice
placed in the hands of the highest judiciary of this country.
52.As this Court for the first time has been called upon to apply the doctrine
evolved in a different country under different circumstances, we would like to
move warily in the beginning. We would lay down the following propositions: (1)
The doctrine of prospective overruling can be invoked only in matters arising
under our Constitution; (2) it can be applied only by the highest Court of the
country i.e. the Supreme Court as it has the constitutional jurisdiction to
declare law binding on all the courts in India; (3) the scope of the retroactive
operation of the law declared by the Supreme Court superseding its “earlier
decisions is left to its discretion to be moulded in accordance with the justice
of the cause or matter before it.”
12. A close reading of the judgment of the Supreme Court will make
it clear that but for the Supreme Court reading down the rule, the rule itself
would have become unconstitutional and violative of Articles 14 and 16 of the
Constitution of India. Therefore, the directly recruited Assistants, who have
lost the main battle before the Supreme Court, cannot institute the proceedings
before this Court to re-write the decision of the Supreme Court in these
proceedings. Hence, the contention made by the respondents that the Writ
Petitions are clear abuse of process of Court is well founded.
13. Further, the fact that the petitioners names were found in the
earlier panel, which panel itself was prepared on the basis of the rule, which
was read down by the Supreme Court, does not exist any more and any preservation
of such panel will be indirect conflict with the reasoning given by the Supreme
Court. Therefore, the District Collector in recasting the panel and giving
effect to the order of the Supreme Court is legal and proper and the same does
not call for any interference.
14. The other argument that their names have been removed without
notices also cannot stand for the reason that the Supreme Court has laid down
the law, which is a public declaration of the legal position and once the law
laid down by the Supreme Court under Article 141 becomes final, the necessary
corollary is that all authorities must execute the order under Article 142 and
in such cases, there is no further hearing in the matter, in essence, a person,
who got his name included in the panel on the basis of an invalid rule, does not
have any vested right to keep his name in the panel.
15. In fact, in a similar context, the Supreme Court, vide its
judgment in A.K.Bhatnagar v. Union of India reported in 1991(1) SCC 544,
cautioned the State and Central Governments to strictly adhere to the rules in
respect of matters covered by the rules and acting in a manner contrary to the
rules creates problem and dislocation and, therefore, the serious view of the
lapses committed by the Government was taken in paragraph No.13 of the said
judgment, in which, the Supreme Court had observed as follows:
“13. On more than one occasion this Court has indicated to the Union
and the State Governments that once they frame rules, their action in respect of
matters covered by rules should be regulated by the rules. The rules framed in
exercise of powers conferred under the proviso to Article 309 of the
Constitution are solemn rules having binding effect. Acting in a manner contrary
to the rules does create problem and dislocation. Very often government
themselves get trapped on account of their own mistakes or actions in excess of
what is provided in the rules. We take serious view of these lapses and hope and
trust that the government both at the Centre and in the States would take note
of this position and refrain from acting in a manner not contemplated by their
own rules.”
Therefore, if the impugned orders came to be passed, in the light of the Supreme
Court’s order, no one can be heard to contend that the order must be struck down
on the grounds, which are untenable both in law and facts.
16. The question as to whether a person who gets his name included
in a panel has a vested right came to be considered by the Supreme Court in
Aryavrat Gramin Bank v. Vijay Shankar Shukla reported in 2007(12) SCC 413. In
that case, the Supreme Court held that merely because a person’s name is
included in the panel or select list does not confer any legal right for being
appointed. In paragraph No.21, it was observed as follows:
“21. It is now a trite law that only because a person has been selected
and his name finds place in the select list, the same by itself does not confer
any legal right on him to be appointed. It is also trite that ordinarily a
superior court in exercise of its power of judicial review would not interfere
with the right to make appointment by an employer unless its action or inaction
is found to be wholly arbitrary so as to offend Article 14 of the Constitution
of India.”
Hence, the contention raised in the other Writ Petitions is also liable to be
rejected.
17. Coming to the question of challenge to the vires of the Rules
made in W.P.(MD)No.1797 of 2010, no Mandamus will lie in amending the Special
rules framed under Article 309 of the Constitution of India. It must be noted
that the Special Rules framed under Article 309 are legislative in character
either for framing a new rule or for amending the existing rule, no direction
can be issued. The Supreme Court and the Administrative Tribunals have been
warned from issuing such directions or any advisory sermons to the executive, in
the judgment in Mallikarjuna Rao v. State of A.P. reported in AIR 1990 SC 1251
and in paragraph Nos.10 and 12, it was observed as follows:
“10. The observations of the High Court which have been made as the
basis for its judgment by the Tribunal were only of advisory nature. The High
Court was aware of its limitations under Article 226 of the Constitution of
India and as such the learned Judge deliberately used the word “advisable” while
making the observations. It is neither legal nor proper for the High Courts or
the Administrative Tribunals to issue directions or advisory sermons to the
executive in respect of the sphere which is exclusively within the domain of the
executive under the Constitution. Imagine the executive advising the judiciary
in respect of its power of judicial review under the Constitution. We are bound
to react scowlingly to any such advice.
11………….
12. The Special Rules have been framed under Article 309 of the
Constitution of India. The power under Article 309 of the Constitution of India
to frame rules is the legislative power. This power under the Constitution has
to be exercised by the President or the Governor of a State as the case may be.
The High Courts or the Administrative Tribunals cannot issue a mandate to the
State Government to legislate under Article 309 of the Constitution of India.
The courts cannot usurp the functions assigned to the executive under the
Constitution and cannot even indirectly require the executive to exercise its
rule making power in any manner. The courts cannot assume to itself a
supervisory role over the rule making power of the executive under Article 309
of the Constitution of India.”
18. It must also be noted that that the very rule, which the
petitioners want to seek for amendment itself, was under consideration before
the Supreme Court in M.Rathinaswami’s case (cited supra) and at that time, the
direct recruit did not make any complaint or sought for any alteration of the
length of service for being considered for posting them as Deputy Tahsildars by
transfer from Ministerial service to the Revenue Subordinate service. In the
present case, it is for the State Government to consider the relevant experience
that is required for being transferred to the higher posts in a different
service. In such circumstances, any attempt to seek for a direction to the State
Government is clearly impermissible, in the light of the judgment in
Mallikarjuna Rao’s case (cited supra).
19. When there are two sources, which are combined into a single
cadre of Assistants, the petitioners still trained to retain their identity as
direct recruits and sought for filling up the post on the first vacancy, as in
effect seeking for a quota as well as rotational right for getting into the
post. The Supreme Court, while excluding the claims of non-graduate promotee
Assistants, has held that the graduate promotees are on par with the direct
recruits and, therefore, the petitioners cannot seek for any appointment on the
first vacancy on a priority basis, following the carried over vacancies.
20. Hence, there is no case made out to entertain anyone of the Writ
Petitions and hence, W.P.(MD)Nos.3481, 2785, 1102, 4085/ 2010, 1579, 1580/2011
and 1797 of 2010 stand dismissed.
21. The impleaded respondent C.Ravichandran, has filed a Writ
Petition in W.P.(MD)No.14746 of 2010 seeking to set aside the order dated
23.11.2010 issued by the Registrar General of this Court. After setting aside
the same, he seeks for a direction to the official respondents to confer
magisterial power on the petitioner so as to enable him to acquire the
qualification for the post of Deputy Tahsildar. The impugned communication
referred to in the Writ Petition is a notification issued by this Court
conferring magisterial power on certain Deputy Tahsildars functioning at Karur.
It is not clear as to why the petitioner wants to set aside the said order,
insofar as it directs the fifth and sixth respondents who are reputed to go for
magisterial training, which is the essential requirement for appointed to the
post of Deputy Tahsildar. Insofar as the order impugned in this Writ Petition is
concerned, the said order came to be passed only on the basis of the requisition
made by the Revenue Department and the Courts do not play any further role in
finding out the relative merits of candidates whose names were found in the
impugned order. Whether the fifth and sixth respondents are eligible to go for
training and after the completion of such training, whether they have got a
vested right to get transferred to the post of Deputy Tahsildar is essentially a
matter which has to be decided by the respective District Collectors.
22. On considering the entire matter and in the light of the order
passed in the earlier Writ Petitions, there is no need to entertain the Writ
Petition and grant the prayer sought for by the petitioner. It is suffice that
the petitioner’s grievance has been heard and redressed in the other Writ
Petitions. It is for the District Collector to decide the panel and also the
consequential training to be undergone by such persons whose names are included
in the panel. Merely because certain persons have undergone magisterial training
will not confer them any vested right to get themselves transferred to the post
of Deputy Tahsildars, unless and until they are otherwise qualified to hold the
post.
23. Hence, with the above observation, W.P.(MD)No.14746 of 2010 is
dismissed. Consequently, the connected miscellaneous petitions are closed. No
costs.
SML
To
1.The Principal Secretary and
Commissioner of Revenue Administration,
Chepauk,
Chennai-5.
2.The District Collector,
Karur District,
Karur.
3.The District Revenue Officer,
Karur District, Karur.
4.The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
5.The Registrar General,
High Court, Madras.
6.The Principal Secretary
to Government, Home (Courts) Department,
Secretariat, Chennai-9.
7.The District Collector,
Madurai, Madurai District.
8.The District Collector,
Dindigul, Dindigul District.
9.The District Collector,
Tuticorin, Tuticorin District.