IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 04.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.840 and 1438 of 2010 and M.P.Nos.1,1,2 and 2 of 2010 R.Hariharasubramanian ...Petitioner in W.P.No.840 of 2010 Lakshmi Bhaskaran ... Petitioner in W.P.No.1438 of 2010 Vs. 1.The Secretary to Government, Tamil Development, Religious Endowments and Information Department, Chennai – 600 009. 2.The Commissioner, Hindu Religious and Charitable Endowment, Administration Department, Chennai – 34. 3.The Secretary, Tamilnadu Public Service Commission, Chepauk, Chennai – 600 005. ...Respondents in both WPs PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of certiorari, to call for the records connected with the Government order issued in GO.(Ms)No.335 Tamil Development, Religious Endowments and Information (RE 2-2) Department dated 9.11.2009 passed by the 1st respondent and Notification/Advertisement in No.223 dated 20.12.2009 issued by the 3rd respondent and quash the same. For Petitioners W.P.No.840/2010 : Mr.S.Ilamvaludhi W.P.No.1438/2010 : Mr.C.Prakasam For Respondents : Mr.T.Chandrasekaran,Spl.G.P in both Wps for HR & CE : Ms.Niraimathi for R3 https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R Heard Mr.S.Ilamvaludhi and Mr.C.Prakasam, learned counsel for the petitioners and Mr.T.Chandrasekaran, learned Special Government Pleader taking notice for the respondent HR & CE. 2. In W.P.No.840 of 2010, the petitioner was an Inspector in the HR & CE Department. He filed the present writ petition, challenging the order of the State Government in GO.(Ms)No.335 Tamil Development, Religious Endowments and Information Department, dated 9.11.2009 passed by the first respondent State as well as Advertisement No.223 dated 20.12.2009 issued by the third respondent TNPSC and to pass appropriate orders. When the writ petition came up on 19.01.2010, notice was directed to be taken by the learned Special Government Pleader. 3. Subsequently, the second writ petition came to be filed by one Lakshmi Bhaskaran with a similar prayer. The petitioner in the second writ petition was also working as an Inspector in the HR & CE Department from 27.12.2003. 4. By the impugned Government Order, amendment was issued to the Special Rules governing the Tamil Nadu HR & CE Administrative service. It was claimed that the said order came to be issued pursuant to the judgment of this Court in W.P.No.28891 of 2007 dated 22.10.2007. In that case, the earlier advertisement given by the department calling for application for the post of Assistant Commissioner by TNPSC dated 01.08.2007 came to be challenged by the Executive Officers working in the Department. According to those petitioners, since the Executive Officers were serving for over a decade and if they are found fit to compete, there should not be any difficulty in allowing them to write the selection examination. It was also observed that it is not as if only law graduates are entitled to hold the post. The Department was directed to act as per the new guidelines to be framed by the Government. 5. In the light of the said judgment, Rule 2(a)of the Special Rules for Tamil Nadu HR & CE Administration Service was sought to be modified which is as follows:- "Provided further that the maximum age limit shall not apply in the case of a candidate in service, holding the post of Executive Officer Grade I or Grade II or Grade III or Grade IV, or Inspector of Head Clerk or Manager or Superintendent, in the Tamil Nadu Hindu Religious and Charitable Endowments Administration Department". 6. The petitioners are holding the post of Inspectors are holding posts similar to that of Superintendent and they should not be left out by the amendment to the Special Rules. They wanted to be allowed to compete for the said post. According to the petitioners, in the earlier judgment, this Court had directed the https://hcservices.ecourts.gov.in/hcservices/ Government to take into account the observation made in the judgment and to amend the Rules in such a way that an Executive Officer having experience less than six years can also participate in the examination. Similarly, persons who belonged to ministerial staff only if they put in six years of service in the post of Inspector, Superintendent, Manager, Head Clerk are permitted. It is the contention of the first petitioner that a candidate junior to the petitioner who was holding Grade II Executive Officer Post with effect from 2003 is allowed to sit for the examination, whereas the petitioner serving in the department from 1993 is not permitted to sit for the examination. 7. Similarly in the second writ petition, the petitioner claims that she was promoted as an Inspector on 03.11.2003 and she was working as inspector from 27.12.2003. Since she was relieved from the post of Assistant on 27.12.2003, there was a delay of 54 days on the part of the Department. If the delay was condoned, the petitioner is eligible to write the examination for the post of Assistant Commissioner. Since the Rules prescribed minimum six years of services in the post of Inspector/superintendent/Manager/Head clerk to compete, the petitioners have also chosen to challenge the special rules. 8. The contention raised by the petitioners that the Rule is invalid, as it prescribes a minimum service in the post to compete for selection is violative of Articles 14 and 16 of the Constitution. The second contention that since only few days were required for their completing six years, necessary direction must be given to relax the qualification so as to enable the petitioners to write the examination. Ever since the Special Rules were introduced for the post of Assistant Commissioner in the HR & CE Department, it has become subject matter of dispute before the State Administrative Tribunal as well as before this Court. Litigations were brought in both for alteration of the ratio between various feeder categories by successive amendments. 9. A Division Bench of this Court in W.P.No.36522 of 2005 and batch cases in N.Subramanian and Others v. The State of Tamil Nadu and others by a judgment dated 13.02.2009 rejected the challenge made to the amendment to the Special Rules made in G.O.Ms.No.61 Commercial Taxes and Religious Endowments Department dated 02.03.1994. This Court in paragraphs 23 and 24 held as follows: "23.Ultimately, the grievances of the petitioners are that the change that has been effected by the State affects their chance of promotion. Unless such rule offends Articles 14 and 16, it cannot be impugned in a writ petition under Article 226 of the Constitution. A reference may be made to the decision of the Supreme Court in Sheshrao Jangluji Bagde v. Bhaiyaa, S/o.Govindrao Karale and others reported in 1991 Supp (1) SCC 367 wherein similar proposition has been laid by the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 24. In the present case, there is no obligation for the State to go by the Tribunal's advice, and there was an independent application of mind by the State. Reasons are also supplied in the counter affidavit for effecting the present impugned amendment the status quo ante. Merely because the Government has accepted the option given by the Tribunal it cannot be challenged on the ground that since the Tribunal's decision was illegal and therefore the consequential decision of the State must also be invalid. In as much as the respondent State has made an amendment to the statutory rule under Article 309, the same cannot be challenged on the lines pleaded by the petitioners. Though the State is not required to supplement reasons for framing the rules in the present case, the reasons adduced by the respondent State in the form of a counter cannot be said to be arbitrary or reasonable. " 10. Subsequently, in W.P.No.28739/2007 and other related cases in S.S.Seethavasan and others v. Government of Tamil Nadu and others dated 01.12.2009, this Court once again went into the issue of judicial review available in the matter of amendment to the service rules. In that judgment, the earlier judgment of the Division Bench judgment was also referred to and in paragraphs 22 and 23, it was held as follows: "22.It must also be noted that a Division Bench of this Court presided by P.K.Misra,J.(as he then was)( dealt with the question of amendment made by the HR & CE Department in respect of fixing the quota for filling up of the posts of Assistant Commissioner vide G.O.Ms.No.341, dated 10.11.2004. It fixed a quota of 40:60 for the direct recruitment and recruitment by transfer. For this purpose all the substantive and temporary vacancies were also taken into account. The Division Bench in dealing with a case in W.P.No.36522 of 2005 relating to N.Subramanian and others Vs. State of Tamil Nadu and others and batch cases, by a common judgment, dated 13.02.2009 rejected the contentions and upheld the power of the State to amend the relevant service rule under Article 309 of the Constitution. 23.In this context, it is necessary to refer to the judgment of the Supreme Court in Mallikarjuna Rao v. State of A.P., reported in (1990) 2 SCC 707. The following passage found in paragraph 12 is relevant and it may be usefully reproduced below:- "Para 12...The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive..." https://hcservices.ecourts.gov.in/hcservices/ 11. Therefore, the present contention of the petitioners that the exclusion of Inspectors who are having less than 6 years from competing as per the amended Rules was arbitrary also cannot be accepted. In deciding the issue, it is for the State Government to provide the necessary feeder categories. Merely because a particular candidate is not having requisite qualification, he cannot rush to this Court to challenge the prescription of such a requirement. 12. Admittedly, both the petitioners do not have the qualification prescribed under the relevant special rules and the subsequent notification. The fact one of them is short by few weeks cannot be a ground for this Court to direct any relaxation in her favour. On the contrary, the State Government had its own reasons in not prescribing minimum number of years of service for the Executive Officers working in the department. They certainly belong to different category and the petitioners belonged to some other category. It is not as if the post held by the petitioners were excluded altogether from being considered for the promotion to the higher post. It is the petitioners who are ineligble to apply because of the minimum service required under the rules. That cannot give a cause of action to challenge the service rules framed under Article 309 of the Constitution. Though the learned counsel for the petitioners relied upon some other judgments relating to different service, they have no relevance to the case on hand and are not referred to here. 13. In the light of the above, both the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. svki To 1.The Secretary to Government, Tamil Development, Religious Endowments and Information Department, Chennai – 600 009. 2.The Commissioner, Hindu Religious and Charitable Endowment, Administration Department, Chennai – 34. https://hcservices.ecourts.gov.in/hcservices/ 3.The Secretary, Tamilnadu Public Service Commission, Chepauk, Chennai – 600 005. + 1 CC TO Mr.C.Prakasam, Advocate SR 7685 (WP 1438/2010) + 1 cc to Mr.S.Ilamvaludhi, Advocate SR 7276 (WP 840/2010) + 2 ccs to Mr.T.Chandrasekaran, Spl. Govt., Pleader for HR & CE SR 7166 and 7167 (WP 1438/10 and WP 840/2010) W.P.No.840 and 1438 of 2010 TRM (CO) RH (3.3.10) https://hcservices.ecourts.gov.in/hcservices/