IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 18.02.2008 Coram The Honourable Mr. Justice P.K. MISRA and The Honourable Mr. Justice K. CHANDRU W.P. No.3953 of 2002 and W.P.M.P. No.5531 of 2002 1. K. Raghavendran 2. K.S. Shanmugasundaram 3. N. Ramachandran 4. C. Mallika 5. M. Bagyalakshmi 6. K. Rangasamy 7. S. Chandra ... Petitioners ..vs.. 1. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Higher Education, Fort St. George, Chennai – 9. 2. The Director of Collegiate Education, E.V.K. Sampath Maligai, Chennai – 6. 3. N. Ramachandran 4. A. Kathirvelu 5. A.K. Duraisamy 6. A.P. Duraisingh 7. P. Vilvanathan 8. P. Manivasagam 9. D. Rajasekaran 10. A. Vellaichamy 11. P. Thiruvengadam 12. J. Baskaran 13. P. Kasinathan 14. J. Daisy Jenet Xavier ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus, to call for the records relating to the order of the Tamil Nadu Administrative Tribunal in O.A. No.1776 of 2001 dated 21.12.2001 and quash the same and consequently direct the respondents 1 and 2 to make necessary amendments to the special rules for the Tamil Nadu Collegiate Educational Service so as to include the post of Bursars in the special rules with retrospective effect from 31.1.83 from the date of issuance of G.O.Ms.No.202 Education, Science and Technology Department without providing reservation and to make appointments strictly according to seniority and set aside the order of promotion to the respondents 3 to 14 to the post of Bursars since made after 16.11.1997 applying the rule of reservation. For Petitioner : M/s. La Law For Respondents: Mr. S. Rajasekar, Addl. Govt. Pleader for R1 and R2 Mr. D. Rajagopal for R3 Mr. S.M. Subramanian for R5 to R8, R11, R13 & R14 O R D E R (Order of the Court was made by K. CHANDRU, J.) This writ petition is filed by the petitioners, who are working as Superintendents under the Directorate of Collegiate Education, against the order dt.21.12.2001 passed by the Tamil Nadu Administrative Tribunal in O.A. No.1776 of 2001. 2. Before the Tribunal, these petitioners sought for a direction to the Officials respondents to make necessary amendments in the Special Rules for the Tamil Nadu Collegiate Education Services, so as to include the post of Bursar in the Special Rules with retrospective effect from 31.3.1983 i.e. the date on which the State Government issued G.O.Ms.No.202, Education, Science and Technology department dated 31.3.1983 and without providing rule of reservation to the said post. 3. In the said G.O., the Government had notified various feeder categories, who were eligible to get appointment to the post of Bursar, which included posts coming https://hcservices.ecourts.gov.in/hcservices/ from Treasuries and Accounts department, Secretariat department, Local Fund Accounts department, Collegiate Education department, School Education department. The Government also specified the number of posts, which are available to the various departments. 4. However, the employees like the petitioners, who are aggrieved about the feeder posts being held by employees of other departments, demanded that the entire vacancies for the post of Bursars to be exclusively filled up by Superintendents, working under the Directorate of Collegiate Education. In G.O.Ms.No.202 Education, Science and Technology (GI) department dated 31.3.1983, the Government appointed 14 persons (including respondents 3 to 14) on a temporary basis under Rule 10(a)(i) of the General Rules as Bursars. 5. The Tribunal, by its order dated 21.12.2001, held that G.O.Ms.No.202 cannot override the specific provisions contained in the ad hoc Rules and also held that the Rules do not prescribe the post to be filled up by direct recruitment and the only method of recruitment is by transfer. The Tribunal also held that since the appointment is only through recruitment by transfer and as it is not a case of promotion, no direction can be given to the State Government to make any statutory amendment to the existing Rules. 6. We are of the view that insofar as the findings of the Tribunal that no direction can be given to the State Government to amend the Special Rules/ad hoc Rules in a particular manner is concerned, we hold that the said finding is in consonance with the parameters of judicial review. The Supreme Court, vide its decision in MALLIKARJUNA RAO v. STATE OF ANDHRA PRADESH reported in 1990(2) SCC 707, has held that the Courts cannot usurp the functions assigned to the executives under the Constitution and cannot indirectly require the executive to exercise its rule making power in any manner. 7. The other finding that since the posts of Bursar can be filled up by appointment by transfer as per the Rules and that as it is a case of direct recruitment, rules of reservation 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 of pay of Rs.8000-275-13500 whereas the post of Superintendent carry the scale of pay of only Rs.5700-175-9200. The nature of duties, responsibilities and allocation of work to Bursars have been specified by the Government vide G.O.Ms.No.1625 Education Department dated 16.9.1974. A copy of the said G.O. has been circulated by the learned Additional Government Pleader. 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 also higher responsibilities than that of Superintendent and any appointment by transfer posting to that post cannot be labelled as a direct recruitment so as to bring in the rule of reservation applicable to direct recruitment. 9. In such circumstances, a Division Bench of this Court vide decision reported in the case of REGISTRATION DEPARTMENT, S.C./S.T. AND M.B.C. EMPLOYEES' GENERAL WELFARE SANGAM v. S. CHANDRASEKAR (2005(2) CTC 36) has held that by labeling a particular method of recruitment as a transfer from other service, the Government cannot camouflage it as direct recruitment so as to bring in the rule of reservation. If such posts are held to be promotional posts, then in the absence of a valid rule, no reservations can be made to such posts. 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 along members of Ministerial Service have to be appointed as State Subordinate Service and they were appointed by transfer of service. We have already demonstrated that the post of Sub-Registrar Grade II/ACTO/Deputy Tahsildar are higher service with higher scale of pay as well as with higher rank. We have also demonstrated the scale of pay of Assistant in the Registration Department as well as his scale of pay after appointment by transfer of service as Sub- Registrar Grade II. As rightly observed by the Tribunal, even though it is called as appointment by transfer of service, it actually amounts to promotion in rank, status and also higher emoluments. We concur with the conclusion of the Tribunal that in the light of the factual details and materials, the transfer of service whatever name it is called, it actually amounts to promotion." 10. If the said test is applied, certainly the post of Bursar, which carries higher responsibility and higher pay scale, can only be considered as a promotional post. Merely because the method of recruitment is by transfer from other service, it cannot be labeled as direct recruitment. Consequently, no Rules of reservation can be introduced. In the light of the same and in so far as Tribunal's finding that rules of reservation can be provided as found in paragraph 9 of the Tribunal's order it is clearly not supported by any constitutional provisions. https://hcservices.ecourts.gov.in/hcservices/ 11. Learned Special Government Pleader's contention that even if it is a case of promotion, the State can provide reservation as it is within the power of the State Government as found by the Tribunal is also not acceptable. In fact, the above quoted decision of the Division Bench, in the case of registration department (cited supra), an S.L.P. by the State was also dismissed by the Supreme Court. The Division Bench had categorically held that even though it is open to the State to provide for reservation in promotion to various categories in terms of the enabling provision provided under Article 16(4-A) in so far as no such rules of reservation have been framed by the State, no support can be drawn from that article. 12. In the present case, such is not the stand of the State Government that after the introduction of Article 16 (4-A) into the Constitution, rules were provided for reservation in promotion in the State service. The present case admittedly arose before the amendment to the Constitution (i.e. from 17.6.1995) and in the absence of clear cut Government order, the findings rendered by the Tribunal cannot be accepted and to the extent that the petitioners are entitled to succeed in this writ petition. 13. Therefore, the State Government cannot provide for reservation in the matter of filling up the post of Bursar from various feeder category by way of transfer. However, since such practice had been followed over the years, this Court is not inclined to reopen the promotions already made on the basis of the existing practice. Further pursuant to the order dt.31.3.83 the respondents 3 to 14 have been appointed. Their orders were challenged only in the year 2001 and those respondents have continued in service and most of them would have also retired by now. However, the respondent-State is directed not to follow the rule of reservation in the matter of filling up the post of Bursar until it provides for rule of reservation in promotion by having recourse to the enabling provision found under Article 16(4A) of the Constitution. 14. The other prayer of the petitioners before the Tribunal seeking for amendment to the special Rule, such prayer is clearly impermissible as this Court, in exercise of power, under Article 226 of the Constitution of India, cannot grant any such direction as an amendment to rule framed under Article 309 is held to be legislative in character and it has been correctly disallowed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 15. Therefore, in the light of the above, the writ petition is allowed to the extent indicated above. Consequently, the connected M.P. is closed. No costs. Ssa. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Secretary to Government of Tamil nadu, Department of Higher Education, Fort St. George, Chennai – 9. 2. The Director of Collegiate Education, 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.8633 W.P No.3953 of 2002 and connected W.P.M.P. IV(CO) SR/3.3.2008 https://hcservices.ecourts.gov.in/hcservices/