1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).Nos.9642 & 9643 of 2011 And M.P.(MD).Nos. 1, 1, 2, 2 3 & 3 of 2011 S.Muthusamy ... Petitioner in W.P.No. 9642/2011 A.Palaniappan ... Petitioner in W.P.No. 9643/2011 -Vs- 1. The Principal Secretary to Government Revenue Department Chief Secretariat Chennai - 600 009 2. The Thasildar Tiruppathur Taluk Sivagangai District ... Respondents in both W.Ps. PRAYER IN BOTH W.Ps.: Petitions filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus calling for the records of the first respondent relating to letter (MS) No. 631 Revenue Department dated 07.11.2008 and quash the portion in paragraph 3 (II) alone which is in contradiction to the Service Rules and consequently direct the second respondent to consider the case of the petitioners for appointment as Village Assistants if they are otherwise qualified within a specified time. For Petitioners in both W.Ps. : Mr.S.Visvalingam For Respondents in both W.Ps. : Mr.B.Pugalenthi Special Government Pleader C O M M O N O R D E R In both the Writ Petitions, the petitioners have sought for a Writ of Certiorarified Mandamus to quash paragraph 3(II) in the Government letter (MS) No. 631 Revenue Department dated 07.11.2008, which is contrary to the Service Rules applicable to the post of Village Assistants. Consequently, the petitioners have sought for a direction to the Thasildar, Tiruppathur Taluk, Sivagangai District, to consider the case of the petitioners for appointment as Village Assistants, if they are otherwise qualified. 2. Assailing the validity of the Government Letter, Mr.S.Visvalingam, learned counsel for the petitioner submitted that as per Rule 6 of the Tamil Nadu Village Assistant Special Service Rules, framed on 17.06.1998, the educational qualification prescribed for the post of Village Assistants is as follows: https://hcservices.ecourts.gov.in/hcservices/ 2 "No person shall be eligible for appointment to the post unless he has passed fifth standard in a recognized school, namely, a school maintained by or opened with the sanction of the Government of Tamil Nadu or to which recognition has been accorded by the Director of School Education under the Tamil Nadu Educational Rules with sufficient knowledge of read and write Tamil". 3. He further submitted that the petitioners have passed plus two examination. When the petitioners were not selected for appointment to the post of Village Assistants, they were informed that both of them are not eligible for appointment as Village Assistants, for the reason that a specific qualification has been fixed by the Special Commissioner and Commissioner for Revenue Administration, Chennai, as per the impugned Government Letter, that only candidates with tenth standard fail would be considered as eligible, for appointment to the post of Village Assistants and more qualified persons are not eligible. As the petitioners have passed plus two examination, they are not eligible to be considered. Learned counsel for the petitioner submitted that the Government Letter, dated 07.11.2008, issued by the first respondent, is contrary to the Service Rules framed by the Government under Article 309 of the Constitution of India and it cannot over ride the statutory rules and therefore, fixing the above qualification, ie., only upto X Std failed for the post of Village Assistants, is in violation of Article 14 of the Constitution of India. He further submitted that without an amendment to the Service Rules, the Principal Secretary to Government, Revenue Department, Chief Secretariat, Chennai, has no authority to suo moto prescribe the educational qualification, for any post, including the post of Village Assistant. 4. When the Writ Petitions came up for hearing, Mr.B.Pugalenthi, learned Special Government Pleader, who took notice on behalf of the respondents submitted that the Government have taken a policy decision in the above matter, fixing the educational qualification, for the post of Village Assistants. In view of the above submission, he was directed to obtain the original files pertaining to the Government Letter (MS) No. 631 Revenue Department dated 07.11.2008 and also to file a counter affidavit with necessary details, in support of his contention that a policy decision has been taken by the Government. The matter was listed on few occasions. No counter affidavit has been filed to support his submission. However, the learned Special Government Pleader submitted that for the post of Village Administrative Officer, SSLC is the prescribed qualification. On the basis of files, he further submitted that the if higher qualified persons, are to be considered to the post of Village Assistants, then in future, there is likelihood of complaints and legal problems regarding preference to be given for promotion, on the basis of educational qualifications and that there is also a likelihood of insubordination, if higher qualified persons are to be considered to the post of Village Assistants, which is a lower post. Therefore, when clarifications were sought for by the Special Commissioner and Commissioner for Revenue Administration, Chennai, in the Commissionrate letter, dated 29.11.2007, considering various aspects, such as, the number of candidates to be obtained from the Employment exchange, the method to be followed, in filling up of the post of Village Assistants, if no qualified candidate was https://hcservices.ecourts.gov.in/hcservices/ 3 available in the Employment exchange and other processes to be followed in the matter of recruitment of Village Assistants, the Secretary to the Government has issued clarifications in Letter (MS) No. 631 Revenue Department dated 07.11.2008. Learned Special Government Pleader further submitted that the Principal Secretary to Government, has issued instructions, in the matter of filling up of the post of Village Assistants. For the abovesaid reasons, he prayed to sustain the impugned letter. Heard the learned counsel for the parties and perused the materials available on record. 5. As per Rule 6 of the Tamil Nadu Village Assistant Special Service Rules, framed on 17.06.1998, the educational qualification prescribed, for the post of Village Assistant is as follows: "No person shall be eligible for appointment to the post unless he has passed fifth standard in a recognized school, namely, a school maintained by or opened with the sanction of the Government of Tamil Nadu or to which recognition has been accorded by the Director of School Education under the Tamil Nadu Educational Rules with sufficient knowledge of read and write Tamil". 6. Possession of higher educational qualification cannot be a ground, for not considering the case of applicants, for appointment to the post of Village Assistant. Nodoubt, the appointing authority has every power to consider what should be the suitable qualification, for the post. Nevertheless, he cannot, suo moto prescribe the educational qualification, contrary to the qualifications prescribed in the statutory rules. The contention that if higher qualified persons are to be appointed as Village Assistants etc., then there would be inequality, likelihood of legal and other problems, in the matter of seniority, insubordination etc., cannot be valid grounds to alter the educational qualifications. To illustrate to become an I.A.S. or I.P.S., Officer, it is enough, the aspirant possesses a Basic Degree, and for appointment to the post of Lecturer in a Government college, the aspirant has to possess a Master's Degree, M.Phil, besides other qualifications prescribed by the UGC. Merely because a higher qualified person applies for a post, it cannot be presumed that there would be some problems in future, in the matter of promotion, discipline, etc. Such a presumption is wholly misconceived and cannot be accepted as a valid reason for changing or fixing the educational qualification for the post of Village Assistant. There are provisions in the rules as to how and when a Village Assistant can be considered for promotion and if there is any insubordination, provisions of the discipline and appeal and conduct rules can be invoked. Power to amend a rule under Article 309 of the Constitution of India is legislative in character and by issuing administrative instructions in the form of clarifications, the educational qualifications fixed under the statutory rules cannot be altered. Needless to say that an administrative instructions cannot over ride any statutory rules. Useful reference cane be made to the few decisions in L.K.Muthiah Pillai and others Vs. The Panchayat Union Commissioner and others reported in 1972 MLJ (2) 110, wherein it has been held that:- https://hcservices.ecourts.gov.in/hcservices/ 4 "Once a service is governed by rules framed under the proviso to Article 309 of the Constitution, then no executive instructions could supersede, or over- ride such a rule relating to such a class of service and any such rule or instruction given to the contrary would be ineffective in the eye of law". 7. In Dr.Rajinder Singh Vs. State of Punjab and Others reported in (2001) 5 SCC 482, wherein the Hon'ble Supreme Court has held as follows:- "8. As Respondent 3 was not eligible for consideration to the post of Deputy Director, Health Services, the Departmental Promotion Committee committed a mistake in recommending him. Consequent promotion of respondent 3 on the basis of recommendation of the Departmental Promotion Committee being contrary to law is liable to be set aside." 8. In State of Haryana v. Shamsher Jang Bahadhur reported in 1972 (2) SCC 188, the Supreme Court, while dealing with the promotion of the Government servant, held that apart from the rules framed under the proviso to Article 309 of the Constitution of India, any addition by Administrative Instructions, imposing more requirements, cannot be valid in law. At Paragraph 7, held as follows: "7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Article 309. The High Court and the courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Shama v. State of Rajasthan that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as relate to the clerks in the Secretariat amend or they alter the conditions of service prescribed by the rules framed under Article 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affects the promotion of concerned officials and therefore they relate to their conditions of service. The Government is not competent to alter the rules framed under Article 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules." https://hcservices.ecourts.gov.in/hcservices/ 5 9. The abovesaid position has been re-affirmed by the Supreme Court in Dr.Rajinder Singh v. State of Punjab and others reported in 2001 (5) SCC 482. Paragraph 7 of the said judgment is extracted hereunder: "7. The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution." 10. In Paluru Ramkrishnaiah and others v. Union of India reported in 1989 (2) SCC 541, at Paragraph 11, the Supreme Court, held as follows: "11. It is thus apparent that an executive instruction could make a provision only with regard to a matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule. Notwithstanding the issue of instruction dated 6-11-1962 therefore, the procedure for making promotion as laid down in Rule 8 of the Rules had to be followed. Since Rule 8 in the instant case prescribed a procedure for making promotion the said procedure could not be abrogated by the executive instruction dated 6-11-1962. The only effect of the Circular dated 6-11-1962 was that Supervisors ‘A’ on completion of two years' satisfactory service could be promoted by following the procedure contemplated by Rule 8. This Circular had indeed the effect of accelerating the chance of promotion. The right to promotion on the other hand was to be governed by the Rules. This right was conferred by Rule 7 which inter alia provides that subject to the exception contained in Rule 11, vacancies in the posts enumerated therein will normally be filled by promotion of employees in the grade immediately below in accordance with the provisions of Rule 8. The requirements of Rule 8 in brief have already been indicated above. Rule 12 provides that no appointment to the posts to which these Rules apply shall be made otherwise than, as specified in these Rules. This right of promotion as provided by the Rules was neither affected nor could be affected by the Circular. The order dated 28-12-1965 which provided a minimum period of service of three years in the lower grade for promotion to the next higher grade and the Circular dated 20-1-1966 which provided that promotions in future will be effected in accordance with the normal rules and not merely on completion of two years' satisfactory continuous service had the effect of doing away with the accelerated chance of promotion and relegating Supervisors ‘A’ in the matter of promotion to the normal position as it obtained under the Rules." 11. In Collector of Thanjavur v. S.Rajagopal reported in 2002 SLR 552, the Court held that circular issued by the State Government could not have any statutory force. https://hcservices.ecourts.gov.in/hcservices/ 6 12. In State of Orissa v. Prasana Kumar Sahoo reported in 2007 (15) SCC 129, the Apex Court held that exercise of powers by the State Government under Article 162 of the Constitution of India is subservient to the recruitment rules framed under the proviso to Article 309 of the Constitution of India. At Paragraphs 11 and 12, it held as follows: "11. It is now well settled that a State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Articles 14 and 16 of the Constitution of India. 12. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions." 13. Considering the abovesaid judgments, a Full Bench of this Court in The Deputy Inspector General of Police, Thanjavur Range v. V.Rani reported in 2011 (3) CTC 129, dealing with validity of certain administrative instructions and Government Orders issued by the Government in the matter of consideration for preparation of the panel for promotion, at Paragraph 17, held that, "Even though the said Government Order is stated to have been issued on the order of the Governor, it remains that the same has been issued on the order of the Chief Secretary to Government and it does not frame any rule under the Proviso to Article 309 of the Constitution of India. We are of the view that the Government Order utmost can be correlated to an administrative instruction given by the Government under Article 162 of the Constitution of India. The law is well settled that such administration instruction cannot in any manner substitute the statutory Rules." 14. Perusal of the files shows that clarifications have been sought for, as to whether the list of candidates possessing higher qualification of more than 7th standard and below 10th standard fail, can be called for, in the case of non availability of sufficient number of candidates in the ratio of 1:5. Similarly, the District Collector, Vellore, had raised an apprehension that if 8th standard pass or higher qualified candidates are available, and if they are to be appointed as Village Assistants, in future, if they make a request promotion, it would lead to legal problems. 15. While considering the abovesaid queries, the Principal Secretary to the Government, Revenue Department, Chief Secretariat, Chennai, has issued orders, in the form of a Government Letter prescribing the educational qualification. As stated supra, prescribing educational qualification for any post under the State service, is done in exercise of powers under Article 309 of the Constitution of India, and that the same cannot be changed by any administrative instructions in the form of clarifications, by issuing a Government Letter. Higher qualified persons cannot be prevented from applying for lower posts as it would amount to violation of Article 14 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 7 16. The issue as to whether the higher qualified person can be denied appointment, merely on the ground of his qualification, has already come up for consideration before this Court in B.Ramamoorthy v. Chief Engineer, Highways and Rural Works, Chennai reported in 2007 (1) MLJ 370. In the said writ petition, for the post of Gang Mazdoor, the petitioner therein, who was selected and appointed, was not permitted to join duty. Though he made a representation, it was unanswered. Hence, he preferred an Original Application before the Tamil nadu Administrative Tribunal, Chennai, which issued a direction to the respondent therein to permit the petitioner to join duty. When he requested the third respondent therein to permit him to join duty, by the impugned order, the very appointment was cancelled on the ground that he was over qualified. Ad-hoc rules issued in G.O.Ms.No.371, Highways Department, dated 19.08.1997, states that the candidate must pass 5th Standard with good physical fitness and their names should be sponsored by the employment exchange. Over qualification was the only ground for denying the appointment. Placing reliance on a decisions of the Apex Court in Y.Srinivasa Rao v. J.Veeriah reported in AIR 1993 SC 929, Munna Roy v. Union of India reported in 2000 (9) SCC 283, Mohd. Riazul Usman Gani v. District and Sessions Judge, Nagpur reported in AIR 2000 SC 919, by observing that, "it is the common knowledge that for the entry level posts of Office Assistants in various Government Offices/Conductors in Transport Corporations, even post-graduates are submitting applications and are being selected due to difficulty in getting employment as per the qualification.", Mr.Justice N.Paul Vasanthakumar, held that the respondents, without taking notice of the ground reality has passed the impugned order therein, which was highly irrational, arbitrary and illegal. While setting aside the impugned order therein, the learned Judge has ordered that the petitioner therein was entitled to be given all benefits, as it was given to the batch-mates. It is worthwhile to extract Paragraphs 16 to 19, where the judgments stated supra have been discussed, "16. In the decision reported in the case of Y.Srinivasa Rao, v. J.Veeriah and others [AIR 1993 SC 929 : (1992) 3 SC 63], issue arose was as to whether a higher qualified person can be appointed in the post of fare price shop dealer, the qualification prescribed for filling up the said post was upto 10 Standard. However, the person with graduate qualification was selected, which was subsequently cancelled, which was set aside by the Hon'ble Supreme Court. The Hon'ble Supreme Court has held as follows: "6. The decision to prefer an uneducated person over an educated person amounts to allowing premium on ignorance, incompetence and consequently inefficiency. The only fault of the appellant is to have pursued his studies beyond 10th Class of his school. If he had discontinued his career as a student even earlier, say after passing 7th or 8th Class, he would have been running the shop today. This clearly amounts to gross arbitrariness and, therefore, illegal discrimination. Pursuing this line, the State will have to be gone in search of a more inefficient person and we do not know where this process would end. If we assume that since a better qualified person has got a better chance to succeed in life, an intelligent applicant who can run the shop efficiently should be rejected and a dim witted fellow should be selected. This is an absurd situation." 17. Again, the Hon'ble Supreme Court in the decision reported in the case of Mohd. Riazul Usman Gani v. District and Sessions Judge, Nagpur, AIR 2000 SC 919 : (2000) 2 SCC 606, https://hcservices.ecourts.gov.in/hcservices/ 8 considered a similar issue wherein, the appointment of Peon in Subordinate Judicial Services of the State of Maharashtra, was in issue where the qualification prescribed was upto 7th Standard. The candidate applied with S.S.L.C. qualification, was not found ineligible for the post, the said stand was accepted by the Hon'ble Supreme Court and it is held as follows: "21. A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSLC examination could also not be considered. We are saying this on the facts of the case, in hand and should not be understood as laying down a rule of universal application." 18. The contention that if a higher qualified person is appointed he will not perform his duties attached to the post is also answered by the Hon'ble Supreme Court and it is held as follows: "20. If an employee does not perform the duties attached to the post, disciplinary proceedings can certainly be taken against him. An employer cannot throw up his hands in dispair and devise a method denying appointment to a person who otherwise meets the requisite qualifications on the ground that if appointed, he would not perform his duties (sic as) qualification prescribed is minimum. Higher qualification cannot become a disadvantage to the candidate." 19. In a decision reported in the case of Munna Roy v. Union of India (2000) 9 SCC 283, the Hon'ble Supreme Court has held as follows: "We really fail to understand that if a candidate possesses a qualification higher than the required qualification and the advertisement itself had prescribed the same, then how can the Authority come to a conclusion that selection has been made by adopting a dubious method. In the aforesaid premises, we have no hesitation to come to a conclusion that the reasons which weighed with the authorities to quash the selection are not germane and must be held to be arbitrary and irrational. We, therefore, set aside the impugned order of the High Court as well as the order of the authorities concerned quashing the selection panel and direct that the order of the Tribunal be implemented. 17. In such view of the matter, the impugned circular is violative of Article 14 of the Constitution of India and it is set aside. Therefore, the Writ Petition is allowed. The respondents are directed to consider the candidates of the petitioners, and if found suitable, pass appropriate orders. Consequently, connected Miscellaneous Petitions are closed.