IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11-6-2007 CORAM: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.Nos.36731 and 43626 of 2006 and M.P.Nos.1 and 2 of 2006 and 5 of 2007 in W.P.No.36731 of 2006 and M.P.Nos.2 and 3 of 2006 in W.P.No.43626 of 2006 M.Gnanasekar .. Petitioner in W.P.No.36731 of 2006 1. M.Ramesh 2. S.Valarmala 3. V.Sivapatham 4. S.Sankar .. Petitioners in W.P.No.43626 of 2006 vs. 1. State of Tamil Nadu, Represented by Chief Secretary to Government, Government of Tamil Nadu, Fort St.George, Chennai-600 009. 2. The Secretary, Tamil Nadu Public Service Commission, Chennai-600 002. 3. Tamil Nadu Government Temporary Junior Asst./Assistants Union (Tamil Nadu Tarkaliga Elanilai Udaviyalar Matrum Udaviyalar Sangam), rep. by its State President, 62, Big Street, Triplicane, Chennai-600 005. 4. Tamil Nadu Government Employees Union, Rep. by its President K.Balasubramanian, 62, Big Street, Triplicane, Chennai-5. 5. Tamil Nadu Government Employees' Association, (Regd. No.234/84) Rep. by its General Secretary, No.46, Theradi Theru, Triplicane, Chennai-600 005. 6. A.Dhanakodi 7. K.Rajaraman 8. R.Kannathasan https://hcservices.ecourts.gov.in/hcservices/ 9. D.Naikeran 10. S.V.G.Senthilvel 11. K.Kumar 12. T.N.Junior Asst. Organisation rep. by its District President T.Elamparuthi, S/o M.Thirupathi, 22, Vanjinathan Nagar, Thanthonimalai, Karur-5. (Respondents 3 and 4 impleaded as per Order dated 6.6.2007 in M.P.Nos.1 of 2007 and 3 of 2006 in W.P.No.36731 of 2006) (Respondents 5 to 11 impleaded as per Order dated 7.6.2007 in M.P.Nos.2 and 3 of 2007 in W.P.No.36731 of 2006) (Respondent-12 impleaded as per Order of Court dated 9.6.2007 in M.P.No.4 of 2007 in W.P.No.36731 of 2006) .. Respondents in W.P.No.36731 of 2006 1. The Government of Tamilnadu, represented by its Chief Secretary, Public and Administrative Department, Fort St.George, Chennai-600 009. 2. Tamil Nadu Government Temporary Junior Asst./Assistants Union (Tamil Nadu Tarkaliga Elanilai Udaviyalar Matrum Udaviyalar Sangam), rep. by its State President, 62, Big Street, Triplicane, Chennai-600 005. 3. Tamil Nadu Government Employees Union, Rep. by its President K.Balasubramanian, 62, Big Street, Triplicane, Chennai-5. 4. Tamil Nadu Government Employees' Association, (Regd. No.234/84) Rep. by its General Secretary, No.46, Theradi Theru, Triplicane, Chennai-600 005. 5. A.Dhanakodi 6. K.Rajaraman 7. R.Kannathasan 8. D.Naikeran 9. S.V.G.Senthilvel 10. K.Kumar https://hcservices.ecourts.gov.in/hcservices/ (Respondents 2 to 10 impleaded as per Order dated 8.6.2007 in W.P.No.43626 of 2006) (same as in M.P.Nos.1 of 2007 and 3 of 2006 in W.P.No.36731 of 2006 and M.P.Nos.2 and 3 of 2007 in W.P.No.36731 of 2006) .. Respondents in W.P.No.43626 of 2006 Writ Petition No.36731 of 2006 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, after calling for the concerned records relating to the G.O.Ms.No.155, Personnel and Administrative Reforms (P) Department, dated 19.9.2006 passed by the first respondent and quash the same. Writ Petition No.43626 of 2006 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified mandamus, calling for the records on the file of the respondent pertaining to the impugned G.O.Ms.No.155, Personnel and Administrative Reforms Department, dated 19.9.2006 and quash the same and consequently direct the respondent to take immediate action or cause initiation of action to fill up all the vacancies accrued in all the posts under the State or other authorities including the vacancies occupied by the temporary appointees, appointed de-hors the relevant statutory rules, by regular appointees immediately either through the TNPSC or through other recruitment agencies by conducting open competition giving equal opportunities to all the qualified citizens. For petitioner in W.P.No.36731 of 2006: Mr.Gnanasekar-Party-in-person For petitioner in W.P.No.43626 of 2006: Mr.N.Subramaniyan For respondents 1 and 2 in W.P.No.36731 of 2006 and respondent-1 in W.P.No.43626 of 2006: Mr.M.Dhandapani, Spl.G.P. For respondent-3 in W.P.No.36731 of 2006 and respondent-2 in W.P.No.43626 of 2006: Mr.N.G.R.Prasad for M/s.Row & Reddy For respondent-4 in W.P.No.36731 of 2006 and respondent-3 in W.P.No.43626 of 2006: Mr.Ajay Ghose for Mr.Hariparanthaman For respondent-5 in W.P.No.36731 of 2006 and respondent-4 in W.P.No.43626 of 2006: Ms.Vaigai For respondents 6 to 11 in W.P.No.36731 of 2006 and respondents 5 to 10 in W.P.No.43626 of 2006: Mr.S.Ayyathurai https://hcservices.ecourts.gov.in/hcservices/ For respondent-12 in W.P.No.36731 of 2006: Mr.A.R.Thiruneelakandan ORDER F.M.IBRAHIM KALIFULLA,J. In both these Writ Petitions, the challenge is to G.O.Ms.No.155, Personnel and Administrative Reforms (P) Department, dated 19.9.2006, passed by the State of Tamil Nadu. By the impugned G.O., the State Government has decided to conduct a Special Competitive Examination in Group-IV standard through the Tamil Nadu Public Service Commission (hereinafter referred to as 'the TNPSC') so as to absorb temporary Assistants/Junior Assistants in Secretariat and various Departments in the Districts who are on contract basis in the Tamil Nadu Ministerial Service/Tamil Nadu Judicial Ministerial Service. In the light of the said decision, the State Government requested the TNPSC to conduct necessary Special Competitive Examination in Group-IV for those persons. 2. W.P.No.36731 of 2006 has been filed as a Public Interest Litigation (hereinafter referred to as 'the PIL') by an individual who is a member of the Bar, while W.P.No.43626 of 2006 has been filed by four unemployed graduates who while seeking for quashing of the impugned G.O., also seek for a consequential direction to the State Government to fill up all the vacancies accrued in all the posts under the State or other authorities including the vacancies occupied by the temporary appointees by regular appointment through the TNPSC or any other recruiting agency by conducting an open competition giving equal opportunities to all the qualified citizens. Though the said W.P.No.43626 of 2006 was filed by those four individuals independently, since the former case (W.P.No.36731 of 2006) was entertained as a PIL, W.P.No.43626 of 2006 was tagged on and posted together for disposal. 3. At the outset, we wish to state that the Writ Petition preferred by the petitioner in W.P.No.36731 of 2006 cannot be entertained, inasmuch as it is by now well settled that a PIL cannot be entertained in respect of service matters, as has been categorically held by the Supreme Court in the decisions reported in 1998 (7) SCC 273 (Dr.Duryodhan Sahu vs. Jitendra Kumar Mishra) and 2005 (1) SCC 590 (Dattaraj Nathuji Thaware vs. State of Maharashtra). The Supreme Court in the latter decision (2005 (1) SCC 590) has stated the legal position as under in paragraph 16: "16. .... Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, the Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilised for disposal of genuine cases. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998 (7) SCC 273 : 1998 SCC (L & S) 1802 : AIR 1999 SC 114) this Court held that https://hcservices.ecourts.gov.in/hcservices/ in service matters, PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. ...." Again in paragraph 20 in 2005 (1) SCC 590, the Supreme Court has expressed its displeasure in the members of the Bar in either aiding or abetting filing of the frivolous petitions carrying the attractive brand-name of "Public Interest Litigation". 4. In the light of the said categoric pronouncement of the Supreme Court, it will have to be held that W.P.No.36731 of 2006 cannot be entertained at all as a PIL challenging the impugned Government Order. Since the other Writ Petition in W.P.No.43626 of 2006 preferred by unemployed graduates challenging the very same G.O. was tagged along with W.P.No.36731 of 2006, we decided to examine the correctness of the impugned G.O. and heard the learned counsel appearing for the parties. 5. The brief facts which are required to be stated are that on 1.7.2003, the Government servants working in the Secretariat as well as in the District Administration went on a strike en-masse. The State Government therefore passed orders dismissing the striking employees. Closely followed by that, the Government issued G.O.Ms.No.84, Personnel and Administrative Reforms (Per.G) Department, dated 4.7.2003 and decided to recruit temporary Assistants to attend to the work in the Departments of the Secretariat. Similarly, by G.O.Ms.No.85, Personnel and Administrative Reforms (Per.G) Department, dated 4.7.2003, the Government decided to recruit temporary Junior Assistants in various Districts. In the said G.O.Ms.No.84, the Commissioner of Employment and Training, Chennai was asked to send a list of eligible candidates to fill up 1000 supernumerary posts and ensure that the candidates are selected and put in position by 7.7.2003 insofar as the State Secretariat was concerned. In the G.O.Ms.No.85, similar such direction was issued to give suitable instructions to all the District Employment Exchanges to send a list of eligible candidates possessing necessary qualification by creating 500 temporary supernumerary posts of Junior Assistants in each District in order to ensure that such candidates are employed on a temporary basis and put in position from 7.7.2003 onwards. 6. Subsequently, the issue relating to the dismissal of the striking employees came to be considered by the Supreme Court in Civil Appeal Nos.5556 of 2006, etc., dated 6.8.2003 (reported in 2003 (6) SCC 581 – T.K.Rangarajan vs. Govt. of T.N). In the said Civil Appeal, learned counsel appearing for the State after getting necessary instructions, stated before the Court that the State Government came forward to reinstate all the Government employees who were dismissed because they had gone on strike except 2,200 employees who had been arrested and the employees against whom F.I.R. had been lodged. Subsequently, all the Government services were reinstated in service. https://hcservices.ecourts.gov.in/hcservices/ 7. Thereafter, in G.O.Ms.No.425, Personnel and Administrative Reforms (G) Departament, dated 4.12.2003, 506 temporary Assistants appointed on contract basis pursuant to G.O.Ms.No.84, dated 4.7.2003, were transferred to work as Supervisors (Graduates) in retail outlets of TASMAC at Chennai. Thereafter, by G.O.Ms.No.263, Personnel and Administrative Reforms (G) Department, dated 21.6.2004, the State Government passed orders terminating all the Junior Assistants appointed on contract basis in the Districts with immediate effect. However, by subsequent G.O. in G.O.Ms.NO.290, Personnel and Administrative Reforms (G) Department, dated 23.6.2004, the earlier Government Order in G.O.Ms.No.263, dated 21.6.2004, was cancelled. 8. It is in the above said background, the present impugned G.O.Ms.No.155, dated 19.9.2006 came to be issued, wherein, the State Government has decided to conduct a Special Competitive Examination in Group IV Standard for those temporarily recruited Assistants in the Secretariat and Junior Assistants in the various Districts in supernumerary posts for the purpose of their absorption in service. Similarly, in G.O.Ms.No.163, Personnel and Administrative Reforms (P) Department, dated 22.9.2006, the temporary employees who were transferred to TASMAC were also permitted to appear for the Special Competitive Examination to be conducted by the TNPSC. It is stated that the total number of posts in Group 'C' as on date is 7,702, while the total number of temporary employees who came to be appointed pursuant to G.O.Ms.Nos.84 and 85, dated 4.7.2003, is 11,356. 9. The contentions raised on behalf of the petitioners are that the posts of Junior Assistant/Assistant are Group 'C' posts, which are governed by the Rules framed under Article 309 of the Constitution and the State Government cannot attempt to restrict the scope of selection to a few selected individuals, as that would be violative of Articles 14 and 16 of the Constitution. By referring to Rule 11(2) of the Tamil Nadu State and Subordinate Services Rules, it was contended that those temporary employees who came to be appointed under the said Rule, cannot be given any preferential treatment, inasmuch as the said Rule would act as a statutory bar. 10. It was also contended that since the selection of the temporary employees pursuant to G.O.Ms.Nos.84 and 85, dated 4.7.2003, came to be made within a short span of three or four days' time, there would not have been a proper selection and the chance was not thrown open to all the available eligible candidates while making such appointment. It was therefore contended that the present attempt to restrict the scope of selection from among those temporary employees alone would deprive all the valuable rights of the petitioners in W.P.No.43636 of 2006 and similar such eligible candidates who aspire for such service in the State. https://hcservices.ecourts.gov.in/hcservices/ 11. Heavy reliance was placed upon the Constitution Bench decision of the Supreme Court reported in 2006 (4) SCC 1 (Secy. State of Karnataka vs. Umadevi(3)) to contend that the Supreme Court has deprecated the practice of regularisation of illegal appointment to the State service. 12. It was also contended that by virtue of Article 320(3) of the Constitution, since it is within the realm of the State Public Service Commission as regards the matters relating to the services of the State, there is a Constitutional bar for the State Government to resort to such restricted recruitment. 13. By referring to Article 13(2) of the Constitution, it was contended that any law made by the State Government which either takes away or abridges the rights conferred under Part-III of the Constitution, should be held to be void to the extent of such contravention. It was also contended that while resorting to such restricted recruitment, the rule of reservation is also not followed. 14. As against the above submissions, Mr.N.G.R.Prasad, Ms.Vaigai, Mr.Ajay Ghose for Mr.Hariparanthaman, Mr.Thiruneelakandan and Mr.Ayyathurai, learned counsel appearing for the respective contesting respondents, namely the various Associations representing the temporary employees, contended that even as per the Supreme Court in Umadevi's case (2006 (4) SCC 1), what is deprecated is only regularisation of illegal appointment and that the said decision will have no application to the case on hand as the appointments were made in accordance with the Rules governing the services of the Tamil Nadu State and Subordinate employees. 15. Ms.Vaigai, learned counsel in her submissions stated that the controversy raised in these Writ Petitions would centre around the question as to whether the Government's action can be held to be in accordance with the Rules and whether such action can be held to be constitutionally valid. By referring to Rules 2(14), 2(15) and 2(18), 11 and 48 of the Tamil Nadu State and Subordinate Services Rules, it was contended that in the present case, the appointment of temporary employees at the initial stage was made in accordance with those Rules, that those Rules provide for resorting to a restricted selection to be made through the State Public Service Commission and that such action of the Government in treating the employees as a class by themselves for whom such restricted scope of selection, was permissible under law. Learned counsel therefore contended that when the initial appointment of the temporary employees was based on the assessment of factors that prevailed in an extraordinary situation which forced the State Government to resort to such appointment to ensure that the Government machinery function without any interruption, no fault can be found with the issuance of the impugned G.O.Ms.No.155, dated 19.9.2006 and G.O.Ms.No.163, dated 22.9.2006, for holding a Special Competitive Examination in order to absorb such of those temporary employees as Assistants/Junior Assistants in the regular service. https://hcservices.ecourts.gov.in/hcservices/ 16. Reliance was also placed on the proviso to Article 320(3) of the Constitution which empowered the State Government to deviate from the normal rule of consulting the Public Service Commission while resorting to such selection. Learned counsel also referred to the TNPSC Regulations, in particular, Regulation 16(b), which again enables the State Government to resort to any recruitment without consulting the State Service Commission. 17. Learned counsel also relied upon the decisions of the Supreme Court reported in 1982 (3) SCC 341 (I.J.Divakar vs. Govt. of A.P) and 1984 (4) SCC 251 (Prabodh Verma vs. State of U.P) and contended that in the light of the above referred to decisions of the Supreme Court which has recognised the power of the State Government to regularise the services of such employees who form a class by themselves, it would fall within the exceptional categories set out in the recent Constitution Bench decision of the Supreme Court reported in 2006 (4) SCC 1 (Umadevi's case). According to the learned counsel, the effect of law stated by the Supreme Court in paragraph 54 of Umadevi's case will not apply to the said earlier decisions of the Supreme Court reported in 1982 (3) SCC 341 and 1984 (4) SCC 251. Reliance was also placed upon the decision of the Supreme Court reported in 1997 (10) SCC 298 (Sandeep Kumar Sharma vs. State of Punjab). Learned counsel therefore contended that since the State Government has necessary powers for ordering a Special Competitive Examination for the temporary employees under the Rules, there is no scope to hold that there is any violation of Article 14 or Article 16 of the Constitution. 18. Mr.Ajay Ghose, learned counsel representing learned counsel Mr.Hariparanthaman, by relying upon paragraph 31 of the Umadevi's case (2006 (4) SCC 1), where the earlier decision of the Supreme Court reported in 1997 (2) SCC 1 (Ashwani Kumar vs. State of Bihar) has been referred to, contended that since the initial entry of the temporary employees did not suffer from any flaw in the procedural exercise, the subsequent regularisation by resorting to a Special Competitive Examination through the State Public Service Commission cannot be found fault with. Reliance was also placed upon the unreported order of a Division Bench of this Court in W.P.No.8490 of 1999, dated 8.2.2007. 19. Mr.Ayyathurai, learned counsel appearing for certain other contesting respondents, contended that there was no unfairness pointed out by the petitioners in order to countenance their challenge. Learned counsel referred to Rule 5 of the TNPSC Rules of Procedure and contended that the TNPSC itself has been empowered to adopt a special procedure in any particular case or class of cases to deviate from the normal rule. According to the learned counsel, the temporary employees formed a class by themselves and therefore, such a procedure which is now sought to be adopted by the State Government, is perfectly valid. https://hcservices.ecourts.gov.in/hcservices/ 20. Mr.Thiruneelakandan, learned counsel appearing for the other contesting respondent, contended that the temporary employees were all qualified persons, that the recruitment was based on the seniority maintained in the Employment Exchange, that since there was a ban on recruitment earlier, there were large number of vacancies at the point of time when the temporary employees were recruited and their long standing grievance for absorption which is now being effected by resorting to a Special Competitive Examination, that too, through the TNPSC, cannot be faulted. 21. Mr.M.Dhandapani, learned Special Government Pleader appearing on behalf of the State, submitted that the temporary employees were appointed by invoking Rule 11 of the Tamil Nadu State and Subordinate Services Rules, that they were not in the services of the State, that for them, the Special Rules providing for the method of recruitment will have no application and that in the light of Rule 48 of the Tamil Nadu State and Subordinate Services Rules, as well as proviso to Article 320(3) of the Constitution, read along with the TNPSC Regulations and the TNPSC Rules of Procedure, the recruitment by way of Special Competitive Examination to be conducted by the TNPSC is resorted to as per the Rules, and therefore, such recruitment for the purpose of absorption of such of those successful temporary employees, cannot be held to be illegal. The learned Special Government Pleader, by referring to the counter affidavit filed on behalf of the State, pointed out that there are 11,356 contract employees who are working temporarily on a consolidated pay of Rs.4,000/- p.m., that they came to be appointed at a time when the State Government faced a crisis due to the en-masse strike of the State Government employees and therefore, the State Government thought it fit to treat them as a class by themselves by resorting to a special recruitment under the impugned G.O. 22. The learned Special Government Pleader also submitted that such special recruitment is not uncommon, that earlier in the year 1977, 1984, 1989 and 1997, such recruitment was made for regularisation of similar such employees employed on consolidated pay by holding Special Qualifying Examination. The learned Special Government Pleader contended that what is prohibited in the Constitution Bench judgment of the Supreme Court in Umadevi's case (2006 (4) SCC 1), is only illegal appointment, namely employees who enter the service through back-door entry, whose employment cannot be regularised by way of absorption and since the employment of the temporary employees in the present case was in accordance with the Rules, and when the State Government, as a policy decision, in the interest of the administration as well as in the interest of such temporary employees, decided to resort to recruitment by way of Special Competitive Examination through the TNPSC, the said action of the State Government should not be interfered with. https://hcservices.ecourts.gov.in/hcservices/ 23. Having heard learned counsel for the petitioners, learned Special Government Pleader and the learned counsel for the contesting respondents, at the outset, we hold that the Writ Petition in W.P.No.36731 of 2006 by way of a PIL, is not maintainable in law, as the same is directly hit by the decisions of the Supreme Court reported in 1998 (7) SCC 273 (cited supra) and 2005 (1) SCC 590 (cited supra). We would have been well justified in imposing exemplary costs on the petitioner in W.P.No.36731 of 2006, but for the fact that in the connected Writ Petition in W.P.No.43636 of 2006 preferred by the aggrieved unemployed graduates, we thought it fit to examine the challenge made to the impugned G.O. in the light of the decision of the Supreme Court in Umadevi's case (2006 (4) SCC 1) and the earlier decisions of the Supreme Court reported in 1982 (3) SCC 341 (cited supra) and 1984 (4) SCC 251 (cited supra). Therefore, we merely hold that the said Writ Petition in W.P.No.36731 of 2006 is liable to be dismissed in-limine. 24. When we consider the issue involved as raised in the challenge made to the impugned G.O. in W.P.No.43626 of 2006, we wish to refer to the ratio decided in Umadevi's case (2006 (4) SCC 1) as well as the earlier decisions of the Supreme Court reported in 1982 (3) SCC 341 (Divakar's case) and 1984 (4) SCC 251 (Prabodh Verma's case). We find that the statement of law set out in the earlier two decisions (Divakar and Prabodh Verma cases) required to be stated for more than one reason. In the first instance, these two earlier decisions were not brought to the notice of the Supreme Court in Umadevi's case. We are of the considered opinion that the ratio-decidendi in the above referred to earlier decisions carve out an exception, which exception has been broadly set out in Umadevi's case and therefore, it will be worthwhile to refer to those decisions in the foremost before ever our conclusions are set forth in the case on hand. 25. The facts involved in Divakar's case (1982 (3) SCC 341) briefly stated are that the Andhra Pradesh Public Service Commission invited applications for the post of Junior Engineers in the Andhra Pradesh Engineering Service and other allied services in the year 1977. As many as 4,000 applications were received and all eligible candidates were asked to appear for a viva-voce test and after the conclusion of the viva-voce test, the State Commission was in the process of finalising the select list. At that point of time, the Government of Andhra Pradesh issued two Government Orders in exercise of powers vested with it under Article 320 of the Constitution, by which it excluded from the purview of the Commission all appointments made by direct recruitment to any post in any category at all levels in the State and Subordinate Services, which were continuing temporarily as on particular date. By the second G.O., the State Government regularised the services of all temporary Government servants who were appointed by direct recruitment and who were continuing in service as on the date of the issuance of the Government Order without subjecting to any test, written or oral,