IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.7.2009 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.Nos.42738 and 42745 of 2006 S.Gandhimathinathan ... Petitioner in WP.No.42738/2006 K.Kumaran ... Petitioner in WP.No.42745/2006 Versus 1.The Commissioner, Mayiladuturai Municipalilty Mayiladuduturai-609 001 Nagapattinam District. 2.The Director of Municipal Administration, Chepauk, Chennai-600 005. 3.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Chennai-600 009. ... Respondents in both WPs. These writ petitions came to be numbered by transfer of O.A.No.4850 and 4851 of 1999 on the file of the Tamil Nadu Administrative Tribunal, Chennai under Article 226 of the Constitution of India praying this court for the issuance of Writ of Mandamus to direct the respondents to appoint the petitioners as Wiremen in the Mayiladuthurai Municipality without reference to the G.O.Ms.No.166 dated 29.6.1999 Municipal Administration and Water Supply Department (M.E.III) dated 29.6.1999. For Petitioner : Mr.V.Ravikumar For Respondents : Mr.S.Gopinathan Addl. Government Pleader(W) O R D E R At the time of filing of the Original Applications before the Tamil Nadu Administrative Tribunal, Madras, both the petitioners were working as Wireman Helpers in Mayiladuthurai Municipality, Mayiladuthurai, Nagapattinam District. They have sought for a direction to appoint them as Wireman in the existing vacancies without reference to G.O.Ms.No.166 dated 29.6.1999 by which the post of wireman has been included in Tamilnadu Municipal Engineering Subordinate Services with the following qualifications a pass X standard examination conducted by the Tamilnadu Board of Secondary Education and pass in Industrial Training Institute(Wireman Trade) certificate awarded by the National Council for Vocational Training or Government of Tamilnadu. It is the case of the petitioners that they were appointed on 10.1.1990 in Mayiladuthurai Municipality, Mayiladuthurai. At the time of filing of the Original Application before the Tamil Nadu Administrative Tribunal, Chennai they had put in nine years of service. During July, 1998 two posts of Wirman became vacant in Mayiladuthurai Municipality. Since the petitioners were qualified for promotion to the above said posts, as per circular memorandum of the Directorate of Municipal Administration,Chennai in ROC.No.48665/89/E1-4 dated 1.9.1989, they made separate representation dated 13.7.1998 to the Commissioner, Mayiladuthurai Municipality, Mayiladuthurai, Nagapattinam, the first respondent to consider their case for appointment to the above said post. The representations of the petitioners were also forwarded to the Director of Municipal Administration,Chennai, the second respondent. In the meantime one more post of Wireman along with a post of Wireman helper was sanctioned to the Municipality and thus there were three posts of wireman. Though the petitioners were qualified for promotion to the post of wireman, as per the circular of Directorate of Municipal Administration,Chennai and the recommendation of the first respondent, the posts were not filled up. In these circumstances, the petitioners filed the Original Applications before the Tamilnadu Administrative Tribunal, Madras for the relief as stated supra. 2. Referring to the circular memorandum of Directorate of Municipal Administration, Madras dated 1.9.1989, Mr.V.Ravikumar, learned counsel for the petitioners submitted that as per the Circular Memorandum, the qualifications prescribed for the said post of wireman was VIII standard with practical experience of three years in that particular type of work. As the petitioners were wireman helpers and possessed VIII Standard qualification with nine years of service as wireman helpers. The date on which the vacancies arose in Mayiladuthurai Municipality, Mayiladuthurai i.e. in 1998, the respondents 2 and 3 ought to have considered them for promotion to the posts of wireman helper and it is not open to the respondents to apply G.O.Ms.No.166, Municipal Administration and Water Supply Department dated 29th June, 1999. According to the petitioner, learned counsel for the petitioner, the posts that were vacant in the year 1998 ought to have been filled up only by applying the qualifications prescribed in the circular memorandum dated 1.9.1989. He further submitted that when eligible candidates were available in Municipalities, they should have been promoted to the post of Wireman, instead of resorting to Direct recruitment, the mode of appointment prescribed under the latter government orders. 3. Based on the counter affidavit filed by the Commissioner of Mayiladuthurai Municipality, Mr.M.Devadoss, learned counsel appearing for the first respondent has submitted that by G.O.Ms.No.166 Municipal Administration and Water Supply Department dated 29th June, 1999 in class VIII, after category 7 two more categories were added, namely, categories 8 Wireman, and 9- Wireman Helper. The qualifications prescribed for the post of Wireman included in category 8 are as follows: 1) a pass in X Standard examination conducted by the Board of Secondary Education and I.T.I. Certificate (Wireman Trade) awarded by the National Council for Training in Vocational Trades or Government of Tamil Nadu. Learned counsel for the first respondent further submitted that as per rule 3 of the Tamilnadu Municipal Engineering and Water Works Service Rules 1970, the post of wireman has to be filled up only by direct recruitment and not by promotion from the post of wireman. He also added that Rules 4 and 5 (2) of Tamil Nadu Municipal Engineering and Water Works Service Rues 1970, the appointment committee of the Municipality is recruitment authority and the Municipal Commissioner is appointing authority respectively. As per the procedure, the Commissioner of Municipality concerned shall call for a list of eligible candidates from the local employment exchange and shall place it before the appointment committee. The appointment committee shall then select the required number of candidates on the basis of interview only. He therefore submitted that the post of wireman shall be filled up only by direct recruitment and not by promotion. 4. Learned counsel for the first respondent further submitted tht the circular memorandum dated 1.9.1989 relied on by the petitioners is only an administrative instructions and the same cannot over ride the statutory rules framed under Article 309 of the Constitution of India. Inasmuch as the petitioners have not satisfied the qualifications prescribed for the post of wireman under the recruitment rules having regard to the mode of appointment, i.e. by direct recruitment and not by promotion, he submitted that the petitioners have no legal or statutory right to state their claim for the post of wireman and for the abovesaid reason prayed for dismissal of the writ petition. 5. Heard the learned counsel for the parties and perused the material on record. 6. As per circular memorandum of the Directorate of Municipal Administration,Chennai in ROC.No.48665/89/E1-4 dated 1.9.1989 the post of helper had been classified as a post under the last category servants of Municipalities. Likewise, the post of Wireman, Lineman were included in the Electrical Engineering Establishment under paragraph 25 of the Municipal Manual. The scale of pay for wireman at the relevant point of time was 825-1200 and the qualifications were 8th standard with practical experience of three years which should include 2 years of work in that particular type. The scale of pay for the post of Helper was Rs.750-940 and the educational qualification was VIII standard or III Form. Subsequently, the government have issued orders in G.O.Ms.No.166 Directorate of Municipal Administration and Water Supply (M.E.III) Department dated 29th June, 1999 amending Tamil Nadu Municipal Engineering and Water Works Service Rules, 1970. In Class VIII, after category 7, the government have included category 8-Wireman and category 9- Wireman Helper were inserted and the Tamil Nadu Municipal Engineering and Water Works Service Rules, 1970 were suitably amended. The qualifications for the post of wireman in category VIII are a pass in X standard Examination conducted by the Tamil Nadu Board of Secondary Education and Industrial Training Institute (Wireman Trade) Certificate awarded by the National Council for Training Vocational Trades of Government of Tamil Nadu. The qualification for the post of wireman helper is a pass in VIII standard. The method of recruitment to the post of wireman is by direct recruitment. Admittedly the qualifications prescribed for the post of wireman, the method of recruitment etc. have been changed after the amendment to the rules issued in G.O.Ms.No.166 Directorate of Municipal Administration and Water Supply (M.E.III) Department dated 29th June, 1999 the amendments to the Tamil Nadu Municipal Engineering and Water Works Service Rules have not been challenged. It is well settled that any executive instructions issued in the matter of filling up of a post can be followed till the formulation of recruitment rules applicable to the said post. Rules framed under Act 309 of the Constitution of India will prevail over administrative/executive instructions. Useful reference can be made. Subash vs. State of Maharastra, reported in 1995 supp 3 SCC 332, where the Supreme Court held that circular cannot replace the rules framed under Article 309 of the Constitution of India. In K.Kuppusamy vs. State of T.N. reported in 1998 (8) SCC 469, the Apex court held that rules framed under Article 309 cannot be overridden by executive orders or executive practice. 7. In the case on hand, though the vacancies arose in the year 1998, the department have started the process of recruitment only in the year 1999, by which time, the qualification for the post of wireman has been changed from 8th standard to that of a pass in the X Standard Examination conducted by the Tamilnadu Board of Examination and Industrial Training (Wireman Trade) certificate awarded by the National Council for Training in Vocational Traders or from the Government of Tamil Nadu. It is not in dispute that the petitioners did not possess the prescribed qualifications for the post of wireman. The contention of the learned counsel for the petitioner that the respondents ought to have followed the circular memorandum dated 1.9.1989 for filling up the posts of wireman in the year 1998 instead of applying G.O.Ms.No.166 Directorate of Municipal Administration and Water Supply (M.E.III) Department dated 29th June, 1999, cannot be countenanced in law for the reason it is for the department to recruit people depending on the need for filling up the posts, administrative exigency etc. Merely because there were some vacancies in 1998, it cannot be said that the government ought to have filled up the posts immediately by resorting to the method of recruitment prescribed in the circular stated supra. Though it is contended that the first respondent, Commissioner of Mayiladuthurai Municipality had sent a proposal for filling up the vacant posts, it is open to the Head of the Department and the government, respondents 2 an 3 to give appropriate directions to be followed in the matter of filling up the posts. 8. In P.U.Joshi and others vs. Accountant General Ahmedabad and others reported in (2003) 2 Supreme Court cases 632 at paragraph 10 of the judgement, the Supreme Court held as follows: "Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to the fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment of eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criterial and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service." 9. In view of the above, the direction sought for by the petitioners to consider their case for promotion to the post of wireman notwithstanding G.O.Ms.No.166 Directorate of Municipal Administration and Water Supply (M.E.III) Department dated 29th June, 1999 cannot be granted. Record of proceedings in this Original Application shows that at the time of admitting the Original Application, the Tribunal by its order dated 3rd September, 1999 had directed the posts of wireman in Mayiladuthurai Municipality to be kept vacant and the interim S. MANIKUMAR, J. vk continued thereafter. Since the petitioners are not entitled to the relief sought for in the writ petition, the interim order granted is vacated. It is open to the respondents to fill up the vacancies, if they so desire in accordance with the recruitment rules in force. 10. In the result these writ petitions are dismissed. No costs. 20.7.2009 Internet :Yes vk To 1.The Commissioner, Mayiladuturai Municipalilty Mayiladuduturai-609 001 Nagapattinam District. 2.The Director of Municipal Administration, Chepauk, Chennai-600 005. 3.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Chennai-600 009. W.P.Nos.42738 and 42745 of 2006