IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.17765 of 2007(T) (O.A.No.1383 of 2004) P.Jayakumar ... Petitioner Vs. 1)The Director of Town Panchayat, Kuralagham, Chennai-600 108. 2)The District Collector, Thanjavur District, Thanjavur. ... Respondents Prayer : Writ petition came to be numbered under Article 226 of the Constitution of India, by way of transfer from the Tamil Nadu Administrative Tribunal, Chennai, in O.A.No.1383 of 2004, praying for a Writ of Certiorarified Mandamus, to call for the records of the 1st respondent in his Na.Ka.No.26589/2002/A-2 dated 18.09.2003 and quash the order passed therein and direct the respondents to grant promotion to the post of Head Clerk with effect from 11.10.2002 with all consequential monetary and other service benefits. For petitioner : Mr.M.Vivekanandan For Respondents : Mr.S.V.Duraisolaimalai, AGP O R D E R At the time of filing of the Original Application before the Tamil Nadu Administrative Tribunal, Chennai, the petitioner was aged 51 years and was working as Assistant in Chozhapuram Town Panchayat, Thanjavur. 2. The Petitioner was originally appointed as a Bill Collector on 28.03.1981. Lateron, he was appointed as Junior Assistant, by transfer and his services were regularised in the said post. 3. According to the petitioner, he has passed the following tests:- (1)Panchayat Development Test in 1986 (2) District Office Manual Test i in 1986 (3) Village Swaraj Test in 1987 (4) Community Development Manual Test in 1998 (5) Constitution of India Test in 1989, and (6) Tamil Nadu District Municipalities Act Test in 1998. 4. The petitioner has submitted that his next avenue of promotion is the category of Executive Officer Grade II/Assistant/Head Clerk. According to the petitioner, he is fully qualified for promotion to the abovesaid category and when the vacancies arose, he made a representation dated 14.03.2002 to the respondents 1 and 2 to promote him to the abovesaid post. Whileso, the 2nd respondent promoted Mr.R.Sithivinayagamoorthi and Mr.V.Manohar as Head Clerks vide proceedings dated 05.10.2002. According to the petitioner, the abovesaid two persons were juniors to him. Hence, the petitioner gave a representation dated 14.11.2002 to the respondents, pointing out that those persons promoted on 05.10.2002 were juniors and since the petitioner did not suffer from any penalty nor there was any disciplinary proceedings, he should have been promoted on par with them. 5. As there was no response, the petitioner was constrained to send another representation dated 09.01.2003, to the District Collector, Thanjavur, the 2nd respondent herein, requesting him to furnish copies of the orders of promotion dated 05.10.2002, so as to enable him to seek legal remedies. Even this request was also not considered. In the abovesaid circumstances, the petitioner was constrained to file O.A.No.673 of 2003, before the Tamil Nadu Administrative Tribunal, Chennai, seeking for a direction to the respondents, to promote him as Head Clerk of the Town Panchayat or Executive Officer Grade II. By order dated 26.02.2003, the Tribunal gave a direction to the respondents therein, to consider the case of the petitioner for promotion and pass further orders. Pursuant to the above directions, the 1st respondent passed an order dated 18.09.2003, rejecting the request of the petitioner, on the ground that he did not pass a test in Tamil Nadu Panchayat Development Act prescribed for promotion. Being aggrieved by the same, the petitioner has filed Original Application before the Tribunal, which lateron has been transferred to the file of this Court and renumbered as the present writ petition. 6. On the abovesaid pleadings and assailing the correctness of the order, Mr.M.Vivekanandan, learned counsel for the petitioner invited the attention of this Court to G.O.Ms.No.300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, and contended that only two departmental tests namely, Panchayat Development Account Test and District Office Manual Test, were prescribed for appointment by promotion to the post of Head Clerk and Assistants in Town Panchayat Department and it does not prescribe a test called as 'Tamil Nadu Panchayat Development Act', for the purpose of promotion to the abovesaid post. 7. He further submitted that the respondents have erred in relying on a letter dated 22.07.1991 of the 1st respondent, which is only an executive instruction and it would not have any overriding effect on G.O.Ms.No.300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, which prescribes only two tests for promotion to the post of Head Clerk and Assistants in Town Panchayat Department. It is also his further contention that when G.O.Ms.No.300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, has been given retrospective effect from 13.05.1981, the executive instructions in the form of a letter dated 22.07.1991 has no force. In sum and substance, learned counsel for the petitioner submitted that what was required for promotion to the post of Head Clerk or Assistants in Town Panchayat is only a pass in Panchayat Development Account Test and District Office Manual Test, which the petitioner has acquired before the crucial date i.e., 15th March of every year. 8. Inviting the attention of this Court to a Notification dated 11.02.2002 issued by the Tamil Nadu Public Service Commission, inviting applications to appear in Departmental Tests Examinations, scheduled in May 2002, learned counsel for the petitioner further submitted that though five tests were prescribed for the officers of the Panchayat Development Department, candidates were given the option of answering either paper IV, namely, The Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder or paper V, namely, The Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder. According to the learned counsel for the petitioner, even as per the abovesaid notification, it is suffice a candidate passes either Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder, or in Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder and it is not necessary that a candidate should pass both the tests for promotion to the post of officer in Tamil Nadu Panchayat Development Department. According to him, as the petitioner had already passed the District Municipalities Act in 1998, much earlier to the crucial date i.e., 15.03.2002, he is fully qualified to be considered for promotion to the post of Head Clerk. He also submitted that the actual panel for promotion to the post of Head Clerk was drawn up only on 29.08.2002 and that the same was given effect to from 11.10.2002. He therefore submitted that when the petitioner had cleared six tests including the two prescribed tests in G.O.Ms.No.300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, rejection of his case for promotion to the post of Head Clerk along with his juniors is illegal, arbitrary and contrary to the rules. 9. Reiterating the averments made in the counter affidavit filed by the District Collector, Thanjavur, the 2nd respondent herein, Mr.Duraisolaimalai, learned Additional Government Pleader appearing for the respondents submitted that for promotion to the post of Head Clerk or Executive Officer Grade-II, the following departmental tests have been prescribed. 1)Community Development 2)Village Swaraj 3)Constitution of India 4)Tamil Nadu Panchayat Act 1958 5)Panchayat Development Account Test 6)District Office Manual. 10. According to him, the post of Head Clerk or Executive Officer Grade-II, is a pivotal post and persons should be acquainted with the provisions of relevant Act, then only any Town Panchayat could be administered in a proper manner. He further submitted that when the panel for promotion to the post of Head Clerk was prepared, Mr.R.Sithivinayagamoorthi and Mr.V.Manohar were considered, as they had passed the tests prescribed for promotion and that they were also more qualified than the petitioner, on the date of preparation of the panel. 11. Inviting the attention of this Court to the details of the departmental tests passed by the petitioner and the persons referred to above, learned Additional Government Pleader further submitted that as the petitioner did not pass either Tamil Nadu Panchayat Act, 1958, or Tamil Nadu Panchayat Act 1994, within the crucial date i.e., 15.03.2002, as prescribed in the proceedings of the Director of Town panchayat, Chennai, dated 22.07.1991, he was not considered for promotion. According to him, at the time of preparation of the panel, only two persons were eligible to the post of Head Clerk, and they have passed all the departmental tests. He further submitted that in 2004, the Government vide letter dated 30.03.2004, ordered that for promotion to the post of Executive Officer Grade-II, it is suffice a candidate passes either Panchayat Act 1994 or in District Municipalities Act, 1920. As the petitioner had passed the test in District Panchayat Municipalities Act 1920, he was promoted as Executive Officer Grade-II on 22.12.2004. According to the learned counsel, when the petitioner has accepted the promotion as per the letter dated 30.03.2004 stated supra, the prayer made in the writ petition has become infructuous. He also submitted that when the petitioner has accepted the order of promotion and retired from service, on attaining the age of superannuation, there is no need to consider the correctness of the impugned order, even assuming that it is erroneous. Though the learned Government counsel opposed the writ petition on merits, contending inter alia that the petitioner did not satisfy the requirement of a pass in Tamil Nadu Panchayat Act, for empanelment to the post of Head Clerk, at paragraph No.8 of the counter affidavit, the District Collector, Thanjavur District, has stated that it is needless to point out that the Town Panchayat Act, 1994, is not applicable and only District Municipalities Act, 1920 is applicable for all the Town Panchayats. Therefore, after issuance of the Government letter dated 30.03.2004, the name of the petitioner has been considered and accordingly, he was promoted as Executive Officer Grade-II. He therefore submitted that there is no illegality or irregularity in the preparation of the panel for promotion to the post of Head Clerk. For the abovesaid reasons, he prayed for dismissal of the writ petition. 12. Heard the learned counsel for the parties and perused the materials available on record. 13. The contention that the petitioner is senior to Mr.R.Sithivinayagamoorthi and Mr.V.Manohar in the two seniority lists dated 14.08.2001 and 29.08.2002 issued by the District Collector, Thanjavur District, has not been disputed. 14. Pleadings disclose that the petitioner has passed the following tests (1) Panchayat Development Test in 1986 (2) District Office Manual Test i in 1986 (3) Village Swaraj Test in 1987 (4) Community Development Manual Test in 1998 (5) Constitution of India Test in 1989, and (6) Tamil Nadu District Municipalities Act Test in 1998. 15. Reading of G.O.Ms.No.300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, discloses that certain amendments were issued to the Special Rules for the Tamil Nadu Ministerial Service and in Annexure I, after the heading "Town and Country Planning Department and the entries relating thereto, the Government have inserted the following heading namely, "TOWN PANCHAYAT DEPARTMENT Head Clerks Assistants Revenue Inspectors". 16. The amendments to the Tamil Nadu Ministerial Service further reads that, "provided that the holders of the posts of Head Clerks as on 4th April 1990 shall pass the tests within two years from 4th April 1990 failing which they shall not be eligible to draw subsequent increments in the time scale of pay applicable to the post until they pass the said tests." 17. Perusal of G.O.Ms.No.271, Rural Development Department, dated 04.04.1990, shows that in G.O.Ms.No.828, R.D. & L.A., dated 07.05.1981, the Government have constituted a separate Directorate for the administration of Town Panchayats and Panchayat Township with effect from 07.05.1981. In G.O.Ms.No.64, R.D, dated 05.02.1985, the Government have provincialised the following categories of the staff in the Town Panchayats including Panchayat Township:- 1)Head Clerk 2)Assistant 3)Revenue Inspector 4)Junior Assistant 5)Typists and Steno Typists 18. Thereafter, accepting the proposals of the Director of Town Panchayats, Chennai, in D.O.Letter No:4575/84/A3 dated 12.08.1985, in Annexure I of the Special Rules for the Tamil Nadu Ministerial Service under the heading "Selection Categories", the following sub heading and entries have been inserted, namely, "Town Panchayat Department" 1)Head Clerk 2)Assistant 3)Revenue Inspector The Director of Town Panchayats shall be the appointing authority for all the posts in his office and that the District Collector of the concerned District, shall be the appointing authority for the posts of Assistant, Revenue Inspector, Junior Assistant, Typist and Steno Typist. 19. As per G.O.Ms.No.271, Rural Development Department, dated 04.04.1990, cited supra, Panchayat Development Account Test and the District Office Manual Test shall be the Departmental Tests, for appointment as Head Clerk and Assistants in Town Panchayat Department and those who have already been promoted before the date of issue of these rules, should pass the tests within two years from the date of issue of these rules. The abovesaid G.O., further reads that amendments to the Tamil Nadu Ministerial Service Rules in this regard would be issued by the Government by the Personnel and Administrative Reforms Department separately and that the Director of Town Panchayats, Chennai, had been requested to send necessary draft amendments to the Special Rules for the Tamil Nadu Ministerial Service. Accordingly, when the proposals were sent by the Director of Town Panchayats, in his letter dated 26.10.1990, the Personnel and Administrative Reforms Department has issued orders in G.O.Ms.No.300, Personnel and Administrative Reforms (Personnel-B) Department, dated 28.08.1992, amending the Special Rules for the Tamil Nadu Ministerial Service Rules, with effect from 13th May 1981, in respect of Assistants on the 5th February, 1985, in respect of the posts of Head Clerks and Revenue Inspectors of Town Panchayats including Panchayat Townships and on the 16th December 1988 in respect of the post of Bill Collectors (Grade I) of Town Panchayats including Panchayat Townships. 20. Though the Director of Town Panchayats, Chennai, the 1st respondent herein, in the impugned order has rejected the case of the petitioner for promotion to the post of Head Clerk, placing reliance on the Directorate's letter dated 22.07.1991, and further stated that the petitioner had not passed the test called, 'Tamil Nadu Panchayat Development Act', as rightly contended by the learned counsel for the petitioner, there is no such test. Probably, the 1st respondent would have meant that as the petitioner had not passed the Tamil Nadu Panchayat Act, 1958, he was not eligible to be considered. At this juncture, it is relevant to consider as to whether passing of Tamil Nadu Panchayat Act, 1994, is required for promotion to the post of Head Clerk or Executive Officer Grade-II, this Court deems it fit to refer the averments made at paragraph 8 of the counter affidavit, wherein, the District Collector, Thanjavur, has candidly admitted that all the Town Panchayats are governed only by the provisions of the District Municipalities Act, 1920, and further stated that Panchayat Act, 1994, is not applicable to Town Panchayat and only District Municipalities Act, 1920, is applicable for all the Town Panchayats. Even in the Directorate's letter dated 22.07.1991, addressed to all the District Collectors, reference has been made to G.O.Ms.No.271, cited supra, wherein, the Government after prescribing the Panchayat Development Account Test and District Office Manual Test, as the departmental tests for appointment by promotion to the post of Head Clerk and Assistants in Town Panchayat Department, have ordered that amendments to the Tamil Nadu Ministerial Service Rules in this regard would be issued by the Government by the Personnel and Administrative Reforms Department separately. However, prior to the issuance of G.O.Ms.No.271, Rural Development Department, dated 04.04.1990, promotions to the post of Head Clerk and Assistants in Town Panchayat Department were ordered only, if the Junior Assistants qualify themselves by passing four departmental tests and also a pass in Panchayat Development Account Test, perusal of the Directorate's letter dated 22.07.1991 further discloses as the abovesaid five tests were not included in G.O.Ms.No.271, cited supra, the Directorate by its letter dated 26.10.1990 has requested the Government to issue a fresh order and until then, the 1st respondent by his executive instructions dated 22.07.1991, has directed the District Collectors, to fill up the existing vacancies, with candidates who had passed the four tests and the Panchayat Development test, in addition to the Panchayat Development Account Test and District Office Manual Test. Even in the abovesaid Directorate's letter put against the petitioner, there is no condition that a Junior Assistant should have passed both the tests namely, Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued thereunder and the Tamil Nadu District Municipalities Act, 1920 and the Rules and Orders issued thereunder, before the crucial date. It is well settled that administrative instructions cannot override the statutory rules. In this context it is useful to refer to few decisions. (i) 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:- "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". (ii) 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." (iii) 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." (iv) 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." (v) 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. (vi) 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." 21. Prescription of only four tests and Panchayat Development Account Test coupled with the fact that the Town Panchayats are governed only by the provisions of the District Municipalities Act, would give a clear inference that in the case of the promotion to the post of Head Clerk or Assistant or Executive Officer Grade-II in Town Panchayats, there is no need to pass Tamil Nadu Panchayat Act, 1994 and the Rules and Orders issued