IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27.01.2010 Coram The Honourable Mr. Justice K.CHANDRU Writ Petition No.25381 of 2008 and M.P.Nos.1 and 2 of 2008 1.A.V.Kanakathri 2.R.Anthonirai 3.M.Venkatesan 4.G.Vasudevan 5.M.Munusamy 6.M.Chinnapillai 7.K.Sekar 8.M.Murugan 9.M.K.Selvam 10.K.Sakthivel 11.E.Sankaranarayanan 12.G.Suresh 13.A.Punniayamoorthy 14.C.Arul Mozhi Devar 15.K.S.Sathish Kumar 16.M.Ramesh .. PETITIONERS Vs 1 THE SECRETARY TO GOVERNMENT GOVT. OF TAMILNADU INDUSTRIES DEPT. CHENNAI. 2 THE COMMISSIONER OF SUGAR NO.690 ANNA SALAI PERIYAR EVR BUILDING CHENNAI 35. 3 THE SPECIAL OFFICER THE AMARAVATHI COOPERATIVE SUGAR MILLS LTD KRISHNAPURAM POST UDAMALPET TK COIMBATORE DT. 642 111. 4 THE SPECIAL OFFICER AMBUR COOPERATIVE SUGAR MILLS LTD VADAPUDUPET AMBUR VELLORE DT.635 812 5 THE SPECIAL OFFICER CHENGALVARAYAN COOPERATIVE SUGAR MILLS LTD PERIYASEVALAI ULUMDURPET TK VILLUPURAM. 607 209. https://hcservices.ecourts.gov.in/hcservices/ 6 THE SPECIAL OFFICER/ ADMINISTRATOR THE CHEYYAR COOP. SUGAR MILLS LTD ANAKKA THENTHANDALAM CHEYYAR TK TIRUVANNAMALAI.604 401 7 THE SPECIAL OFFICER THE DHARMAPURI DISTRICT COOP. SUGAR MILLS LTD THIMMANAHALLI VILLAGE PALACODE DHARMAPURI. 636 808 8 THE SPECIAL OFFICER THE KALLAKURICHI COOPERATIVE SUGAR MILLS LTD MOONGIL THURAIPATTI SANKARAPURAM TALUK VILLUPURAM. 605 702 9 THE SPECIAL OFFICER/ ADMINISTRATOR GOMUKI COOP. SUGAR MILLS LTD KACHIRAYAPALAYAM KALLAKURICHI TK VILLUPURAM.606 207 10 THE ADMINISTRATOR K.R.KRISHNAMURTHY COOP. SUGAR MILLS LTD SETHIATHOPE CIDAMBARAM TK CUDDALORE. 608 702. 11 THE SPECIAL OFFICER THE NATIONAL COOPERATIVE SUGAR MILLS LTD B. METHUPATTI ALANGANALLUR VADIPATTI TK MADURAI.609 201. 12 THE ADMINISTRATOR NPKRR COOPERATIVE SUGAR MILLS LTD THALAI NAYAR ILANTHOPPU MAYILADUTHURAI T.K. NAGAR DT. 609 201 13 THE SPECIAL OFFICER THE SALEM COOPERATIVE SUGAR MILLS LTD MOHANUR NAMAKKAL. 637 015. 14 THE ADMINISTRATOR SUBRAMINAIYA SIVA COOP. SUGAR MILLS LTD GOPALAPURAM PAPPINEDDIPATTAI POST DHARMAPURI. 636 904. 15 THE SPECIAL OFFICER THIRUPATHUR COOP. SUGAR MILLS LTD KETHANDAPATTI VELLORE.635 815. https://hcservices.ecourts.gov.in/hcservices/ 16 THE ADMINISTRATOR TIRUTTANI COOP. SUGAR MILLS LTD THIRUVALANGADU THIRUVALLUR.631 210. 17 THE SPECIAL OFFICER THE VELLORE COOPERATIVE SUGAR MILLS LTD VELLORE. 632 519 18 THE CHIEF EXECUTIVE ARIGNAR ANNA SUGAR MILLS LTD KURUNGULAM THANJAVUR. 613 303 19 THE CHIEF EXECUTIVE PERAMBALUR SUGAR MILLS LTD ERAIYUR VEPPANTHATTAI TK PERAMBALUR. 621 133 20 THE CHIEF EXECUTIVE MADURA SUGARS PANDIARAJAPURAM T.VADIPATTI TALUK MADURAI. 625 209. Prayer:- Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a writ of Certiorarified Mandamus to call for the records relating to the letter bearing No.K.Dis.4395/A&I/2007 dt 2.4.2007 issued by the 2nd respondent and quash the same in so far as the petitioner is concerned and directing the respondents to promote/appoint the petitioners as Cane Officers by relaxing the rules from among the Cane Assistants who had completed B.Sc. (Agri) for the existing vacancies. For petitioners : Mr.U.Karunakaran For respondents : for R1 : Mrs.C.K.Vishnupriya for R2 to R18 : Mrs.G.Thilagavathi O R D E R The petitioners are working as Cane Assistants in various Co- operative Sugar Mills. They have come forward to file the present writ petition seeking to challenge the order of the second respondent, Commissioner of Sugars dated 02.04.2007 and for a consequential direction to promote/appoint the petitioners as Cane Officers by relaxing the rules from among the Cane Assistants, who have acquired B.Sc., Agriculture Degree in existing vacancies. 2. In the impugned order, the petitioners were informed that in various Co-operative Sugar Mills, post of Cane Officer is filled up by direct recruitment and there is no provision in the bye-laws to have the Cane Assistants promoted as Cane Officers. https://hcservices.ecourts.gov.in/hcservices/ 3. The factual basis viz., the lack of bye-laws regarding the promotional aspects of Cane Assistants to the post of Cane Officers is not in dispute. However, Mr.U.Karunakaran, learned counsel for the petitioners submits that they were asked to undergo graduation course in Agriculture only with a fond hope to the promotional post of Cane Officers and there are Government Circulars asking such Cane Assistants to acquire additional qualifications in order to fill up higher posts in the Sugar Mills. It is admitted that several other persons, who have acquired such qualifications were considered for the higher posts by giving necessary relaxation and in the light of the same, the present writ petition is filed. 4. Though the petitioners, who are 16 in numbers were working in the Co-operative Sugar Mills in Ambur, Vellore, Dharmapuri, Vizhupuram, Mayiladuthurai, Salem and Kallakurichi Districts, they have made all the Co-operative Sugar Mills in the State as respondents 3 to 20. 5. A perusal of the impugned order dated 02.04.2007 passed by the Commissioner of Sugars clearly shows that in the absence of Rule for promotion to the higher post of Cane Officer, petitioners were directed to apply to the said post by direct recruitment, whenever candidates are called for by Selection Committee and hence, the said impugned order cannot be found fault with in the absence of any specific service condition found in the various Co-operative Sugar Mills. 6. Though the learned counsel for the petitioners attempted to state that there is common cadre of Cane Officers working in Sugar Mills, it is not found on record such a common cadre exists in terms of Section 75 of the Tamil Nadu Cooperative Societies Act, in which event, the State Government is empowered to frame appropriate Rules regarding service conditions of such common cadre. On the contrary, it is the intention of the State Government that each Co-operative Sugar Mill is a separate legal entity and the previous administrative order of the Government was subsequently given up by the State Government. Therefore, in the present circumstances, each Co- operative Sugar Mill is a separate legal entity by virtue of Rule 149 of the Tamil Nadu Co-operative Society Rules. Such a society is empowered to frame bye-laws with reference to the cadre strength, classification, method of recruitment and various other issues contemplated therein. It is also accepted that no such rules have been framed pursuant to Rule 149 which was amended by G.O.212 Co- operatives dated 04.07.1995. Even as per the old Bye-laws applicable to the employees, such a rule is not in existence. In the absence of any rule and only based on certain previous Cane Assistants promoted to the post of Cane Officers and based on the strength of the Cane Assistants, the impugned order passed by the second respondent cannot be found fault with. https://hcservices.ecourts.gov.in/hcservices/ 7. Merely because in certain cases the Government in the distant past had allowed such posting will not help the petitioner to seek for similar relief. On the contrary, the Supreme Court in Col.B.J.Akkara (Retd.) vs. Government of India and others reported in 2006 (11) SCC 709 has held that merely because the Government had chosen to implement a wrong order which became final, that by itself will not give any cause of action to the other persons without deciding the issue on merit. It is therefore necessary to extract para 26 of the judgment and it reads as follows: " A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a “pick-and- choose” method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001. 8. Very recently, the Supreme Court in a case in Shanti Sports Club & Another vs. Union of India & others reported in 2009 AIR SCW 6953 after referring to all the previous case laws has held that no court shall issue such a mandamus on the specious plea of either discrimination or they were unequally treated. It is necessary to extract the following passage found in paragraphs 50 to 52, which read as follows: "50. The plea of discrimination and violation of Article 14 of the Constitution put forward by the appellants is totally devoid of substance because they did not produce any evidence before the High Court and none has been produced before this Court to show that their land is identically https://hcservices.ecourts.gov.in/hcservices/ placed qua the lands on which Hamdard Public School, St. Xavier School, Scindia Potteries, etc., exist. In the representations made to different functionaries of the Government and DDA, the appellants did claim that other parcels of the land have been de-notified and before the High Court a copy of notification dated 6.9.1996 issued under Section 48(1) was produced, but the said assertion and notification were not sufficient for recording a finding that their case is identical to those whose land had been denotified. The burden to prove the charge of discrimination and violation of Article 14 was on the appellants. It was for them to produce concrete evidence before the Court to show that their case was identical to other persons whose land had been released from acquisition and the reasons given by the Government for refusing to release their land are irrelevant or extraneous. Vague and bald assertions made in the writ petition cannot be made basis for recording a finding that the appellants have been subjected to invidious or hostile discrimination. That apart, we are prima facie of the view that the Government's decision to withdraw from the acquisition of some parcels of land in favour of some individuals was not in public interest. Such decisions had, to some extent, resulted in defeating the object of planned development of Delhi on which considerable emphasis has been laid by the Full Bench of the High Court and this Court. This being the position, Article 14 cannot be invoked by the appellants for seeking a direction to the respondents to withdraw from the acquisition of the land in question. Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Administration vs. Jagjit Singh (1995) 1 SCC 745, this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq. yds. plot in Section 31A, Chandigarh defaulted in paying the https://hcservices.ecourts.gov.in/hcservices/ price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the Estate Officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the Officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991. Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt.Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under:- "We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the https://hcservices.ecourts.gov.in/hcservices/ respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law – indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law – but even if it cannot be corrected,it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent- authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course – barring exceptional situations – would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well- accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world".(Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ 51. Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar (1973) 2 SCC 265,Gursharan Singh v.New Delhi Municipal Committee (1996) 2 SCC 459, Secretary, Jaipur Development Authority v. Daulat Mal Jain (supra), Yadu Nandan Garg v. State of Rajasthan and others (supra), State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321], Faridabad CT. Scan Centre v. D.G.Health Services [(1997) 7 SCC 752], Style (Dress land) v. Union Territory, Chandigarh [(1999) 7 SCC 89], State of Bihar v. Kameshwar Prasad Singh (2000) 9 SCC 94, Union of India v. International Trading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337, Sanjay Kumar Munjal v. Chairman, UPSC (2006) 3 SCC 42, K.K.Bhalla v. State of M.P. and others (2006) 3 SCC 581, National Institute of Technology v. Chandra Sekhar Chaudhary (2007) 1 SCC 93, Vice Chancellor, M.D.University, Rohtak v. Jahan Singh (2007) 5 SCC 77, State of Kerala and others v. K.Prasad and another (2007) 7 SCC 140, Punjab State Electricity Board and others vs. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v. State of Rajasthan and others (2009) 2 SCC 589. 52. Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is a substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc., in blatant https://hcservices.ecourts.gov.in/hcservices/ violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal and unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for the purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K.Ramdas Shenoy vs. Chief Officers, Town Municipal Council Udipi, 1974 (2) SCC 506,Dr.G.N.Khajuria v. Delhi Development Authority, 1995 (5) SCC 762, M.I.Builders Pvt. Ltd. v. Radhey Shyam Sahu, 1999 (6) SCC 464, Friends Colony Development Committee v. State of Orissa, 2004 (8) SCC 733, M.C.Mehta v. Union of India, 2006 (3) SCC 399 and S.N.Chandrasekhar v. State of Karnataka, 2006 (3) SCC 208." https://hcservices.ecourts.gov.in/hcservices/ 9. In the absence of any legally enforceable right on the part of the petitioners, the prayer made by the petitioners cannot be conceded. The impugned order of the second respondent does not suffer from any legal infirmity. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected M.P.Nos.1 and 2 of 2008 are closed. nvsri Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1 THE SECRETARY TO GOVERNMENT GOVT. OF TAMILNADU INDUSTRIES DEPT. CCHENNAI-9. 2 THE COMMISSIONER OF SUGAR NO.690 ANNA SALAI PERIYAR EVR BUILDING CHENNAI 35. 3 THE SPECIAL OFFICER THE AMARAVATHI COOPERATIVE SUGAR MILLS LTD KRISHNAPURAM POST UDAMALPET TK COIMBATORE DT.642 111 4 THE SPECIAL OFFICER AMBUR COOPERATIVE SUGAR MILLS LTD VADAPUDUPET AMBUR VELLORE DT.635 812. 5 THE SPECIAL OFFICER CHENGALVARAYAN COOPERATIVE SUGAR MILLS LTD PERIYASEVALAI ULUMDURPET TK VILLUPURAM. 607 209. 6 THE SPECIAL OFFICER/ ADMINISTRATOR THE CHEYYAR COOP. SUGAR MILLS LTD ANAKKA THENTHANDALAM CHEYYAR TK TIRUVANNAMALAI.604 401 7 THE SPECIAL OFFICER THE DHARMAPURI DISTRICT COOP. SUGAR MILLS LTD THIMMANAHALLI VILLAGE PALACODE DHARMAPURI.636 808 8 THE SPECIAL OFFICER THE KALLAKURICHI COOPERATIVE SUGAR MILLS LTD MOONGIL THURAIPATTI SANKARAPURAM TALUK https://hcservices.ecourts.gov.in/hcservices/ VILLUPURAM.605 702. 9 THE SPECIAL OFFICER/ ADMINISTRATOR GOMUKI COOP. SUGAR MILLS LTD KACHIRAYAPALAYAM KALLAKURICHI TK VILLUPURAM. 606 207 10 THE ADMINISTRATOR K.R.KRISHNAMURTHY COOP. SUGAR MILLS LTD SETHIATHOPE CIDAMBARAM TK CUDDALORE. 608 702 11 THE SPECIAL OFFICER THE NATIONAL COOPERATIVE SUGAR MILLS LTD B. METHUPATTI ALANGANALLUR VADIPATTI TK MADURAI.609 201 12 THE ADMINISTRATOR NPKRR COOPERATIVE SUGAR MILLS LTD THALAI NAYAR ILANTHOPPU MAYILADUTHURAI T.K. NAGAR DT.609 201 13 THE SPECIAL OFFICER THE SALEM COOPERATIVE SUGAR MILLS LTD MOHANUR NAMAKKAL.637 015 14 THE ADMINISTRATOR SUBRAMINAIYA SIVA COOP. SUGAR MILLS LTD GOPALAPURAM PAPPINEDDIPATTAI POST DHARMAPURI.636 904 15 THE SPECIAL OFFICER THIRUPATHUR COOP. SUGAR MILLS LTD KETHANDAPATTI VELLORE. 635 815 16 THE ADMINISTRATOR TIRUTTANI COOP. SUGAR MILLS LTD THIRUVALANGADU THIRUVALLUR. 631 210 17 THE