IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 24 .10.2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.9307 OF 2009 TWAD Board Engineer's Association rep. by its General Secretary 31, Kamarajar Salai Chennai – 5. .. Petitioner Versus 1.The State of Tamil Nadu Rep. by its Secretary Rural Development and Panchayat Raj Department Secretariat Chennai – 600 009. 2.The Director of Rural Development & Panchayat Raj Panagal Buildings Saidapet Chennai – 15. 3.The Tamil Nadu Water Supply and Drainage Board Rep. by its Managing Director Chepauk, Chennai – 5. 4.The Tamil Nadu Rural Development Engineer's Association Rep. by its General Secretary 80, Lawrence Road Cuddalore. .. Respondents PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the issue of G.O.Ms.No.191, Rural Development and Panchayat Raj (E3) Department dated 29.12.2006 and quash the same and consequently direct the respondents 1 to 3 to post only the engineers of TWAD Board in the posts of Assistant Executive Engineers and Assistant Engineers in charge of Water Supply and Drainage Works of the local authorities as per the arrangements made in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.1837 Rural Development and Local Administration Department dated 29.11.1982, i.e., as obtained prior to the issue of impugned order dated 29.12.2006. For Petitioner : Mr.N.Subramaniyan For R-1 & 2 : Mr.P.S.Raman Additional Advocate General for Mrs.Lita Srinivasan Government Advocate For R-3 : Mr.Patty B.Jeganathan O R D E R The petitioner herein has filed the present writ petition challenging the Government Order passed by the first respondent in G.O.Ms.No.191, Rural Development and Panchayat Raj Department dated 29.12.2006 with a consequential direction, directing the respondents 1 to 3 to post only the engineers of the third respondent as AEE and AE in charge of Water Supply and Drainage Works of the local authorities in accordance with G.O.Ms.No.1837, Rural Development and Local Administration Department dated 29.11.1982. 2.The brief facts of the case in a nutshell are as follows: The Tamil Nadu Water Supply and Drainage Board which is a statutory authority has been created under the TWAD Board Act, 1970. The petitioner is an Association of TWAD Board Engineers who are working with the third respondent Board. The members of the petitioner are working with the third respondent as Assistant Engineers, Assistant Executive Engineers, Executive Engineers, Superintending Engineers. The third respondent was looking after the implementation of the New Water Supply Works and maintenance of both hand pumps and power pumps in the rural local bodies. Thereafter by the Government Order passed in G.O.Ms.No.1326, RD & LA Department dated 23.07.1981, the maintenance of hand pumps was transferred from the third respondent to the Panchayat Unions. Further by the subsequent Government Order passed in G.O.Ms.No.1837, RD & LA Department dated 29.11.1982, the maintenance of power pumps (over head tanks) was also transferred from the third respondent to the respective Panchayat Unions. The above said orders have been passed prior to the introduction of the 73rd Constitutional Amendment, 1992 and the subsequent enactment of the Tamil Nadu Panchayats Act, 1994. By virtue of the said Government Order passed on 29.11.1982 a post of Assistant Executive Engineer was created for each District and another post of Assistant Engineer was created for each Sub-Division to look after the maintenance of the https://hcservices.ecourts.gov.in/hcservices/ water supply systems. At that point of time, the respondents 1 and 2 did not have its own engineering service and as a result the technical posts have been filled up by deputation from the third respondent Board. Similarly for other projects engineers from other departments have been taken on deputation and utilised. After the deputation the engineers of the parent department have been paid by the respondents 1 and 2. It is also seen that a reading of the Government Order dated 29.11.1982 would indicate that the posts created by virtue of the said Government Order are Government posts and that is the reason why persons from other departments have been appointed to the said posts on deputation. The Government Order passed in G.O.Ms.No.84, Rural Development Department dated 05.05.1998 which was amended by G.O.Ms.No.63, RD & PR Department dated 29.06.2006, the respondents 1 and 2 have empowered the Village Panchayats to spend up to Rs.600/- per hand pump per year and Rs.7,500/- per power pump per year without reference to the Assistant Engineers or Assistant Executive Engineers as the case may be. Accordingly, the Village Panchayats have been given most of the maintenance work load of over 95% by delegating work of the Assistant Executive Engineers and Assistant Engineers to the Village Panchayats themselves. As per the Government Order referred earlier in G.O.Ms.No.1837, RD & LA Department dated 29.11.1982, the sanctioned Government posts are to be filled by the engineers of the third respondent. The Assistant Executive Engineers are also to work under the overall technical control of the Executive Engineers / Superintending Engineers of the third respondent. Applications have been filed by the engineers of the respondents 1 and 2 before the Tamil Nadu Administrative Tribunal contending that since they have become sufficiently senior, their case for promotion as Assistant Executive Engineers will have to be considered. It was further contended before the Tribunal that the respondents 1 and 2 shall not receive any persons from other departments such as Highways and the third respondent. Similarly, writ petitions have been filed by engineers of the third respondent who incidentally are members of the petitioner seeking directions that they should be absorbed by the respondents 1 and 2. The Hon'ble Tribunal as well as the Hon'ble High Court have rejected the case of the deputationist from the third respondent and accepted the case of the engineers of the respondents 1 and 2 by holding that the service rules of the respondents 1 and 2 do not authorise the absorption from other department and the deputationist cannot seek permanent absorption in another department in the absence of any rule providing for the same. The Hon'ble Division Bench has passed the above said order in W.A.No.500 of 2005 etc. on 29.01.2007. In the meanwhile, another https://hcservices.ecourts.gov.in/hcservices/ order was passed by the first respondent in G.O.Ms.No.191, RD & PR Department dated 29.12.2006, by which the Commissioner of Rural Development and Panchayat Raj and the District Collectors concerned have been given the powers of issuing the postings of Assistant Executive Engineers and Assistant Engineers for the Water Supply Wing. Accordingly, the earlier practice of posting orders issued by the third respondent to the post of AE and AEE to the engineers on deputation to the respondents 1 and 2 has been dispensed with and the said power has been conferred upon the Commissioner of Rural Development and Panchayat Raj and the District Collectors. In pursuant to the said Government Order, a writ petition was filed by the 4th respondent seeking consideration of the representation made to the respondents 1 and 2. The above said writ petition was ordered by the Hon'ble High Court. Some of the members of the petitioner filed impleading petition seeking to set aside the order but however for the reasons known to them they have withdrawn the said petition later. Thereafter, the petitioner has filed the present writ petition challenging the Government Order passed by the first respondent in G.O.Ms.No.191, RD & PR dated 29.12.2006 with a consequential direction, directing the respondents 1 to 3 to post only the engineers of the third respondent as AE and AEE in charge of water supply and drainage work of the local authorities in accordance with G.O.Ms.No.1837, Rural Development and Local Administration Department dated 29.11.1982. 3.The present writ petition has been filed on 10.05.2009 by which time the said Government Order impugned has been given effect to substantially and the beneficiaries of the impugned Government Order have not been made as parties. The 4th respondent has been made as a party which is an association of the employees of the respondents 1 and 2. It is also seen that after the filing of the writ petition a subsequent Government Order was passed in G.O.Ms.No.67, Rural Development and Panchayat Raj Department dated 20.07.2009 re-designating and re-deploying the posting of Assistant Engineer and Assistant Executive Engineer as Assistant Engineer / Junior Engineer and Assistant Executive Engineer with a view to strengthen the technical supervision of roads and bridges. Accordingly as per the said Government Order obsolescence of the exclusive post of Assistant Executive Engineer and Assistant Engineer in the water supply section has been ordered. 4.The learned counsel for the petitioner made the following submissions based upon the affidavit, reply statement and the written arguments. The submissions are extracted hereunder: (i)The first respondent has no power or authority to pass the impugned Government Order under Article 162 of the Constitution of India. Inasmuch as the TWAD Board Act, 1970 provides for the https://hcservices.ecourts.gov.in/hcservices/ carrying out of the works of the local bodies there is no power for the first respondent to pass the impugned Government Order which is unconstitutional and against the Tamil Nadu Panchayat Act, 1994. The first respondent cannot interfered with the work and power of the local bodies by exercising its power under Article 162 of the Constitution of India. (ii)The posts of AE and AEE are the posts of the third respondent alone and therefore it cannot be construed that they are the Government posts. Inasmuch as the said posts belong to the third respondent the impugned Government Order cannot be sustained. (iii)A reading of the TWAD Board Act, 1970 particularly with reference to the provisions contained in Section 16(b) read with Section 27 would mean that the water and sewerage work of the local bodies will have to be done by the local bodies only by and with the technical assistance and advice of the third respondent. (iv)The contention of the respondents that under Section 110(g), 112(aa) and 112(aaa) of the Tamil Nadu Panchayat Act, 1994, a duty is cast on the local bodies cannot be accepted since a reading of the said provisions would show that the above said provisions provide for making provisions in the budget. Therefore a conjoint reading of the TWAD Board Act, 1970 and the Tamil Nadu Panchayat Act, 1994 would reveal that it is the third respondent who is the competent authority to execute the work. (v)Further the contention of the learned Advocate General that the writ petition is liable to be dismissed on the ground of principles of constructive res judicata is not sustainable. The issue involved in the earlier writ petition was one of absorption of the deputationist from various departments to the department of the respondents 1 and 2 whereas the issue involved in the present writ petition is challenging the Government Order by which the respondents 1 and 2 have taken away the power of the third respondent. (vi)There is no laches in filing the writ petition since the petitioner has approached this Court when the cause of action arises. Further the contention that the writ petition is not maintainable by the petitioner cannot be accepted since the petitioner has been recognised by the third respondent and therefore, the petitioner is entitled to represent its members. 5.The learned counsel for the petitioner in support of his submissions has relied upon number of judgments and contended that the impugned order is a nullity, one without jurisdiction, nonest in the eye of law and therefore, the same will have to be set aside and under those circumstances, the question of res judicata would not arise for consideration. In support of his contention that a writ petition will have to be filed only when there is a cause of action, https://hcservices.ecourts.gov.in/hcservices/ the learned counsel for the petitioner is relied upon the judgment reported in (2004) 6 SCC 254 [KUSUM INGOTS AND ALLOYS LTD. v. UNION OF INDIA AND ANOTHER]. He submitted that when an order is without jurisdiction the principle of res judicata would not apply. The learned counsel has relied upon the judgment reported in (2007) 2 SCC 481 [NATIONAL INSTITUTE OF TECHNOLOGY AND OTHERS v. NIRAJ KUMAR SINGH]. Further in support of his contention that the respondents cannot act in the absence of statutory provisions, the judgment reported in (2007) 13 SCC 154 [POONAM VERMA AND OTHERS v. DELHI DEVELOPMENT AUTHORITY] was relied upon. The learned counsel also relied upon the judgments reported in (2008) 7 SCC 738 [M.V.JANARDHAN REDDY v. VIJAYA BANK AND OTHERS]; (2001) 8 SCC 676 [BHARATHIDASAN UNIVERSITY AND ANOTHER v. ALL-INDIA COUNCIL FOR TECHNICAL EDUCATION AND OTHERS]; (2008) 1 SCC 341 [SURESH JINDAL v. BSES RAJDHANI POWER LTD. AND OTHERS]; (2008) 7 SCC 748 [DEEPAK AGRO FOODS v. STATE OF RAJASTHAN AND OTHERS] and (2007) 13 SCC 255 [RAM SUNDER RAM v. UNION OF INDIA AND OTHERS] and contended that an order without authority will have to be ignored and such an order cannot be justified on rationale or any other ground. The learned Advocate General appearing for the respondents 1 and 2 has made his submissions both on the question of fact and law. The submissions include the maintainability of the writ petition as well as on the merits of the case. 6.The submissions of the learned Advocate General are as follows: (i) Inasmuch as the posts involved in the impugned order are Government posts created by the respondents 1 and 2, the petitioner cannot challenge the same being an association representing the employees of the third respondent. The writ petition is liable to be dismissed for laches since the impugned order passed in G.O.Ms.No.191, RD & PR Department dated 29.12.2006 was challenged on 10.05.2009 by which time rights have been accrued to different persons. (ii) The local bodies have the power under Section 110(g), 112(aa) and 112(aaa) of the Tamil Nadu Panchayat Act, 1994 and therefore the impugned order has been passed to the benefit of the local bodies. The power has been conferred on the District Collector concerned who is the Inspector of Panchayat under the Panchayat Act. Funds have been allocated by the Government Orders empowering the work to the local bodies and therefore 95% of the maintenance work has been entrusted to the local bodies. In any case the local bodies are not parties to the present writ petition and neither the local bodies nor the third respondent have any objection for passing of the impugned Government Order. https://hcservices.ecourts.gov.in/hcservices/ (iii) The present writ petition is nothing but a re- litigation by the petitioner whose members have filed the earlier petition in W.A.No.500 of 2005 etc. seeking absorption and having failed to get the favourable orders has now challenged the present impugned order. In pursuant to the impugned order, the deputationist have been reverted and therefore the impugned order has been given effect to. (iv) There is a subsequent Government Order passed in G.O.Ms.No.67, Rural Development and Panchayat Raj Department dated 20.07.2009 which has not been challenged and hence the present writ petition is not maintainable. Further, the contention of the learned counsel for the petitioner relying upon the Section 16(b) read with Section 27 of the TWAD Board Act, 1970 has no relevance since Section 27 of the Act clearly stipulates that in so far as hand pumps or power pumps are concerned there is no necessity for prior concurrence from the third respondent. The proviso to Section 27 of the TWAD Board Act, 1970 makes it clear that the approval of the third respondent is not required. Further the new water supply schemes ought to be implemented in accordance with the proviso to Section 27 of the TWAD Board Act, 1970 read with Section 112(aa) and 112(aaa) of the Tamil Nadu Panchayat Act, 1994. The impugned Government Order has been passed in consultation with the third respondent and therefore, the petitioner cannot in effect represent the third respondent. The learned Advocate General also submitted that the writ petition is liable to be dismissed for laches since after knowing the passing of the impugned order the writ petition has been filed belatedly. 7.Before going into the merits of the case, this Court is of the opinion that it is to be seen as to whether the writ petition is maintainable in law and facts. 8.In the present case on hand, the petitioner has filed the writ petition seeking to set aside the impugned order by which the power of posting of AEE / AE has been taken away from the third respondent and given to the District Collector and the Commissioner of Rural Development and Panchayat Raj. The petitioner has challenged the said Government Order seeking a further direction by way of a writ of mandamus to implement the earlier Government Order passed in G.O.Ms.No.1837, RD & LA Department dated 29.11.1982. A reading of the said Government Order dated 29.11.1982 and the impugned order would show that the posts involved in both the Government Orders are Government posts. Therefore, the petitioner having its members as employees of the third respondent does not have any legal right to challenge the impugned order. Moreover the posts have been created by the earlier Government Orders relied on by the petitioner. When such is a position the petitioner cannot turn round and say that the posts involved are the posts of the third respondent and not the Government https://hcservices.ecourts.gov.in/hcservices/ posts. In other words while being the beneficiary of the earlier Government Order by which Government posts have been created and payment have been made by the respondents 1 and 2, the petitioner thereafter cannot contend that the said posts are not Government posts. Hence this Court is of the opinion that the petitioner is neither an aggrieved body nor an affected party to challenge the impugned order. 9.A Writ of Mandamus can only be issued when there is a legal right. As observed earlier the petitioner does not have the legal right. When there is no legal right the extraordinary relief by invoking the jurisdiction of this Court cannot be extended to the petitioner. The power under Article 226 of the Constitution of India is a discretionary relief and such a power cannot be exercised to the present case on hand. Moreover nobody has got a vested right to seek a promotion. The main contention of the petitioner is that by virtue of the Government Order impugned in the writ petition the chances of promotion to the members of the petitioner would be reduced. This Court is of the considered opinion that even assuming the same is true it cannot be a ground to challenge the impugned order since right to promotion is neither a vested right nor a fundamental right. The decision taken by the respondents 1 and 2 is being a policy decision, this Court cannot go into the rationale behind the said decision since the policy decision evolved by an authority on a consideration of a material available on record cannot be challenged and set aside until and unless the same bristles with arbitrariness and malafides. A reading of the impugned order would show that the same is based upon a consideration of the materials available on record and on a rationale basis. Therefore under those circumstances, the impugned order cannot be questioned. Moreover the writ petitioner has not given any sufficient reasons for challenging the impugned order at a belated stage by which time the impugned order has been given effect to. 10.Hence taking into consideration of the above said facts and also the subsequent development by which the post involved in the writ petition have been re-designated and re-deployed for some other purpose by virtue of the Government Order passed in G.O.Ms.No.67, Rural Development and Panchayat Raj Department dated 20.07.2009 the present writ petition is not maintainable in law and facts. 11.In the judgment reported in (2009) 1 SCC 297 [VIRENDER CHAUDHARY v. BHARAT PETROLEUM CORPORATION] the Hon'ble Apex Court has held that a delay of 1 ½ years in challenging the impugned proceedings is fatal and the writ petition is liable to be dismissed on the ground of estoppel, waiver and acquiescence. Therefore under those circumstances, the Hon'ble Apex Court was pleased to hold that the discretionary and equitable relief under Article 226 of the Constitution of India need not be exercised if the writ petitioner is https://hcservices.ecourts.gov.in/hcservices/ guilty of delay and laches. The Hon'ble Apex Court in the said judgment has observed as follows: "14.He, however, filed a writ application only on or about 23.11.2004. The High Court may be correct in its view that the purported cancellation of empanelment of the fifth respondent was made on a wrong premise. Though the advertisement published in Navbharat Times mentioned "framing of charge in a criminal case" as a disqualification, in the advertisement published in The Tribune and Dainik Tribune framing of charge in a criminal case was not mentioned as a disqualification. In the application form also, the applicant was not required to furnish any information regarding any framing of charge in a criminal case. It was neither necessary nor possible for the fifth respondent to disclose the fact that two first information reports had been lodged against him and in one of them he had been charge-sheeted. The purported disqualification attributed to him, therefore, led to an unjust decision. The High Court, however, in our opinion failed to take into consideration the effect of delay and laches on the part of respondent 5 in approaching the High Court. A writ remedy is a discretionary remedy. The court exercises its jurisdiction only upon satisfying itself that it would be equitable to do so. Delay and/or laches, indisputably, are the relevant factors. 15.The superior courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the applicant in a case of this nature. While doing so, the Court although not oblivious of the fact that no period of limitation is provided for filing a writ petition, but emphasis is laid that it should be filed within a reasonable time. A discretionary jurisdiction under Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and laches. 16.In Uttaranchal Forest Development Corpn. v. Jabar Singh this Court held: "43.... It is not in dispute that the effective alternative remedy was not availed of https://hcservices.ecourts.gov.in/hcservices/ by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the wit petitions were admittedly filed in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches." 17.In NDMC v. Pan Singh this Court held: "16.There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. 17.Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. 18.In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel it was held: "104...'26.Acquiescence is