IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.35548, 37290 and 43968 of 2006 and 336 of 2007 (O.A.NOs.3593 and 9504 OF 1998, 3880 of 2000 and 7142 of 2001) and M.P.NO.1 OF 2008 W.P.NO.35548 OF 2006: Tamilnadu Govt. Statistics Subordinate Officers' Association, Regd. No.268/76, represented by its General Secretary, G.Jaganathan, D.M.S. Compound, Chennai-600 006. ..Petitioner Vs. 1.State of Tamil Nadu, represented by Secretary, Planning & Development Department, Chennai-600 009. 2.Director, Directorate of Economics and Statistics, D.M.S. Compound, Chennai-600 006. 3.Tamil Nadu Public Service Commission, represented by its Secretary, Chennai-600 002. ..Respondents W.P.No.37290 of 2006: Tamilnadu Govt. Statistics Subordinate Officers' Association, represented by its General Secretary, G.Jaganathan, D.M.S. Compound, Chennai-600 006. ..Petitioner Vs. 1.Tamil Nadu Public Service Commission, represented by its Secretary, Chennai-600 002. https://hcservices.ecourts.gov.in/hcservices/ 2.State of Tamil Nadu, represented by Secretary, Planning & Development Department, Chennai-600 009. 3.Director, Directorate of Economics and Statistics, D.M.S. Compound, Chennai-600 006. ..Respondents W.P.No.43968 of 2006: Tamilnadu Government Statistical Subordinate Officers' Association, Regd. No.205/86, represented by its General Secretary, R.Srinivasan, D.M.S. Compound, Chennai-600 006. ..Petitioner Vs. 1.State of Tamil Nadu, represented by Secretary, Planning & Development Department, Chennai-600 009. 2.Director, Directorate of Economics and Statistics, D.M.S. Compound, Chennai-600 006. 3.Tamil Nadu Public Service Commission, represented by its Secretary, Chennai-600 002. ..Respondents W.P.No.336 of 2007: Tamilnadu Government Statistical Subordinate Officers' Association, Regd. No.297/90, represented by its General Secretary, R.Srinivasan, D.M.S. Compound, Chennai-600 006. ..Petitioner Vs. 1.State of Tamil Nadu, represented by Secretary, Planning & Development Department, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.Director, Directorate of Economics and Statistics, D.M.S. Compound, Chennai-600 006. 3.Tamil Nadu Public Service Commission, represented by its Secretary, Chennai-600 002. ..Respondents W.P.No.35548 of 2006 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records on the file of the firs respondent relating to impugned G.O.Ms.No.155, dated 22.10.1991 and the consequential impugned notification of the third respondent, dated 10.03.1998 bearing Ref. Nil and to quash the same. W.P.No.37290 of 2006 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records on the file of the first respondent relating to the impugned notification dated 2.9.98 bearing No.24/98 with regard to the appointments for the post of Assistant Director of Statistics and all further recruitment process and to quash the same. W.P.No.43968 of 2006 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the third respondent connected with the impugned notification No.Nil, dated 7.2.2000 calling for applications for direct recruitment to the post of Assistant Director of Statistics and to quash the same. W.P.No.336 of 2007 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records connected with the impugned notification No.Nil in Advertisement No.020, dated 6.10.2001 issued by the third respondent and to quash the same and consequently allot the above vacancies to the promottees in accordance with the rules. For Petitioner : Mr.D.Bharatha Chakravarthy for Mr.Perumbulavil Radhakrishnan in W.P.Nos.35548 and 37290 of 2006 Mr.R.Rengaramanujam in W.P.Nos.43968/2006 and 336 of 2007 For Respondents : Mr.Veeraraghavan, Additional Advocate General assisted by Mr.R.Neelakantan, GA Mr.M.Baskar for TNPSC https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The petitioners in all the four writ petitions is the service association representing the Subordinate Officers in the Statistics Department of the State Government represented by its Secretary. They filed four OAs before the Tribunal. 2.This matter came to be grouped together and posted before this court by an order of the Hon'ble the Chief Justice, dated 12.9.2009. 3.Heard the arguments of Mr.D.Bharatha Chakravarthy representing Mr.Perumbulavil Radhakrishnan appearing for petitioners in W.P.Nos.35548 and 37290 of 2006, Mr.R.Rengaramanujam, the counsel for petitioner in W.P.Nos.43968 of 2006 and 336 of 2007 and also Mr.Veeraraghavan, learned Additional Advocate General assisted by Mr.R.Neelakandan, learned Government Advocate for respondent State and Mr.M.Baskar, counsel for TNPSC and perused the records. 4.The first OA filed by them is OA No.3593 of 1998. The prayer in the said OA is a challenge to the Government Order in G.O.Ms.No.155, Planning and Development (Statistics) Department, dated 22.10.1991 as well as the notification issued by the third respondent TNPSC, dated 10.3.1998. 5.By the impugned order in G.O.Ms.No.155, the State Government amended the Special Rules for the Tamil Nadu Statistics Service. By the said amendment, the existing sub Rule (b) was substituted and it reads as follows: "(b)Notwithstanding anything contained in rule 6 in Part II of General Rules of the Tamil Nadu State and Subordinate Service Rules, the proportion of all vacancies in category 3 to be filled or reserved to be filled by recruitment by transfer and direct recruitment shall be in the order of rotation specified below:- (1)Recruitment by Transfer (2)Recruitment by Transfer (3)Direct Recruitment (4)Recruitment by Transfer (5)Recruitment by Transfer " 6.The said amendment had come into effect from the date of the order passed by the Government, dated 22.10.1991. The amendments were made in exercise of power made under Article 309 of the Constitution. The reasons for bringing the amendments were set out in the order and it reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "As per sub-rule (b) of Rule 2 of the Special Rules for the Tamil Nadu Statistics Service, the proportion of substantive vacancies in the category of Assistant Director of Statistics to be filled or reserved to be filled by recruitment by transfer and direct recruitment shall be in the order of rotation specified below:- (1)Recruitment by transfer (2)Recruitment by transfer (3)Direct Recruitment (4)Recruitment by transfer (5)Recruitment by transfer 2.In the Department of Statistics, there are 99 posts of Assistant Director of Statistics at present. Out of these posts, 36 posts are permanent in nature. However, 63 posts are temporary in nature. These temporary posts of Assistant Director of Statistics include the posts borne on foreign service and posts of Assistant Director of Statistics on other duty in other Government Departments. As per the Special Rules for the Tamil Nadu Statistics Service mentioned in para 1 above, the temporary posts cannot be taken into account for making appointment by direct recruits. The present procedure of recruiting of direct recruits only against the substantive vacancies has resulted in the situation that the department of Statistics is at present having only 9 direct recruit Assistant Director of Statistics in the service against 99 posts (both permanent and temporary) of Assistant Director of Statistics in the Department. It was felt that the Statistics Department should be staffed by men of high calibre with adequate educational qualifications, besides appropriate experience. It was, therefore, suggested that the direct recruits shall be appointed against all vacancies i.e. substantive and non-substantive vacancies, in the department. In the light of the above position, the Government accept the proposal and accordingly amend the Special Rules for the Tamil Nadu Statistics Service suitably." (Emphasis added) 7.After amendments were made, the petitioners did not challenge the said amendment. They were making representations during the said period. It is only when the third respondent TNPSC issued a notification, dated 10.3.1998, calling for applications to the post of Assistant Director of Statistics in the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Statistics service, inviting applications for six posts by direct recruitment, they chose to challenge the same. 8.The Tribunal admitting the OA, by an order, dated 4.5.1998, granted an interim order stating that any appointments made pursuant to the G.O. will be subject to the result of the OA. Pending the OA, the respondent State has filed a reply affidavit, dated 25.2.1999 and the TNPSC has filed an adoption reply affidavit, dated 10.06.1999, adopting the stand of the State. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.35548 of 2006. When the matter was posted before this Court, the official respondents filed M.P.No.1 of 2008 for vacating the interim order, dated 4.5.1998. 9.The said association filed an another OA being OA No.9504 of 1998 once again challenging the notification issued by the TNPSC in notification No.24/98, dated 2.9.98, calling for applications to the post of Assistant Director of Statistics with reference to five posts based upon communal roster. Pending the OA, the Tribunal once again, by an interim order, dated 18.11.1998, stated that any appointment made will be subject to the result of the OA and the respondents were directed to incorporate the interim order in each appointment order. 10.In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.37290 of 2006. The respondents have filed a reply affidavit, dated 2.2.2007 adopting the earlier counter affidavit filed in the previous OA. 11.The petitioner Association once again filed OA No.3880 of 2000 before the Tribunal, seeking to challenge the notification issued by the TNPSC, dated 7.2.2000, calling for applications to the post of Assistant Director of Statistics in respect of seven vacancies by giving due representation to communal roster. 12.The Tribunal issued notice of motion on 13.6.2000 on this OA and granted an injunction not to publish the result until further orders. But, however the third respondent was directed to proceed with the recruitment process. Though the respondents filed M.A.No.6568 of 2001, seeking to vacate the interim order, for the reasons best known, the same was not taken up for consideration. Thereafter, the respondents have filed a detailed reply affidavit, dated 2.5.2001 together with supporting documents. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.43968 of 2006. 13.The Association also filed OA No.7142 of 2001 before the Tribunal once again challenging the notification issued by the TNPSC in Advertisement No.020, dated 6.10.2001, calling for applications for the post of Assistant Director in respect of six vacancies provided for communal roster. https://hcservices.ecourts.gov.in/hcservices/ 14.Pending the OA, the Tribunal granted an interim stay for a period of two weeks, by an order, dated 8.11.2001 and subsequently, by a further order, dated 23.11.2001 extended the interim stay until further orders. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.336 of 2007. 15.In view of the interconnectivity among the four writ petitions, the matters were grouped together and a common order is passed. 16.The case of the petitioner was that the members of the petitioner's Association were working in the Statistical Department as Assistant Statistical Investigators, Statistical Inspectors and Statistical Officers. They are eligible to be promoted to the posts of Assistant Directors of Statistics by recruitment by transfer. As per the Special Rules framed for the Tamil Nadu Statistical Services, the post of Assistant Director of Statistics is filled up by direct recruitment and recruitment by transfer from among the holders of posts of Statistical Officers in the department of Statistics or from the members of any other services other than the Superintendent in the department of Statistics. 17.The method of recruitment for the said post is as follows: Posts Method of appontment Qualifications Assistant Director of Statistics Direct recruitment 1.Must not have completed 30 years of age on the first day of July of the year in which the selection for appointment to the post is made; 2.Must hold a degree of M.A., or M.Sc., or a first class degree of B.A., or B.Sc., with Statistics, Mathematics, Economics or Mathematical Economics as the main subject; and 3.Must have experience in the Statistical Investigation for a period of not less than three years in the case of persons holding a Master degree and five years in the case of persons holding a Bachelor degree. https://hcservices.ecourts.gov.in/hcservices/ Posts Method of appontment Qualifications Recruitment by transfer from any other service. (W.e.f.27.10.87 as per G.O.Ms.No.162, P&D(ST) Dept., dt.24.11.88. 1.Must not have completed 57 years of age on the first day of July of the year in which the selection for appointment to the post is made ((vide G.O.Ms.No.200, P&D(ST) Dept., dt.22.12.93. 2.Must hold a degree of M.A., or M.Sc., or a first class degree of B.A., or B.Sc., with Statistics, Mathematics, Economics or Mathematical Economics as the main subject; and 3.Must have experience in Statistical Investigation for a period of not less than three years in the case of persons holding a Master degree and 5 years in the case of persons holding a Bachelor degree. 4."Must have passed the Account Test for Executive Officers" provided that a person who has passed the Account Test for Subordinate Officers Part I need not pass the Account Test for Executive Offices. Provided that the first class degree of B.A., B.Sc., with Statistics, Mathematics, Economics or Mathematical Economics as main subject referred to in item (2) above shall not be insisted upon in the case of Statistical Officers of the Statistics Department who have put in a total service of not less than two years of Statistical Officer, either in the Statistics Department or in the borrowing Department, if the person is on other duty, on deputation or on https://hcservices.ecourts.gov.in/hcservices/ Posts Method of appontment Qualifications (W.e.f.29.5.89 as per G.O.Ms.No.88, P&D(ST) Dept., dt.29.5.89) Foreign Service from the Statistics Department and are holding a degree of B.A., or B.Sc., with Statistics, Mathematics, Economics or Mathematical Economics as the main subject. 5."Provided further that field experience for a period of not less than one year on duty in the post of Statistical Officer in any of the Revenue Division in the District Statistical units shall be insisted." Provided also that such field experience shall not be insisted in respect of recruitment by transfer from any other service to be made, for a period of two years from the 29th May 1989. (G.O.Ms.No.88, P&D (ST) Dept., dt.29.5.89.) 18.The ratio has also been fixed between the departmental appointees appointed by the method of transfer from the other service and by direct recruitment in the following manner: Assistant Director 1.Direct Recruitment, or of Statistics 2.Recruitment by transfer from among the holders of the posts of Statistical Officers in the Department of Statistics or from Members of any other service other than the Superintendents and Statistical Inspectors in the Department of Statistics. b)Notwithstanding anything contained in rule 6 in Part II of General Rules of the Tamil Nadu State and Subordinate Service Rules, the proportion of all vacancies in category 3 to be filled or reserved to be filled by recruitment by transfer and direct recruitment shall be in the order of Rotation specified below: https://hcservices.ecourts.gov.in/hcservices/ 1)Recruitment by Transfer 2)Recruitment by Transfer 3)Direct Recruitment 4)Recruitment by Transfer 5)Recruitment by Transfer . 19.According to the petitioner, originally, vacancies were filled up and the ratio was followed in respect of permanent vacancies alone, but by virtue of amendment, even temporary vacancies were added for recruiting both streams. This created problem to the departmental candidates, since direct recruits were allowed to occupy permanent posts. When there is temporary vacancy arising out of the post created in this department or in the other department, than departmental appointees were reverted for want of vacancies. This had resulted in an anomaly in filling up the post. Therefore, the ratio prescribed in the rules should be as per Rule 6 of the Tamil Nadu State and Subordinate Services Rules, wherein it has been stipulated as follows: "6.Method of Recruitment- Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer.- (a)the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre; (b)a person shall be recruited direct only against substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the special Rules referred to in clause (a); and (c)recruitment to all other vacancies shall be made by transfer: Provided that nothing in this rule shall adversely affect any person who on the date of issue of the Special Rules referred to in clause (a) was a probationer in such service, class or category, as the case may be." (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ 20.While general rule was about the permanent vacancies, the amendment had calculated entire vacancies (both temporary and permanent). Therefore, the amendment is advantageous to the direct recruits and there is no rational behind making such an amendment. What the respondents could not have done directly, they had done it indirectly. The amendment is arbitrary and violative of Articles 14 and 16 of the Constitution. The reason set out for making the amendment was that the direct recruits are more efficient was not borne out by records. Once a rule is framed and departmental candidates were made eligible to the post based upon the same educational qualifications, it is not open to the respondent State to mention that direct recruits are more efficient than the promotees. This is an insult to the existing departmental promotees. 21.The petitioner had also produced statistics to show the representations given to departmental promotees in the higher posts and it was stated that the ratio had never been followed. It is also stated that their case had also been recommended favourably by the Director vide her letter to the Development Commissioner, dated 22.10.2008. Therefore, the impugned rule should be held to be arbitrary and violative of Articles 14 and 16 of the Constitution. 22.Per contra, Mr.S.Veeraraghavan, learned Additional Advocate General stated that the contentions raised by the petitioners were extraneous and at no point of time, the respondents have violated either the quota and rota rule prescribed in terms of Rule 2(b) of the Special Rules. It may be possible that the departmental promotees may get promotion at the tail end of their career and may get retired from service. Since rotational appointments were made wherein the departmental promotees have 80% of the share, they have no cause for complaint. Further, it would be open to the respondent State even to alter the ratio for promotion and it cannot be held to be violative of Articles 14 and 16 of the Constitution. 23.In the present case, in order to give effect to the ratio, the State Government decided to accommodate both temporary and permanent vacancies for the purpose of ratio. The petitioner having accepted the ratio cannot contend that temporary vacancy cannot be included while filling up the vacancies. On the contrary, it is the policy of the State to infuse new hands through direct recruitment and there will be no constitutional violation in making direct recruits to any post. The State Government has taken a policy decision to include temporary vacancies also for the purpose of recruitment. It is not open to the petitioner to contend that Rule 6 of the General Rule will still apply. In fact, it is in order to overcome the restrictions placed in Rule 6, the Special Rules were amended. When once Special Rules cover the services, then naturally it is the Special Rule which will prevail. https://hcservices.ecourts.gov.in/hcservices/ 24.In the present case, the amendments have not altered the ratio or the promotional chances of the petitioner. Even otherwise, the right of the members of the petitioner's association is only a right to be considered for higher post, but not to have certain percentage in any promotion. The courts have consistently held that mere alteration of the ratio will not violate the Articles 14 and 16 of the Constitution. 25.Since the claim of the petitioner Association is that the chances of promotions of their members will get affected by the impugned amendment it is necessary to refer to certain decisions of the Supreme Court which will have a bearing on the issues raised in the present case:- 26.The Supreme Court in Union of India v. S.L. Dutta reported in (1991) 1 SCC 505 held in paragraphs 14, 17 and 18 as follows: 14. In connection with the question as to whether the conditions of service of respondent 1 could be said to be adversely affected by the change in the promotional policy, our attention was drawn by learned Additional Solicitor General to the decision of this Court in State of Maharashtra v. Chandrakant Anant Kulkarni (1981 (4) SCC 130). There it was held by a bench comprising three learned Judges of this Court that mere chances of promotion are not conditions of service, and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, chances of promotion are not. (See SCC p. 141, para 16.) Reference was also made to the decision of this Court in K. Jagadeesan v. Union of India (1990 (2) SCC 228) where the decision of this Court in State of Maharashtra v. Chandrakant Anant Kulkarni5 was followed. ..... 17....."We are not able to accept this contention. In our opinion, what was affected by the change of policy were merely the chances of promotion of the Air Vice-Marshals in the Navigation Stream. As far as the posts of Air Marshals open to the Air Vice- Marshals in the said stream were concerned, their right or eligibility to be considered for promotion still remained and hence, there was no change in their conditions of service." 18. ......"These are matters regarding which judges and the lawyers of courts can hardly be expected to have much knowledge by reasons of their training and https://hcservices.ecourts.gov.in/hcservices/ experience. In the present case there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote respondent 1 was taken, the policy had already been changed. The question is, therefore, whether this change can be said to be arbitrary or mala fide. As we have already pointed out, we are not in a position to hold that this change of policy was not warranted by the circumstances prevailing........" 27.2.Further, the Supreme Court in Syed Khalid Rizvi v. Union of India reported in 1993 Supp (3) SCC 575 has held in paragraph 31 which is as follows: 31. No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible. 28.The Supreme Court once again in Union of India v. N.Y. Apte reported in (1998) 6 SCC 741 held in paragraph 8 as follows: 8. Further, what all has been done in the Rules is only to include such persons in the field of consideration and give an opportunity to them to be considered for promotion. ..... It is too well settled that chance of promotion is not a right, nor a condition of service. 29.The Supreme Court in one of its earlier decision while dealing with the service conditions of Government servants held that even promotion will come within the ambit of Article 16 of the Constitution, vide its decision in S.G. Jaisinghani v. Union of India reported in (1967) 2 SCR 703 = AIR 1967 SC 1427. In that decision, the Supreme Court had also suggested that to avoid the controversy between two sources of recruitment to posts had suggested adoption of a roster system prescribing quota for the different sources. The following passages found in paragraphs 9 and 15 can be usefully reproduced below: 9."The relevant law on the subject is well-settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It https://hcservices.ecourts.gov.in/hcservices/ follows that there