IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.12.2010 C O R A M THE HONOURABLE MR.JUSTICE K.CHANDRU Writ Petition Nos.46001 to 46003 of 2006 (O.A.Nos.7078, 8584 and 8594 of 2000) S.Paulnadar .. Petitioner in W.P.46001/2006 P.Rajamani .. Petitioner in W.P.46002/2006 M.Maria George .. Petitioner in W.P.46003/2006 Vs 1.The Director of Fisheries Teynampet Chennai-600 006 2.The Government of Tamil Nadu rep. By the Secretary Animal Husbandry and Fisheries Department Secretariat, Chennai-600 009 .. Respondents in all the above WPs. Prayer:-These writ petitions have been originally filed before the Tamil Nadu Administrative Tribunal O.A.Nos.7078, 8584 and 8594 of 2000 and transferred to this Court and renumbered as W.P.Nos.46001 to 46003 of 2006 under Article 226 of the Constitution of India to issue a writ of mandamus to direct the respondents to promote the petitioners as Fisheries Statistical Investigator from the post of Fisheries Overseer Grade II with effect from 29.10.1991, 28.10.1991 and 28.10.1991 respectively, the date of issue of G.O.Ms.NO.346/91 with backwages and appoint them in the existing vacancies of Fisheries Overseer Grade II. For petitioners ... Mr.M.Ramesh in all WPs For respondents ... Mr.R.Murali, Govt.Advocate in all WPs O R D E R The three writ petitions arose out of O.A.Nos.7078, 8584 and 8594 of 2000. O.A.7078 of 2000 was filed originally by three petitioners viz., S.Paulnadar, P.Rajamani and M.Maria George seeking to challenge the amendment made to the Service Rules by https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.232, Animal Husbandry and Fisheries Department dated 17.11.1999, wherein and by which, the recruitment to the post of Fishery Overseer Grade II was prescribed as that through Direct recruitment and through promotion from the categories of Fishery Guard and Fishermen. 2. The case of the petitioners was that it did not include the category of Fisheries Statistical Investigator in the special rules. When the O.A., came up on 21.09.2000, the second and third petitioners viz., P.Rajamani and M.Maria George called their names deleted from the O.A. Subsequently, the said O.A., was admitted on 20.12.2000. Subsequently, on 12.10.2000, O.A.No.7078 of 2000 was dismissed for want of prosecution. Thereafter, the other two petitioners viz., P.Rajamani and M.Maria George filed separate O.As viz., 8584 of 2000 and 8594 of 2000 before the Tribunal and that was admitted on 23.11.2000. In those two original applications, they never revealed the fact of filing separate O.As., and in column Nos.7 and 8, for the reasons best known to them, these facts were not disclosed. However, the first O.A.7078 of 2000 was also restored by an order of the Tribunal dated 01.12.2000. 3. On notice from the Tribunal, the respondents have filed a counter affidavit dated 28.01.2001 together with supporting documents. In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumbered as W.P.Nos.46001 to 46003 of 2006 as noted already. 4. It must be noted that an amendment to the Rule framed under 309 is legislative in character and only on the touch stone of Article 14 and 16 those amendments can be challenged. The Supreme Court vide Mallikarjuna Rao and Others Vs. State of Andhra Pradesh and others reported in 1990 (2) SCC page 707 has held that the Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislative or executive. See para 12. "12. This Court relying on Narinder Chand Hem Raj Vs. Lt.Governor, Administrator, Union Territory, Himachal Pradesh & State of Himachal Pradesh Vs. A Parent of a student of Medical College, Simla, held in Asif Hameed Vs. State of Jammu & Kashmir as under (SCC p.374 para 19) "When a state action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self – imposed limits. The Court sits in judgment on the action of a coordinate branch of the government. While exercising power of judicial review of https://hcservices.ecourts.gov.in/hcservices/ administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislative or executive." 5. The reason for not including the Statistical Investigator to the post of Fisheries Overseer Grade II as a Feeder Category as per the counter affidavit is that the Fisheries Statistical Investigator were paid only Honorarium according to the norms fixed by the Government. The said Honorarium was increased from time to time. The duties available to them will last only about a fraction of a month and at the maximum only 12 days in a month. Though originally, it was thought fit to include them in the feeder category, subsequently, under the reconsideration, it was decided that since there was no time scale of pay attached to the post ; there is no need to include them in the Feeder Category and accordingly, the said category was omitted. Due to the reorganisation in the department of Fisheries, it was also considered that the Fisheries Statistical Investigator are purely temporary post and not covered by any time scale of pay and since there are no funds to create regular posts converting them into regular Government servants. 6. Under these circumstances, there is no inclusion of such category as a Feeder category in the promotion post in the department. The view taken by the respondents cannot be found fault with and it is the matter coming under the policy framework of the department. The petitioners' post cannot be considered as a regular post and therefore, inclusion of such post as feeder category does not arise. 7. In view of the reasons stated above, the writ petitions stand dismissed. No costs. nvsri Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Director of Fisheries Teynampet Chennai-600 006 2.The Secretary Government of Tamil Nadu Animal Husbandry and Fisheries Department Secretariat, Chennai-600 009 + 3 ccs to Mr. M. Ramesh, Advocate SR No.88418 to 88420 + 3 ccs to Mr. P. Anandan, Advocate SR No.88389 to 88391 + 1 cc to Government Pleader, SR No.88696 GV(CO) SR/11.1.2011 W.P.Nos.46001 to 46003 of 2006 (O.A.Nos.7078, 8584 and 8594 of 2000) https://hcservices.ecourts.gov.in/hcservices/