IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.29633 of 2006 (O.A.No.2185 of 1996) and W.P.No.1816 of 2008 K.Elangovan ... Petitioner in both WPs Vs 1.The State of Tami Nadu Rep. By the Secretary to Government, Information and Tourism Department, Fort St.George, Madras – 600 009. 2.The Director of Tourism, Panagal Building, Saidapet, Madras – 15. ... Respondents in W.P.No.29633/2006 1.The State of Tami Nadu Rep. By the Secretary to Government, Tourism and Culture Department, Fort St.George, Madras – 600 009. 2.The Director of Tourism, Tamil Nadu Tourism Complex, Wallajah Road, Chennai – 600 002. 3.K.Tamilarasi ... Respondents in W.P.No.1816/2008 (R3 impleaded as per order dated 16.6.2008 in M.P.No.2/08 in W.P.No.1816/2008 by SNJ) PRAYER in W.P.No.29633/2006:- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, to quash the impugned order of the second respondent in proceedings NO.3186/TE-2/95-2 dated 19.02.1996 and consequently to direct the respondents to make a panel for the promotion to the post of Tourist Officer for the year 1988 by including the name of the applicant in the said panel and consequently to promote the applicant as Tourist Officer with effect from 1988 with all consequential benefits. https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.No.1816/2008:- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Declaration, declaring G.O.Ms.No.174 Tourism and Culture (T2) Department dated 15.11.2007 issued by the first respondent amending the Special Rules for the Tamil Nadu General Service (Section 16 in Volume II of the TamilNadu Services Manual 1969) with retrospective effect as illegal, ultravires of the Constitution of India thus void ab initio. For petitioner W.P.No.29633/2006: Mr.R.Parthiban W.P.No.1816/2008 : Mr.Karthik Mukundan For Respondents : Mr.R.Neelakantan,G.A. for R1 and R2 Mr.M.Ravi for R3 in W.P.No.1816/2008 C O M M O N O R D E R The petitioner in both the writ petitions are one and the same person. The petitioner originally filed O.A.No.2185 of 1996 (W.P.No.29633/2006) challenging the order dated 19.02.1996 passed by the second respondent – the Director of Tourism. By the said order, the petitioner was informed that there was no direction from the Tribunal in O.A.No.365 of 1993 dated 25.01.1994 to include the petitioner's name in the panel of the year 1998 for the post of Tourist Officer. The petitioner was informed that action being initiated for amending the special rule for the post of Tourist Officer as observed by the Tribunal. 2. On notice from the Tribunal, the respondents have filed a reply affidavit dated 15.05.1997. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re- numbered as W.P.No.29633 of 2006. Even during the pendency of the said writ petition, the filed has filed the second writ petition being W.P.No.1816 of 2008 before this Court. 3. In the second writ petition, the petitioner had challenged the order in G.O.Ms.No.174 Tourism and Culture (T2) Department dated 15.11.2007 issued by the first respondent. By the said Government Order, the State Government amended the special Rules with effect from 22.07.1988. By the amendment, it was stated that persons who did not pass the test as on 02.07.1988 shall pass the test within a period of three years from the said date. 4. The second writ petition was admitted on 24.01.2008. An order of interim stay was also granted on the same day. Subsequent to that, one K.Tamilarasi filed M.P.No.2 of 2008 to get herself impleaded. This Court by an order dated 16.06.2008 impleaded her https://hcservices.ecourts.gov.in/hcservices/ as the third respondent. Even though subsequently a vacate stay application was filed in M.P.No.3 of 2008, the matter came to be listed before this Court under the orders of the Hon'ble Chief Justice dated 19.09.2009. 5. Heard Mr.R.Parthiban and Mr.Karthik Mukundan, learned counsel appearing for the petitioner, Mr.R.Neelakantan, learned Government Advocate for the official respondents and Mr.M.Ravi learned counsel for the impleaded third respondent. 6. It is an admitted case that recruitment to the post of Tourist Officer was covered by adhoc rules framed by G.O.Ms.No.336 Information and Tourism Department dated 22.07.1988. The said post can be filled up by: a)direct recruitment; or b)by transfer from the category of publication officer; or c)by promotion from among the holders of the post of Publication Assistant in the Directorate of Tourism; or d)by recruitment by transfer from among the holders of the post of Information Assistant or Receptionist Grade -I in the Directorate of Tourism;or e)by recruitment by transfer from among the holders of the post of Receptionist Grade – II in the Directorate of Tourism. It was also stated under Rule 4(b) that no person shall be eligible for appointment unless he possess, the qualifications specified in the corresponding entries in column (2). For holding the post either by direct recruitment or promotion, a pass in the Account test for Executive Officers and District Office Manual Test is an essential qualification. It has been stated so under Rule 7 and under the same Rule, it was also indicated as follows:- "The persons now holding the posts of Tourist Officer shall pass the said tests within two years from the date of publication of these rules in the Tamil Nadu Government Gazette, otherwise his future increments will be stopped till the tests are passed. Such inability to draw increments shall not have the effect of postponing his future increments after he has passed the said test." 7. Subsequently, the Rules were amended by G.O.Ms.No.246 Information and Tourism (T2) Department dated 03.09.1991. For the post of Tourist Officer, apart from direct recruitment, the only feeder categories who can be appointed by transfer were Publication Officers or Publication Assistants or Information Assistants or Receptionists Grade I or II. Even to those who are to be appointed by recruitment by transfer, a pass in the Account Test for Executive Officer and District Officer Manual Test is essential. When the panel for the post of Tourist Officer were made for the year 1988-89, it contained the names of four officers. For the year 1989-90, a 'Nil' list was prepared and for the year 1990-91 one Sivaramakrishnan was included in the panel. https://hcservices.ecourts.gov.in/hcservices/ 8. The petitioner filed O.A.No.355 of 1993 before the Tribunal. The Tribunal by its order dated 25.01.1995 set aside the panel and observed as follows:- "As we have emphasised on several occasions, if the rules provide for appointment by different methods, there should be specific provisions regulating the manner in which the different methods should be adopted, and in regard to different categories eligible for appointment by a method, such as promotion or recruitment by transfer the manner in which the different categories will be considered should also be specifically laid down in the rules. Otherwise the rules will be arbitrary, giving for adhoc decisions in regard to the appointment as and when vacancies arise, as in this case." 9. After the order of the Tribunal, the Government issued G.O.(2D)No.18 Information and Tourism Department dated 02.12.1994 appointing the petitioner temporarily as Tourist Officer under 10 (a)(i) of the Tamil Nadu State and Subordinate Service. The petitioner had sent a representation dated 19.07.1995 stating that since the panels were prepared from the year 1988 onwards, he should have been promoted and his representation should be considered. The petitioner was informed by the second respondent that the Tribunal gave no direction to include his name in the panel for the year 1988 and the Government was contemplating amendment of the Special Rules. It is at this stage, he has come forward to file the first writ petition. 10. Thereafter, the Government had issued the impugned G.O.Ms.No.174 Tourism and Culture Department dated 15.11.2007 not only amending the Rules retrospectively regarding passing of the Account Test by giving three years time but the Rule was also made retrospectively to come into effect from 22.07.1988. That was challenged in the second writ petition. 11. In the seniority list which stood as on 1994, many of the persons in the feeder category had passed the Account Test required for the post only in November 1988 and some persons in 1989 and 1990. Whereas, the petitioner had passed the test as early as May 1988. The attempt by the respondents was only to justify the appointment of unqualified persons. The rule making power cannot be abused by making a retrospective rule. 12. It is stated by the impleaded third respondent that the petitioner had filed a miscellaneous petition in M.A.No.2388/1994 in O.A.No.355 of 1993 for inclusion of his name in the panel for the year 1988. The Tribunal rejected his application. It is also stated that the Government has power to frame rules retrospectively and the Rules were amended pursuant to the direction given by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 13. In the counter affidavit filed by the official respondents, it was stated that M/s.R.Dharmaraj, S.R.Krishnamoorthy, E.D.Dharmaraj Balabharathi, M.Jayaraj were working for more than 25 years. Therefore, they were appointed as Tourist Officers based on their seniority. The petitioner, who is admittedly a junior cannot get into the panel for the year 1988. Infact at the time when the Government had issued the orders some persons were either retired or died. The attempt by the petitioner that he should be promoted by including his name in the panel for the year 1988 cannot be accepted. Infact based on the petitioner's writ petition, the Tribunal gave an observation as the Rules require amendment and accordingly, the Government had made the amendment. The Government has also got power to make a retrospective amendment. Similar stand was taken in the counter affidavit filed in the first writ petition. 14. In the light of the above factual matrix, Mr.Karthik Mukundan, learned counsel appearing for the petitioner submitted that the impugned order giving retrospective amendment was illegal. He placed reliance upon the judgment of the Supreme Court in Union of India v. Tushar Ranjan Mohanty reported in (1994) 5 SCC 450. In paragraphs 14 and 15, it was observed as follows:- "14. The legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstitutional acts of the Executive. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation. 15. Respectfully following the law laid down by this Court in the judgments referred to and quoted above, we are of the view that the retrospective operation of the amended Rule 13 cannot be sustained. We are satisfied that the retrospective amendment of Rule 13 of the Rules takes away the vested rights of Mohanty and other general category candidates senior to Respondents 2 to 9. We, therefore, declare amended Rule 13 to the extent it has been made operative retrospectively to be unreasonable, arbitrary and, as such, violative of Articles 14 and 16 of the Constitution of India. We strike down the retrospective operation of the rule. In the view we have taken on the point it is not necessary to deal with the other contentions raised by Mohanty." 15. Per contra, Mr.M.Ravi, learned counsel for the impleaded third respondent relied upon the following judgments: https://hcservices.ecourts.gov.in/hcservices/ i)Virender Singh Hooda and others v. State of Haryana and another reported in (2004) 12 SCC 588 ii)State Bank's Staff Union (Madras Circle) v. Union of India and others reported in 2005 (5) CTC 629. 16. In the first judgment in Virender Singh Hooda's case (cited supra), the legislative power to make law with retrospective effect is well recognised. But however in the same judgment, it was also indicated that the power to retrospectively make laws cannot have any power to change the judgment of Court of law either retrospectively or prospectively. No one can encroach upon the filed covered by the other. The laws made by the legislature have to conform to the constitutional provisions. It was also held that the contention that vested rights cannot be taken away by the legislature by way of retrospective legislation cannot be accepted. But only in case where such retrospective effect will be impermissible, if it violates Articles 14 or 16 or any other constitutional provision. 17. In State Bank's Staff Union's case (second cited), the distinction between 'Retroactive' and 'Retrospective' was discussed. But in deciding a retrospective legislation, public interest must be a guiding philosophy and curative statutes are by their very nature intended to operate upon and affect past transactions. 18. In the present case, it must be noted that the petitioner who was fully qualified had moved the Tribunal in O.A.No.355 of 1993. Pursuant to his challenge, the Tribunal held that the prescription of the passing of Account Test is a requirement to hold the post even by recruitment by transfer. Hence, modification of this Rules by G.O.Ms.No.316 dated 18.11.1992 and G.O.Ms.No.216 dated 20.07.1993 held to be irregular and void ab initio and the panel prepared by G.O.Ms.No.216 dated 20.07.1993 was also illegal. If the said panel was held to be illegal, automatically a fresh panel should have been prepared with reference to the qualified persons available as on that date. 19. But in the present case, despite quashing of the panel, the respondents have granted the petitioner only a temporary post under Rule 10(a)(i) allegedly to give effect to the order of the Tribunal, as can be seen from G.O.(2D)No.18 Information and Tourism Department dated 02.12.1994. The respondents cannot warm up posts by waiting for the State Government's amendment to the Rules. Those Rules came after 13 years by the impugned G.O.Ms.No.174 dated 15.11.2007. 20. Curiously by the said amendment, persons who were not qualified were given three years' time to pass the test. The same amendment was also made retrospectively to take efect from https://hcservices.ecourts.gov.in/hcservices/ 22.07.1988. It is only for the purpose of making unqualified persons eligible to get into the panel for the year 1988-89 though inclusion of their names in the panel was set aside by the Tribunal. While the State Government has power to make retrospective Rules under 309 of the Constitution, the said power cannot be exercised to take away the vested right accrued to any person as held by the Supreme Court. 21. In the present case, the petitioner has successfully challenged the appointment of unqualified persons. In order to defeat the order passed by the Tribunal, the Rule was inserted retrospectively and those unqualified persons were given sufficient time to pass the test so as to include their names for the post of Tourist Officers. It is un-understandable as to how the Government can appoint persons who were not qualified on the date of the panel. If the Government was serious in implementing the orders passed by the Tribunal, they should have appointed the petitioner as a Tourist Officer after the orders of the Tribunal in a regular capacity by including his name in the panel. 22. On the contrary, the petitioner's case was overlooked and promotional panel was made in respect of dead and retired persons. Even in the case of the impleaded third respondent, she joined the post of Tourist Officer on 15.02.1999. The third respondent passed the first test only on May 1984 just like the petitioner. But while the petitioner had passed the necessary Account test in May 1988, the third respondent had passed the test only in May 1990. Thanks to the retrospective amendment, she was made senior to the petitioner. 23. While this Court is of the view that the State Government has power to make retrospective Rule, but in so far as the present amendment denies the petitioner his right to get included in the panel for the year 1988-89 in the post of Tourist Officer is illegal. Therefore, a direction will be issued to the official respondents to include the petitioner in the panel for the year 1988-89 for the post of Tourist Officer and also to grant him promotion from the said date with all consequential benefits. 24. The writ petitions will stand allowed to the extent indicated above. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary to Government, The State of Tami Nadu Tourism and Culture Department, Fort St.George, Madras – 600 009. 2.The Director of Tourism, Tamil Nadu Tourism Complex, Wallajah Road, Chennai – 600 002. 3.The Secretary to Government, Information and Tourism Department, Fort St.George, Madras – 600 009. 4.The Director of Tourism, Panagal Building, Saidapet, Madras – 15. + 1 cc to Mr. Karthik, Mukundan, Advocate SR No.7268 + 1 cc to Government Pleader, SR No.7791 + 1 cc to Mr. M. Ravi, Advocate SR No.7096 RB(CO) SR/15.2.2010 order in W.P.No.29633 of 2006 and W.P.No.1816 of 2008 https://hcservices.ecourts.gov.in/hcservices/