Madras High Court
The Government Of Tamil Nadu vs N.Natarajan on 25 January, 2021
WA.Nos.48 and 181 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2021
CORAM :
The Hon'ble Mr.SANJIB BANERJEE, THE CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.Nos.48 and 181 of 2021
and C.M.P.Nos.846 and 510 of 2021
W.A.No.48 of 2021
1.The Government of Tamil Nadu,
rep. by its Additional Chief Secretary
to Government, Municipal Administration
and Water Supply Department (MA & WS)
Secretariat, Chennai 600 009.
2.The Commissioner of Municipal Administration,
11th Floor Urban Administrative Building
(Opp. To Cciba Building), No.75,
Santhome High Road, Raja Annamalaipuram,
Chennai 600 028. .. Appellants
-vs-
1.N.Natarajan
2.The Greater Chennai Corporation,
Rep. by its Commissioner,
Chennai.
3.Pugazhendi .. Respondents
Page 1 of 14
https://www.mhc.tn.gov.in/judis/
WA.Nos.48 and 181 of 2021
W.A.No.181 of 2021
Pugazhendhi .. Appellant
-vs-
1.N.Natarajan
2.The State of Tamil Nadu,
rep. by its Additional Chief Secretary to Govt.,
Municipal Administration & Water Supply Dept.,
Secretariat, Chennai 600 009.
3.The Commissioner of Municipal Administration,
11th Floor, Urban Administrative Building,
No.75, Santhome High Road, MRC Nagar,
Raja Annamalaipuram, Chennai 600 028.
4.The Greater Chennai Corporation,
Rep. by its Commissioner, Chennai. .. Respondents
Appeals filed under Clause 15 of the Letters Patent against the
order dated 23.12.2020 passed in W.P.No.8664 of 2020 on the file of
this Court.
For Appellants in : Mr.Vijay Narayan
WA.48 of 2021 Advocate General,
and for Respondents assisted by
2 and 3 in WA.181 of Mr.V.Jayaprakash Narayanan
2021 State Government Pleader
For Respondents
For R-1 in both WAs. : Mr..P.Wilson, Sr. Counsel
for M/s.P.Wilson Associates
for R-1
Page 2 of 14
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WA.Nos.48 and 181 of 2021
For R-3 in WA.48 of Mr.AR.L.Sundaresan
2021 and Appellant in Sr. Counsel, for
WA.181 of 2021 Mr.Dwarakesh Prabhakaran
for R-3
JUDGMENT
(Delivered by The Hon'ble Chief Justice)
The State and an aggrieved contractual employee are in appeal
against a judgment and order of December 23, 2020, by which the
writ petition instituted by a transferred Corporation employee was
substantially allowed.
2.The story really begins with a notification of December 20,
2019, but the history can be traced to 2016 by which the private
appellant herein, who was arrayed as the fourth respondent to the writ
petition, obtained an extension in service as the Chief Engineer of the
Greater Chennai Corporation. The initial extension was for a period of
two years on the ground that certain projects undertaken by the
Corporation could be completed smoothly if the fourth respondent to
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WA.Nos.48 and 181 of 2021
the writ petition continued in service. A similar extension for a further
period of two years followed in 2018, almost parroting the same lines.
Thus, it must not be lost sight of that the fourth respondent to the writ
petition was found to be indispensable for the completion of certain
continuing projects in the Corporation in the City.
3.Against this backdrop, followed the notification of December
20, 2019, which was the subject-matter of the challenge in the
proceedings under Article 226 of the Constitution. It was recorded in
such notification that the State Government was pleased to issue two
orders of postings and transfers as follows:
i. Thiru N.Natarajan, Chief Engineer, Office of the
Commissioner of Municipal Administration is transferred
and posted as Chief Engineer in the office of the
Commissioner of Greater Chennai Corporation, on
deputation basis.
ii. Thiru. Pugazhendhi, Principal Chief Engineer, Greater
Chennai Corporation is transferred and posted in the
Office of the Commissioner of Municipal Administration
on deputation basis.
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WA.Nos.48 and 181 of 2021
4.As noticed above, the extended services of the fourth
respondent to the writ petition could be availed of till or about June 30,
2020. On June 29, 2020, the writ petition came to be instituted, well
into the seventh month after the impugned notification of December
20, 2019 had been issued. The only saving grace was that the writ
petitioner had not joined his transferred post as Chief Engineer in the
Greater Chennai Corporation. The fourth respondent to the writ
petition had, however, assumed his charge at the office of the
Commissioner of Municipal Administration. It may also due to notice
that a further notification followed on June 30, 2020, by which the
tenure of the fourth respondent to the writ petition was extended,
albeit only on contractual basis and not as a continuing employee, for
a period of one year from July 1, 2020.
5.According to the writ petitioner, his transfer from the post of
Chief Engineer in the office of the Commissioner of Municipal
Administration to the similar sounding post in Greater Chennai
Corporation could not be seen in isolation of the corresponding posting
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WA.Nos.48 and 181 of 2021
and transfer. Indeed, the case made out by the writ petitioner was
that it was because the fourth respondent to the writ petition was
sought to be brought to the office of Commissioner of Municipal
Administration that the writ petitioner had to make way.
6.By the judgment and order impugned, the writ Court, inter
alia, held that there were no special circumstances for continually
extending the services of the fourth respondent to the writ petition in
some manner or the other; that the entire process of appointing the
fourth respondent to the writ petition in the office of the Commissioner
of Municipal Administration was arbitrary and amounted to malice in
law; and, the fourth respondent to the writ petition was not qualified to
occupy the post to which he was sought to be transferred nor was
there any authority to effect a transfer from a Corporation to a
Government body, though an employee could be transferred from one
Corporation to another.
7.The principal grounds canvassed by the official appellants
herein are that the writ petitioner's transfer was in accordance with
law and the matter ought to have ended at that; it was not the writ
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WA.Nos.48 and 181 of 2021
petitioner's concern as to how the fourth respondent was transferred,
particularly it was not a public interest litigation. The appellants also
assert that since the Court found that no case of malafides had really
been made out, the Court ought not to have interfered with an
administrative order that was necessarily made on administrative
grounds. The appellants also referred to paragraph 59 of the
impugned judgment to suggest that if the Court found that there was
sufficient latitude for the Government to engage anyone on a
contractual basis, including the fourth respondent, the Court should
not have passed the impugned order since it is still open to the
Government to reengage the fourth respondent on contractual basis.
8.To begin with, there appears to be little doubt that the fourth
respondent to the writ petition was not qualified to be appointed as the
Chief Engineer in the Commissioner of Municipal Administration. Under
the Tamil Nadu Municipal Engineering Service Rules, 1997, the Chief
Engineer in Corporation of Municipal Administration had to be selected
by promotion from Superintending Engineer in Municipal Corporations
other than the Greater Chennai Corporation. There is no dispute that
the fourth respondent did not hold the post of Superintending Engineer
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WA.Nos.48 and 181 of 2021
in a Municipal Corporation other than the Greater Chennai Corporation
and also that such person was not in the Tamil Nadu Municipal
Engineering Service and his only qualification was that he had been
employed by the Greater Chennai Corporation.
9.It is also evident, as has been appropriately noticed in the
judgment and order impugned that there was no express provision
permitting the transfer of a Corporation employee to a Government
service and the provisions relied upon on behalf of the fourth
respondent to the writ petition could not have permitted his transfer
from Greater Chennai Corporation to Corporation of Municipal
Administration.
10.Much reliance was placed by the appellants on a Division
Bench judgment of the Madurai Bench of this Court which has been
copiously referred to in the impugned judgment. After setting out the
portions of the judgment at 2014 (3) CTC 446 (B.Rajendran vs.
State), the writ Court held that such judgment would not, stricto
sensu, apply to the present case since that involved a Government
employee covered by the applicable provisions and there was no
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WA.Nos.48 and 181 of 2021
corresponding provision permitting the transfer of the fourth
respondent to the present writ petition from the Greater Chennai
Corporation to Corporation of Municipal Administration.
11.The writ Court observed that notwithstanding the latitude
available to a Government to extend the services of an employee or to
obtain the services of any person on contractual basis, such
extraordinary provisions cannot be used to do violence with the
general scheme of things as envisaged in the Constitution. There is
little scope to disagree with the writ Court on this count, particularly
since the indispensability of the fourth respondent to the writ petition
was not brought out in either letter of extension issued in 2016 and
2018. The further extraordinary step to, in effect, reengage the fourth
respondent to the writ petition on contractual basis by the further
notification of June 30, 2020, also does not disclose any or adequate
reasons why another employee could not have discharged the duties
or what special qualities or qualifications were possessed by the fourth
respondent to the writ petition for him to continue in service for more
than five years after he attained the age of superannuation.
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WA.Nos.48 and 181 of 2021
12.There is no doubt that the scope of judicial review in
administrative matters is limited and the administration must be given
the degree of latitude necessary to function smoothly and to take care
of exigencies and extraordinary situations. There are extraordinary
provisions even in the Constitution which recognised certain situations
being thrown up before the executive which require an exceptional
course of action. However, merely because provisions had been made
to the exception does not imply that such exceptional provisions have
to be resorted to without any justification or that such exceptional
provisions are used as an executive to favour a special person.
13.What appears to have weighed considerably with the writ
Court was the fact that there was little or no rationality in the fourth
respondent to the writ petition being transferred to Corporation of
Municipal Administration when the very reason for his extension was to
ensure continuity and the smooth completion of certain on-going
projects pertaining to the Greater Chennai Corporation. If the
concerned person's indispensability was on such ground, he could not
have been rationally alienated from the Greater Chennai Corporation
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WA.Nos.48 and 181 of 2021
and sent to some other body; never mind the fact that the transferring
authority possessed no power to transfer Corporation employee to a
Government service. If the contentions as put forth on behalf of the
appellants were to be given credence, the writ Court would have been
asked to put on blinkers to ignore the colossal irregularity perpetrated
by the State to protect and favour the fourth respondent to the writ
petition without there being any reasonable administrative grounds in
support thereof. There is no doubt that the writ petitioner had to
suffer the transfer from Corporation of Municipal Administration to the
Greater Chennai Corporation only for the fourth respondent to the writ
petition to be part in the Corporation of Municipal Administration. The
two parts to the order in the impugned notification of December 20,
2019, could not be seen in isolation. It was part of the same package
and the basis for the writ petitioner's transfer was tinged by the fourth
respondent to the writ petition being accommodated in the Corporation
of Municipal Administration.
14.There is a further issue which has been raised that the writ
petition was filed several months after the notification was issued.
There was adequate explanation for the delay, particularly in the Covid
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WA.Nos.48 and 181 of 2021
times, which was furnished by the writ petitioner. Much emphasis is
also laid on the Doctrine of Pleasure which is included in Article 310 (2)
of the Constitution. It has already been noticed here in above that the
Doctrine amounts to the conferment of a form of extraordinary
authority on the executive to deal with extraordinary situations and
exigencies and must be seen to be an exception and not the rule.
15.For the reasons aforesaid, the judgment and order impugned
do not call for any interference. It is recognised that the State has the
authority of appointing anyone by way of contract and, equally, it will
be open to the State to engage the fourth respondent to the writ
petition on contractual basis. However, in the light of the observations
contained in the judgment and order impugned as endorsed hereby,
any reasonable authority would think several times before resorting to
such a future course of action. Similarly, there is no impediment to
the writ petitioner being transferred to the Greater Chennai
Corporation tomorrow notwithstanding this judgment upholding the
findings by the writ Court. Again, the executive is required to act
reasonably and rationally and it is scarcely expected of a responsible
administration to act on its whims or demonstrates its ego particularly
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WA.Nos.48 and 181 of 2021
as an affront to a judicial order.
W.A.Nos.48 and 181 of 2021 are disposed of. There will be no
order as to costs. Consequently, C.M.P.Nos.846 and 510 of 2021 are
closed.
(S.B., CJ.) (S.K.R., J.)
25.01.2021
Index : Yes/No
sra
To
1.The Government of Tamil Nadu,
rep. by its Additional Chief Secretary
to Government, Municipal Administration
and Water Supply Department (MA & WS)
Secretariat, Chennai 600 009.
2.The Commissioner of Municipal Administration,
11th Floor Urban Administrative Building
(Opp. To Cciba Building), No.75,
Santhome High Road, Raja Annamalaipuram,
Chennai 600 028.
3.The Commissioner,
Greater Chennai Corporation,
Chennai.
https://www.mhc.tn.gov.in/judis/
WA.Nos.48 and 181 of 2021
The Hon'ble Chief Justice
and
Senthilkumar Ramamoorthy, J.
(sra)
W.A.Nos.48 and 181 of 2021
25.01.2021
https://www.mhc.tn.gov.in/judis/
