Madras High Court
G.R.Radhakrishna vs The Government Of Tamil Nadu on 11 January, 2022
W.P.No.9628 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.9628 of 2020
G.R.Radhakrishna .. Petitioner
vs
1. The Government of Tamil Nadu,
Rep. by its Secretary,
P & AR Department,
Secretariat,
Chennai – 600 009.
2. The Government of Tamil Nadu,
Rep. by its Secretary,
Public Works Department,
Secretariat,
Chennai – 600 009.
3. The Engineer-in-Chief (WRO) & Chief Engineer (General),
Public Works Department,
Chepauk,
Chennai – 600 005. .. Respondents
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Prayer: Petition filed under Article 226 of the Constitution of India
praying for a Writ of Declaration declaring the provisions of Tamil Nadu
Government Servants (Conditions of Service) Act, 2016, especially the
provisions under section 7(1) of the Act including the second and
fourth provisos thereunder and the promotions of Assistant Executive
Engineers as Executive Engineers ordered in G.O. (2D) No. 45, Public
Works (A1) Department dated 19.02.2019 and G.O. (2D) Public Works
(A1) Department dated 27.11.2019 as illegal, unconstitutional and
void ab initio and consequently direct the respondents to revise the
promotions of Assistant Executive Engineers as Executive Engineers
ordered in the said Government orders dated 19.02.2019 and
27.11.2019 based on merit and ability as stipulated under Special
Rules to Tamil Nadu Engineering Service and consequently to consider
the petitioner for promotion as Executive Engineer notionally from the
date on which the first ranked Assistant Executive Engineer promoted
as Executive Engineer in the said G.O. No. 45 dated 19.02.2019 joined
duty as Executive Engineer and fix the Petitioner's pay in the category
of Executive Engineer accordingly with effect from the said notional
date with all consequential service and monetary benefits including the
arrears of pay therefor from that notional date of actual promotion.
For the Petitioner : Mr. N.Subramaniyan
For the Respondents : Mr. P.Muthukumar,
Government Pleader
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ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
By this writ petition, the constitutional validity of Section 7(1)
of the Tamil Nadu Government Servants (Conditions of Service) Act,
2016 has been challenged.
2. The writ petition was earlier dismissed by this Court vide
the order dated 15.09.2020. The review application was also
dismissed by order dated 21.01.2021 and aggrieved by the order
passed in the writ petition as well as the order passed in the review
application, the petitioner had preferred special leave petition before
the Apex Court. By the judgment dated 08.11.2021 in S.L.P. (C)
Nos. 6590-6591 of 2021, the Apex Court had set aside the order of
this Court remanding the case for a fresh hearing. It was with a
direction to the State to file their counter-affidavit within three
weeks and rejoinder affidavit, if any, within two weeks thereafter.
The respondents/State chose not to file counter-affidavit within the
time stipulated by the Apex Court, i.e., three weeks, from the date
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of judgment or even when the matter was restored by this Court for
a fresh hearing and, accordingly, we take it that the State is
contesting the writ petition without counter-affidavit. In the
aforesaid circumstances, we have heard the learned counsel for the
petitioner to appreciate the legal arguments for challenging the
constitutional validity of Section 7(1) of the Act of 2016. For ready
reference, Section 7(1) of the Act of 2016 is quoted hereunder:
“7. (1) All first appointments to any class or category or
grade in any State Service or Subordinate Service,
whether by direct recruitment or by recruitment by
transfer or by promotion, shall be made by the appointing
authority from a list of approved candidates. All
appointments made by transfer, from one class to another
class and from one category to another category, in the
same service carrying identical scale of pay shall be made
by the appointing authority from a list of approved
candidates. Such list shall be prepared in the manner as
specified in Schedule-XI by the appointing authority or any
other authority empowered in the special rules in that
behalf and shall be displayed in the notice board in the
office of the appointing authority. The list shall also be
communicated to all persons concerned by registered post
whose names are found in the list as well as to persons
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senior to the junior most person included in the list whose
names have not been included in the list. Where the
candidates in such list are arranged in their order of
preference, appointments to the service shall be made in
such order:
Provided that the list of approved candidates for
appointment by promotion and by recruitment by transfer
to all the categories of posts in the State and Subordinate
Services shall be prepared annually against the estimated
number of vacancies expected to arise during the course of
a year. The estimate of vacancies shall be prepared taking
into account the total number of permanent post in a
category; the number of temporary posts in existence; the
anticipated sanction of new posts in the next year; the
recruitment post of leave reserves; the anticipated
vacancies due to retirement and promotion, etc., in the
course of the year and the number of candidates already in
position in that category. The list of approved candidates,
so prepared, shall be in force for a period of one year only
and shall lapse at the end of the year. The candidates
whose names were included in the previous list, but were
not appointed, shall be considered, if eligible for inclusion
in the list of next year along with their seniors, if any,
whose names were not included in the previous list either
because they were found not suitable or because they
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were not technically qualified when the previous list was
drawn up:
Provided further that, for preparing such lists to fill up
vacancies, the names of the qualified candidates in the
seniority list in a class, category or service shall be
considered in the following proportions (rounding off
fractions to the next whole number):—
Number of Number of qualified candidates to be considered
vacancies
1-20a 200% of the actual number of estimated vacancies;
21-80a 175% of the actual number of estimated vacancies,
subject to a minimum of 40;
81 and 150% of the actual number of estimated vacancies,
above subject to a minimum of 140:
Provided also that if the qualified candidates, after
consideration of their claims, are found not suitable for the
post, the names of the next qualified candidates, to the
extent necessary, shall be considered:
Provided also that in respect of each reserved vacancy to
be filled up by the candidate belonging to the Backward
Class, Backward Class Muslims or the Most Backward Class
and Denotified Community or the Scheduled Caste or the
Scheduled Tribe, the names of the first two qualified
candidates belonging to the Backward Classes, Backward
Class Muslims or Most Backward Classes and Denotified
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Communities or the Scheduled Castes and Scheduled
Tribes, as the case may be, shall be considered, subject to
their availability and if the first two qualified candidates
belonging to the Backward Classes, Backward Class
Muslims or Most Backward Classes and Denotified
Communities or the Scheduled Castes and Scheduled
Tribes, as the case may be, are found not suitable for the
post, the claims of the next two qualified candidates
belonging to that reserved category shall be considered.
No reserved vacancy shall be left unfilled, except when no
qualified candidates in the seniority list in a class, category
or service belonging to that reserved category are
available for consideration. In respect of a vacancy to be
filled up by General Turn, the names of the qualified
candidates including those belonging to the Backward
Classes, Backward Class Muslims, the Most Backward
Classes and Denotified Communities, the Scheduled Castes
and the Scheduled Tribes in the seniority in a class,
category or service shall also be considered:
Provided also that in respect of filling up vacancies in the
post of Head of Department, the number of names of
qualified candidates to be considered shall be fixed as
twice the number of vacancies plus three in the seniority
list in a class, category or service.”
3. Learned counsel for the petitioner submits that Section 7(1)
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provides for display of list of approved candidates on the notice
board of the office of the appointing authority and the same should
be communicated to all persons concerned by registered post whose
names are found in the list as well as to the persons senior to the
junior most persons included in the list whose names have not been
included in the list. The display of the list on the notice board of the
office and the communication to all persons concerned by registered
post is illegal and offends the constitutional provision. Thus, Section
7(1) of the Act of 2016 deserves to be struck down to that extent.
It should be with a direction to the respondents to make publication
of the list on the official website and in the gazette.
4. The other challenge is to second proviso to Section 7(1) of
the Act of 2016. Learned counsel for the petitioner submits that for
promotion, the names of the qualified candidates in the order of
seniority is to be arranged for consideration of candidature, but in
doing so, the provision has restricted the number of candidates for
consideration for promotion. It is ignoring the fact that the
consideration of the candidature should be allowed for all candidates
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for promotion without any restriction. The restriction of number of
candidates for consideration offends Article 16 of the Constitution of
India. To support his argument, reference to the judgment of the
Apex Court in Ashok Kumar and others v. Chairman, Banking
Service Recruitment Board and others, reported at (1996) 1 SCC
283 has been given. It is to show a direction by the Apex Court to
consider the candidature of all the eligible candidates for appointment
to a post in the spirit of Article 16 of the Constitution of India. Ignoring
the direction aforesaid and the mandate of Article 16 of the
Constitution of India, the respondents restrict consideration of the
candidates to the size given in the second proviso to Section 7(1) of
the Act of 2016. The second proviso to Section 7(1) of the Act of 2016
is also unconstitutional thus be struck down and the respondents may
be directed to consider the candidature of the petitioner for promotion
to the higher post.
5. Learned counsel for the petitioner has even made a reference
to the Tamil Nadu Engineering Service Special Rules to show that
promotion of Chief Engineers, Superintending Engineers, Executive
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Engineers and Assistant Engineers is provided based on merit and
ability, seniority being considered only when merit and ability are
approximately equal. Keeping in mind the rules, providing promotion
based on merit and ability, the provisions of Section 7(1) of the Act of
2016 restricting the number of candidates based on seniority deserves
to be struck down and, accordingly, the respondents may be directed
to consider the candidature of the petitioner for promotion to the
higher post.
6. We have considered the submissions of the learned counsel
for the petitioner and perused the records.
7. Section 7(1) of the Act of 2016 has been quoted by us for
consideration of the challenge to the provision aforesaid. The first part
of challenge is to the display of the list of approved candidates on the
notice board of the office and communicating the same to the
concerned candidate by registered post whose name appears in the
list. The challenge to the aforesaid has been made without referring to
any provisions of the Constitution of India being offended. It is,
however, with a prayer that the list should be hosted in the official
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website, ignoring the fact that the provisions of Section 7(1) of the Act
of 2016 mandates not only the display of the list on the notice board of
the office, but the communication of the said list to all persons
concerned by registered post whose names are found in the list as well
as to the persons senior to the junior most person included in the list
whose names have not been included in the list.
8. We do not find that Section 7(1) of the Act of 2016 offends
any of the provisions of the Constitution of India, when the publication
of the list is made on the notice board of the office, it remains under
common knowledge of all persons concerned and furthermore, the
provision envisages circulation of the list to the concerned candidates,
apart from the candidates senior to them, if not included in the list.
The proper mechanism of circulation of the list to the knowledge of the
candidate concerned has been made and otherwise for others, it would
remain available on the notice board of the office. Thus, a transparent
mechanism has been used by the respondents for circulation of the
list. Learned counsel for the petitioner could not refer to any provision
which mandates the hosting of the list on the website or of any other
arrangement. Thus, the prayer, not supported by provision of law or
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the Constitution of India, cannot be accepted to be a ground for
challenge to the constitutional validity of Section 7(1) of the Act of
2016. Accordingly, the first part of the challenge to Section 7(1) of the
Act of 2016 cannot be sustained.
9. The other part of challenge is to the second proviso to Section
7(1) of the Act of 2016. The said provision has been challenged in
reference to Article 16 of the Constitution of India. Learned counsel for
the petitioner submits that Article 16(1) of the Constitution of India
mandates consideration of all eligible candidates for promotion, which
has been offended by the second proviso to Section 7(1) of the Act of
2016. We do not find that Article 16(1) of the Constitution of India
mandates the consideration of the candidature of all candidates for
promotion, rather it mandates equality in public employment. We find
no unconstitutionality in the provision in providing 'zone of
consideration' for promotion. The promotion to the higher post may be
based on different criteria, which may be merit cum seniority or
seniority cum merit or lastly, merit alone. To apply any of the criteria
aforesaid, what is required to be seen is the seniority of the candidate
for consideration to avoid method of pick and choose amongst the
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candidates eligible for promotion. The consideration of the candidate
for promotion is kept limited and thereby, the 'zone of consideration' is
provided. It remains for consideration of 3 to 5 candidates against one
post while 5 to 7 candidates against two posts and so on which may be
to the extent twice the number of the posts also. The method of 'zone
of consideration' is provided under the service rules in the matter of
promotion and, accordingly, the respondents while providing second
proviso to Section 7(1) of the Act of 2016 created the 'zone of
consideration' which for the first 1 to 20 posts is 200% to the actual
number of the estimated vacancies. The proviso under the aforesaid
Section makes it clear that if the qualified candidates are not found
suitable for the post, the names of the next qualified candidates, to the
extent necessary, shall be considered. The proviso aforesaid provides
an arrangement for consideration of the candidature of the eligible
candidates for promotion to the extent of vacancy if the qualified
candidates are not found suitable for the promotion. For illustration, if
there are 20 posts, the consideration of the candidature for promotion
would be of 40 candidates in the order of seniority. If none of them or
half of them are found suitable for promotion and thereby, would fill up
only 10 posts out of 20 posts then consideration for the next 10 posts
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would be from and amongst the next qualified candidates and it would
go to the extent necessary making a room for other candidates for
consideration of their candidature for promotion to fill up the vacant
posts. In view of the said proviso, the challenge to the second proviso
on the ground that consideration of all eligible candidates would not be
made for promotion is not met out.
10. In the service rules, the phrase 'zone of consideration' is well
known in the matter of promotion. It was brought to limit the
consideration of eligible candidates for promotion to the size of
vacancies. In the absence of it, a chaos may be created and we could
illustrate the aforesaid. In a given case, if there are 20 posts for
promotion and if the consideration is to be made of all the candidates,
then in case of availability of 300 eligible candidates, the consideration
of 300 candidates would have to be made. Though invariably in
promotion, there is significance of seniority and otherwise, if
promotion is given solely based on merit, consideration will always be
in the order of seniority of the candidates. Though seniority may not
have significance for promotion, but only for consideration of the merit
of the candidature. If seniority for the aforesaid is ignored, then it will
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create a situation where the administration may evolve a method of
'pick and choose' to consider the candidature of the eligible candidate.
To apply the aforesaid, a well known method of 'zone of consideration'
has been evolved for promotion unlike in the matter of direct
recruitment where even against 100 posts there may be 1,000 or
5,000 applications and candidature of all such candidates would have
to be considered. It is for the reason that in the absence of seniority
list of the candidate for direct recruitment, every eligible candidate has
to be considered unlike in the case of promotion. The aforesaid
difference has not been marked by the petitioner to challenge to the
proviso under the Act. The method of 'zone of consideration' has been
evolved for the object sought to be achieved and to keep consideration
of eligible candidates to the extent that it may not create chaos and to
make the process of promotion meaningful.
11. At this stage, we are referring to the rule for promotion
given under the Tamil Nadu Engineering Service Special Rules. Rule
2(b) of the said Rules is quoted hereunder for ready reference:
“2. Application:-
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...
(b) Promotion as Chief Engineers, Superintending
Engineers, Executive Engineers and Assistant Executive
Engineers shall be made on grounds of merit and ability
seniority being considered only where merit and ability are
approximately equal.”
The provisions of the said Rule also show that promotion shall be made
based on merit and ability, seniority being considered only where merit
and ability are approximately equal. The element of seniority has a
role to play therein also and goes after consideration of merit and
ability. For the consideration of merit and ability, the candidature is to
be arranged in the order of seniority and not on the whims and fancies
of the respondents. It is even for declaration of the list of the eligible
candidates for promotion. It is to avoid 'pick and choose' method by
the respondents, thus, seniority has its role to play even as per the
rules referred to above.
12. The issue of 'zone of consideration' was considered by the
Apex Court in V.J. Thomas v. Union of India, 1985 Supp SCC 7 :
1985 SCC (L&S) 516. In the said decision, the Apex Court held that
where vacancies are few and candidates are disproportionately large in
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number, department can make classification amongst eligible
candidates on the basis of length of experience, so as to restrict the
examination only for those having longer service leaving others to
appear in the next examination. The relevant portion of the said
judgment is reproduced herein under:
"13. ..... It is a known principle of service
jurisprudence that even though minimum
eligibility criterion is fixed enabling one to take
the examination yet the examination can be
confined on a rational basis to recruits up to a
certain number of years. That constitutes
recognition of long experience and not permitting some
irate junior to score a march. If by 1982, nearly 4000
Junior Engineers of pre-1973 batches had become
eligible for taking competitive examination, the
department would be perfectly justified in keeping the
examination open only to persons who have put in
such long service and leaving others to wait for the
next examination. If for taking examination this
aspect introduces classification, it is based on
rational and intelligible differentia which has a
nexus to the object sought to be achieved. By the
note, for a period of two years only pre-1973 Junior
Engineers who had cleared qualifying examination were
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given a chance to take competitive examination. If
this introduces a classification, it is valid. It
caters to a well-known situation in service
jurisprudence that there must be some ratio of
candidates to vacancies. And it is based on long
experience as a rational basis for classification.
Viewed from this angle, we find nothing in the policy
underlying the Note to clause (4) as being either
discriminatory or arbitrary or denying equality of
opportunity in the matter of promotion. It had the
desired effect of not having a glut of Junior Engineers
taking examination compared to fewer number of
vacancies. Length and experience were given
recognition by the note. The promotion can be
thus by stages exposing the promotional avenue
gradually to persons having longer experience.
This seems to be the policy underlying the note
and we see nothing improper or unconstitutional
in it."
[emphasis supplied]
13. In S.B.Mathur v. Chief Justice of Delhi High Court,
1989 Supp (1) SCC 34, the Apex Court considered the fact that the
zone of consideration was limited to a multiple of 3 to 5 times of the
number of vacancies. This criterion was upheld. The test laid down was
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that criterion adopted should be reasonable, based on rational &
intelligible differentia which has nexus to the object sought to be
achieved. It was further held that so long as the zone of consideration
is limited by the competent authority in a manner not inconsistent
with the rules or in a manner which is not arbitrary or capricious or
mala fide, the validity of the decision to limit the zone of consideration
cannot be successfully called in question on the ground that the
manner in which the zone of consideration was limited was not
uniform. The relevant paragraphs of the said judgment are
reproduced here under:
"20. In the case before us, zone has been
restricted by prescribing that out of the total
number of candidates who satisfy the eligibility
requirement, the zone of consideration will be
limited to a multiple of 3 to 5 times of the
number of vacancies and the persons to be
considered will be determined on the basis of
their seniority in the combined seniority list. It
appears to us that there is nothing unreasonable
in this restriction. It was open to the Delhi High
Court to restrict the zone of consideration in any
reasonable manner and limiting the zone of
consideration to a multiple of the number of vacancies
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and basing it on seniority according to the combined
seniority list, in our view, cannot be regarded as
arbitrary or capricious or mala fide. Nor can it be said
that such restriction violates the principle of selection
on merit because even experience in service is a
relevant consideration in assessing merit. We may also
refer, in this connection, to the decision of this Court in
V.J. Thomas v. Union of India [1985 Supp SCC 7 :
1985 SCC (L&S) 516] where it has been pointed out
that even though minimum eligibility criterion is fixed
for enabling one to take the examination, yet the
examination can be confined on a rational basis to
recruits up to a certain number of years. In adopting
such a policy which underlay the Note to clause (4) of
Appendix I to the new Rules in question, there is
nothing which is arbitrary or amounting to denial of
equal opportunity in the matter of promotion. It had
the desired effect of not having a glut of Junior
Engineers taking examination compared to fewer
number of vacancies. Length and experience were
given recognition by the Note. The promotion can be
thus by stages exposing the promotional avenue
gradually to persons having longer experience. This
seems to be the policy underlying the Note and there
was nothing arbitrary or unconstitutional in it. Such a
limitation caters to a well known situation in service
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jurisprudence that there must be some ratio of
candidates to vacancies. If for taking an
examination this aspect of classification is
introduced, it is based on rational and intelligible
differentia which has a nexus to the object
sought to be achieved (see SCC p. 13 para 13). In
view of what we have pointed out above, the
submission of Mr Thakur in this connection must also
be rejected.
.....
23. Finally, it was pointed out by learned counsel for
the petitioners that no uniform policy has been followed
in the past regarding the limitation of zone of
consideration as far as the selection to the post of
Assistant Registrars is concerned. This may be so. But
we are afraid, by itself that circumstance cannot lead to
a conclusion that promotions are made arbitrarily
because the failure to follow one uniform policy in
respect of limiting the zone of consideration
would not, by itself, necessarily render the
limitation, of the zone of consideration invalid on
the ground of arbitrariness. So long as the zone
of consideration is limited by the competent
authority in a manner not inconsistent with the
Rules or in a manner which is not arbitrary or
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capricious or mala fide, the validity of the
decision to limit the zone of consideration cannot
be successfully called in question on the ground
that the manner in which the zone of
consideration was limited was not uniform. The
zone might have, been limited on each occasion
keeping in view the relevant circumstances
including the number of posts vacant and on a
basis having a nexus to the purpose of selection."
[emphasis supplied]
14. In Arjit Singh v. State of Punjab, AIR 1999 SC 3471,
the Apex Court held that only if a person satisfies the eligibility and
falls within the zone of consideration, but has been not considered for
promotion, then there will be an infraction of his rights. The following
observation is of relevance:
"22. Article 14 and Article 16(1) are closely connected.
They deal with individual rights of the person. Article
14 demands that the “State shall not deny to any
person equality before the law or the equal protection
of the laws”. Article 16(1) issues a positive command
that “there shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State”. It has been
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held repeatedly by this Court that clause (1) of Article
16 is a facet of Article 14 and that it takes its roots
from Article 14. The said clause particularises the
generality in Article 14 and identifies, in a constitutional
sense “equality of opportunity” in matters of
employment and appointment to any office under the
State. The word “employment” being wider, there is no
dispute that it takes within its fold, the aspect of
promotions to posts above the stage of initial level of
recruitment. Article 16(1) provides to every
employee otherwise eligible for promotion or
who comes within the zone of consideration, a
fundamental right to be “considered” for
promotion. Equal opportunity here means the
right to be “considered” for promotion. If a
person satisfies the eligibility and zone criteria
but is not considered for promotion, then there
will be a clear infraction of his fundamental right
to be “considered” for promotion, which is his
personal right.
[emphasis supplied]
15. In State of H.P. and others v. Srinder Kumar Mohindra
and others, (1996) 11 SCC 650, the Supreme Court held that if an
employee does not come within the zone of consideration or does not
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fulfil the criteria of having continuous service in the feeder grade for
the stipulated time, there is no infringement of the constitutional right
guaranteed under Article 16 of the Constitution.
16. The Apex Court in Air Commodore Naveen Jain v. Union
of India and others (2019) 10 SCC 34, held that a policy providing
equal opportunity to officers falling under the zone of consideration
cannot be said to be illegal, arbitrary or discriminatory. Paragraph 22
of the said judgment is reproduced herein under:
"22. The promotion has to be effected in terms of
statutory rules and in absence thereof, as per the
executive instructions. The policy provides equal
opportunities to the officers falling within the zone of
consideration and subsequent promotion. Such policy is
not discriminatory in terms of Article 14 or denies lack
of equal opportunity in terms of Article 16. The
promotion to the post of Air Vice Marshal is governed
by the policy of Air Force which is applicable to all
officers falling in the zone of consideration. Therefore,
the Promotion Policy cannot be said to be illegal,
arbitrary and irrational warranting interference in
exercise of power of judicial review."
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17. We are unable to find any reason for the petitioner to
challenge the validity of Section 7(1) of the Act of 2016, when the
second proviso makes it clear that in case the suitable candidates are
not found available, the next qualified candidates would be considered
to the extent necessary that is to fill up all the posts by way of
promotion. It makes it clear that consideration of the candidature for
promotion to the post would go to the extent of filling all the posts
irrespective of the limit of the 'zone of consideration' under the second
proviso. We do not find that Article 16 of the Constitution of India is
offended by that proviso.
18. The judgment of the Apex Court in the case of Ashok
Kumar supra does not provide any assistance on the issue. The said
decision pertains to the fundamental right of every citizen to claim
consideration for appointment to a post by direct recruitment under
the State, and is clearly distinguishable on facts of the present case
which deals with right of a candidate to be considered for promotion.
The eligible candidates are entitled for consideration of their
candidature for promotion, but keeping in mind the seniority, thus, the
method of 'zone of consideration' has been evolved under the service
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W.P.No.9628 of 2020
rules or under the Act. It is more so, when challenge is unnecessary in
view of Section 68 of the Act of 2016, which is quoted hereunder:
“68. If any provision of this Act is inconsistent with any
provision of the special rules applicable to any particular
service, the special rules shall, in respect of that service,
prevail over the provisions of this Act.”
The provision aforesaid makes it clear that if any of the provisions of
the Act of 2016 is found inconsistent with any special rule applicable to
a particular service, then the special rule would prevail. In the
aforesaid circumstances, even for the sake of argument, if we assume
that Rule 29(b) of the Tamil Nadu Engineering Services Special Rules is
offended by Section 7(1) of the Act of 2016, the third proviso to
Section 7(1) of the Act of 2016 is to be ignored as per Section 68 of
the Act of 2016. Ignoring the aforesaid provisions, the constitutional
validity of Section 7(1) of the Act of 2016 has been challenged by the
petitioner. However, we find Section 7(1) of the Act to be reasonable
and not offending any of the provisions of the Constitution of India,
thus, there is no reason to declare it to be ultra vires.
In the result, the Writ Petition fails and the same is dismissed.
W.M.P. Nos. 11756 and 11784 of 2020 are closed. There will be no
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W.P.No.9628 of 2020
order as to costs.
(M.N.B., ACJ.) (P.D.A., J.)
11.01.2022
Index : Yes
vjt
To:
1. The Secretary to Government of Tamil Nadu,
P & AR Department,
Secretariat,
Chennai – 600 009.
2. The Secretary to Government of Tamil Nadu,
Rep. by its Secretary,
Public Works Department,
Secretariat,
Chennai – 600 009.
3. The Engineer-in-Chief (WRO) & Chief Engineer (General),
Public Works Department,
Chepauk,
Chennai – 600 005.
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W.P.No.9628 of 2020
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
vjt
W.P.No.9628 of 2020
11.01.2022
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