Madras High Court
Tamilnadu Quarry Lessees And vs The Secretary To Government Of on 21 May, 2024
W.P.(MD)Nos.28526 and 29946 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 27.03.2024
PRONOUNCED ON : 21.05.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)Nos.28526 and 29946 of 2023
and
W.M.P.(MD)Nos.24591 & 25816 of 2023, 3985 and3977 of 2024
W.P.(MD)No.28526 of 2023:
Tamilnadu Quarry lessees and
Crusher owners Welfare Association,
(Regn No.57/2014)
Rep. by its Secretary,
A.Narayanaperumalsamy,
S/o.Ayyasamy,
D1/76, New Housing Unit,
Sivakasi West, Virudhunagar District. ... Petitioner
Vs.
1.The Secretary to Government of
Tamilnadu,
Industries Department,
Secretariat, Chennai-9.
2.The Secretary to Government of
Tamilnadu,
Natural Resources Department,
Secretariat, Chennai-9.
1/76
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W.P.(MD)Nos.28526 and 29946 of 2023
3.The Secretary to Government of
Tamilnadu,
Tamil Nadu Public Service Commission,
TNPSC Road, V.O.C. Nagar,
Park Town, Chennai-600 003.
4.The Commissioner of Geology &
Mining,
Thiru.Vi.Ka Industrial Estate,
Guindy, Chennai-32.
5.The Deputy Director of Geology and
Mining,
Office of the District Collector,
Collectorate, Virudhunagar District.
6.Thiru.S.Thangamuniasamy,
The Deputy Director of Geology
and Mining,
Office of the District Collector,
Collectorate, Virudhunagar District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Quo Warranto against the 6th
respondent directing him to explain under what authority he holds the post
of the Deputy Director of Geology and Mining, Virudhunagar District.
W.P.(MD)No.29946 of 2023:
S.Abraham Muller ... Petitioner
Vs.
1.The Secretary to Government of
Tamilnadu,
Industries Department,
Secretariat, Chennai-9.
2/76
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W.P.(MD)Nos.28526 and 29946 of 2023
2.The Secretary to Government of
Tamilnadu,
Natural Resources Department,
Secretariat, Chennai-9.
3.The Secretary to Government of
Tamilnadu,
Tamil Nadu Public Service Commission,
TNPSC Road, V.O.C. Nagar,
Park Town, Chennai-600 003.
4.The Commissioner of Geology &
Mining,
Thiru.Vi.Ka Industrial Estate,
Guindy, Chennai-32.
5.The Deputy Director of Geology and
Mining,
Office of the District Collector,
Collectorate, Virudhunagar District.
6.Thiru.S.Thangamuniasamy,
The Deputy Director of Geology
and Mining,
Office of the District Collector,
Collectorate, Virudhunagar District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Quo Warranto against the 6th
respondent directing him to explain under what authority he holds the post
of the Deputy Director of Geology and Mining, Virudhunagar District.
3/76
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W.P.(MD)Nos.28526 and 29946 of 2023
In both Writ Petitions:
For Petitioner : Mr.Sricharan Rangarajan,
Senior Counsel,
For Mr.C.Jeganathan
For R-1, R-2, R-4
& R-5 : Mr.P.Veerakathiravan,
Additional Advocate General
Assisted by
Mr.M.Siddtharthan,
Additional Government Pleader
For R-3 : Mr.J.Anand Kumar,
Standing Counsel
For R-6 : Mr.V.Meenakshi Sundaram,
For M/s.Deepamathy
ORDER
Seeking issuance of a writ of quo-warranto, directing respondent No.
6, namely Thiru S. Thangamuniyasamy to show cause under what authority
he continues to hold the office of the 5th respondent, that is, the Deputy
Director of Geology and Mining, Virudhunagar District, the petitioners
herein have filed these writ petitions.
2. Prelude:
This is a tale of the directly recruited employees who were appointed
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as Assistant Geologists temporarily, in exercise of the untrammelled power
of appointment by the State, who were allowed to continue in service
substantively for 16 years from the date of the appointment till they were
further promoted temporarily twice at the pleasure of the State, in the
Department of Geology and Mining, State of Tamil Nadu. When their
Lordships of the Hon’ble Supreme Court have emphatically held that, the
protection under Article 311 of the Constitution of India is applicable to
the employees appointed as civil servants in all nature - permanent,
temporary, officiating or probation in the case of Parshotam Lal Dhingra
Vs. Union of India (UOI) AIR 1958 SC 36, drawing inspiration from the
law laid down by their Lords of the Hon’ble Supreme Court in the
aforesaid landmark judgment, I am duty bound to narrate the unfettered
abuse of power by the Respondents 1 to 4 in these Writ Petitions, in the
matter of temporary appointments and temporary promotions to the 6th
respondent and others at their pleasure. The concerns and legal
complications involved in these cases have a chequered history.
3. Factual Matrix of the case:
3.1. The writ petitioner is a Registered Society, registered under the
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Societies Registration Act, 1975. The petitioner Society in W.P.(MD)No.
28526 of 2023, namely Tamil Nadu Quarry Lessees and Crusher Owners'
Welfare Association was formed during the year 2014. The Executive
Committee of the petitioner Association was convened on 23.11.2021,
during which it was unanimously decided to file this writ petition seeking
to direct the respondents 1 to 4 to take action for giving promotions to the
6th respondent illegally to the posts of Assistant Director and Deputy
Director, as he had not appeared for departmental test, that is, Account Test
for Executive Officers or Account Test for Subordinate Officers Part I and
passed that qualifying test.
3.2. On 04.08.2023, the Government had amended Rules 19 and 20
of the Tamil Nadu Minor Mineral Concession Rules, whereby the District
Officers of the Department of Geology and Mining have been empowered
to grant leases and to execute the lease deed in respect of Patta Lands.
Therefore, the 5th respondent is the competent authority to issue licenses
and execute the lease deeds in respect of patta lessees. If the 6th respondent
has not qualified himself for the promotion to the posts of Assistant
Director / Deputy Director and if the said post which is being held by the
6th respondent is invalidated by the appropriate forum, then the orders
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issued by the 6th respondent in the 5th respondent office will have no effect
and the same would become null and void resulting in embarrassment to all
the entrepreneurs, more fully to the members of the petitioner Association
connected with those orders as issued by the 5th respondent. In order to
avoid the said embarrassment, the petitioner Association has sent
representation to the respondents 1 to 4 on 28.10.2023. Since the
respondents 1 to 4 have not taken any action as against the 6th respondent
invalidating the post held by him in the 5th respondent office, this writ
petition came to be filed by the petitioner Association.
3.3. Yet another writ of quo-warranto came to be filed in W.P.
(MD)No. 29946 of 2023 by one of the members of the petitioner
Association in W.P.(MD)No. 28526 of 2023 and who himself claimed to be
a quarry leaseholder, namely S. Abraham Muller. Conceding that the
petitioner is aware of the writ petition filed by the Tamil Nadu Quarry
Lessees and Crusher Owners' Association in the same matter, the petitioner
had filed yet another writ of quo-warranto, that he came to know that the
6th respondent has been holding the post of Assistant Director and
subsequently the post of Deputy Director without qualifying himself for
those posts. Claiming that he came to know the same only after the 6th
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respondent assumed charge at Virudhunagar, he further has submitted in
the affidavit filed along with the writ petition that he do not have any
information about other similarly placed officers of the Mines Department.
Verbatim adopting the same pleadings and grounds as filed in writ petition
W.P.(MD)No. 28526 of 2023, the writ petitioner has filed W.P.(MD)No.
29946 of 2023, against the 6th respondent directing him to explain under
what authority he holds the post of the Deputy Director of Geology and
Mining, Virudhunagar District.
4. Submission by the petitioners and the respondents:
4.1. Mr.Sricharan Rangarajan, the learned Senior counsel appearing
for the petitioners in both the writ petitions, would submit that the
respondent No.6 is not having requisite qualification for the posts of the 5 th
respondent office and therefore, he is not entitled to hold the office and as
such, it is a fit case where the writ of quo-warranto can be issued as against
the 6th respondent. The learned Senior counsel claiming that the 6th
respondent is not a meritorious candidate as he has failed to satisfy the
eligibility requirements under the Governing Rules to the posts of both
Assistant Director as well as the Deputy Director, contended that such an
appointment and promotion of the 6th respondent is contrary to the
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statutory Rules being Tamil Nadu State and Subordinate Service Rules, as
well as the Special Rules applicable to the Tamil Nadu Geology and
Mining Department.
4.2. He further submitted that the 6th respondent was selected to the
post of an Assistant Geologist temporarily vide letter dated 31.08.2000 by
violating the method of selection to the post of Assistant Geologist under
the relevant Rules. Further, the 6th respondent who was appointed under
Rule 10(a)(1) of the General Rules of the Tamil Nadu State and
Subordinate Service Rules on an Ad-hoc basis, continued as a temporary
employee in the service of the Department of Geology and Mining in
controvention to the said Rule 10(a)(1). While the 6th respondent could not
even have been so continued as an employee in the Department beyond
2001, the learned Senior counsel contended that the 6th respondent was
further promoted and appointed temporarily as Assistant Director of the
Department of Geology and Mining.
4.3. He further submitted that flouting the relevant Rules, the 6th
respondent was thereafter promoted to the post of Deputy Director in the
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Department of Geology and Mining. Categorically contending that the 6th
respondent continues in a temporary capacity, assuming the responsibilities
of a permanent employee to a public post without possessing the stipulated
qualifications since the date of his initial appointment, the learned Senior
counsel called for issuance of Writ of quo warranto as against the 6th
respondent.
4.4. Per Contra, the learned Additional Advocate General, Mr.
P.Veerakathiravan appearing for the respondents 1 to 4, submitted that the
writ petition has been instituted by the Tamil Nadu Quarry Lessees and
Crushers Owners' Welfare Association in W.P.(MD)No. 28526 of 2023 for
issuance of Writ of quo warranto against the 6th respondent with oblique
motives and vested interest and hence the same is per se not maintainable
in law. Contending that when the writ petition in W.P.(MD)No. 28526 of
2023 was listed for admission on 29.11.2023 before this Court, the official
respondents have vehemently raised a preliminary objection as to the
maintainability of a Writ of quo warranto instituted by an Association /
busybody bearing ill-will or malice, immediately, the Secretary of the
petitioner Association had set up another mining leasee, that is a member
of the petitioner Association in W.P.(MD)No. 28526 of 2023 to institute a
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proxy litigation by engaging the same counsel in W.P.(MD)No. 28526 of
2023 for the identical relief with an intent to get rid of the issue of
maintainability of the first writ petition filed by the Association.
4.5. The learned Additional Advocate General contended that the
proxy litigation in W.P.(MD)No. 29946 of 2023 instituted by the petitioner
is evident from the plain comparison of the pleadings of both the writ
petitions. Claiming that the 6th respondent is an honest outright officer, the
learned Additional Advocate General submitted that the 6th respondent was
transferred and posted as the Deputy Director of Geology and Mining,
Virudhunagar District on 01.09.2023. Immediately on assuming charge at
Virudhunagar District Office, the 6th respondent initiated several actions
for prevention of illegal mining and transport of minerals and had initiated
criminal action as against the erring lessees who violated the license
conditions by filing appropriate complaints before the jurisdictional police.
4.6. The learned Additional Advocate General submitted that one
Thiru. A.Narayanaperumalswami, Virudhunagar District Quarry Lessees'
Welfare Association and Tamil Nadu Quarry Lessees and Crusher Owners'
Welfare Association made various complaints / petitions dated 12.09.2023,
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25.09.2023, 05.10.2023 etc., to the District Collector Virudhunagar,
Commissioner of Geology and Mining Chennai and the Government
levelling charges against the former Director of Geology and Mining, the
present District Collector Virudhunagar and the present Deputy Director of
Geology and Mining, Virudhunagar, that is the 6th respondent, with
ulterior motive from the month of September 2023 onwards.
4.7. Crying that the Court of Justice should not be allowed to be
polluted by unscrupulous litigants by resorting to the extraordinary and
equitable jurisdiction of this Court under Article 226 of the Constitution of
India, the learned Additional Advocate General relying upon the case in B.
Srinivasa Reddy versus Karnataka Urban Water Supply and Drainage
Board Employees Association reported in 2006 (11) SCC 731 (2),
submitted that the writ of quo warranto filed at the instance of a person
bearing ill will or malice to settle scores is liable to be rejected at the
threshold. Coming down heavily on the writ petitioner Association in W.P.
(MD)No. 28526 of 2023, as a busybody / meddlesome interloper, the
learned Additional Advocate General contended that W.P.(MD)No. 28526
of 2023 has to be dismissed at the threshold on the grounds of
maintainability and W.P.(MD)No. 29946 of 2023 has to be dismissed on
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the grounds of malice.
4.8. The learned counsel for the 6th respondent Mr.V.Meenakshi
Sundaram vehemently contended that the writ petitions are per se not
maintainable on the ground that the writ petitioners cannot be treated as
persons aggrieved to institute a writ petition under Article 226 of the
Constitution of India to enforce its / his fundamental rights. Contending
that mere juxtapose perusal of the affidavit filed by the Association and
S. Abraham Muller would reveal that the pleadings and grounds raised are
identical. That itself would be sufficient to understand that the attempt of
the writ petitioners questioning the authority of the 6th respondent exudes
with oblique motive and actuated with malice. He further contended that
the writ petitioners having not been affected in any way, they cannot have
any legal right to maintain a writ petition. On that ground, the learned
counsel Mr.V.Meenakshi Sundaram pressed that the preliminary objection
as to the maintainability of the writ petitions filed by the writ petitioners
would go to the root of the matter and on that ground the writ petitions
filed by non-aggrieved persons has to be dismissed in limine.
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5. Maintainability of the writ petitions:
5.1. The learned Senior counsel, Mr. Sricharan Rangarajan,
appearing for the petitioners, submitted that the writ of quo warranto is a
writ of technical nature, conferring jurisdiction on the Constitutional
Courts to see that a public office is not held by an usurper without any
legal authority. Contending that the petitioners are not required to
establish any locus, personal interest, the learned Senior counsel contended
that the petitioners' stand is in the position of a relator. Submitting that the
real test in a writ of quo warranto is to whether the person holding the
office is authorized to hold the same as per law, in the instant case, he
insisted that it is for the 6th respondent who is answerable to the Court and
the judicial review would be limited to whether or not he possesses the
qualifications for appointment and if such appointment was made in a fair,
just and reasonable manner in terms of the statutory provisions. He further
submitted that the writ petitions having been filed by a Registered Society,
formed by identifiable members of the public with the collective object in
relation to the common use of minor minerals in the state of Tamil Nadu, as
well as by an individual mining lease holder, after setting out all material
facts of their objects, profession, etc., are very well maintainable.
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5.2. He further submitted that the respondents apart from raising
vague allegations of malafide, ill will, malice, etc., have failed to
substantiate and prove the same. Merely filing complaints / petitions by the
petitioner Society as against the respondent authorities including the 6th
respondent does not amount to substantiation of allegations of lack of
bonafide or of malafide, ill will, malice, etc. He further emphatically
submitted that the mere reference to the alleged efforts undertaken by the
6th respondent in the 5th respondent office in curbing alleged illegal mining
does not amount to any defense in a writ of quo warranto nor does it satisfy
the burden of proving the allegations of lack of bonafide or of malafide, ill
will, malice, etc., on the part of the petitioners. Making a rhetoric
submission that the respondents have failed even to allege that the
members of the petitioner Society or the individual petitioner have been
implicated in any illegal mining, the learned Senior counsel insisted that
mere filing of a writ petition for a legitimate reason would not exhibit any
malafide on the part of the petitioners. Further submitting that the
challenges to the maintainability of the writ petitions made by the
respondents are illusory and baseless and are liable to be rejected, the
learned Senior counsel required this court to adjudicate the writ petitions
on merits.
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6. Decision as to Maintainability:
6.1. The Honorable Apex Court in the case of Rajesh Awasthi
versus Nand Lal Jaiswal and Ors. reported in 2013(1) SCC 501, has
dealt with a similar case and the relevant portion of the same is extracted
as follows:
“30. In University of Mysore v. C.D. Govinda Rao, while
dealing with the nature of the writ of quo warranto,
Gajendragadkar, J. has stated thus: (AIR . 494, para 7)
"7.... Broadly stated, the quo warranto proceeding affords
a judicial enquiry in which any person holding an independent
substantive public office, or franchise, or liberty, is called upon
to show by what right he holds the said office, franchise or
liberty; if the inquiry leads to the finding that the holder of the
office has no valid title to it, the issue of the writ of quo
warranto ousts him from that office. In other words, the
procedure of quo warranto confers jurisdiction and authority on
the judiciary to control executive action in the matter of making
appointments to public offices against the relevant statutory
provisions; it also protects a citizen from being deprived of
public office to which he may have a right. It would thus be seen
that if these proceedings are adopted subject to the conditions
recognised in that behalf, they tend to protect the public from
usurpers of public office; in some cases, persons not entitled to
public office may be allowed to occupy them and to continue to
hold them as a result of the connivance of the executive or with
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its active help, and in such cases, if the jurisdiction of the courts
to issue writ of quo warranto is properly invoked, the usurper
can be ousted and the person entitled to the post allowed to
occupy it. It is thus clear that before a citizen can claim a writ of
quo warranto, he must satisfy the court, inter alia, that the office
in question is a public office and is held by usurper without legal
authority, and that necessarily leads to the enquiry as to whether
the appointment of the said alleged usurper has been made in
accordance with law or not."
31. From the aforesaid pronouncements it is graphically
clear that a citizen can claim a writ of quo warranto and he
stands in the position of a relater, He need not have any special
interest or personal interest. The real test is to see whether the
person holding the office is authorised to hold the same as per
law.”
6.2. The Honorable Apex Court in the case of B. Srinivasa Reddy
vs. Karnataka Urban Water Supply and Drainage Board Employees'
Association and Ors. reported in Manu/SE /8454/2006 decided on
28.08.2006 while dealing with the case of quo warranto has held as
follows:
“28. The law is well settled. The High Court in exercise of
its writ jurisdiction in a matter of this nature is required to
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determine, at the outset, as to whether a case has been made out
for issuance of a Writ of Quo Warranto. The jurisdiction of the
High Court to issue a Writ of Quo Warranto is a limited one which
can only be issued when the appointment is contrary to the
statutory rules.”
6.3. The Constitution Bench of the Honorable Supreme Court in
Narayanas versus Government of Madhya Pradesh and others reported
in 1974 Criminal Law Journal 924, in the aforesaid case filed by an
employees' union had made it crystal clear that the Courts cannot grant any
relief to a person who comes to the Court with unclean hands and with
malafide intention / motive. Thus, in the light of the judgments of the
Honorable Supreme Court discussed and extracted supra, without deciding
upon the issue as to, whether the 6th respondent has been appointed
contrary to the Statutory Rules and whether the petitioner Association /
writ petitioner have approached this Court with malafide intention, the
maintainability of these writ petitions cannot be decided.
7. Appointment and promotion of the 6th respondent namely
S.Thangamuniyasamy:
7.1. Selection process for the post of Assistant Geologist,
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Department of Geology and Mining, State of Tamil Nadu was conducted
by the Tamil Nadu Public Service Commission during 2000. In the direct
recruitment process for the post of Assistant Geologist commenced by the
Tamil Nadu Public Service Commission, seven candidates were finally
selected by the Tamil Nadu Public Service Commission. Thereafter, the
appointing authority that is the Director of Geology and Mining issued
appointment orders, vide R.C.No.4292/PM2/1997 dated 21.09.2000 under
Rule 10(a)(1) of the General Rules for the Tamil Nadu State and
Subordinate Service to the aforesaid candidates and Thiru
S.Thangamuniyasamy, that is, the sixth respondent and he was placed in
serial No.3 in the order of seniority as Assistant Geologist among the seven
selected candidates. For better appreciation, the appointment order is
extracted as follows:
PROCEEDINGS OF THE DIRECTOR OF GEOLOGY AND
MINING, GUINDY, CHENNAI 600 032.
PRESENT: THIRU K. NANDA KISHORE, I. A. S.,
Rc.No.4292/PM2/97. Dated: 21-9-2000.
Sub: Personnel and Office Management - Department of Geology and
Mining - Recruitment (Direct) - Tamil Nadu Geology and Mining
Subordinate Service - Selection of candidates by Tamil Nadu Public
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Service Commission for the post of Assistant Geologist - Appointment
orders - Issued.
Read: Letter No.3127/OTD-B2/99, dated 31-8-2000 from the
Secretary, Tamil Nadu Public Service Commission, Chennai 600 002,
.......
ORDER:
Under Rule 10 (a) (1) of the General Rules for the Tamil Nadu
State and Subordinate Service, the following candidates selected by
the Tamil Nadu Public Service Commission are temporarily
appointed in the order of seniority as Assistant Geologist in the scale
of Rs. 6500-200-11100 with usual allowances and posted to the
offices mention against them:
Name and address of the candidate Office to
which posted
1. Selvi D. Dhayamalor, Office of the
31. D. Karnavur Road, Tindivanam, Directorate of
Villupuram Dist. Geology and
PIN: 604 002. Mining,
Guindy,
Chennai 600
2. Selvi V. Aruna,
Thiru S. Kannan,
No.26, Venkatachala Mudali -do-
Street, Choolai,
Chennai 600 112.
3. Thiru. S. Thangamuniasany,
C/o. Selvam Sweets,
Sembakkam P.O. 603 108, -do-
Chengalpattu Taluk, Kancheepuran District,
4. Thiru.A. Arumuganainar, Office of the
42, Ramasamiapuran 3rd Street, Assistant
Sankarankovil, Tirunelveli District, Director
PIN: 627 756, and Mining),
Collectorate,
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Nagercoil-629
5.Thiru L. Suresh, Office of the
14, Subramania Nagar Assistant
Extension, Salem 636 005. Director
(Geology
and Mining),
Collectorate,
Master Plan
Complex,
Virudhunagar
626 001.
6. Thiru P. Saravanan, Office of the
S/o. Thiru A. Prakasavelu, Director of
6th Ward, Ladapuram P.O., Geology and
Perambalur District. Mining,
PIN: 621 121. Guindy,
Chennai 600
7. Thiru A.Perumal,
Kothanoor Andipatti P.O., -do-
Sivadapuram Via.,
Salem District. PIN: 636 307.
The above candidates are informed that their appointments are
temporary and they are liable to be ousted from service without prior
notice and assigning any reasons.
7.2. The 1st respondent vide G.O.(2D)No.68, Industries (E1)
Department, dated 25.07.2007, temporarily promoted and appointed 21
Assistant Geologists of Geology and Mining Department as Assistant
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Directors on Ad hoc basis. The said promotion order is extracted as
follows:
ABSTRACT
Establishment – Geology and Mining Department – Assistant
Geologist Temporarily promoted and appointed as Assistant
Directors on adhoc – basis – orders – issued.
Industries (E1) Department
G.O.2(D)No.68 Dated:25.07.07
Read:
From the Commissioner and Director of Geology and
Mining Letter No.11805/PM1/2006 dated 2.3.2007.
ORDER:
The following Assistant Geologist of Geology and Mining
Department are temporarily promoted and appointed as Assistant
Directors on adhoc basis from the date of taking charge in the
existing vacancies, subject to the condition that this temporary
appointment will not confer any preferential right on them
whatsoever at the time of regular appointment with reference to
the special rules to be framed:-
Tvl.
1.N.Ramesh
2.P.Chinnamaruthu
3.Dr.A.Kalaiselvan
4.R.Gopikrishnan
5.M.Sambasivam
6.S.P.R.Jayaseelan
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7.M.Govindaraj
8.C.Ravichandran
9.E.Ravindranath
10.R.S.Marimuthu
11.N.Ananthagopalan
12.M.Chitrarasan
13.C.Sampath
14.V.Sivaji
15.T.Muruganandam
16.Tmt.V.Aruna
17.S.Thangamuniasamy
18.A.Arumuganainar
19.L.Suresh
20.P.Saravanan
21.A.Perumal
(BY ORDER OF THE GOVERNOR)
SAKTHIKANTA DAS
SECRETARY TO GOVERNOR
7.3. The first respondent further vide G.O.MS.No.20, Industries (E1)
Department, dated 15.02.2016, promoted and appointed 11 Assistant
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Directors of Geology and Mining temporarily as Deputy Directors of
Geology and Mining under General Rule 39 (a)(i) for Tamil Nadu State
and Subordinate Service Rules including the 6th respondent. The aforesaid
promotion order is extracted as follows:
ABSTRACT
Public Services – Industries – Department of Geology and Mining
– Class – III Category - 1 - Assistant Directors temporarily
promoted as Deputy Directors - orders - issued.
Industries (E1) Department
G.O.(Ms)No.20 Dated:15.02.2016
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Read:
(1) G.O.(Ms.)No.157, Industries (E1) Department, dated
12.11.2010.
(2) G.O.(Ms.)No.280, Industries (E1) Department, dated
22.12.2015.
(3) From the Commissioner of Geology and Mining Letter Rc.No.
3177/PM1/2015, dated 23.12.2015.
(4) Government Lr.(Ms)No.16, Industries (E1) Department, dated
06.02.2016.
--------
ORDER:
The following Assistant Directors of Geology and Mining
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Department are temporarily promoted and appointed as Deputy
Directors of Geology and Mining under General Rule 39 (a) (i)
for Tamil Nadu State and Sub-ordinate Service Rules from the
date of taking charge in the existing vacancy of the Department of
Geology and Mining subject to the condition that this temporary
appointment will not confer any preferential rights on them
whatsoever at the time of regular appointment with reference to
the special rules constituted in the Government Order first read
above:-
01.M.Govindaraj
02.N.Ananthagopalan
03.M.Chittarasan
04.V.Sivaji
05.T.Muruganandam
06.V.Aruna
07.S.Thangamuniasamy
08.A.Arumuganainar
09.L.Suresh
10.P.Saravanan
11.A.Perumal
(BY ORDER OF THE GOVERNOR)
C.V.SANKAR
ADDTIONAL CHIEF SECRETARY TO GOVERNOR
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8. Evolution of the Department of Geology and Mining:
8.1. Originally, the complete matters pertaining to Geology remained
as a separate branch of the Department of Industries and Commerce,
Government of Tamil Nadu. During 1983, the Government vide
G.O.Ms.No. 387, Industries (E1) Department, dated 24.03.1983, formed a
separate Department of Geology and Mining, declaring that the Director of
Geology and Mining would be the Head of the Department. Thereafter, the
posts in the then Geology branch of the Department of Industries and
Commerce along with the personnel were transferred to the new
Department of Geology and Mining. At that point of time, there were seven
classes with 13 categories of permanent posts in the Department of
Geology and Mining for which Service Rules were to be framed. The posts
of Assistant Geologist, Chemist, Librarian Grade-III and Laboratory
Attender have been covered by the Special Rules under the Tamil Nadu
Industries Subordinate Service and the remaining 9 categories of posts
were governed by the Ad hoc rules till 1983.
8.2. The Government by this time decided to constitute separate
Special Rules called the Tamil Nadu Geology and Mining Subordinate
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Service Rules for B, C and D group posts in the Department of Geology
and Mining, for which the Director of Geology and Mining is the
appointing authority. Thus, the Special Service Rules for B, C and D group
posts for the Tamil Nadu Geology and Mining Subordinate Service, came
to be constituted with effect from 14.03.1983 by the issuance of
G.O.Ms.No. 55, Industries E-1 Department dated 27.02.1998. This Special
Rules for the Tamil Nadu Geology and Mining Subordinate Service Rules
for the B, C and D group posts in the Department of Geology and Mining
will be herein after referred to as in this case as Special Rules, 1998. Under
the newly constituted Special Rules, 1998, the post of Assistant Geologist
fell under class I, category I. Rule 2 (a) of the aforesaid Special Rules,
1998, provided for the method of appointment to the post of Assistant
Geologist. The method of appointment mandated to the post of Assistant
Geologist is by direct recruitment or by transfer from any other class or
category or by recruitment by transfer from any other service. The
category, method of appointment and qualification for the post of Assistant
Geologist as mandated by the Special Rules, 1998 in the Annexure is
extracted as follows:
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Sl. Category Method of Qualification
No appointment
.
1. Assistant 1) By direct Must possess
Geologist recruitment B.Sc or M.Sc.
2) By transfer from Degree in
any other class or Geology of any
category or University.
Provided that
3) By recruitment other things
by transfer from being equal
any other service preference shall
be given to those
who possess
practical
experience in
field work.
8.3. Rule 6 of the Special Rules, 1998 provides for probation that,
every person appointed to any category by direct recruitment or by
recruitment by transfer, from the date on which he joins duty be on
probation for a period of two years on duty within a continuous period of
three years. Rule 9 of the Special Rules, 1998 provides that the postings
and transfers shall be made by the Director of Geology and Mining. During
the year 2010, the Government decided to constitute separate Service
Rules called the Special Rules for the Tamil Nadu Geology and Mining
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service for A and B Group posts in the Department of Geology and Mining
for which the Government would be the appointing authority. Following
which, the Government vide G.O.Ms.No. 157, Industries (E1) Department
dated 12.11.2010 constituted Special Rules for the Tamil Nadu Geology
and Mining Service for Group A and B posts in the Department of Geology
and Mining with effect from 14.04.1983.
8.4. In furtherance to the same, the posts under the Industries and
Commerce Department namely State Geologist, Additional State
Geologist, Deputy State Geologist, Geologist, Assistant Director (Geology
and Mining) (formerly Assistant Geologist), Gazetted Assistant (non-
technical), which existed prior to the formation of the new Department
covered by the Ad-hoc Rules were permanently transferred to the new
Department of Geology and Mining with effect from 14.04.1983 under the
said G.O. The said Special Rules for Tamil Nadu Geology Mining Service
for A and B Group posts in the Department of Geology and Mining would
herein after to be referred to as Special Rules, 2010. The Special Rules
2010 under Rule 2(a) provides for the appointment to the post of Deputy
Director of Geology and Mining and Assistant Director of Geology and
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Mining. The same is extracted as follows for clear understanding:
Posts Method of appointment
(1) (2)
Deputy Director of Promotion from among the holders of
Geology and Mining the post of Assistant Director of
Geology and Mining.
Assistant Director of (i) Recruitment by transfer from
Geology and Mining among the holders of the post of
Assistant Geologist in the Tamil Nadu
Geology and Mining Subordinate
Service, or
(ii) Direct recruitment:
Provided that appointment to the
post by recruitment by transfer and by
direct recruitment shall be made in the
ratio of 3:1 respectively.
8.5. Rule 6 of the Special Rules, 2010 provides under the heading
Test that, every person appointed to the post by direct recruitment shall
within the period of his probation pass the Account Test for Executive
Officers or the Account Test for Subordinate Officers, Part I. A Savings
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Clause under Rule 9 of the Special Rules, 2010 provides that nothing
contained in those Rules shall adversely affect any person holding the post
on the date of issue of the said rules. The Special Rules, 2010 in its
annexure under Rule 4(b) has provided for the qualification to the post of
Assistant Director of Geology and Mining. The same is extracted as
follows:
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Post Method of appointment Qualification
(1) (2) (3)
Assistant (i) Recruitment by (1) A Post Graduate
Director of transfer from among the Degree in Geology or a
Geology and holders of the post of Bachelors' Degree in
Mining Assistant Geologist in Geology;
the Tamil Nadu Geology
and Mining Subordinate
Service. (2) Service for a period
of not less than three
years in the post of
Assistant Geologist in
respect of Bachelors'
degree holders not less
than eight years of
service in the
Department of Geology
and Mining out of
which, three years in
the post of Assistant
Geologist; and
(3) Must have passed
the Account Test for
Executive Officers or
the Account Test for
Subordinate Officers,
(ii) Direct recruitment. Part-I.
(1) A Post Graduate
Degree in Geology; and
(2) Experience in field
work including mapping
and prospecting for a
period of not less than
three years.
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8.6. During 2016, the Government vide G.O.Ms.No.43, Industries
(E1) Department dated 29.02.2016, effected amendment to the Special
Rules, 2010. The aforesaid amendments came into force on 29.02.2016 and
Rule 6 of the Special Rules, 2010 was duly amended. The aforesaid
amendment is extracted as follows:
AMENDMENTS
In the said Special Rules:-
(1) for rule 6, the following rule shall be substituted,
namely,-
“6.Test - (a) Every person appointed to the post of Assistant
Director of Geology and Mining by direct recruitment shall, within
the period of his probation, pass the following tests, namely:-
(i) District Office Manual;
(ii) Account Test for Subordinate Officers, Part-I,
(iii) Account Test for Executive Officers;
(iv) Test under the Mines and Minerals (Regulation and
Development) Act, 1957 and Mineral Concession Rules,
1960; and
(v) Criminal Judicial Test Part I and II
(b) Every person appointed to the post of Drilling Engineer
and Senior Chemist by direct recruitment shall, within the period
of his probation, pass the Account Test for Executive Officers or
the Account Test for Subordinate Officers, Part-I”;
(2) In the Annexure for the entries in item (3), in column (3),
against the post “Assistant Director of Geology and Mining” in
column (1) and against the method of appointment “(i)
Recruitment by transfer from among the holders of the post of
Assistant Geologist in the Tamil Nadu Geology and Mining
Subordinate Service” in column (2), thereof, the following entries
shall be substituted, namely:-
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“(3) Must have passed,-
(i) District Office Manual;
(ii) Account Test for Subordinate Officers, Part-I;
(iii) Account Test for Executive Officers;
(iv) Test under the Mines and Minerals (Regulation and
Development) Act, 1957 and Mineral Concession
Rules, 1960; and
(v) Criminal Judicial Test Part I and II”.
9. Crux of the issue:
Under such circumstances, the 6th respondent's temporary
appointment to the post of Assistant Geologist in the Department of
Geology and Mining and consequent temporary promotions to the post of
Assistant Director and Deputy Director in the Department of Geology and
Mining, were made despite the coming into force of Special Rules, 1998
and Special Rules, 2010, governing the services of Assistant Geologist,
Assistant Director and Deputy Director respectively. Thus, the pertinent
questions which have to be decided by this Court, in the fact and
circumstances of the temporary appointment of the 6th respondent as
Assistant Geologist and his consequent promotions for two times
temporarily to the post of Assistant Director and Deputy Director of the
Department of Geology and Mining are as follows:
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(i) Whether the appointment of the 6th respondent is violative of the
statutory provisions, thereby making him a usurper of public post?
(ii) Whether a Writ of Quo Warranto be maintainable in case of
temporary appointments?
(iii)Whether both the writ petitions are vitiated by malafides?
10. Analysis:
10.1. The Special Rules called the Tamil Nadu Geology and Mining
Subordinate Service Rules came to be constituted in the year 1998, vide
G.O.Ms.No. 55, Industries (E1) Department dated 27.02.1998. It is only
after the constitution of the aforesaid Special Rules exclusively for the
Subordinate Services in the Department of Geology and Mining, the
appointment of the 6th respondent and six others came to be made. The
appointing authority of the Department of Geology and Mining, that is, the
Director of Geology and Mining on 21.09.2000 appointed the 6th
respondent along with six others temporarily, who were selected in the
direct recruitment process for the post of Assistant Geologist conducted by
the Tamil Nadu Public Service Commission.
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10.2. One of the method of appointment as mandated by Rule 2(a) of
Special Rules, 1998 to the post of Assistant Geologist is obviously by
direct recruitment. The prescribed qualification for the post of Assistant
Geologist is B.Sc. or M.Sc. degree in Geology of any university. The 6 th
respondent duly completed his B.Sc. degree in Geology from
V.O.Chidambaranar College, Thoothukudi, Madurai Kamaraj University in
the year 1984 and qualified in M.Sc. degree from the same college in the
year 1986.
10.3. Hence, it can be fairly concluded that the petitioner possessed
the required qualification as mandated by Special Rules, 1998 and he was
recruited by direct recruitment which was called for through the Tamil
Nadu Public Service Commission. Though the method of selection of the
6th respondent along with six other candidates came to be made by the
appointing authority in terms of the Special Rules, 1998, all the selected
candidates including the 6th respondent were temporarily appointed instead
of being appointed in a permanent post. Further, the said appointment
order dated 21.09.2000 made it clear that the said candidates are liable to
be ousted from service without prior notice and assigning any reasons.
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10.4. Accepting the said appointment order, the 6th respondent and
others duly joined service in the temporary appointment to the post of
Assistant Geologist in the Department of Geology and Mining. Though the
seven candidates including the 6th respondent were recruited directly to the
cadre of Assistant Geologist by the Tamil Nadu Public Service
Commission, the appointing authority issued appointment order dated
21.09.2000 under Rule 10(a)(1) for the Tamil Nadu State and Subordinate
Service. Once a person though appointed in a substantive post, but
temporarily, in that case automatically it could be inferred that such person
has not been appointed in the permanent cadre post of the Department.
Likewise, even in the instant case, all the selected seven candidates
including the 6th respondent who were recruited directly by the recruitment
process of the Tamil Nadu Public Service Commission, the Director of
Geology and Mining had appointed those selected candidates temporarily,
on the condition that they are liable to be ousted from service without prior
notice and assigning any reasons. However, it is pertinent to mention here
that the said appointment order did not specify the duration of the
appointments.
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10.5. Rule 10 of the Tamil Nadu State and Subordinate Service
Rules (TNSSR) reads as below:
"10. Temporary Appointments: (a)(i) (1) where it is necessary in
the public interest owing to an emergency which has arisen to fill
immediately a vacancy in a post borne on the cadre of a service,
class or category and there would be undue delay in making such
appointment in accordance with these rules and the Special
Rules, the appointing authority may temporarily appoint a
person, who possesses the qualifications prescribed to the post
otherwise than in accordance with the said rules.
....
(iii) A person appointed under clause (i) shall be replaced as
soon as possible by a member of a service or an approved
candidate qualified to hold the post under the rules, and in any
case, he shall not be continued for a period of more than one
year from the date of his temporary appointment;
..
(v) A person appointed under clause (i), (ii) or (iv) shall not be
regarded as a probationer in such service, class or category. The
services of a person appointed under clause (i), (ii) or (iv) shall
be liable to be terminated by the appointing authority at any time
without notice and without any reason, being assigned.”
10.6. A careful reading of the aforesaid Rule would make us
understand that, whenever an exigency has arisen for the appointing
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authority to fill up a vacancy in a post borne on the cadre of a service
immediately, in that case the appointing authority may temporarily appoint
a person who possess the qualifications prescribed to the post. However,
in the instant case, the mode of selection and the method of the recruitment
process for the said appointment was duly conducted in terms of Special
Rules, 1998.
10.7. It is needless to state that the 6th respondent possessed the
requisite qualification as mandated by the Special Rules, 1998 and the
method of recruitment by which he was recruited directly by the Tamil
Nadu Public Service Commission was also in accordance with the Special
Rules, 1998. However, instead of appointing all the seven selected
candidates in a permanent cadre post of Assistant Geologist, the appointing
authority had effected the appointments temporarily under Rule 10(a)(1) of
TNSSR.
10.8. Though Rule 10(iii) mandates that a person appointed under 10
(a)(1) of TNSSR shall be replaced within a period of one year from the
date of his temporary appointment with an approved candidate qualified to
hold the post under the Rules, the appointing authority had permitted the
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6th respondent and all the other candidates to continue in service beyond a
period of one year. Obviously, since the 6th respondent and the other
selected candidates possess the requisite qualification and also since their
mode of selection was also in terms of the Special Rules, 1998, it cannot
be said that those selected candidates will not fall under the category of “an
approved candidate” as required under TNSSR. However, the only part is
that they were appointed under Rule 10(a)(1) of TNSSR instead of being
appointed permanently by the appointing authority. That apart, in terms of
Rule 10 (v), the persons appointed under 10(a)(1) cannot be regarded even
as a probationer in such service, class or category. No doubt the
appointment order itself makes it clear in terms of Rule 10 (v) that the
appointing authority can at any time without notice and without assigning
any reason terminate the services of the 6th respondent including the other
selected candidates.
10.9. However, they were neither terminated nor made permanent by
the appointing authority instead they were allowed to continue in the post
of Assistant Geologist till their temporary promotion to the post of
Assistant Director in the Department of Geology and Mining. Since the
duration of appointment to the post of Assistant Geologist is not
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specifically mentioned in the aforesaid appointment order, this Court is of
the considered view that there is no illegality for the 6th respondent and
others to have continued in the temporary post of Assistant Geologist since
they are protected under Article 310 of the Constitution of India. Part XIV
of our Constitution deals with “Services under the Union and the States”.
Articles 310 and 311 are two of the Articles which have been grouped
under the heading “Services” in Chapter I of Part XIV which deals with the
services under the Union and the States. The Honourable Apex Court in the
case of Parshotam Lal Dhingra .Vs. Union of India reported in
Manu /SC/0126/1957 by its order dated 01.11.1957 has dealt with the case
of service reversion of a signal and Telecommunication Engineer, in which
the scope of Article 310 and 311 of the Constitution of India and the
various kinds of appointments have been discussed and the relevant
portion of the same which is applicable to the facts and circumstances of
this case is extracted as follows:
“17. ..... Due to rush of business or other
exigencies some “temporary posts” are often created. A
temporary post is defined in r. 9(30) to mean a post
carrying a definite rate of pay sanctioned for a limited
time. These temporary posts are very often outside the
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cadre and are usually for one year and are renewed from
year to year, although some of them may be created for a
certain specified period. The conditions of service of a
Government servant appointed to a post, permanent or
temporary, are regulated by the terms of the contract of
employment, express or implied, and subject thereto, by
the rules applicable to the members of the particular
service.
18. Likewise an appointment to a temporary post in
a Government service may be substantive or on probation
or on an officiating basis. Here also, in the absence of
any special stipulation or any specific service rule, the
servant so appointed acquires no right to the post and his
service can be terminated at any time except in one case,
namely, when the appointment to a temporary post is for
a definite period.....
19. .....An appointment to a temporary post for a
certain specified period also gives the servant so
appointed a right to hold the post for a certain specified
period also gives the servant so appointed a right to hold
the post for the entire period of his tenure and his tenure
cannot be put an end to during that period unless he is,
by way of punishment, dismissed or removed from the
service.”
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10.10. Article 310 deals with tenure of office of persons serving the
Union or a State. Under the pleasure doctrine, a servant of the Government
holds office during the pleasure of the Sovereign. But in order to protect a
servant against political interference Article 311 introduces safeguards.
Article 310 of Constitution of India for the sake of clarity is extracted as
follows:
“Article:310. Tenure of office of persons serving the Union or a
State
(1)Except as expressly provided by this Constitution, every
person who is a member of a defence service or of a civil service
of the Union or of an all-India service or holds any post
connected with defence or any civil post under the Union, holds
office during the pleasure of the President, and every person who
is a member of a civil service of a State or holds any civil post
under a State holds office during the pleasure of the Governor of
the State.
(2)Notwithstanding that a person holding a civil post under
the Union or a State holds office during the pleasure of the
President or, as the case may be, of the Governor of the State, any
contract under which a person, not being a member of a defence
service or of an all-India service or of a civil service of the Union
or a State, is appointed under this Constitution to hold such a post
may, if the President or the Governor as the case may be, deems it
necessary in order to secure the services of a person having
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special qualifications, provide for the payment to him of
compensation, if before the expiration of an agreed period, that
post is abolished or he is, for reasons not connected with any
misconduct on his part, required to vacate that post.”
10.11. Thus, it is clear that under Article 310, public servants hold
their office during the pleasure of the President or the Governor, as the
case may be. Article 310 deals with tenure of office of persons serving the
Union or a State. Thus under the pleasure doctrine, a servant of the
Government holds office during the pleasure of the sovereign. In the
instant case, it is pertinent to keep in mind that, though the 6th respondent
has been appointed temporarily under Rule 10(a)(1) of TNSSR, to the post
of Assistant Geologist, the period of appointment is not specified anywhere
in the said appointment order. Obviously the power of appointment is
vested with the State Government and since the 6th respondent's
appointment continues without any tenure or term, as discussed elaborately
his appointment has also been made in accordance with the Special Rules,
1998, I am of the considered opinion that there is no illegality for the 6 th
respondent to have continued in the post of Assistant Geologist in which
he was temporarily appointed till the date of his temporary promotion to
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the post of Assistant Director of the Department of Geology and Mining, at
the pleasure of respondents 1 to 4. An appointing authority who has the
power to appoint has absolute discretion in the matter and it cannot be said
that discretion to appoint does not include power to appoint on temporary
basis.
10.12. However, an appointment which is temporary remains
temporary and does not become permanent with passage of time. In the
event of non-specification of a stipulated maximum period of appointment
to the post of Assistant Geologist by the appointing authority while
appointing the 6th respondent temporarily as Assistant Geologist, invoking
the doctrine of pleasure under Article 310(1), I am of the considered view
that the 6th respondent was allowed to continue in the Office of Assistant
Geologist at the pleasure of the Governor of the State for the period from
2000 till 2007, that is, till 25.07.2007, the date of his temporary promotion
to the post of Assistant Director of the Department of Geology and Mining.
10.13. Conferment of title to an office makes the said post
substantive. A person who holds a substantive post, though temporarily,
has a right to continue in service, subject to the rules of service and
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superannuation, in terms of his appointment order. His service is protected
under Article 311(2) of The Constitution of India, even though his
appointment and promotions have been made temporarily, since his
appointment was done in a regular recruitment process and appointment
order issued without mentioning the period of appointment as mandated by
Special Rules, 1998. It is difficult to understand on what criteria the
appointing authority appointed those qualified candidates selected by a
regular direct recruitment process in the substantial post of Assistant
Geologist temporarily and thereafter promoted the qualified candidates
temporarily to the substantial posts of Assistant Director and Deputy
Director respectively.
10.14. The respondents 1 to 4 have declared that the 6th respondent is
meritorious, capable, efficient and honest in discharge of his official duties
by filing an elaborate affidavit and by proactively fighting the case of 6th
respondent to save his skin by emphatically defending his appointment and
promotion before this Court. I condemn the callousness of the official
respondents 1 to 4 for having appointed candidates selected through a
direct recruitment process in substantial posts temporarily and for having
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allowed them to continue in service temporarily till they were further
promoted twice temporarily at their pleasure without declaring their
probation and without accommodating them into the permanent cadre
structure of Department of Geology and Mining. I have no hesitation to
hold that the appointment order dated 21.09.2000 and the consequent
promotion order dated 25.07.2007 and 15.02.2016 respectively obviously
violate the Constitutional guarantee afforded by Article 311(2) of the
Constitution of India, infringing the Constitution protection guaranteed to
those appointees under Article 14 & Article 311 of the Constitution of
India. Article 311 is a constitutional protection given to Government
servants, who have title to office against their arbitrary and summary
dismissal.
10.15. Having conducted the direct recruitment process for the post
of Assistant Geology as mandated by Special Rules, 1998, while issuing
appointment order invoking Doctrine of Pleasure the selected candidates
were appointed under Rule 10(a)(1) of TNSSR by the 4th respondent on
21.09.2000. An employee employed under Rule 10(a)(1) of TNSSR cannot
be even considered as a probationer as per Rule 10(a)(1)(iii) of TNSSR. As
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such even without giving opportunity to those appointees by issuing fresh
appointment orders on completion of a period of 1 year, thereby facilitating
them to be accommodated in the permanent cadre structure of the
Department of Geology and Mining as per Special Rules, 1998, thereby
allowing them to complete probation and be absorbed permanently in the
post of Assistant Geology, they were allowed to continue temporarily in the
said post till few of them were further promoted temporarily as Assistant
Directors and then promoted temporarily as Deputy Directors. The
requisition letter of the 4th respondent dated 06.02.2016 would reveal, not
only the tale of 1 or 2, but more than 48 officers who were allowed to serve
temporarily in similar lines and most of them have already retired with full
service benefits and few of them like 6th respondent are still continuing in
service. Interestingly the temporary promotions to the 6th respondent and
others vide G.O.(2D)No.68 and G.O.No.20 make it clear that no permanent
employees have been recruited to the various A and B group cadre post in
the Department of Geology and Mining, after its formation since 1983.
10.16. Having exploited the unblemished service of A, B & C group
employees who were selected through a proper Direct Recruitment process
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for years together by allowing them to serve in various substantial posts
temporarily and continuously without accommodating them in the
permanent cadre structure of the various substantial posts of the
Department of Geology and Mining at their pleasure, the respondents 1 to
4 are also bound to protect their service as guaranteed under Article 310
read with Article 311 of the Constitution of India. No doubt, the State do
have the power to make an appointment including power to make
appointment on substantive basis, temporary or officiating basis, adhoc
basis, on daily wages or contractual basis, but the same is not unfettered.
Power to make appointment under the pleasure of the State, is not
necessarily to be assumed to be a power to discriminate unlawfully.
10.17. In the instant lis, by selecting candidates by direct recruitment
as per the provisions of Special Rules, 1998, the 4th respondent flouting
the said rules, issued an appointment order to the post of Assistant
Geologist under Rules 10(a)(1) of TNSSR to 7 appointees including the 6th
respondent. Further flouting Rule 10(a)(1) of TNSSR, the 4th respondent
allowed the temporarily recruited Assistant Geologists to be in service till
2007, until promoting them as Assistant Directors temporarily. Thereafter,
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flouting the Special Rules 2010, 6th respondent and others were allowed to
continue as Assistant Directors till they were further promoted as Deputy
Directors on 15.02.2016. The respondents validated the temporary
promotions by exempting the 6th respondent and others who were
temporarily promoted prior to 25.07.2007 from qualifying in Account Tests
as mandated by Special Rules, 2010, by rescuing themselves helplessly
under the savings clause in Rule 9 of the Special Rules, 2010, which is
applicable to the permanent employees and not the temporary employees.
Thus, respondents 1 to 4 at their pleasure by their power to exercise
discretion ended up, not only in discriminating the 6th respondent and
others appointees / promotees at the various echelons of the cadre structure
of the Department of Geology and Mining by compelling them to continue
in service temporarily but also denied their right to be appointed /
promoted in the permanent Group A & B cadre posts in the said
department endlessly, giving way to an absolute abuse of power, despite
extracting their unblemished service for years together. Hence, the
respondents 1 to 4 bound by the protection guaranteed to 6 th respondent &
others under Article 311 of Constitution of India are at the primordial duty
to validate their service and superannuation as guaranteed under Article 14
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of the Constitution of India. Since the appointment order / Promotion
orders issued to 6th respondent & others who were directly recruited in a
regular selection process, in its very nature violates the Constitutional
guarantee afforded to them by Article 311 (2) of the Constitution of India,
under such circumstances, R1 to R4, that is, the appointing authority and
the State, at whose pleasure such appointments are made, are bound to
protect the conditions of service and superannuation of such employees.
10.18. The Honourable Supreme Court of India in the case of B.
Srinivasa Reddy .Vs. Karnataka Urban Water Supply and Drainage
Board Employees' Association and others reported in Manu/Supreme
Court/ 8454/2006 by its judgment dated 28.08.2006 has dealt with the
case of quo warranto and the portion which is relevant to the facts and
circumstances of this case is extracted as follows:
“29. It is settled law by a catena of decisions that Court
cannot sit in judgment over the wisdom of the Government in the
choice of the person to be appointed so long as the person chosen
possesses prescribed qualification and is otherwise eligible for
appointment.”
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10.19. In the instant case, the 6th respondent and the other six
candidates selected along with him in the direct recruitment process of the
Tamil Nadu Public Service Commission for the post of Assistant Geologist
possess prescribed qualification in terms of Special Rules, 1998 and their
selection was also duly made only in terms of Special Rules, 1998. Their
lordships of the Honourable Supreme Court have further held in the
aforesaid B.Srinivasa Reddy case that in service jurisprudence it is settled
law that it is for the aggrieved person that is the non-appointee to assail the
legality or correctness of the action and that third party has no locus standi
to canvas the legality or correctness of the action. In the instant case, both
the writ petitioners cannot be categorized as non-appointees to the post of
Assistant Geologist and in terms of the judgment of the Honourable Apex
Court discussed supra obviously the writ petitioners herein cannot be held
as an aggrieved party who had been a candidate for the said post.
10.20. It is categorically contended by the learned Senior counsel,
Mr.Sricharan Rangarajan for the petitioners that while the 6th respondent
could not even have been continued as an employee in the Department
beyond 2001, he was further promoted to the post of Assistant Director of
the Department of Geology and Mining, vide G.O.(2D)No. 68, Industries
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(E1) Department, dated 25.07.2007, temporarily. He insisted that though
such temporary promotion has been made under Rule 39 of TNSSR, the
same had been done without meeting out the condition precedent to invoke
the said Rule 39. Having served in the post of Assistant Geologist
temporarily from 21.09.2000, the 6th respondent along with 20 others were
temporarily promoted vide G.O.(2D)No. 68, dated 25.07.2007 and further
the 6th respondent along with 10 others were temporarily promoted and
appointed as Deputy Directors of Geology and Mining under General Rule
39(a)(i) for TNSSR.
10.21. Rule 39 of TNSSR reads as follows:
“39. Temporary promotion - (a) (i) Where it is necessary in
the public interest owing to an emergency which has arisen to fill
immediately a vacancy in a post borne on the cadre of a higher
category in a service or class by promotion from lower category
and there would be undue delay in making such promotion in
accordance with the rules, the appointing authority may
temporarily promote a person, who possesses the qualifications
prescribed for the post, otherwise than in accordance with the
rules.
....
(c) A person temporarily promoted under sub-rule (a) shall be
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replaced as soon as possible by the member of the service, who is
entitled to the promotion under the rules.
.....
(e) A person promoted under sub-rule (a) (b) or (d) shall not be
regarded as a probationer in the higher category or be entitled by
reason only of such promotion to any preferential claim to future
promotion to such higher category. The services of a person
promoted under sub-rule (a) (b) or (d) shall be liable to be
terminated by the appointing authority at any time without notice
and without any reason being assigned.
(f) (i) A person promoted under sub-rule (a) or (d) shall commence
his probation if any, in such category either from the date of his
temporary promotion or from such subsequent date as the
appointing authority may determine;
Provided that on the date so determined, the person possesses all
the qualifications prescribed for promotion to the service, class or
category, as the case may be...”
10.22. It is the specific contention of the learned Senior counsel,
Mr. Sricharan Rangarajan for the petitioners that, Rule 39 could only be
invoked in public interest, yet, no such reference to public interest has been
reflected in G.O.(2D)No.68, dated 25.07.2007. That apart, pointing out that
Rule 39 merely provides a relaxation of procedure for appointment on
account of emergency and public interest and does not relax the
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qualification criteria required of a person to be so temporarily promoted,
the learned Senior counsel insisted that the 6th respondent was ineligible to
be considered for regular promotion to the post of Assistant Director in
view of lack of satisfying the qualifications enumerated under Special
Rules, 2010. Obviously, none of the promotees including the 6th respondent
to the post of Deputy Directors of the Department of Geology and Mining
possessed the Additional qualification which was mandated under Special
Rules, 2010, that the candidates must have passed a District Officer's
manual, Account Test for Subordinate Officers, Part I, Account test for
Executive Officers, Test under the Mines and Minerals (Regulation and
Development) Act, 1957 and Mineral Concession Rules, 1960 and
Criminal Judicial Test, Part I and Part II.
10.23. The respondents 1 to 4 have filed their counter affidavit and
the learned Additional Advocate General, Mr.P.Veerakathiravan submitted
that the Special Rules framed in G.O.Ms.No. 157 dated 12.11.2010
stipulates that an Assistant Geologist eligible for promotion to the post of
Assistant Director of Geology and Mining should clear Account Test for
Executive Officers or the Account Test for the Subordinate Officers, Part I.
But the aforesaid departmental qualification for the promotional post of
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Assistant Director was introduced for the first time under the Special
Rules, 2010. In other words, the passing of Account Test was not the one
of the essential qualifications for promotion to the post of Assistant
Director until 12.11.2010, that is, the date of G.O.Ms.No.157. Admittedly,
the 6th respondent was promoted as Assistant Director of Geology and
Mining on 25.07.2007 in accordance with Special Rules, 1998, which did
not prescribe any qualification of clearing of Account Test for promotion to
the post of Assistant Director. Hence, the promotion of the 6th respondent
to the post of Assistant Director in terms of qualifications prescribed in the
Special Rules, 1998 does not suffer from any infirmity whatsoever. He
further insisted that the 6th respondent has satisfied and possessed all
eligible service qualification for the promotional post of Assistant Director
as prescribed under Special Rules, 1998.
10.24. The additional qualification of clearing of Account Test for
the post of Assistant Director was introduced only under Special Rules,
2010. Hence, the additional service qualification of clearing of test
introduced under Special Rules, 2010 for a promotional post does not
apply to the persons who were already promoted prior to the introduction
of the Special Rules, 2010. The learned Additional Advocate General
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further drew my attention that, the 4th respondent had forwarded a proposal
on 01.03.2015 to the Government explaining the Government that, the
Assistant Geologists who have been promoted under Special Rules, 1998
to the post of Assistant Director have been covered under Rule 9 of the
saving clause of the Special Rules and hence, sought for exemption from
clearing of Account Test to hold the post of Assistant Director. The learned
Additional Advocate General further made it clear that, the State
Government upon considering the proposal of 4th respondent, by order
dated 06.02.2016 has declared that the Assistant Geologists and other
persons in the Department of Geology and Mining promoted to the post of
Assistant Director prior to 12.10.2010 are exempted from clearing Account
Test qualification and their services are covered by Rule 9 of the Saving
Clause adumbrated under Special Rules, 2010.
10.25. However, the learned Additional Advocate General did not
produce the aforesaid proposal of the 4th respondent dated 01.03.2015 and
the aforesaid declaration of the Government dated 06.02.2016.
Interestingly, the same was produced before me by the petitioners. The
relevant portion of the aforesaid clarification issued by the Government
dated 06.02.2016 is as follows:
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“8/ nkw;fhQqk; g[tpapay; kw;Wk; Ru';fj; Jiw
Mizah; mth;fspd; nfhhpf;if. murpd; ftdkhd
ghprPyidf;Fg; gpdd
; h;. Vw;Wf; bfhs;sg;gl;L. g[tpapay;
kw;Wk; Ru';fj;Jiw mYtyh;fSf;F tH';fg;gl;l jw;fhypfg;
gjtp cah;t[fis Kiwg;gLj;j VJthft[k;. ,Jtiu
fzf;fpay; njh;tpy; njh;r;rp bgwhj mYtyh;fs; ,f;fojk;
btspaplg;gLk; ehspypUe;J ,uz;L Mz;LfSf;Fs;
njh;r;rp bgw ntz;Lk; vd;w mwpt[Wj;j';fnshL g[tpapay;
kw;Wk; Ru';fj; Jiw gzpfSf;fhd rpwg;g[ tpjpfs;
btspaplg;gLtjw;F Kd;dh; (mjhtJ. 12/11/2010 f;F
Kd;dh;) cjtp ,af;Feh;fshf gjtp cah;t[ tH';fg;gl;l
mYtyh;fSf;F kl;Lk;. Rpwg;g[ tpjpfspd; tpjp vz;/ 9 y;
tH';fg;gl;Ls;s gzpg; ghJfhg;gpd; (Saving Clause)
mog;gilapy;. fzf;fpay; njh;tpypUe;J tpyf;fspf;fg;gLfpwJ
vd;gij j';fSf;F bjhptpj;Jf; bfhs;fpnwd;/”
The said clarification can be fairly translated as follows for clarity:
“The government after careful consideration of the request
of the Commissioner of the Department of Geology and Mining,
accepting the said request, in view of regularizing the temporary
promotions accorded to the employees of the Department of
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Geology and Mining, hereby direct those employees who have not
duly qualified in the Account Test, within a period of two years
from the date of this clarification letter, provided those employees
who were promoted to the post of Assistant Directors prior to the
Constitution of the Special Rules, 2010 alone, are exempted under
the savings clause 9 of the Special Rules, 2010 from qualifying the
Account Test.”
10.26. At this point the learned senior counsel Mr. Sricharan
Rangarajan appearing for the petitioners vehemently submitted that, the
proposal for exemption dated 01.03.2015 and the acceptance of the
Government dated 06.02.2016 only evidence to the fact that, the Savings
Clause under Rule 9 of Special Rules, 2010 will be applicable only to the
regular promotees and that the temporary promotees were granted a
temporary relaxation, that is, temporary promotees were to clear the
Account Test within two years from the date of receipt of Government
letter dated 06.02.2016. Hence, putting pressure on the fact that none of the
respondents can seek any protection under the said Government letter in
the absence of the 6th respondent having passed such qualifying test the
learned senior counsel pressed for allowing the writ petition by issuing a
writ of quo warranto.
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10.27. However, this Court is of the considered view that such an
interpretation given by the learned senior counsel Mr. Sricharan
Rangarajan to the Government clarification letter dated 06.02.2016 is not
sustainable. A careful reading of the requisition letter of the 4th respondent
dated 01.09.2015 will cull out certain significant facts necessary for the
adjudication of this case. The 4th respondent elaborated the Rule position
under Special Rules, 2010 that those employees who were promoted from
the post of Assistant Geologists to the post of Assistant Directors ought to
have passed the Account Test as mandated under Rule 6(a) of the Special
Rules, 2010 as amended under amendment to the Special Rules, 2010, vide
G.O.Ms.No. 44 dated 29.02.2016, in the said requisition. The said
requisition further elaborated that before the Constitution of the Special
Rules, 2010, several employees were promoted to the post of Assistant
Directors and Deputy Directors on Ad hoc basis including 8 Additional
Directors, 24 Joint Directors, 20 Deputy Directors and 6 Assistant
Directors who would comprise a total number of 58 Group A officers who
were promoted temporarily on Ad hoc basis without passing the Account
Test as mandated under Special Rules, 2010 and conceded that all the
aforesaid 58 Group A officers had retired from service receiving their
entire monetary benefits. Only in view of the same, the 4th respondent
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requested exemption from the Government for those serving officers on Ad
hoc basis in the post of Assistant Directors and Deputy Directors from
qualifying the mandated Account Test under the Special Rules, 2010.
10.28. The clarification letter issued by the Government on
06.02.2016 would made it clear that all those employees who were
promoted after the Constitution of Special Rules, 2010 should pass the
Account Test mandated under Special Rules, 2010 within 2 years from the
date of issuance of the aforesaid letter, that is, from 06.02.2016, thereby
exempting only those Group A officers namely Assistant Directors from
qualifying in the Account Test as mandated under Special Rules, 2010 who
were promoted before 12.10.2010, that is, before the date of Constitution
of the Special Rules. However, as far as the argument of the learned senior
counsel for the petitioners that neither the said letter nor the Savings
Clause would extend to the 6th respondent nor can his temporary promotion
be continued in violation of Rule 39 of TNSSR, this Court is of the
considered view that neither the 6th respondent nor any other appointees
who were appointed along with him to the post of Assistant Geologist at
the first instance temporarily or any other promotees who were promoted
along with him to the post of Assistant Directors temporarily and further to
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the post of Deputy Directors temporarily can be held to be the persons
without proper qualification or persons recruited improperly. The entire
facts and circumstances along with relevant documents placed before this
Court would reveal that the 6th respondent possessed appropriate
qualification as mandated under the Special Rules, 1998 to be appointed to
the post of Assistant Geologist at the first instance and his method of
selection was also through direct recruitment by the Tamil Nadu Public
service Commission as mandated under the Special Rules, 1998. But the
manner in which they were appointed on 21.09.2009 was certainly not in
tune with Special Rules, 1998. The learned Senior Counsel's argument that
the Savings Clause in Rule 9 of the Special Rules, 2010 is only with
respect to permanent appointees and the same by all means can never save
the case of temporary appointees like the 6th respondent cannot be negated.
10.29. However, the manner in which the 6th respondent and others
were appointed by the appointing authority, that is the Director of Geology
and Mining by appointing them temporarily instead of appointing them to
the permanent cadre post of Assistant Geologist in the Department of
Geology and Mining and the manner in which they were allowed to
continue in service for 7 years temporarily has not been explained properly
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by the Government at any point of time. Since the appointment of the 6th
respondent was made under Rule 10(a)(1) of TNSSR, he cannot even be
considered as a probationer. However, this Court has cautioned more than
one time that the appointment order of the 6th respondent dated 21.09.2000
do not specify the period of temporary appointment. Hence, it is needless
to state that the 6th respondent had remained in the service of Assistant
Geologist from 21.09.2000 till 25.07.2007 on the pleasure of the
Government of Tamil Nadu and further he was temporarily promoted to the
post of Assistant Director on 25.07.2007 and consequently promoted to the
post of Deputy Director on 15.02.2016 and is continuing in the aforesaid
post temporarily at the pleasure of the Government of Tamil Nadu. Though
the Government, vide G.O.(2D)No.68, dated 25.07.2007 and G.O.Ms.No.
20, dated 15.02.2016 has promoted the 6th respondent to the post of
Assistant Director and Deputy Director respectively, in both those
promotion orders, it has been made clear that the aforesaid temporary
appointments will not confer any preferential rights on the 6th
respondent and others who were promoted to the aforesaid posts
whatsoever at the time of regular appointment with reference to the
Special Rules constituted in the Government Order in G.O.Ms.No.157,
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dated 12.11.2010, that is, the Special Rules, 2010.
10.30. Hence, a careful reading of both the aforesaid Government
Orders would reveal that the Government has never ever made any regular
appointment in the permanent cadre posts of the Department of Geology
and Mining in terms of the Special Rules in G.O.Ms.No.157, dated
12.11.2010, since the formation of a separate Department of Geology and
Mining, vide G.O.Ms.No.387, dated 24.03.1983, till 15.02.2016. As far as
the question of judicial review is concerned, whether the incumbent
possessed the qualification for appointment and the manner in which the
appointment came to be made or the procedure adopted whether fair, just
and reasonable, the exercise of judicial review is to protect the citizen from
the abuse of power, etc., by an appropriate Government or Department, etc.
In the instant case, exercising the power of appointment, seven candidates
including the 6th respondent were selected in the direct recruitment process
by the Tamil Nadu Public Service Commission for the post of Assistant
Geologist in the Department of Geology and Mining and were appointed
temporarily to the post of Assistant Geologist. Since it is found that the 6th
respondent and others selected were qualified and eligible in terms of the
requisite qualification as mandated by the Special Rules, 1998, and the
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mode of selection was also direct recruitment as mandated by the Special
Rules, 1998, I am of the considered opinion that, this Court cannot sit in
judicial review as to the manner of appointment by which the appointing
authority had appointed the 6th respondent and others temporarily.
10.31. In service jurisprudence, it is settled law that it is for the
aggrieved person, that is, the non appointee to assail the legality of the
offending action. As such, I have no hesitation to hold that both the writ
petitioners as third parties have no locus standi to canvass the legality or
correctness of the action. The Honorable High Court of Delhi in the case of
Devinder Gupta .vs. Union of India and others in the case reported in
Manu / DE / 8113 / 2006 by its judgment dated 07.03.2006 has dealt with
the case of quo warranto and the relevant portion of the same is extracted
as follows:
“7. It is true that in a writ of quo warranto the question of
locus standi is not examined as strictly as in the cases of writs of
certiorari or mandamus, as observed in Gadd Venkateswara Rao
v. Government of Andhra Pradesh and Ors. MANU/SC/0020/1965
[1966]2SCR172, in which the Supreme Court observed:-
The right that can be enforced under Article 226 also shall
ordinarily be the personal or individual right of the petitioner
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himself, though in the case of some of the writs like habeas corpus
or quo warranto this rule may have to be relaxed or modified.
8. However, in our opinion, this does not mean that anybody can
file a petition for writ of quo warranto challenging any
appointment on any post in the country even though he may not
have any direct connection or grievance or interest in the matter.
9.If we accept the submission of the learned counsel for the
petitioner that a petition for writ of quo warranto can be filed by
anyone even though he may have no connection with the
appointment of the respondent then this Court will be flooded
with tens of thousands of petitions challenging all kinds of
appointments or elections to various posts. Hence, we cannot
accept the submission that in a petition for a writ of quo warranto
the question of locus standi cannot be raised at all. As already
observed above, the Court no doubt takes a broader view of locus
standi in a writ of quo warranto as compared to the writs of
certiorari and mandamus, but it is not so broad as to permit
anyone to file such a writ. The objection of locus standi can be
taken even in a writ of quo warranto.”
10.32. The Honorable Supreme Court of India in the case of
B.Srinivas Reddy versus Karnataka Urban Water Supply and Drainage
Road Employees' Association reported in 2006 11 SCC 752 in its
judgment dated 28.08.2006 has dealt with the case of quo warranto and
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the relevant portion applicable to the facts of this case is extracted as
follows:
“43. Whether a writ of quo warranto lies to challenge an
appointment made “until further orders” on the ground that it is not
a regular appointment? Whether the High Court failed to follow the
settled law that a writ of quo warranto cannot be issued unless there
is a clear violation of law? The order appointing the appellant
clearly stated that the appointment is until further orders. The terms
and conditions of appointment made it clear that the appointment is
temporary and is until further orders. In such a situation, the High
Court, in our view, erred in law in issuing a writ of quo warranto the
rights under Article 226 which can be enforced only by an aggrieved
person except in the case where the writ prayed for is for habeas
corpus.”
10.33. Though the Honorable Supreme Court in the aforesaid case
has held that a writ of quo warranto can be enforced only by an aggrieved
persons from the facts and circumstances of that case, in the instant case,
the writ petitioners have filed these writ petitions in the capacity of
relators. However, this Court is of the considered view that the writ
petitioners herein though have filed the writ petitions in the capacity of
relators, they have not filed these writ petitions as public interest
litigations, but have filed the same in the service matter of the 6th
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respondent questioning his authority to hold the position of the Deputy
Register in the Department of Geology and Mining. Had there been an Iota
of public spirit in the minds or in the consciousness of the writ petitioners
herein, they would have filed the writ petitions as against the entire list of
Deputy Directors who were promoted temporarily to the post of Deputy
Directors along with the 6th respondent. Interestingly, neither the 6th
respondent nor the respondents 1 to 4 have filed any of the significant
official documents especially the request of the fourth respondent dated
01.03.2015 and the copy of Letter No.16 issued by the first respondent to
the fourth respondent dated 06.02.2016, but the same were produced by the
petitioners herein. Having known the complete details of the various
appointees who were appointed temporarily to the post of Assistant
Geologist on 21.09.2000 and having known the complete details of the
appointees who were promoted to the post of Assistant Directors on
25.07.2007 temporarily in the Department of Geology and Mining and also
the details of those promotees who were appointed to the post of Deputy
Directors of Geology and Mining on 15.02.2016, the petitioner Association
as well as the member of the petitioner Association who has filed W.P.
(MD)No.29946 of 2023 have chosen to question the authority of the 6th
respondent alone for holding the post of Deputy Director and they have
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consciously refrained from questioning the authority of the other persons
who were appointed and promoted along with the 6th respondent. This
itself would prove and speak in volumes as to their intentions which
necessarily need not be bona fide as against the 6th respondent in filing this
writ petition.
10.34. This Court has also taken note of the appreciation which has
been placed by the respondents 1 to 4 as to the honest and outstanding
contribution in his various positions contributed by the 6th respondent in
the Department of Geology and Mining. This Court has not lost sight to the
objection raised by the learned Senior counsel for the petitioners that the
Savings Clause in Rule 9 of the Special Rules, 2010 would come to the
rescue of only those promotees appointed to the permanent cadre post of
Assistant / Deputy Directors and not to those who were appointed
temporarily to the post of Assistant / Deputy Directors of the Department
of Geology and Mining. However, the writ petitioners have not chosen to
challenge the Letter No.16 issued by the first respondent to the fourth
respondent dated 06.02.2016 exempting those persons who were promoted
and appointed to the post of Assistant Directors on Ad hoc basis relying
upon the Savings Clause in Rule 9 of the Special Rules, 2010 as far as
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clearing Account Test. Reiterating the fact that the 6th respondent and other
persons were fully qualified in terms of the Special Rules, 1998 were
directly recruited to the post of Assistant Geologist by the Tamil Nadu
Public Service Commission fully in accordance to the Special Rules, 1998,
I have no hesitation to hold that, it is for the respondents 1 to 4 to explain
the manner in which they appointed those incumbents temporarily and
allowed them to continue temporarily for seven years and further promoted
them temporarily twice. But the learned AAG, Mr.P.Veerakathiravan
without elaborately explaining the abuse of the power of appointments by
respondents 1 to 4, insisted this Court to decide the case on maintainability
alone.
11. Epilogue:
11.1. In the case of Satish Chandra Anand versus the Union of
India decided by a five judges constitutional bench of the Honourable
Supreme Court of India on 13.03.1953 in a service matter with respect to
termination of contract, the Hon'ble Apex Court has held as follows:
“But of course the State can enter into contracts of
temporary employment and impose special terms in each case,
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provided they are not inconsistent with the Constitution, and those
who choose to accept those terms and enter into the contract are
bound by them, even as the State is bound.
When the employment is permanent there are certain
statutory guarantees but in the absence of any such limitations
Government is, subject to the qualification mentioned above, as
free to make special contracts of service with temporary employees,
engaged in works of a temporary nature, as any other employer.”
In yet another matter in the case of P. K. Sandhu .vs. Shivraj B. Patil
reported in 1997 for SCC 348, their lordships of the Supreme Court have
held as under:
“The power to make an appointment includes the power to
make an appointment on substantive basis, temporary or
officiating basis, Ad hoc basis, on daily wages or contractual
basis”.
11.2. The appointment order of the 6th respondent clearly mentioned
that the appointment is a temporary appointment. Hence, it is the
considered opinion of this Court that, Article 310 of the Constitution of
India makes no distinction between permanent and temporary members of
the services or between persons holding permanent or temporary posts in
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the matter of their tenure being dependent upon the pleasure of the
President or Governor. Hence, Article 311 will not make any distinction
between the two clauses and both the permanent and temporary members
of service are within the protection of the aforesaid Article. No doubt
though the 6th respondent had been appointed temporarily and thereafter
promoted twice temporarily he had remained in service at the pleasure of
the Governor and hence, his appointment is protected. Since the 6th
respondent has been promoted and appointed temporarily to the post of
Assistant Geologist / Assistant Director / Deputy Director of the
Department of Geology and Mining at the pleasure of the respondents 1 to
4, he cannot be held to be an usurper without legal authority. Since the
temporary appointment of the 6th respondent is within the protection of
Article 311 of the Constitution of India and since he had been continuously
holding the temporary post of Assistant Geologist / Assistant Director /
Deputy Director under the pleasure of the respondents 1 to 4 under Article
310 of the Constitution of India, his authority to hold the said post cannot
be questioned, unless removed from service or terminated at the discretion
of the appointing authority.
11.3. Thus, on the basis of the above stated analysis, this Court is
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W.P.(MD)Nos.28526 and 29946 of 2023
satisfied that, the petitioners seeking writ of quo warranto have
demonstrably failed to establish that the appointment of the 6th respondent
Thiru S. Thangamuniasamy in the 5th respondent office is in violation of
the Statutory Rules. I reiterate that the 6th respondent is duly qualified as
per Rules 5(a) r/w the qualifications tabulated in the Annexure of the
Special Rules, 1998. That apart, the method of recruitment was also
certainly in accordance of Rule 2(a) of the Special Rules, 1998. However,
the manner in which the 6th respondent and others were appointed and the
manner in which the 6th respondent and others were promoted twice, is a
clear case of abuse of power of appointment by respondents 1 to 4. Though
the Savings Clause in Rule 9 of the Special Rules, 2010 cannot save the 6th
respondent, he is very well protected under Article 310 and 311 of the
Constitution of India.
11.4. The Honourable Supreme Court in a Constitutional Bench
Judgment in the matter of Statesman (Private limited versus HRDEB and
others) reported in AAR 1968 Supreme Court 1495 has held that in an
unclear case, writ of quo warranto should not be issued and observed as
under:
“The High Court in a quo warranto proceeding should be slow to
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W.P.(MD)Nos.28526 and 29946 of 2023
pronounce upon the matter unless there is a clear infringement of
law”.
As a fallout and consequence of the aforesaid discussion, fully obliged by
the Constitution Bench Judgment extracted supra, these writ petitions
deserve to be dismissed.
12. Accordingly, these writ petitions are dismissed as not
maintainable. There shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
21.05.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
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Note: Issue order copy on 30.05.2024.
To
1.The Secretary to Government of
Tamilnadu,
Industries Department,
Secretariat, Chennai-9.
2.The Secretary to Government of
Tamilnadu,
Natural Resources Department,
Secretariat, Chennai-9.
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W.P.(MD)Nos.28526 and 29946 of 2023
3.The Secretary to Government of
Tamilnadu,
Tamil Nadu Public Service Commission,
TNPSC Road, V.O.C. Nagar,
Park Town, Chennai-600 003.
4.The Commissioner of Geology &
Mining,
Thiru.Vi.Ka Industrial Estate,
Guindy, Chennai-32.
5.The Deputy Director of Geology and
Mining,
Office of the District Collector,
Collectorate, Virudhunagar District.
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W.P.(MD)Nos.28526 and 29946 of 2023
L.VICTORIA GOWRI, J.,
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W.P.(MD)Nos.28526 and 29946 of 2023
21.05.2024
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