[Cites 9, Cited by 0]
Madras High Court
Dr.G.Jayakrishnan vs The State Of Tamil Nadu on 2 January, 2026
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 W.A.(MD)NO.2193 OF 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.01.2026
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MRS.JUSTICE R.KALAIMATHI
W.A.(MD)No.2193 of 2023 AND
C.M.P.(MD)No.17576 of 2023
Dr.G.Jayakrishnan ... Appellant / 4th Respondent
Vs.
1. The State of Tamil Nadu,
Rep. by its,
Health and Family Welfare Department,
Rep. by its Secretary,
Secretary, Chennai – 600 009.
2. The Commissioner,
Directorate of Indian Medicine and Homeopathy,
Arumbakkam, Chennai – 600 106.
3. The Principal,
Government Ayurveda Medical College,
Kottar, Nagercoil,
Kanyakumari District. ... Respondents/ Respondents
4. Dr.C.Roshy Joseph ... 4th Respondent/ Writ petitioner
5. Dr.S.Rajapandi
6. The Tamil Nadu Ayurveda Medical College Tachers Association,
Rep. By its Secretary, Dr.Shegdar Praveen,
S/o.Karabasappa Shegedar,
1/15
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2 W.A.(MD)NO.2193 OF 2023
Preently serving as Reader and Head of Department of
Rachana Shareera,
Government Ayurveda Medical College and Hospital,
Kottar, Nagercoil,
Kanyakumari District.
(R-5 & R-6 are impleaded vide common order dated 08.12.2025
made in C.M.P.(MD)Nos.863 and 7402 of 2025)
... Respondents
Prayer: Writ appeal filed under Clause 15 of the Letters Patent,
to allow the writ appeal and set aside the order of the learned Judge
dated 27.06.2023 made in W.P.(MD)No.4656 of 2023.
For Appellant : Mr.N.Subramaniyan,
for Mr.A.Balaji.
For Respondents : Mr.T.Amjad Khan,
Government Advocate for R-1 & R-2.
Mr.Mohammed Imran,
for M/s.Ajmal Associates for R-4.
Mr.Niranjan S.Kumar for R-5.
Mr.M.Saravanakumar for R-6.
No appearance for R-3.
***
JUDGMENT
Heard both sides.
2. This writ appeal is directed against the order dated
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27.06.2023 made in W.P.(MD)No.4656 of 2023 filed by the fourth
respondent herein (Dr.C.Roshy Joseph).
3. Dr.Roshy Joseph filed the said writ petition challenging the
appointment of the appellant herein(Dr.Jayakrishnan) as Reader in
the Government Ayurveda Medical College, Kottar, Kanyakumari
District vide G.O.(D)No.303 Health and Family Welfare (IM-1(1)
Department dated 19.02.2016 as well as the consequential posting
order dated 25.02.2016. The learned single Judge after hearing both
sides allowed the writ petition in the following terms:-
“ 10. ...
a.The impugned order, dated 19.02.2016 and
the consequential appointment, dated 25.02.2016
are hereby quashed.
b.Either the Government may consider to
regularize all the exiting 10(a)(i) appointees by
conducting special tests so that all the eligible
candidates’ rights are protected. For the remaining
available vacancies separate notification may be
issued under the Adhoc Rules to fill up the posts.
c.Alternatively, the government shall conduct
fresh recruitment based on Adhoc Rules to fill up all
the posts including the posts occupying by the
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10((a)(i) employees.
d.The respondents shall carry out the above
directions, within a period of 12 weeks from the
date of receipt of a copy of the order.
e.Till such time, all the employees shall
continue in their same post as 10(a)(i) employees
including the 4th respondent.
11. With the above terms, this Writ Petition is
allowed. No Costs.”
Aggrieved by the same, the appellant whose appointment as
Reader was set aside, has filed this writ appeal.
4. The basic facts are not in dispute. The Government Ayurveda
Medical College, Kottar was established in the year 2006 vide
G.O.Ms.No.10 Health and Family Welfare Department dated
23.01.2006. It can be seen therefrom that the Government envisaged
creation of as many as 16 posts of Reader in various departments. In
the case on hand, we are concerned only with the post of Reader in
the Department of Rasa Shastra and Bhaishajya Kalpana. The
Government issued notification dated 26.09.2010 calling for
applications for the post of Professors and Readers. The notification
stipulated that the applicants for the post of Reader must have
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teaching experience of five years in the concerned subject. The upper
age limit was 35 years.
5. Since all the candidates were agewise ineligible, the
Government relaxed the age limit and 45 years was made the upper
age limit. A fresh notification was issued on 14.08.2011. Once again,
the appellant applied for the post of Reader in the subject of Rasa
Shastra and by Bhaisajya Kalpana. Interview was held on 12.10.2011.
Even though the appellant fulfilled all the requirements, he was not
selected. The appellant would allege that his selection was put on
hold so that one Dr.Clarence Davy could be accomodated in the post
of Reader.
6. Aggrieved by his non-selection, the appellant filed W.P.
(MD)No.181 of 2012. The said writ petition was taken up along with
W.P.(MD)No.12039 of 2011 filed by Dr.Clarence Davy and W.P.
(MD)No.12040 of 2011 filed by Dr.Nandhinee Vijay. All the three writ
petitions were disposed of on 02.01.2013 with certain directions.
One such direction was that if the appellant herein was qualified, he
should be considered with reference to the relative merits and
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demerits for the purpose of completing the process of recruitment.
7. Pursuant to the aforesaid direction, the case of the appellant
was considered and his request was rejected on 16.10.2014.
Challenging the same, the appellant filed W.P.No.13566 of 2015 and
interim order was granted in favour of the appellant on 30.04.2015.
It is relevant to note that even in the previous round, an interim
order was granted to keep one post vacant. During the pendency of
the writ petition, the Government came to the conclusion that the
writ appellant was having the requisite qualification to hold the post
of Reader and accordingly issued G.O.(D)No.303 Health and Family
Welfare Department dated 19.02.2016 appointing him to the post of
Reader. The appellant is working in the said post of Reader till date.
This appointment was put to challenge in W.P.(MD)No. 4656 of 2016
and quashed. Citing these subsequent developments as well as the
pendency of this writ appeal, W.P.No.13566 of 2015 was dismissed as
infructuous.
8. The only question that calls for consideration is whether the
order passed by the learned single Judge calls for interference.
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9. The Adhoc Rules in respect of the post of Reader as well as
other posts were issued by the Government only in the year 2018
vide G.O.(Ms)No.125 Health and Family Welfare Department dated
10.04.2018 with retrospective effect. The learned single Judge came
to the conclusion that when the Adhoc Rules were framed only on
10.04.2018, any appointment made prior to the same ought to be
considered as 10(a)(i) appointment under the Tamil Nadu State and
Subordinate Service Rules. The appellant was also considered as a
10(a)(i) appointee.
10. We cannot endorse the view that the appointments made
prior to the issuance of the Adhoc Rules should be considered as Rule
10(a)(i) appointments. This is for more than one reason. Rule
10(a)(i) of the Tamil Nadu State and Subordinate Service Rules reads
that 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 the
rules and the Special Rules, the appointing authority may
temporarily appoint a person who possesses the qualifications
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prescribed for the post otherwise than in accordance with the said
rules. A bare reading of the above provision indicates that there must
be recruitment rules in force and that it is not possible to make
appointments in accordance with them immediately, but there is an
urgent need for filling up the vacancy. When there is no recruitment
rule at all, the question of invoking Rule 10(a)(i) does not arise at all.
Therefore, treating the appellant as a Rule 10(a)(i) appointee is
incorrect.
11. That leads us to the question whether the Government
could have notified the vacancy as well as precribed the qualification
by an executive order in the absence of rules framed under Article
309 of the Constitution of India. In other words, when there is no
legislative enactment either in the form of an Act or subordinate
legislation, could the Government by a G.O. have made the
appointments. Of course, it goes without saying that any
appointment could not have been made in an arbitrary manner. A fair
and transparent process must be adopted before making any public
appointment. But there is no requirement that in the absence of
recruitment rules, such appointments cannot be made. Such a view
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would run counter to Article 162 of the Constitution of India.
12. Article 162 of the Constitution of India reads as follows:-
“Extent of executive power of State.—
Subject to the provisions of this Constitution, the
executive power of a State shall extend to the
matters with respect to which the Legislature of the
State has power to make laws:
Provided that in any matter with respect to
which the Legislature of a State and Parliament have
power to make laws, the executive power of the
State shall be subject to, and limited by, the
executive power expressly conferred by this
Constitution or by any law made by Parliament
upon the Union or authorities thereof.”
The proviso has no application to the facts on hand. The Constitutional
Bench of the Hon'ble Supreme Court of India in the decision reported in
AIR 1967 SC 1910 (Sant Ram Sharma Vs. State of Rajasthan and
Others) had held that though there was no specific provision in the
Rules laying down the principle of promotion of junior or senior
grade officers to selection grade posts, that did not mean that till
statutory rules were framed in this behalf the Government cannot
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issue administrative instructions regarding the principle to be
followed in promotions of the officers concerned to selection grade
posts. The Government cannot amend or supersede statutory rules
by administrative instructions, but if the rules are silent on any
particular point Government can fill up the gaps and supplement the
rules and issue instructions not inconsistent with the rules already
framed.
13. In AIR 1993 SC 477(Indra Sawhney Etc. Etc vs Union Of
India And Others, Etc. Etc.), the Hon'ble Supreme Court had held that
a provision for reservation can be incorporated through an executive
order. It was declared therein as follows:-
(1)(a) It is not necessary that the 'provision'
under Article 16(4) should necessarily be made by the
Parliament/Legislature. Such a provision can be made by the
Executive also. Local bodies, Statutory Corporations and
other instrumentalities of the State falling under Article
12 of the Constitution are themselves competent to make
such a provision, if so advised.
(b) An executive order making a provision
under Article 16(4) is enforceable the moment it is made
and issued.”
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14. The Hon'ble Supreme Court in Krushna Chandra Sahu Vs.
State of Orissa (1995) 6 SCC 1 held that if the statutory Rules, in a given
case, have not been made, either by the Parliament or the State Legislature, or,
for that matter, by the Governor of the State, it would be open to the appropriate
Government (the Central Government) under Article 73 and the State
Government under Article 162) to issue executive instructions.
15.Therefore, merely because there were no recruitment or
Adhoc Rules, the appointments made by the executive in a fair and
transparent manner cannot be placed on a lesser pedestal. The
executive was fully competent to make the appointments even in the
absence of Adhoc Rules.
16. There is another aspect of the matter. Admittedly, it was the
Government which established the Ayurveda Medical College. The
college was also subsequently granted recognition by the UGC. Such
recognition would not have been granted unless the college had a
regular faculty. Therefore, it is not proper to rank all the
appointments made prior to the framing of the Adhoc Rules as Rule
10(a)(i) appointments. It is conceded that long before the Adhoc
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Rules were formulated, the college had been granted recognition.
17. In fact, the writ petition ought to have been dismissed on a
short ground. Admittdly, the writ petitioner was not an aspirant for
the post of Reader in the subject of Rasa Shastra, when the
recruitment process was made in 2010-2011. She was then pursuing
PhD., in Jam Nagar, Gujarat. On the other hand, when the recruitment
notification was issued, the appellant was an applicant. He was fully
qualified to hold the post. His non-selection itself was improper. That
is why, direction was given vide order dated 02.01.2013 in W.P.
(MD)No.181 of 2012 to consider the petitioner's qualification while
completing the process of recruitment. The appointment of the
appellant made in 2016 was a culmination of the recruitment process
that commenced in the year 2010-11. The writ petitioner was
nowhere in the picture. It is well settled that only an aggrieved
person could challenge an appointment made to a post [(2013) 5
SCC 1 (State of Punjab Vs. Salil Subhlok]. The writ petitioner could
not be said to be an aggreived person. A person can be said to be
aggrieved only if he or she has been wrongfully deprived of anything
to which he or she is legally entitled and not merely a person who
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suffered some sort of disappointment (P.Ramanatha Aiyar's
Advanced Law Lexicon). Only a non-appointee can challenge the
appointment. The writ petitioner was not even an applicant for the
post of Reader. Therefore, the writ petitioner completely lacked the
standing to question the appointment of the writ appellant. The writ
petition was not maintainable. These two aspects were not taken
note of by the learned single Judge. Hence, we set aside the order
made in W.P.(MD)No.4656 of 2023. The writ appellant as well as the
private respondents including the writ petitioner may work out their
rights in the manner known to law based on the declaration made in
these proceedings. This writ appeal stands allowed. No costs.
Consequently, connected miscellaneous petition is closed.
(G.R.SWAMINATHAN, J.) & (R.KALAIMATHI, J.)
2nd January 2026
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
PMU
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To:
1. The Secretary,
Health and Family Welfare Department,
Secretary, Chennai – 600 009.
2. The Commissioner,
Directorate of Indian Medicine and Homeopathy,
Arumbakkam, Chennai – 600 106.
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G.R.SWAMINATHAN, J.
AND
R.KALAIMATHI, J.
PMU
W.A.(MD)No.2193 Of 2023
02.01.2026
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