Madras High Court
X.Charles Ravi … vs The State Of Tamil Nadu Rep on 7 June, 2023
Author: R.Mahadevan
Bench: R. Mahadevan, Mohammed Shaffiq
W.A.No.170 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.06.2023
CORAM:
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A.No.170 of 2023
and
C.M.P.Nos.1656 and 1657 of 2023
X.Charles Ravi … Appellant
V.
1.The State of Tamil Nadu rep
by Secretary to Government,
Environment and Forest Department,
Fort. St. George, Chennai 9.
2.The Principal Chief Conservator of Forests,
(Head of Forest Force),
Panagal Building, Saidapet,
Chennai-15.
3.The Conservator of Forest,
Trichy Circle,
Trichy District.
4.The District Forest Officer,
O/o.District Forest Office,
Court Campus,
Thiruchirapalli Division,
Trichy 01. …Respondents
1/14
https://www.mhc.tn.gov.in/judis
W.A.No.170 of 2023
Prayer: Writ Appeal is filed under Article 15 of Letters Patent, praying to set aside the
order made in W.P.No.25179 of 2014 dated 11.07.2022.
For Appellant : Mrs.G.Selvi George
For Respondents : Mr.C.Kathiravan,
Special Government Pleader
JUDGMENT
(Judgment of the Court was made by MOHAMMED SHAFFIQ, J.) The petitioner in WP.No.25179 of 2014 is the appellant herein. The present writ appeal is the second round of litigation on the issue of the right / eligibility of the appellant to seek regularization of his services as Forest Guard (Wireless Technician).
2. Brief Facts:
(a) The appellant was initially appointed as Sailor in the Indian Navy and joined the service on 15.01.1982. After having completed 16 years in the Navy holding various posts / responsibilities, he discharged from service on 31.01.1998. Thereafter, he joined the services of the Forest Department as Electrical Mechanic Radio - Grade II and was subsequently, holding the post of Chief Electrician Radio Grade.
(b) Thereafter, the appellant was appointed as Forest Guard (Wireless Technician) by the 3rd respondent vide order dated 25.10.2000 pursuant to a request made to the Assistant Director, Ex-servicemen Welfare Office, Tiruchirapalli to sponsor 2/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 a list of eligible persons for appointment to the post of Wireless Technician, Arms Mechanic and Weapons Trainer.
(c) The appellant was appointed as Forest Guard Wireless Operator on temporary basis in terms of Rule 10 (a)(i) of the General Rules for the Tamil Nadu State and Subordinate Service Rules. While so, he was terminated from service by the order of the third respondent dated 22.03.2001 on the ground that he does not possess the requisite qualification as prescribed in Rule 5 of the Special Rules for the Tamil Nadu Forest Subordinate Service. Challenging the same, he preferred OA.No.2348 of 2001, before the Tamil Nadu Administrative Tribunal, Chennai, and on abolition of the Tribunal, the said OA was transferred to the file of this court and renumbered as WP.No.2301 of 2007.
(d) By order dated 08.08.2011, the learned Judge after having found that the appellant did not possess the requisite qualification, disposed of the writ petition by directing the 4th respondent herein to send a proposal to the 1st respondent herein seeking relaxation in respect of the educational qualification to the post of Forest Guard (Wireless Technician) with reference to the appellant and further directing the 1st respondent to pass appropriate orders granting relaxation. The relevant portion of the order of the learned Judge is extracted hereunder:
“10. In the light of the above discussion, I have no hesitation to quash the impugned order dated 22.03.2001. The 1st respondent is directed to send necessary proposal 3/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 seeking relaxation in respect of the educational qualification for the post of Forest Guard (Wireless Technician) with reference to the petitioner within a period of 8 weeks from today and the 3rd respondent is directed to pass appropriate orders granting relaxation with regard to the educational qualification as provided under Rule 5 of the Special Rule for Tamil Nadu Forest Subordinate Service, within a period of 8 weeks thereafter. The writ petition is disposed of with the above direction. No Costs.”
(e) The matter was carried by way of appeal in W.A.Nos.2442 of 2011 and the Division Bench of this Court was pleased to modify the above direction to the effect that the 1st respondent shall consider the request for relaxation of the appellant on merits and pass order within a period of 12 weeks. Resultantly, the positive direction issued for relaxation was modified to one wherein the 1st respondent would exercise its discretion and pass orders with respect to relaxing the condition relating to qualification or otherwise, on merits. The relevant portion of the Division Bench Judgment is extracted hereunder:
“8. In the light of the said submission made, these writ appeals are disposed of by modifying the direction issued in paragraph 10 of the order dated 08.08.2011 in W.P.Nos.2300, 2301 and 2302 of 2007 to the effect that Secretary to the Government, Environment and Forest Department, Chennai shall consider the relaxation request of the respondents on merits, and pass orders, within a period of twelve weeks from the date of receipt of copy of this order, after giving opportunity of hearing to the respondents.
9. It is made clear that if relaxation is granted by the Government, the respondents can continue in service. As we disposed of the writ appeals with a direction to the Secretary to Government, Environment and Forest Department, Chennai, to consider the request of the respondent on merits, the parties are directed to maintain status-quo as on today, till then. ”
(f) Apparently, the 1st respondent herein, on finding that the appellant did not 4/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 possess the requisite qualification to the post of Forest Guard, while examining the request for relaxation of Rules, indicated that relaxation of Rules, if any, can be given with prospective effect i.e., from the date of Government Order and that, relaxation of the eligibility criteria with retrospective effect and regularization of the appellant is not feasible and it will lead to other complications with regard to seniority. It was further observed that the appellant’s request for relaxation cannot be acceded to in view of the fact that it is settled principle that unqualified person cannot be appointed in violation of the Rules. Accordingly, the request of the appellant for relaxation was rejected by the first respondent.
(g) Pursuant to the rejection order passed by the 1st respondent, the 2nd respondent had passed the impugned order communicating the rejection of request of the appellant for regularization of Forest Guard. However, the 1st respondent directed the 2nd respondent to take necessary action to give appropriate posting to the appellant based on the educational qualification.
(h) Aggrieved by the rejection of request for regularization of Forest Guard, the appellant and two others filed writ petitions in W.P.Nos.25178 to 25180 of 2014 to quash the order dated 05.09.2014.
(i) The learned Judge dismissed the aforesaid writ petitions holding that the 5/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 rejection of regularization on the premise that the appellant did not possess the requisite educational qualification in terms of Rule 5 of the Special Rules of Subordinate Service does not warrant interference. Aggrieved, the appellant is before this Court challenging the order of the learned Judge dated 11.07.2022 passed in W.P.No.25179 of 2014.
3. Case of the Appellant:
(a) It is submitted by the learned counsel for the appellant that the appointment as Forest Guard (Wireless Technician) under Rule 10 (a)(i) of the General Rules for the Tamil Nadu State and Subordinate Service Rules, was made after attending the interview with the requisite certificate before the Interview Committee. It is thus not open to the respondents to now submit that the appellant did not possess the necessary qualification in terms of Rule 5 of the Special Rules for the Tamil Nadu Forest Subordinate Service Rules.
(b) It is further submitted that the appellant rendered an unblemished service record and is thus eligible to be appointed as Forest Guard (Wireless Technician). The impugned order dated 11.07.2022 suffers from error apparent on the face of record inasmuch as in the very same order, it has been directed that the Forest Officer shall appoint the appellant to a post to which he possesses necessary educational qualification after verifying the genuineness of the certificate that may be produced by 6/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 him.
4. Case of the Respondents:
To the contrary, the learned counsel for the respondents made the following submissions:
(a) The appellant having been admittedly appointed on temporary basis in terms of Rule 10 (a)(i) of the General Rules for the Tamil Nadu State and Subordinate Service Rules, it is open for the respondents to discharge the appellant from service at any time and that, there cannot be any claim for permanency as a matter of right.
(b) Once qualification has been prescribed, it may not be open for relaxation by an executive order / proceedings unless power is conferred on the executive to that effect.
5. Heard the both sides. Perused the materials available on record.
6. The claim of the appellant seeking regularisation of the services of the appellant in the post of Forest Guard (Wireless Operator) from the date of his initial appointment with consequential benefits, was rejected by the first respondent, on the premise that he does not possess the required qualification for the post in question, and the said order of rejection, was affirmed by the learned Judge in WP.No.25179 of 2014 7/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 by order dated 11.07.2022, which is under challenge in this writ appeal.
7. We find no reason to interfere with the order of the learned Judge impugned herein, for the following reasons:
(a) It is trite law that fixation of eligibility / qualification criteria falls within the exclusive prerogative of the employer and that, relaxation cannot be claimed as a matter of right. In this regard, it may be useful to refer to the following judgments of the Hon’ble Supreme Court:
(i) Surinder Singh v. Union of India, (2007) 11 SCC 599 :
“15. ……. It is the prerogative and authority of the employer to lay down suitable service conditions to the respective posts.”
(ii) Punjab National Bank v. Anit Kumar Das, (2021) 12 SCC 80 :
“17.3. Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the courts to consider and assess. A greater latitude is permitted by the courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an institution or an industry or an establishment as the case may be. The courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications.
(emphasis supplied)
(b) It may also be relevant to refer to Rule 5 of the Special Rules for the Tamil Nadu Forest Subordinate Service Rules, insofar as it prescribes the qualification for appointment as Forest Guard, which reads as under:
-----------------------------------------------------------------------------------------------------------------------------
Class category Method Qualifications 8/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023
-----------------------------------------------------------------------------------------------------------------------------
3.Forest Guard(i) Direct Recruitment A pass in Higher Secondary Course with Physics, Chemistry, Biology, Zoology of the subject G.O.Ms.No.75, Environment and Forests, dated 21.03.96, B1/30531/89. Provided that this qualification shall not be necessary in respect of candidates belonging to jungle tribes specified in the Annexure and also in the case of those who were appointed as Reserve Watchers on or before 11.10.82. further that those who were appointed as Reserve Watchers on or after the 11th October, 1982 but prior to the 12th November 1987 must possess a pass in VIII standard or its equivalent in a recognized school.
Provided further that those who were appointed as Forest Watcher on or after 13.11.87 must possess the Minimum General Educational Qualification.
-----------------------------------------------------------------------------------------------------------------------------
A reading of the above provision would suggest that for being appointed as Forest Guard, a Pass in Higher Secondary School with Physics, Chemistry, Biology, Zoology as one of the subjects, is a pre-requisite. There is no dispute / quarrel over the fact that the appellant does not possess the necessary qualification in terms of Rule 5 of the Special Rules for the Tamil Nadu Forest Subordinate Service Rules, for being appointed as a Forest Guard. That apart, the fact that the appellant does not possess the requisite qualification, would also be clear from the direction of the Division Bench of this Court, considering the appellant’s request for relaxation, the need for which would 9/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 have never arisen, if the appellant was qualified.
(c) In the present case, the 1st respondent had considered the request as to whether the eligibility criteria could be relaxed and found that the same if extended with retrospective effect, apart from being not feasible, may lead to complications with regard to seniority in the same cadre and promotion as well and that, relaxation of educational qualification could undermine and result in interfering with the wisdom of the rule making authority in policy matters which is impermissible. Further, it could result in opening up floodgates for litigation.
Firstly, the executive cannot exercise its power relaxing the conditions which would have the effect of overriding rules prescribing qualifications. In this regard, it may be useful to refer to the following decisions:
(i) K. Kuppusamy v. State of T.N., (1998) 8 SCC 469 :
“3. .....The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice.” (emphasis supplied)
(ii) Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147 :
“59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of India v. Majji Jangamayya [(1977) 1 SCC 606] , Paluru Ramkrishnaiah v. Union of India [(1989) 2 SCC], C. Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC] and Joint Action Committee of Air Line 10/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 Pilots' Assn. of India v. DG of Civil Aviation [(2011) 5 SCC 435] .)
60. Similarly, a Constitution Bench of this Court, in Naga People's Movement of Human Rights v. Union of India [(1998) 2 SCC] , held that the executive instructions have binding force provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.
61. In Nagaraj Shivarao Karjagi v. Syndicate Bank [(1991) 3 SCC 219] this Court has explained the scope of circulars issued by the Ministry observing that it is binding on the officers of the department, particularly the recommendations made by CVC.” (emphasis supplied) Secondly, relaxation is a matter of policy and the Courts would be loathe in interfering with policy decisions except in case where it suffers from manifest arbitrariness. In this regard, it may be useful to refer to the following judgments:
(i) Union of India v. Kannadapara Sanghatanegala Okkuta & Kannadigara, (2002) 10 SCC 226 "5. …..That the court will not interfere in questions of policy decision is clearly brought out by the following passage from a decision of this Court in Delhi Science Forum v. Union of India [(1996) 2 SCC 405] when at p. 413, it was observed as follows: (SCC p. 413, para 7) “7. What has been said in respect of legislations is applicable even in respect of policies which have been adopted by Parliament. They cannot be tested in court of law. The courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. There may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in Parliament. But that has to be sorted out in Parliament which has to approve such policies. Privatisation is a fundamental concept underlying the questions about the power to make economic decisions.
What should be the role of the State in the economic development of the nation? How the resources of the country shall be used? How the goals fixed shall be attained? What are to be the safeguards to prevent the abuse of the economic power? What is the mechanism of accountability to ensure that the decision regarding privatisation is in public interest? All these questions have to be answered by a vigilant Parliament. Courts have their limitations — because these issues rest with the policy-makers for the nation. No direction can be given or is 11/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 expected from the courts unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provision. The new Telecom policy was placed before Parliament and it shall be deemed that Parliament has approved the same. This Court cannot review and examine as to whether the said policy should have been adopted. Of course, whether there is any legal or constitutional bar in adopting such policy can certainly be examined by the Court.”
(ii) Union of Indian and others v. Ilmo Devi and Another, 2021 SCC OnLineSC 899:
"26. Even the regularization policy to regularize the services of the employees working on the temporary status and / or casual labourers is a policy decision and in judicial review that Court cannot issue Mandamus and / or issue mandatory directions to do so.....”
(iii) State of Orissa v. Prasana Kumar Sahoo, (2007) 15 SCC 129:
"12. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.
13. In A. Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112)] this Court has held : (SCC p. 126, para 45) “45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.” Thus, the rejection of the request for relaxation of the educational qualification assuming it permissible, is a matter of policy. It is trite law that policy matters would not be interfered with by Courts unless it is shown to be manifestly arbitrary, which is certainly not the case here. In any view, there is no challenge either to the qualification fixed under Rule 5 of the Special Rules for the Tamil Nadu Forest Subordinate Service 12/14 https://www.mhc.tn.gov.in/judis W.A.No.170 of 2023 Rules or the refusal to relax the qualification, the challenge is instead only to the ministerial / administrative act of appointing the appellant to the post of Forest Guard, to which he is not eligible as directed by the 1st respondent. Thus, we find that the reasons which weighed with the 1st respondent are sound and do not suffer from the vice of being perverse, hence, do not warrant any interference.
8. In view of the above, we find no reason to interfere with the impugned order of the learned Judge. Accordingly, the Writ Appeal stands dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
[R.M.D.,J.] [M.S.Q.,J.]
07.06.2023
Index: Yes / No
Internet: Yes / No
Speaking order / Non-speaking order
shk/mka
R.MAHADEVAN, J.
AND
MOHAMMED SHAFFIQ, J.
13/14
https://www.mhc.tn.gov.in/judis
W.A.No.170 of 2023
Shk/mka
W.A.No.170 of 2023
and
C.M.P.Nos.1656 and 1657 of 2023
07.06.2023
14/14
https://www.mhc.tn.gov.in/judis