Madras High Court
B.Rajendran vs State Rep. By Principal Secretary To ... on 29 April, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.04.2014
CORAM
THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN
and
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
Writ Appeal (MD) No.427 of 2014
Writ Appeal (MD) Nos.428 and 474 of 2014
1.B.Rajendran ... Appellant in W.A.No.427/2014
2.R.Sudarshan ... Appellant in W.A.No.428/2014
3.V.Maharajan ... Appellant in W.A.No.474/2014
Vs.
1. State rep. by Principal Secretary to Government
Government of Tamil Nadu
Tourism, Culture and Religious Endowments
Department, Secretariat, Chennai.
2. P.Dhanapal ... Respondents in all W.As.
Appeals under Clause 15 of the Letters Patent, against the orders dated
28.02.2014, made in W.P(MD)Nos.15080 and 19247 of 2013 and 3105 of 2014.
!For Appellant ... Mr.G.R.Swaminathan
(In W.A.Nos.427&428/2014)
For Appellant ... Mr.M.S.Balasubramania Iyer
(In W.A.No.474/2014)
^For 1st Respondent ... Mr.A.L.Somayaji,
Advocate General
Assisted by Mr.Kandasami and
Mr.V.R.Shanmuganathan
Special Government Pleader.
For 2nd Respondent ... Mr.R.Muthukumarswamy,
Senior Counsel
Assisted by Mr.Anand
Venkatesh
:JUDGMENT
V.RAMASUBRAMANIAN,J.
These writ appeals arise out of the dismissal of two writs of quo warranto against the second respondent and the dismissal of one writ of certiorari to quash the re-employment of the second respondent as the Commissioner for Hindu Religious and Charitable Endowments for a period of three years.
2.We have heard Mr.G.R.Swaminathan and Mr.M.S.Balasubramania Iyer, learned counsel appearing for the appellants, Mr.A.L.Somayaji, learned Advocate General appearing for the State of Tamil Nadu and Mr.R.Muthukumarasamy, learned senior counsel assisted by Mr.Anand Venkatesh, learned counsel appearing for the second respondent.
3.The second respondent was originally selected and appointed as an Assistant Commissioner in the Hindu Religious and Charitable Endowments Department on 06.11.1985. He was promoted as Deputy Commissioner on 01.7.1991, promoted as Joint Commissioner on 31.7.1996 and as Additional Commissioner on 20.7.2011.
4.The second respondent was promoted by G.O.Ms.No.329, Tamil Development Religious Endowments and Information Department, dated 27.9.2012, as the Commissioner for Hindu Religious and Charitable Endowments. On 31.5.2013, he reached the age of superannuation. Therefore, by G.O.Ms.No.122, Tourism, Culture and Religious Endowments Department, dated 31.5.2013, the second respondent was permitted to retire on reaching the age of superannuation, with effect from the afternoon of 31.5.2013.
5.However, by a fresh order in G.O.Ms.No.133, Tourism, Culture and Religious and Endowments Department, dated 31.5.2013, the Government of Tamil Nadu sanctioned the re-employment of the second respondent as Commissioner, for a period of three years, or until further orders, whichever is earlier. It was stated in the Government Order that his pay will be regulated during the period of re-employment, as per Rule 44 of the Tamil Nadu Pension Rules.
6. Questioning the said appointment, a person by name Mr.B.Rajendran, who had earlier retired as Senior Accounts Officer from the Department way back in the year 2001, filed a writ petition in W.P. (MD)No.15080 of 2013, seeking the issue of a writ of quo warranto, questioning the authority of the second respondent to continue to hold the office of the Commissioner. Another person by name V.Maharajan, professing to the General Secretary of a Society by name Aanmeega Kalachara Mandram (Spiritual Cultural Society), came up with a writ petition in W.P.(MD)No.19247 of 2013, seeking the issue of a writ of quo warranto. Subsequently, an employee of the Department, by name R.Sudarshan, working as Joint Commissioner, Hindu Religious and Charitable Endowments Department, came up with a writ petition in W.P.(MD) No.3105 of 2014, not seeking the issue of a writ of quo warranto, but seeking the issue of a writ of Certiorari, to quash the order in G.O.Ms.No.133 dated 31.5.2013, by which, the second respondent was granted re-employment.
7.All the three writ petitions were taken up together and by a common order dated 28.02.2014, they were dismissed by a learned Judge of this Court. Aggrieved by the dismissal of the two writs of quo warranto and one writ of Certiorari, the writ petitioners are on appeal before us.
8.Fortunately, there are no disputes on facts. In all the three writ petitions, the challenge either to the re-employment of the second respondent or to his authority to continue in office, revolves only around legal issues. But, before getting into the legal issues, it is necessary for us to deal first with two questions raised by the learned Advocate General and the learned senior counsel appearing for the second respondent. They relate to the maintainability of the writ petitions and the locus standi of the writ petitioners. MAINTAINABILITY
9. As stated earlier, there are two writ petitions seeking the issue of a writ of quo warranto and one writ petition seeking the issue of a writ of Certiorari. Mr.A.L.Somayaji, learned Advocate General opposes the maintainability of the writs of quo warranto, on the ground that they are filed by persons who are guilty of mala fides. His opposition to the writ of Certiorari is that the person who seeks the issue of a writ of Certiorari, is not a person who would have otherwise become eligible for appointment to the post. Therefore, at the instance of such a person, a writ of Certiorari, according to the learned Advocate General, will not lie.
10.On the question of entitlement of a serving employee to maintain a writ of Certiorari, the learned Advocate General relies upon the opinion expressed by the Supreme Court in B.Srinivasa Reddy v. Karnataka Urban Water Supply Drainage Board Employees Association [(2006) 11 SCC 731]. In paragraph 78 of the report, the Supreme Court indicated that Certiorari jurisdiction can be exercised only at the instance of a person who is qualified for the post and who is a candidate for the post. This opinion, found in paragraph 78 of the decision in B.Srinivasa Reddy, followed an earlier decision in Umakant Saran (Dr.) v. State of Bihar [(1973) 1 SCC 485], wherein, it was held that an appointment cannot be challenged by one, who himself is not qualified to be appointed.
11.The above contention of the learned Advocate General on the question of maintainability of the writ of Certiorari by a serving employee of the Department was accepted by the learned single Judge and his writ petition W.P.(MD).No.3105 of 2014 was dismissed by the learned Judge by relying upon paragraph 78 of the decision of the Supreme Court in B.Srinivasa Reddy.
12.But, in our considered opinion, the decisions of the Supreme Court both in Umakant Saran (Dr.) and in B.Srinivasa Reddy stand on a completely different footing than the case on hand in W.P.(MD).No.3105 of 2014 is concerned. In B.Srinivasa Reddy, the challenge to the appointment of the petitioner before the Supreme Court as the Managing Director of the Karnataka Urban Water Supply and Drainage Board was not made by any individual employee, but made by the Employees' Association. Actually, as seen from the facts narrated in paragraphs 5 to 8 of the report, the Employees' Association originally filed a writ petition challenging the appointment of one S.Ramamoorthy as the Managing Director on the ground that by virtue of Section 7(1)(d) of the Karnataka Urban Water Supply and Drainage Board Act, 1973, an officer or the servant of the Board could not have been appointed as the Managing Director. Pending writ petition, the person whose appointment was challenged, took voluntary retirement and one Mr.B.Srinivasa Reddy was appointed as the Managing Director. Therefore, the pleadings in the writ petition were amended by the petitioner Association and the writ petition was allowed by a learned Judge of the Karnataka High Court. The Board, the Government as well as the individual filed writ appeals before a Division Bench and an interim stay of the order of the single Judge was granted. During the pendency of the writ appeals, the concerned individual retired as Managing Director. But, he was re- appointed until further orders, by a fresh notification. That notification came to be challenged by virtue of fresh writ petition, again by the Employees' Association. This second writ petition was allowed and the writ appeal arising out of the same was dismissed by the Division Bench. When the individual took the matter on appeal to the Supreme Court, several issues were raised, one relating to the maintainability of the writ petition at the instance of an unregistered Trade Union and another relating to the locus of the Employees' Union to challenge the appointment. On the first question, the Supreme Court held that the registration of the Karnataka Urban Water Supply and Drainage Board Employees Association in terms of the provisions of the Trade Unions Act, 1926, had been cancelled way back in November 1992 and that by virtue of the amendment to Section 2(qq) of the Industrial Disputes Act, the very definition of the word "Trade Union" would include only a Trade Union registered under the Trade Unions Act, 1926. Therefore, the Supreme Court first held that the writ petition was not maintainable at the instance of such an Association and also on account of the fact that they had come to Court with unclean hands and mala fide intentions. After having held so, the Court pointed out in paragraph 78 of the report that Certiorari jurisdiction can be exercised only at the instance of a person who is qualified to the post and who is a candidate for the post. In this regard, the Supreme Court relied on the observation made in Umakant Saran (Dr.) to the effect that the appointment cannot be challenged by one who himself is not qualified to be appointed and also on the observation made in Kumari Chitra Gosh v. Union of India, where the Constitution Bench of the Supreme Court dealt with the right of general pool candidates to question the nominations made to reserved seats.
13.But, in the case on hand, the petitioner in W.P.(MD). No.3105 of 2014 is admittedly serving as a Joint Commissioner. It is no doubt true that the next avenue of promotion for the writ petitioner is to the post of Additional Commissioner. It is also true that the post of Additional Commissioner constitutes the feeder category to the post of Commissioner. Therefore, on the face of it, the objection raised by the learned Advocate General may appear to be fairly well founded. But, on a deeper scrutiny, it will be clear that the said contention is not legally sustainable for various reasons, which we shall record now.
14.The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, underwent a series of amendments, as any other State enactment had. Section 8 of the Act, as it originally stood, provided only for four classes of authorities under the Act, namely, (i) Commissioner, (ii) Joint Commissioner,
(iii) Deputy Commissioner, and (iv) Assistant Commissioner. Even these four classes of authorities were included in Section 8, only by way of amendment under Tamil Nadu Act 39 of 1996. Therefore, from the year 1996, up to the year 2002, there were only four classes of authorities. There was no authority as Additional Commissioner. It was only by Tamil Nadu Act 50 of 2002, that the post of Additional Commissioner was inserted under Clause (aa) of Section 8, as one more authority. Consequent upon the introduction of the post of Additional Commissioner in between the posts of Commissioner and Joint Commissioner under Section 8, the provision relating to appointment to the post of Commissioner under Section 9(2) of the Act also underwent a change under the very same Tamil Nadu Act 50 of 2002. After the amendment under Tamil Nadu Act 50 of 2002, Section 9(2)(a) of the Act provides three methods of appointment to the post of Commissioner. They are: (i) by transfer from among the members of the Tamil Nadu State Higher Judicial Service or the Tamil Nadu State Judicial Service or of any other service, (ii) by promotion from Additional Commissioner, and (iii) by direct recruitment.
15.Therefore, the position that the post of Joint Commissioner is a feeder category post only to the post of Additional Commissioner and that it is no more a feeder category to the post of Commissioner, emerged only after the amendment under Tamil Nadu Act 50 of 2002.
16.But, despite the fact that the post of Additional Commissioner was introduced as an intermediate category, for the purpose of promotion, both the posts of Additional Commissioner and Joint Commissioner are conferred only with identical powers by the statute. Section 13(1) of the Act empowers the Commissioner to specify the area within which each Additional Commissioner, Joint Commissioner or Deputy Commissioner shall exercise the powers conferred and discharge the duties imposed on a Joint Commissioner or a Deputy Commissioner as such. In other words, the delegation of powers by the Commissioner under Section 13(1) to be made with the previous approval of the Government, is not actually hierarchical. Section 13-A, as it originally stood (inserted by Tamil Nadu Act 18 of 1993) conferred powers only upon the Joint Commissioner to exercise such powers and discharge such duties of the Commissioner as may, from time to time, be determined by the Government. After the introduction of the post of Additional Commissioner by virtue of Tamil Nadu Act 50 of 2002, both the posts of Additional Commissioner as well as Joint Commissioner, have been conferred with the authority to exercise such powers and discharge such duties of the Commissioner, as may be determined from time to time. In other words, the posts of Additional Commissioner as well as Joint Commissioner, both carry the same weight under Section 13-A, as both of them can exercise the same powers and discharge the same duties of the Commissioner, if so determined by the Government from time to time. As a matter of fact, some of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, have not at all been amended to make the post of Additional Commissioner either as superior or at least as equivalent to the post of Joint Commissioner, insofar as the exercise of certain statutory functions are concerned. For instance, Section 14 defines the powers and duties of the Assistant Commissioner. Section 21 confers revisional jurisdiction upon the Commissioner, over the acts of the Joint, Deputy or Assistant Commissioners. Section 21-A confers similar revisional jurisdiction upon the Joint or Deputy Commissioners over the acts of Assistant Commissioners. Section 22 lists out the powers of the Commissioner. But, the Additional Commissioner is not conferred with any revisional jurisdiction over his subordinates. There is no provision in the Act empowering the Additional Commissioner to call for and examine the record of any Joint Commissioner, Deputy Commissioner or Assistant Commissioner. It is only if a delegation is made under Section 13 or 13-A that an Additional Commissioner can perhaps exercise such powers.
17.Therefore, it is clear that the creation of the post of Additional Commissioner by Tamil Nadu Act 50 of 2002 as an intermediary post between the posts of Commissioner and the Joint Commissioner, is only for the purpose of promotion. Unfortunately, the Special Rules for the Madras Hindu Religious and Charitable Endowments Administration Service do not appear to have been amended to include the post of Additional Commissioner.
18.Therefore, the challenge made by a person working as Joint Commissioner cannot be thrown out, simply on the ground that he is not in the feeder category post. The post of Joint Commissioner was actually the feeder category until the advent of Tamil Nadu Act 50 of 2002. The special rules even as on date, do not appear to have undergone a change. In any case, the posts of Additional Commissioner and Joint Commissioner have been conferred with identical statutory provisions.
19.In any case, if the re-employment of the second respondent is found to be not in accordance with law, the Additional Commissioner may get a chance to be promoted in terms of Section 9(2)(a)(ii) of the Act. In such an event, the writ petitioner may get a chance to move to the post of Additional Commissioner. The principles of causa proxima cannot be applied to throw out such writ petition. As a matter of fact, a Division Bench of this Court held in State Government of Tamilnadu vs. K.Vijayakumar 2006 (3) LW 133 that in each case of extension or re-employment, it is not only the next man, but several people in the hierarchical strata, who miss the opportunity. Therefore, we hold that the writ petition filed by R.Sudarshan, Joint Commissioner in W.P(MD)No.3105 of 2014, out of which, W.A(MD)No.428 of 2014 arises, cannot be said to be not maintainable. He cannot be treated as a person who does not have the locus standi.
20.Insofar as the writs of Quo-Warranto are concerned, the entitlement of the writ petitioners to challenge the appointment of the second respondent is questioned primarily on the ground of mala fides. It appears that the petitioner in W.P(MD)No.15080 of 2013 out of which W.A(MD)No.427 of 2014 arises, was employed as a Senior Accounts Officer in the same Department and retired on reaching superannuation on 31.10.2001. After 11 years of retirement, he is stated to have sought re-employment as Senior Accounts Officer through a representation dated 03.05.2012. The said representation was returned with some queries by the second respondent. Therefore, the Government have claimed in paragraph 5 of their counter affidavit to the writ petition that Mr.B.Rajendran has filed writ petition for mala fide reasons.
21.But we are least impressed with the contention of the mala fides. As we have stated earlier, the second respondent himself was promoted as Commissioner only on 27.09.2012. Mr.B.Rajendran, the writ petitioner had made a representation on 03.05.2012, seeking re-employment, much before the promotion of the second respondent as Commissioner. The mere fact that the second respondent raised certain queries on the representation of the writ petitioner for re-employment, cannot give raise to a motive for B.Rajendran to challenge the re-employment of the second respondent.
22. As a matter of fact, the Government ought not to have raised the issue of mala fides. Whenever writ petitions are filed raising allegations of mala fides against serving officials of the Government, we normally, put those allegations to very severe test of fire. We would not easily accept such allegations of mala fides when they are made by the writ petitioners against officials of the Government. Therefore, in reciprocation of the same sentiment, the Government should not have come up with such faint, feeble and remote allegations of mala fide against the writ petitioner.
23. As rightly conceded by Mr.R.Muthukumuraswamy, learned Senior Counsel for the second respondent, the primary duty of this Court in a writ of Quo-Warranto is to see whether the appointment is in violation of law or not. Therefore, the focus should be more on testing whether the appointment is in accordance with law or not. Hence, the allegations of mala fides against the writ petitioners are rejected. We hold that all the three writ petitions were maintainable and the Joint Commissioner had the locus standi to file the writ petition.
MERITS
24. On merits, the re-employment of the second respondent is challenged by the petitioners, basically on the following grounds:-
(i) that the re-employment is contrary to the methods of recruitment prescribed by Section 9(2)(a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
(ii) that the post of Commissioner of the Hindu Religious and Charitable Endowments Department, stands on a separate, unique and different pedestal and hence, the Government is not entitled to fall back upon Rule 45 of the general rules for the Tamil Nadu State and Subordinate Services, when the issue is already covered by statutory provisions.
(iii) Even if Rule 45 can be invoked, two essential conditions should be satisfied as per Fundamental Rule 56(1)(a) namely,(A) extra-ordinary ability and (B) dearth of qualified hands, both of which are not present in this case and
(iv) that when the statute prescribes something to be done in a particular manner it shall be done only in that manner and not otherwise.
25.We have carefully considered each of those submissions, with reference to the statutory provisions and the decisions relied upon by the learned counsel on either side. We shall deal with those contentions one after another.
Contention I
26. The first contention of the writ petitioner is that Section 9 (2) of the Act prescribes the method of appointment to four categories of posts in the Department namely, Commissioner, Additional Commissioner, Joint Commissioner and Deputy Commissioner. Section 9 of the Act reads as under:
"9.Government to appoint Commissioner, etc. (1) The Government shall appoint the Commissioner and the Additional Commissioner and such number of Joint, Deputy and Assistant Commissioners as they may think fit.
(2) (a) Appointment to the post of Commissioner shall be -
(i) by transfer from among the members of the Tamil Nadu State Higher Judicial Service or of the Tamil Nadu State Judicial Service or of any other service; or
(ii) by promotion from Additional Commissioner; or
(iii) by direct recruitment.
(aa) Appointment to the post of Additional Commissioner shall be by promotion from Joint Commissioner;
(aaa) Appointment to the post of Joint Commissioner shall be by promotion from Deputy Commissioner;
(b) appointment to the post of Deputy Commissioner shall be -
(i) by transfer from among the members of the Tamil Nadu State Judicial Service or of any other service ; or
(ii) by promotion from Assistant Commissioners ; or
(iii) by direct recruitment ; or
(iv) by agreement or contract.
(c) Omitted by Section 2 of Tamil Nadu Act 6 of 1975."
27. A careful look at sub-section (2) of Section 9 would show that--
-
(1) clause (a) thereof, prescribes three methods of recruitment to the post of Commissioner, (2) clause (aa) prescribes only one method of recruitment to the post of Additional Commissioner, (3) clause (aaa) provides only one method of recruitment to the post of Joint Commissioner and (4) clause (b) provides four methods of recruitment for the post of Deputy Commissioner.
28. In order to appreciate the scheme of Section 9(2) of the Act, the methods of recruitment prescribed therein for all the four categories of posts, can be presented in a tabular form is as follows:-
Post Commissione Additional Joint Deputy
r Commissioner Commissione Commissione
r r
Method of 1.Transfer Promotion Promotion 1.Transfer
recruitmen from other only only from other
t services services
2.Promotion 2.Promotion
from from
Additional Assistant
Commissione Commissione
r r
3.Direct 3.Direct
recruitment recruitment
4.By
agreement
or Contract
4.By agreement or Contract
29. A careful look at the scheme of Section 9(2)
(a) of the Act would show that for the posts of Additional Commissioner and Joint Commissioner, the statute prescribes only one method of recruitment. On the contrary, the statute prescribes three methods of recruitment for the post of Commissioner and four methods of recruitment for the posts of Deputy Commissioner. The fourth method of recruitment prescribed in Section 9(2)(b)(iv), for the post of Deputy Commissioner, is conspicuously absent insofar as the appointment to the post of Commissioner, prescribed in Section 9(2)(a) is concerned. The fourth method of recruitment namely "by agreement or contract" prescribed for appointment to the post of Deputy Commissioner under Section 9 (2)(b)(iv), is not to be found under Section 9(2)(a) of the Act. Therefore, the first contention of the learned counsel for the petitioner is that what is specifically excluded by the statute cannot be included by the Government by taking recourse to the general rules. In other words, it is the contention of the writ petitioner that appointment by the method of agreement or contract, is not one of the methods of recruitment to the post of Commissioner and that therefore, such an appointment is contrary to the statutory provisions. According to the learned counsel for the appellants, when the statute had deliberately omitted to make a mention about the appointment by agreement or contract, insofar as the post of Commissioner is concerned, though it prescribes such a method for appointment to the post of Deputy Commissioner, the Government cannot invoke any other power found in other general rule.
30.In order to test the correctness of the above contention, it is necessary for us to look into the source of power of the Government to make appointments. There is no dispute about the fact that despite being a special authority and statutory authority created by the Tamil Nadu Act 22 of 1959, the post of Commissioner is nevertheless a civil post. It cannot be disputed that the Commissioner, Additional Commissioner, Joint Commissioner and Deputy Commissioner, referred to in Section 9(2) of the Act are in the civil services of the State. Therefore, the source of power to make appointment to civil posts and the civil services of the State should first be traced to Part XIV of the Constitution of India. Part XIV of the Constitution deals with "Services Under The Union and the States". This part XIV is divided into two Chapters. The first dealing with "Services" and the second dealing with "Public Service Commissions". Chapter I of Part XIV contains seven Articles, starting from Article 308, and going up to Article 314. Article 308 simply states that the expression "State" appearing in Part XIV, would not include the State of Jammu and Kashmir. Therefore, it is clear that the expression "State" would include all other States including the State of Tamil Nadu.
31.Article 309 empowers appropriate Legislature of States to regulate through acts, the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. But interestingly, Article 309 begins with a regulatory rider namely, "Subject to the provisions of this Constitution". Therefore, even while conferring power upon the State Legislatures, to enact laws to regulate the recruitment and conditions of service of persons to public services and posts, Article 309, makes it clear that the stream of exercise of such power should flow within the two banks of the Constitution.
32. By virtue of the proviso to Article 309, the President as well as the Governor of States, or their delegates are empowered to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts, until provision in that behalf is made by or under an Act of appropriate Legislature. In other words, the proviso is actually a transitory provision conferring rule making power upon the President and the Governors of the States, until the Parliament or the appropriate Legislature passes an Act to regulate the recruitment and conditions of service of persons appointed to services and posts in the Union or the State.
33. After having conferred the power to enact a law upon the Parliament and the State Legislature, and a power to make rules upon the President and the Governors under Article 309, the Constitution itself deals with the tenure of office of persons serving the Union or the State under Article 310. The doctrine of pleasure is what is incorporated in clause (1) of Article 310 which stipulates that every member of a civil service of the Union holds office during the pleasure of the President and every member of the civil service of the State holds office during the pleasure of the Governor of the State. Interestingly, the doctrine of pleasure found in Article 310 of the Constitution has two facets. The first facet is under clause (1) of 310 which relates to the holding of the office or the tenure. The second facet of this Article, found in clause (2) of Article 310 relates to contractual appointments. For the purpose of easy appreciation Article 310 of the Constitution is extracted as follows:-
"310. (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 3*** 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 1*** 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 2***, as the case may be, deems it necessary in order to secure the services of a person having 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".
34. A careful look at Article 310(2) would show that notwithstanding the Doctrine of Pleasure that enables the holder of a civil post to continue in office, it is possible for the President or the Governor also to provide for payment of compensation to a person appointed on contract, although, he may not be a member of the defence service or all-India Service or a civil service of the Union or the State. The only condition to be satisfied for invoking the power under Article 310(2) is that the President or the Governor should deem it necessary to secure the services of such a person on account of his special qualifications.
35. The scope of Article 309 vis-a-vis Article 310(1) was explained in Ramanatha Pillai Vs. State of Kerala, AIR 1973 SC 2641 is as follows:
"Article 309 provides that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Therefore, Acts in respect of terms and conditions of service of persons are contemplated. Such Acts of Legislature must, however, be subject to the provisions of the Constitution. This attracts Article 310(1). The proviso to Article 309 makes it competent for the President or such persons as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such persons as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts under the Union and the State. These Rules and the exercise of power conferred on the delegate must be subject to Article 310. The result is that Article 309 cannot impair or affect the pleasure of the President or the Governor therein specified. Article 309 is, therefore, to be read subject to Article 310."
36.The decision in Ramanatha Pillai was referred to with approval in several subsequent decisions including the one in Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416 and Union of India Vs. K.S.Subramanian, AIR 1989 SC 662. Therefore, it is clear that rules framed in terms of the proviso to Article 309 and even the Acts passed by the Parliament or the State Legislatures in terms of the main part of Article 309, are subject to the provisions of the Constitution which include Article 310. The Supreme Court indicated in Tulsiram Patel that the Doctrine of Pleasure is neither a relic of the feudal age nor was based upon any special prerogative of the British Crown but was based upon public policy. Hence, the source of the power to make appointments to public services, civil posts, or civil services of the State has to be traced, to the Constitution. Any Act of Parliament or the State Legislature regulating the recruitment and terms and conditions of service of persons appointed to the civil posts, has also to be traced only to Article 309. Article 309 in this regard can be treated as a fountain head from out of which the stream of the power to enact a law regulating the terms and conditions of service of public servants flows. But Article 309 makes it clear that any such law would actually be subject to the provisions of the Constitution. Consequently, it is subject to the Doctrine of Pleasure under Article 310(1).
37.Keeping the above in mind, if we get back to the Tamil Nadu Act of 22 of 1959 it can be seen that the said Act is not actually an Act passed in terms of Article 309 of the Constitution, for the purpose of regulating the recruitment and conditions of services of persons appointed to the Hindu Religious and Charitable Endowments Administration Department of the State. It is a law enacted by the State Legislature, only with a view to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu. The Act was actually a successor to several previous enactments, the earliest of which was the Madras Endowments and Escheats Regulation No.VII of 1817. It was repealed by Act XX of 1863. The 1863 Act was replaced by the Madras Hindu Religious and Endowments Act, II of 1927, by which a statutory body called the Madras Hindu Religious Endowments Board was created. The Board was later abolished by Act XIX of 1951, which vested the administration of Religious and Charitable Endowments in a hierarchy of officers of defined jurisdiction and headed by a Commissioner. The 1951 Act was repealed by the present Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 which also creates a hierarchy of authorities such as the Commissioner, Additional Commissioner, Joint Commissioner, Deputy Commissioners and Assistant Commissioners.
38. The 1959 Act was enacted, as stated earlier, not with the primary object of regulating the recruitment and conditions of service of persons appointed to the Hindu Religious and Charitable Endowments Administration Department. It was enacted primarily to consolidate and amend the law relating to religious and charitable endowments. The subject matter of 1959 Act is traceable to Entry 28 of List III of Schedule 7 to the Constitution and not to Entry 41 of List II. Entry 28 of List III (Concurrent List) deals with "Charities, Charitable Institutions, Charitable and Religious Endowments and Religious Institutions". Entry 41 of List II of the 7th Schedule relates to "State Public Services and State Public Service Commission". Tamil Nadu Act 22 of 1959 is not an Act passed in terms of Entry 41 of list II.
39. The preamble to the Tamil Nadu Act 22 of 1959 states that it is an Act to consolidate and amend the law relating to Hindu Religious and Charitable Institutions and Endowments. Therefore, it is contended by Mr.G.R.Swaminathan, learned counsel for the appellants, on the basis of the decision of the Supreme Court in Ravulu Subba Rao and others Vs.Commissioner of Income-tax, AIR 1956 SC 604, that the Act is to be taken as a complete code. But we do not think that the said contention is correct. The rule of construction that was laid down by Lord Herschell in Bank of England Vs.Vagliano that was quoted with approval by the Hon'ble Supreme Court in Ravulu Subba Rao merely pointed out that one must examine the language of the statute, look for its natural meaning, and not to see how the law previously stood. Even if these tests are applied to Act 22 of 1959, it will not qualify as an Act creating certain State services and regulating the recruitment and conditions of service of persons appointed to such services.
40. Therefore, as rightly contended by the learned Advocate General and Mr.R.Muthukumarswamy, learned Senior Counsel for the second respondent, neither 1959 Act nor Section 9(2) can be treated as a complete code in relation to the recruitment and terms and conditions of service of persons appointed to the Hindu Religious and Charitable Endowments Administration Department.
41. If, even a law enacted in terms of Article 309 of the Constitution (be it Act or Rule) regulating the recruitment and terms and conditions of service of persons appointed to public services, is made subject to the other provisions of the Constitution including Article 310 that incorporates the Doctrine of Pleasure, then it is trite that the 1959 Act cannot be insulated from the application of Articles 309 and 310 of the Constitution of India. The Doctrine of Pleasure incorporated in Article 310(1) is chiselled to some extent in Article 311(2) that relates to dismissal, removal or reduction in rank. Therefore, insofar as the power to make appointments by agreement or contract is concerned, the same Doctrine of Pleasure would extend, with only one limitation namely, that the Governor cannot compel an unwilling employee to continue in service beyond the date of his superannuation, by invoking the Doctrine of Pleasure.
42.Therefore, we hold on the first contention that Section 9(2)(a) of the Act, is not a complete code with reference to Article 309 of the Constitution regulating the recruitment as well as the terms and conditions of service of persons appointed to the posts in the Hindu Religious and Charitable Endowments Administration Department. Consequently, the absence of a clause for appointment by agreement or contract in Section 9(2)(a) in relation to the post of Commissioner, similar to the one found in section 9(2)(b)(iv), would not mean that the Governor is divested of the power to make appointment by contract, that flows out of Constitutional provisions. The origin of the source of the power is the Constitution. Even if the power is regulated by a specific enactment in terms of Article 309, the same is subject to Article 310. Hence, Section 9(2)(a)
(b) would also be subject to original source of power.
Contention II
43. The second contention of the petitioner is that the post of Commissioner in the Hindu Religious and Charitable Endowments Department is a very unique post, expected to discharge special statuary provisions. It is not like any other civil post or a post in the services of the State. The Commissioner also discharges judicial functions in respect of certain matters. Section 11, which was deleted by Act 46 of 1991 and again reintroduced by Act 39 of 1996, declares the Commissioner to be a Corporation sole, having a common seal and perpetual succession with a right to sue and be sued in his Corporate name. Though the Commissioner is a Government servant by virtue of section 12(1) of the Act and is paid salary out of the Consolidated Fund of the State in the first instance, he is liable under section 12 (2) to repay the same to the Government, out of the Tamilnadu Hindu Religious and Charitable Endowments Administration Fund. Therefore, it is contended by the writ petitioners that in the absence of a provision in Section 9(2)(a) for the recruitment of a Commissioner by contract or agreement, it is not possible for the Government to fall back upon Rule 45 of the general rules for Tamil Nadu State and Subordinate Services.
44. But the above contention of the petitioners loses sight of an important aspect. All the authorities constituted under the Act, are fundamentally Government servants, as declared by section 12 (1). Therefore, all the terms and conditions of service of all of them are governed only by the General and Special Rules framed under the Proviso to Article 309 of the Constitution. The Commissioner, despite being a "Corporation Sole", has to look only to the Tamilnadu Government Servants Conduct Rules to know how to regulate his conduct, he has to look to the Tamilnadu Civil Services (Discipline and Appeal) Rules whenever an action is initiated for an alleged misconduct, he has to look only to the Tamilnadu Pension Rules, for his retirement benefits, he has to look only into the Tamilnadu Government Servants Leave Rules for availing any leave and he has to look only into the General Rules for State and Subordinate Services and the Fundamental Rules for all other conditions of his service. There is nothing in the Tamilnadu Act 22 of 1959 to deal with any of the matters for which provisions are made in these rules. His normal age of retirement itself is fixed only under Fundamental Rule 56. In case we accept the contention of the petitioners that this post is a special post and that the General Rules cannot be invoked for the grant of re-employment, then we will be creating the danger of an incumbent, claiming that he is not liable even to retire as per FR
56. Therefore, the contention that it is a special post and that the General rules cannot be invoked, is flawed. The correct way of understanding the status of the post is that it is a nevertheless a civil post or a post in the civil services of the State, which is also conferred with special powers. In other words, it is not a special post transcending the general rules, but a civil post having special powers.
45. Interestingly, Mr.G.R.Swaminathan, learned counsel for the petitioners, concedes the fact that this post is also one of status, as held by the Supreme court in Roshan Lal Tandon vs. Union of India {AIR 1967 SC 1889}. Therefore, the origin of appointment to the post, by the very same logic, is only contractual, but the moment an appointment is made, the appointee acquires a status and his rights and obligations are determined not by the consent of parties but only by statute and statutory rules, which can be framed and even altered by the Government. This is the ratio in Roshan Lal Tandon. Therefore, the Government is competent to invoke even the power that it has de hors the rules, for what is contained in the rules, is only a recognition of such power and not a conferment of the power.
46. Therefore, to think that the post of Commissioner, was created by a Special enactment as a special post and that therefore, a general rule cannot be applied, is actually a misconception. Though the Government have quoted General Rule 45 in the order of re-employment, the re-employment is not actually under the said rule. This can be well understood if we have a look at the rule. Rule 45 of the State and Subordinate Services reads as follows:-
"45. Re-employment of pensioners-Nothing in these rules or the Special Rules shall be construed to limit or abridge the powers of the State Government and of subordinate authorities to re-employ persons who have retired on a civil pension or gratuity or who while in service were subscribers to a Contributory Provident Fund, in any service in accordance with the provisions contained in the Tamil Nadu Pension Rules, 1978. The re-employment of such a person in any service shall not be service regarded as a first appointment to that".
47. A reading the Rule extracted above shows that nothing contained in the General rules or the Special rules shall be construed to limit or abridge the powers of the State Government to re-employ persons who have retired on a civil pension or gratuity, in any service, in accordance with the provisions contained in the Tamil Nadu Pension Rules 1978. What is important to note is that General Rule 45, by itself does not confer the power upon the Government to re-employ a person who is already retired. It actually recognises a power that the Government already possess for the re-employment. That is why, the rule begins with a rider that nothing contained in the General or Special rules shall be construed to limit or abridge the power of the State Government.
48. As we have pointed out earlier, Section 9(2)(a) of the Act is not the source of power for the Governor to make appointments. On the contrary, the power exists dehors the Act and the Act does not limit the exercise of such power. The fact that such a power already exists, is what is recognised by rule
45.
49. As a matter of fact, Rule 45 deals only with reemployment of pensioners. But the power of the Government to make an appointment by agreement also flows out of Rule 11 of the General Rules for Tamil State and Subordinate Services. A person appointed in terms of Rule 11 by agreement will not even be regarded as a member of the service, in which the post to which he is appointed is included. Therefore, Section 9(2)(a) of the Act cannot be taken to have made inroads into the original source of the power of the Government to make appointment by agreement or contract.
50. In any case, even if we take General Rule 45 to be a subordinate legislation, it can still fill up what is left out by a superior legislation. It would not amount to repugnancy. Repugnancy would arise only when there is a starking conflict between the two provisions and only when both cannot stand together. Therefore, the second contention is also liable to be rejected.
Contention III
51. The third contention of the appellants/writ petitioners is that even if Rule 45 of the general rules for Tamil Nadu State and Subordinate Services, could be invoked, Fundamental Rule 56(1)(a) mandates two conditions to be satisfied namely, (i) extra-ordinary ability and (ii) dearth of qualified hands. But in the case on hand, there is no indication in the Government Order that there is dearth of hands, and/or that the second respondent is a person of extra-ordinary ability. Therefore, it is contended by the learned counsel for the appellants that the reemployment of the second respondent is contrary to law and unjustified. In support of the above contention, learned counsel for the appellants rely upon the decision of the Division Bench of this Court in State Government of Tamil Nadu and another Vs.K.Vijayakumar, 2006-3-L.W.133.
52. But at the outset, it should be pointed out that Fundamental Rule 56(1) deals with retirement on superannuation and the extension of services of persons reaching superannuation. As per the Rule, the retirement is automatic upon attaining the age indicated in the Rule. But the Rule also stipulates that for certain categories of Government servants, extension could be granted in public interest beyond the normal date of superannuation. However, there is a cap on the period upto which extension could be granted. The Rule also contemplates retention in service of Government servants who face disciplinary proceedings and upon whom, the Government may have to impose major penalties.
53. There are lot of differences between "retention in service", "extension of service" and "re-employment". While retention is normally for Government servants who face disciplinary enquiries and who cannot be permitted to retire, extension of service is normally, for the continuance of a person in the same cadre post that he was holding at the time of superannuation. Rule 56(1)(a) of the Fundamental Rules itself stipulates that a Government servant cannot be retained in service after the normal age of superannuation except with the sanction of the Government on public grounds. He shall not be retained after the age of 60 years except in very special circumstances. What happens in extension of service, is that a person does not retire at all. But in a case of re-employment, the Government servant retires and thereafter he is engaged, on fresh terms.
54. In Subbiah Pillai vs. State of Madras {87 LW 176}, a Division Bench of this court indicated the difference between these expressions on the following lines:-
"There can be no extension of service in the case of superannuation having already taken effect. Re-employment, of course, is a different thing, which would not ensure continuity. The expressions "extension" and "retention" point the fact that what was intended by the rule is continuity of service without a break and that is why the rule prescribes another ceiling for superannuation, namely, 60 years, subject, of course, to the condition that each extension shall not be for more than a year."
55. Therefore, the decision of the Division Bench of this court in State Government of Tamilnadu Vs. K.Vijayakumar 2006 (3) LW 133, cannot be applied to the case on hand. The decision in Vijayakumar, arose out of the extension of services granted to a Government Analyst working in the Drug Testing Laboratory, Chennai. Therefore, his case was governed by Fundamental Rule 56(1)(a). Since Fundamental Rule 56(1)(a) just provides an indication without any guidelines that the services of a Government servant can be extended on public grounds in very special circumstances, the Government issued various orders prescribing the guidelines. One set of guidelines were issued under G.O.Ms.No.2035, Public (Services-A) Department, dated 28.10.1969 which stipulated that re-employment will be considered only where there is dearth of qualified persons and where a person is of outstanding ability.
56. A careful perusal of G.O.Ms.No.2035, dated 28.10.1969 would show that there was a miserable mix-up of the expressions 'extension of service' and 're-employment'. The Government Order was intended to be applied for extension of service beyond the age of superannuation, covered by FR 56(1)(a). But Paragraph 3 of the Government Order used the wrong terminology namely, re- employment. There was no application of mind about the distinction between extension of service and re-employment.
57. By a subsequent order in Government Letter No.82, Personnel and Administrative Reforms Department, dated 30.03.1994, the Government issued some more guidelines for the Departments to follow, whenever proposals were sent for expression of service/ re-employment. This Government Letter also used both the expressions "expression of service" and "reemployment" as interchangeable.
58. Since the decision in K.Vijayakumar, arose out of an extension of service granted to a Government Analyst, for a period of one year, in terms of Fundamental Rule 56(1)(a), the Division Bench applied the prescriptions contained in G.O.Ms.No.2035 and Government Letter No.82 and held that the conditions stipulated therein namely outstanding ability and dearth of qualified hands are to be satisfied.
59. But the case on hand, arises out of the exercise of the pre- existing power of the Government recognised by Rule 45 of the General Rules for Tamil Nadu State and Subordinate Services. We have already extracted Rule 45. Hence, the contention that Rule 45 cannot be invoked unless the twin requirements are satisfied, cannot be accepted. The case on hand does not arise out of the exercise of the power under Fundamental Rule 56(1)(a). It arises out of the recognition of the power of the State Government to grant reemployment to a retired pensioner. This recognition is what is actually found in general rule
45.
60. Today, it is not the contention of any of the appellants/writ petitioners that the second respondent is ineligible to be reemployed. It is not their contention that the second respondent is not qualified for the post. It is not also their case that the second respondent has suffered some disqualification. Therefore, there is no objection to the eligibility of the second respondent to hold the post of Commissioner. Once the issue of eligibility does not arise, this Court cannot go into the question of suitability, as has already been laid down by the Hon'ble Supreme Court in a catena of decisions. Interestingly, the appellants/petitioners do not question even the suitability of the second respondent to hold the post. In other words, neither the suitability nor the eligibility of the second respondent to hold the post is in doubt today.
61. Once there is no dispute about the suitability or eligibility of the second respondent to hold the post, it is not open to the appellants to call upon the Government to justify as to why they chose to exercise the power of reemployment. The reasons for exercising the power of reemployment, are not justiciable, as the source of power is traceable to the Constitution. Therefore, the third contention of the petitioner also does not merit acceptance. Contention IV
62. The fourth contention is that when the statute prescribes something to be done in a particular manner it shall be done only in that manner and not otherwise. The contention of the appellants is that when Section 9(2)(a) prescribes appointment to the post of Commissioner to be made only by three methods of recruitment, it shall be done only by one of those three methods and not by any other method of recruitment.
63.But our answer to this contention lies in the discussion contained in the first contention. Section 9(2)(a) is not part of an Act passed in terms of Article 309 of the Constitution to regulate the recruitment and conditions of service of persons employed in this Department. Therefore, it is not a complete code in itself, insofar as appointment to posts in the Hindu Religious and Charitable Endowments Administration Services is concerned. Therefore, the principle that when an Act prescribes something to be done in a particular manner it shall be done only in that manner and not otherwise, cannot be applied to cases of this nature.
64. The decision of the Hon'ble Supreme Court in State of Haryana Vs. The Haryana Co-opearative Transport Ltd., and others, AIR 1977 SC 237, may not also be of any assistance to the appellants. In that case, the validity of appointment to a judicial office was challenged in a collateral proceedings while attacking the award passed by such Officer. The Hon'ble Supreme Court held that it is open to the High Courts in exercise of their writ jurisdiction to consider the validity of appointment of any person as a Chairman or any member of the Board or Court, and to strike out usurpation of office by an unqualified person. But in the case on hand, it is not the contention of the appellants that the second respondent is not qualified for the post of Commissioner.
65. In K.V.Subbiah Pillai Vs. State of Madras, 1974-87-LW 176, which we have referred to above, an Executive Officer of the temple was ordered to be continued in service, after his retirement. Tamil Nadu Act 22 of 1959 declaring Executive Officers of Religious Institutions, to be Government servants under Section 12(1) of the Act, came into force with effect from 01.01.1960. Therefore, the employee claimed pensionary benefits on the ground that during the continuation in office after retirement the statutory provision came into effect. It was in that context, that the Division Bench of this Court clarified that there can be no extension of service if superannuation had already taken effect. But the decision does not cover cases of re-employment.
66.In Central Electricity Supply Utility of Odisha Vs.Dhobei Sahoo and others, (2014) 1 SCC 161, the Hon'ble Supreme Court referred to the development of law on the power of the Court to issue a prerogative writ of quo warranto, right from the decision in University of Mysore Vs. C.D.Govinda Rao, AIR 1965 SC 491 up to the decision in Centre for PIL Vs.Union of India, (2011) 4 SCC 1 and held in paragraph 21 that a writ of quo warranto can be issued only when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. But the Court made it clear that the concept of locus standi which is strictly applicable to service jurisprudence should not be allowed to have any entry, in writs of quo warranto. It was pointed out by the Hon'ble Supreme Court that the basic purpose of a writ of quo warranto is to ensure that a public office is not held by usurper without any legal authority.
67.Therefore, applying the principles laid down therein, it could be seen that the reemployment of the second respondent is not assailed on the ground that he is ineligible to hold the post. The only ground of attack is that the appointment is in violation of statutory provisions. But we have already found that the appointment is not in violation of the statutory prescription. Therefore, no case is made out by the appellants to upset the order of the learned Judge dismissing the writ petitions. Hence, the writ appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
sms To The Principal Secretary to Government Government of Tamil Nadu Tourism, Culture and Religious Endowments Department, Secretariat, Chennai.