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2020 Supreme(Mad) 1197
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. DHANDAPANI, J.
N.V. Sajikumar – Appellant
Versus
State of Tamil Nadu, Rep. by the Secretary to Govt. Municipal Administration & Water Supply Department, Chennai & Others – Respondents
W.P. Nos. 42102 to 42104, 42106, 42113, 42128, 42264, 42314, 42327, 42443 to 42446, 42459, 42471, 42472, 42590 to 42594, 43050 of 2016 & W.P. Nos. 7666 to 7672 of 2017 & W.M.P. Nos. 36015, 36016, 36018, 36019, 36021, 36022, 36025, 36036, 36046, 36158, 36221, 36231, 36332, 36334, 36336, 36330, 36349, 36363, 36362, 36519, 36523, 36517, 36521, 36515 & 36896 of 2016, W.M.P. Nos. 1905 to 1920, 8384, 8394, 8386, 8390, 8388, 8392, 8396 of 2017 & W.M.P. No. 8534 of 2020
Decided On : 24-11-2020
For the Petitioners:V. Selvaraj, V.S. Manimekalai, L.S.M. Hasan Faizal, P.I. Thirumoorthy, K. Raja, S. Ganesh, K.S. Kumar, V. Vijayashankar, Advocates
For the Respondents: V. Jayaprakash Narayanan, GP, Akhil Akbar Ali, GA.
The Rules framed in exercise of the powers under Article 309 of the Constitution have statutory force, which cannot be curtailed by the issuance of a Government Order under Article 162 of the Constitution.
Headnote:
G.O. Ms. No.149, issued in exercise of powers under Article 162 of the Constitution cannot be contrary to Rule 19 (1) of the TNSSS Rules, framed in exercise of powers under Article 309 of the Constitution and any ambiguity thereof should result in the survival of Rule 19 (1) of TNSSS Rules, which has statutory force and the Government Order cannot supercede the Rules.
Fact of the Case:
The petitioners, who were working as Overseers under the respective Panchayats, were reverted from the post of Overseer, on the ground of possession of qualification, not equivalent to the qualification recognised by the State vide G.O. Ms. No.149, Higher Education (J2) Department, dated 22.07.2016. While one set of writ petitions merely assail the reversion order and for a consequential direction forbearing the respondents from reverting the petitioners from the post of Overseer, the other batch of writ petitions assail the very foundation of the Government Order in G.O. Ms. No.149, which is passed under Article 162 of the Constitution, contending that the said Government Order cannot abrogate the Special Rules framed in exercise of the powers under Article 309 of the Constitution.
Finding of the Court:
The impugned G.O. Ms. No.149 based on which the reversion orders have been passed cannot be said to supercede Rule 19 (1) and the said Government Order could only be said to be an instruction from the Government as to the way in which the competency and equivalency of the diplomas/degrees should be interpreted for the purpose of promotion. Therefore, this Court is of the considered view that the G.O. Ms. No.149 is in no way abrogates Rule 19 (1) and, therefore, the contention of the learned counsel for the petitioners that G.O. Ms. No.149 goes in utter violation and opposite to Rule 19 (1) is liable to be rejected for the reasons aforesaid.
Issues: 1. Whether G.O. Ms. No.149, issued in exercise of powers under Article 162 of the Constitution, can abrogate Rule 19 (1) of the TNSSS Rules, framed in exercise of powers under Article 309 of the Constitution? 2. Whether the diplomas/degrees obtained through distance education mode could be said to be equivalent to the diploma/degree obtained through regular stream?
Ratio Decidendi: 1. The Rules, which were framed in the year 1955, wherein diplomas/degrees were granted by Universities approved by the UGC could only mean the degrees/diplomas were to be relatable to conventional subjects and not relatable to technical subjects, as technical subjects fall within the forte of the AICTE. 2. Once it is held that the diploma/degree as prescribed in Rule 19 (1) does not take within its fold the diploma/degree obtained through distance education, G.O. Ms. No.149 issued in exercise of powers under Article 162 of the Constitution could only mean to clarify the special qualifications provided u/r 19 (1) and the said Government Order, in no way, amends or alters the rule. 3. AICTE is the authority, which is vested with the power to decide on courses related to technical education and deemed to be Universities, though recognised by the UGC, cannot, without the approval of AICTE, conduct courses in technical education. 4. Mere approval of UGC alone is not sufficient to conduct any courses by the Universities, more specifically technical education in any mode, be it regular stream or distance education, without the approval of AICTE.
Final Decision: All the writ petitions are dismissed.
JUDGMENT :
(W.P. No.7666 of 2017 filed under Article 226 of the Constitution of India praying this Court to issue a writ of certiorari calling for the records relating to the impugned proceedings of the 3rd respondent in G.O. Ms. No.149, Higher Education (J2) Department, dated 22.07.2016 and quash the same.)
Common Order
1. The above batch of petitions are filed against the reversion of the petitioners from the post of Overseer, who were working under the respective Panchayats, on the ground of possession of qualification, not equivalent to the qualification recognised by the State vide G.O. Ms. No.149, Higher Education (J2) Department, dated 22.7.2016.
2. While one set of writ petitions merely assail the reversion order and for a consequential direction forbearing the respondents from reverting the petitioners from the post of Overseer, the other batch of writ petitions assail the very foundation of the Government Order in G.O. Ms. No.149, which is passed under Article 162 of the Constitution, contending that the said Government Order cannot abrogate the Special Rules framed in exercise of the powers under Article 309 of the Constitution.
3. The gist of the case of the petitioners, for better appreciation of the issue, is given in a nutshell as under :-
The petitioners in the respective petition were either appointed as Technical Assistant or Electrician Grade-II in the services of the Panchayat on daily wage basis and later, their services were regularised. At the crucial point of time, the petitioners were either working as Electrician Grade-II or Work Inspector. The next avenue of promotion to the petitioners is as Overseer for which the necessary qualifications codified is Diploma in Civil, Mechanical or Electrical Engineering with the requisite number of years experience in the feeder category post. According to the petitioners, they are in possession of the requisite Diploma obtained by them from various Universities/Deemed Universities recognised by the University Grants Commission through open and distance education.
4. In the interregnum, pursuant to the reorganisation of the Panchayats, there being no separate rules governing the terms and conditions of service of the persons employed in the Town Panchayats, but were governed by the Tamil Nadu District Municipalities Act and the Tamil Nadu Municipal Engineering Service Rules also did not deal with persons employed in the Town Panchayat, thereby hampering the promotion opportunities of the petitioner, the Hon'ble Division Bench of this Court, in W.A. (MD) No.1136/2013, vide order dated 13.3.14, directed the Government to frame new set of Rules governing the terms and conditions of all persons employed in Town Panchayats. The seniority of the persons was also directed to be drawn to fill up the posts.
5. It is the further averment of the petitioner that inspite of the said direction, though no rules have been framed till date, however, in anticipation of the Rules thereof, G.O. Ms. No.75, Municipal & Water Supply Department dated 5.2.16 was issued in and by which the petitioners were temporarily promoted as Overseers/Draughtsman from the post of Work Inspectors and Grade II Skilled Assistants (Formerly Electrician Grade II) in a particular ratio.
6. Pursuant to the said temporary promotion, the Government Order in G.O. Ms. No.75, Municipal & Water Supply Department dated 5.2.16 was challenged before this Court in W.P. No.5203 of 2016, wherein an order of status quo dated 10.2.16 was granted. Pursuant to the disposal of W.P. No.5203 of 2016, vide order dated 3.3.16, the petitioners were promoted as overseer/draughtsman. The said promotion, which was granted to 171 persons, was challenged in W.P. No.10324/16 on the ground that the incumbents of the said posts have not passed the test conducted by the State Government. Consequent upon the same, the petitioners were reverted from the post of Overseer/Draughtsman to the substantive posts held by them vide the respective impugned o
