T.S.SIVAGNANAM, J., This writ petition has been filed to declare Clause (ii) of Rule 5(a) of the Tamilnadu Backward Classes Welfare Subordinate Service Rules, 2014, as invalid, discriminatory and violative of Article 16 of the Constitution of India and for a consequential direction to the respondents 1 and 2 to promote the petitioner as a Jeep Driver on par with his juniors with all service benefits.
2. The petitioner was appointed as a Cook Assistant, on consolidated pay, pursuant to the proceedings issued by the third respondent, dated 12.04.1991. His services were regularized as Cook on 01.07.1998 and he was given Selection Grade with effect from 2008 on completion of ten years of satisfactory service. At present, he is working as a Cook in the Government Denotified Welfare Students Hostel at Kothamangalam in Pudukottai District.
3. The petitioner's case is that when the Government framed Rules for the post of Jeep Driver in the year 2014, the said post was to be filled up from the revenue units of the District concerned. Therefore, the persons, who are eligible to be appointed in the post of Jeep Driver and working in the post of Watchman in the Revenue Department, were posted as Jeep Drivers till a separate Rule was framed by the first respondent for promotion to the post of Jeep Driver from eligible candidates, who were working as Cook and Watchman in the first respondent Department. Since the persons working as Cook and Watchman did not have any further avenues, representations were made by them and after about nearly ten years, the Government framed adhoc Rules termed as ?Tamilnadu Backward Class Welfare Sub-ordinate Service Rules, 2014 and the said Rules came into force with effect from 01.08.2014.
4. The petitioner's further case is that though the said Rules framed in 2014, they were following the Tamilnadu General Sub-ordinate Service Rules and Tamilnadu Adi Dravidar Welfare Sub-ordinate Rules, 2009. A clause was inserted in Rule 5(a) of the said Rules, whereby the persons, who have completed 40 years of age on the first of July of the relevant year in which the selection for appointment is made, were not eligible to be considered. The petitioner would state that by insertion of such a clause in Rule 5(a) of the said Rules, his avenues for promotion had become fully blocked. The petitioner has, therefore, challenged the impugned clause and sought for a consequential relief.
5. Mr.D.Sasi Kumar, learned counsel appearing for the writ petitioner submitted that the impugned clause in Rule 5(a) of the said Rules is liable to be struck down as invalid, arbitrary, discriminatory and violative of
Article 16 of the Constitution of India. By virtue of the said clause, the promotional avenues of basic servants, such as, Cook and Watchman, who have crossed forty years of age, have been fully wiped off and the insertion of such a clause in Rule 5(a) of the said Rules was a rude-shock to the persons, like, the petitioner, who have been agitating the matter for more than a decade.
6. It is further submitted that the promotional avenues for the post of Watchman and Cook was being agitated ever since 2003 and the impugned Rule was framed only in the year 2014 and if the impugned Rule had been framed earlier, several persons would have been promoted as Jeep Drivers and would have been completed ten years of service.
7. Further, it is submitted that the impugned Rule is discriminatory, since the other Rules framed for the Adi Dravidar and Tribal Welfare Department, in G.O.(Ms).No.107, dated 22.09.2009 and the Rules framed for the Revenue Department, in G.O.(Ms).No.195, dated 14.05.2002, does not contain any clause fixing age limit for promotion to the post of Jeep Driver. Thus, the challenge to the clause in the impugned rule is on the ground that it is discriminatory and violative of Articles 14 and 16 of the Constitution of India.
8. Mr.S.Chandrasekar, learned Government Advocate appearing for the respondents, by referring to the counter affidavit filed by the third respondent, submitted that though it may be true that the post of Jeep Driver was filled up from the revenue units of the District concerned, the said post is not filled up directly from the post of Cook in the Revenue Department and it is a policy decision taken during 2014 to promote eligible Cooks / Watchmen from Backward Classes / Most Backward Classes as Drivers and the said policy decision is not open to challenge. Further, it is submitted that there is no post of Cook in the Revenue Department and the averment to the said effect made by the petitioner is not tenable.
9. Further, it is submitted that the rule has been framed taking into consideration all the factors and it is not as if it has been passed to curtail the promotional avenues of the petitioner. Therefore, it is submitted that the rule is neither arbitrary nor discriminatory nor violative of
Article 16 of the Constitution of India and the Government as a custodian of its citizens has every right to frame Rules that are meant to safeguard the welfare and safety of its citizens.
10. It is further submitted that for the post of Driver, physical fitness is mandatory, that is why age limit has been fixed based on the recommendations made in that regard. Therefore, it is submitted that the said clause restricting the age to 40 years is justifiable.
11. We have heard the learned counsel for the parties and carefully perused the materials placed on record.
12. The petitioner, who is working as a Cook in a Hostel falling under the control of the respondent Department is before this Court expressing his grievance that his promotional opportunities have been unduly curtailed on account of age restriction introduced in the adhoc Rules framed by the Government for the respondent Backward Classes Department. The undisputed fact being that the second respondent formed part of Adi Dravidar Welfare Department and on account of a decision taken by the Government probably for administrative convenience, the Backward Classes, Most Backward Classes and Minorities Welfare Department were separated from Adi Dravidar Welfare Department and formed as a separate Department.
13. The petitioner's case is that by introducing age restriction in the impugned rule, under Rule 5(a) of the said Rules, it has grossly affected the persons, like the petitioner, who have crossed 40 years of age and they will be unable to seek any promotion. The impugned rule is challenged as being violative of
Article 16 of the Constitution of India.
14. Under normal circumstances, the Court will not interfere with a policy decision by the Government unless it is shown that the policy decision offends a constitutional mandate or it is arbitrary or capricious. To consider as to whether the impugned Rule would fall within any one of these parameters, the Court proceeds to consider the materials placed before it.
15. The Tamilnadu General Sub-ordinate Service Rules has classified the Jeep Drivers engaged in general administrative work as one of the category of posts in Class-xii and in terms of the said Rules, the method of recruitment for Jeep Drivers is by transfer from category of Jeep Drivers in the Settlement or Survey & Land Records Department or by direct recruitment or for special reasons by recruitments by transfer from any other category or services. Thus, the said rule provides for recruitment by transfer from any other category or services.
16. There were certain amendments to the said Rules, which might not be of much relevance to the case on hand as the source of recruitment by way of transfer continues to exist in sofar as Revenue Administrative Department is concerned. Sofar as the Adi Dravidar and Tribal Welfare Department is concerned, which is the parent Department of the petitioner, the Government framed Rules in 2009 vide G.O.Ms.No.107, dated 22.09.2009. These were the adhoc Rules relating to the post of Jeep Driver of Adi Dravidar and Tribal Welfare Department. The appointment to the said post of Jeep Driver was to be made following the ratio of 1:1:1:1 and the adhoc Rules also prescribe the qualification to be possessed by the candidate. For better appreciation, Rules 3 and 6 of the adhoc Rules is quoted herein below: ?3. Appointment : Appointment to the posts shall be made as follows in the ratio of 1:1:1:1:-
(1) by recruitment by transfer from the holders of the posts to direct Assistants in the offices of the District Adi Dravidar Welfare Officers, Offices of the Special Tahshildars (Adi Dravidar Welfare) and hostels and schools of the Tamilnadu Board servants.
(2) by recruitment by transfer from the holders of the post of the servant- cum-watchmen, servants and cooks in the offices of the District Adi Dravidar Welfare Offices of the Special Tahsildar (Adi Dravidar Welfare) and hostels and schools and the Government Tribal Residential Schools maintained by Addi Dravidar and Tribal Welfare Department in the Tamilnadu Adi Dravidar Welfare Subordinate Service, or (3) by direct recruitments, or (4) by recruitment by transfer from any other service.
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6. Qualifications : (a) Age : No person shall be eligible for appointment to the sent by direct recruitment if he has completed or wil complete thirty years of age on the first day of July of the year in which the selection for appointment is made. In the case of candidates belonging to the Schedule Castes and the Schedule Tribes, the upper age limit shall be thirty five years.?
17. In terms of the above rules, one of the source of recruitment is by transfer from the holders of the posts of Servant-cum-Watchman, Servants and Cooks in the offices of the District Adi Dravidar Welfare Officers, Offices of the Special Tahsildar (Adi Dravidar Welfare) and Hostels and Schools and the Government Tribal Residential Schools maintained by Adi Dravidar and Tribal Welfare Department.
18. The qualification required is that no person shall be eligible for appointment by direct recruitment, if he has completed or will complete 30 years of age on 1st July of the year, in which the selection for appointment is made and incase of candidates belonging to Schedule Castes and Schedule Tribes, the upper age limit was fixed at 35 years. Thus, the age restriction prescribed in Rule 6 of the adhoc Rules (referred above) pertains to only such of those candidates, who were selected by direct recruitment, which is one of the mode of recruitment as contemplated under Rule 3.
19. In respect of the Revenue Department, the Government passed an order in 2002 vide G.O.Ms.No.195, Dated 14.05.2002. By virtue of the said Government Order, the Government accepted the proposal of the Special Commissioner and Commissioner of Revenue Administration to consider qualified Watchman on a time scale of pay equivalent to Office Assistant, who is qualified for the post of Driver in a situation, where qualified Office Assistants are not available. Accordingly, while issuing the following directions, the sub- rules were directed to be amended:
?4......They accordingly direct that a qualified watchman on a time scale of pay equivalent to Office Assistants in Revenue Department, who is qualified for the post of Driver be considered for promotion as Driver, subject to other usual conditions, when the qualified Office Assistants are not available for promotion as Drivers.?
20. Since the writ petitioner at that relevant point of time was working in the Adi Dravidar Welfare Department, he submitted a representation, on 02.12.2002, to consider him for the post of Jeep Driver as he has the requisite qualification for the said post. When his representation was forwarded, the second respondent, by communication, dated 20.01.2003, directed the third respondent to consider the case of the petitioner for being appointed as a Jeep Driver. However, nothing transpired thereafter and once again, on 18.11.2004, the petitioner sent another representation. Even for the said representation also, there was no reply. Therefore, another representation was given on, 02.11.2007. Subsequently, a reply was received from the office of the second respondent, dated 30.09.2008, stating that as and when appropriate rules are framed, the petitioner's case would be considered. It is, thereafter, the third respondent recommended the case of the petitioner for being considered to the post of Jeep Driver to the second respondent vide proceedings, dated 16.10.2008. However, nothing positively turned out from these representations / recommendations. During August, 2014, the Government decided to accept the recommendations made by the second respondent, which was based on the representations made by the persons, like the petitioner and adhoc Rules relating to the post of Jeep Driver for the second respondent Department were framed vide G.O.Ms.No.46, Backward Classes, Most Backward Classes & Minorities Welfare Department, dated 01.08.2014. The petitioner is aggrieved by only Clause (ii) of Rule 5(a) of the said Rules, which reads as follows:
?5.Qualifications ? (a) Age - (I) No person shall be eligible for appointment to the post by direct recruitment if he has completed or will complete thirty years of age on the first day of July of the year in which the selection for appointment is made.
(ii) No person shall be eligible for appointment to the post by promotion or recruitment by transfer from any other service if he has completed or will complete forty years of age on the first day of July of the year in which the selection for appointment is made.?
21. While framing adhoc rules vide G.O.Ms.No.46, the Government stated that the post of Drivers to the Jeeps with District Backward Classes and Minorities Welfare Officers / Joint Director (Kallar Reclamation), Madurai are being filled up from the Revenue units of the District concerned as the said post was classified as Jeep Drivers engaged in general Revenue administration. Further, it is stated that as the Backward Classes Welfare Department got separated from Adi-dravidar Welfare Department and not from the Revenue administration, the classification of the post of Driver to the Jeeps with District Backward Classes and Minorities Welfare Officers as Jeep Drivers engaged in general Revenue administration requires to be examined. Further, it was noted that in G.O.(Ms) No.107, dated 22.09.2009, the Government has made a provision to appoint from the holders of the post of Cook and Watchman working in the hostels functioning under the control of the Adi Dravidar Welfare Department to the post of Driver with District Adi Dravidar Welfare Officers by the method of recruitment by transfer. Further, provision for promotion from the holders of the post of Watchman to the post of Driver in the Revenue Department has also been made in the Government Order in G.O.(Ms) No.195, Revenue Department, dated 14.05.2012.
22. In the light of the above referred Government Orders, the Government considered the representations made by the petitioner and other similarly placed persons and framed Rules. It is not known as to why the Government, while framing the Rules, has introduced the Clause (ii) in Rule 5(a) of the said Rules, when such a rule does not find place in the adhoc Rules framed for Adi Dravidar and Tribal Welfare Department, in G.O.(Ms) No.107, dated 22.09.2009. However, for such a reason alone, the impugned rule cannot be struck down as prescription of age limit for a post, which is a policy decision of the Government. Nevertheless, in the instant case, what is important to note is that the petitioner though presently working in the respondent Department, the respondent Department formed part of Adi Dravidar and Tribal Welfare Department and got separated and formed into a separate Department for administrative convenience. Therefore, similarly placed persons are being treated differently owing to the fact that their Department got bifurcated, which is for administrative convenience. By doing so, the Government will be acting in a discriminatory manner, which will offend
Article 14 of the Constitution of India.
23. The comparison drawn with the Rules for the Revenue Department may not merit consideration for more than one reason. Firstly, there is no post of Cook in the Revenue Department and secondly, the Government is free to frame different set of adhoc Rules for different Departments considering the exigencies that may arise in such Departments. However, in the instant case, the petitioner is relying upon the adhoc Rules, which were framed by the Government for his parent Department.
24. As mentioned above, the petitioner out of his own volition has not come to the respondent Department, but on account of administrative convenience, the Department was bifurcated and this is admitted in the Government Order in G.O.(Ms) No.46, dated 01.08.2014. Thus, when the respondent Department stood bifurcated from the parent Department, the persons, who are similarly placed, have to be treated at par and any distinction or dichotomy caused between them would offend
Article 14 of the Constitution of India. Thus, considering the peculiar facts and circumstances of the case, this Court is inclined to exercise its jurisdiction by reading down the rule instead of striking it down. The impugned rule not only fixes age limit for transfer from any other service for appointment to the post by promotion or recruitment by transfer from any other service. ?Any other service? would mean other services also and it includes the services in the respondent Department. If in case, where persons are appointed by recruitment or transfer from other service, the Government was fully justified in fixing the age limit. However, in the instant case, the petitioner, who was working in Adi Dravidar and Tribal Welfare Department, is now put to disadvantage for being considered for recruitment to the post of Jeep Driver only due to the fact a new Department has been created and his services are in the newly created Department, which admittedly is a Department bifurcated from the Adi Dravidar and Tribal Welfare Department. Therefore, the impugned rule requires to be read down to protect the interest of the writ petitioner.
25. In the result, while rejecting the prayer to declare the impugned rule as violative of
Article 16 of the Constitution of India, the writ petition is disposed of by reading down the relevant rule and holding that the respondent Department having been bifurcated from the Adi Dravidar and Tribal Welfare Department, the petitioner is entitled to be considered to the post of Jeep Driver, without imposing any age restriction. However, this does not mean that the petitioner is entitled to be automatically posted as a Jeep Driver, but however, subject to fulfillment of all the requisite qualifications and the eligibility prescribed for the said post.
26. The respondents are directed to consider the case of the petitioner in terms of the above directions, within a period of four weeks from the date of receipt of a copy of this order and if the petitioner fulfils the requisite qualifications and the other conditions prescribed for being eligible to be considered for selection to the post of Jeep Driver, the respondents shall consider and issue appropriate orders, within a period of eight weeks thereafter. No costs. Consequently, connected miscellaneous petition is closed.
To:
1.The Principal Secretary to the Government, Backward Classes, Most Backward Classes and Minorities Welfare Department, Secretariat, Chennai-5.
2.The Commissioner, Most Backward Classes and Minorities Communities (FAI), Chepauk, Chennai-5.