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Judgment
M.M. Sundresh, J.—The petitioner herein has filed the present writ petition challenging the Government Order passed by the first
respondent in G.O.Ms. No. 191, Rural Development and Panchayat Raj Department dated 29.12.2006 with a consequential direction, directing
the respondents 1 to 3 to post only the engineers of the third respondent as AEE and AE in charge of Water Supply and Drainage Works of the
local authorities in accordance with G.O.Ms. No. 1837, Rural Development and Local Administration Department dated 29.11.1982.
The brief facts of the case in a nutshell are as follows:
The Tamil Nadu Water Supply and Drainage Board which is a statutory authority has been created under the TWAD Board Act, 1970. The
petitioner is an Association of TWAD Board Engineers who are working with the third respondent Board. The members of the petitioner are
working with the third respondent as Assistant Engineers, Assistant Executive Engineers, Executive Engineers, Superintending Engineers. The third
respondent was looking after the implementation of the New Water Supply Works and maintenance of both hand pumps and power pumps in the
rural local bodies.
Thereafter by the Government Order passed in G.O.Ms. No. 1326, RD & LA Department dated 23.07.1981, the maintenance of hand pumps
was transferred from the third respondent to the Panchayat Unions. Further by the subsequent Government Order passed in G.O.Ms. No. 1837,
RD & LA Department dated 29.11.1982, the maintenance of power pumps (over head tanks) was also transferred from the third respondent to
the respective Panchayat Unions. The above said orders have been passed prior to the introduction of the 73rd Constitutional Amendment, 1992
and the subsequent enactment of the Tamil Nadu Panchayats Act, 1994. By virtue of the said Government Order passed on 29.11.1982 a post of
Assistant Executive Engineer was created for each District and another post of Assistant Engineer was created for each Sub-Division to look after
the maintenance of the water supply systems. At that point of time, the respondents 1 and 2 did not have its own engineering service and as a result
the technical posts have been filled up by deputation from the third respondent Board. Similarly for other projects engineers from other
departments have been taken on deputation and utilised. After the deputation the engineers of the parent department have been paid by the
respondents 1 and 2. It is also seen that a reading of the Government Order dated 29.11.1982 would indicate that the posts created by virtue of
the said Government Order are Government posts and that is the reason why persons from other departments have been appointed to the said
posts on deputation.
The Government Order passed in G.O.Ms. No. 84, Rural Development Department dated 05.05.1998 which was amended by G.O.Ms. No. 63,
RD & PR Department dated 29.06.2006, the respondents 1 and 2 have empowered the Village Panchayats to spend up to Rs. 600/- per hand
pump per year and Rs. 7,500/- per power pump per year without reference to the Assistant Engineers or Assistant Executive Engineers as the
case may be. Accordingly, the Village Panchayats have been given most of the maintenance work load of over 95% by delegating work of the
Assistant Executive Engineers and Assistant Engineers to the Village Panchayats themselves.
As per the Government Order referred earlier in G.O.Ms. No. 1837, RD & LA Department dated 29.11.1982, the sanctioned Government posts
are to be filled by the engineers of the third respondent. The Assistant Executive Engineers are also to work under the overall technical control of
the Executive Engineers / Superintending Engineers of the third respondent.
Applications have been filed by the engineers of the respondents 1 and 2 before the Tamil Nadu Administrative Tribunal contending that since they
have become sufficiently senior, their case for promotion as Assistant Executive Engineers will have to be considered. It was further contended
before the Tribunal that the respondents 1 and 2 shall not receive any persons from other departments such as Highways and the third respondent.
Similarly, writ petitions have been filed by engineers of the third respondent who incidentally are members of the petitioner seeking directions that
they should be absorbed by the respondents 1 and 2. The Hon''ble Tribunal as well as the Hon''ble High Court have rejected the case of the
deputationist from the third respondent and accepted the case of the engineers of the respondents 1 and 2 by holding that the service rules of the
respondents 1 and 2 do not authorise the absorption from other department and the deputationist cannot seek permanent absorption in another
department in the absence of any rule providing for the same.
The Hon''ble Division Bench has passed the above said order in W.A. No. 500 of 2005 etc. on 29.01.2007. In the meanwhile, another order was
passed by the first respondent in G.O.Ms. No. 191, RD & PR Department dated 29.12.2006, by which the Commissioner of Rural Development
and Panchayat Raj and the District Collectors concerned have been given the powers of issuing the postings of Assistant Executive Engineers and
Assistant Engineers for the Water Supply Wing. Accordingly, the earlier practice of posting orders issued by the third respondent to the post of
AE and AEE to the engineers on deputation to the respondents 1 and 2 has been dispensed with and the said power has been conferred upon the
Commissioner of Rural Development and Panchayat Raj and the District Collectors. In pursuant to the said Government Order, a writ petition was
filed by the 4th respondent seeking consideration of the representation made to the respondents 1 and 2. The above said writ petition was ordered
by the Hon''ble High Court. Some of the members of the petitioner filed impleading petition seeking to set aside the order but however for the
reasons known to them they have withdrawn the said petition later. Thereafter, the petitioner has filed the present writ petition challenging the
Government Order passed by the first respondent in G.O.Ms. No. 191, RD & PR dated 29.12.2006 with a consequential direction, directing the
respondents 1 to 3 to post only the engineers of the third respondent as AE and AEE in charge of water supply and drainage work of the local
authorities in accordance with G.O.Ms. No. 1837, Rural Development and Local Administration Department dated 29.11.1982.
The present writ petition has been filed on 10.05.2009 by which time the said Government Order impugned has been given effect to
substantially and the beneficiaries of the impugned Government Order have not been made as parties. The 4th respondent has been made as a
party which is an association of the employees of the respondents 1 and 2. It is also seen that after the filing of the writ petition a subsequent
Government Order was passed in G.O.Ms. No. 67, Rural Development and Panchayat Raj Department dated 20.07.2009 re-designating and re-
deploying the posting of Assistant Engineer and Assistant Executive Engineer as Assistant Engineer / Junior Engineer and Assistant Executive
Engineer with a view to strengthen the technical supervision of roads and bridges. Accordingly as per the said Government Order obsolescence of
the exclusive post of Assistant Executive Engineer and Assistant Engineer in the water supply section has been ordered.
The learned Counsel for the petitioner made the following submissions based upon the affidavit, reply statement and the written arguments. The
submissions are extracted hereunder:
(i) The first respondent has no power or authority to pass the impugned Government Order under Article 162 of the Constitution of India.
Inasmuch as the TWAD Board Act, 1970 provides for the carrying out of the works of the local bodies there is no power for the first respondent
to pass the impugned Government Order which is unconstitutional and against the Tamil Nadu Panchayat Act, 1994. The first respondent cannot
interfered with the work and power of the local bodies by exercising its power under Article 162 of the Constitution of India.
(ii) The posts of AE and AEE are the posts of the third respondent alone and therefore it cannot be construed that they are the Government posts.
Inasmuch as the said posts belong to the third respondent the impugned Government Order cannot be sustained.
(iii) A reading of the TWAD Board Act, 1970 particularly with reference to the provisions contained in Section 16(b) read with Section 27 would
mean that the water and sewerage work of the local bodies will have to be done by the local bodies only by and with the technical assistance and
advice of the third respondent.
(iv) The contention of the respondents that u/s 110(g), 112(aa) and 112(aaa) of the Tamil Nadu Panchayat Act, 1994, a duty is cast on the local
bodies cannot be accepted since a reading of the said provisions would show that the above said provisions provide for making provisions in the
budget. Therefore a conjoint reading of the TWAD Board Act, 1970 and the Tamil Nadu Panchayat Act, 1994 would reveal that it is the third
respondent who is the competent authority to execute the work.
(v) Further the contention of the learned Advocate General that the writ petition is liable to be dismissed on the ground of principles of constructive
res judicata is not sustainable. The issue involved in the earlier writ petition was one of absorption of the deputationist from various departments to
the department of the respondents 1 and 2 whereas the issue involved in the present writ petition is challenging the Government Order by which the
respondents 1 and 2 have taken away the power of the third respondent.
(vi) There is no laches in filing the writ petition since the petitioner has approached this Court when the cause of action arises. Further the
contention that the writ petition is not maintainable by the petitioner cannot be accepted since the petitioner has been recognised by the third
respondent and therefore, the petitioner is entitled to represent its members.
The learned Counsel for the petitioner in support of his submissions has relied upon number of judgments and contended that the impugned
order is a nullity, one without jurisdiction, nonest in the eye of law and therefore, the same will have to be set aside and under those circumstances,
the question of res judicata would not arise for consideration. In support of his contention that a writ petition will have to be filed only when there is
a cause of action, the learned Counsel for the petitioner is relied upon the judgment reported in Kusum Ingots and Alloys Ltd. Vs. Union of India
(UOI) and Another, . He submitted that when an order is without jurisdiction the principle of res judicata would not apply. The learned Counsel
has relied upon the judgment reported in National Institute of Technology and Others Vs. Niraj Kumar Singh, . Further in support of his contention
that the respondents cannot act in the absence of statutory provisions, the judgment reported in (2007) 13 SCC 154 [Poonam Verma and Ors. v.
Delhi Development Authority] was relied upon. The learned Counsel also relied upon the judgments reported in M.V. Janardhan Reddy Vs.
Vijaya Bank and Others, ; Suresh Jindal Vs. BSES Rajdhani Power Limited and Others, ; Deepak Agro Foods Vs. State of Rajasthan and
Others, and contended that an order without authority will have to be ignored and such an order cannot be justified on rationale or any other
ground.
The learned Advocate General appearing for the respondents 1 and 2 has made his submissions both on the question of fact and law. The
submissions include the maintainability of the writ petition as well as on the merits of the case.
The submissions of the learned Advocate General are as follows:
(i) Inasmuch as the posts involved in the impugned order are Government posts created by the respondents 1 and 2, the petitioner cannot
challenge the same being an association representing the employees of the third respondent. The writ petition is liable to be dismissed for laches
since the impugned order passed in G.O.Ms. No. 191, RD & PR Department dated 29.12.2006 was challenged on 10.05.2009 by which time
rights have been accrued to different persons.
(ii) The local bodies have the power u/s 110(g), 112(aa) and 112(aaa) of the Tamil Nadu Panchayat Act, 1994 and therefore the impugned order
has been passed to the benefit of the local bodies. The power has been conferred on the District Collector concerned who is the Inspector of
Panchayat under the Panchayat Act. Funds have been allocated by the Government Orders empowering the work to the local bodies and
therefore 95% of the maintenance work has been entrusted to the local bodies. In any case the local bodies are not parties to the present writ
petition and neither the local bodies nor the third respondent have any objection for passing of the impugned Government Order.
(iii) The present writ petition is nothing but a re-litigation by the petitioner whose members have filed the earlier petition in W.A. No. 500 of 2005
etc. seeking absorption and having failed to get the favourable orders has now challenged the present impugned order. In pursuant to the impugned
order, the deputationist have been reverted and therefore the impugned order has been given effect to.
(iv) There is a subsequent Government Order passed in G.O.Ms. No. 67, Rural Development and Panchayat Raj Department dated 20.07.2009
which has not been challenged and hence the present writ petition is not maintainable. Further, the contention of the learned Counsel for the
petitioner relying upon the Section 16(b) read with Section 27 of the TWAD Board Act, 1970 has no relevance since Section 27 of the Act
clearly stipulates that in so far as hand pumps or power pumps are concerned there is no necessity for prior concurrence from the third respondent.
The proviso to Section 27 of the TWAD Board Act, 1970 makes it clear that the approval of the third respondent is not required. Further the new
water supply schemes ought to be implemented in accordance with the proviso to Section 27 of the TWAD Board Act, 1970 read with Section
112(aa) and 112(aaa) of the Tamil Nadu Panchayat Act, 1994. The impugned Government Order has been passed in consultation with the third
respondent and therefore, the petitioner cannot in effect represent the third respondent. The learned Advocate General also submitted that the writ
petition is liable to be dismissed for laches since after knowing the passing of the impugned order the writ petition has been filed belatedly.
Before going into the merits of the case, this Court is of the opinion that it is to be seen as to whether the writ petition is maintainable in law and
facts.
In the present case on hand, the petitioner has filed the writ petition seeking to set aside the impugned order by which the power of posting of
AEE / AE has been taken away from the third respondent and given to the District Collector and the Commissioner of Rural Development and
Panchayat Raj. The petitioner has challenged the said Government Order seeking a further direction by way of a writ of mandamus to implement
the earlier Government Order passed in G.O.Ms. No. 1837, RD & LA Department dated 29.11.1982. A reading of the said Government Order
dated 29.11.1982 and the impugned order would show that the posts involved in both the Government Orders are Government posts. Therefore,
the petitioner having its members as employees of the third respondent does not have any legal right to challenge the impugned order. Moreover
the posts have been created by the earlier Government Orders relied on by the petitioner. When such is a position the petitioner cannot turn round
and say that the posts involved are the posts of the third respondent and not the Government posts. In other words while being the beneficiary of
the earlier Government Order by which Government posts have been created and payment have been made by the respondents 1 and 2, the
petitioner thereafter cannot contend that the said posts are not Government posts. Hence this Court is of the opinion that the petitioner is neither an
aggrieved body nor an affected party to challenge the impugned order.
A Writ of Mandamus can only be issued when there is a legal right. As observed earlier the petitioner does not have the legal right. When there
is no legal right the extraordinary relief by invoking the jurisdiction of this Court cannot be extended to the petitioner. The power under Article 226
of the Constitution of India is a discretionary relief and such a power cannot be exercised to the present case on hand. Moreover nobody has got a
vested right to seek a promotion. The main contention of the petitioner is that by virtue of the Government Order impugned in the writ petition the
chances of promotion to the members of the petitioner would be reduced. This Court is of the considered opinion that even assuming the same is
true it cannot be a ground to challenge the impugned order since right to promotion is neither a vested right nor a fundamental right. The decision
taken by the respondents 1 and 2 is being a policy decision, this Court cannot go into the rationale behind the said decision since the policy
decision evolved by an authority on a consideration of a material available on record cannot be challenged and set aside until and unless the same
bristles with arbitrariness and malafides. A reading of the impugned order would show that the same is based upon a consideration of the materials
available on record and on a rationale basis. Therefore under those circumstances, the impugned order cannot be questioned. Moreover the writ
petitioner has not given any sufficient reasons for challenging the impugned order at a belated stage by which time the impugned order has been
given effect to.
Hence taking into consideration of the above said facts and also the subsequent development by which the post involved in the writ petition
have been re-designated and re-deployed for some other purpose by virtue of the Government Order passed in G.O.Ms. No. 67, Rural
Development and Panchayat Raj Department dated 20.07.2009 the present writ petition is not maintainable in law and facts.
In the judgment reported in Virender Chaudhary Vs. Bharat Petroleum Corporation and Others, the Hon''ble Apex Court has held that a delay
of 1 1/2 years in challenging the impugned proceedings is fatal and the writ petition is liable to be dismissed on the ground of estoppel, waiver and
acquiescence. Therefore under those circumstances, the Hon''ble Apex Court was pleased to hold that the discretionary and equitable relief under
Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and laches. The Hon''ble Apex Court in the said
judgment has observed as follows:
He, however, filed a writ application only on or about 23.11.2004. The High Court may be correct in its view that the purported cancellation
of empanelment of the fifth respondent was made on a wrong premise. Though the advertisement published in Navbharat Times mentioned
framing of charge in a criminal case"" as a disqualification, in the advertisement published in The Tribune and Dainik Tribune framing of charge in a
criminal case was not mentioned as a disqualification. In the application form also, the applicant was not required to furnish any information
regarding any framing of charge in a criminal case. It was neither necessary nor possible for the fifth respondent to disclose the fact that two first
information reports had been lodged against him and in one of them he had been charge-sheeted. The purported disqualification attributed to him,
therefore, led to an unjust decision. The High Court, however, in our opinion failed to take into consideration the effect of delay and laches on the
part of respondent 5 in approaching the High Court. A writ remedy is a discretionary remedy. The court exercises its jurisdiction only upon
satisfying itself that it would be equitable to do so. Delay and/or laches, indisputably, are the relevant factors.
The superior courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the
applicant in a case of this nature. While doing so, the Court although not oblivious of the fact that no period of limitation is provided for filing a writ
petition, but emphasis is laid that it should be filed within a reasonable time. A discretionary jurisdiction under Article 226 of the Constitution of
India need not be exercised if the writ petitioner is guilty of delay and laches.
In Uttaranchal Forest Development Corpn. v. Jabar Singh this Court held:
...It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. The
termination order was made in the year 1995 and the wit petitions were admittedly filed in the year 2005 after a delay of 10 years. The High
Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and
that the writ petitions should have been dismissed by the High Court on the ground of laches.
In NDMC v. Pan Singh this Court held:
There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not
agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982,
those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time,
therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be
exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction.
Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition
should be filed within a reasonable time.
In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel it was held:
104 ...''26. Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the
claim for exclusive rights in a trade mark, trade name, etc.''
Recently in Khoday Distilleries Ltd. v. Scotch Whisky Assn. this Court applied the principle of waiver and acquiescence being a case involving
equity and justice. Conduct of the parties has also been considered to be a ground for attracting the doctrine of estoppel by acquiescence or
waiver.
The fifth respondent did not acquire an indefeasible right. He was selected by the Oil Selection Board. The said selection was subsequently
cancelled and a letter of intent was issued in favour of the appellant in May 2004. It was not questioned immediately after issuance of the letter of
intent in favour of the appellant in May 2004. In his writ application, the fifth respondent did not question the grant of dealership in favour of the
appellant. He was afforded an opportunity to amend the writ petition. He filed such an application only after 16 months. However, the writ petition
itself was withdrawn and only in October 2006, the present writ application was filed. From the facts as noticed hereinbefore, there can, therefore,
be no doubt that from May 2004 to October 2006, the respondent did not take any step to challenge the insurance (sic issuance) of the letter of
intent granting dealership in favour of the appellant.
In the judgment reported in Ram Singh Vijay Pal Singh and Others Vs. State of U.P. and Others, the Hon''ble Supreme Court was pleased to
observe that in so far as the policy matters are concerned, the judicial review under Article 226 of the Constitution of India is very limited.
Therefore in the absence of any legal right the said decision cannot be challenged. The Hon''ble Supreme Court has observed as follows:
Mr. Dinesh Dwivedi, learned Senior Counsel for the appellant has next submitted that the writ petitioners were earlier carrying on business
from their own premises in Purana Galla Mandi in the city of Pilibhit and they shifted to Nawin Mandi Sthal, where the Mandi Samiti had made
construction of shops and godowns, etc, which is at considerable distance from the city and which lacked basic infrastructure, on the assurance
given by the Mandi Parishad that the business premises would be sold to them on hire-purchase basis. Learned Counsel has submitted that after
having shifted to the Nawin Mandi Sthal which caused considerable inconvenience to the traders, it is not open to the respondents to contend that
the business premises would be given to them by the Mandi Samiti on lease or rental basis. In this connection it may be pointed out that the writ
petitioners have not filed any document whatsoever to show that either it was held out or any assurance was given by the respondents that the
business premises would be sold to the petitioners on hire-purchase basis or otherwise. In fact, there is not a single piece of paper on record to
substantiate the allegation made by the writ petitioners. Whether the shops, godowns and sheds of the Mandi Samiti, which have been allotted to
the writ petitioners, should be given to them on lease or should be sold to them on hire-purchase basis, is purely a matter of policy as the property
belongs to the Mandi Samiti or the Mandi Parishad. It is for the Mandi Samiti or the Mandi Parishad to take a policy decision in this regard and the
Court cannot examine the correctness or otherwise of the said policy except in a very narrow compass.
In Netai Bag v. State of W.B. this Court held as under in para 20 of the Reports:
The Government is entitled to make pragmatic adjustments and policy decision which may be necessary or called for under the prevalent
peculiar circumstances. The court cannot strike down a policy decision taken by the Government merely because it feels that another decision
would have been fairer or wiser or more scientific or logical. In State of M.P. v. Nandlal Jaiswal it was held that the policy decision can be
interfered with by the court only if such decision is shown to be patently arbitrary, discriminatory or mala fide. In the matter of different modes,
under the rule of general application made under the M.P. Excise Act, the Court found that the four different modes, namely, tender, auction, fixed
licence fee or such other manner were alternative to one another and any one of them could be resorted to.
In the well-known case of Balco Employees'' Union (Regd) v. Union of India a three-Judge Bench summarised the law on the point as under:
In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in
focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in
the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the
Court. It is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public
policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner
merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.
Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is
contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic
policies and consider whether a wiser or better one can be evolved. In matters relating to economic issues, the Government has, while taking a
decision, right to ''trial and error'' as long as both trial and error are bona fide and within limits of authority. For testing the correctness of a policy,
the appropriate forum is Parliament and not the courts.
In Federation of Rly. Officers Assn. v. Union of India it was held as under in para 12 of the Reports:
In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to
which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On
matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the
issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not
interfere with such matters.
This being the settled position of law no direction can be issued to the respondents to transfer the shops, godowns or sheds to the writ petitioners
on hire-purchase basis.
While considering the scope of the policy decision in a recent judgment of the Hon''ble Supreme Court reported in Dilip Kumar Garg and
Another Vs. State of U.P. and Others, has held as follows:
In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The
administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and
it is not for this Court to sit over their decision like a court of appeal. The administrative authorities have experience in administration, and the Court
must respect this, and should not interfere readily with administrative decisions.
The decision to treat all Junior Engineers, whether degree-holders or diploma-holders, as equals for the purpose of promotion is a policy
decision, and it is well settled that this Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional
provision or the statute. We find no such violation in this case.
In Tata Cellular v. Union of India it has been held that there should be judicial restraint in administrative decision. This principle will apply all the
more to a rule under Article 309 of the Constitution.
Therefore on a consideration of the above said judgments, this Court is of the opinion that the impugned order being the policy decision cannot be
challenged.
In the judgment reported in Food Corp. of India and Others Vs. Ashis Kumar Ganguly and Others, the Hon''ble Apex Court was pleased to
hold that a Writ of Mandamus cannot be issued unless a right exists to the petitioner with the corresponding duty on the respondents. The Hon''ble
Apex Court has observed as follows:
A statutory authority or an administrative authority must exercise its jurisdiction one way or the other so as to enable the employees to take
recourse to such remedies as are available to them in law, if they are aggrieved thereby. The question which, however, arises for consideration is as
to whether having exercised its jurisdiction in favour of a class of employees, a statutory authority can deny a similar relief to another class of
employees. In a case of this nature, in our opinion, the writ court was entitled to declare such a stand taken by the statutory authority as
discriminatory on arriving at a finding that both the classes are entitled to the benefit of a statutory rule.
In the judgment reported in City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and Others, the Hon''ble
Supreme Court was pleased to observe that the inordinate delay in moving the Court for a writ petition is an adequate ground for refusing the
relief. The Hon''ble Apex Court was pleased to observe that the Court should not encourage the agitation of stale claims where rights have been
accrued to the parties. The Hon''ble Apex Court has observed that the relief under Article 226 of the Constitution of India being discretionary the
same cannot be claimed as a matter of right. The Hon''ble Apex Court has observed as follows:
It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue
appropriate writs particularly a Writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing
relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the Court for a Writ is
an adequate ground for refusing a Writ. The principle is that Courts exercising public law jurisdiction do not encourage agitation of stale claims and
exhuming matters where the rights of third parties may have accrued in the interregnum.
In so far as the contention of the learned Advocate General that the writ petition is liable to be dismissed on the ground of constructive res
judicata is concerned, this Court is of the opinion that no ground is made out for holding that the writ petition is to be dismissed on the ground of
constructive res judicata. It is a well settled principle of law that a party which raised the plea of res judicata will have to substantiate his case and
prove the same. A reading of the order passed by the Hon''ble Division Bench in W.A. No. 500 of 2005 etc. and the relief sought for in the
present writ petition would show that the issues involved in both the cases are distinct and different. What is sought for in the earlier proceedings is
absorption of some of the members of the petitioner whereas the relief sought for in the present writ petition is on the ground that the posts
involved belong to the third respondent. The issue raised in the present writ petition has not been raised in the earlier writ petition. Therefore when
a ground or a question is not susceptible of being raised earlier. The subsequent writ petition is not barred by constructive res judicata. The
Hon''ble Apex Court in the judgment reported in Food Corp. of India and Others Vs. Ashis Kumar Ganguly and Others, has held that when a
question is not susceptible of being raised earlier, the bar of constructive res judicata would not be made applicable.
In so far as the contention raised by the respondents about the maintainability of the writ petition by the petitioner who is an association, the
learned Advocate General fairly submitted that inasmuch as the arguments have been made on the merits of the case the said issue need not be
decided. Accordingly in view of the said position that this Court has gone into the merits of the case and the issue of maintainability of the writ
petition by the petitioner has not been gone into.
Therefore this Court on a consideration of the above said legal principle of law and applying the same to the present case on hand is of the
considered opinion that the writ petition is liable to be dismissed.
Coming to the merits of the case, as observed earlier the posts involved in the writ petition are Government posts and the salary is paid by the
respondents 1 and 2. Therefore the contention of the learned Counsel for the petitioner that the posts should be construed as the one belonging to
the third respondent has no factual basis. The other contention of the learned Counsel for the petitioner that the respondents do not have the power
to invoke under Article 226 of the Constitution of India also does not merit acceptance. The said power has been exercised by the respondents
even while passing the earlier Government Order in G.O.Ms. No. 1837, RD & LA Department dated 29.11.1982 and the petitioner has not
challenged the said Government Order but relies upon the same. Therefore the impugned order cannot be challenged by the petitioner who does
not have the right to challenge the same. In any case if the state has the legislative competence to frame the rules then it can issue Government
Orders in exercising the power under Article 162 of the Constitution of India. The said legal principle is supported by the decision of the Hon''ble
Supreme Court reported in A.P. Public Service Commission Vs. Baloji Badhavath and Others, . The Hon''ble Supreme Court has observed as
follows:
The vacancies which were to be filled up by the State pertained to Group I Services. The State indisputably subject to the constitutional
limitations having regard to its power contained in the proviso appended to Article 309 of the Constitution of India is entitled to frame rules laying
down the mode and manner in which vacancies are to be filled up. If the State has the legislative competence to frame rules, indisputably, it can
issue governmental orders in exercise of its power under Article 162 of the Constitution of India. It adopted one procedure. It was held to be ultra
vires by the Andhra Pradesh High Court in S. Jaffer Saheb. It attained finality.
Hence a reading of the said judgment would show that the contention of the learned Counsel for the petitioner does not merit acceptance even
though the same is not required to be gone into. Further as submitted by the learned Advocate General the earlier Government Order was passed
in the year 1982 much prior to the 73rd Constitutional Amendment, 1992 and the enactment of the Tamil Nadu Panchayat Act, 1994. Moreover
neither the local bodies nor the third respondent has got any objection to the passing of the impugned order.
20(a).A similar view has been taken by the Hon''ble Apex Court in the recent judgment reported in Jantia Hill Truck Owners Association Vs.
Shailang Area Coal Dealer and Truck Owner Association and Others, wherein it has been observed that the power under Article 162 of the
Constitution of India in unequivocal terms provides that the executive power of the State shall extent to the matters with respect to which the
legislature of the State has power to make law. Therefore this Court is of the opinion that the contention of the learned Counsel for the petitioner
that in the absence of any enactment by the legislature the first respondent is not competent to exercise the power under Article 162 of the
Constitution of India cannot be accepted.
The petitioner herein has not challenged the Government Orders passed in favour of the local authorities in G.O.Ms. No. 84, Rural
Development Department dated 05.05.1998 and G.O.Ms. No. 63, RD & PR Department dated 29.06.2006, by which the first respondent has
empowered the Village Panchayats to spend certain amount for the maintenance of pumps by the local bodies. Accordingly 95% of the work has
been allotted to the local bodies. The petitioner has not chosen to challenge the said orders.
The contention of the learned Counsel for the petitioner that power is given to the third respondent alone u/s 16 of the TWAD Board Act,
1970 read with Section 27 of the said Act to execute the works cannot be accepted. For better appreciation, the above said Sections have been
extracted:
Function of the Board:- The Board shall perform all or any of the following functions namely:
(a) at the instance of the Government or a local authority-
(i) investigating the nature and type of schemes that can be implemented in the area of any local authority for the provision of drinking water and
drainage facilities;
(ii) planning and preparing of schemes including schemes covering areas falling within the jurisdiction of more than one local authority for the
purpose of providing the supply of drinking water or drainage facilities;
(iii) executing such schemes under a phased programme for the provision of drinking water and drainage facilities within the areas of local
authorities to which such schemes relate.
(b) providing technical assistance or giving advice to local authorities in the execution and maintenance of water supply and drainage works.
Power of Local Authority to undertake schemes:- No local authority other than the Municipal Corporations of Madurai, Coimbatore,
Tiruchirapalli, Tirunelveli, Salem and any other Municipal Corporation that may be constituted under any law for the time being inforce and the
special grade municipalities, shall without the approval of the Board. Investigate, prepare or execute any scheme:
Provided that no such approval shall be necessary for any local authority to undertake work connected with hand pump, extension of pipeline and
development of existing water sources by power pumps.
A reading of Section 16 would show that the third respondent shall perform all or any of the functions at the instance of the Government or
local authority. Similarly Section 16(b) states about the giving of advice by the third respondent to the local authorities. Hence it is clear that what is
provided is a mere technical assistance or advice. The said provision cannot be construed to hold that the work should be carried out by the local
authorities regarding hand pump, extension of pipe line and development of existing water sources by power pumps only through the third
respondent alone. Similarly, the proviso to Section 27 is very clear that an approval from the third respondent is not required for a local authority
to undertake work connected with hand pump, extension of pipeline and development of existing water sources by power pumps. It is seen that
Section 27 as stood originally contained Sub-clause (b) which states that the local authority without the approval of the Board cannot authorise any
person or body or association of individuals to investigate, prepare or execute any scheme on behalf of such local authority. The said clause has
been removed from the statute. The very fact that the said clause has been removed itself would indicate that the contention of the learned Counsel
for the petitioner cannot be countenanced. Therefore the contention of the learned Counsel for the petitioner that as per the TWAD Board Act,
1970 only the third respondent is alone competent to carry the work of the local body cannot be accepted.
In so far as the judgments relied upon by the learned Counsel for the petitioner is concerned, this Court is of the opinion that the said
judgments are not applicable to the present case on hand. In the judgments reported in Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI)
and Another, the challenge was to the validity of the legislation. Therefore under those circumstances, the Hon''ble Supreme Court was pleased to
hold that a writ Court would not determine a constitutional question in a vacuum. Further issue involved in the said case was about the territorial
jurisdiction for filing the writ petition. A reading of the said judgment would show that the said judgment is against the petitioner since it was
observed therein that a constitutional question cannot be decided in the vacuum. Since in the present case the petitioner is not an aggrieved person,
this Court is of the opinion that the judgment relied upon by the learned Counsel for the petitioner is not applicable to the present case on hand.
The learned Counsel for the petitioner also relied upon the judgment reported in National Institute of Technology and Others Vs. Niraj Kumar
Singh, and submitted that an order passed without authority is a nullity and therefore the principle of res judicata would not apply. A reading of the
said judgment would show that the issue involved therein was of a compassionate appointment made in favour of the respondents. The Hon''ble
Apex Court was pleased to observe that when an order is passed by an authority lacking jurisdiction principles of res judicata would not apply.
This Court is of the opinion that the said judgment also is not applicable to the present case it is already held that there is no constructive res
judicata in the present case. The learned Counsel for the petitioner also relied upon the judgment reported in M.V. Janardhan Reddy Vs. Vijaya
Bank and Others, and submitted that an order passed without an authority has no effect. The Hon''ble Apex Court was pleased to observe that an
order passed without an authority creates neither any right in favour of a party for whom such order is made nor imposes any obligation on the
party against whom it was passed. In the present case on hand, the impugned order does not impose any obligation on the petitioner and it does
not also create any right in favour of any party. Hence this Court is of the opinion that the said judgment is not applicable to the present case on
hand.
The learned Counsel for the petitioner has also relied upon the judgment reported in Suresh Jindal Vs. BSES Rajdhani Power Limited and
Others, and submitted that an Act done without an authority cannot be supported. As submitted earlier it cannot be held that the impugned order
passed herein is one without authority and in fact the said judgments supports the case of the respondents since it has been stated that while
exercising the statutory power, the statutory authority may do all things which are necessary. Moreover the facts involved in the said case are
totally different and not applicable to the present case on hand.
Hence on a consideration of the above said factual and legal position, this Court is of the considered view that the writ petition is liable to be
dismissed and accordingly the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.