1. Seeking issuance of a writ of quo-warranto, directing respondent No. 6, namely Thiru S. Thangamuniyasamy to show cause under what authority he continues to hold the office of the 5th respondent, that is, the Deputy Director of Geology and Mining, Virudhunagar District, the petitioners herein have filed these writ petitions.

2. Prelude:

This is a tale of the directly recruited employees who were appointed as Assistant Geologists temporarily, in exercise of the untrammelled power of appointment by the State, who were allowed to continue in service substantively for 16 years from the date of the appointment till they were further promoted temporarily twice at the pleasure of the State, in the Department of Geology and Mining, State of Tamil Nadu. When their Lordships of the Hon’ble Supreme Court have emphatically held that, the protection under Article 311 of the Constitution of India is applicable to the employees appointed as civil servants in all nature - permanent, temporary, officiating or probation in the case of Parshotam Lal Dhingra Vs. Union of India (UOI) AIR 1958 SC 36, drawing inspiration from the law laid down by their Lords of the Hon’ble Supreme Court in the aforesaid landmark judgment, I am duty bound to narrate the unfettered abuse of power by the Respondents 1 to 4 in these Writ Petitions, in the matter of temporary appointments and temporary promotions to the 6th respondent and others at their pleasure. The concerns and legal complications involved in these cases have a chequered history.

3. Factual Matrix of the case:

3.1. The writ petitioner is a Registered Society, registered under the Societies Registration Act, 1975. The petitioner Society in W.P.(MD)No. 28526 of 2023, namely Tamil Nadu Quarry Lessees and Crusher Owners' Welfare Association was formed during the year 2014. The Executive Committee of the petitioner Association was convened on 23.11.2021, during which it was unanimously decided to file this writ petition seeking to direct the respondents 1 to 4 to take action for giving promotions to the 6th respondent illegally to the posts of Assistant Director and Deputy Director, as he had not appeared for departmental test, that is, Account Test for Executive Officers or Account Test for Subordinate Officers Part I and passed that qualifying test.

3.2. On 04.08.2023, the Government had amended Rules 19 and 20 of the Tamil Nadu Minor Mineral Concession Rules, whereby the District Officers of the Department of Geology and Mining have been empowered to grant leases and to execute the lease deed in respect of Patta Lands. Therefore, the 5th respondent is the competent authority to issue licenses and execute the lease deeds in respect of patta lessees. If the 6th respondent has not qualified himself for the promotion to the posts of Assistant Director / Deputy Director and if the said post which is being held by the 6th respondent is invalidated by the appropriate forum, then the orders issued by the 6th respondent in the 5th respondent office will have no effect and the same would become null and void resulting in embarrassment to all the entrepreneurs, more fully to the members of the petitioner Association connected with those orders as issued by the 5th respondent. In order to avoid the said embarrassment, the petitioner Association has sent representation to the respondents 1 to 4 on 28.10.2023. Since the respondents 1 to 4 have not taken any action as against the 6th respondent invalidating the post held by him in the 5th respondent office, this writ petition came to be filed by the petitioner Association.

3.3. Yet another writ of quo-warranto came to be filed in W.P. (MD)No. 29946 of 2023 by one of the members of the petitioner Association in W.P.(MD)No. 28526 of 2023 and who himself claimed to be a quarry leaseholder, namely S. Abraham Muller. Conceding that the petitioner is aware of the writ petition filed by the Tamil Nadu Quarry Lessees and Crusher Owners' Association in the same matter, the petitioner had filed yet another writ of quo-warranto, that he came to know that the 6th respondent has been holding the post of Assistant Director and subsequently the post of Deputy Director without qualifying himself for those posts. Claiming that he came to know the same only after the 6th respondent assumed charge at Virudhunagar, he further has submitted in the affidavit filed along with the writ petition that he do not have any information about other similarly placed officers of the Mines Department. Verbatim adopting the same pleadings and grounds as filed in writ petition W.P.(MD)No. 28526 of 2023, the writ petitioner has filed W.P.(MD)No. 29946 of 2023, against the 6th respondent directing him to explain under what authority he holds the post of the Deputy Director of Geology and Mining, Virudhunagar District.

4. Submission by the petitioners and the respondents:

4.1. Mr.Sricharan Rangarajan, the learned Senior counsel appearing for the petitioners in both the writ petitions, would submit that the respondent No.6 is not having requisite qualification for the posts of the 5th respondent office and therefore, he is not entitled to hold the office and as such, it is a fit case where the writ of quo-warranto can be issued as against the 6th respondent. The learned Senior counsel claiming that the 6th respondent is not a meritorious candidate as he has failed to satisfy the eligibility requirements under the Governing Rules to the posts of both Assistant Director as well as the Deputy Director, contended that such an appointment and promotion of the 6th respondent is contrary to the statutory Rules being Tamil Nadu State and Subordinate Service Rules, as well as the Special Rules applicable to the Tamil Nadu Geology and Mining Department.

4.2. He further submitted that the 6th respondent was selected to the post of an Assistant Geologist temporarily vide letter dated 31.08.2000 by violating the method of selection to the post of Assistant Geologist under the relevant Rules. Further, the 6th respondent who was appointed under Rule 10(a)(1) of the General Rules of the Tamil Nadu State and Subordinate Service Rules on an Ad-hoc basis, continued as a temporary employee in the service of the Department of Geology and Mining in controvention to the said Rule 10(a)(1). While the 6th respondent could not even have been so continued as an employee in the Department beyond 2001, the learned Senior counsel contended that the 6th respondent was further promoted and appointed temporarily as Assistant Director of the Department of Geology and Mining.

4.3. He further submitted that flouting the relevant Rules, the 6th respondent was thereafter promoted to the post of Deputy Director in the Department of Geology and Mining. Categorically contending that the 6th respondent continues in a temporary capacity, assuming the responsibilities of a permanent employee to a public post without possessing the stipulated qualifications since the date of his initial appointment, the learned Senior counsel called for issuance of Writ of quo warranto as against the 6th respondent.

4.4. Per Contra, the learned Additional Advocate General, Mr. P.Veerakathiravan appearing for the respondents 1 to 4, submitted that the writ petition has been instituted by the Tamil Nadu Quarry Lessees and Crushers Owners' Welfare Association in W.P.(MD)No. 28526 of 2023 for issuance of Writ of quo warranto against the 6th respondent with oblique motives and vested interest and hence the same is per se not maintainable in law. Contending that when the writ petition in W.P.(MD)No. 28526 of 2023 was listed for admission on 29.11.2023 before this Court, the official respondents have vehemently raised a preliminary objection as to the maintainability of a Writ of quo warranto instituted by an Association / busybody bearing ill-will or malice, immediately, the Secretary of the petitioner Association had set up another mining leasee, that is a member of the petitioner Association in W.P.(MD)No. 28526 of 2023 to institute a proxy litigation by engaging the same counsel in W.P.(MD)No. 28526 of 2023 for the identical relief with an intent to get rid of the issue of maintainability of the first writ petition filed by the Association.

4.5. The learned Additional Advocate General contended that the proxy litigation in W.P.(MD)No. 29946 of 2023 instituted by the petitioner is evident from the plain comparison of the pleadings of both the writ petitions. Claiming that the 6th respondent is an honest outright officer, the learned Additional Advocate General submitted that the 6th respondent was transferred and posted as the Deputy Director of Geology and Mining, Virudhunagar District on 01.09.2023. Immediately on assuming charge at Virudhunagar District Office, the 6th respondent initiated several actions for prevention of illegal mining and transport of minerals and had initiated criminal action as against the erring lessees who violated the license conditions by filing appropriate complaints before the jurisdictional police.

4.6. The learned Additional Advocate General submitted that one Thiru. A.Narayanaperumalswami, Virudhunagar District Quarry Lessees' Welfare Association and Tamil Nadu Quarry Lessees and Crusher Owners' Welfare Association made various complaints / petitions dated 12.09.2023, 25.09.2023, 05.10.2023 etc., to the District Collector Virudhunagar, Commissioner of Geology and Mining Chennai and the Government levelling charges against the former Director of Geology and Mining, the present District Collector Virudhunagar and the present Deputy Director of Geology and Mining, Virudhunagar, that is the 6th respondent, with ulterior motive from the month of September 2023 onwards.

4.7. Crying that the Court of Justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary and equitable jurisdiction of this Court under Article 226 of the Constitution of India, the learned Additional Advocate General relying upon the case in B. Srinivasa Reddy versus Karnataka Urban Water Supply and Drainage Board Employees Association reported in 2006 (11) SCC 731 (2), submitted that the writ of quo warranto filed at the instance of a person bearing ill will or malice to settle scores is liable to be rejected at the threshold. Coming down heavily on the writ petitioner Association in W.P. (MD)No. 28526 of 2023, as a busybody / meddlesome interloper, the learned Additional Advocate General contended that W.P.(MD)No. 28526 of 2023 has to be dismissed at the threshold on the grounds of maintainability and W.P.(MD)No. 29946 of 2023 has to be dismissed on the grounds of malice.

4.8. The learned counsel for the 6th respondent Mr.V.Meenakshi Sundaram vehemently contended that the writ petitions are per se not maintainable on the ground that the writ petitioners cannot be treated as persons aggrieved to institute a writ petition under Article 226 of the Constitution of India to enforce its / his fundamental rights. Contending that mere juxtapose perusal of the affidavit filed by the Association and S. Abraham Muller would reveal that the pleadings and grounds raised are identical. That itself would be sufficient to understand that the attempt of the writ petitioners questioning the authority of the 6th respondent exudes with oblique motive and actuated with malice. He further contended that the writ petitioners having not been affected in any way, they cannot have any legal right to maintain a writ petition. On that ground, the learned counsel Mr.V.Meenakshi Sundaram pressed that the preliminary objection as to the maintainability of the writ petitions filed by the writ petitioners would go to the root of the matter and on that ground the writ petitions filed by non-aggrieved persons has to be dismissed in limine.

5. Maintainability of the writ petitions:

5.1. The learned Senior counsel, Mr. Sricharan Rangarajan, appearing for the petitioners, submitted that the writ of quo warranto is a writ of technical nature, conferring jurisdiction on the Constitutional Courts to see that a public office is not held by an usurper without any legal authority. Contending that the petitioners are not required to establish any locus, personal interest, the learned Senior counsel contended that the petitioners' stand is in the position of a relator. Submitting that the real test in a writ of quo warranto is to whether the person holding the office is authorized to hold the same as per law, in the instant case, he insisted that it is for the 6th respondent who is answerable to the Court and the judicial review would be limited to whether or not he possesses the qualifications for appointment and if such appointment was made in a fair, just and reasonable manner in terms of the statutory provisions. He further submitted that the writ petitions having been filed by a Registered Society, formed by identifiable members of the public with the collective object in relation to the common use of minor minerals in the state of Tamil Nadu, as well as by an individual mining lease holder, after setting out all material facts of their objects, profession, etc., are very well maintainable.

5.2. He further submitted that the respondents apart from raising vague allegations of malafide, ill will, malice, etc., have failed to substantiate and prove the same. Merely filing complaints / petitions by the petitioner Society as against the respondent authorities including the 6th respondent does not amount to substantiation of allegations of lack of bonafide or of malafide, ill will, malice, etc. He further emphatically submitted that the mere reference to the alleged efforts undertaken by the 6th respondent in the 5th respondent office in curbing alleged illegal mining does not amount to any defense in a writ of quo warranto nor does it satisfy the burden of proving the allegations of lack of bonafide or of malafide, ill will, malice, etc., on the part of the petitioners. Making a rhetoric submission that the respondents have failed even to allege that the members of the petitioner Society or the individual petitioner have been implicated in any illegal mining, the learned Senior counsel insisted that mere filing of a writ petition for a legitimate reason would not exhibit any malafide on the part of the petitioners. Further submitting that the challenges to the maintainability of the writ petitions made by the respondents are illusory and baseless and are liable to be rejected, the learned Senior counsel required this court to adjudicate the writ petitions on merits.

6. Decision as to Maintainability:

6.1. The Honorable Apex Court in the case of Rajesh Awasthi versus Nand Lal Jaiswal and Ors. reported in 2013(1) SCC 501, has dealt with a similar case and the relevant portion of the same is extracted as follows:

“30. In University of Mysore v. C.D. Govinda Rao, while dealing with the nature of the writ of quo warranto, Gajendragadkar, J. has stated thus: (AIR . 494, para 7)

"7 Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."

31. From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater, He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law.”

6.2. The Honorable Apex Court in the case of B. Srinivasa Reddy vs. Karnataka Urban Water Supply and Drainage Board Employees' Association and Ors. reported in Manu/SE /8454/2006 decided on 28.08.2006 while dealing with the case of quo warranto has held as follows:

“28. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a Writ of Quo Warranto. The jurisdiction of the High Court to issue a Writ of Quo Warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.”

6.3. The Constitution Bench of the Honorable Supreme Court in Narayanas versus Government of Madhya Pradesh and others reported in 1974 Criminal Law Journal 924, in the aforesaid case filed by an employees' union had made it crystal clear that the Courts cannot grant any relief to a person who comes to the Court with unclean hands and with malafide intention / motive. Thus, in the light of the judgments of the Honorable Supreme Court discussed and extracted supra, without deciding upon the issue as to, whether the 6th respondent has been appointed contrary to the Statutory Rules and whether the petitioner Association / writ petitioner have approached this Court with malafide intention, the maintainability of these writ petitions cannot be decided.

7. Appointment and promotion of the 6th respondent namely S.Thangamuniyasamy:

7.1. Selection process for the post of Assistant Geologist, Department of Geology and Mining, State of Tamil Nadu was conducted by the Tamil Nadu Public Service Commission during 2000. In the direct recruitment process for the post of Assistant Geologist commenced by the Tamil Nadu Public Service Commission, seven candidates were finally selected by the Tamil Nadu Public Service Commission. Thereafter, the appointing authority that is the Director of Geology and Mining issued appointment orders, vide R.C.No.4292/PM2/1997 dated 21.09.2000 under Rule 10(a)(1) of the General Rules for the Tamil Nadu State and Subordinate Service to the aforesaid candidates and Thiru S.Thangamuniyasamy, that is, the sixth respondent and he was placed in serial No.3 in the order of seniority as Assistant Geologist among the seven selected candidates. For better appreciation, the appointment order is extracted as follows:

PROCEEDINGS OF THE DIRECTOR OF GEOLOGY AND MINING, GUINDY, CHENNAI 600 032.

PRESENT: THIRU K. NANDA KISHORE, I. A. S.,

Rc.No.4292/PM2/97. Dated: 21-9-2000.

Sub: Personnel and Office Management - Department of Geology and Mining - Recruitment (Direct) - Tamil Nadu Geology and Mining Subordinate Service - Selection of candidates by Tamil Nadu Public Service Commission for the post of Assistant Geologist - Appointment orders - Issued.

Read: Letter No.3127/OTD-B2/99, dated 31-8-2000 from the Secretary, Tamil Nadu Public Service Commission, Chennai 600 002,

.......

ORDER:

Under Rule 10 (a) (1) of the General Rules for the Tamil Nadu State and Subordinate Service, the following candidates selected by the Tamil Nadu Public Service Commission are temporarily appointed in the order of seniority as Assistant Geologist in the scale of Rs. 6500-200-11100 with usual allowances and posted to the offices mention against them:

Name and address of the candidate	Office to which posted
1.Selvi D. Dhayamalor,31. D. Karnavur Road, Tindivanam,Villupuram Dist. PIN: 604 002.	Office of the Directorate of Geology and Mining, Guindy, Chennai 600052.
2. Selvi V. Aruna, Thiru S. Kannan, No.26, Venkatachala Mudali Street, Choolai,Chennai 600 112.	-do-
3. Thiru. S. Thangamuniasany, C/o. Selvam Sweets, Sembakkam P.O. 603 108,Chengalpattu Taluk, Kancheepuran District,	-do-
4. Thiru.A. Arumuganainar 42, Ramasamiapuran 3rd Street Sankarankovil, Tirunelveli District,PIN: 627 756,	Office of the Assistant Director and Mining), Collectorate,Nagercoil-629 001.
5. Thiru L. Suresh,14, Subramania Nagar Extension, Salem 636 005.	Office of the Assistant Director (Geology and Mining), Collectorate, Master Plan Complex,Virudhunagar 626 001.
6. Thiru P. Saravanan,S/o. Thiru A. Prakasavelu,6th Ward, Ladapuram P.O.,Perambalur District.PIN: 621 121.	Office of the Director of Geology and Mining, Guindy, Chennai 600052.
7. Thiru A.Perumal,Kothanoor Andipatti P.O.,Sivadapuram Via.,Salem District. PIN: 636 307.	-do-

The above candidates are informed that their appointments are temporary and they are liable to be ousted from service without prior notice and assigning any reasons.

7.2. The 1st respondent vide G.O.(2D)No.68, Industries (E1) Department, dated 25.07.2007, temporarily promoted and appointed 21 Assistant Geologists of Geology and Mining Department as Assistant Directors on Ad hoc basis. The said promotion order is extracted as follows:

ABSTRACT

Establishment – Geology and Mining Department – Assistant Geologist Temporarily promoted and appointed as Assistant Directors on adhoc – basis – orders – issued.

Industries (E1) Department

G.O.2(D)No.68 Dated:25.07.07

Read:

From the Commissioner and Director of Geology and Mining Letter No.11805/PM1/2006 dated 2.3.2007.

ORDER:

The following Assistant Geologist of Geology and Mining Department are temporarily promoted and appointed as Assistant Directors on adhoc basis from the date of taking charge in the existing vacancies, subject to the condition that this temporary appointment will not confer any preferential right on them whatsoever at the time of regular appointment with reference to the special rules to be framed:-

Tvl.

1.N.Ramesh

2.P.Chinnamaruthu

3.Dr.A.Kalaiselvan

4.R.Gopikrishnan

5.M.Sambasivam

6.S.P.R.Jayaseelan

7.M.Govindaraj

8.C.Ravichandran

9.E.Ravindranath

10.R.S.Marimuthu

11.N.Ananthagopalan

12.M.Chitrarasan

13.C.Sampath

14.V.Sivaji

15.T.Muruganandam

16.Tmt.V.Aruna

17.S.Thangamuniasamy

18.A.Arumuganainar

19.L.Suresh

20.P.Saravanan

21.A.Perumal

(BY ORDER OF THE GOVERNOR)

SAKTHIKANTA DAS SECRETARY TO GOVERNOR

7.3. The first respondent further vide G.O.MS.No.20, Industries (E1) Department, dated 15.02.2016, promoted and appointed 11 Assistant Directors of Geology and Mining temporarily as Deputy Directors of Geology and Mining under General Rule 39 (a)(i) for Tamil Nadu State and Subordinate Service Rules including the 6th respondent. The aforesaid promotion order is extracted as follows:

ABSTRACT

Public Services – Industries – Department of Geology and Mining – Class – III Category - 1 - Assistant Directors temporarily promoted as Deputy Directors - orders - issued.

Industries (E1) Department

G.O.(Ms)No.20 Dated:15.02.2016

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

Read:

(1) G.O.(Ms.)No.157, Industries (E1) Department, dated 12.11.2010.

(2) G.O.(Ms.)No.280, Industries (E1) Department, dated 22.12.2015.

(3) From the Commissioner of Geology and Mining Letter Rc.No. 3177/PM1/2015, dated 23.12.2015.

(4) Government Lr.(Ms)No.16, Industries (E1) Department, dated 06.02.2016.

ORDER:

The following Assistant Directors of Geology and Mining Department are temporarily promoted and appointed as Deputy Directors of Geology and Mining under General Rule 39 (a) (i) for Tamil Nadu State and Sub-ordinate Service Rules from the date of taking charge in the existing vacancy of the Department of Geology and Mining subject to the condition that this temporary appointment will not confer any preferential rights on them whatsoever at the time of regular appointment with reference to the special rules constituted in the Government Order first read above:-

01.M.Govindaraj

02.N.Ananthagopalan

03.M.Chittarasan

04.V.Sivaji

05.T.Muruganandam

06.V.Aruna

07.S.Thangamuniasamy

08.A.Arumuganainar

09.L.Suresh

10.P.Saravanan

11.A.Perumal

(BY ORDER OF THE GOVERNOR)

C.V.SANKAR

ADDTIONAL CHIEF SECRETARY TO GOVERNOR

8. Evolution of the Department of Geology and Mining:

8.1. Originally, the complete matters pertaining to Geology remained as a separate branch of the Department of Industries and Commerce, Government of Tamil Nadu. During 1983, the Government vide G.O.Ms.No. 387, Industries (E1) Department, dated 24.03.1983, formed a separate Department of Geology and Mining, declaring that the Director of Geology and Mining would be the Head of the Department. Thereafter, the posts in the then Geology branch of the Department of Industries and Commerce along with the personnel were transferred to the new Department of Geology and Mining. At that point of time, there were seven classes with 13 categories of permanent posts in the Department of Geology and Mining for which Service Rules were to be framed. The posts of Assistant Geologist, Chemist, Librarian Grade-III and Laboratory Attender have been covered by the Special Rules under the Tamil Nadu Industries Subordinate Service and the remaining 9 categories of posts were governed by the Ad hoc rules till 1983.

8.2. The Government by this time decided to constitute separate Special Rules called the Tamil Nadu Geology and Mining Subordinate Service Rules for B, C and D group posts in the Department of Geology and Mining, for which the Director of Geology and Mining is the appointing authority. Thus, the Special Service Rules for B, C and D group posts for the Tamil Nadu Geology and Mining Subordinate Service, came to be constituted with effect from 14.03.1983 by the issuance of G.O.Ms.No. 55, Industries E-1 Department dated 27.02.1998. This Special Rules for the Tamil Nadu Geology and Mining Subordinate Service Rules for the B, C and D group posts in the Department of Geology and Mining will be herein after referred to as in this case as Special Rules, 1998. Under the newly constituted Special Rules, 1998, the post of Assistant Geologist fell under class I, category I. Rule 2 (a) of the aforesaid Special Rules, 1998, provided for the method of appointment to the post of Assistant Geologist. The method of appointment mandated to the post of Assistant Geologist is by direct recruitment or by transfer from any other class or category or by recruitment by transfer from any other service. The category, method of appointment and qualification for the post of Assistant Geologist as mandated by the Special Rules, 1998 in the Annexure is extracted as follows:

Sl. No.	Category	Method of appointment	Qualification
1.	Assistant Geologist	1) By direct recruitment 2) By transfer from any other class or category or 3) By recruitment by transfer from any other service	Must possess B.Sc or M.Sc. Degree in Geology of any University. Provided that other things being equal preference shall be given to those who possess practical experience in field work.

8.3. Rule 6 of the Special Rules, 1998 provides for probation that, every person appointed to any category by direct recruitment or by recruitment by transfer, from the date on which he joins duty be on probation for a period of two years on duty within a continuous period of three years. Rule 9 of the Special Rules, 1998 provides that the postings and transfers shall be made by the Director of Geology and Mining. During the year 2010, the Government decided to constitute separate Service Rules called the Special Rules for the Tamil Nadu Geology and Mining service for A and B Group posts in the Department of Geology and Mining for which the Government would be the appointing authority. Following which, the Government vide G.O.Ms.No. 157, Industries (E1) Department dated 12.11.2010 constituted Special Rules for the Tamil Nadu Geology and Mining Service for Group A and B posts in the Department of Geology and Mining with effect from 14.04.1983.

8.4. In furtherance to the same, the posts under the Industries and Commerce Department namely State Geologist, Additional State Geologist, Deputy State Geologist, Geologist, Assistant Director (Geology and Mining) (formerly Assistant Geologist), Gazetted Assistant (non- technical), which existed prior to the formation of the new Department covered by the Ad-hoc Rules were permanently transferred to the new Department of Geology and Mining with effect from 14.04.1983 under the said G.O. The said Special Rules for Tamil Nadu Geology Mining Service for A and B Group posts in the Department of Geology and Mining would herein after to be referred to as Special Rules, 2010. The Special Rules 2010 under Rule 2(a) provides for the appointment to the post of Deputy Director of Geology and Mining and Assistant Director of Geology and Mining. The same is extracted as follows for clear understanding:

Posts (1)	Method of appointment (2)
Deputy Director of Geology and Mining	Promotion from among the holders of  the post of Assistant Director of Geology and Mining.
Assistant Director of Geology and Mining	(i) Recruitment by transfer from among the holders of the post of Assistant Geologist in the Tamil Nadu Geology and Mining Subordinate Service, or (ii) Direct recruitment: Provided that appointment to the post by recruitment by transfer and by direct recruitment shall be made in the ratio of 3:1 respectively.

8.5. Rule 6 of the Special Rules, 2010 provides under the heading Test that, every person appointed to the post by direct recruitment shall within the period of his probation pass the Account Test for Executive Officers or the Account Test for Subordinate Officers, Part I. A Savings Clause under Rule 9 of the Special Rules, 2010 provides that nothing contained in those Rules shall adversely affect any person holding the post on the date of issue of the said rules. The Special Rules, 2010 in its annexure under Rule 4(b) has provided for the qualification to the post of Assistant Director of Geology and Mining. The same is extracted as follows:

Post	Method of appointment	Qualification
(1)	(2)	(3)
Assistant Director of Geology and Mining	(i) Recruitment by transfer from among the holders of the post of Assistant Geologist in the Tamil Nadu Geology and Mining Subordinate Service. (ii) Direct recruitment.	(1) A Post Graduate Degree in Geology or a Bachelors' Degree in Geology; (2) Service for a period of not less than three years in the post of Assistant Geologist in respect of Bachelors' degree holders not less than eight years of service in the Department of Geology and Mining out of which, three years in the post of Assistant Geologist; and (3) Must have passed the Account Test for Executive Officers or the Account Test for Subordinate Officers, Part-I. (1) A Post Graduate Degree in Geology; and (2) Experience in field work including mapping and prospecting for a period of not less than three years.

8.6. During 2016, the Government vide G.O.Ms.No.43, Industries (E1) Department dated 29.02.2016, effected amendment to the Special Rules, 2010. The aforesaid amendments came into force on 29.02.2016 and Rule 6 of the Special Rules, 2010 was duly amended. The aforesaid amendment is extracted as follows:

"AMENDMENTS

In the said Special Rules:-

(1) for rule 6, the following rule shall be substituted, namely,-

“6.Test - (a) Every person appointed to the post of Assistant Director of Geology and Mining by direct recruitment shall, within the period of his probation, pass the following tests, namely:-

(i) District Office Manual;

(ii) Account Test for Subordinate Officers, Part-I,

(iii) Account Test for Executive Officers;

(iv) Test under the Mines and Minerals (Regulation and Development) Act, 1957 and Mineral Concession Rules,1960; and

(v) Criminal Judicial Test Part I and II

(b) Every person appointed to the post of Drilling Engineer and Senior Chemist by direct recruitment shall, within the period of his probation, pass the Account Test for Executive Officers or the Account Test for Subordinate Officers, Part-I”;

(2) In the Annexure for the entries in item (3), in column (3), against the post “Assistant Director of Geology and Mining” in column (1) and against the method of appointment “(i) Recruitment by transfer from among the holders of the post of Assistant Geologist in the Tamil Nadu Geology and Mining Subordinate Service” in column (2), thereof, the following entries shall be substituted, namely:-

“(3) Must have passed,-

(i) District Office Manual;

(ii) Account Test for Subordinate Officers, Part-I;

(iii) Account Test for Executive Officers;

(iv) Test under the Mines and Minerals (Regulation and Development) Act, 1957 and Mineral Concession Rules, 1960; and

(v) Criminal Judicial Test Part I and II”.

9. Crux of the issue:

Under such circumstances, the 6th respondent's temporary appointment to the post of Assistant Geologist in the Department of Geology and Mining and consequent temporary promotions to the post of Assistant Director and Deputy Director in the Department of Geology and Mining, were made despite the coming into force of Special Rules, 1998 and Special Rules, 2010, governing the services of Assistant Geologist, Assistant Director and Deputy Director respectively. Thus, the pertinent questions which have to be decided by this Court, in the fact and circumstances of the temporary appointment of the 6th respondent as Assistant Geologist and his consequent promotions for two times temporarily to the post of Assistant Director and Deputy Director of the Department of Geology and Mining are as follows:

(i) Whether the appointment of the 6th respondent is violative of the statutory provisions, thereby making him a usurper of public post

(ii) Whether a Writ of Quo Warranto be maintainable in case of temporary appointments

(iii) Whether both the writ petitions are vitiated by malafides

10. Analysis:

10.1. The Special Rules called the Tamil Nadu Geology and Mining Subordinate Service Rules came to be constituted in the year 1998, vide G.O.Ms.No. 55, Industries (E1) Department dated 27.02.1998. It is only after the constitution of the aforesaid Special Rules exclusively for the Subordinate Services in the Department of Geology and Mining, the appointment of the 6th respondent and six others came to be made. The appointing authority of the Department of Geology and Mining, that is, the Director of Geology and Mining on 21.09.2000 appointed the 6th respondent along with six others temporarily, who were selected in the direct recruitment process for the post of Assistant Geologist conducted by the Tamil Nadu Public Service Commission.

10.2. One of the method of appointment as mandated by Rule 2(a) of Special Rules, 1998 to the post of Assistant Geologist is obviously by direct recruitment. The prescribed qualification for the post of Assistant Geologist is B.Sc. or M.Sc. degree in Geology of any university. The 6th respondent duly completed his B.Sc. degree in Geology from V.O.Chidambaranar College, Thoothukudi, Madurai Kamaraj University in the year 1984 and qualified in M.Sc. degree from the same college in the year 1986.

10.3. Hence, it can be fairly concluded that the petitioner possessed the required qualification as mandated by Special Rules, 1998 and he was recruited by direct recruitment which was called for through the Tamil Nadu Public Service Commission. Though the method of selection of the 6th respondent along with six other candidates came to be made by the appointing authority in terms of the Special Rules, 1998, all the selected candidates including the 6th respondent were temporarily appointed instead of being appointed in a permanent post. Further, the said appointment order dated 21.09.2000 made it clear that the said candidates are liable to be ousted from service without prior notice and assigning any reasons.

10.4. Accepting the said appointment order, the 6th respondent and others duly joined service in the temporary appointment to the post of Assistant Geologist in the Department of Geology and Mining. Though the seven candidates including the 6th respondent were recruited directly to the cadre of Assistant Geologist by the Tamil Nadu Public Service Commission, the appointing authority issued appointment order dated 21.09.2000 under Rule 10(a)(1) for the Tamil Nadu State and Subordinate Service. Once a person though appointed in a substantive post, but temporarily, in that case automatically it could be inferred that such person has not been appointed in the permanent cadre post of the Department. Likewise, even in the instant case, all the selected seven candidates including the 6th respondent who were recruited directly by the recruitment process of the Tamil Nadu Public Service Commission, the Director of Geology and Mining had appointed those selected candidates temporarily, on the condition that they are liable to be ousted from service without prior notice and assigning any reasons. However, it is pertinent to mention here that the said appointment order did not specify the duration of the appointments.

10.5. Rule 10 of the Tamil Nadu State and Subordinate Service Rules (TNSSR) reads as below:

"10. Temporary Appointments: (a)(i) (1) where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualifications prescribed to the post otherwise than in accordance with the said rules.

....

(iii) A person appointed under clause (i) shall be replaced as soon as possible by a member of a service or an approved candidate qualified to hold the post under the rules, and in any case, he shall not be continued for a period of more than one year from the date of his temporary appointment;

..

(v) A person appointed under clause (i), (ii) or (iv) shall not be regarded as a probationer in such service, class or category. The services of a person appointed under clause (i), (ii) or (iv) shall be liable to be terminated by the appointing authority at any time without notice and without any reason, being assigned.”

10.6. A careful reading of the aforesaid Rule would make us understand that, whenever an exigency has arisen for the appointing authority to fill up a vacancy in a post borne on the cadre of a service immediately, in that case the appointing authority may temporarily appoint a person who possess the qualifications prescribed to the post. However, in the instant case, the mode of selection and the method of the recruitment process for the said appointment was duly conducted in terms of Special Rules, 1998.

10.7. It is needless to state that the 6th respondent possessed the requisite qualification as mandated by the Special Rules, 1998 and the method of recruitment by which he was recruited directly by the Tamil Nadu Public Service Commission was also in accordance with the Special Rules, 1998. However, instead of appointing all the seven selected candidates in a permanent cadre post of Assistant Geologist, the appointing authority had effected the appointments temporarily under Rule 10(a)(1) of TNSSR.

10.8. Though Rule 10(iii) mandates that a person appointed under 10 (a)(1) of TNSSR shall be replaced within a period of one year from the date of his temporary appointment with an approved candidate qualified to hold the post under the Rules, the appointing authority had permitted the 6th respondent and all the other candidates to continue in service beyond a period of one year. Obviously, since the 6th respondent and the other selected candidates possess the requisite qualification and also since their mode of selection was also in terms of the Special Rules, 1998, it cannot be said that those selected candidates will not fall under the category of “an approved candidate” as required under TNSSR. However, the only part is that they were appointed under Rule 10(a)(1) of TNSSR instead of being appointed permanently by the appointing authority. That apart, in terms of Rule 10 (v), the persons appointed under 10(a)(1) cannot be regarded even as a probationer in such service, class or category. No doubt the appointment order itself makes it clear in terms of Rule 10 (v) that the appointing authority can at any time without notice and without assigning any reason terminate the services of the 6th respondent including the other selected candidates.

10.9. However, they were neither terminated nor made permanent by the appointing authority instead they were allowed to continue in the post of Assistant Geologist till their temporary promotion to the post of Assistant Director in the Department of Geology and Mining. Since the duration of appointment to the post of Assistant Geologist is not specifically mentioned in the aforesaid appointment order, this Court is of the considered view that there is no illegality for the 6th respondent and others to have continued in the temporary post of Assistant Geologist since they are protected under Article 310 of the Constitution of India. Part XIV of our Constitution deals with “Services under the Union and the States”. Articles 310 and 311 are two of the Articles which have been grouped under the heading “Services” in Chapter I of Part XIV which deals with the services under the Union and the States. The Honourable Apex Court in the case of Parshotam Lal Dhingra .Vs. Union of India reported in Manu /SC/0126/1957 by its order dated 01.11.1957 has dealt with the case of service reversion of a signal and Telecommunication Engineer, in which the scope of Article 310 and 311 of the Constitution of India and the various kinds of appointments have been discussed and the relevant portion of the same which is applicable to the facts and circumstances of this case is extracted as follows:

“17. ..... Due to rush of business or other exigencies some “temporary posts” are often created. A temporary post is defined in r. 9(30) to mean a post carrying a definite rate of pay sanctioned for a limited time. These temporary posts are very often outside the cadre and are usually for one year and are renewed from year to year, although some of them may be created for a certain specified period. The conditions of service of a Government servant appointed to a post, permanent or temporary, are regulated by the terms of the contract of employment, express or implied, and subject thereto, by the rules applicable to the members of the particular service.

18. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period.....

19. .....An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service.”

10.10. Article 310 deals with tenure of office of persons serving the Union or a State. Under the pleasure doctrine, a servant of the Government holds office during the pleasure of the Sovereign. But in order to protect a servant against political interference Article 311 introduces safeguards. Article 310 of Constitution of India for the sake of clarity is extracted as follows:

“Article:310. Tenure of office of persons serving the Union or a State

(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 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 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 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.”

10.11. Thus, it is clear that under Article 310, public servants hold their office during the pleasure of the President or the Governor, as the case may be. Article 310 deals with tenure of office of persons serving the Union or a State. Thus under the pleasure doctrine, a servant of the Government holds office during the pleasure of the sovereign. In the instant case, it is pertinent to keep in mind that, though the 6th respondent has been appointed temporarily under Rule 10(a)(1) of TNSSR, to the post of Assistant Geologist, the period of appointment is not specified anywhere in the said appointment order. Obviously the power of appointment is vested with the State Government and since the 6th respondent's appointment continues without any tenure or term, as discussed elaborately his appointment has also been made in accordance with the Special Rules, 1998, I am of the considered opinion that there is no illegality for the 6th respondent to have continued in the post of Assistant Geologist in which he was temporarily appointed till the date of his temporary promotion to the post of Assistant Director of the Department of Geology and Mining, at the pleasure of respondents 1 to 4. An appointing authority who has the power to appoint has absolute discretion in the matter and it cannot be said that discretion to appoint does not include power to appoint on temporary basis.

10.12. However, an appointment which is temporary remains temporary and does not become permanent with passage of time. In the event of non-specification of a stipulated maximum period of appointment to the post of Assistant Geologist by the appointing authority while appointing the 6th respondent temporarily as Assistant Geologist, invoking the doctrine of pleasure under Article 310(1), I am of the considered view that the 6th respondent was allowed to continue in the Office of Assistant Geologist at the pleasure of the Governor of the State for the period from 2000 till 2007, that is, till 25.07.2007, the date of his temporary promotion to the post of Assistant Director of the Department of Geology and Mining.

10.13. Conferment of title to an office makes the said post substantive. A person who holds a substantive post, though temporarily, has a right to continue in service, subject to the rules of service and superannuation, in terms of his appointment order. His service is protected under Article 311(2) of The Constitution of India, even though his appointment and promotions have been made temporarily, since his appointment was done in a regular recruitment process and appointment order issued without mentioning the period of appointment as mandated by Special Rules, 1998. It is difficult to understand on what criteria the appointing authority appointed those qualified candidates selected by a regular direct recruitment process in the substantial post of Assistant Geologist temporarily and thereafter promoted the qualified candidates temporarily to the substantial posts of Assistant Director and Deputy Director respectively.

10.14. The respondents 1 to 4 have declared that the 6th respondent is meritorious, capable, efficient and honest in discharge of his official duties by filing an elaborate affidavit and by proactively fighting the case of 6th respondent to save his skin by emphatically defending his appointment and promotion before this Court. I condemn the callousness of the official respondents 1 to 4 for having appointed candidates selected through a direct recruitment process in substantial posts temporarily and for having allowed them to continue in service temporarily till they were further promoted twice temporarily at their pleasure without declaring their probation and without accommodating them into the permanent cadre structure of Department of Geology and Mining. I have no hesitation to hold that the appointment order dated 21.09.2000 and the consequent promotion order dated 25.07.2007 and 15.02.2016 respectively obviously violate the Constitutional guarantee afforded by Article 311(2) of the Constitution of India, infringing the Constitution protection guaranteed to those appointees under Article 14 & Article 311 of the Constitution of India. Article 311 is a constitutional protection given to Government servants, who have title to office against their arbitrary and summary dismissal.

10.15. Having conducted the direct recruitment process for the post of Assistant Geology as mandated by Special Rules, 1998, while issuing appointment order invoking Doctrine of Pleasure the selected candidates were appointed under Rule 10(a)(1) of TNSSR by the 4th respondent on 21.09.2000. An employee employed under Rule 10(a)(1) of TNSSR cannot be even considered as a probationer as per Rule 10(a)(1)(iii) of TNSSR. As such even without giving opportunity to those appointees by issuing fresh appointment orders on completion of a period of 1 year, thereby facilitating them to be accommodated in the permanent cadre structure of the Department of Geology and Mining as per Special Rules, 1998, thereby allowing them to complete probation and be absorbed permanently in the post of Assistant Geology, they were allowed to continue temporarily in the said post till few of them were further promoted temporarily as Assistant Directors and then promoted temporarily as Deputy Directors. The requisition letter of the 4th respondent dated 06.02.2016 would reveal, not only the tale of 1 or 2, but more than 48 officers who were allowed to serve temporarily in similar lines and most of them have already retired with full service benefits and few of them like 6th respondent are still continuing in service. Interestingly the temporary promotions to the 6th respondent and others vide G.O.(2D)No.68 and G.O.No.20 make it clear that no permanent employees have been recruited to the various A and B group cadre post in the Department of Geology and Mining, after its formation since 1983.

10.16. Having exploited the unblemished service of A, B & C group employees who were selected through a proper Direct Recruitment process for years together by allowing them to serve in various substantial posts temporarily and continuously without accommodating them in the permanent cadre structure of the various substantial posts of the Department of Geology and Mining at their pleasure, the respondents 1 to 4 are also bound to protect their service as guaranteed under Article 310 read with Article 311 of the Constitution of India. No doubt, the State do have the power to make an appointment including power to make appointment on substantive basis, temporary or officiating basis, adhoc basis, on daily wages or contractual basis, but the same is not unfettered. Power to make appointment under the pleasure of the State, is not necessarily to be assumed to be a power to discriminate unlawfully.

10.17. In the instant lis, by selecting candidates by direct recruitment as per the provisions of Special Rules, 1998, the 4th respondent flouting the said rules, issued an appointment order to the post of Assistant Geologist under Rules 10(a)(1) of TNSSR to 7 appointees including the 6th respondent. Further flouting Rule 10(a)(1) of TNSSR, the 4th respondent allowed the temporarily recruited Assistant Geologists to be in service till 2007, until promoting them as Assistant Directors temporarily. Thereafter, flouting the Special Rules 2010, 6th respondent and others were allowed to continue as Assistant Directors till they were further promoted as Deputy Directors on 15.02.2016. The respondents validated the temporary promotions by exempting the 6th respondent and others who were temporarily promoted prior to 25.07.2007 from qualifying in Account Tests as mandated by Special Rules, 2010, by rescuing themselves helplessly under the savings clause in Rule 9 of the Special Rules, 2010, which is applicable to the permanent employees and not the temporary employees. Thus, respondents 1 to 4 at their pleasure by their power to exercise discretion ended up, not only in discriminating the 6th respondent and others appointees / promotees at the various echelons of the cadre structure of the Department of Geology and Mining by compelling them to continue in service temporarily but also denied their right to be appointed / promoted in the permanent Group A & B cadre posts in the said department endlessly, giving way to an absolute abuse of power, despite extracting their unblemished service for years together. Hence, the respondents 1 to 4 bound by the protection guaranteed to 6th respondent & others under Article 311 of Constitution of India are at the primordial duty to validate their service and superannuation as guaranteed under Article 14 of the Constitution of India. Since the appointment order / Promotion orders issued to 6th respondent & others who were directly recruited in a regular selection process, in its very nature violates the Constitutional guarantee afforded to them by Article 311 (2) of the Constitution of India, under such circumstances, R1 to R4, that is, the appointing authority and the State, at whose pleasure such appointments are made, are bound to protect the conditions of service and superannuation of such employees.

10.18. The Honourable Supreme Court of India in the case of B. Srinivasa Reddy .Vs. Karnataka Urban Water Supply and Drainage Board Employees' Association and others reported in Manu/Supreme Court/ 8454/2006 by its judgment dated 28.08.2006 has dealt with the case of quo warranto and the portion which is relevant to the facts and circumstances of this case is extracted as follows:

“29. It is settled law by a catena of decisions that Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses prescribed qualification and is otherwise eligible for appointment.”

10.19. In the instant case, the 6th respondent and the other six candidates selected along with him in the direct recruitment process of the Tamil Nadu Public Service Commission for the post of Assistant Geologist possess prescribed qualification in terms of Special Rules, 1998 and their selection was also duly made only in terms of Special Rules, 1998. Their lordships of the Honourable Supreme Court have further held in the aforesaid B.Srinivasa Reddy case that in service jurisprudence it is settled law that it is for the aggrieved person that is the non-appointee to assail the legality or correctness of the action and that third party has no locus standi to canvas the legality or correctness of the action. In the instant case, both the writ petitioners cannot be categorized as non-appointees to the post of Assistant Geologist and in terms of the judgment of the Honourable Apex Court discussed supra obviously the writ petitioners herein cannot be held as an aggrieved party who had been a candidate for the said post.

10.20. It is categorically contended by the learned Senior counsel, Mr.Sricharan Rangarajan for the petitioners that while the 6th respondent could not even have been continued as an employee in the Department beyond 2001, he was further promoted to the post of Assistant Director of the Department of Geology and Mining, vide G.O.(2D)No. 68, Industries (E1) Department, dated 25.07.2007, temporarily. He insisted that though such temporary promotion has been made under Rule 39 of TNSSR, the same had been done without meeting out the condition precedent to invoke the said Rule 39. Having served in the post of Assistant Geologist temporarily from 21.09.2000, the 6th respondent along with 20 others were temporarily promoted vide G.O.(2D)No. 68, dated 25.07.2007 and further the 6th respondent along with 10 others were temporarily promoted and appointed as Deputy Directors of Geology and Mining under General Rule 39(a)(i) for TNSSR.

10.21. Rule 39 of TNSSR reads as follows:

“39. Temporary promotion - (a) (i) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from lower category and there would be undue delay in making such promotion in accordance with the rules, the appointing authority may temporarily promote a person, who possesses the qualifications prescribed for the post, otherwise than in accordance with the rules.

....

(c) A person temporarily promoted under sub-rule (a) shall be replaced as soon as possible by the member of the service, who is entitled to the promotion under the rules.

.....

(e) A person promoted under sub-rule (a) (b) or (d) shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category. The services of a person promoted under sub-rule (a) (b) or (d) shall be liable to be terminated by the appointing authority at any time without notice and without any reason being assigned.

(f) (i) A person promoted under sub-rule (a) or (d) shall commence his probation if any, in such category either from the date of his temporary promotion or from such subsequent date as the appointing authority may determine;

Provided that on the date so determined, the person possesses all the qualifications prescribed for promotion to the service, class or category, as the case may be...”

10.22. It is the specific contention of the learned Senior counsel, Mr. Sricharan Rangarajan for the petitioners that, Rule 39 could only be invoked in public interest, yet, no such reference to public interest has been reflected in G.O.(2D)No.68, dated 25.07.2007. That apart, pointing out that Rule 39 merely provides a relaxation of procedure for appointment on account of emergency and public interest and does not relax the qualification criteria required of a person to be so temporarily promoted, the learned Senior counsel insisted that the 6th respondent was ineligible to be considered for regular promotion to the post of Assistant Director in view of lack of satisfying the qualifications enumerated under Special Rules, 2010. Obviously, none of the promotees including the 6th respondent to the post of Deputy Directors of the Department of Geology and Mining possessed the Additional qualification which was mandated under Special Rules, 2010, that the candidates must have passed a District Officer's manual, Account Test for Subordinate Officers, Part I, Account test for Executive Officers, Test under the Mines and Minerals (Regulation and Development) Act, 1957 and Mineral Concession Rules, 1960 and Criminal Judicial Test, Part I and Part II.

10.23. The respondents 1 to 4 have filed their counter affidavit and the learned Additional Advocate General, Mr.P.Veerakathiravan submitted that the Special Rules framed in G.O.Ms.No. 157 dated 12.11.2010 stipulates that an Assistant Geologist eligible for promotion to the post of Assistant Director of Geology and Mining should clear Account Test for Executive Officers or the Account Test for the Subordinate Officers, Part I. But the aforesaid departmental qualification for the promotional post of Assistant Director was introduced for the first time under the Special Rules, 2010. In other words, the passing of Account Test was not the one of the essential qualifications for promotion to the post of Assistant Director until 12.11.2010, that is, the date of G.O.Ms.No.157. Admittedly, the 6th respondent was promoted as Assistant Director of Geology and Mining on 25.07.2007 in accordance with Special Rules, 1998, which did not prescribe any qualification of clearing of Account Test for promotion to the post of Assistant Director. Hence, the promotion of the 6th respondent to the post of Assistant Director in terms of qualifications prescribed in the Special Rules, 1998 does not suffer from any infirmity whatsoever. He further insisted that the 6th respondent has satisfied and possessed all eligible service qualification for the promotional post of Assistant Director as prescribed under Special Rules, 1998.

10.24. The additional qualification of clearing of Account Test for the post of Assistant Director was introduced only under Special Rules, 2010. Hence, the additional service qualification of clearing of test introduced under Special Rules, 2010 for a promotional post does not apply to the persons who were already promoted prior to the introduction of the Special Rules, 2010. The learned Additional Advocate General further drew my attention that, the 4th respondent had forwarded a proposal on 01.03.2015 to the Government explaining the Government that, the Assistant Geologists who have been promoted under Special Rules, 1998 to the post of Assistant Director have been covered under Rule 9 of the saving clause of the Special Rules and hence, sought for exemption from clearing of Account Test to hold the post of Assistant Director. The learned Additional Advocate General further made it clear that, the State Government upon considering the proposal of 4th respondent, by order dated 06.02.2016 has declared that the Assistant Geologists and other persons in the Department of Geology and Mining promoted to the post of Assistant Director prior to 12.10.2010 are exempted from clearing Account Test qualification and their services are covered by Rule 9 of the Saving Clause adumbrated under Special Rules, 2010.

10.25. However, the learned Additional Advocate General did not produce the aforesaid proposal of the 4th respondent dated 01.03.2015 and the aforesaid declaration of the Government dated 06.02.2016. Interestingly, the same was produced before me by the petitioners. The relevant portion of the aforesaid clarification issued by the Government dated 06.02.2016 is as follows:

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The said clarification can be fairly translated as follows for clarity:

“The government after careful consideration of the request of the Commissioner of the Department of Geology and Mining, accepting the said request, in view of regularizing the temporary promotions accorded to the employees of the Department of Geology and Mining, hereby direct those employees who have not duly qualified in the Account Test, within a period of two years from the date of this clarification letter, provided those employees who were promoted to the post of Assistant Directors prior to the Constitution of the Special Rules, 2010 alone, are exempted under the savings clause 9 of the Special Rules, 2010 from qualifying the Account Test.”

10.26. At this point the learned senior counsel Mr. Sricharan Rangarajan appearing for the petitioners vehemently submitted that, the proposal for exemption dated 01.03.2015 and the acceptance of the Government dated 06.02.2016 only evidence to the fact that, the Savings Clause under Rule 9 of Special Rules, 2010 will be applicable only to the regular promotees and that the temporary promotees were granted a temporary relaxation, that is, temporary promotees were to clear the Account Test within two years from the date of receipt of Government letter dated 06.02.2016. Hence, putting pressure on the fact that none of the respondents can seek any protection under the said Government letter in the absence of the 6th respondent having passed such qualifying test the learned senior counsel pressed for allowing the writ petition by issuing a writ of quo warranto.

10.27. However, this Court is of the considered view that such an interpretation given by the learned senior counsel Mr. Sricharan Rangarajan to the Government clarification letter dated 06.02.2016 is not sustainable. A careful reading of the requisition letter of the 4th respondent dated 01.09.2015 will cull out certain significant facts necessary for the adjudication of this case. The 4th respondent elaborated the Rule position under Special Rules, 2010 that those employees who were promoted from the post of Assistant Geologists to the post of Assistant Directors ought to have passed the Account Test as mandated under Rule 6(a) of the Special Rules, 2010 as amended under amendment to the Special Rules, 2010, vide G.O.Ms.No. 44 dated 29.02.2016, in the said requisition. The said requisition further elaborated that before the Constitution of the Special Rules, 2010, several employees were promoted to the post of Assistant Directors and Deputy Directors on Ad hoc basis including 8 Additional Directors, 24 Joint Directors, 20 Deputy Directors and 6 Assistant Directors who would comprise a total number of 58 Group A officers who were promoted temporarily on Ad hoc basis without passing the Account Test as mandated under Special Rules, 2010 and conceded that all the aforesaid 58 Group A officers had retired from service receiving their entire monetary benefits. Only in view of the same, the 4th respondent requested exemption from the Government for those serving officers on Ad hoc basis in the post of Assistant Directors and Deputy Directors from qualifying the mandated Account Test under the Special Rules, 2010.

10.28. The clarification letter issued by the Government on 06.02.2016 would made it clear that all those employees who were promoted after the Constitution of Special Rules, 2010 should pass the Account Test mandated under Special Rules, 2010 within 2 years from the date of issuance of the aforesaid letter, that is, from 06.02.2016, thereby exempting only those Group A officers namely Assistant Directors from qualifying in the Account Test as mandated under Special Rules, 2010 who were promoted before 12.10.2010, that is, before the date of Constitution of the Special Rules. However, as far as the argument of the learned senior counsel for the petitioners that neither the said letter nor the Savings Clause would extend to the 6th respondent nor can his temporary promotion be continued in violation of Rule 39 of TNSSR, this Court is of the considered view that neither the 6th respondent nor any other appointees who were appointed along with him to the post of Assistant Geologist at the first instance temporarily or any other promotees who were promoted along with him to the post of Assistant Directors temporarily and further to the post of Deputy Directors temporarily can be held to be the persons without proper qualification or persons recruited improperly. The entire facts and circumstances along with relevant documents placed before this Court would reveal that the 6th respondent possessed appropriate qualification as mandated under the Special Rules, 1998 to be appointed to the post of Assistant Geologist at the first instance and his method of selection was also through direct recruitment by the Tamil Nadu Public service Commission as mandated under the Special Rules, 1998. But the manner in which they were appointed on 21.09.2009 was certainly not in tune with Special Rules, 1998. The learned Senior Counsel's argument that the Savings Clause in Rule 9 of the Special Rules, 2010 is only with respect to permanent appointees and the same by all means can never save the case of temporary appointees like the 6th respondent cannot be negated.

10.29. However, the manner in which the 6th respondent and others were appointed by the appointing authority, that is the Director of Geology and Mining by appointing them temporarily instead of appointing them to the permanent cadre post of Assistant Geologist in the Department of Geology and Mining and the manner in which they were allowed to continue in service for 7 years temporarily has not been explained properly by the Government at any point of time. Since the appointment of the 6th respondent was made under Rule 10(a)(1) of TNSSR, he cannot even be considered as a probationer. However, this Court has cautioned more than one time that the appointment order of the 6th respondent dated 21.09.2000 do not specify the period of temporary appointment. Hence, it is needless to state that the 6th respondent had remained in the service of Assistant Geologist from 21.09.2000 till 25.07.2007 on the pleasure of the Government of Tamil Nadu and further he was temporarily promoted to the post of Assistant Director on 25.07.2007 and consequently promoted to the post of Deputy Director on 15.02.2016 and is continuing in the aforesaid post temporarily at the pleasure of the Government of Tamil Nadu. Though the Government, vide G.O.(2D)No.68, dated 25.07.2007 and G.O.Ms.No. 20, dated 15.02.2016 has promoted the 6th respondent to the post of Assistant Director and Deputy Director respectively, in both those promotion orders, it has been made clear that the aforesaid temporary appointments will not confer any preferential rights on the 6th respondent and others who were promoted to the aforesaid posts whatsoever at the time of regular appointment with reference to the Special Rules constituted in the Government Order in G.O.Ms.No.157, dated 12.11.2010, that is, the Special Rules, 2010.

10.30. Hence, a careful reading of both the aforesaid Government Orders would reveal that the Government has never ever made any regular appointment in the permanent cadre posts of the Department of Geology and Mining in terms of the Special Rules in G.O.Ms.No.157, dated 12.11.2010, since the formation of a separate Department of Geology and Mining, vide G.O.Ms.No.387, dated 24.03.1983, till 15.02.2016. As far as the question of judicial review is concerned, whether the incumbent possessed the qualification for appointment and the manner in which the appointment came to be made or the procedure adopted whether fair, just and reasonable, the exercise of judicial review is to protect the citizen from the abuse of power, etc., by an appropriate Government or Department, etc. In the instant case, exercising the power of appointment, seven candidates including the 6th respondent were selected in the direct recruitment process by the Tamil Nadu Public Service Commission for the post of Assistant Geologist in the Department of Geology and Mining and were appointed temporarily to the post of Assistant Geologist. Since it is found that the 6th respondent and others selected were qualified and eligible in terms of the requisite qualification as mandated by the Special Rules, 1998, and the mode of selection was also direct recruitment as mandated by the Special Rules, 1998, I am of the considered opinion that, this Court cannot sit in judicial review as to the manner of appointment by which the appointing authority had appointed the 6th respondent and others temporarily.

10.31. In service jurisprudence, it is settled law that it is for the aggrieved person, that is, the non appointee to assail the legality of the offending action. As such, I have no hesitation to hold that both the writ petitioners as third parties have no locus standi to canvass the legality or correctness of the action. The Honorable High Court of Delhi in the case of Devinder Gupta .vs. Union of India and others in the case reported in Manu / DE / 8113 / 2006 by its judgment dated 07.03.2006 has dealt with the case of quo warranto and the relevant portion of the same is extracted as follows:

“7. It is true that in a writ of quo warranto the question of locus standi is not examined as strictly as in the cases of writs of certiorari or mandamus, as observed in Gadd Venkateswara Rao v. Government of Andhra Pradesh and Ors. MANU/SC/0020/1965 [1966]2SCR172, in which the Supreme Court observed:-

The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.

8. However, in our opinion, this does not mean that anybody can file a petition for writ of quo warranto challenging any appointment on any post in the country even though he may not have any direct connection or grievance or interest in the matter.

9. If we accept the submission of the learned counsel for the petitioner that a petition for writ of quo warranto can be filed by anyone even though he may have no connection with the appointment of the respondent then this Court will be flooded with tens of thousands of petitions challenging all kinds of appointments or elections to various posts. Hence, we cannot accept the submission that in a petition for a writ of quo warranto the question of locus standi cannot be raised at all. As already observed above, the Court no doubt takes a broader view of locus standi in a writ of quo warranto as compared to the writs of certiorari and mandamus, but it is not so broad as to permit anyone to file such a writ. The objection of locus standi can be taken even in a writ of quo warranto.”

10.32. The Honorable Supreme Court of India in the case of B.Srinivas Reddy versus Karnataka Urban Water Supply and Drainage Road Employees' Association reported in 2006 11 SCC 752 in its judgment dated 28.08.2006 has dealt with the case of quo warranto and the relevant portion applicable to the facts of this case is extracted as follows:

“43. Whether a writ of quo warranto lies to challenge an appointment made “until further orders” on the ground that it is not a regular appointment Whether the High Court failed to follow the settled law that a writ of quo warranto cannot be issued unless there is a clear violation of law The order appointing the appellant clearly stated that the appointment is until further orders. The terms and conditions of appointment made it clear that the appointment is temporary and is until further orders. In such a situation, the High Court, in our view, erred in law in issuing a writ of quo warranto the rights under Article 226 which can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus.”

10.33. Though the Honorable Supreme Court in the aforesaid case has held that a writ of quo warranto can be enforced only by an aggrieved persons from the facts and circumstances of that case, in the instant case, the writ petitioners have filed these writ petitions in the capacity of relators. However, this Court is of the considered view that the writ petitioners herein though have filed the writ petitions in the capacity of relators, they have not filed these writ petitions as public interest litigations, but have filed the same in the service matter of the 6th respondent questioning his authority to hold the position of the Deputy Register in the Department of Geology and Mining. Had there been an Iota of public spirit in the minds or in the consciousness of the writ petitioners herein, they would have filed the writ petitions as against the entire list of Deputy Directors who were promoted temporarily to the post of Deputy Directors along with the 6th respondent. Interestingly, neither the 6th respondent nor the respondents 1 to 4 have filed any of the significant official documents especially the request of the fourth respondent dated 01.03.2015 and the copy of Letter No.16 issued by the first respondent to the fourth respondent dated 06.02.2016, but the same were produced by the petitioners herein. Having known the complete details of the various appointees who were appointed temporarily to the post of Assistant Geologist on 21.09.2000 and having known the complete details of the appointees who were promoted to the post of Assistant Directors on 25.07.2007 temporarily in the Department of Geology and Mining and also the details of those promotees who were appointed to the post of Deputy Directors of Geology and Mining on 15.02.2016, the petitioner Association as well as the member of the petitioner Association who has filed W.P. (MD)No.29946 of 2023 have chosen to question the authority of the 6th respondent alone for holding the post of Deputy Director and they have consciously refrained from questioning the authority of the other persons who were appointed and promoted along with the 6th respondent. This itself would prove and speak in volumes as to their intentions which necessarily need not be bona fide as against the 6th respondent in filing this writ petition.

10.34. This Court has also taken note of the appreciation which has been placed by the respondents 1 to 4 as to the honest and outstanding contribution in his various positions contributed by the 6th respondent in the Department of Geology and Mining. This Court has not lost sight to the objection raised by the learned Senior counsel for the petitioners that the Savings Clause in Rule 9 of the Special Rules, 2010 would come to the rescue of only those promotees appointed to the permanent cadre post of Assistant / Deputy Directors and not to those who were appointed temporarily to the post of Assistant / Deputy Directors of the Department of Geology and Mining. However, the writ petitioners have not chosen to challenge the Letter No.16 issued by the first respondent to the fourth respondent dated 06.02.2016 exempting those persons who were promoted and appointed to the post of Assistant Directors on Ad hoc basis relying upon the Savings Clause in Rule 9 of the Special Rules, 2010 as far as clearing Account Test. Reiterating the fact that the 6th respondent and other persons were fully qualified in terms of the Special Rules, 1998 were directly recruited to the post of Assistant Geologist by the Tamil Nadu Public Service Commission fully in accordance to the Special Rules, 1998, I have no hesitation to hold that, it is for the respondents 1 to 4 to explain the manner in which they appointed those incumbents temporarily and allowed them to continue temporarily for seven years and further promoted them temporarily twice. But the learned AAG, Mr.P.Veerakathiravan without elaborately explaining the abuse of the power of appointments by respondents 1 to 4, insisted this Court to decide the case on maintainability alone.

11. Epilogue:

11.1. In the case of Satish Chandra Anand versus the Union of India decided by a five judges constitutional bench of the Honourable Supreme Court of India on 13.03.1953 in a service matter with respect to termination of contract, the Hon'ble Apex Court has held as follows:

“But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound.

When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations Government is, subject to the qualification mentioned above, as free to make special contracts of service with temporary employees, engaged in works of a temporary nature, as any other employer.”

In yet another matter in the case of P. K. Sandhu .vs. Shivraj B. Patil reported in 1997 for SCC 348, their lordships of the Supreme Court have held as under:

“The power to make an appointment includes the power to make an appointment on substantive basis, temporary or officiating basis, Ad hoc basis, on daily wages or contractual basis”.

11.2. The appointment order of the 6th respondent clearly mentioned that the appointment is a temporary appointment. Hence, it is the considered opinion of this Court that, Article 310 of the Constitution of India makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or Governor. Hence, Article 311 will not make any distinction between the two clauses and both the permanent and temporary members of service are within the protection of the aforesaid Article. No doubt though the 6th respondent had been appointed temporarily and thereafter promoted twice temporarily he had remained in service at the pleasure of the Governor and hence, his appointment is protected. Since the 6th respondent has been promoted and appointed temporarily to the post of Assistant Geologist / Assistant Director / Deputy Director of the Department of Geology and Mining at the pleasure of the respondents 1 to 4, he cannot be held to be an usurper without legal authority. Since the temporary appointment of the 6th respondent is within the protection of Article 311 of the Constitution of India and since he had been continuously holding the temporary post of Assistant Geologist / Assistant Director / Deputy Director under the pleasure of the respondents 1 to 4 under Article 310 of the Constitution of India, his authority to hold the said post cannot be questioned, unless removed from service or terminated at the discretion of the appointing authority.

11.3. Thus, on the basis of the above stated analysis, this Court is satisfied that, the petitioners seeking writ of quo warranto have demonstrably failed to establish that the appointment of the 6th respondent Thiru S. Thangamuniasamy in the 5th respondent office is in violation of the Statutory Rules. I reiterate that the 6th respondent is duly qualified as per Rules 5(a) r/w the qualifications tabulated in the Annexure of the Special Rules, 1998. That apart, the method of recruitment was also certainly in accordance of Rule 2(a) of the Special Rules, 1998. However, the manner in which the 6th respondent and others were appointed and the manner in which the 6th respondent and others were promoted twice, is a clear case of abuse of power of appointment by respondents 1 to 4. Though the Savings Clause in Rule 9 of the Special Rules, 2010 cannot save the 6th respondent, he is very well protected under Article 310 and 311 of the Constitution of India.

11.4. The Honourable Supreme Court in a Constitutional Bench Judgment in the matter of Statesman (Private limited versus HRDEB and others) reported in AAR 1968 Supreme Court 1495 has held that in an unclear case, writ of quo warranto should not be issued and observed as under:

“The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of law”.

As a fallout and consequence of the aforesaid discussion, fully obliged by the Constitution Bench Judgment extracted supra, these writ petitions deserve to be dismissed.

12. Accordingly, these writ petitions are dismissed as not maintainable. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.