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Saturday, July 02, 2022

In Tamil Nadu, a High Court order raises questions of judicial overreach

The Madras High Court, on April 28, directed the government to set up a separate Tamil Nadu Administrative Service on the lines of Kerala.

Written by Arun Janardhanan | Chennai |
Updated: May 18, 2022 12:26:47 pm
In his order, Justice M Govindaraj directed the government to form the Tamil Nadu Administrative Service, including all the departments connected to revenue and general administration and the implementation of state policies, as the Kerala government has done.

A Madras High Court direction to the state government to form a separate Tamil Nadu Administrative Service (TNAS) has sparked a debate about judicial interference with the executive.

Tamil Nadu Finance Minister Palanivel Thiaga Rajan and former Madras High Court judge K Chandru have criticised the move, with Rajan, in reply to a tweet, citing it as an example of a fast-eroding distinction between the judiciary and the executive.

Responding to a tweet tagging him and suggesting to consider the Madras HC order, Rajan said on May 14, “Despite merits, we will need a legal opinion on the order.” The order was passed on April 28.

The minister added, “As I have said a few times in the Assembly, files suggest that the separation (in the Constitution) between the roles of judiciary and executive is fast eroding. In a democracy, only elected representatives can frame policy.”

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In his order, Justice M Govindaraj directed the government to form the Tamil Nadu Administrative Service, including all the departments connected to revenue and general administration and the implementation of state policies, as the Kerala government has done.

The court also directed the government to take steps to treat all state-level officers alike and provide equal opportunity to them by making appropriate recommendations to the central government to bring them into TNAS for effective administration.

“We hope that the process will be initiated by the state government within a period of six months,” Justice Govindaraju wrote in the order.

The court passed the order on a writ petition filed by 98 state government officers who contested a 2008 government order rejecting their plea to include the post of joint director and additional director of rural development and panchayat raj department in the state civil services. The petition demanded the inclusion of the posts of assistant director, joint director and additional director in the department within the “deputy collector” bracket and assign these posts the status of “State Civil Services” to promote the eligible among them to the Indian Administrative Service (IAS).

Referring to the government’s “ample powers” to “make amendments to the Special Rules for the Tamil Nadu Civil Service”, the court said, “There is no hard and fast rule that the state government shall follow the definition of Deputy Collector defined during the colonial era.”

Suggesting that the government include senior posts in the state civil services, the court said, “Like Kerala government, all the posts which fall under the state services shall be considered and those who are involved in the general administration of governance shall be included in the state civil service. By a narrow definition of including only the post of Deputy Collector will deprive the government itself from having efficient, energetic and intelligent officers to its better governance.”

The court said there were several posts in Group-I services and Non-Group I services that were equivalent to the Deputy Collector post but not included in the category. “…only because they were not included in the definition of Deputy Collector or District Revenue Officer in the Special Rules for the Tamil Nadu Civil Service, they were not considered for appointment as a Member of Indian Administrative Service. The persons holding higher responsibilities and drawing highest basic scale of pay and discharging very sensitive and important duties, should need to wait for two or three decades for becoming the members of Indian Administrative Service, whereas, the person who is appointed into a lower rank of Revenue Department with lesser qualifications and lesser intelligence under fortuitous circumstances admitted to Indian Administrative Service within a short span of eight to ten years after having included into State Civil Service,” read the order.

While the state government told the court that Rule 5 in Special Rules for Tamil Nadu Civil Service includes certain posts under the definition “deputy collector” and the plea for inclusion cannot be accepted without amending the rules, the central government said if the state government recognised such posts for inclusion it could approve the move.

But Justice (retired) Chandru said the idea to bring a Tamil Nadu Administrative Services was all about a cosmetic change. “When there is a legislative rule in Tamil Nadu, and everything including promotion, avenues, recruitments, qualifications, actions to be initiated against, are all governed by rules, the court cannot give directions to make or change a law,” he said, referring to the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

Government officers are classified under different grades and persons belonging to a particular grade are entitled to be considered for IAS based on the distribution ratios between direct recruits and conferred IAS. Each state is given a quota by the Centre — around 20 per cent goes to the state cadre in Tamil Nadu — and it is the Personnel and Administrative Reforms department that decides who would be conferred the IAS rank. The Tamil Nadu Public Service Commission (TNPSC) is also consulted during the process.

Justice (retired) Chandru said that when each wing of the government should be working within itself, and cannot cut across another wing, parameters under which an institution functions can only be within the constitutional distribution of power. “It is not as if there is no promotion, there is always… The idea of Tamil Nadu Administrative Services is only a cosmetic recommendation. Already there is a procedure, and there are two services — Tamil Nadu State Services and Tamil Nadu State Subordinate Service. So the legislative and executive powers of the government are being taken over by the judiciary with an order. It has no legal basis,” he added.

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