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Apro case affidavit in mhc

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

(SPECIAL ORIGINAL JURISDICTION)

 

W.P.NO.                                         OF 2022

Srinivasa Masilamani,

S/o. Masilamani,

No.29/24, Durga Colony,

Senthangudi,

Mayiladuthurai – 609 001                                                                                                                   Petitioner

 

Versus

 

  1. The State of Tamil Nadu,

Rep. by its Principal Secretary to Government,

Tamil Development and Information Department,

Secretariat, Fort St.George,

Chennai – 600 009

 

  1. The Director of Information & Public Relation,

Secretariat, Fort St.George,

Chennai – 600 009

 

  1. The Secretary,

Tamil Nadu Public Service Commission,

Park Town,

Chennai – 600 003                                                                                                                      Respondents

AFFIDAVIT OF SRINIVASA MASILAMANI

I, Srinivasa Masilamani, S/o. Masilamani, Hindu, aged about 31 years, residing at No.29/24, Durga Colony, Senthangudi, Mayiladuthurai – 609 001, now temporarily come down to Chennai, do hereby solemnly affirm and

sincerely state as follows:

  1. I am the Petitioner herein and I am well acquainted with the

facts of the case.

Page No.1 corrns

  1. I submit that I have completed BBA from Bharathidasan

University in the year 2012 and MBA from Anna University in the year 2014.  I belong to Most Backward Class (MBC) community.  Further, I am having experience as Controller of Examinations (Admin) in AVC Polytechnic College for the period from 2018 till March 2021. Having experience in public relations, I am aspiring for appointment to the post of Assistant Public Relations Officer (Publicity) in Tamil Development and Information Department.

  1. I submit that presently I am constrained to challenge the orders

issued by the Government in G.O.Ms.No.102 Tamil Development and Information Department dated 01.08.2022 as per which the qualification for the post of Assistant Public Relation Officer (APRO) has been revised contrary to Service Rules and further the recruitment to the post of APRO is sought to be brought under the purview of Tamil Nadu Public Service Commission (TNPSC) in violation of the salient principles laid down in Constitution of India.

  1. I submit that the post of Assistant Public Relation Officer remains to be a key post for public relations in Information and Tourism Department, presently Tamil Development and Information Department. As per G.O.Ms.No.24 Information, Tourism Department dated 07.01.1982 adhoc rules for the post of APRO(P) framed as per which the appointment to the post of APRO(P) can be made by direct recruitment or by recruitment by transfer from the Assistants (now Assistant Section Officer) in Tamil Nadu Secretariat Service. The qualification for the post is prescribed as below:

 

Methods of appointment Qualifications
1. Direct recruitment (i)      A degree

(ii)    Experience in Public Relations for a period not less than two years

Provided that other things being equal, preference shall be given to those who possess a Diploma in Journalism or Communication or Public Relations.
2. Recruitment by transfer Service      as Assistant               in the Tamil Nadu

Secretariat Service for a period of not less than three years.

 

The appointing authority for the post shall be the Director of

Information and Public Relations, Madras.

  1. I submit that subsequently, based on the orders passed by Tamil Nadu Administrative Tribunal, Government issued orders in G.O.Ms.No.51 Information & Tourism Department dated 22.03.1996 amending the adhoc rules to provide promotional avenues to the departmental candidates for

appointment as APRO(P). The amended adhoc rules provides for

appointment to the post (i) Direct recruitment, (ii) by recruitment by transfer from Upper Division Accountant in the Tamil Nadu Secretariat Service (iii) by promotion from Journal Assistant or Care Taker or Receptionist or Cinema Operator or by recruitment by transfer from the post of Assistant or Accountant in the Tamil Nadu Ministerial Service.  For direct recruitment, a degree and experience in Public Relations for a period not less than two years

and for other methods of appointment, minimum general educational

qualification and experience in the respective category for not less than five years have been prescribed.

  1. I submit that considering the nature of job and duties and responsibilities attached with the post of APRO(P), it is felt that only Graduates could discharge the works attached to the post effectively and efficiently, Government issued orders in G.O.Ms.No.141 Information and Tourism Department dated 27.09.2001 amending the adhoc rules prescribing degree qualification as minimum academic qualification for other methods of appointment also in the case of direct recruitment. Thereafter, the adhoc rules

for the temporary post of APRO(P) has been further amended vide notification issued in G.O.Ms.No.220 Tamil Development and Information Department dated 22.11.2017 duly published in the Government Gazette dated 20.12.2017 prescribing pattern of appointment following rotation between direct recruitment, promotion and by transfer as well as the method of appointment with qualification. The qualification for the post of APRO(P)

to be filled up by direct recruitment is extracted as below:

Method of appointment

(1)

 Qualifications

(2)
1. Direct recruitment (i) Must hold a Bachelor’s Degree of any university recognized by the UGC for the purpose of its grants
(ii) Experience in Public Relations for a period of not less than two years
(iii) Knowledge         of         Computer          and

Typewriting both in Tamil and English is preferable.

A person appointed as APRO(P) will be considered for promotion to the post of APRO(Information) on completion of necessary training and he will be further considered for promotion Public Relations Officer (PRO).

  1. I submit that the post of APRO(P) to be filled up based on selection conducted by Directorate of Information and Public Relations, Government of Tamil Nadu and it does not fall under the purview of Tamil Nadu Public Service Commission considering the nature of the job and duties and responsibilities attached to the post which requires flexibility in working

hours as Field Worker without leave even on declared holidays of the Government.  It does not remain to be a post assigned with duties and responsibilities referable to a regular Government servant. It involves constant works in the matter of public relations without any timeline or

prescribed working hours. The nature of work involves making arrangements for conducting Government functions, Art and Cultural programmes, publicity for all the Government functions, departmental programmes, collecting data for development works and bringing the

achievements of the Government to the general public, submission of reports on collection of details from the media every day, collection of information regarding Central Government and State Government schemes and other innumerable works.  The duties and responsibilities for the post of APRO(P) as given in the Training Manual enclosed in the typed set of papers would

disclose the enormity works assigned to the post.

  1. I submit that I am fully qualified for appointment to the post of APRO(P) with reference to educational qualification and experience. I am aspiring to participate in the selection to be conducted by the Directorate of Information and Public Relation, Government of Tamil Nadu for

appointment to the post of APRO(P).

  1. I submit that whereas, the State Government issued orders in

G.O.Ms.No.102 Tamil Development and Information Department dated 01.08.2022 revised the qualification for the post of APRO(P) contrary to the qualification as prescribed in the Service Rules and further directed that the post of APRO(P) is brought under the purview of Tamil Nadu Public Service Commission.  The Government order reads that a Committee has been constituted to prescribe qualification for the post of APRO(P) by direct recruitment based on the advancement in the media and technology and the need of public relation and advertisement; as per the report of the Committee in consultation with TNPSC, it is desired to revise the qualification for the

post of APRO(P) and to fill up the post of APRO(P) through TNPSC.

  1. I submit that the post of APRO(P), APRO(I) as well as PRO are not falling within the purview of TNPSC and the vacancies to the posts have been filled up by the Directorate of Information and Public Relations, Government of Tamil Nadu by conducting selection in accordance with qualification and method of appointment prescribed under the service rules. The post of APRO(P), considering the nature of job as well as duties and responsibilities attached to the post differs from usual condition of service assigned for a Government servant and thereby recruitment of post cannot be brought under the purview of TNPSC. Any post that is brought under the purview of TNPSC relates to method of recruitment, disciplinary matters as well as other claims attached to the post.  The normal rules applied to the Government servant coming under the purview of TNPSC cannot be

imposed against the post of APRO(P).

  1. I further submit that any prescription of qualification at the

instance     of                  State                 Public                Service           Commission                would be               ex-facie

unconstitutional since the functions of Public Service Commission under Article 320 of Constitution relating to method of recruitment and the principles to be followed in making appointment to civil service and posts in

making promotions and transfers from one service to another. The prescription of qualification is within the exclusive domain of State Government does not fall within the anvil of State Public Service Commission.

  1. I submit that when the service rules prescribed the qualification for the post of APRO(P), the same cannot be altered or amended by a Government Order or executive instructions of State Government. In the said circumstances, the impugned order issued in G.O.Ms.No.102 dated 01.08.2022 is arbitrary, illegal and unconstitutional and therefore I am having no other alternative, efficacious, speedy remedy except to approach this Hon’ble High Court under the Article 226 of Constitution of India,

challenging the same, for the following among other,

GROUNDS

  1. The impugned Government Order in G.O.Ms.No.102 dated 01.08.2022

issued by the 1st Respondent for revising the qualification for the post of APRO(P) and to bring the post of APRO(P) under the purview of Tamil Nadu Public Service Commission is ex-facie arbitrary, illegal

and unconstitutional and the same is liable to be quashed.

  1. As per the constitutional scheme as settled by the orders of Hon’ble

Apex Court, the statutory rules framed under Article 309 of Constitution of India cannot be tinkered by the executive orders or administrative instructions. The adhoc rules for the post of APRO(P) framed under the proviso to Article 309 of Constitution of India prescribed the qualification as a recognized Bachelor’s degree and experience in Public Relations for a period not less than two years. Whereas, the impugned order remains to be an executive order issued under Article 162 of Constitution of India revised the qualification for

the post of APRO(P) in violation of Service Rules. Hence, the

impugned order is liable to be quashed as unconstitutional.

  1. There cannot be any prescription of qualification for the post of APRO(P) by way of an executive order in violation of statutory rules. The rules prescribes qualification for the post of APRO(P) as follows:
Method of appointment

(1)

 Qualifications

(2)
1. Direct recruitment (iv) Must hold a Bachelor’s Degree of any university recognized by the UGC for the purpose of its grants
(v) Experience in Public Relations for a period of not less than two years
(vi) Knowledge         of         Computer          and

Typewriting both in Tamil and English is preferable.

Whereas, the impugned order has been passed in violation of statutory rules and the same is not sustainable as per the ratio laid down by Hon’ble Supreme Court of India in the following Judgements:

 

(1) K.Kuppusamy v. State of Tamil Nadu – (1998)8 SCC 469 (2) Virender Singh Hooda and others v. State of Haryana and another – AIR 2005 SC 137 (3) Amrutbhai G.Desai v. (The) State of Gujarat and Ors. – 2008(3) GLH 461 (4) T.R.Kapur v. State of Haryana – AIR 1987 SC 415 (5) B.S.Yadav and others; Pritpal Singh and others v. State of Haryana and others; State of Punjab and others – AIR 1981 SC 561 (6) State of Madhya Pradesh v.

Yogendra Shrivastava – JT 2009(13) SC 448.

 

  1. There is no reference or reasons for revision of qualification for the post of APRO(P) as stated in the impugned order. Whereas, there

cannot be any prescription of qualification for the post in consultation with TNPSC in violation of Article 320 of Constitution of India as per which the State Service Commission shall be consulted in the matters relating to method of recruitment and the principles to be followed in

making       appointments, promotions, transfers etc.,     as well as

disciplinary matters. There cannot be any consultation for prescription of qualification beyond the scope of the functions of Public Service Commission as prescribed under Article 320 of Constitution of India.

  1. When the post of APRO(P) remains to be a temporary post governed by adhoc rules, the recruitment to the post of APRO(P) cannot be brought under the purview of Tamil Nadu Public Service Commission. When the post remains to be a temporary post and not a regular

sanctioned post borne on the cadre of regular establishment, the posts are outside the purview of the Commission and the recruitment shall be made only as per Section 18 of Tamil Nadu Government Servants

(Conditions of Service) Act, 2016.

  1. The impugned order to bring the post of APRO(P) within the purview of Commission is opposed to the job and duties and responsibilities attached to the post of APRO(P) not relatable to regular Government servant. The post requires complete flexibility in working hours

without any timeline, as Field Worker, differs from condition of service applied for a regular Government servant. The nature of work involves making arrangements for conducting Government functions, Art and Cultural programmes, publicity for all the Government functions, departmental programmes, collecting data for development works and bringing the achievements of the Government to the general public, submission of reports on collection of details from the media every day, collection of information regarding Central Government and State Government schemes and other innumerable works.

  1. The impugned order bringing the post under the purview of TNPSC not only relatable to recruitment but also promotion, disciplinary action and other condition of service and hence it will hamper the functions attached to the post.
    1. This is the first Writ Petition filed by me for the relief as prayed

for and no other petition filed or pending before any other court.

  1. I submit that the original impugned Government Order issued by the 1st Respondent in G.O.Ms.No.102 Tamil Development and Information (Admn.2.2) Department dated 01.08.2022 is not made available to me. Hence,

I am filing the present Writ Petition by enclosing the photo copy of the same.

Therefore, if the production of original impugned Government Order dated

01.08.2022 is dispensed with, no one would be prejudiced.

 

Hence, it is humbly prayed that this Hon’ble Court may be pleased to DISPENSE WITH the production of original impugned Government Order issued by the 1st Respondent in G.O.Ms.No.102 Tamil Development and

Information (Admn.2.2) Department dated 01.08.2022 and thus render justice.

  1. I submit that in view of the facts and circumstances stated

above, in the interest of justice, it is just and necessary to stay the operation of

impugned Government Order issued by the 1st Respondent in G.O.Ms.No.102

Tamil Development and Information (Admn.2.2) Department dated

01.08.2022, pending disposal of Writ Petition.

Hence, it is humbly prayed that this Hon’ble Court may be pleased to

grant an order of INTERIM STAY staying the operation of impugned Government Order issued by the 1st Respondent in G.O.Ms.No.102 Tamil Development and Information (Admn.2.2) Department dated 01.08.2022,

pending disposal of Writ Petition and thus render justice.

Hence, it is humbly prayed that this Hon’ble Court may be pleased to issue a writ, order, or direction more particularly a writ in the nature of WRIT

OF CERTIORARI to call for the records relating to the impugned Government Order issued by the 1st Respondent in G.O.Ms.No.102 Tamil Development and Information (Admn.2.2) Department dated 01.08.2022 and to QUASH the same and to pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus

render justice.

Solemnly affirmed at Chennai, {}                     Before Me
on this       day of August 2022 {}
and signed his name in my {}
presence. {}         Advocate::: Chennai

 

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