1 W.A.(MD)NO.2193 OF 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 02.01.2026

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

AND

THE HON'BLE MRS.JUSTICE R.KALAIMATHI

W.A.(MD)No.2193 of 2023 AND

C.M.P.(MD)No.17576 of 2023

Dr.G.Jayakrishnan ... Appellant / 4

th

Respondent

Vs.

1. The State of Tamil Nadu,

Rep. by its,

Health and Family Welfare Department,

Rep. by its Secretary,

Secretary, Chennai – 600 009.

2. The Commissioner,

Directorate of Indian Medicine and Homeopathy,

Arumbakkam, Chennai – 600 106.

3. The Principal,

Government Ayurveda Medical College,

Kottar, Nagercoil,

Kanyakumari District. ... Respondents/ Respondents

4. Dr.C.Roshy Joseph ... 4

th

Respondent/ Writ petitioner

5. Dr.S.Rajapandi

6. The Tamil Nadu Ayurveda Medical College Tachers Association,

Rep. By its Secretary, Dr.Shegdar Praveen,

S/o.Karabasappa Shegedar,

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2 W.A.(MD)NO.2193 OF 2023

Preently serving as Reader and Head of Department of

Rachana Shareera,

Government Ayurveda Medical College and Hospital,

Kottar, Nagercoil,

Kanyakumari District.

(R-5 & R-6 are impleaded vide common order dated 08.12.2025

made in C.M.P.(MD)Nos.863 and 7402 of 2025)

... Respondents

Prayer: Writ appeal filed under Clause 15 of the Letters Patent,

to allow the writ appeal and set aside the order of the learned Judge

dated 27.06.2023 made in W.P.(MD)No.4656 of 2023.

For Appellant : Mr.N.Subramaniyan,

for Mr.A.Balaji.

For Respondents : Mr.T.Amjad Khan,

Government Advocate for R-1 & R-2.

Mr.Mohammed Imran,

for M/s.Ajmal Associates for R-4.

Mr.Niranjan S.Kumar for R-5.

Mr.M.Saravanakumar for R-6.

No appearance for R-3.

* * *

J U D G M E N T

Heard both sides.

2. This writ appeal is directed against the order dated

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3 W.A.(MD)NO.2193 OF 2023

27.06.2023 made in W.P.(MD)No.4656 of 2023 filed by the fourth

respondent herein (Dr.C.Roshy Joseph).

3. Dr.Roshy Joseph filed the said writ petition challenging the

appointment of the appellant herein(Dr.Jayakrishnan) as Reader in

the Government Ayurveda Medical College, Kottar, Kanyakumari

District vide G.O.(D)No.303 Health and Family Welfare (IM-1(1)

Department dated 19.02.2016 as well as the consequential posting

order dated 25.02.2016. The learned single Judge after hearing both

sides allowed the writ petition in the following terms:-

“ 10. ...

a.The impugned order, dated 19.02.2016 and

the consequential appointment, dated 25.02.2016

are hereby quashed.

b.Either the Government may consider to

regularize all the exiting 10(a)(i) appointees by

conducting special tests so that all the eligible

candidates’ rights are protected. For the remaining

available vacancies separate notification may be

issued under the Adhoc Rules to fill up the posts.

c.Alternatively, the government shall conduct

fresh recruitment based on Adhoc Rules to fill up all

the posts including the posts occupying by the

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4 W.A.(MD)NO.2193 OF 2023

10((a)(i) employees.

d.The respondents shall carry out the above

directions, within a period of 12 weeks from the

date of receipt of a copy of the order.

e.Till such time, all the employees shall

continue in their same post as 10(a)(i) employees

including the 4th respondent.

11. With the above terms, this Writ Petition is

allowed. No Costs.”

Aggrieved by the same, the appellant whose appointment as

Reader was set aside, has filed this writ appeal.

4. The basic facts are not in dispute. The Government Ayurveda

Medical College, Kottar was established in the year 2006 vide

G.O.Ms.No.10 Health and Family Welfare Department dated

23.01.2006. It can be seen therefrom that the Government envisaged

creation of as many as 16 posts of Reader in various departments. In

the case on hand, we are concerned only with the post of Reader in

the Department of Rasa Shastra and Bhaishajya Kalpana. The

Government issued notification dated 26.09.2010 calling for

applications for the post of Professors and Readers. The notification

stipulated that the applicants for the post of Reader must have

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5 W.A.(MD)NO.2193 OF 2023

teaching experience of five years in the concerned subject. The upper

age limit was 35 years.

5. Since all the candidates were agewise ineligible, the

Government relaxed the age limit and 45 years was made the upper

age limit. A fresh notification was issued on 14.08.2011. Once again,

the appellant applied for the post of Reader in the subject of Rasa

Shastra and by Bhaisajya Kalpana. Interview was held on 12.10.2011.

Even though the appellant fulfilled all the requirements, he was not

selected. The appellant would allege that his selection was put on

hold so that one Dr.Clarence Davy could be accomodated in the post

of Reader.

6. Aggrieved by his non-selection, the appellant filed W.P.

(MD)No.181 of 2012. The said writ petition was taken up along with

W.P.(MD)No.12039 of 2011 filed by Dr.Clarence Davy and W.P.

(MD)No.12040 of 2011 filed by Dr.Nandhinee Vijay. All the three writ

petitions were disposed of on 02.01.2013 with certain directions.

One such direction was that if the appellant herein was qualified, he

should be considered with reference to the relative merits and

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6 W.A.(MD)NO.2193 OF 2023

demerits for the purpose of completing the process of recruitment.

7. Pursuant to the aforesaid direction, the case of the appellant

was considered and his request was rejected on 16.10.2014.

Challenging the same, the appellant filed W.P.No.13566 of 2015 and

interim order was granted in favour of the appellant on 30.04.2015.

It is relevant to note that even in the previous round, an interim

order was granted to keep one post vacant. During the pendency of

the writ petition, the Government came to the conclusion that the

writ appellant was having the requisite qualification to hold the post

of Reader and accordingly issued G.O.(D)No.303 Health and Family

Welfare Department dated 19.02.2016 appointing him to the post of

Reader. The appellant is working in the said post of Reader till date.

This appointment was put to challenge in W.P.(MD)No. 4656 of 2016

and quashed. Citing these subsequent developments as well as the

pendency of this writ appeal, W.P.No.13566 of 2015 was dismissed as

infructuous.

8. The only question that calls for consideration is whether the

order passed by the learned single Judge calls for interference.

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9. The Adhoc Rules in respect of the post of Reader as well as

other posts were issued by the Government only in the year 2018

vide G.O.(Ms)No.125 Health and Family Welfare Department dated

10.04.2018 with retrospective effect. The learned single Judge came

to the conclusion that when the Adhoc Rules were framed only on

10.04.2018, any appointment made prior to the same ought to be

considered as 10(a)(i) appointment under the Tamil Nadu State and

Subordinate Service Rules. The appellant was also considered as a

10(a)(i) appointee.

10. We cannot endorse the view that the appointments made

prior to the issuance of the Adhoc Rules should be considered as Rule

10(a)(i) appointments. This is for more than one reason. Rule

10(a)(i) of the Tamil Nadu State and Subordinate Service Rules reads

that 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 the

rules and the Special Rules, the appointing authority may

temporarily appoint a person who possesses the qualifications

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prescribed for the post otherwise than in accordance with the said

rules. A bare reading of the above provision indicates that there must

be recruitment rules in force and that it is not possible to make

appointments in accordance with them immediately, but there is an

urgent need for filling up the vacancy. When there is no recruitment

rule at all, the question of invoking Rule 10(a)(i) does not arise at all.

Therefore, treating the appellant as a Rule 10(a)(i) appointee is

incorrect.

11. That leads us to the question whether the Government

could have notified the vacancy as well as precribed the qualification

by an executive order in the absence of rules framed under Article

309 of the Constitution of India. In other words, when there is no

legislative enactment either in the form of an Act or subordinate

legislation, could the Government by a G.O. have made the

appointments. Of course, it goes without saying that any

appointment could not have been made in an arbitrary manner. A fair

and transparent process must be adopted before making any public

appointment. But there is no requirement that in the absence of

recruitment rules, such appointments cannot be made. Such a view

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9 W.A.(MD)NO.2193 OF 2023

would run counter to Article 162 of the Constitution of India.

12. Article 162 of the Constitution of India reads as follows:-

“Extent of executive power of State.—

Subject to the provisions of this Constitution, the

executive power of a State shall extend to the

matters with respect to which the Legislature of the

State has power to make laws:

Provided that in any matter with respect to

which the Legislature of a State and Parliament have

power to make laws, the executive power of the

State shall be subject to, and limited by, the

executive power expressly conferred by this

Constitution or by any law made by Parliament

upon the Union or authorities thereof.”

The proviso has no application to the facts on hand. The Constitutional

Bench of the Hon'ble Supreme Court of India in the decision reported in

AIR 1967 SC 1910 (Sant Ram Sharma Vs. State of Rajasthan and

Others) had held that though there was no specific provision in the

Rules laying down the principle of promotion of junior or senior

grade officers to selection grade posts, that did not mean that till

statutory rules were framed in this behalf the Government cannot

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issue administrative instructions regarding the principle to be

followed in promotions of the officers concerned to selection grade

posts. The Government cannot amend or supersede statutory rules

by administrative instructions, but if the rules are silent on any

particular point Government can fill up the gaps and supplement the

rules and issue instructions not inconsistent with the rules already

framed.

13. In AIR 1993 SC 477(Indra Sawhney Etc. Etc vs Union Of

India And Others, Etc. Etc.), the Hon'ble Supreme Court had held that

a provision for reservation can be incorporated through an executive

order. It was declared therein as follows:-

(1)(a) It is not necessary that the 'provision'

under Article 16(4) should necessarily be made by the

Parliament/Legislature. Such a provision can be made by the

Executive also. Local bodies, Statutory Corporations and

other instrumentalities of the State falling under Article

12 of the Constitution are themselves competent to make

such a provision, if so advised.

(b) An executive order making a provision

under Article 16(4) is enforceable the moment it is made

and issued.”

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14. The Hon'ble Supreme Court in Krushna Chandra Sahu Vs.

State of Orissa (1995) 6 SCC 1 held that if the statutory Rules, in a given

case, have not been made, either by the Parliament or the State Legislature, or,

for that matter, by the Governor of the State, it would be open to the appropriate

Government (the Central Government) under Article 73 and the State

Government under Article 162) to issue executive instructions.

15.Therefore, merely because there were no recruitment or

Adhoc Rules, the appointments made by the executive in a fair and

transparent manner cannot be placed on a lesser pedestal. The

executive was fully competent to make the appointments even in the

absence of Adhoc Rules.

16. There is another aspect of the matter. Admittedly, it was the

Government which established the Ayurveda Medical College. The

college was also subsequently granted recognition by the UGC. Such

recognition would not have been granted unless the college had a

regular faculty. Therefore, it is not proper to rank all the

appointments made prior to the framing of the Adhoc Rules as Rule

10(a)(i) appointments. It is conceded that long before the Adhoc

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12 W.A.(MD)NO.2193 OF 2023

Rules were formulated, the college had been granted recognition.

17. In fact, the writ petition ought to have been dismissed on a

short ground. Admittdly, the writ petitioner was not an aspirant for

the post of Reader in the subject of Rasa Shastra, when the

recruitment process was made in 2010-2011. She was then pursuing

PhD., in Jam Nagar, Gujarat. On the other hand, when the recruitment

notification was issued, the appellant was an applicant. He was fully

qualified to hold the post. His non-selection itself was improper. That

is why, direction was given vide order dated 02.01.2013 in W.P.

(MD)No.181 of 2012 to consider the petitioner's qualification while

completing the process of recruitment. The appointment of the

appellant made in 2016 was a culmination of the recruitment process

that commenced in the year 2010-11. The writ petitioner was

nowhere in the picture. It is well settled that only an aggrieved

person could challenge an appointment made to a post [(2013) 5

SCC 1 (State of Punjab Vs. Salil Subhlok]. The writ petitioner could

not be said to be an aggreived person. A person can be said to be

aggrieved only if he or she has been wrongfully deprived of anything

to which he or she is legally entitled and not merely a person who

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13 W.A.(MD)NO.2193 OF 2023

suffered some sort of disappointment (P.Ramanatha Aiyar's

Advanced Law Lexicon). Only a non-appointee can challenge the

appointment. The writ petitioner was not even an applicant for the

post of Reader. Therefore, the writ petitioner completely lacked the

standing to question the appointment of the writ appellant. The writ

petition was not maintainable. These two aspects were not taken

note of by the learned single Judge. Hence, we set aside the order

made in W.P.(MD)No.4656 of 2023. The writ appellant as well as the

private respondents including the writ petitioner may work out their

rights in the manner known to law based on the declaration made in

these proceedings. This writ appeal stands allowed. No costs.

Consequently, connected miscellaneous petition is closed.

(G.R.SWAMINATHAN, J.) & (R.KALAIMATHI, J.)

2

nd

January 2026

NCC : Yes / No

Index : Yes / No

Internet : Yes / No

PMU

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14 W.A.(MD)NO.2193 OF 2023

To:

1. The Secretary,

Health and Family Welfare Department,

Secretary, Chennai – 600 009.

2. The Commissioner,

Directorate of Indian Medicine and Homeopathy,

Arumbakkam, Chennai – 600 106.

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15 W.A.(MD)NO.2193 OF 2023

G.R.SWAMINATHAN, J.

AND

R.KALAIMATHI, J.

PMU

W.A.(MD)No.2193 Of 2023

02.01.2026

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