Madras High Court
P.Sundar vs The Government Of Tamilnadu on 24 July, 2013
Bench: R.Banumathi, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 24.07.2013 Coram The HONOURABLE MRS.JUSTICE R.BANUMATHI and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.600 of 2006 & W.P.No.11772 of 2009 P.Sundar .. Petitioner in W.P.No.600/2006 1. Nataraja P 2. Khaleel Ahamed A 3. Ganesan V K 4. Amudhan S 5. Sivakumar G 6. Jhon Christopher T 7. Ganesh Bapu D R 8. Gnana Amirtharaja T 9. Anantha Babu P 10.Edwin Samuel Rajendiran A 11.Thanneer Mala A 12.Kather Sulthan S 13.Ilangovan V 14.Thomas R 15.Murugan G 16.Mohana Chandran V 17.Gunasekar M S 18.Ramakrishnan R 19.Navakodi G 20.Rathinasabaathy P 21.Unnikrishnan N 22.Prakash S 23.Ramesh Babu P 24.Somasundaram S 25.Velmurugan E 26.Raju R 27.Prabhu S 28.Shanmugam K 29.Harsha Vardhanan M A 30.Chinna Samy R 31.Prasad S 32.Hkan H N 33.Sivanantham T 34.Durai Rajan L 35.Sathiya Kumar P 36.Arasu P 37.Narayanan R 38.Anbu J 39.Selvarathinam R 40.Subramaniamn G 41.Murugan S 42.Manickavelu V 43.Baskaran M 44.Ramanathan P 45.Bhaskaran R 46.Ravichandran R 47.Kamala Thiyagarajan T 48.Panneer Selvam K P 49.Rengasamy V 50.Jagadeesan S 51.Lakkumanan S 52.Jayamani M 53.Paul P .. Petitioners in W.P.No.11772/2009 vs. 1. The Government of Tamilnadu, Rep. by its Secretary, Agriculture Department, Fort St.George, Chennai 600 009. 2. The Chief Engineer, Agriculture Engineering Department, Chennai 600 005. .. 1st & 2nd respondents in both W.Ps. 3. The Tamil Nadu Agricultural Engineers' Association Recognised by G.O.Ms.No.3144 Public Services C.C., Department dated 20.11.1958, Rep. by its General Secretary S.Periyasamy 16, Poodha Perumal Kovil Street, Chennai 600 002. .. 3rd respondent in W.P.No.600 of 2006 (R3 impleaded as per order of Court dated 20.03.2006 in W.P.M.P.No.6125/2006) 3.K. Palanisamy 4.S. Rajendran 5.R. Gunasekaran 6.K.V.Raman 7.M.Subramanian 8. Engineering Diploma Association, Agricultural Engineering Department, rep. by its General Secretary, Mr.S.B.Mathivannan B.144 TNHB quarters, Keezhpermbakkam, Villupuram. .. R3 to R8 in W.P.No.11772/2009 (R3 to R7 Impleaded as per order dated 13.10.2009 in M.P.No.2 of 2009 in W.P.No.11772 of 2009) (R8 impleaded as per order dated 28.10.2009 in M.P.No.4 of 2009 in W.P.No.11772 of 2009) Prayer in W.P.No.600 of 2006 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus, to call for the records in the Chief Engineer Lr.No.HRD.2(2) 71384/2004, dated 25.08.2005 on the file of the second respondent and G.O.Ms.No.1987, Agriculture Department, dated 28.08.1981 on the file of the first respondent herein and to quash the same and the relative portion wherein amendments were made to the special rules for Agriculture Engineering Service and the ratio 1:3:2 in Rule 2 in sub rule (b) and to consequently direct the first respondent to modify the ratio pertaining to appointment to vacancies rising in class IV (Assistant Executive Engineer) as suitably in accordance to the law. Prayer in W.P.No.11772 of 2009 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Declaration to declare the rule 2(b) of Tamilnadu Agriculture Engineering Service as illegal, void ab initio and unconstitutional and consequently direct the respondents to consider the petitioners for notional promotion as Assistant Executive Engineer with all consequential service and monetary benefits with retrospective effect from the relevant/respective anterior date on which a Junior Engineer who joined as Junior Engineer subsequent to joining of service by the petitioners was appointed as Assistant Executive Engineer and to revise accordingly the seniority in the category of Assistant Executive Engineer. For Petitioners : Mr.N.Subramaniyan & Mr.C.K.Chandrasekaran For Respondents : Mr.S.T.S.Moorthy G.P., for RR1 & 2 Mr.P.Rajendran for RR3 to 7 Mr.G.Sankaran for R8 ***** C O M M O N O R D E R
R.BANUMATHI, J. & T.S.SIVAGNANAM, J.
The issue involved in these Writ Petitions relates to the fixation of ratio for the promotion to the post of Assistant Executive Engineer in the Tamil Nadu Agricultural Engineering Service between graduate engineers and diploma holders. Pursuant to the orders passed by the Hon'ble Supreme Court in S.L.P (C) Nos. 34239 to 34240 of 2011 dated 20.2.2013, these Writ Petitions have been remanded to this Court for being heard and being disposed of without being influenced by any of the observations made in these Writ Petitions in the earlier orders passed by the learned Single Judge dated 8.3.2010 and the order of the Division Bench, dated 29.9.2011.
2. The Writ Petitions have been filed for a declaration to declare Rule 2(b) of the Special Rules for Tamil Nadu Agricultural Engineering Service Rules, as being illegal and unconstitutional and to direct the official respondents to consider the Writ Petitioners for notional promotion as Assistant Executive Engineer with retrospective effect with monetary benefits.
3. The facts which are necessary for resolving the controversy in issue, is as stated hereunder:
The Writ Petitioners are Engineering Graduates, who are working as Assistant Engineers in the Agricultural Engineering Department. The Private Respondents who impleaded themselves in the Writ Petitions are Diploma Holders and Association of Diploma Holders. The petitioners were initially appointed as Assistant Engineers temporarily by direct recruitment and their services were regularised during 1990 with effect from the date of their initial temporary appointments. The grievance is that though they have completed 20 years of service as Assistant Engineers are stagnating without promotion on account of the Junior Engineers who are Diploma Holders who joined as Junior Engineers later to the petitioners, were promoted as Assistant Executive Engineers on account of Rule 2(b) of the Special Rules prescribing a ratio of 3:2 between Assistant Engineers and Junior Engineers for promotion as Assistant Executive Engineers. Therefore, they have challenged Rule 2(b) as ultra vires.
4. Mr.N.Subramaniyan, learned counsel for the petitioner submitted that the category of Assistant Engineer coming under the Tamil Nadu Agricultural Engineering Service is a State Service and the Junior Engineers who are Diploma Holders are coming under Tamil Nadu Agricultural Engineering Subordinate Service, a subordinate service. Though both the categories come under two different service, they occupy the same post as Section Officer, in which 25% of the vacancies are earmarked for Junior Engineers and the balance 75% for Assistant Engineers. Thus, the initial appointment to the posts i.e. Assistant Engineer and Junior Engineer are made in the ratio 3:1 respectively. The next promotional post is Assistant Executive Engineer and both Assistant Engineers and Junior Engineers are eligible for promotion and recruitment by transfer respectively. The Rule also provides for direct recruitment to the category of Assistant Engineer, the ratio being 1:3:2 (direct recruitment:promotion from Assistant Engineer:by recruitment by transfer from among the holder of the post of Junior Engineer in Tamil Nadu Agricultural Subordinate Service). It is submitted that though the ratio for initial appointment was 3:1, due to appointment of large number of Junior Engineers, a ratio of 3:2 was fixed and this ratio though fixed was not implemented, and the ratio of 3:3 was fixed and implemented till 1988. On account of which, persons who were working below the Assistant Engineer were promoted as Junior Engineer and further promoted as Assistant Executive Engineers, when the Assistant Engineers were stagnating without promotion.
5. The learned counsel drew our attention to the factual details to establish this position and contended that such anomaly clearly offends Article 14 of the Constitution of India. It is further submitted that on account of the action of the respondents 1 & 2, the Assistant Engineer having higher qualification and longer service, has been put to prejudice and it is nothing but, demeriting the merits and meriting the demerits. Such action is clearly in violation of Articles 14 & 16 of the Constitution of India. Further, the learned counsel submitted that in no other Department in Government of Tamil Nadu, there is a ratio of 3:2 for promotion and in this regard reference was made to the Rules in the Public Works Department and other Departments. It is further submitted that the fixation of the ratio 3:2 was challenged by the Diploma Holders by filing Writ Petitions before this Court, which were allowed and the Appeal filed against such order, was allowed by the Division Bench which decision was reversed by the Hon'ble Supreme Court thereby upholding the validity of the impugned Rule. However, the challenge to the impugned Rule in the earlier round, was at the instance of the Diploma Holders and the petitioners/degree holders never questioned the Rule earlier and the Judgment of the Hon'ble Supreme Court in the earlier batch would have no impact on the present writ petitions, wherein the same Rule has been questioned on the ground it is violative of Article 14 & 16 of the Constitution of India.
6. The learned counsel referred to the second proviso to 36 of the Tamil Nadu State Subordinate Service Rule and contended that the petitioners being Degree holders are entitled to be placed above the Diploma holders and the action of the official respondents is illegal. The learned counsel referred to G.O.Ms.No. 1890 Agriculture Department dated 24.12.1974 and submitted that the ratio between Graduate Engineers and Diploma Holders was 3:1 and there is no justification to the impugned Rule to prescribe a ratio of 3: 2.
7. The learned counsel referred to a tabulation showing comparison between Degree Holders and Diploma Holders to demonstrate that a person who joined as a foreman became a Junior Engineer and ultimately became Assistant Executive Engineer. In support of their case, reliance was placed on the decision of the Hon'ble Supreme SHANKUNTALA SHARMA v HIGH COURT OF H.P. AT SHIMLA (1994 (2) SCC 411).
8. Mr.C.K.Chandrasekar, learned counsel, while adopting the submissions, supplemented by referring to paragraph 8 of the affidavit filed in support of the Writ Petition in W.P.No.600 of 2006 and submitted that if the existing ratio of 3:2 continues, the Assistant Engineer can aspire for promotion only when 75 posts of Assistant Executive Engineers become vacant, which is more than 50% of the cadre strength and the plight of graduate Engineers in the department is very pathetic as they are forced to work under their subordinates resulting in mental agony and tension.
9. The learned Government Pleader appearing for the official respondents by referring to their counter affidavit filed in the Writ Petitions, contended that the claim made by the petitioners is incorrect as the post of Assistant Engineers/ Junior Engineers are feeder categories to the post of Assistant Executive Engineers (Agricultural Engineering) and the ratio fixed in Rule 2(b) was challenged by the Diploma Holders and the Hon'ble Supreme Court upheld the ratio of 3:2 by Judgment dated 30.9.1994 and there can be no challenge to the same Rule by the petitioners. It is submitted that there may be some instances, where a member in a category of service gets promoted than a member in another category of service, regularly appointed earlier to that member and while operating the ratio Rule such instances, are incidents of service and inevitable. Further it is submitted that the representation made by the petitioners to alter the ratio was rejected by the Government by letter No.37759/AA3/07-4 dated 27.5.2010. Further, in order to justify the reason for fixing a ratio of 3:2, the learned Government Pleader referred to the counter affidavit to impress upon this Court that special circumstances prevailed in the Department for fixing such ratio and there is no error in the action taken by the department and the ratio so fixed is reasonable.
10. Mr.P.Rajendran, learned counsel for the private respondents submitted that the post of Assistant Engineer and Junior Engineer are inter transferable and interchangeable and they discharge similar functions. To establish that both posts are interchangeable, copy of an order of transfer dated 13.7.2011 was produced. Further, it is submitted that the post of Assistant Engineer and Junior Engineer are feeder categories for the post of Assistant Executive Engineer and because of higher education qualification, they are given higher pay and they have avenue of promotion upto the post of Chief Engineer, whereas Junior Engineers mostly retire as Assistant Executive Engineers. Further, it is submitted that G.O.Ms.No.,1890 dated 24.12.1974, referred to by the petitioner relates to fixing ratio of 3:1, between Graduate Engineers and Diploma Holders for direct recruitment and the same should not be mixed up in considering a case of promotion, where a ratio of 3:2 was fixed. Further, by reading G.O.Ms. 1890, it is clear that there is a difference between Agricultural Engineering Department and other Departments, warranting fixing of such ratio of 3:2. It is submitted that the Special Rules of Tamil Nadu Agricultural Engineering Service came into force in 1981 and though as per the Rules, 3:2 was the ratio fixed, considering the large number of diploma holders a proviso was added to Rule 2(b) and ratio of 3:3 was fixed which continued till 1988 and this very Rule, Rule 2(b) was upheld by the Hon'ble Supreme Court in 1994. Reference in this regard was, made to the judgment of the Hon'ble Supreme Court. It is submitted that there is no change in circumstances for the petitioners to challenge the Rule which was upheld by the Hon'ble Supreme Court, further no Junior Engineer in the Department has worked under an Assistant Engineer and the prayer sought for in the Writ Petition if granted would amount to scrapping the entire ratio which cannot be granted. Further, it is submitted that Rule 36 of the General Rules has no application to the petitioners' case, since a Special Rule has been framed and the same will prevail over the general rule. Further, it is submitted that as on date there are 573 Junior Engineers and 372 Assistant Engineers only and therefore, the contention raised by the petitioners is not tenable.
11. Mr.G.Sankaran, learned counsel submitted that as per the Special Rule a Diploma Holder cannot aspire for promotion beyond the post of Executive Engineer, as the rule prescribes a degree in Engineering as essential qualification. Further, it is submitted that the cadre strength of the post of Assistant Executive Engineer is 160. By applying the ratio of 3:2, there should be 96 Assistant Engineers and 64 Junior Engineers (Diploma Holders) whereas as on date there are 109 Assistant Engineers (Degree Holders) and only 24 Junior Engineers (Diploma Holders) apart from 4 directly recruited candidates. Therefore, the facts demonstrate that the case of the petitioners, is not tenable. In support of his contention, learned counsel placed reliance of the Hon'ble Supreme Court in P.U. Joshi vs. Accountant General, [(2003) 2 SCC 632].
12. We have heard Mr.N.Subramaniyan and Mr.C.K.Chandrasekaran, learned counsels appearing for the petitioners, Mr.S.T.S.Moorthy, learned Government Pleader appearing for the respondents 1 & 2 and Mr.P.Rajendran and Mr.G.Sankaran, learned counsels appearing for the private respondents.
13. The Government formed a separate Agricultural Engineering Department with the Chief Engineer (Agricultural Engineering) as the Head of the Department and it started functioning from 31.1.1981. It was decided that the existing special rules for the Tamil Nadu Agricultural Service might be split up into three different Service Rules viz. Tamil Nadu Agricultural Extension Service Rules, Tamil Nadu Agricultural Research Service Rules and Tamil Nadu Agricultural Engineering Service Rules so as to constitute separate service for each of three branches in the Agriculture Department. The Government in consultation with the TNPSC, finalised separate service rules for Tamil Nadu Engineering Service, which was notified by G.O.Ms.No.1987, Agriculture Department 28.8.1981. The Rules which are relevant for the purpose of this case are Rule Nos. 1 & 2, quoted herein below:
NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and in supersession of the Special Rules for the Tamil Nadu Agricultural Service (Section I of Part IIIA of the Special Rules in Volume II of the Tamil Nadu Service Manual, 1969) in so far as they relate to the posts included in this service, the Governor of Tamil Nadu hereby makes the following Special Rules for the Tamil Nadu Agricultural Engineering Service, which will be included as Section 38 in Volume II of the Tamil Nadu Service Manual, 1969.
The Special Rules hereby made shall come into force on and from the 1st February 1981.
RULES.
1. Constitution: The Service shall consist of the following classes of posts namely:
A.SELECTION CATEGORIES:
Class I Chief Engineer (Agricultural Engineering) Class II Superintending Engineer (Agrl. Engg.) Class III 1. Executive Engineer (Agrl. Engg.)
2.Deputy Chief Engineer (Agrl. Engg.) B.ORDINARY CATEGORY:
Class IV Assistant Executive Engineer (Agrl. Engg.) Class V Assistant Engineer (Agrl. Engg.)
2.Appointment:
a) Appointment to the Several Classes of posts specified in column (2) of the Table below shall be made by the methods specified in the corresponding entries in column (3) thereof.
-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-
Class Post Method of Recruitment 1. 2. 3.
-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-
Class I Chief Engineer (Agrl. Engg.) By promotion from among the holders of the post in Class II
-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-
Class II Superintending Engineer (Agrl. Engg.) By promotion from among the holders of the posts in Class III
-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-
Class III Executive Engineer (AE) and By promotion from among the Deputy Chief Engineer (AE) holders of the posts in Class IV.
-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-
Class IV Assistant Executive Engineer (AE) i. By direct recruitment ii.By promotion from among holders of the posts in class V and iii.By Recruitment by transfer among the holders of the post of Junior Engineer (AE) in the Tamil Nadu Agrl. Subordinate Service.
-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-
Class V Assistant Engineer (Agrl. Engg.) By Direct Recruitment
-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-<>-
b) Appointment to vacancies arising in Class IV shall made by direct recruitment, by promotion from among the holders of the post of Assistant Engineer in Class V and by recruitment by transfer from among the holders of the post of Junior Engineer in the Tamil Nadu Agricultural Subordinate Service in the ratio of 1:3:2 and shall be filled up in the following order of rotation, namely:-
i. By direct recruitment;
ii. By Promotion iii. By recruitment by transfer iv. By promotion v. By recruitment by transfer and vi. By Promotion.
"Provided that for a period of "eight" * years on and from 1st January 1981 appointment to vacancies arising in Class-IV shall be made only by promotion from ** among the holders of the posts of Assistant Engineers (Agrl.Engg.) in Class V and by recruitment by transfer from among the holders of the posts of Junior Engineers in the Tamil Nadu Agricultural Subordinate Service in the ratio of 3:3 and shall be filled up in the following order of rotation namely:-
1. By Promotion
2. By recruitment by transfer
3. By promotion
4. By recruitment by transfer
5. By Promotion
6. By recruitment by transfer
c) The posts included in Classes I to III shall be selection posts and promotion to all posts in the said Classes shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal.
14. In these writ petitions we are concerned with the post in class V, viz. Assistant Executive Engineer (Agricultural Engineering). There are three modes of recruitment for the post viz. (i) by direct recruitment, (ii) by promotion from among holders of the post in class V and (iii) by recruitment by transfer among the holders of the post of Junior Engineer (Agricultural Engineering) in the Tamil Nadu Agriculture Subordinate Service. The class V post being Assistant Engineer (Agricultural Engineering) which is to be filled up by direct recruitment. In terms of Rule 2(b), the ratio fixed for these three methods of recruitment is 1:3:2.
15. By G.O.Ms.No.1696 dated 3.9.1984, a proviso to Rule 2(b) was inserted to provide for a period of eight years on and from 1.1.1981, appointment to vacancies arising in class IV, shall be made only by promotion from among the holders of the posts of Assistant Engineers (Agricultural Engineering) in class V and by recruitment by transfer from among the holders of the posts of Junior Engineers in Tamil Nadu Agricultural Subordinate Service in the ratio of 3:3. This proviso was given retrospective effect from 1.2.1981. Subsequently, by G.O.Ms.No.631 dated 4.4.1988, the words 'eight years' in the first proviso to Rule 2(b) was substituted as 'five years'.
16. In 1983, the Chief Engineer remarked that for Class IV Assistant Executive Engineer, direct recruitment may be dispensed with and that the ratio between Degree Holders and Junior Engineers, may be revised as 3:3 so that the available vacancies are divided equally between Graduates and Diploma holders in view of the large number of Diploma holders in the Agricultural Engineering Department. Considering the marks of Chief Engineer (Agrl., Engg.,), Government passed G.O.Ms.No.1696, dated 03.09.1984 providing for a period of five years on and from 01.01.1981 that the appointment for the vacancies arising in Class IV shall be made between Degree Holders and the Diploma Holders in the ratio of 3:3. As per G.O.Ms.No.631, dated 04.04.1988, the said ratio was in force till 1988. Thereafter, as per the rules, the promotion to Class IV was a per the ratio in the rule 3:2. The Diploma Holders who were holding the post of Junior Engineers, challenged the said Rule by filing Writ Petitions before this Court by contending that the posts held by them is interchangeable with the post of Assistant Engineers and when Diploma Holders are not debarred from promotion as Assistant Executive Engineers (Agricultural Engineering) it would be violative of Articles 14 & 15 of the Constitution if higher proportion of posts are made available to the Degree Holders against the diploma holders at the ratio of 3:2. The learned Single Judge dismissed the Writ Petitions and upheld the Rule thereby upholding the ratio of 3:2. The Writ Petitioners preferred Appeals in W.A.Nos.359 of 1989 etc. and the Division Bench of this Court by Judgment dated 26.7.1989, allowed the Appeals. Aggrieved by the same, Appeal was preferred to the Hon'ble Supreme Court and in Writ Petition (C) No.3736 of 1982 etc. batch, Rule 2(b) prescribing the ratio of 3:2 between degree holders and diploma holders was held to be a valid classification, by judgment dated 13.9.1994.
17. It is thereafter, after about 10 years, the present Writ Petitions came to be filed, at the instance of the degree holders challenging the same Rule 2(b), contending that the Rule in so far as permitting Junior Engineer (diploma holder) with lower qualification and lesser service to be appointed as Assistant Executive Engineer, earlier to an Assistant Engineer, having higher qualification and longer service is violative of the rule of equality guaranteed under Articles 14 & 16 of the Constitution of India. The learned single Judge by order dated 8.3.2010, while taking note of the Judgment of the Hon'ble Supreme Court upholding the ratio of 3:2, observed that the same having become final and as the grievance of the petitioners is under the consideration of the Government, directed the respondents, to expedite the process and finalise the representations within a time frame. The petitioners preferred Appeal to the Division Bench in W.A.Nos.842 of 2010 and 541 of 2010 and the Division Bench, disposed of the appeals by judgment dated 29.11.2011, giving liberty to the appellant Association to submit a comprehensive representation to the Government, with a direction to the Government to take a decision regarding the ratio on merits and as per law. The appellants therein preferred Appeal to the Hon'ble Supreme in Special Leave to Appeal (Civil Nos. 34239 34240 of 2011), allowed the appeals by Judgment dated 20.2.2013, observed that this Court ought to have adjudicated the constitutional validity of Rule 2(b) of the said Rules instead of directing the appellant therein to submit a representation to the State Government and remitted the matter to this Court to decide the validity of the Rule without being influenced by any one of the earlier observations made the learned single Judge or by the Division Bench. This is how these writ petitions are placed before this Court for being heard and decided.
18. In the preceding paragraphs, we have culled out the grievance of the petitioners who are graduate engineers, who are aggrieved by the fixation of the ratio of 3:2, for promotion to the post Assistant Executive Engineer (Agricultural Engineering). Reference was made to the second proviso to Rule 36 of the Tamil Nadu State Subordinate Service Rules, which is a General Rule, to state that the petitioners being higher qualified than the private respondents, (diploma holders), they have to be placed above the diploma holders. This contention cannot be accepted for the simple reason that special rules have been framed for Tamil Nadu Agricultural Engineering Service and such Rule has been notified on 28.8.1981 and a Special Rule shall always prevail over the General Rule and therefore, the petitioners cannot seek to rely upon a General Rule for the purpose of advancing their case.
19. The next contention was that in all other Departments, the ratio between degree holders and diploma holders is 3:1 and even in the agricultural engineering branch, the ratio of 3:1 was fixed by G.O.Ms.No.1890 dated 24.12.1974 and there is no justification to increase the ratio as 3:2, for promotion purpose.
20. G.O.Ms.No.1890 related to fixing of ratio of 3:1 between graduate engineers and diploma holder in engineering for direct recruitment to the post of Junior Engineers and agricultural engineering supervisors. The Government took note of dearth of hands with degree qualifications to take up appointment in agricultural department as recruitments were made on basis of personal interview unlike in public works department, where recruitment of graduates of diploma holders were made separately and posts are offered to them in the ratio of 3:1 at the initial stage and this ratio is maintained upto the post of Assistant Engineers. Therefore, the Government decided to accept the proposal of the Director of agriculture to have more graduate engineers in the department by fixing a ratio of 3:1 between the degree holders in engineering and diploma holders in the initial recruitment itself on the analogy of public works department. Therefore, the reason for fixing 3:1 ratio for direct recruitment for the post of Junior Engineers/ agricultural engineering supervisors has been done in the interest of the department with a view to have more graduate engineers. Therefore, the fixation of the ratio of 3:1 for direct recruitment, which was introduced with certain objectives can hardly be used as a reason or a ground to test the validity of the ratio prescribed in the impugned rule for promotion to the post of Assistant Executive Engineer. Hence, the challenge made by the petitioners on this ground must necessarily fail.
21. Moving on to the next contention, we shall examine as to whether there was justification for fixing ratio of 3:2 under the impugned Rule 2(b).
22. About 598 Assistant Soil Conservation Officers were working in the Department and they were stagnating in the said cadre without any promotional opportunities. The Government considering their plight amended the special rules for Tamil Nadu Agricultural Subordinate Service by G.O.Ms.No.533 dated 14.12.2004, by bringing the post of Assistant Soil Conservation Officer as one of the feeder categories for promotion to the post of Junior Engineer (Agricultural Engineering). As there were large number of Assistant Soil Conservation Officers stagnating for more than twenty years, and there were only limited vacancies in the post of Junior Engineers (agricultural engineering) and taking note that it is a vanishing category, the Government decided to upgrade the post of Assistant Soil Conservation Officer as Junior Engineer (agricultural engineering) and fill up the same with Assistant Soil Conservation Officer who have put in 20 years of service with diploma in engineering at the time of their initial appointment by G.O.Ms.No. 479 dated 16.11.2007. This decision of the Government gave benefit of upgradation to 399 Assistant Soil Conservation Officers and this benefit was a one time measure. Subsequently by G.O.Ms.No.312 dated 27.7.2007, orders were issued to make temporary appointment of Assistant Engineers by recruitment by transfer from Assistant Soil Conservation Officers and Junior Draughting officers who have completed 20 years of service as one time measure. Consequent upon such Government order, 54 Assistant Soil Conservation officer and Junior Draughting officers got benefit. Decision was taken not to fill up the post of Assistant Soil Conservation. Further, the bifurcation of the Department and the birth of the Agricultural Engineering Department came into effect from 1.2.1981. Admittedly, the post of Assistant Engineer and Junior Engineer are feeder categories for the post of Assistant Executive Engineer (Agricultural Engineering) and these posts are interchangeable.
23. In the earlier round of litigation which ultimately culminated before the Hon'ble Supreme Court, the diploma holders challenged the ratio 3:2 as being violative of Article 16 of the Constitution. The Hon'ble Supreme Court upheld the ratio of 3:2, on the ground that reserving 3 posts for graduate engineers, has a nexus to the object sought to be achieved, on account of prescription of higher qualification. The Hon'ble Supreme Court in T.R. Kothandaraman v. T.N. Water Supply & Drainage Board, (1994) 6 SCC 282, examined about the extent of preference given to the degree holders. While examining such question, the Hon'ble Supreme Court held as hereunder:
23. The next question to be examined is about the extent of the preference given to the degree-holders. At this stage, we may first give our reasons as to why this aspect is amenable to examination. The rule-making authority having made a diploma-holder eligible for promotion, it follows that a diploma-holder does not suffer from such an infirmity as to make him totally unfit for holding the higher post. If that is so, question is whether the ratio could be made so inequitable as to mock at the guarantee of equality? The right which has been conferred by one hand cannot be taken away by another; nor can the right be converted to a husk. It must continue to be a meaningful right. Too much emphasis on higher education may even cause dent to cause of social justice, as it would be the poorer section of the society which would be deprived of its legitimate expectations. The preference given to the degree-holders would, at the same time, give fillip to the desire to receive higher education, as such persons would always be favourably placed as compared to the lesser educated ones. A harmony would thus be struck, by maintaining reasonableness in the ratio, between the call of social justice and the need for higher education, without in any way jeopardising the principal object of classification. But then, no particular ratio can be spelt out which would satisfy these requirements; the reasonableness of the ratio shall depend on facts of each case.
24. In the present cases the ratio is 3:2 and we regard the same as reasonable in view of what has been stated above relating to adoption of this ratio. Having felt satisfied about the permissibility of the classification also, the cases challenging the constitutionality of the quota for promotion as fixed in this service have to be dismissed.
24. From the above decision of the Hon'ble Supreme Court, it is evident that the Supreme Court found the ratio of 3:2 to be a reasonable ratio as preference was given to degree holders for their higher education. At the same time, making the diploma holders eligible for promotion by striking a harmony between the call of social justice and the need for higher education without in any way, jeopardising the principle object of classification. Further, the Hon'ble Supreme Court observed the reasonableness of ratio shall depend on facts of each case and the ratio fixed under Rule 2(b) was regarded as a reasonable one. The Hon'ble Supreme Court in K.R.Lakshman vs.Karnataka Electricity Board, [(2001) 1 SCC 442], while considering as to whether a ratio of 1:1 for promotion to the post Junior Engineer (Electrical) between technically qualified (direct recruit) and technically not qualified (promotees) considered the question regarding the power of the State to have classification, which reads as follows:-
4.....Equality before law does not mean that things which are different shall be treated as though they were the same. The principle of equality does not absolutely prevent the State from making differentiation between persons and things. The State has always the power to have a classification on the basis of rational distinctions relevant to the particular subject to be dealt with but such permissible classification must satisfy two conditions namely the classification to be founded on intelligible differentia which distinguishes persons or things that are grouped from others who are left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the legislation. In other words, there must be a nexus between the basis of classification and the object of the legislation. So long as the classification is based on a rational basis and so long as all persons falling in the same class are treated alike, there can be no question of violating the equality clause. If there is equality and uniformity within each group, the law cannot be condemned as discriminatory, though due to some fortuitous circumstances arising out of a peculiar situation, some included in the class get an advantage over others, so long as they are not singled out for special treatment. When a provision is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it and having ascertained the policy and object of the Act, the court has to apply a dual test namely whether the classification is rational and based upon an intelligible differentia which distinguished persons or things that are grouped together from others that are left out of the group and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. The power to make classification can be exercised not only by the legislature but also by the administrative bodies acting under an Act.
25. In the preceding paragraphs, we have noted the stand taken by the Government for fixing the ratio of 3:2. In fact, the Government, subsequently in 1984 inserted a proviso to Rule 2(b) by altering the ratio as 3:3 and making the same to operate retrospectively from 1.2.1981. This was to be in effect for 8 years which was subsequently reduced to 5 years by G.O.Ms.No.631. Therefore, from 1.2.1981, till 1988, the ratio was 3:3. The reason for revising the ratio as 3:3 was to divide the available vacancies equally between graduates and diploma holders in view of the large number of diploma holders in agricultural engineering department. Simultaneously, the direct recruitment of candidates to the post of Assistant Executive Engineers (agricultural engineering) was ordered to be deferred for five years from 1981, so that the vacancies can also be filled up by diploma holders resulting in the ratio of 3:3 among degree holders and diploma holders i.e. by promotion and by recruitment by transfer. Therefore, the Government was conscious of the fact that there were large number of diploma holders in the Agricultural Engineering department, who appear to have been stagnating without promotional avenues. Therefore, the decision to fix the ratio as 3:2, or 3:3 has had a reasonable basis and a proper objective so as to give an opportunity of promotion to the diploma holders, simultaneously preserving the equilibrium with that of the degree holders by giving due weightage for their higher educational qualification.
26. In order to declare the impugned rule as ultra vires, it has to be established that the rule is wholly arbitrary or irrational. From the facts noticed above, there is valid justification for adopting such ratio of 3:2 and the same cannot be stated to be either wholly arbitrary or irrational. In view of the reasons given by the Government and the reasons spelt out in the Government Orders, we find hardly, any ground to sustain the contention of the petitioners that the fixation of ratio of 3:2 is either arbitrary or violative of Articles 14 and 16 of the constitution.
27. The learned counsels appearing for the petitioners strenuously contended that foreman who worked under the petitioners have been promoted and an anomalous situation has arisen, where the petitioners who are higher qualified and having longer service are made to work under them. Certain statistics have been placed to justify their submission.
28. The Hon'ble Supreme Court in DWARKA PRASAD AND OTHERS v. UNION OF INDIA AND OTHERS [(2003) 6 SCC 535], considered a case of fixation of quota for promotion to the post of Appraiser and while considering the power of the department for fixing quota, the Hon'ble Supreme Court held as follows:-
16. Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the policy-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in the feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of posts in feeder categories.
17. Normally, where officers are to be drawn for promotion from different posts in the feeder cadre, quota for each post in the feeder cadre is maintained proportionately to the sanctioned strength in that post. This, however, cannot be an inviolable rule of strict application in every case, with an absolute equality of arithmetical exactitude but may vary from case to case depending upon the pattern, structure and hierarchies in the departmental set-up as well as exigencies and balancing needs of administration. There are other relevant considerations, some of which have been mentioned above, which may require departure from the practice of fixation of quota for each post in the feeder cadre, solely proportionate to its strength.
29. After laying down the above principle, the Hon'ble Supreme Court held that there may be instances where Ministerial staff who worked under the officers may get promotion earlier than the officers themselves and in certain cases, where officers with lesser length of service get early promotion and these cannot be a ground to declare quotas as either arbitrary or discriminatory.
30. As noticed above, the Government have justified the reasons for such fixation of quota of 3:2 (3:3) and in our opinion, the reasons assigned are reasonable. The fixation of the ratio of 3:2 cannot be stated to be in any manner denying the petitioners' the chances of their promotion and giving unmerited advantage to diploma holders. As held by the Hon'ble Supreme Court in the earlier round of litigation, where the same impugned Rule was challenged by the diploma holders, the Hon'ble Supreme Court observed that the reasonableness of the ratio shall depend on facts of each case. Therefore, the decision of the Hon'ble Supreme Court relied on by the learned counsel for the petitioner in SHANKUNTALA SHARMA, does not lend support of the case of the petitioners. Further, it is brought to our notice that there are 573 Junior Engineers as on date compared to 372 Assistant Engineers and majority of the Junior Engineers do not get a chance for promotion beyond the stage of Assistant Executive Engineer, as they would attain the age of superannuation by then. Further, unless a person possesses a degree in Engineering cannot aspire for further promotion beyond Executive Engineer as the Rule requires a degree in Engineering as one of the qualification for promotion to the post of Superintending Engineer (Agrl. Engg.).
31. In the light of the above discussion, we find no constitutional infirmity in the fixation of ratio of 3:2 in rule 2(b) of the Special Rules for Tamil Nadu Agricultural Engineering Service and the fixation/ classification is reasonable by balancing the equilibrium between degree holders and diploma holders, giving due weightage for higher qualification, at the same time ensuring an avenue of promotion for the diploma holders, who are large in number in the department and considering the facts placed in the counter affidavit, the justification given by the Government for fixing the ratio of 3:2 between degree holders and diploma holders is reasonable and has nexus to the object sought to be achieved.
32. For all the above reasons, the petitioners have not made out a case for declaring the impugned rule as ultra vires. Consequently, the writ petitions fail and they are dismissed. No costs. Connected miscellaneous petitions are closed.
pbn To
1. The Government of Tamilnadu, Rep. by its Secretary, Agriculture Department, Fort St.George, Chennai 600 009.
2. The Chief Engineer, Agriculture Engineering Department, Chennai 600 005.
3. The Tamil Nadu Agricultural Engineers' Association Recognised by G.O.Ms.No.3144 Public Services C.C., Department dated 20.11.1958, Rep. by its General Secretary S.Periyasamy 16, Poodha Perumal Kovil Street, Chennai 600 002