Madras High Court
A.Gnanamani vs The Secretary To Government on 30 October, 2018
Author: V.M.Velumani
Bench: V.M.Velumani
W.P.(MD).Nos.7139 of 2018 and 13408 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: Delivered on:
26.11.2019 06.01.2020
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD).Nos.7139 of 2018 and 13408 of 2019
and
W.M.P.(MD)Nos.6875, 6876 of 2018 & 9981 to 9983, 10851 &
12564 of 2019
W.P.No.7139 of 2018:
1.A.Gnanamani
2.L.Dharmalingam
3.A.Subramani
4.C.Karthikeyan
5.M.Sivagami
6.A.Sadiq Batcha
7.N.Rathinasamy
8.C.Karthikeyan
9.S.Kandhan
10.A.Rahimunissa
11.G.Balasubramanian
12.K.Rengasamy .. Petitioners
Vs.
1.The Secretary to Government,
The State of Tamil Nadu,
Highways & Minor Ports Department,
St. George Fort, Chennai – 600 009.
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W.P.(MD).Nos.7139 of 2018 and 13408 of 2019
2.The Member Secretary,
Tamil Nadu Public Service Commission,
No.3, Frazer Bridge Road,
V.O.C. Nagar, Park Town,
Chennai – 600 003.
3.The Director General (High Ways),
Highways Department,
Sardar Patel Road, HRS Campus,
Guindy, Chennai – 600 025.
4.D.Yoganandham
5.P.Vivek Sonai
6.J.Gokula Krishnan
7.A.Saravana Vikash
8.K.S.Dinakaran
9.P.Abinash
10.D.Ramkumar .. Respondents
(R4 to R10 are impleaded vide Court order dated 30.10.2018 in W.A.
(MD).No.1092 of 20180
W.P.No.13408 of 2019:
1.A.Gnanamani
2.L.Dharmalingam .. Petitioners
Vs.
1.The Secretary to Government,
The State of Tamil Nadu,
Highways & Minor Ports Department,
St. George Fort, Chennai – 600 009.
2.The Member Secretary,
Tamil Nadu Public Service Commission,
No.3, Frazer Bridge Road,
V.O.C. Nagar, Park Town,
Chennai – 600 003.
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W.P.(MD).Nos.7139 of 2018 and 13408 of 2019
3.The Director General (High Ways),
Highways Department,
Sardar Patel Road, HRS Campus,
Guindy, Chennai – 600 025. .. Respondents
Prayer in W.P.No.7139 of 2018: Writ Petition is filed under Article
226 of the Constitution of India, praying for issuance of writ of
Certiorarified Mandamus to call for the records relating to the impugned
notification published by the 2nd respondent in Notification No.05/2018
dated 28.02.2018 in so far as direct recruitment for the posts of
Assistant Engineer (Civil) in Highways Department (Post Code No.1661)
(Sr.No.7) in the notification and quash the same as illegal and
consequentially to direct the respondents to rectify the ratio imbalance
and notify afresh for the recruitment of Assistant Engineer (Civil) in
Highways Department without exceeding the cadre strength fixed in
terms of Draft recruitment Rule framed by the 1 st respondent in
G.O.Ms.No.82 Highways & Minor Ports Department dated 08.05.2012
within the period that may be stipulated by this Court.
Prayer in W.P.No.13408 of 2019: Writ Petition is filed under Article
226 of the Constitution of India, praying for issuance of writ of
Certiorarified Mandamus to call for the records relating to the impugned
notification published by the 2nd respondent in Notification No.18/2019
dated 29.05.2019 in so far as direct recruitment for 123 posts of
Assistant Engineer (Civil) in Highways Department (Post Code No.1661)
(Sr.No.7) in the notification and quash the same as illegal and
consequentially to direct the respondents to rectify the ratio imbalance
and notify afresh for the recruitment of Assistant Engineer (Civil) in
Highways Department without exceeding the cadre strength fixed in
terms of Draft recruitment Rule framed by the 1 st respondent in
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W.P.(MD).Nos.7139 of 2018 and 13408 of 2019
G.O.Ms.No.82 Highways & Minor Ports Department dated 08.05.2012
within the period that may be stipulated by this Court.
For Petitioners : Mr.Ajmal Khan, Senior Counsel
for M/s.Ajmal Associates for
Mr.C.Venkatesh Kumar (in both W.Ps)
For RR 1 & 3 : Mr.M.Rajagopal
Additional Advocate General
Assisted by Ms.S.Srimathy,
Special Government Pleader (in both W.Ps)
For R2 : Mr.K.K.Senthil (in both W.Ps)
For RR 4 to 10 : Mr.A.Kannan
(in W.P.No.7139 of 2018)
COMMON ORDER
Writ Petitions are filed for issuance of writ of Certiorarified Mandamus to call for the records relating to the impugned notifications published by the 2nd respondent in Notification Nos. 05/2018 dated 28.02.2018 and 18/2019 dated 29.05.2019 in so far as direct recruitment for the posts of Assistant Engineer (Civil) in Highways Department (Post Code No.1661) (Sr.No.7) in the notification and quash the same as illegal and consequentially to direct the respondents to rectify the ratio imbalance and notify afresh for the recruitment of Assistant Engineer (Civil) in Highways Department without exceeding the cadre strength fixed in terms of Draft recruitment Rule framed by the 1st respondent in G.O.Ms.No.82 Highways & Minor Ports Department dated 08.05.2012 within the period that may be stipulated by this Court.
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2.The issue involved in both the Writ Petitions are one and the same and hence they are disposed of by this common order.
3.The parties are referred to as per their rank in W.P.No.7139 of 2018 for the sake of convenience.
4.The learned Senior Counsel appearing for the petitioners contended that the petitioners are Diploma Holders and they are working as Junior Drafting Officers in Highways Department under the third respondent. From the date of formation of the Highways Department, Degree Holders and Diploma Holders in Engineering are recruited at the entry level post of Section Officers. Earlier, there was a distinction between Degree Holders and Diploma Holders, whereby Diploma Holders were denied promotion to the post of Supervisor in the event of an Engineering Graduate is available. The said position was ratified by issuance of G.O.Ms.No.1359 Public Works Department dated 14.03.1956, whereby directions were issued to consider 25% of vacancies arising should be reserved for persons holding LCE Diploma and other eligible qualifications. Subsequently, by G.O.Ms.No.294 Public Works Department dated 22.02.1977, Degree Holders were re- designated as Assistant Engineers and Diploma holders were re- designated as Junior Engineers.
5/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 4(a). The post of Assistant Engineer in Highways Department are governed by the Tamil Nadu Highways Engineering Service and the post of Junior Engineer in Highways Department are governed by the Tamil Nadu Highways Engineering Subordinate Service. As per Rule 18(a) of the Tamil Nadu Highways Engineering Service, 25% of the total number of vacancies both in the category of Assistant Engineers in the Tamil Nadu Highways Engineering Service and in the category of Junior Engineers in the Tamil Nadu Highways Engineering Subordinate Service estimated every year shall be reserved to be filled up by the candidates possessing L.C.E Diploma or its equivalent qualification. The other 75% of the vacancies shall be reserved to be filled up by the candidates possessing a degree in Engineering or its equivalent qualification for appointment as Assistant Engineers.
4(b). While so, the first respondent issued G.O.Ms.No.185 dated 24.05.2010, to rectify the ratio imbalance and considering various wings of the Highways Department, the number of engineering posts and the number of subordinate posts were sanctioned in which the combined sanctioned number of post of Assistant Engineer and Junior Engineer were fixed as 972. The third respondent by the proceedings dated 10.04.2012 clarified the said position and sent a separate proposal to the first respondent to amend the Rule 18(a) of the Tamil Nadu Highway 6/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 Engineering Service for fixing cadre strength for recruitment for Assistant Engineer and Junior Engineer.
4(c). The first respondent by G.O.Ms.No.82, Highways and Minor Ports Department dated 08.05.2012, issued amended Draft Recruitment Rules by fixing cadre strength in the post of Assistant Engineer and Junior Engineer. After issuance of G.O.Ms.No.82 dated 08.05.2012, the first respondent issued G.O.(D).No.44 dated 24.02.2015 by which estimated the vacancies for the post of Assistant Engineer is 126 and for the post of Junior Engineer is 5 in Highways Department for the years 2011-2012, 2012-2013 and 2013-2014 by direct recruitment through the second respondent, Tamil Nadu Public Service Commission (hereinafter referred to as “TNPSC”). The second respondent also published the notification in Advertisement No.415 dated 21.07.2015.
4(d). The said G.O.(D).No.44 dated 24.02.2015 and the subsequent notification issued by the second respondent were challenged by some of the Junior Draughting Officers before the Principal Bench of this Court in W.P.No.28423 of 2015 and this Court granted an interim order dated 18.12.2015 with a specific direction “Any appointment to be made would be subject to the result of the Writ Petition”.
7/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 4(e). The second respondent/TNPSC again issued notification in Advertisement No.491 dated 28.02.2018 calling for direct recruitment to the post of 160 Assistant Engineer (Civil) in Highway Department. This Recruitment is over and above the cadre strength fixed in Draft Recruitment Rules in G.O.Ms.No.82, Highways and Minor Ports Department dated 08.05.2012. As per the amended Rule, the total cadre strength was fixed at 972 and as per ratio of 75:25, the cadre strength was fixed for Assistant Engineer at 760 and for Junior Engineer at 212 and as on 01.06.2019, 817 Assistant Engineers are working under the third respondent, which is in excess of 760 Assistant Engineers as per G.O.Ms.No.82, Highways and Minor Ports Department dated 08.05.2012. The Junior Engineers are entitled to 212 posts. The said notification is challenged in W.P.(MD).No.7139 of 2018.
4(f). Again the first respondent issued another notification No. 18/2019 dated 29.05.2019 calling for 123 posts of Assistant Engineer (Civil) in Highways Department (Post Code No.1661) (Sr.No.7) which is impugned in W.P.No.13408 of 2019. The recruitment of Assistant Engineer now sought to be made is over and above the cadre strength and Draft Recruitment Rules in G.O.Ms.No.82 dated 08.05.2012. 8/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 4(g). In W.P.No.28423 of 2015, the respondents 1 and 3 filed counter affidavit wherein they have admitted that steps have been taken to amend the existing Rule 18 (a) of Tamil Nadu Highways Engineering Service and Draft Recruitment Rules made in G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 is under scrutiny for proposed amendment to the special Rules.
4(h).In W.P.(MD).No.7139 of 2018, this Court passed an order on 10.04.2018 directing the respondents, therein to file written statement. The relevant portion of the order is extracted below:
“11.Therefore, the following directions are given to get such answer from the Government:-
● The respondent, especially, the first respondent shall give a written statement before this Court as to whether any proposed amendment (draft Rule) is pending consideration and for approval before the Government seeking amendment to the Special Rules for Tamil Nadu Highways Engineering Service.
● If so, within how much period, the Government shall take a decision in this regard either way.
● The aforesaid needful shall be done and necessary written statement shall be filed before this Court on 9/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 or before 24.04.2018.” 4(i). This Court passed another order dated 24.04.2018 in W.P. (MD).No.7139 of 2018, wherein in the said order, this Court recorded the statement of the learned Special Government Pleader that the Government has to take a decision for the proposed amendment in Rule 18 (a) of the Special Rules for Tamil Nadu Highways Engineering Service and once a decision is taken by the Government, the parties can act accordingly and petitioner cannot have grievance to agitate. Considering the above submission, this Court directed the first respondent to file a status report on the progress of the proposed amendment by first week of July 2018. The learned Special Government Pleader contended that as per G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012, a Draft Recruitment Rules was framed, but it is yet to be approved by the Government. The learned Senior Counsel further contended that even if Draft Rules are not approved, it is always open to the first respondent to regulate the service conditions of the employee for whom the rules are made, even if the said rules are in draft stage, if the intention of the first respondent is to enforce those rules in the near future. Instead of fixing cadre strength, the respondents are proceeding with selection of direct Recruitment to the post of Assistant Engineer without reference to the amended Draft Recruitment Rules.10/33
http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 4(j). The said action of the respondents is in violation of their own order. The respondents themselves admitted that they are going to amend the Service Rules and the same is yet to be finalized for approval. In view of the same, the respondents are not entitled to directly recruit for the post of Assistant Engineer without reference to G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 and directions issued by this Court on 10.04.2018 and 24.04.2018. For the above reasons, the learned Senior Counsel appearing for the petitioners prayed for allowing the Writ Petitions.
5. The learned Additional Advocate General appearing for the respondents 1 & 3 in both the Writ Petitions contended that in Highways Department apart from various posts, there is a post of Assistant Engineer. The said post is originally filled up by Degree Holders in Engineering and in the absence of Degree Holders, Diploma Holders were appointed. Subsequently, the Diploma Holders were also made eligible to be appointed as Assistant Engineers. 25% of the post of Assistant Engineer is filled from Diploma Holders either by direct Recruitment or by transfer from Junior Engineer or Supervisors in Tamil Nadu Highways Engineering Subordinate Service or from Junior Engineers or Supervisors of the Public Works Department in Tamil Nadu 11/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 Engineering Subordinate Service working in the Highways Department.
5(a). Rule 18(a) of Tamil Nadu Highways Engineering Service is the relevant rule by which the post of Assistant Engineer is filled up. As per the said rule, 25% of the vacancy in the post of Assistant Engineer will be reserved to be filled up by candidates possessing LCE Diploma Holders or its equivalence. The other 75% of vacancy is reserved to be filled up by candidates possessing Degree in Engineering or its equivalence. As per the said rule for the estimated vacancy arising every year, 75% has been reserved to Degree Holders and 25% has been reserved to Diploma Holders.
5(b). In G.O.Ms.No.185 dated 24.05.2010, the total post of Assistant Engineer was fixed as 972. Subsequently, by G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012, the cadre strength of Assistant Engineer is fixed as 760 and Junior Engineer is fixed as 212. The said Government Order is an Executive Order. Unless the rule is amended, the ratio fixed in G.O.Ms.No.185 dated 24.05.2010 cannot be implemented. Further M.Rangarajan and 19 others filed W.P.No.27218 of 2012 to quash G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 and this Court directed the respondents to apportion the vacancies accruing every year in both 12/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 the categories of Assistant Engineer and Junior Engineer in the ratio of 75:25 respectively as per Rule 18(a) of Special Rules of Tamil Nadu Highways Engineering Services. This Court, by order dated 10.01.2013, referring to order dated 02.11.2010 in W.P.No.7452 of 2006, held that respondents shall follow the Special Rules for Tamil Nadu Highways Engineering Services and recorded the statements of the respondents that no vacancies have arrived at, in the impugned Government Order.
5(c). The third respondent in its office letter No. 1915 / Nir 2 (2) / 2008 dated 05.03.2013 has sent draft amendment proposal to the first respondent regarding the existing Rule 18 (a) of Special Rules of Tamil Nadu Highways Engineering Service. The said proposal was sent to the advisory department i.e., Personnel and Reforms Department, Finance Department and Law Department. The advisory departments have requested certain additional particulars as there is conflicting views on certain issues.
5(d). The learned Additional Advocate General further contended that nature of work in the post of Assistant Engineer and Junior Engineer are same but the prescribed educational qualification is different. It is not possible to segregate the cadre strength to the post of Assistant Engineer/Junior Engineer to implement G.O.Ms.No.82, 13/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 Highways and Minor Ports Department, dated 08.05.2012. In view of the same, the third respondent in its office letter bearing No.2854/Nir 2(2)/2010 dated 29.01.2015 requested the first respondent to withdraw the G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012.
5(e). The first respondent directed the third respondent to form a Committee under the Chairmanship of Director General Highways Department to examine the feasibility of modification of G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012. The said Committee was formed under the Chairmanship of Director General, Highways Department with The Chief Engineer (H), Construction and Maintenance, Chennai and The Chief Engineer, National Highways, Chennai as its members. The Committee has held three meetings and Director General has informed the first respondent that the Committee would submit their final report shortly.
5(f). The learned Additional Advocate General further contended that when Rule 18 (a) of Special Rules of Tamil Nadu Highways Engineering Service is not amended, then Clause 20 of Section 7(1) Schedule XI of Tamil Nadu Government Servants (conditions of service) Act, 2016 would apply. The said Clause 20 of Section 7(1) Schedule XI 14/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 is extracted below:
“...(20) Whenever a temporary post is newly created and adhoc rules are not framed for the post, appointment to such post shall be made on adhoc basis. In case of posts governed by rules, promotion or appointment shall not be made with reference to the proposed amendment to rules but shall be made only with reference to the existing rules. No promotion or appointment shall be made on the basis of the executive orders seeking to modify the rules. While selecting candidates for appointment or promotion, the claim of contesting candidate shall be weighed with reference to the rules in force and not with reference to executive orders or contemplated changes in the rules.” 5(g). Referring to said Clause, the learned Additional Advocate General contended that when the post is newly created and adhoc rules was not framed for the post, appointment shall be only on adhoc basis and promotion or appointment shall not be made reference to the proposed amendment to the rules but shall be made only with reference to existing rules. No promotion or appointment shall be made on the basis of executive order seeking to modify the rules.
5(h). The learned Additional Advocate General further conteded that G.O.Ms.No.82, Highways and Minor Ports Department, dated 15/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 08.05.2012, is issued contrary to Rule 18 (a) of Special Rules of Tamil Nadu Highways Engineering Service, prevailing in Tamil Nadu Highways Engineering Service and based on G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012, the appointment can be made, if the rule is amended. The estimated vacancies of Assistant Engineer for the year 2018-2019 is fixed as 164 for the post of Assistant Engineer and Junior Engineer as per Rule 18 (a) of Special Rules of Tamil Nadu Highways Engineering Service. Out of 164 post, 123 posts were allotted to the post of Assistant Engineer and 41 post were allotted to the post of Junior Engineer in the ratio of 75:25. Out of 41 posts of Junior Engineer, 37 posts were already filled up by promotion from feeder cadre and remaining 4 posts has to be filled up by direct recruitment through the second respondent, TNPSC. The third respondent by its letter dated 01.11.2018 has informed the second respondent about the same and therefore the Notification No.18/2019 dated 29.05.2019 impugned in W.P.No.13408 of 2018, to fill up 123 posts of Assistant Engineer (Civil) in Highways Department by persons having Degree in Engineering is valid and petitioners have no right based on the executive order. For the very same Notification No. 05/2018 dated 28.02.2018 impugned in W.P.No.7139 of 2018, issued by the second respondent and challenging the above notifications is also devoid of merits and prayed for dismissal of both the Writ Petitions.16/33
http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 5(i). In support of his contention, the learned Additional Advocate General appearing for the respondents 1 & 3, cited the following judgments:
(i) The judgment of the Hon'ble Apex Court reported in (1998) 4 SCC 114, [Vimal Kumar Vs. State of Haryana and others], wherein at paragraphs No.6 and 7 it has been held as follows:
“...6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees for whom the Rules are made, by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from 17/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 issuing the executive instructions for regulating the conditions of service of the employees working under them.
7. In the instant case, as pointed out above, the Draft Rules were prepared in 1983. They have been lying in the nascent state since t hen. In the meantime, many promotions, including that of the appellant were made on the basis of `seniority' which, in the absence of any Rule made under Article 309, could be legally adopted as the criteria for making promotion on the post of Superintendent could not have been displaced by the Draft Rules and the High Court could not have invoked any provision of those Draft Rules which had been lying frozen at their embryonic stage for more than ten years.”
(ii) The judgment of the Hon'ble Apex Court reported in (2005) 9 SCC 394, [Union of India through Government of Pondicherry and another Vs. V.Ramakrishnan and others], wherein at paragraph Nos.27 and 28, it has been held as follows:
“...27.In Dr. Rajinder Singh Vs. State of Punjab and Others [(2001) 5 SCC 482], this Court held:
"5. It has not been disputed before us that on the relevant date when 18/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 Respondent 3 was recommended for promotion, he had not completed 10 years of service within the meaning of Rule 9-A read with Rule 2(2) of the PCMS Clause I Rules. As Respondent 3 was not possessing the requisite qualifications on the relevant date, he could not be considered for promotion to the post of Deputy Director, Health Services."
It was further held :
"7. The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Clause II of the service can be treated as Clause I only by way of notification.
Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution."
28.Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary is holding the field. It can safely be assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra) and Gujarat Kisan Mazdoor Panchayat (supra) that draft Rules can be acted upon, will apply where there are no rules 19/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India.”
(iii) The order of this Court dated 26.03.2015 made in W.P.No. 35015 of 2014, [V.Narayanasamy Vs. Union of India and others], wherein at paragraph Nos. 11.1 and 11.2, it has been held as follows:
“...11.1) In U.O.I Through Govt. Of Pondicherry and another v. V.Ramakrishnan and Others reported in AIR 2005 Supreme Court 4295, the Supreme Court observed as follows:
"Valid rules made under proviso appended to Art. 309 of the Constitution of India operate so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary is holding the field. It can safely be assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra) and Gujarat Kisan Mazdoor Panchayat (supra) that draft Rules can be acted upon, will apply where the are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India."
11.2) In Union of India and Another Vs. 20/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 Central Electrical & Mechanical Engineering Service (CE & MES) Group 'A' (Direct Recuits) Assn., CPWD and others reported in (2008) 1 Supreme Court Cases 354, the Supreme Court observed as follows:
"10. It is now a well-settled principle of law that an executive order must be passed in conformity with the rules. Power of the State Government to issue executive instructions is confined to filing up of the gaps or covering the area which otherwise has not been covered by the existing rules."
6. The learned counsel appearing for the 2nd respondent contended that as per instruction of first respondent, the second respondent has issued notification calling for application for appointment of Assistant Engineers by direct recruitment from Engineering graduates. The number of vacancies and conditions mentioned therein are proper and valid and prayed for dismissal of both the Writ Petitions.
7. The learned counsel appearing for the respondents 4 to 10 in W.P.(MD).No.7139 of 2018 contended that petitioners in both the Writ Petitions did not have any legal right to maintain the Writ Petitions. The G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 is an executive order issued under Article 162 of Constitution of India, which does not confer any right on the petitioners, 21/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 unless the same is incorporated into the rules after due examination by other consulting Departments including the TNPSC. The Rule 18(a) of Special Rules to Tamil Nadu Highways Engineering Service is the relevant Rule for appointment of Assistant Engineers. The said Rule is statutory Rule and G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012, is only an executive order. The G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 cannot be invoked without amending Rule 18(a) of Special Rules to Tamilnadu Highways Engineering Service which is in force now. The Writ Petition in W.P.No.23423 of 2015 was filed challenging the G.O.Ms.No.44 dated 24.02.2015 in Principal Bench of this Court and the 10th petitioner herein in W.P.No.7139 of 2018 is the 13th petitioner in W.P.No.28423 of 2015 and the same is pending before the Principal Bench of this Court. This Court did not grant any interim order in the said Writ Petition and petitioners have come out with the present Writ Petition which is abuse of process of Court. Further six petitioners are working in Coimbatore District and if they have any grievance, they can approach only the Principal Bench of this court and Writ Petition is not maintainable before this Court.
8(a). The contention of the petitioners that apportionment of vacancies between Assistant Engineers and Junior Engineers must be in 22/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 the ratio of 75 : 25 as per G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012, is contrary to the Rules and Law declared by the Hon'ble Apex Court in the judgment reported in 1999 3 SCC 384, [All India Federation of Central Excise Vs. Union of India and others] and the learned counsel appearing for the respondents 4 to 10 in W.P.(MD).No.7139 of 2018 cited paragraph No. 22 of the said judgment which is extracted below:
“...22. It may be noted that as long as a particular quota is fixed by a rule, it will have to be followed till the quota fixed therein is altered by appropriate amendment of the relevant rules. As held in V.B.Badami vs. State of Mysore [1976 (2) SCC 901 (at 910)], quotas which are fixed can only be altered by a fresh determination of the quota. It will be for the applicants to take such steps as they deem fit, if they feel aggrieved about the existing quota but the filing of this IA is not the proper remedy. We are not also prepared to accept that the proposals of the Government of India dated 8.6.89 themselves visualised a constant change in the quota from time to time. Such a change, in our view, has to be done by a fresh determination and it is for the applicants to make out a case therefor and take the necessary steps for such modification.” 8(b). The learned counsel appearing for the respondents 4 to 10 23/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 further contended that similarly placed persons like respondents 4 to 10 filed Writ Petition in W.P.No.27218 of 2012 challenging the G.O.Ms.No. 82, Highways and Minor Ports Department, dated 08.05.2012. This Court, following the order passed in W.P.No.7452 of 2006, directed the respondents 1 to 3 to follow Rule 18(a) of Special Rules to Tamilnadu Highways Engineering Service and prayed for dismissal of the Writ Petition.
9. The learned Senior Counsel appearing for the petitioners in reply contended that Draft Rules can also be followed when the intention of the Government is to implement the said Draft Rules. In support of his contention, the learned Senior Counsel relied on the judgment of the Hon'ble Apex Court reported in AIR 2003 SC 1201, [High Court of Gujarat and another Vs. Gujarat Kishan Mazdoor Panchayat and others], and prayed for allowing the Writ Petitions.
9(a). The relevant portion of the said judgment is extracted below:
“...27.It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce 24/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 those rules in the near future. [See Vimal Kumari Vs. State of Haryana and others reported in (1998) 4 SCC 114].”
10. Heard the learned Senior Counsel for the petitioners and learned Additional Advocate General appearing for the respondents 1 & 3 in both the Writ Petitions, learned counsel for the 2nd respondent and the learned counsel appearing for the respondents 4 to 10 in W.P. (MD).No.7139 of 2018 and perused the entire materials on record.
11. Both the Writ Petitions are filed challenging the Notification No.05/2018 dated 28.02.2018 and Notification No.18/2019 dated 29.05.2019 in so far as direct recruitment, published by the second respondent, TNPSC for recruitment for the posts of Assistant Engineer (Civil) in Highways Department and directing the second respondent to issue fresh notification after ratifying the ratio imbalance as per Draft Recruitment Rules framed by the first respondent in G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012. According to the respondents, the post of Assistant Engineer in Highways Department is to be filled up in the ratio of 75% by direct recruitment with candidates holding Degree in Engineering and 25% to be filled up by Diploma Holders. There is no dispute with regard to ratio of 75:25 as alleged by the petitioners.
25/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 12(a). The issue is whether the vacancy of Assistant Engineer that arise every year is to be filled up in the ratio of 75:25 by Engineering Graduates and Diploma Holders or to be filled up only as per the number of posts of Assistant Engineer and Junior Engineer fixed by G.O.Ms.No.185, Highways and Minor Ports Department, dated 24.05.2010. The total number of post of Assistant Engineer is fixed at 972 and applying the ratio of 75:25, the cadre strength of Assistant Engineers is fixed at 760 and Junior Engineers is fixed at 212. The third respondent in its proceedings dated 10.04.2012, clarified the said position and sent separate proposal to the first respondent to amend Rule 18(a) of the Tamil Nadu Highway Engineering Service, fixing cadre strength for recruitment of Assistant Engineer and Junior Engineer. The said recommendation was accepted by the first respondent and first respondent issued amended Draft Rules by fixing cadre strength for the post of Assistant Engineer and Junior Engineer by issuing G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012, which is admitted by both petitioners as well as respondents. The said Draft Recruitment Rules are only in the draft stage. As per Rule 18(a) of the Tamil Nadu Highway Engineering Service, 75% of vacancies that arise in a particular year has to be filled up by Engineering Graduates and 25% has to be filled up by Diploma Holders. The emphasis in Rule 18(a) 26/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 of the Tamil Nadu Highway Engineering Service is the vacancy that arises every year. The cadre strength is fixed in G.O.Ms.No.185 dated 24.05.2010 and cadre strength of Assistant Engineer and Junior Engineer are not incorporated in the said Rules by amending the Rule 18(a) of the Tamil Nadu Highway Engineering Service. Unless and until Rule 18(a) of the Tamil Nadu Highway Engineering Service, which is in force are amended or replaced, the respondents 1 to 3 are bound to follow the same.
12(b). In W.P.No.7452 of 2006 filed by similarly placed persons like petitioners, this Court has directed the official respondents 1 to 3 to follow Rule 18 (a) of the Special Rules for Tamil Nadu Highways Engineering Service. In view of the rule position of 18(a) of the Special Rules for Tamil Nadu Highways Engineering Service, the contentions of learned Additional Advocate General appearing for the respondents 1 and 3 as well as learned counsel appearing for the respondents 4 to 10 in W.P.(MD).No.7139 of 2018 that G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 cannot be implemented contrary to Rule 18(a) of the Special Rules for Tamil Nadu Highways Engineering Service has considerable force.
27/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 12(c). It is not in dispute that draft recruitment rules in G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 is only an executive order and it cannot replace the rule having statutory force. The Government, after receiving the clarification from the third respondent dated 10.04.2012 and after issuing G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 has formed a Committee headed by Director General, Highways Department with The Chief Engineer (H), Construction and Maintenance, Chennai and The Chief Engineer, National Highways, Chennai as its members. The third respondent subsequent to the clarification dated 10.04.2012 by its letters dated 29.01.2015 and 12.04.2018 requested the first respondent to withdraw the draft amendment proposal already sent and withdraw G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012.
12(d). In view of the fact that the first respondent has appointed a Committee to find out whether the draft recruitment rules as mentioned in G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 can be implemented or not and subsequent communication of third respondent contained in letters dated 29.01.2015 and 12.04.2018 to withdraw G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012, the contention of learned Senior 28/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 Counsel appearing for the petitioners that first respondent can follow the draft recruitment rules is without merits and the judgment relied on by the learned Senior Counsel appearing for the petitioners in reply reported in AIR 2003 SC 1201 wherein itself the Hon'ble Apex Court in paragraph no.27 has held that draft recruitment rules can be acted upon provided there is clear intention on the part of the Government to enforce those rules in near future.
12(e). In the present case, the first respondent has not stated that draft recruitment rules will be followed in near future. On the other hand, they are awaiting for report of the Committee to take a stand with regard to accepting or rejecting draft recruitment rules. G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 is of the year 2012 and till date, the same is in draft stage only. Further the third respondent has taken a stand that G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 as well as proposal sent to the Government for draft amendment proposal are to be withdrawn. In such circumstances, it cannot be said that first respondent has intention of implementing draft amendment rules in near future. It is pertinent to note that in earlier Writ Petitions in W.P.Nos.7452 of 2006 and 27218 of 2012 filed by similarly placed persons like respondents 4 to 10, this Court has directed the official respondents to follow Rule 18(a) of the 29/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 Special Rules for Tamil Nadu Highways Engineering Service.
12(f). Whenever a temporary post is newly created and adhoc rules are not framed, Clause 20 of Section 7(1) Schedule XI of Tamil Nadu Government Servants (conditions of service) Act, 2016 would apply. The said Clause 20 of Section 7(1) Schedule XI is extracted in para 5(f). As per this Clause, no promotion or appointment shall be made on the basis of executive order seeking to modify the rules.
12(g). The learned Additional Advocate General appearing for the respondents 1 & 3 contended that for the year 2018-2019, the total vacancy for the post of Assistant Engineer and Junior Engineer is fixed as 164 post as per Rule 18(a) of the Special Rules for Tamil Nadu Highways Engineering Service. Applying 75% ratio for Engineering Graduates, there are 123 posts of Assistant Engineer and 41 post of Junior Engineer. Out of 41 posts, 37 posts were already filled up by promotion from feeder cadre and remaining 4 posts by direct recruitment through the second respondent, TNPSC. The Writ Petitions are devoid of merits as claim of petitioners is contrary to Rule 18(a) of the Special Rules for Tamil Nadu Highways Engineering Service, which is statutory rule framed under Article 309 of Constitution of India and contention of the learned Senior Counsel for the petitioners that ratio 30/33 http://www.judis.nic.in W.P.(MD).Nos.7139 of 2018 and 13408 of 2019 must be refixed as per G.O.Ms.No.82, Highways and Minor Ports Department, dated 08.05.2012 is without merits.
13. In the result, both the Writ Petitions are dismissed. The judgments relied on by the learned Additional Advocate General appearing for the respondents 1 & 3 in both W.Ps. and by the learned counsel appearing for respondents 4 to 10 in W.P.(MD).No.7139 of 2018 are squarely applicable to the facts of the present case and the judgments relied on by the learned Senior Counsel appearing for the petitioners will not advance the case of the petitioner. No costs. Consequently, connected Miscellaneous Petitions are closed.
06.01.2020
krk
Index : Yes
Internet : Yes
Note : Issue order copy on 09.01.2020.
To
1.The Secretary to Government,
The State of Tamil Nadu,
Highways & Minor Ports Department,
St. George Fort, Chennai – 600 009.
2.The Member Secretary,
Tamil Nadu Public Service Commission,
No.3, Frazer Bridge Road,
V.O.C. Nagar, Park Town,
Chennai – 600 003.
3.The Director General (High Ways),
31/33
http://www.judis.nic.in
W.P.(MD).Nos.7139 of 2018 and 13408 of 2019
Highways Department,
Sardar Patel Road, HRS Campus,
Guindy, Chennai – 600 025.
32/33
http://www.judis.nic.in
W.P.(MD).Nos.7139 of 2018 and 13408 of 2019
V.M.VELUMANI, J.
krk
W.P.(MD).Nos.7139 of 2018 and 13408 of 2019
06.01.2020
33/33
http://www.judis.nic.in