Madras High Court
Association Of Tamil Nadu Highways ... vs Government Of Tamil Nadu on 3 January, 2014
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 03-1-2014
CORAM:
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
W.P.Nos.1327 and 40220 of 2005 and W.P.No. 19732 of 2006
and
W.P.M.P.No. 1495 of 2005
W.P.No.1327 of 2005
1. Association of Tamil Nadu Highways Engineers
represented by its General Secretary
35, Taluk Office Road
Saidapet,
Chennai 15.
2. C.Sasikumar
3. J.Kumaresan ... Petitioners
Versus
1. Government of Tamil Nadu
represented by its Commissioner
and Secretary
Highways Department
Fort St.George
Chennai 9.
2.The Chief Engineer (General)
Highways Department
Chepauk
Chennai 5.
3. K.Shanmughasundaram
4. S.Asokan
5. D.Relton Chandrakumar
6. S.Velusamy
7. V.Vijaya
8. G.Sathiiss
9 K.Manoharan
10 R.Jayachandran
11 V.Arunachalam
12 Panneerselvam
13 M.Shanmugavel
14 E.Rajamohan
15 D.Natarajan
16 A.Achuthan
17 G.Natarajan
18 T.Raju ... Respondents
(R6 to R18 impleaded as per the order of the Court dated 30.10.2007 made in WPMP No.2050 of 2007 in W.P.No. 1327 of 2005)
W.P.No.40220 of 2005
1. M.Someswaran
2 K.Lokanathan
3 M.Mohana Gandhi
4 R.Muthuchamy
5 P.Govindan
6 V.Uthaya Kumar
7 P.Chandra
8 M.Ravi
9 B.Prabhakar
10 A.Matheswaran
11 K.Thangavel
12 M.Sathiaseelan
13 J.Muralikumar
14 V.Agila
15 T.Tharmaraj
16 M.R.Rajinikanth
17 A.Anaiappan
18 K.Mariappan
19 M.Chandra Sekaran
20 I.Prabaharan Prince
21 C.Sathiyamoorthi
22 M.Murugaboopathy
23 A.Kumanan
24 G.Murugan
25 R.Lakshmi
26 A.Thangapandi
27 P.Dhanablan
28 U.Arumuga Nainar
29 C.Merlin Christal
30 A.Eugin
31 M.Xavier Therese
32 R.Viswanathan
33 P.N.A.Balamurugan
34 K.Karunakaran
35 S.Gangadaran
36 K.Kannan
37 K.G.Jayaprakash
38 T.Thiruvarulselvan
39 N.K.S.Sree Anbarasu
40 G.Sekar
41 S.Malliga
42 R.Jose Antony Syril
43 M.Lenin
44 C.Arulnathan
45 K.Balaji
46 D.Krishnamurthy
47 C.Sivakumar
48 A.Arutselvam
49 R.Selvaraj
50 A.Ganesan
51 V.Veerappan
52 R.Ravi
53 J.Kannan ... Petitioners
Vs
1 The Government of Tamil Nadu
Rep. By its Secretary, Highways Department
Fort St., George,
Chennai -9
2 The Chief Engineer (General)
Highways Department
P.W.D Building, Chepauk
Chennai -5
3 Tamil Nadu Public Service Commission,
represented by its Secretary
Government Estate,
Chennai -2
4 V.Srinivasan
5 N.Subramanian
6 T.Relton Chandrakumar
7 R.Kandasamy
8 R.Lakshmanan
9 N.Kannappan
10 J.K.Paulraj
11 K.Suriya Prabakaran
12 R.Jayachandran
13 R.Adhinathan
14 P.Guruvarettiyar
15 V.Puthiyanayagam
16 P.Sengottuvan
17 P.Chinnasamy
18 R.Kesavakannan
19 N.Nagarjan
20 G.Sathish
21 M.Shanmugavelu
22 K.Manoharan
23 K.Arumugasamy
24 R.Thangaraj
25 N.Rengaraj
26 K.Shanmugasundaram
27 G.Natarajan
28 M.Subramanian
29 V.Vijaya
30 Ramachandran
31 S.Bharathi
32 D.Natarajan
33 E.Rajmohan
34 P.Panneer Selvam
35 S.Veluchamy
36 A. Muthuchamy
37 M.M.Chakravarthy
38 V.Jayakumar
39 K.Thirumaran
40 Veerapandian
41 S.Vijayakumar
42 R.Sakthivel
43 S.Ashokan
44 M. Shanmugam
45 P.Vaiyapuri
46 P.Saraswathi
47 C.Gnanamurugan
48 R.Vedaraniyan
49 A.C.Murugesan
50 R.Thangamuthu
51 T.Elangaovan
52 R.Sundararajulu
53 T.Thamaraiselvan
54 M. Arumugam
55 P.Arunachalam
56 T.Raju
57 A.Achuthan
58 S.Jayanthi
59 M.Selvam
60 C.Ravi
61 M.Xavier Jayaseelan .. Respondents
W.P.No. 19732 of 2006
1 T.Kannan ... Petitioner
Vs.
1. The Government of Tamilnadu
Rep. By tis Secretary to Government,
Highways Department,
Fort St. George,
Chennai 9
2. The Chief Engineer (General)
Highways Department,
P.W.D. Campus, Chepauk
Chennai 5.
3 Tamil Nadu Public Service Commission,
Represented by its Secretary
Government Estate,
Chennai -2
4 J.K.Paulraj
5 V.Srinivasan
6 N.Subramanian
7 K.Suriya Prabakaran
8 T.Relton Chandrakumar
9 R.Kandasamy
10 R.Lakshmanan
11 S.Kannappan
12 R.Jayachandran
13 R.Adhinathan
14 P.Guruvarettiyar
15 V.Puthiyanayagam
16 P.Sengottuvelu
17 P.Chinnasamy
18 R.Kesavakannan
19 N.Nagarjan
20 G.Sathish
21 M.Shanmugavelu
22 K.Manoharan
23 K.Arumugasamy
24 R.Thangaraj
25 N.Rengaraj
26 K.Shanmugasundaram
27 G.Natarajan
28 S.Subramanian
29 V.Vijaya
30 S.Ramachandran
31 S.Bharathi
32 D.Natarajan
33 E.Rajmohan
34 P.Panneer Selvam
35 S.Veluchamy
36 A. Muthuchamy
37 M.M.Chakravarthy
38 V.Jayakumar
39 K.Thirumaran
40 K.Veerapandian
41 S.Vijayakumar
42 R.Sakthivel
43 S.Ashokan
44 M. Shanmugam
45 P.Vaiyapuri
46 P.Saraswathi
47 C.Gnanamurugan
48 R.Vedaraniyan
49 A.C.Murugesan
50 R.Thangamuthu
51 T.Elangovan
52 R.Sundararajulu
53 T.Thamaraiselvan
54 M. Arumugam
55 P.Arunachalam
56 T.Raju
57 A.Achuthan
58 S.Jayanthi
59 M.Selvam
60 C.Ravi
61 M.Xavier Jayaseelan ... Respondents
Prayer: Writ Petition in W.P.No.1327 of 2005 filed under Article 226 of the Constitution of India for the relief of issuance of writ of certiorairfied mandamus to call for the records relating to the G.O.(Ms) No. 265, Highways (HK2) Department dated 24.9.2004 issued by the Secretary to Govt. Highways Department, Fort St. George, Chennai-9 the first respondent herein and the proceedings of the Chief Engineer (General) Highways Department, Chepauk, Chennai 600 005 made in proceedings No.14887/Administration 3(4) 2000 dated 30.9.2004 and the second respondent herein and quash the same and consequently direct the respondents 1 and 2 herein not to include or consider the respondents 3 to 5 herein and the other 63 temporarily appointed Assistant Engineers contrary to the Special Rules of the Tamil Nadu Highways Engineering Service Rules in the seniority list of Assistant Engineers fit for promotion for the next higher post of Assistant Divisional Engineer pursuant to the seniority list published by the first respondent as on 1.1.2004.
Prayer: Writ Petition in W.P.No 40220 of 2005 filed under Article 226 of the Constitution of India for the relief of issuance of writ of certiorarified mandamus to call for the records pertaining to the issue of the G.O.Ms.No.265 Highways Department dated 24.9.2004 issued by the first respondent and quash the same and consequently to direct the respondents 1 to 3 to revise the seniority of Assistant Engineers of Highways Department as on 1.1.2004 published by the second respondent accordingly.
Prayer: Writ Petition in W.P.No.19732 of 2006 filed under Article 226 of the Constitution of India for the relief of issuance of writ of certiorarified mandamus to call for the records on the file of the first respondent relating to the issue of the impugned G.O.Ms.No.265 Highways (HK2) Department dated 24.09.2004 quash the same and to direct the respondents 1 and 3 to notify the 67 vacancies occupied by the persons whose initial illegal appointments are regularized in the impugned G.O. and to select Assistant Engineers by direct recruitment as contemplated under the rules within 3 months.
For Petitioners :- Mr. N.Subramaniyan in
all W.Ps.
For Respondents :- Mr.V.S.Sethuraman,
Additional Advocate General
assisted by Mr.P.Bhuvaneswari
Govt. Advocate for R1 and R2 in
W.P.No. 1327 of 2005 and for R1 to R3 in W.P.No. 19732 of 2006 and W.P.No.40220 of 2005
Mr.V.Sankara Narayanan
for M/s.Sivam Sivanandaraj for R8, R9, R34 R36, R39, R53 to 56 and R60 in W.P.No. 40220 of 2005
Mr.S.M.Subramaniam for
R5, R19, R23, R25, R26, R33, R45, R46, R47, R50, R51, R57 and R58
in W.P.No. 40220 of 2005
Ms.R.Vaigai for
R12, R16, R17, R20 to R22, R24, R27 to R31, R35, , R37, R38 and R49
in W.P.No. 40220 of 2005
No appearance for
R4, R6, R7, R10, R11, R13, R14, R15 R18, R32, R34, R40 to R44, R48, R52 and R59 to 61 in W.P.No.40220 of 2005
Mr. R.Muthukannu for R3 , R4 & R6 to R18
in W.P.No. 1327 of 2005
No appearance for R5 in W.P.No.1327 of 2005
Ms.R.Vaigai for
R10, R16, R17, R19, R23, R25, R27 R29, R30, R32, R33, R35, R38 to 41, R44, R45, R50, R52, R57, R60 and 61
in W.P.No. 19732 of 2006
No appearance for
R4 to R9 R11, R12, R14, R15, R18, R20 to R22, R24, R26, R28, R31, R34, R36, R37, R42, R43, R46 to 49 R51, R53 to R56 R58 and R59
in W.P.No. 19732 of 2006
M/s. G.Elanchezhyan for R13 in
W.P.No. 19732 of 2006
C O M M O N O R D E R
W.P.No. 1327 of 2005 Challenge in this writ petition is against G.O.Ms.No.265 High Ways (HK2) Department dated 24.9.2004 and the proceedings of the second respondent dated 30.9.2004 and consequently seeking for direction to the respondents 1 and 2 not to include or consider the respondents 3 to 18 and the other 63 temporarily appointed Assistant Engineers contrary to the Special Rules of the Tamil Nadu Highways Engineering Service Rules in the seniority list of Assistant Engineers fir for promotion for the next higher post of Assistant Divisional Engineer pursuant to the seniority list published by the first respondent on 1.1.2004 W.P.No. 40220 of 2005
2. Challenge in this writ petitions is against G.O.Ms.No. 265 Highways (HK2) Department dated 24.9.2004 and consequently seeking for direction to the respondents 1 to 3 to revise the seniority of Assistant Engineers of Highways Department as on 1.1.2004 published by the second respondent.
W.P.No. 19732 of 20063. Challenge in this writ petition is against G.O.Ms.No. 265 Highways (HK2) Department dated 24.9.2004 and consequently seeking for a direction to the respondents 1 and 3 to notify the 67 vacancies occupied by the persons whose initial illegal appointments are regularized in the impugned G.O. and to select Assistant Engineers by direct recruitment as contemplated under the rules.
4. In all these matters following are the common facts and circumstances leading to filing of these writ petitions:-
4.1. The members of the 1st petitioner Association in W.P.No. 1327 of 2005 and other writ petitioners were appointed as Assistant Engineers. The petitioners are aggrieved against the regularisation of Assistant Engineers retrospectively, who were appointed earlier temporarily against the statutory rules. The Tamil Nadu Highways Engineering Service consists of five categories and the post of Assistant Engineer comes in category 5. The method of recruitment to the post of Assistant Engineers is by direct recruitment or Recruitment by transfer from the feeder categories.
4.2. G.O.Ms.No. 1729 Public Works Department dated 13.8.1971 was issued by the Government by making the provision in the Special Rules for appointment of Overseers, Head Draftsmen or Civil Draftsman possessing LCE and A.M.I.E. (India) qualification with a minimum service of three years as Junior Engineer.
4.3. G.O.1745 , Public Works Department dated 10.10.1972 was also issued amending the Special Rules for the Tamil Nadu Engineering Subordinate Service. Based on the above G.Os. the Chief Engineer (Highways and Rural Works) have appointed Draftsman, Overseers who had acquired B.E. degree qualification as Assistant Engineers in Highways and Rural Works Department.
4.4. The Government further issued G.O.Ms.No.294 P.W.D dated 22.2.1977 redesignating the post of Junior Engineer as Assistant Engineer and Assistant Engineer as Assistant Executive Engineer / Assistant Divisional Engineer on the existing scale of pay and with the same powers and functions of Junior Engineer and Assistant Engineer respectively. While so, the Government issued G.O.Ms.No. 1356, dated 2.8.1980 and reconsidered the decision made in the earlier orders and issued necessary modifications. In the said G.O. it is ordered that in addition to A.M.I.E. holders, B.E degree holders also in the posts of Draftsmen and Overseers were made eligible for appointment as Junior Engineer. It was further ordered that the said G.O. will take retrospective effect from 10.10.1972 to regularise the service in respect of the draftsmen and overseers who have acquired degree qualifications in engineering and who have so far been appointed as Junior Engineers temporarily. In pursuant to the said G.O. the Chief Engineer was directed to send proposal for amendment of special rules.
4.5. The Chief Engineer appointed Overseers and draughtsman Grade II and Grade III with B.E. Degree as Assistant Engineers based on the above said Government Orders and sought regularisation of such illegal appointments of Assistant Engineers based on G.O.Ms.No.1356 dated 2.8.1980. The Tamil Nadu Public Service Commission accepted the proposal to regularise the appointments of Assistant Engineers made upto 2.8.1980 and recommended to amend the rules making the Overseers and Draughtsman Grade II and Grade III who had acquired B.E. Degree after 2.8.1980, ineligible to be appointed as Assistant Engineers and to compete with fresh graduates for appointment . Accepting the said recommendation of the Service Commission G.O.574 dated 4.5.1982 was issued by the Government to regularise the temporary appointments of Draughting Officials and Overseers, who had acquired B.E. Degree, as Assistant Engineers contrary to Rules. It was also ordered therein that the Overseers and Draughtsman Grade II and Grade III with B.E. Degree are not eligible for appointments as Assistant Engineers after 2.8.1980 and directed them to appear before Tamil Nadu Public Service Commission along with fresh candidates for appointment as Assistant Engineers.
4.6. G.O.Ms.No.31 dated 6.1.1983 was issued amending the Tamil Nadu Engineering Service for PWD incorporating the orders issued in G.O.Ms.No. 1356 dated 2.8.1980. According to the amendment the Draughtsman Grade I alone was made eligible for appointment as Assistant Engineer on acquiring B.E. Degree.
4.7. G.O.Ms.No. 478 dated 23.5.1988 was issued amending the Tamil Nadu Highways Engineering Subordinate Service making provisions to incorporate the aforesaid executive orders issued in G.O.No. 574 dated 4.5.1982. Only on 23.5.1988 the provisions were incorporated making the Overseers and Draughtsman Grade II and III with B.E. Degree eligible for appointment as Assistant Engineers from 10.10.1972 to 2.8.1980 and on the same day, they were also made ineligible for appointment as Assistant Engineers after 2.8.1980 as per G.O. 478 dated 23.5.1988.
4.8. While that being the statutory position, suppressing the above amendments, the first respondent Government under the influence of Draughtsmen and Overseers, issued executive orders in G.O.Ms.No.2337 dated 6.11.1990 by making Draughtsman Grade II and Grade III and Overseers etc., with B.E. Degree as eligible for appointment as Assistant Engineers and consequently by directing the second respondent to appoint those persons purely on temporary basis pending issue of amendments to rules. Accordingly, the contesting private respondents herein were appointed. When the very appointment of the contesting respondents being subject to amendments and even though the amendments were not issued in favour of the contesting respondents, they were not ousted by the second respondent, but allowed to continue. Even after issuance of amendment in G.O.Ms.No. 807 dated 24.5.1993 the second respondent appointed some of the contesting respondents as Assistant Engineers in blatant violation of the Rules and the Tamil Nadu Reservation Act, 1993. On 4.4.1995 the Government issued instructions to replace all the temporary appointees with regular appointees. But the second respondent failed to obey the Government instructions and allowed the contesting respondents to continue illegally in service.
4.9. On 26.10.1995, the first respondent issued G.O.Ms.No. 860 by rescinding G.O Ms.No.2337 dated 6.11.1990 on the ground that the said G.O. was against the reservation policy of the State and contrary to special rules. The selection of Assistant Engineers was done through the Tamil Nadu Public Service Commission during the years 1989-1990, 1991-1992, 1993-1995, 1995-1996, 1997-1998. Some of the petitioners were selected for the year 1993-1995 and some of the petitioners were selected for the year 1995-1996 and rest of them were selected for the year 1997-1998.
4.10. O.A.No. 889 of 1996 and batch of cases were filed challenging G.O.860 dated 26.10.1995 and the TNPSC notifications seeking for a direction to amend the rules and reserve 25% vacancies for the contesting respondents. In the said batch of O.As the Tamil Nadu Administrative Tribunal passed an order on 22.1.1998 thereby dismissing the original applications, insofar as the prayer to quash G.O.Ms.No.860 dated 26.10.1995 is concerned. However, in respect of the prayer to regularise the services of all those who have been promoted earlier in accordance with G.O.Ms.No. 2337 dated 6.11.1990 is concerned, the Tribunal ordered that there was no need for any direction since the Government themselves have agreed to regularise their services.
4.11. On 29.4.2004 the second respondent published the seniority list of Assistant Engineers as on 1.1.2004 placing the names of the contesting respondents above the petitioners even before their services were regularised and they become Assistant Engineers. The Association of the petitioners made a representation on 29.7.2004 to the Chief Engineer pointing out the illegality in placing the names of the contesting respondents in the seniority list.
4.12. On 24.9.2004, the impugned G.O.Ms.No.265 Highways Department was issued ordering the regularisation of the contesting respondents from the date of their initial appointment invoking Rule 48 of General Rules and also orders were issued therein by reckoning their seniority from the year of their initial appointment. Thus, the regularisation of the contesting respondents and placing them in the seniority list above the petitioners is questioned in all these writ petitions.
5. The official respondents have filed their counter in W.P.No. 40220 of 2005 wherein it is stated as follows:-
5.1. The impugned G.O.No.265 was passed after obtaining the concurrence of the Tamil Nadu Public Service Commission under their Regulation 16(b). While that being so, the right of the approved probationers who were already holding the post of Assistant Engineers was safeguarded by placing those persons below the persons appointed through the TNPSC in that particular year in which their services were regularised. Thus, the impugned Government Order was passed in accorded with the the rules and regulations and also by adequately protecting the interest of the persons who are in service as on the date of the said order. The petitioners have no legal basis to challenge the impugned order. The policy decision taken by the Government cannot be challenged unless it is in violation of any Rules and Regularisations. The issue in these writ petitions has already been finalised and it cannot be reopened, in view of the order passed in O.A.No. 7160 of 1995 dated 22.1.1998 by the Tamil Nadu Administrative Tribunal. The petitioners herein were parties in the above said applications before the Tribunal and they did not choose to challenge the said order of the Tribunal which has become final and conclusive. Hence, the petitioners are not entitled to reopen the same in these writ petitions. The appointments of the contesting respondents were made as per G.O.Ms.No.2337 dated 6.11.1990. The petitioners did not challenge these promotions at that time. Therefore, the present writ petitions against regularisation of the contesting respondents is misconceived and time barred.
5.2. Due to the expansion of the facilities of the Department, the scope for acquiring additional qualifications have also been increased. A lot of opportunities were given for in-service candidates to qualify themselves. A need has arisen for providing better career prospects to those qualified employees and hence the Government issued executive instructions for appointing the qualified employees to the posts for which they become eligible pending amendment to the service rules. Since the changes in the system were taking place more rapidly, there was always a time lag between the pronouncement of a policy decision and the issue of amendment to the rules. Therefore, the belated issue of amendments did not make the executive instructions illegal or irregular.
5.3. The appointment of overseers/Draughting Officers with B.E. Degree as Assistant Engineers, was not in violation of the Rules. These appointments were made by invoking Rule 10(a)i and 39(a) of the General Rules for Tamil Nadu State and Subordinate Services, which permit such appointments.
5.4. G.O.Ms.No.2337 came to be issued only after lifting the ban imposed earlier under G.O.Ms.No. 574 dated 4.5.1982 and also after taking note of the order of the Tamil Nadu Administrative Tribunal in O.A.No. 1896 of 1989. The petitioners cannot rely on G.O.Ms.No.478 dated 23.5.1988 which was held invalid by the Tribunal. The petitioners have suppressed the fact relating to filing of O.A.No.1896 of 1989 and the order made therein. The amendment effected under G.O.Ms. No. 807/PWD dated 24.5.1993 contained a saving clause. Thus, the appointments made under these categories were protected by the said saving clause.
6. Some of the contesting private respondents filed a counter affidavit in W.P.No.40220 of 2005 wherein it is stated as follows:-
6.1. The impugned Government Order was passed in accordance with the rules and after adequately protecting the interest of those in service as on the date of the order. The petitioners have no legal basis for challenging the impugned order. The issue has already attained finality and it cannot be reopened. In the earlier round of litigation, the applications filed before the Tamil Nadu Administrative Tribunal seeking regularisation were closed by order dated 22.1.1998 after receiving an undertaking from the Government to regularise the services of persons like the respondents. The petitioners herein are parties in the aforesaid O.As. and having not challenged the said order, they cannot file these writ petitions and therefore these writ petitions are barred by the principles of constructive resjudicata.
6.2. A further perusal of the counter affidavit of these private respondents would show that they have simply adopted the stand taken by the official respondents in their counter affidavit.
7. Mr.N.Subramanian, learned counsel appearing for the petitioners in all these writ petitions submitted as follows:-
7.1. The impugned G.O was not issued on public interest since the same was not issued on just and equitable grounds as required under Rule 48 of the General Rules. The initial appointment of the contesting respondents were not made due to dearth of candidates but only to favour the in-service candidates dehors the Rules. The impugned G.O. having been issued without taking into consideration of the relevant factors is unreasonable and arbitrary. The appointment of private respondents illegally and regularising their services retrospectively caused demorilisation among Assistant Engineers who were selected through Tamil Nadu Public Service Commission.
7.2. The initial appointment of the contesting respondents were in violation of the Rules issued in G.O. 478 dated 23.5.1988 and the proviso to Rule 3 of the Special Rules to Tamilnadu Highways Engineering Service Rules as amended in G.O.807 dated 24.5.1993. Therefore, such illegal appointments cannot be regularised. Mere possessing of minimum educational qualification of B.E.Degree ipso facto shall not entitle the contesting respondents to be appointed as Assistant Engineers. By regularising their services from the date of initial appointment with retrospective seniority and placing them above the petitioners is discriminatory and nothing but meriting the demerits and de-meriting the merits. The continuation of the respondents in service without getting reverted even after 26.10.1995, the date on which G.O.2337 dated 6.11.1990 came to be rescinded is illegal. The impugned G.O. is ultra vires of later part of the Regulation 16(b) of the Tamil Nadu Public Service Commission Regulations 1954. As per the said Regulation, the power can be exercised only in respect of posts and not in respect of any individual or persons. In this connection, the learned counsel relied on the following decisions:-
1. 2006 (4) SCC 1 (Secretary, State of Karnatka Vs. Umadevi and Others)
2. 2004 (8) SCC 599 (Satchidananda Misra Vs. Stat of Orissa and Others)
3. 2006 (6) SCC 430 (R.S.Carg V. State of U.P and others ) 4.2000 (7) SCC 561 (Suraj Prakash Guptha and Others Vs. State of J.K and Others).
5. 2007 (5) SCC 580 (Arun Kumar and others Vs. U.O.I and others )
6. Unreported decision of the Apex Court made in C.A.No. 1256 of 2008 ( Z.Ajeesudeen Vs. Union of India and Others) dated 12.2.2008 .
7.3. The contesting respondents cannot claim seniority retrospectively. Even assuming without admitting that the regularisation is not illegal, their seniority has to reckon only from the date of order of the regularisation and not from the date of initial appointment. In this connection the learned counsel relied on the decisions of the Apex Court reported in 2006 (6) SCC 558 (K.Madalai Muthu Vs. State of Tamilnadu) and 2009 (6) SCC 428 ( M.P.Palanisamy and others Vs. A.Krishnan and Others).
8. Mr.V.S.Sethuraman, the learned Additional Advocate General appearing for the official respondents submitted as follows:-
8.1. As per G.O.Ms.No. 265 the services of temporarily appointed Assistant Engineers in the Highways Department who were promoted from the feeder cadres were regularised from the date of their appointment as Assistnat Engineers, however, by placing them beneath the candidates appointed through Tamil Nadu Public Service Commission for that year . The impugned G.O. was issued after relaxing the provisions of Rule 3 of the Tamil Nadu Highways Engineering Subordinate Services by invoking the provisions of Rule 48 of the General Rules for the Tamil Nadu State and Subordinate Services. The petitioners relied on G.O.Ms.No. 574 dated 4.5.1982 which validity was challenged in O.A.No. 1896 of 1989 filed by one K.A.Arjunan and the Tribunal by its order dated 29.5.1991 quashed the said G.O. Hence the ban imposed by G.O.No.574 was lifted. No appeal was filed by the respondents in the above O.A. who are persons similarly placed like the petitioners herein. Therefore, the said order has become final. Consequently G.O.Ms.No.2337 PWD dated 6.11.1990 was issued authorising the Chief Engineer to temporarily appoint the contesting respondents as Assistant Engineers by promotion from the feeder cadres pending amendment to the rules of recruitment. Even though G.O.Ms.807 dated 24.5.1993 was passed by bringing the category of Assistant Engineer under the Tamil Nadu Engineering Services and also by making an embargo for appointing the Assistant Engineers from the feeder cadres on acquiring B.E. Degree, a saving clause in clause 23(b) was included whereby it was stated that the Rules in the said G.O. shall not adversely affect the appointments from the feeder categories to the post of Junior Engineers from 10.10.1972 to the date of issue of the amendment. Therefore, the appointment of the contesting respondents as Assistant Engineers was saved. The petitioners relied on G.O.Ms.No. 860 dated 26.10.1995 which bars feeder category appointments. The said G.O. was challenged in O.A.No. 7160 of 1995 in a batch of cases. Even though the said G.O. was upheld by the Tamil Nadu Administrative Tribunal the appointments made from feeder cadres in accordance with G.O.2337 were agreed to be regularised and the same was recorded in the order of the Tribunal dated 22.1.1998. Thus, the appointment of the contesting respondents was protected. No appeal has been filed against the said order of the Tribunal. Therefore, it has become final. Following the undertaking given by the Government in the above said O.A. the Government sought concurrence from Tamil Nadu Public Service Commission for regularising the services of the Assistant Engineers appointed from the feeder category. The TNPSC also gave its concurrence in the year 2004 for regularising the services of the contesting respondents . Thus, the contesting respondents were to be placed beneath the persons appointed by Tamil Nadu Public Service Commission recruits appointed for that year.
8.2. Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules prescribes that the seniority should be determined with reference to the date on which a person was appointed to the service, class , category or grade. The petitioners relied on Government letter 614 Public Works (HK1) Department dated 27.7.1995 contemplating reckoning seniority of Assistant Engineers. The said proceedings was challenged by the persons placed similarly to the contesting respondents in O.A.No.9546 of 1997 before the Tribunal which was allowed by upholding the validity of the said Government letter.
8.3 W.P.No.41342 of 2002 was filed by the unsuccessful applicants . Pending the writ petition, the seniority list was drawn and such list was challenged by the direct recruits in W.P.No. 31101 of 2005. This Court heard both the writ petitions together and passed a common order on 19.7.2007 allowing W.P.No.41342 of 2002 and dismissing W.P.No.31101 of 2005. The said order has not been appealed against and it attained finality. The facts of the case in those proceedings are similar to the present writ petitions.
9. Mr. S.M.Subramaniam, learned counsel appearing for the respondents in W.P.No.40220 of 2005 submitted as follows:-
The writ petitions are not maintainable as the writ petitioners are not aggrieved persons in respect of the impugned G.O. Ms.No. 265 dated 24.9.2004. G.O. Ms.No. 265 is an order of regularisation granted in respect of 67 temporary Assistant Engineers. A special G.O. in respect of regularisation was issued since a relaxation is required in respect of Rule 3 of the Tamil Nadu Engineering Service for the said 67 temporary Assistant Engineers. The Government exercised Rule 48 of the Tamil Nadu State and Subordinate Service Rules and regularised the services of those temporary Assistant Engineers. All these contesting respondents are continuing as temporary Assistant Engineers without any break in service in the sanctioned post and therefore they are entitled for regularisation of service. The delay in passing the order of regularisation cannot be a ground to deny the right of regularisation to the respondents from the date of their initial appointment. The very same issue was settled by Hon'ble Division of this Court in W.P.Nos. 41342 of 2002 and 31101 of 2005 dated 19.7.2007, wherein it was held that the amended rule providing for retrospective regularisation did not create any fictitious right but was only intended to legitimise the status of the applicants therein. All the contesting respondents were temporarily appointed as Assistant Engineers long before the appointment of the petitioners. Therefore, the petitioners have no locus standi to question their regularisation. The petitioners have not challenged the appointment of the contesting respondents. The impugned G.O. was passed in accordance with Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules and all the contesting respondents were placed in the seniority list below the TNPSC candidate of that particular year. The relaxation of the provisions of Rule 3 of the Tamil Nadu Highways Engineering Service Special Rules was granted by the Governor of Tamil Nadu in exercise of the power conferred upon him under Rule 48 of the General Rules for Tamil Nadu Subordinate Services Rules. The Tamil Nadu Public Service Commission also given its concurrence. While doing so, the rights of the approved probationers of the service already holding the post of Assistant Engineers were duly safeguarded. The claim of the petitioners is also barred by delay and laches since the appointment of the contesting respondents were made in the year 1990 under G.O.Ms.No. 2337 Public Works Department dated 6.11.1990 which appointment was never challenged by the petitioners or any other person so far. Therefore, the challenge to the order of regularisation is misconceived and time barred. The appointments were made by invoking Rule 10(a)(i) and 39(a)(i) of the General Rules for Tamil Nadu State and Subordinate Services, which permit such appointments. Hence those appointments are not in violation of the Rules but in accordance with the Rules.
10. Ms.R.Vaigai, learned counsel appearing for some of the respondents in these writ petitions submitted as follows:-
While passing G.O.No.2337 dated 6.11.1990 granting temporary appointments to these contesting respondents indication was made therein that their services will be regularised . The intention of the Government is clear by bringing amendment to the special Rules. No challenge was made against the said order. Therefore, the present challenge against the regularisation is belated. Paragraph 5 of the impugned order safeguarded the interests of the persons already in service. All these respondents have joined service well before March 1995. The order passed by the Tribunal in O.A.No. 7160 of 1995 has become final as no further challenge was made against the said order. By the impugned proceedings, the petitioners' right was not affected as all these petitioners were appointed after 1995. No vested right of the petitioners have been taken away by the impugned order. Therefore, the writ petitions have to fail on this reason alone.
11. Mr.R.Muthukannu and Mr. V.Sankaranarayanan learned counsels appearing for some of the respondents in these writ petitions adopted the arguments advanced by other learned counsels appearing for the contesting respondents.
12. Heard both sides and perused all the materials placed before this Court.
13. In all these writ petitions, the grievance of the petitioners is against regularisation of the private respondents in the post of Assistant Engineers in the Highways Department. The petitioners are recruited directly by the TNPSC during the years 1993-95, 1995-96 and 1997-1998. The private respondents viz., the respondents 4 to 61 in W.P.No. 40220 of 2005 are the Assistant Engineers appointed from the feeder cadres. Out of the respondents, it is stated that the respondents 4 to 15 were appointed as Assistant Engineers during the period from 5.12.1990 and 22.4.1994. Consequently, they have also retired from service. It is stated that the respondents 16 to 61 were appointed between 24.2.1995 and 16.3.1995. Out of whom 12 respondents are said to have retired from service already. Thus, in effect the regularisation and fixation of seniority of 34 respondents are in serious dispute. It is not in dispute that all the private respondents, whose regularisation is questioned in these writ petitions, were initially appointed in the post of Junior Draughting Officers /overseers as per the Rules and there was no irregularity in their initial appointment.
14. All these contesting respondents were possessing requisite qualification viz., Diploma in Engineering to the post of Junior Draughting Officer/overseers. Subsequent to their initial appointment, these persons acquired the qualification of a degree and became eligible to be promoted as Assistant Engineer in the High Ways Department. Therefore, in so far as the qualification aspect is concerned, there is no dispute and as such all the private respondents who were promoted to the post of Assistant Engineers are having the requisite qualification to the said post. The only grievance of the petitioners is that those respondents having been appointed temporarily, cannot be placed over and above the directly recruited candidates like the petitioners in the seniority list while regularising their service as Junior Engineers.
15. In order to appreciate the grievance of the petitioners, it is better to understand certain Government Orders which are relevant to this case.
In G.O.Ms.No. 574 Transport Department dated 4.5.1982, appointment to the post of assistant Engineers from the feeder cadres on acquiring B.E. Degree was barred after 2.8.1980. This Government Order is relied on by the petitioners in support of their contention. But the fact remains that the said G.O. 574 came to be challenged before the Tamil Nadu Administrative Tribunal by one K.A.Arjunan in O.A.No. 1896 of 1989. It is seen that the said Arjunan was in feeder cadre and acquired B.E. Degree. It is further stated that the Tamil Nadu Administrative Tribunal by an order dated 29.5.1991 quashed the said G.O. 574 thereby lifting the ban imposed therein. It is further stated that no appeal has been filed by the respondents in the said O.A., who are the persons similarly placed like the petitioners herein and consequently the said order of the Tribunal has become final . The above said fact is not under dispute.
16. Thus, in pursuant to the said order passed by the Tribunal in O.A.No.1896 of 1989 dated 29.5.1991, the Government passed G.O.Ms.No. 2337 dated 6.11.1990 wherein at paragraph No. 3 it is stated as follows:-
"3. The Government have examined the above proposal of the Chief Engineer (Highways and Rural Works) in detail. The orders passed by the Tamil Nadu Administrative Tribunal in O.A.No. 1896 of 1989 filed byone Thiru.K.A.Arjunan, Junior Draughting Officer, in favour of the petitioner were also taken into account in this connection. After careful consideration of the proposals, the Government have decided to permit the Chief Engineer, Highways and Rural Works, to make purely temporary appointment in the vacancies in the post of Assistant Engineer (Highways) of those in the categories of Draughting Officers, Junior Draughting Officers, Overseers, Survey Assistants, Road Inspectors (Grade I) who possess B.E./A.M.I.E. Qualifications with five years of experience in the post, pending amendment to the Special Rules for Tamil Nadu Highways Engineering Service for recruitment by transfer on the above lines. "
Accordingly, these private respondents were appointed as Assistant Engineers during the period from 1990 to 1995 in accordance with G.O.Ms.No.2337.
17. In the meantime another Government Order in G.O.Ms.No. 807 PWD Department dated 24.5.1993 was issued by which the category of Assistant Engineer was brought under the Tamil Nadu Highways Engineering Service. In the said G.O. there was an embargo for appointing the Assistant Engineers from the feeder cadres on acquiring B.E. as found in G.O.Ms.No. 574 dated 4.5.1982. However, in the very same G.O. a saving clause was provided in clause 23(b) stating that the rules in the said G.O. shall not adversely affect the appointments from the feeder cadres to the post of Junior Engineers made from 10.10.1972 to the date of issue of the amendment viz., 24.5.1993. The relevant clause 23(b) of G.O.807 is extracted hereunder:-
"23. Savings (a) ...... ...... ......
(b) Nothing contained in these rules shall adversely affect the appointments made from the category of Draftsman Grade I Draughtsman Grade II or Draughtsman Grade III or Overseer to the category of Junior Engineers from the 10th October 1972 till the date of issue of these amendments."
18. Thus, it is contended by the contesting respondents that their appointment made as Assistant Engineers is saved under clause 23(b). The learned counsel for the petitioners on the other hand submitted that not all the appointments of the contesting respondents were made before 24.5.1993 and in fact some of the respondents were appointed after that date also and therefore, the above saving clause 23(b) does not protect all the contesting respondents. I would have appreciated this contention of the counsel for the petitioners, but for the subsequent developments , which I am narrating below.
19. It is seen that subsequent to passing of G.O. 807, another G.O. Ms. 860 Public Works Department dated 26.10.1995 came to be passed barring feeder category appointments to the post of Assistant Engineers once again. In clause 3 of the said order it is stated as follows:-
"3. The Government have decided not to reduce the number of posts coming under the purview of rule of reservation and therefore, to withdraw the orders immediately. Accordingly, the Government direct that the orders issued in G.O.Ms.No. 2337 P.W.D dated 6.11.1990 be rescinded. "
20. Thus from the reading of the above said G.O. more particularly clause (3) it could be seen that the Government had chosen to rescind the order issued in G.O.Ms.No. 2337 dated 6.11.1990, whereby it had originally authorised temporary appointment of the persons like the private respondents herein as Assistant Engineers by promotion from the feeder category. Even though the Government had chosen to rescind G.O. Ms.No. 2337 after a period of five years, nothing is stated in the said G.O.860 in respect of the persons already appointed to the post of Assistant engineers in pursuant to G.O.Ms.No.2337. The said G.O. was challenged before the Tamil Nadu Administrative Tribunal in O.A.No. 7160 of 1995. The Tribunal by an order dated 22.1.1998 though upheld G.O.Ms.No.860, has, however passed an order in respect of the prayer seeking for regularisation of the services of persons who have been promoted earlier in accordance with G.O.Ms.No.2337, as follows:-
" (c) The prayer to regularise the services of all those who have been promoted earlier in accordance with G.O.Ms.No. 2337 Public Works Department, dated 6.11.1990, Government themselves have agreed to regularise their services. Therefore, there is no need for any direction in this regard. "
21. Thus, it is crystal clear that the Government had agreed to regularise the services of persons who have been promoted earlier in accordance with G.O.Ms.No. 2337 before the Tribunal and taking note of such undertaking, the Tribunal thought fit that there was no need for any direction in that regard.
22. It is pertinent to note at this juncture that though the Government passed G.O.807 and inserted a saving saving clause under clause 23 (b) therein and saved only the appointments of Junior Engineers who have been promoted from the feeder category from 10.10.1972 to 24.5.1993, however, by its subsequent conduct gave an undertaking before the Tribunal as on 22.1.1998, i.e. the date of the order of the Tribunal made in O.A.No.7160 of 1995, that all appointments made in accordance with G.O.Ms.No. 2337 will be regularised. Hence, under these circumstances, the petitioners are not entitled to rely on G.O.807 any more. I am of the view that even in the absence of saving clause made in G.O.807, the appointments of the respondents 4 to 61 are protected by the above undertaking given by the Government and therefore the petitioners cannot contend that the saving clause in G.O.807 does not protect all the contesting respondents.
23. Further it is seen that the said order made in O.A.No.7160 of 1995 dated 22.1.1998 has become final and conclusive between the parties as no appeal was filed by the petitioners or other similarly situated persons. No doubt, G.O.Ms.No. 860 was upheld by the Tribunal in the above said order. But at the same time, in view of the undertaking given by the Government to regularise the services of the respondents like persons who have been appointed pursuant to G.O.Ms.No. 2337, upholding of G.O. 860 by the Tribunal will not have any adverse effect on these contesting respondents in view of the specific order made by the Tribunal in the very same order protecting the interest of the persons like these contesting respondents. Thus, the petitioners cannot take advantage of a portion of the order of the Tribunal in their favour by ignoring the other part of the said order .
24. It is further seen that in pursuant to the order passed in the above said O.A.No. 7160 of 1995 and as a follow up measure of the undertaking given before the Tribunal, the Government sought concurrence from the Tamil Nadu Public Service Commission. It is seen that TNPSC had also given its concurrence in the year 2004 for regularising the service of the contesting respondents who were appointed as Assistant Engineers as per G.O.Ms.No.2337. It is stated that while granting concurrence the TNPSC has informed the Government to place the promotees beneath the direct recruits appointed for that year. Accordingly, the impugned G.O.Ms.No. 265 dated 24.9.2004 came to be passed whereby the services of temporarily appointed Assistant Engineers who were promoted from the feeder category were regularised from the date of their appointment as Assistant Engineers. In the very same G.O. it is also clearly stated that as far as the seniority of the candidates are concerned, they were directed to be placed beneath the candidates appointed through TNPSC for that year. The relevant para 5 of the said order is extracted hereunder:
"5/ ,e;j 67 jw;fhypf cjtpg; bghwpahsh;fspd; Kjepiyia mth;fs; gzptud;Kiw bra;ag;gLk; Mz;Lfspy; njh;thizaj;jhy; neuoahf njh;e;bjLf;fg;gl;lth;fspd; gl;oay;fspy; cs;s filrp bgaUf;F fPnH eph;zak; bra;J jf;f Mizfs; btspapLkhW jiyikg; bghwpahsh; (bghJ) ,jd; K:yk; nfl;Lf; bfhs;sg;gLfpwhh;/"
25. It is seen that the said order came to be passed by invoking the provisions of the Tamil Nadu State and Subordinate Services Rules and after relaxation of the provisions of Rule 3 of the said Rules. The petitioners are not questioning the competency or jurisdiction of the Government in passing the said G.O.
26. From the perusal of the above said G.O, more particularly clause (5) of the same, it could be seen that the persons like the private respondents who were promoted to the post of Assistant Engineers from the feeder category were directed to be placed below the direct recruits of that particular year . In other words, if there are two modes of appointment to the post of Assistant Engineers in a particular year, one by way of direct recruitment through TNPSC and another by way of promotion from the feeder category, direct recruits are to be placed above than the promotees from the feeder category of that particular year.
27. The contention of the petitioners is that all these promotees have to be placed below the direct recruits irrespective of their initial date of their appointments. I am unable to accept the said contention for the reason that once regularisation is given it should relate back to the date of their appointment . It is pertinent to note at this juncture that the petitioners have never questioned the said initial appointment of these contesting respondents as Junior Engineers. It is contended by them that there was no necessity for questioning the appointment because the same was made only as a temporary appointment. Whether it is a temporary appointment or permanent appointment, so long as such appointment was not questioned and the same was allowed to go on, the petitioners cannot question the consequential regularisation benefit by stating that they need not question the initial appointment. It is also seen that the petitioners are direct recruits who were appointed much later to the promotees viz., the contesting respondents.
28. Under Rule 35 (aa) of the Tamil Nadu State and Subordinate Service Rules the determination of seniority of a person in service is dealt with which rule is extracted hereunder:-
"35 (a) .... ..... .......
(aa) The seniority of a person in service, class, category or grade shall where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment , be determined with reference to the date on which he is appointed to the services, class, category or grade ;
Provided that where the junior appointed by a particular method of recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority:
Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category, or grade on the same day, their inter-se-seniority shall be decided with reference to their age. "
29. From the above said Rule, it is clear that the date of appointment to the service is a crucial date while considering the regularisation as well as fixing the seniority. Therefore, the petitioners cannot be permitted to contend that the contesting respondents cannot be given the benefit of regularisation from the date of their initial appointment. Even otherwise, the impugned G.O. categorically protects the rights of the direct recruits by saying that the promotees have to be placed below the direct recruits of that particular year. Thus, the interest of the petitioners is not at all affected and therefore, they cannot be called as aggrieved persons in so far as the present issue is concerned.
30. It is further seen that the Government issued a letter in Lr. Ms.No. 614, Public Works Department dated 27.7.1995 contemplating reckoning of seniority of Assistant Engineers. It is stated that the said proceeding was challenged before the Tribunal in O.A.No.9546 of 1997. Though the said O.A was dismissed, the unsuccessful candidates like that of the private respondents herein challenged the above order before this Court in W.P.No.41342 of 2002. In the meantime the seniority list was drawn and name of the promotees from the feeder category was also included in the seniority list. Challenging the said inclusion, the direct recruits filed W.P.No.31101 of 2005. It is seen that both the writ petitions were heard together and common order was passed on 19.7.2007 by this court allowing the writ petition filed by the promotees and dismissing the writ petition filed by the direct recruits. It is seen that the said order was not further appealed against and thus became final and conclusive between the parties. The following are the relevant portions of the said order:-
"12. A conjoint reading of G.O.Ms.No.1356, Public Works Department, dated 2.8.1980, G.O.Ms.No.574, Transport Department, dated 4.5.1982, G.O.Ms.No.478, Transport Department, dated 23.5.1988 and G.O.Ms.No.807, Public Works (HK) Department, dated 24.5.1993, boils down to the position that the Draftsman Grade-I to III having acquired the qualifications of B.E/A.M.I.E. between 10.10.1972 and 2.8.1980, became eligible for being promoted as Junior Engineers (now Assistant Engineers), that such of those Draftsman in these Grades who were temporarily promoted between 10.10.1972 and 2.8.1980, were regularised from their respective date of such temporary appointments and that such regularisation was protected by the relevant amended Rules, which was brought into the Rule books, though subsequently by giving retrospective effect as from 10.10.1972.
13. To buttress the argument of the petitioners in W.P.No.31101 of 2005 as well as the third respondent-Association of Engineers therein, insofar as it related to the retrospectivity of the operation of the Rules and its validity, at the outset, it will have to be stated that so far, neither the petitioners in W.P.No.31101 of 2005 nor the third respondent therein, have made any challenge to any of the above referred to G.Os. or the amended Rules in the manner known to law. It will have to be kept in mind that the applicants were not appointees in the post of Junior Engineer (now Assistant Engineer), directly by way of temporary appointment under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules. They were all already in service as Draftsman in Grade-II and III. It is also not in dispute that they were all temporarily promoted to the post of Junior Engineers (now Assistant Engineers) between 1972 and 1980 from the existing category of Draftsman-II and III, whereas the petitioners in W.P.No.31101 of 2005 were all stated to have been appointed in the post of Junior Engineers (now Assistant Engineers) under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules for the first time and who were all appointed directly through the TNPSC only in the year 1982. Therefore, when the Rules specifically deal with the case of the applicants providing for their regularisation from the respective dates of their temporary promotions in the post of Junior Engineers (now Assistant Engineers) as early as on 4.5.1982 and when such regularisation was confirmed by G.O.Ms.No.478, Transport Department, dated 23.5.1988 and G.O.Ms.No.807, Public Works (HK) Department, dated 24.5.1993, it will have to be held that such regularisation based on the conscious decision made by the State Government should also be validated by bringing forth necessary amendment to the Rules, which will certainly stand on a higher footing over the claims of the petitioners in W.P.No.31101 of 2005, who had entered into the service on a regular basis only as from the year 1982, i.e. long after the regularisation of the services of the applicants in the post of Junior Engineers (now Assistant Engineers).
..... ...... ....... ..... ...... .......
18. Under Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, for determining the seniority of a person in service, it is stipulated that it should be determined with reference to the date on which he is appointed to the services, class, category or grade.
19. Even a combined reading of Rule 2(1) along with Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, does not prohibit creation of weightage by way of an amendment to provide for regularisation of a service of a person who was already appointed to a cadre and who came to be temporarily promoted to a higher post. It is not the case of the petitioners in W.P.No.31101 of 2005 that the applicants (the petitioners in W.P.No.41342 of 2002) were all continuing in the post of Draftsman Grade-II and II and were all temporarily attending the duties of a higher post, namely Junior Engineer (now Assistant Engineer) in order to state that they were not appointed to the post of Junior Engineers. When once the temporary appointment to the post of Junior Engineer came to be made on acquiring the requisite qualifications, the right of the applicants in that post got crystallised by virtue of G.Os. issued in G.O.Ms.No.1356, Public Works Department, dated 2.8.1980, G.O.Ms.No.574, Transport Department, dated 4.5.1982, G.O.Ms.No.478, Transport Department, dated 23.5.1988 and G.O.Ms.No.807, Public Works (HK) Department, dated 24.5.1993. Therefore, the counting of their service was from the date when they were functioning as Junior Engineers, which functioning was temporary at the inception, which got regularised in the year 1982 itself, i.e. on 4.5.1982 and got further reinforced by G.O.Ms.No.478, Transport Department, dated 23.5.1988 and G.O.Ms.No.807, Public Works (HK) Department, dated 24.5.1993. Inasmuch as the appointment of the applicants (the petitioners in W.P.No.41342 of 2002) was in accordance with the Rules, the ratio of the Supreme Court (in 1995 Supp (1) SCC 572) that in such cases, it is a pre-condition for counting the seniority, is fully satisfied. For the very same reasoning, it will have to be held that the temporary appointment of the applicants once regularised loses its temporary phenomenon and thereby, their right as regular Junior Engineers stood established by virtue of the issuance of the several Government Orders referred to above and as per the amended Rules. The said decision therefore does not help the case of the petitioners in W.P.No.31101 of 2005."
31.Thus, from the above decision made by this court on earlier round, it appears the issue in the present writ petitions does not survive any more, when the rights of the contesting respondents were already upheld by this court, which has become final and conclusive.
32. Learned counsel for the petitioners relied on the following case laws to contend that appointments of the contesting respondents are illegal and cannot be regularised. In all those cases the initial appointment itself was questioned by the respective petitioners or appellants therein. In this case the petitioners have not questioned the initial appointment of the contesting respondents at any point of time and on the other hand they have allowed such appointment to go on without any challenge and only when such appointment was subsequently regularised after a period of nearly a fourteen years, the petitioners have come forward with the present writ petitions challenging such regularisation. I find that the petitioners contention should be rejected even on the sole ground of delay and laches. In this aspect, I would like to refer to the decision of the apex court reported in 1975 (1) SCC 152 (P.S.Sadasivaswamy Vs.State of Tamil Nadu) wherein it has been observed as follows:-
"2. .... A person aggrieved by an order of promoting a junior over his bead should approach the Court at least within six months or at the most a year of such promotion. It is not that 'here is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put for-ward stale claims and try to unsettle settled matters- The petitioner's petition should, therefore have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the Court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High court was right in dismissing the appellant's petition as well as the appeal."
33. In the decision reported in 2008(14) SCC 295 ( Eastern Coalfields Limited Vs. Dugal Kumar) the Apex court has observed thus:-
"24. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong, (1874) 5 PC 221 : 22 WR 492 thus; Now the doctrine of laches in Courts of Equity is not an arbitrary or a echnical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a. waiver of it, or where by his conduct and eglect he has, though perhaps not aiving that remedy, yet put the other party in a situation, in which it ould not be reasonable to place him if the remedy were afterwards to be sserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy."
34. In another decision reported in 2006 (4) SCC 322 (Karnataka Power Corporation Ltd., Vs. K.Thangappan and another) the Apex court has held that if the delay is not explained, the court cannot exercise its writ jurisdiction even if the fundamental right is violated.
35. Thus, from all the decisions referred above, it could be seen that the petitioners are not entitled to any relief on the sole ground of delay and laches even assuming that they have a case on merit.
36. The decision reported in 2006 (6) SCC 558 (K.Madalaimuthu and Another Vs. State of T.N. And Others) is relied on by the petitioners to contend that regularisation of appointments made otherwise than in accordance with rule do not confer seniority rights from the date of initial appointment and the seniority can be reckoned only from the date of order of regularisation.
37. I wonder as to how the petitioners can rely on the above decision, especially when the facts and circumstances of the present case shall not permit them to do so. As already stated supra, before the Tribunal, the Government has given an undertaking to regularise the service of the promotees who have been appointed as Assistant Engineers in pursuant to G.O.Ms.No.2337. Based on such undertaking, the Tribunal has also passed an order as stated supra. The petitioners like persons were parties in those proceedings. They have not chosen to challenge the same. Therefore, they are bound by the order of the Tribunal which has become final and conclusive as no appeal was filed against the same. When that being the factual position of the present case, I find that the above decision will not help the petitioners in any manner.
38. Likewise, the decision reported in 2009 (6) SCC 428, (M.P.Palanisamy and others Vs. A.Krishnan and Others) is also relied on to contend that retrospective regularisation shall not count for seniority also retrospectively as per Rule 23(a)(i) of Genral Rules. Here in this case, in so far as the seniority is concerned, as already discussed supra, the rights of the direct recruits like the petitioners are not affected because the promotees are placed below the direct recruits of that particular year and therefore the petitioners cannot contend that their seniority is affected. Therefore, I am of the view that the above said decision is also not applicable to the facts of the present case.
39. Reliance is placed on by the petitioners' counsel in Umadevi (3) case reported in 2006 (4) SCC 1. Going by the facts and circumstances of the present case, it could be seen that the above decision will not help the petitioners in any manner as the case on hand is factually distinguishable. As already discussed supra, the Government had given an undertaking before the Tribunal to regularise the services of the contesting respondents herein. That order has become final. Further, the same issue was dealt with by the Hon'ble Division Bench in W.P.Nos. 41342 of 2002 and 31101 of 2005 dated 19.7.2007. The said decision which went in favour of the contesting respondents herein has also become final. Even in the above Umadevi (3) case the Apex Court held at paragraph 53 that the question of regularisation of the services of such employees may have to be considered as a one time measure who have worked for 10 years or more in duly sanctioned posts.
40. Reliance is placed on the decision of the Apex Court reported in 2004 (8) SCC 599 (Satchidananda Misra Vs. Stat of Orissa and Others ). The facts of the said case would disclose that Orissa Public Service Commission candidates were bypassed while granting regularisation of the promotees. In the case on hand it is not so. The direct recruits of the particular year were placed above than the promotees in the seniority list. Therefore, the above decision is also not helping the petitioners.
41. The decision of the Apex Court reported in 2006 (6) SCC 430 (R.S.Carg V. State of U.P and others ) is relied on to contend that appointment dehors the rules is illegal . Here the dispute is with regard to the granting of regularisation without questioning the initial appointment. Therefore, the above said decision is also factually distinguishable and cannot be applied to the facts and circumstances of the present case.
42. Reliance is placed on the decision of the Apex Court reported 2000 (7) SCC 561 (Suraj Prakash Guptha and Others Vs. State of J.K and Others). The facts of the said case would show that regularisation of ad hoc promotees were made without consulting the Public Service Commission. In such circumstances, the Apex Court held that such regularisation was impermissible. Here in this case, the facts are otherwise. The Tamil Nadu Public Service Commission was consulted and it has also given its concurrence for regularisation, however by directing the Government to place the promotees below the direct recruits in the seniority list of that particular year. That has been rightly done by the authorities. There is no dispute about that. Thus the above said decision also cannot be applied to the present case.
43. The decision of the Apex Court reported 2007 (5) SCC 580 (Arun Kumar and others Vs. U.O.I and others ) is also relied on by the petitioners The issue before the Apex Court in that case was as to whether the deputation can be treated as a source of recruitment. The Apex Court found that there is a difference between direct appointment as a source of recruitment and deputation /transfer as a source of recruitment. The Apex Court has found that the High Court had erred in treating deputation as a third source of recruitment. I am of the view that the facts and circumstances of the above said case are totally different and distinguishable one and consequently the said decision is also not helping the petitioners in any manner.
44. The unreported decision made in C.A.No 1256 of 2008 dated 12.2.2008 of the Apex Court relied on to contend that the appointments made as per the Rules contemplated for adhoc appointment cannot be construed as appointments made in accordance with the Rules. Here again as pointed out earlier, the petitioners cannot rely on the above decision in view of the fact that the appointment of the contesting respondents was not at all questioned by the petitioners at any point of time. In fact no challenge was made so far against such appointment. Now the present challenge is only against regularisation and not against initial appointment. Therefore, the petitioners cannot rely on the above decision in support of the above contention.
45. It is also to be noted at this juncture that it is not due to the fault of the contesting respondents, their service was not regularised for a long time. It is only the Government which delayed the regularisation. No doubt their initial appointment was made as temporary but the fact remains that they served in such position and status for long number of years. Therefore, mere delay in regularising their appointment cannot put against them to deny the benefit of such regularisation from the date of their initial appointment. Ultimately, the Government has passed the impugned G.O. giving the benefit of regularisation to the contesting respondents, however, by protecting the rights of the petitioners also by keeping them over and above the respondents while fixing the seniority of the particular year. Therefore, I find that the petitioners can not have any grievance in this matter.
46. For all these reasons, I find no merits in these writ petitions and accordingly, they are dismissed. Consequently, the connected W.P.M.P. is closed. No costs.
03-1-2014 Index:Yes/No Internet:Yes/No krr/ To 1 The Government of Tamil Nadu Rep. By its Secretary, Highways Department Fort St., George, Chennai -9 2 The Chief Engineer (General) Highways Department P.W.D Building, Chepauk Chennai -5 3 Tamil Nadu Public Service Commission, represented by its Secretary Government Estate, Chennai -2 K.RAVICHANDRABAABU,J.
Krr/ Pre-Delivery Common Order in W.P.Nos.1327 and 40220 of 2005 and W.P.No. 19732 of 2006 DATED:- 03-1-2014