Madras High Court
E.Senthil vs The Principal Secretary To Government on 5 September, 2019
Author: V.M.Velumani
Bench: V.M.Velumani
W.P.(MD).No.19959 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: Delivered on:
27.11.2019 30.01.2020
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD).No.19959 of 2019
and
W.M.P.(MD)Nos.16466 to 16468, 17427 & 18501 of 2019
E.Senthil .. Petitioner
Vs.
1.The Principal Secretary to Government,
Public Works Department,
Fort St. George, Chennai.
2.The Engineer – in – Chief, W.R.D.,
& Chief Engineer [General],
Public Works Department,
Chepauk, Chennai – 600 005.
3.A.Balaravikumar,
Assistant Executive Engineer,
Building (C&M) Sub-Division,
Medical Works,
Public Works Department,
Trichy.
4.The Chairman,
Tamilnadu Public Service Commission,
TNPSC Road Park Town,
V.O.C. Nagar,
Chennai – 600 003. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of writ of Certiorari calling for the records
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relating to the impugned order passed by the 2nd respondent in his
proceedings No.S2(2)/53679/2009 dated 05.09.2019 and quash the
same.
For Petitioner : Mr.B.Saravanan
For RR 1 & 2 : Mr.V.R.Shanmuganathan
Special Government Pleader
For R3 : Mr.Rajakarthikeyan
For R4 : Mr.D.Sivaraman
ORDER
Writ Petition is filed for issuance of Writ of Certiorari to call for the records relating to the impugned order passed by the 2 nd respondent in his proceedings No.S2(2)/53679/2009 dated 05.09.2019 and quash the same.
2. The petitioner is challenging the impugned order, whereby the 3rd respondent's seniority was re-fixed and 3rd respondent was placed above the petitioner in the seniority list.
3. The case of the petitioner is as follows:
3(a). The petitioner is an Engineering Graduate and he applied for appointment to the post of Assistant Engineer (Civil) in the Public Works Department in the year 1993, in response to the notification issued by the 4th respondent, Tamilnadu Public Service Commission [hereinafter 2/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 referred to as “TNPSC”]. Due to filing of Writ Petitions questioning the selection process, the 4th respondent published the selected list of candidates for appointment to the post of Assistant Engineer (Civil) in the Public Works Department only in the year 1998 for the vacancies that arose in the year 1993–1994.
3(b). The 3rd respondent was appointed as Assistant Engineer (Civil) in Public Works Department on compassionate ground and he joined duty on 23.06.1998 and completed his probation on 22.06.2000.
The 3rd respondent requested the 2nd respondent to fix his seniority in the post of Assistant Engineer (Civil) with reference to his date of regular appointment to the post of Assistant Engineer.
3(c). The 2nd respondent by its order dated 25.08.2008 by the proceedings Lr.No.S2(2)/47498/2008 rejected the said request on the following grounds:
(i) Rule 2(e) of Special Rules for Tamil Nadu Engineering Services deals with fixing seniority between directly recruited Assistant Engineers and those appointed by transfer from feeder categories and Rule 35(aa) of General Rules is applicable in respect of Assistant Engineers appointed by transfer and on compassionate grounds.
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(ii) The 4th respondent TNPSC objects to insertion of name of an Assistant Engineer appointed by transfer on the plea which will upset the TURN based on roster by the 4th respondent TNPSC, while selection of candidates.
(iii) G.O.(Ms).No.951, P & AR
(Establishment – B) Department, dated
14.09.1984 is applicable only to compassionate appointments to Tamilnadu Ministerial Services.
3(d). The 3rd respondent filed an appeal on 22.09.2008 to the Government challenging the order of the 2nd respondent dated 25.08.2008. The 1st respondent by the order dated 06.02.2009 rejected the appeal. The 3rd respondent filed W.P.No.17856 of 2009 before the Principal Bench of this Court, challenging the above orders mainly on the ground that the 3rd respondent is entitled to seniority from the date of his original appointment.
3(e). The petitioner was promoted to the post of Assistant Executive Engineer (Civil) on 14.09.2009. The 2nd respondent also published a classified list of Assistant Executive Engineer (Civil) on 05.04.2014 for promotion to the post of Executive Engineer. In the said 4/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 list, the petitioner was in Sl.No.322 and the 3rd respondent was placed at Sl.No.550. Later on, the petitioner was promoted as Executive Engineer on 31.07.2019 and at present he is working at Technical Education Division, Trichy.
3(f). Meanwhile, the 2nd respondent by the impugned order dated 05.09.2019 in the proceedings No.S2(2)/53679/2009, altered/re-fixed the petitioner's seniority and gave seniority to the 3rd respondent above the petitioner referring to Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016 and as clarified by the Government in Lr.No.27551/B2/2000-17 and based on the opinion offered by the 4th respondent, TNPSC.
3(g). The learned counsel appearing for the petitioner contended that the 2nd respondent on mis-conception and mis-interpretation of opinion given by the 4th respondent, wrongly applied Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016, fixed seniority of the 3rd respondent, taking into consideration the date of his appointment, failing to take note that petitioner was selected and appointed by the 4th respondent in the same year and 3rd respondent was originally placed below all the candidates selected by the 4 th respondent.
5/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 3(h). The learned counsel appearing for the petitioner further contended that the petitioner was selected as Assistant Engineer by direct Recruitment by the 4th respondent as contemplated under Rule 2(5) of Tamil Nadu Engineering Service Rules. The petitioner was placed at Sl.No.1 in the select list published by the 4th respondent. The list so published cannot be altered and any person appointed by any other mode in the same calendar year has to be placed below the list published by the 4th respondent. The 3rd respondent was not appointed either by direct recruitment or by transfer. The 3rd respondent was appointed by other mode, viz., on compassionate appointment. As per Rule 2(e) of Special Rules for Tamil Nadu Engineering Services, the 3 rd respondent was rightly placed below the candidates mentioned in select list published by the 4th respondent, TNPSC. Earlier the request of the 3rd respondent to fix his seniority based on his date of appointment was rejected by the 2nd respondent and appeal filed by the 3rd respondent to the Government was also rejected.
3(i). While so, the 2nd respondent sought opinion from the 4th respondent with regard to fixing seniority of 3rd respondent. The 4th respondent by his opinion dated 05.03.2018, gave correct opinion to the 2nd respondent to the effect that the selected seniority list of candidates published by the 4th respondent is of the same year, the said list is 6/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 based on Rule of Reservation. The 2nd respondent, contrary to the opinion of the 4th respondent dated 05.03.2018, revised the seniority of 3rd respondent and placed him above the petitioner. By placing the 3rd respondent above the petitioner, the 2nd respondent has altered the selected list of seniority of the 4th respondent. The 1st respondent is not disputing the opinion given by the 4th respondent. The impugned order of the 2nd respondent is against the opinion of the 4th respondent and contrary to Rule 2(e) of Special Rules for Tamil Nadu Engineering Services. When the petitioner and the 3rd respondent are selected in the same year, the 3rd respondent has to be placed below the petitioner. By the impugned proceedings, the 2nd respondent has unsettled the settled seniority list after a lapse of considerable time and the 2nd respondent is not entitled to revise the seniority list. No notice was given to the petitioner and no opportunity was given to him to put forth his case. By the impugned proceedings, the promotion prospects of the petitioner are affected.
4.The learned counsel appearing for the petitioner further contended that the impugned order of the 2nd respondent dated 05.09.2019 is illegal and arbitrary and is liable to be set aside as null and void. In support of his contention, the learned counsel appearing for the petitioner relied on the following judgments: 7/37
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(i) The jugement of the Hon'ble Apex Court reported in 2001 8 SCC 378, [Laxman Dundappa Dhamanekar & Anr Vs. Mangement Of Vishwa Bharata Seva Samiti & Anr], wherein at paragraph No.9, the Hon'ble Apex Court held as follows:
“...9.We noticed earlier, the appointment and conditions of service of teachers in private government aided institution are governed by the provisions of the Act and the statutory rules. The said provisions are self- contained code relating to the appointments of teachers in private aided institutions. The field relating to method of appointment of regular teacher in a government aided institution is fully covered by the provisions of the Act and the rules and we do not find any provisions either in the Act empowering the Government to supplement the rules by executive instructions. It is no doubt true that if the Act had empowered the State Government to issue administrative instructions by way of supplementing the rules, the position would be different. In such a case, the Government would have power to fill up the gaps in the rules by issuing administrative instructions if the rules are silent on the subject provided the same is not inconsistent with the statutory rules already framed. In the present case, the Act does not empower the State Government to supplement the 8/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 rules by issuing administrative instructions or orders. In the absence of such provision in the Act, it is not open to the government to supplement the rules by the executive orders. If we accept the argument of learned counsel for the respondent, it would be repugnant to Sections 3 and 15 of the Act.”
(ii) The jugement of the Hon'ble Apex Court reported in 2010 4 SCC 301, [H.S.Vankani & ors Vs. State of Gujarat & ors], wherein at paragraph No.38, the Hon'ble Apex Court held as follows:
“...38.Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration.”
(iii) The jugement of the Hon'ble Apex Court reported in 2013 7 SCC 289, [P.Dharani & ors Vs. Government of Tamilnadu & ors], wherein at paragraph No.35, the Hon'ble Apex Court held as follows: 9/37
http://www.judis.nic.in W.P.(MD).No.19959 of 2019 “...35. We have given our thoughtful consideration to the second legal proposition canvassed at the hands of the learned counsel for the appellants. We find merit therein as well. The question to be considered is, whether the Special Rule prescribing the minimum period of eligibility for appointment to the post of Regional Transport Officer, can be overlooked while allowing out of turn/accelerated appointment to respondent no. 5, to the post of Regional Transport Officer. We are satisfied in answering the aforesaid query in the negative.
35.4. We are, therefore of the view, that the order passed by the Administrative Tribunal, as also, by the High Court by relying on Rule 36(b)(ii) of the General Rules, was in clear derogation of the Special Rules referred to above.”
(iv) The jugement of the Hon'ble Apex Court reported in 2016 16 SCC 464, [R. Venkata Ramudu & another Vs. State of Andhra Pradesh & Others], wherein at paragraph No.43, the Hon'ble Apex Court held as follows:
“...43. The Special Rules are silent with regard to the principles governing seniority, General Rules 33 deals with it. Rule 33, insofar as it is relevant, reads as under:
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http://www.judis.nic.in W.P.(MD).No.19959 of 2019 'Rule 33. Seniority – (a) The seniority of a person in a service, class, category or grade, shall unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade.' It can be seen from the above, the seniority of a person shall be determined by the date of his first appointment to such service. The date of appointment is different from the date of commencement of probation. Both under General Rules 16(a) and Special Rules 6(2), the commencement of probation is from the date on which a person appointed joins the duty.
Therefore, appointment precedes the commencement of probation. Rule 33 does not make any reference to either the commencement or declaration of probation.”
(v) The jugement of the Hon'ble Apex Court reported in 2018 12 SCC 635, [Karnati Ravi & another Vs. Commissioner, Survey Settlements & land records and others], wherein at paragraph No. 6, the Hon'ble Apex Court held as follows:
“6. As we have already noted above, in the absence of the Rules, it is well within the powers of the Executive under Article 162 of the Constitution 11/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 to provide for the required instructions with regard to the procedure for selection, so long as they do not come in conflict with the Rules.”
5. The respondents 1 and 2 and the 3rd respondent filed separate counter affidavits with similar averments and also filed separate vacate stay petitions.
6. The learned Special Government Pleader appearing for the respondents 1 and 2 contended that the 3rd respondent was appointed on compassionate grounds. He further contended that the compassionate appointments are made by the Government under various schemes announced by the Government by various Government Orders issued under article 162 of the Constitution of India. The appointment under compassionate ground is direct recruitment. The learned Special Government Pleader referred to Rule 2(14), 2(15), 54
(a) and 3(a) and (b) of General Rules of Tamil Nadu State and Subordinate Service Rules to substantiate his contention that appointment of 3rd respondent on compassionate ground is direct recruitment. The learned Special Government Pleader further contended that there is no separate Act or Rule governing the compassionate appointment. Section 2(5) of Tamilnadu Engineering Service Rules deals with appointment of Assistant Engineer by two methods, viz., direct 12/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 recruitment and recruitment by transfer from Junior Engineer. In the absence of any Act or Rules, Tamil Nadu State and Subordinate Service Rules will apply. Rules 2(14), 2(15), 54(a), 35(aa) are the relevant Rules. The learned Special Government Pleader further contended that after enactment of Tamilnadu Government Servants (Conditions of Service) Act, 2016, Section 3(a) and 3(b) and 40 (2) are applicable for fixing seniority of 3rd respondent, who was appointed directly on compassionate grounds. Rule 2(e) of Special Rules for Tamil Nadu Engineering Services is not applicable as the 3rd respondent was appointed on 22.06.1998 on compassionate grounds.
6(a). As per Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules, when normal method of appointment is by more than one method, the seniority is to be determined with reference to the date of appointment of the said person to the service. Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016, which is reproduction of Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules, is applicable to persons like the 3rd respondent after Tamilnadu Government Servants (Conditions of Service) Act, 2016 came into force. Even if Section 40(2) does not have retrospective effect, the seniority of the 3rd respondent has to be fixed as per Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules. 13/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 The seniority as per the said Rule has to be fixed based on the date of appointment. The 2nd respondent has not re-fixed the seniority of the 3rd respondent contrary to the opinion given by the 4th respondent. In the opinion dated 05.03.2018, the 4th respondent, TNPSC has stated that seniority of the 3rd respondent can be fixed as per rule 35(aa) of Tamil Nadu State and Subordinate Service Rules and corresponding Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016. The select list of 4th respondent, TNPSC was not affected as there is no insertion in the select list of the 4th respondent. The petitioner has no vested right to be promoted, but he has only a right for being considered for promotion. The promotional opportunity of petitioner is not affected as there are 60 posts of Superintending Engineers and the petitioner will be considered for promotion as per the Rules and prayed for dismissal of the Writ Petition.
7. The learned counsel appearing for the 3rd respondent contended that the 3rd respondent was appointed as Assistant Engineer (Civil) in the Public Works Department on compassionate ground by G.O.(Ms).No. 272, Public Works (B-1) Department, dated 12.05.1998 and Appointment Order was issued on 25.05.1998 and the 3rd respondent joined duty on 23.06.1998. The services of the 3rd respondent was regularized from the date of his appointment after obtaining opinion 14/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 from the 4th respondent as per regulation 16(B) of Tamil Nadu Public Service Commission regulation by Government Order vide G.O.(3D)No. 4, Public Works (B-1) Department, dated 29.01.2001. The appointment of the 3rd respondent is by direct recruitment, similar to petitioner. There is no Act or Rule with regard to seniority of persons appointed on compassionate grounds. Hence, General Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules is applicable and seniority of the 3rd respondent is to be fixed taking into consideration his date of appointment. Section 2(e) of Special Rule for Tamil Nadu Engineering Service is not applicable to the case of the petitioner and Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules and after enactment of Tamilnadu Government Servants (Conditions of Service) Act, 2016, Section 40(2) is applicable to fix the seniority of the 3rd respondent.
7(a). Further the Government passed a Government Order in G.O. (Ms).No.951, P & AR (Establishment – B) Department, dated 14.09.1984 and issued instructions that the seniority of persons like 3 rd respondent are to be fixed as per date of appointment. Earlier, the 2nd respondent rejected the request of the 3rd respondent for re-fixing the seniority on erroneous grounds and Government rejected the appeal filed by the 3rd respondent. While the Writ Petition filed by the 3 rd respondent before the Principal Bench of this Court in W.P.No.17856 of 15/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 2009 challenging the same was pending, the respondents after obtaining opinion from the 4th respondent, correctly re-fixed the seniority of the 3rd respondent above the petitioner. Such re-fixing is not contrary to the opinion of the 4th respondent or Act or Rules. In view of the above, the 3rd respondent withdrew W.P.No.17856 of 2009 and this Court, by the order dated 15.10.2019, dismissed the Writ Petition as withdrawn.
7(b). The 3rd respondent joined as Assistant Engineer (Civil) in the Public Works Department on 23.06.1998, while the petitioner joined as Assistant Engineer (Civil) in the Public Works Department on 08.01.1999 in the next calendar year. The petitioner has no locus standi to challenge the re-fixation of seniority of the 3rd respondent. The 2nd respondent has re-fixed the seniority of the 3rd respondent as per Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016, corresponding to Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules. The impugned order is valid and legal. The apprehension of the petitioner that 3rd respondent will be promoted soon is not correct. There are 60 posts of Superintending Engineers and 20 posts of Chief Engineers available and re-fixation of seniority of the 3 rd respondent will not in any way affect the promotional opportunity of the petitioner. The learned counsel appearing for the 3rd respondent further 16/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 submitted that he is adopting the arguments of the learned Special Government Pleader appearing for the respondents 1 and 2.
8. The learned counsel appearing for the 4 th respondent, TNPSC contended that the seniority of the 3rd respondent has to be fixed as per Rule 35(aa) of the Tamilnadu State and Subordinate Service Rules and after enactment of the Tamilnadu Government Servants (Conditions of Service) Act, 2016, as per Section 40(2) of the Act. No insertion can be made in the select list of 4th respondent. In the present case, no insertion has been made. As per opinion of the 4th respondent, applying Rule 35(aa) of the Tamilnadu State and Subordinate Service Rules and Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016, the seniority of 3rd respondent is fixed taking into account his date of appointment and the same is valid.
9. The petitioner has filed the reply affidavit. In reply, the learned counsel appearing for the petitioner, referring to averments in the reply affidavit, contended that Section 2(e) of Special Rule for Tamil Nadu Engineering Service mandates candidates recruited by transfer on acquiring degree qualification shall be assigned rank below the last Assistant Engineer in the list of candidates selected by the 4th respondent in that calendar year. The date of communication of selected 17/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 list by the 4th respondent is the criteria for fixing the calendar year. The 4th respondent communicated the select list on 22.10.1998 and for the purpose of Rule 2(e) of Special Rule for Tamil Nadu Engineering Service, the said selection list shall be construed to be of the calendar year 1998. Therefore, the 3rd respondent ought to have been placed below the candidates selected through the 4th respondent for the year 1993-1994 communicated on 22.10.1998.
9(a). There is no executive order to fill up the gap of fixing the inter-se-seniority of compassionate appointment. The 4th respondent has given opinion that seniority of the 3rd respondent can be fixed without affecting the selected list of the 4th respondent. The 2nd respondent, on mis-interpretation of opinion of the 4th respondent, placed the 3rd respondent above the petitioner. The interpretation of the 2nd respondent that no insertion has been made in the selected list and placing the 3rd respondent above the petitioner does not affect the selected list of 4th respondent is erroneous. By placing the 3rd respondent above the petitioner, the select list has been affected and altered. The 2nd respondent contrary to Rule 2(e) of Special Rule for Tamil Nadu Engineering Service and without application of mind had placed the 3rd respondent above the petitioner in the seniority list, as a person appointed on compassionate ground is not entitled to claim 18/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 benefit of seniority based on his date of appointment, when the same is specifically denied by Rule 2(e) of Special Rule for Tamil Nadu Engineering Service.
9(b). The learned counsel appearing for the petitioner further contended that General Rules of Tamil Nadu State and Subordinate Service Rules can be applied only when there is no Special Rules. In view of Rule 2(e) of Special Rule for Tamil Nadu Engineering Service, General Rule 35(aa) of the Tamilnadu State and Subordinate Service Rules as well as Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016, cannot be applied to fix the seniority of the 3rd respondent. The 2nd respondent having applied Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016, contended as an after thought that General Rule 35(aa) of the Tamilnadu State and Subordinate Service Rules is applicable. The learned counsel appearing for the petitioner contended that the petitioner in reply affidavit has specifically denied the averments made in the counter affidavit and prayed for allowing the Writ Petition.
10. Heard the learned counsel appearing for the petitioner as well as the learned Special Government Pleader appearing for the respondents 1 and 2 and the learned counsel appearing for the 19/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 respondents 3 and 4 and perused the entire materials on record.
11. From the pleadings and arguments of the learned counsel appearing for the petitioner, learned Special Government Pleader appearing for the respondents 1 and 2, learned counsel appearing for the 3rd respondent and the learned counsel appearing for the 4th respondent, the following are the admitted facts:
Admitted Facts:
11(a). The petitioner participated in the selection process conducted by the 4th respondent for appointment to the post of Assistant Engineer (Civil) in the Public Works Department for the year 1993 as per the notification published by the 4th respondent. The petitioner was selected and placed in Sl.No.1 in the selected list of 15 candidates for appointment as Assistant Engineer (Civil). The 4th respondent intimated the select list to the 2nd respondent on 22.10.1998. On receipt of the select list, the 2nd respondent issued Appointment Order on 30.12.1998 and the petitioner joined as Assistant Engineer (Civil) on 08.01.1999.
11(b). The 3rd respondent was issued Appointment Order for the post of Assistant Engineer (Civil) on compassionate ground vide G.O. (Ms).No.272, Public Works (B-1) Department, dated 12.05.1998 and he 20/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 joined duty on 23.06.1998.
11(c). The selection and appointment of petitioner and 3rd respondent are in the same calendar year.
12. On these admitted facts, the point to be decided in this Writ Petition is whether the 3rd respondent is entitled to seniority as per his date of appointment or to be placed below all the candidates in the selected list of the 4th respondent.
12(a). The contention of the learned counsel appearing for the petitioner is that the 3rd respondent in spite of his date of appointment has to be placed below the candidates selected by the 4th respondent and the select list issued by the 4th respondent. The learned counsel appearing for the petitioner is relying on Rule 2(e) of Special Rules for Tamil Nadu Engineering Services. On the other hand, it is the contention of the learned Special Government Pleader that Rule 2(e) of Special Rules for Tamil Nadu Engineering Services is not applicable as the 3rd respondent was appointed on compassionate grounds and there is no Act or Rules governing the service condition and seniority of person appointed on compassionate ground. In the absence of any Rules, Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules is only 21/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 applicable to fix the seniority of the 3rd respondent. As per the said rule, the date of appointment is the basis for fixing the seniority of employees like the 3rd respondent. After enactment of Tamilnadu Government Servants (Conditions of Service) Act, 2016, Section 40(2) is applicable to the service conditions of the 3rd respondent. The learned counsel appearing for the 3rd respondent in addition to the above contention of the learned Special Government Pleader appearing for the respondents 1 and 2, contended that as per G.O.(Ms).No.951, P & AR (Establishment – B) Department, dated 14.09.1984, the 3rd respondent is entitled to seniority based on his date of appointment.
12(b). Rule 2(e) of Special Rules for Tamil Nadu Engineering Services, Rule 2(14), 2(15) and 35(aa) of Tamil Nadu State and Subordinate Service Rules, Section 3(a) and 3(b) and 40(2) of Tamilnadu Government Servants (Conditions of Service) Act, 2016, are extracted hereunder for better appreciation.
Rule 2(e) of the Tamilnadu Engineering Service:
“2(e). The candidates appointed as Assistant Engineers by recruitment by transfer on acquiring degree qualification shall be assigned rank below the last Assistant Engineer in the list of candidates selected by the Tamil Nadu Public Service Commission in that calendar year, If no selection 22/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 has been made by Tamil Nadu Public service Commission to the category of Assistant Engineers in the calendar year, the Assistant Engineer so re- designated shall be assigned rank below the last Assistant Engineer in the list last communicated. For this purpose, the date of communication of the list by Tamil Nadu Public Service Commission shall be the criterion to decide the calendar year to which the list belongs. The concurrence of the Tamil Nadu Public Service Commission shall not be necessary for such an appointment.
Rule 2(14), 2(15) and Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules:
Recruited direct:
2(14). A candidate is said to be “recruited direct” to a service, class, category or post when, in case his first appointment thereto has to be made in consultation with the Commission, on the date of its notification inviting applications for the recruitment and in any other case, at the time of his first appointment thereto, he is not in the service of the Government of India or the Government of a State - Provided that for the purposes of this definition a person shall be deemed to be not in the service of the Government of India or the Government of a State— (i) If a period of five years has not elapsed since his first 23/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 appointment to a service of the Government of India or the Government of a State; or (ii) If he belongs to the Scheduled Castes, Schedules Tribes or Backward Classes:
Recruited by transfer:
2(15). A candidate is said to be “recruited by transfer to a service” means,- (i) if, at the time of his first appointment to a service, class or category, he is either a full member or an approved probationer in the Madras High Court Service or in any other service, the rules for which prescribe a period of probation for member thereof; or (ii) in case, at the time of his first appointment thereto, he is the holder of a post which has been included in another service but for which no probation has been prescribed, if he has put in that post satisfactory service for a total period of two years on duty within a continuous period of three years. Explanation.— Where the special rules for a service provide for recruitment to that service or to any class or category thereof by transfer from any specified service, class or category, a candidate need not, for the purpose of such recruitment, be a full member or an approved probationer in the service, class or category so specified, provided he is a full member or an approved probationer in any other service, class or category;24/37
http://www.judis.nic.in W.P.(MD).No.19959 of 2019 (15-A) Reserve List - “Reserve List” shall mean a list which is prepared so as to contain not less than 25% of the candidates of each reservation group including General Turn in the regular list and shall be in force until the regular list is drawn up subsequently”.
(15-B) Transfer:- A member of a service is said to be appointed by transfer when the appointment is made from any one category to another category in the same service carrying identical scale of pay.” Rule 35(a): *(aa) The seniority of a person in a 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 or 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 25/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age.
Section 40(2) of the Tamil Nadu Government Servants (Conditions Of Service) Act, 2016:
SENIORITY 40(2). The seniority of a person in a 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 Appointment of full members. Appointment as full member, discharge and reappointment of member who are not probationers or approved probationers. Penalty for failure to pass prescribed test. Fixation of seniority. 32 to have been appointed to the service, class, category or grade on the same day on which the junior was so 26/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 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.”
13. The learned counsel appearing for the petitioner relied on Rule 2(5) and 2(e) of Special Rules for Tamil Nadu Engineering Services and prayed for setting aside the impugned order on the ground that candidates appointed as Assistant Engineer recruited by transfer on acquiring degree qualification shall be placed below the list of candidates selected by the 4th respondent in the same calendar year. The said reliance of Rule 2(e) and contention made based on the same are without merits. The said Rule is not applicable to the case of the 3rd respondent, who is appointed as Assistant Engineer (Civil) on compassionate ground and not on transfer on acquiring degree qualification. The learned counsel appearing for the petitioner has not produced any provision in Tamil Nadu Engineering Services or any other Rules applicable for appointment on compassionate grounds. Rule 2(5) 27/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 and 2(e) of Special Rules for Tamil Nadu Engineering Services deals with appointment by direct recruitment and recruitment by transfer from Junior Engineer, etc. The said Rules do not deal with appointees on compassionate grounds or seniority to be fixed for such appointments.
On the other hand, it is the contention of the learned Special Government Pleader appearing for the respondents 1 and 2 as well as learned counsel appearing for the 3rd respondent that there is no Special Rule for appointment on compassionate grounds and for fixing seniority. According to learned Special Government Pleader appearing for the respondents 1 and 2 as well as the learned counsel appearing for the 3 rd respondent, in the absence of Special Rules only, General Rules are applicable. The above contentions have considerable force and it is acceptable.
13(a). At this juncture, it will be useful to refer Section 7(1) of Tamilnadu Government Servants (Conditions of Service) Act, 2016, which deals with approved candidates. In the said Section, it is stated that approved candidates list shall be prepared as specified in Schedule XI. Clause 20 to Part A of Schedule XI is applicable to the present case.
13(b). Clause 20 to Part A of Schedule XI of Tamilnadu Government Servants (Conditions of Service) Act, 2016, reads as 28/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 follows:
“...(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.” This Clause makes it clear that in the absence of any Rules framed, existing Rules must be followed. There is no Rule for appointment on compassionate ground and for fixing seniority of such appointees. All the compassionate appointments are made based on Government schemes and Government Orders issued under Article 162 of the Constitution of India. The contention of learned Special Government Pleader appearing for the respondents 1 and 2 and learned counsel appearing for the 3rd respondent that there is no Rule for fixing seniority of compassionate appointees and Rule 2(e) of Special Rules for Tamil Nadu Engineering Services is not applicable is fortified by the 29/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 opinion given by the 4th respondent, TNPSC dated 05.03.2018, wherein the 4th respondent has stated that there is no specific provision in the said Rules for Tamil Nadu Engineering Service Rules to fix inter-se- seniority of Assistant Engineers appointed “on compassionate ground” and has stated that Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules and corresponding Section 40(2) of Tamilnadu Government Servants (Conditions of Service) Act, 2016, with suitable proviso of Tamilnadu Government Servants (Conditions of Service) Act, 2016 may be followed in fixing inter-se-seniority among Assistant Engineers in Tamil Nadu Engineering Services appointed by many modes of appointment. Assistant Engineers in the Public Works Department are appointed by three modes, viz.,
(i) by direct recruitment,
(ii) by transfer and
(iii) by compassionate appointment.
When appointments are made by three modes as per Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules, the seniority has to be fixed based on the date of appointment. In the present case, the 3 rd respondent was appointed as Assistant Engineer (Civil) on 22.06.1998 and his services were regularized from the date of his appointment, 30/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 while the petitioner was appointed on 30.12.1998. The 2nd respondent by applying Section 40(2) of Tamilnadu Government Servants (Conditions of Service) Act, 2016, fixed seniority of the 3rd respondent. The contentions of the learned counsel appearing for the petitioner that the said Act came into force with effect from 14.09.2016 and does not have retrospective effect and the 2nd respondent erred in applying Section 40(2) of Tamilnadu Government Servants (Conditions of Service) Act, 2016, is invalid or without merits. The 4th respondent has instructed the 1st respondent to follow Section 40(2) of Tamilnadu Government Servants (Conditions of Service) Act, 2016, which is corresponding to Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules. Therefore, the impugned order passed by the 2nd respondent applying the said Section 40(2) of Tamilnadu Government Servants (Conditions of Service) Act, 2016, which is exact reproduction of Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules is valid and legal.
13(c). The contention of the learned counsel appearing for the petitioner that impugned order of the 2 nd respondent is contrary to the opinion of the 4th respondent and placing the 3rd respondent above the petitioner has affected the selected list of 4th respondent is contrary to the materials on record. The 4th respondent in his opinion has stated 31/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 that there is no specific Rule dealing with compassionate appointees and Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules corresponding to Section 40(2) of Tamilnadu Government Servants (Conditions of Service) Act, 2016, has to be applied in case of the 3 rd respondent. Both the Rules and Section mandates fixing seniority of a candidate based on his date of appointment, when appointments are made by more than one mode. It is not in dispute that Assistant Engineers (Civil) in the Public Works Department are appointed by three different modes and therefore fixation of seniority of the 3 rd respondent based on his date of appointment is in consonance of opinion of the 4th respondent dated 05.03.2018. The 2nd respondent has not modified the selected list of 4th respondent containing 15 names by inserting the 3 rd respondent or any other person in between the 15 persons. Even after placing the 3rd respondent above the petitioner, the selected list is not altered or affected.
13(d). The contentions of the learned counsel appearing for the petitioner that by impugned order, the 2nd respondent has unsettled the settled seniority list after long time and thereby his promotional opportunities are affected, are without merits. The 3rd respondent was seeking to fix his seniority based on his date of appointment from 16.06.2008 onwards. The respondents 1 and 2 had delayed re-fixing the 32/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 seniority of the 3rd respondent. The delay on the part of the respondents 1 and 2 cannot be put against the 3rd respondent. The contention of the learned counsel appearing for the 3rd respondent that there are 60 posts of Superintending Engineers and 20 posts of Chief Engineers is not disputed. Further the learned Special Government Pleader appearing for the respondents 1 and 2 has rightly contended that the petitioner has no vested right to be promoted, but has only the right to be considered for promotion and his promotional opportunities are not in any way affected. The said contention has considerable force and the same is acceptable.
13(e). The judgments relied on by the learned counsel appearing for the petitioner do not advance the case of the petitioner. In fact paragraph No.43 of the judgment of the Hon'ble Apex Court reported in 2016 (16) SCC 464 cited supra, supports the stand of the respondents 1 to 3. In the said paragraph extracted above, the Hon'ble Apex Court considering Rule 33 of General Rules governing seniority, held that seniority of a person shall be determined by his first appointment to such service. The said ratio is applicable to the case of the 3rd respondent.
14. For the above reasons, this Writ Petition is liable to dismissed 33/37 http://www.judis.nic.in W.P.(MD).No.19959 of 2019 as devoid of merits.
15. In the result, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
30.01.2020
krk/rgr
Index : Yes
Internet : Yes
Note: Issue order copy on 03.02.2020
34/37
http://www.judis.nic.in
W.P.(MD).No.19959 of 2019
To
1.The Principal Secretary to Government,
Public Works Department,
Fort St. George, Chennai.
2.The Engineer – in – Chief, W.R.D.,
& Chief Engineer [General],
Public Works Department,
Chepauk, Chennai – 600 005.
3.The Chairman,
Tamilnadu Public Service Commission,
TNPSC Road Park Town,
V.O.C. Nagar,
Chennai – 600 003.
35/37
http://www.judis.nic.in
W.P.(MD).No.19959 of 2019
V.M.VELUMANI, J.
krk/rgr
W.P.(MD).No.19959 of 2019
36/37
http://www.judis.nic.in
W.P.(MD).No.19959 of 2019
30.01.2020
37/37
http://www.judis.nic.in