P.Sekar vs Association Of Engineers on 12 July, 2022

[Cites 5, Cited by 0]

Madras High Court

P.Sekar vs Association Of Engineers on 12 July, 2022

1. Challenge in these two appeals is made to the common order dated 23.12.2014 recorded on W.P.No.11148 of 2007 and W.P.No.21344 of 2007. These appeals are by the contesting private respondents of the W.P.No.11148 of 2007.

2. Before the rival contentions are recorded, relevant facts, in brief, need to be noted, which are as under:-

2.1 There are two contesting groups of employees / officers. Both the groups are Assistant Engineer in Public Works Department of the State of Tamil Nadu. The posts in the cadre of Assistant Engineer are filled in by two modes. One is by direct recruitment through Tamil Nadu Public Service Commission. The second mode is promotion / transfer from amongst the departmental candidates.

2.2 The ratio between direct recruit and departmental https://www.mhc.tn.gov.in/judis Page 11 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 candidates is 3:1.

2.3.1 To elaborate the above it is noted that, the ratio of 3:1 is to mean that out of 100 vacancies in the cadre of Assistant Engineers, 75 vacancies will be filled in by direct recruitment through Tamil Nadu Public Service Commission on the basis of the competitive examination from amongst all eligible candidates, where the requirement with regard to educational qualification is Graduation in the field of Engineering. In the said mode, experience is not the requirement. Upper age limit, as per Rules, is the restriction, which is not the subject matter.

2.3.2 The ratio of 3:1 is also to mean that out of 100 vacancies in the cadre of Assistant Engineers, 25 vacancies will be filled in from amongst the departmental candidates, who are working on different posts, lower than the Assistant Engineers, and who during the course of employment have acquired the educational qualification (Degree in the field of Engineering). There is also a requirement of minimum five years of experience of the Government service, in the defined posts / cadres. Upper age limit, is not the restriction, which again, is not the matter of dispute or https://www.mhc.tn.gov.in/judis Page 12 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 grievance between the parties.

2.4 Both the groups stand as Assistant Engineers at their own place. Next promotion is on the post of Assistant Executive Engineer. Who would go, first on the said higher post is the matter of concern from both the groups. Thus, in substance, in the seniority list of the cadre of Assistant Engineer, who stands where is the dispute.

2.5 The Direct Recruit Assistant Engineers who stand within their 75% quota, to put their case at its best, have started from the root that the contesting group of Assistant Engineers, who are departmental candidates (Technical Assistants) could not have been brought on the post of Assistant Engineers at all, even within the remaining 25% quota. Once they could not have been brought as Assistant Engineers at all, there is no question of treating them as senior to direct recruits, though the direct recruits might not have been even born in the said cadre, when the contesting group (Departmental candidates) were brought in, in the said cadre, by the Government.

2.6 Learned Single Judge has, by the impugned judgment https://www.mhc.tn.gov.in/judis Page 13 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 and order dated 23.12.2014 accepted the claim of the direct recruits (75% quota). The said decision is challenged in these appeals by the departmental candidates. Some of the appellants were respondents in the writ petition, some have filed appeals after seeking leave of the Court.

3. During pendency of these appeals, two more sets of writ petitions came to be filed, one by each group. The first set is W.P.No.3617 of 2017 (only one writ petition), which is filed by the group of direct recruits (75% quota). The second set is of four writ petitions being W.P.Nos. 5248, 5249,5251 & 5811 of 2022, which is by departmental candidates – persons similarly situated to the appellants of Writ Appeals. Though the prayer clause in these petitions are worded in different style, in substance the grievance is to deal with the consequence of what is to be decided in the writ appeals. Under these circumstances, learned Single Judge of this Court, while hearing those writ petitions passed an order on 17.03.2022 that these writ petitions be also heard along with these two writ appeals. Pursuant to the said order of learned Single Judge dated 17.03.2022, Hon'ble the Chief Justice has, as the master of Roster (on administrative side), ordered (04.04.2022) that, those writ petitions be also tagged, heard and decided along https://www.mhc.tn.gov.in/judis Page 14 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 with these two writ appeals. It is in this background all these matters are heard and decided together.

4. The decision of this Court qua these writ appeals will govern the fate of writ petitions as well, therefore, it first needs to be ascertained whether the impugned order passed by learned Single Judge needs to be sustained or any interference is required therein. We note that, while accepting the say of the direct recruits (75% quota), learned Single Judge has arrived at the final conclusion as noted in para : 19 of the impugned judgment, which would require scrutiny by this Court. The said para reads as under:-

“19. Under such circumstances, as rightly contended by the learned counsel for the petitioner, the appointment of the private respondents as Assistant Engineers by recruitment by way of transfer from the post of Technical Assistants is not only against the statutory rules, but also against the judgment of the Tamil Nadu Administrative Tribunal dated 17.04.1997 made in O.A.No.3348 of 1994 and the https://www.mhc.tn.gov.in/judis Page 15 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 judgment of a Division Bench of this Court in W.P.No.7523 of 1997 dated 06.11.2006.”

5. In view of above, it first needs to be seen whether the action of the State (of appointing Technical Assistants on their acquiring requisite educational qualification and experience, as Assistant Engineers) which was challenged in W.P.No.11148 of 2007, can be said to be against any statutory Rule or illegal in any manner and further, what law can be traced in the judgment of the State Administrative Tribunal dated 17.04.1997 in O.A.No.3348 of 1994 and / or the judgment of the Division Bench of this Court in W.P.No.7523 of 1997 dated 06.11.2006, which considered the sustainability of the said order of the Tribunal.

6. Heard learned advocates for the respective parties. 6.1 It is noted that, on behalf the appellants of W.A.Nos. 82 & 95 of 2015 and writ petitioners of W.P.Nos. 5248, 5249,5251 & 5811 of 2022 number of learned advocates have addressed the Court at length. Mr.V.Prakash, learned Senior Counsel has led the arguments. Mrs.Malarvizhi Udhayakumar and Mr.R.Subramanian, https://www.mhc.tn.gov.in/judis Page 16 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 learned advocates have also addressed the Court at length, in addition to what Mr.Prakash, learned Senior Counsel had argued but on the same line how the Technical Assistants appointed as Assistant Engineers are entitled to what they have claimed and how the counter claim is unsustainable.

6.2 On the other hand, Mr.N.Subramaniyan, Mr.Naveen Kumar Murthy, Ms.D.Latha and Mr.P.Rajendran, learned advocates have addressed the Court at length. The line of argument is how and why the Technical Assistants could not have been appointed as Assistant Engineers, and in the alternative how they can not be placed above this group in the matter of further promotion on the post of Assistant Executive Engineer.

6.3 It is noted that, both the groups have extensively taken this Court through the recruitment rules as amended form time to time and relevant G.Os as issued by Government from time to time, so also the earlier round of litigations and effect thereof on the present controversy.

6.4 On behalf of the State, Mr.R.Neelakandan, learned Additional Advocate General has addressed the Court at length. He https://www.mhc.tn.gov.in/judis Page 17 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 has supported the actions of the State and for doing so he has also taken this Court through the contents of the counter filed in W.P.No.3617 of 2017, which is on record. Attention of the Court is also invited to the affidavit filed in writ appeals, which is on record. By referring to this, it is submitted on behalf of the State that appropriate order be passed by the Court.

6.5 It is noted that, the learned advocates had addressed the Court for hours on different dates and the relevant arguments are dealt with hereunder.

7. The decision of this Court qua these writ appeals will govern the fate of writ petitions as well, therefore it first needs to be ascertained whether the impugned order passed by learned Single Judge is sustainable or is erroneous as contended on behalf of the appellants. We note that, while accepting the say of the writ petitioners of W.P.No.11148 of 2007 – the direct recruits (75% quota), learned Single Judge has arrived at the final conclusion as noted in para : 19 of the impugned judgment, which would require scrutiny by this Court. The said para is already quoted in the earlier part of this order.

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8. In view of above, it first needs to be seen whether the action of the State (of appointing Technical Assistants on their acquiring requisite educational qualification and experience, as Assistant Engineers) which was challenged in W.P.No.11148 of 2007, can be said to be illegal in any manner and further, which proposition of law (if any) can be traced in the judgment of the Tamil Nadu Administrative Tribunal dated 17.04.1997 in O.A.No.3348 of 1994 and / or the judgment of the Division Bench of this Court in W.P.No.7523 of 1997 dated 06.11.2006, which considered the sustainability of the said order of the Tribunal.

9. Before the above two questions are considered, it needs to be noted that, the State had taken policy decision vide G.O.No.1 dated 02.01.1990 to appoint Technical Assistants as Assistant Engineers, on their acquiring requisite educational qualification and experience. The legality of the said G.O. was challenged before this Court by filing W.P.No.3309 of 1991 and the said petition was dismissed vide order dated 08.03.1991. The same has attained finality. We have taken note of the said order of this Court, with due concurrence. It is in this background the questions raised in these writ appeals / writ petitions are considered by us.

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10. The said G.O.No.1 dated 02.01.1990 reads as under:-

Public Works (B-2) Department G.O.Ms.No.1 Dated 2nd January 1990 Read also:-

G.O.Ms.No.1356, Public Works Department dt.2-8-80.

Read again:

1.From the Chief Engineer (General), PWD Letter No. EIV (3)/72281/83/34 dated 19-6- 86, 23-9-86, 12-6-87.

2.From the Chief Engineer (General) Letter No. EIV (3)/67841/86 dated 31.12.87.

3.From the Secretary, Tamil Nadu Public Service Commission Letter No.8777/B5/88 dated 8-2-89.

ORDER:

As per the orders issued in the G.O. first read above, Head Draftsman and Draftsmen Grade I alone who have put in three years of service are eligible for appointment as Assistant Engineers on acquiring A.M.I.E/B.E. qualification and from the date of issue of the said order, Draftsmen Grade II, III and Oveseers in Public Works Department would not be eligible for such appointment and they will have to take their chances along with fresh https://www.mhc.tn.gov.in/judis Page 20 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 candidates for direct recruitment to the post of Assistant Engineer in the Tamil Nadu Engineering Service.

2. Representations have been received from Service Associations that the above orders may be reconsidered by the Government as these orders have affected the promotion opportunities of Draughting Officers and to issue orders to enable Draughtsmen Grade II, III, Overseers and Technical Assistants to become eligible for appointment as Assistant Engineers on transfer of service on acquiring BE/A.M.I.E degree qualification.

3. The matter has been examined by the Government in consultation with the Chief Engineer (General) Public Works Department and the Tamil Nadu Public Service Commission. The Chief Engineer (General) has stated that provisions be made for the Draughtsman Grade III (now Junior Draughting Officers) Draughtsman Grade II (now Draughting Officers), Overseers and Technical Assistants for appointment as https://www.mhc.tn.gov.in/judis Page 21 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 Assistant Engineers on acquiring degree qualification in Engineering subject to the condition that they should have rendered 5 years of service as Draughtsmen/Overseers, Technical Assistant as the case may be. The Tamil Nadu Public Service Commission has stated that persons in the category of Draftsmen Grade II, III, Overseers and Technical Assistants in Public Works Department on acquiring B.E/A.M.I.E Degree qualification and putting in five years should be made eligible for upgradation as Assistant Engineer in Tamil Nadu Engineering Service.

4. After careful consideration, the Government accept the recommendations of the Chief Engineer (General), PWD and the Tamil Nadu Public Service Commission and they accordingly direct that with effect from the date of this order, Junior Draughting Officers, Draughting Officers, Overseers and Technical Assistants in Public Works Department, who have put up five year service, will be eligible to be appointed as https://www.mhc.tn.gov.in/judis Page 22 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 Assistant Engineers on transfer of service on acquiring B.E/A.M.I.E qualification.

5. The Chief Engineer PWD (General) is requested to submit suitable proposals for issue of amendments to the special Rules for the Tamil Nadu Engineering Service / Tamil Nadu Engineer Subordinate Service for giving statutory effect to the orders issued in para 4 above.

/By order of the Governor/ Sd/-

K.G.Sukumaran Special Secretary to Government

11. In continuation of the said G.O.No.1 dated 02.01.1990, the Government has issued further G.O. No.88 dated 22.01.1991, the relevant of which reads as under:-

“G.O.Ms.No. 88 Public Works Department dated 22.1.1991 Establishment – Public Works Department – Tamil Nadu Engineering Service – Appointment of Junior Draughting Officers, Draughting Officers, Overseers and Technical https://www.mhc.tn.gov.in/judis Page 23 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 Assistant as Assistant Engineer on acquiring BE/AMIE qualification – Tamil Nadu Public Service Commission not to be consulted – orders issued.

Read

1.G.O.Ms.No.1800/Public works dated 5.11.60

2.G.O.Ms.No.61 P& AR dated 24.1.83

3.G.O.Ms.No.1 PWD dt. 2.1.90

4.From the Tamil Nadu Public Service Commission Lr.No.8777/B5/88 dt.13.2.99 ORDER:

In the G.O. third cited, orders were issued to the effect that with effect from 2.1.90, Junior Draughting Officers, Draughting Officers, Overseers and Technical Assistants in Public Works Department who have put in five years service will be eligible to be appointed as Assistant Engineer, on transfer of service, on acquiring BE/AMIE qualification.

2. The Tamil Nadu Public Service Commission has suggested to the Government that the Commission need not be consulted for the appointment of Junior Draughting Officers, https://www.mhc.tn.gov.in/judis Page 24 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 Draughting Officers, Overseers and Technical Assistants as Assistant Engineers on acquiring BE/AMIE qualification and has requested that amendments to Tamil Nadu Public Service Commission Regulations 1954 may be issued. The Government accept the recommendation of the Tamil Nadu Public Service Commission and direct that the Tamil Nadu Public Service Commission need not be consulted for appointment of Junior Draughting Officers, Draughting Officers, Overseers and Technical Assistants who have put in five years service, as Assistant Engineer in Public Works Department, on acquiring Engineering degree qualification, subsequent to their appointment as Junior Draughting Officers, Draughting Officers, Overseers and Technical Assistants.

3. Necessary amendment to the Tamil Nadu Public Service Commission Regulation 1954 in this regard will issue separately from the Personnel and Administrative Reforms (Per-M) Department.

(By the order of the Governor) https://www.mhc.tn.gov.in/judis Page 25 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 Sd/-

D.Murugaraj Secretary to Government”

12. The conjoint consideration of both the G.Os i.e. G.O.No.1 dated 02.01.1990 and G.O.No.88 dated 22.01.1991, lead to a situation that there is legal and valid policy of the State to appoint Technical Assistants as Assistant Engineers, on their acquiring requisite educational qualification and experience, and the said policy decision is taken in consultation with the Tamil Nadu Public Service Commission and further that challenge to the said policy is negatived by this Court.

13. The findings of learned Single Judge in para : 19 of the judgment under challenge to the effect that, the action of the State to appoint Technical Assistants as Assistant Engineers, on their acquiring requisite educational qualification and experience, is against the statutory rules is therefore erroneous. Absence of provision in the statutory rule is not to be read as prohibition in that regard. The space in the Rules can always be filled in by State in its executive authority. G.O.No.1 dated 02.01.1990 is the said authority which the State had exercised, the validity of which is https://www.mhc.tn.gov.in/judis Page 26 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 already upheld by this Court at the relevant time itself. According to us, it is this point qua which learned Single Judge fell in error (while recording satisfaction in para : 19 of the judgment under challenge) which needs to be corrected in these appeals. We set aside that part of the judgment of learned Single Judge.

14. Coming to the next finding of learned Single Judge to the effect that, the said action of the State is also against the judgment of the Tamil Nadu Administrative Tribunal dated 17.04.1997 made in O.A.No.3348 of 1994 and the judgment of a Division Bench of this Court in W.P.No.7523 of 1997 dated 06.11.2006, it needs to be ascertained whether any proposition of law can be traced in the judgment of the Tamil Nadu Administrative Tribunal dated 17.04.1997 in O.A.No.3348 of 1994 and / or the judgment of the Division Bench of this Court in W.P.No.7523 of 1997 dated 06.11.2006, which considered the sustainability of the said order of the Tribunal, and if yes, what is that proposition of law. In this regard, this Court finds as under:-

14.1 In the year 1994 Tamil Nadu Public Service Commission issued an advertisement for direct recruitment on the post of Assistant Engineers. As noted above, the said recruitment https://www.mhc.tn.gov.in/judis Page 27 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 would be towards 75% quota.

14.2 Since the State had already acknowledged (vide G.O.No.1 dated 02.01.1990) the heart burning of the departmental candidates in the cadres of Draftsmen Grade II, III, Overseers and Technical Assistants and also taken policy decision to appoint them on the post of Assistant Engineers (within 25% quota) on their acquiring educational qualification and experience, some of the departmental candidates were aggrieved by the said advertisement that, until the process of appointment of 25% quota is not completed, the Tamil Nadu Pubic Service Commission should not be permitted to go ahead with the said direct recruitment. This was questioned before the State Administrative Tribunal in the group of applications being O.A.Nos.3348 /94 and cognate applications. Thus the only point at issue before the Tribunal was whether the direct recruitment should be permitted as per the advertisement or the said recruitment process required any interference. The Tribunal on the basis of the material found that, the number of posts advertised by the Public Service Commission was beyond 75% quota and the Tribunal interfered to that extent i.e. the number of posts to be filled in through that recruitment https://www.mhc.tn.gov.in/judis Page 28 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 process would be limited to what is available to direct recruits i.e. 75% quota. We are unable to read anything more than this in the said judgment of the Tribunal. Even if some observations are there, the same can not be said to be law since that was the point at issue before the Tribunal. Further, when the said judgment of the Tribunal was challenged before this Court, the Division Bench of this Court did not interfere with it. The confirmation by the Division Bench of this Court would further fortify what we have noted above. We further note that, the said decision of the Division Bench of this Court was further challenged before the Supreme Court and the Supreme Court has also confirmed (vide judgment dated 14.09.2017 recorded on Civil Appeal Nos. 995 of 2009 and cognate appeals) the said judgment of the Division Bench of this Court. At this juncture, it is also required to be noted that, even while dealing with the judgment of the State Administrative Tribunal, the High Court and the Supreme Court both were aware of the fact that, the policy of the State as contained in G.O.No.1 dated 02.01.1990 is already there and the sustainability thereof is also upheld earlier by this Court. Specific reference needs to be made to the order of the Division Bench of this Court as recorded on judgment dated 06.11.2006 in W.P.No.7523 of 1997. Para 7 to 9 of the said order read as under:-

https://www.mhc.tn.gov.in/judis Page 29 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 “7. The only point for consideration in this writ petition is, whether the Tribunal is justified in quashing Advertisement No.9/94 of TNPSC and further directing to consider the applicants in the O.A., along with other feeder categories mentioned in 2(a)(5) of Tamil Nadu Engineering Service Special Rules (in short "the Special Rules") for the Tamil Nadu Engineering Service Recruitment by Transfer and make appointment one out of every four vacancies till altered by statutory amendment.

8. In G.O.Ms.No.1, PWD dated 02.01.1990, the Government has ordered that with effect from the date of issue of the order, Junior Drafting Officers / Drafting Officers / Overseers and Technical Assistants in Public Works Department who have put in five years of service will be eligible to be appointed as Assistant Engineers by transfer of service on acquiring B.E./A.M.I.E., https://www.mhc.tn.gov.in/judis Page 30 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 degree qualification. Followed by the said Government Order, the Government requested the Chief Engineer (General) PWD to submit suitable proposals for issue of amendments to the Special Rules for the Tamil Nadu Engineering Service / Tamil Nadu Engineering Subordinate Service for giving statutory effect to this order. It is brought to our notice that the proposal sent by the Chief Engineer is under consideration of the Government.

9. It is also brought to our notice that the very same Government Order was already challenged by the Engineering Graduates in W.P.No.3309 of 1991 before this Court. By order dated 08.03.1991, a learned single Judge of this Court, dismissed the said writ petition holding that appointment to the service in the State can be done either by direct recruitment or by transfer. The learned Judge has also observed that wherever no rule has been made under Article 309 of https://www.mhc.tn.gov.in/judis Page 31 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 the Constitution, executive instructions shall be issued to fill up the gap till the rules are framed. The learned Judge further held that, as such, by the impugned order, the Government has made certain persons who are in service eligible to be appointed as Assistant Engineers by transfer of service on their acquiring B.E./A.M.I.E. degree qualification. As rightly pointed out by the learned counsel for the respondents, there is no mention that as to whether all the vacancies that arise in the post of Assistant Engineer have to be filled up only by transfer of service. In view of the same, the contention of the petitioner that the said Government Order affects the entire administration and method of recruitment vis-a-vis, the recruitment by TNPSC cannot be accepted.” 14.3 On conjoint consideration of the above, we arrive at the conclusion that, learned Single Judge fell in error to the extent that, the action of the State (of appointing Technical Assistants on https://www.mhc.tn.gov.in/judis Page 32 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 their acquiring requisite educational qualification and experience, as Assistant Engineers) which was challenged in W.P.No.11148 of 2007 was against the judgment of the Tamil Nadu Administrative Tribunal dated 17.04.1997 made in O.A.No.3348 of 1994 and the judgment of a Division Bench of this Court in W.P.No.7523 of 1997 dated 06.11.2006.

14.4 As already noted above, the point at issue in the said litigation was different and we are unable to read in the said judgment what learned Single Judge found therein. The said error is also corrected by us, by setting aside the said finding recorded by learned Single Judge in para : 19 of the judgment under challenge.

14.5.1 At this stage, it is noted that, on behalf of the direct recruit Assistant Engineers (75% quota) reliance is also placed on the written submissions (dated 14.07.2018), the substance of which is that how G.O.No.1 dated 02.01.1990 was illegal and how consequential actions taken by the State qua departmental candidates, more particularly the Technical Assistants is illegal. It is neither necessary nor even open to this Court to examine at this stage, whether G.O.No.1 dated https://www.mhc.tn.gov.in/judis Page 33 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 02.01.1990 and consequential actions of the State are sustainable or otherwise. That being the concluded issue in favour of the State, we only take note of that fact with concurrence. The arguments on behalf of the direct recruit Assistant Engineers would not take their case any further, as pleaded by them, in above factual background. The written submissions would not require consideration beyond this. At this stage, reference also needs to be made to the decision of the Supreme Court of India in the case of S.Panneer Selvam and others v State of Tamil Nadu and others reported in (2015) 10 SCC 292, which is heavily relied by them.

We have considered the said decision. The very opening part of the said judgment, more particularly para 1.1 and 1.2 clearly indicate, what was the point at issue therein. It dealt with the seniority issue of the Scheduled Caste and Scheduled Tribe candidates promoted earlier as compared to unreserved candidates, following the rule of reservation. Supreme Court was considering the question, that too after taking note of the various judgments of the Supreme Court of India starting from (i) R.K.Sabharwal v State of Punjab (1995) 2 SCC 745 (ii) Union of India v Virpal Singh Chauhan (1995) 6 SCC 684 and (iii) Ajit Singh Januja v State of Punjab (1996) 2 SCC 715. It mainly dealt with an issue, whether rule of reservation will give only out of turn promotion to https://www.mhc.tn.gov.in/judis Page 34 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 Scheduled Caste and Scheduled Tribe candidates or it shall also confer consequential seniority as well. We find that, in the case in hand, that is not the issue. The said judgment therefore will not take the case of the direct recruits any further. The G.O.No.1 dated 02.01.1990 opened opportunity for Technical Assistants for being appointed as Assistant Engineers from within 25% quota, that too on their acquiring required educational qualification and experience. Keeping this distinction in mind, we hold that, the arguments on behalf of the direct recruit Assistant Engineers (75% quota) is untenable and need to be rejected.

15. The judgment and order of learned Single Judge impugned in these two appeals therefore needs to be quashed and set aside. The writ petitions, on which, the said judgment was recorded need to be dismissed.

16. Coming to the next question of considering rest two sets of writ petitions, being W.P.No.3617 of 2017 (only one writ petition) which is filed by the group of direct recruits (75% quota) and W.P.Nos. 5248, 5249, 5251 & 5811 of 2022, which is by departmental candidates – persons similarly situated to the appellants of Writ Appeals, as already noted above, though the https://www.mhc.tn.gov.in/judis Page 35 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 prayer clause in these petitions are worded in different style, in substance the grievance is to deal with the consequence of what is to be decided in the writ appeals. Since we have already held above, that there is legal and valid policy of the State (vide G.O.No.1 dated 02.01.1990 and G.O.No.88 dated 22.01.1991) to appoint Technical Assistants as Assistant Engineers, on their acquiring requisite educational qualification and experience, and the said policy decision was taken in consultation with the Tamil Nadu Public Service Commission and further that challenge to the said policy is negatived by this Court and further that, the said policy is neither in conflict with any statutory rule nor can be said to be against any of the judicial pronouncement including the judgment of the Tamil Nadu Administrative Tribunal dated 17.04.1997 in O.A.No.3348 of 1994 and / or the judgment of the Division Bench of this Court in W.P.No.7523 of 1997 dated 06.11.2006, the prayer sought in other writ petitions need to be answered accordingly.

16.1 W.P.No.3617 of 2017 is filed by the group of direct recruits (75% quota) with the following prayer:-

“Petition filed under Art. 226 of the Constitution - calling for the records https://www.mhc.tn.gov.in/judis Page 36 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 on the file of the 1st respondent in respect to G.O. Ms.No.155 Public Works (D2) Department dated 13.8.2015 and on the file of the 2nd respondent in respect of proceedings in No.S2(2)/ 29148/2004 dated 6.11.2015 and in respect of Letter in S2(2)/ 59620/2015 dated 18.1.2017 and quash the same and consequently direct the respondents 1 and 2 not to consider the private respondents regularized in the impugned orders as Assistant Engineers for any purpose including for fixing their seniority in the category of Assistant Engineers so as enabling them to be considered within the 75% quota earmarked for Assistant Engineers for promotion to the category of Assistant Executive Engineer.” 16.2 The above prayer clause needs to be considered in continuation of what was prayed in W.P.No.11148 of 2007 and 21344 of 2007.

16.2.1 Prayer clause of W.P.No.11148 of 2007 reads as under:-

“Petition filed under Art. 226 of the Constitution of India to issue a writ of certiorarified mandamus to call https://www.mhc.tn.gov.in/judis Page 37 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 for the records of the 2nd respondent in proceedings No.S2(2)/29148/2004-24 dated 27.2.2006 and quash the same and consequently set aside the appointments of respondents 3 to 23 as Asst.

Engineers and revert them back to the post of Technical Assistants.” 16.2.2 Prayer clause of W.P.No.21344 of 2007 reads as under:-

“Petition filed under Art. 226 of the Constitution of India praying to issue writ of mandamus forbear the Respondents from promoting any technical Assistants as Assistant Engineers through recruitment by transfer in violation of orders of the dated 06.11.2006 in W.P.No. 7523 of 1997 and also that of the Tamilnadu Administrative Tribunal dated 17.04.1997 in O.A.No. 3348 of 1994 etc.” 16.3 So far the above two writ petitions are concerned, by this order we have allowed writ appeals and have dismissed the writ petitions. The relief sought in W.P.No.3617 of 2017 (which is quoted above) can not be granted since that would be in conflict with what is held above by us. The said petition therefore needs to be dismissed. Any person validly appointed as Assistant Engineer is an officer of that cadre for all purposes including standing at appropriate place in the seniority list of that cadre, on the basis of his date of appointment / regularization in the said cadre so also for being considered for further promotion on the higher post of https://www.mhc.tn.gov.in/judis Page 38 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 Assistant Executive Engineer. W.P.No.3617 of 2017 therefore needs to be dismissed.

17.1 So far W.P.Nos. 5248, 5249, 5251 & 5811 of 2022, are concerned, they are filed by the departmental candidates – persons similarly situated to the appellants of Writ Appeals. The prayer clause in each petition reads as under:-

“Prayer in W.P.No.5249 of 2022 Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondents herein to prepare a combined seniority list of Assistant Engineers including those Assistant Engineers recruited by transfer such as the petitioner herein in accordance with Section 40(2) of Tamil Nadu Government Servants (Conditions of Services) Act 2016 and effect promotions in due consideration of such seniority in accordance with the rules.

Prayer in W.P.No.5251 of 2022

Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondents herein to prepare a combined seniority list of Assistant Engineers including those Assistant Engineers recruited by transfer such as the petitioner herein in accordance with Section 40(2) of Tamil Nadu Government Servants (Conditions of Services) Act 2016 and effect promotions in due consideration of such seniority in accordance with the rules.

https://www.mhc.tn.gov.in/judis Page 39 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 Prayer in W.P.No.5811 of 2022 Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondents herein to prepare a combined seniority list of Assistant Engineers including those Assistant Engineers recruited by transfer such as the petitioner herein in accordance with Section 40(2) of Tamil Nadu Government Servants (Conditions of Services) Act 2016 and effect promotions in due consideration of such seniority in accordance with the rules.

Prayer in W.P.No.5248 of 2022

Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondents herein to prepare a combined seniority list of Assistant Engineers including those Assistant Engineers recruited by transfer such as the petitioner herein in accordance with Section 40(2) of Tamil Nadu Government Servants (Conditions of Services) Act 2016 and effect promotions in due consideration of such seniority in accordance with the rules.”

17.2 What is prayed by these petitioners is only the consequence of their succeeding in Writ appeals, which they have. As the necessary consequence thereof, these petitions need to be allowed.

https://www.mhc.tn.gov.in/judis Page 40 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017

18. For the reasons recorded above, the following order is passed:-

18.1 W.A.Nos. 82 and 95 of 2015 are allowed. 18.2 W.P.No.3617 of 2017 [(only one writ petition), which is filed by the group of direct recruits (75% quota)] is dismissed.

18.3 W.P.Nos. 5248, 5249,5251 & 5811 of 2022, [which are filed by departmental candidates – persons similarly situated to the appellants of Writ Appeals] are allowed.

18.4 It is declared that, the appellants of W.A.Nos. 82 & 95 of 2015 and all persons similarly situated to them are entitled to all consequential benefits, flowing from the subsequent actions of the State pursuant to its policy as contained in G.O.1 dated 02.01.1990 which were questioned before this Court. It is directed that, those benefits if withheld or deferred because of pendency of this litigation, shall be paid to the concerned officers.

18.5 No costs. Consequently, connected miscellaneous https://www.mhc.tn.gov.in/judis Page 41 of 43 W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 petitions would not survive.

                                                          (P.U., J)    (V.B.S., J)
                                                                  03.08.2022
                     Index:Yes
                     ssm




https://www.mhc.tn.gov.in/judis
                     Page 42 of 43
                                                                           W.A.Nos.82 & 95 of 2015,

W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 PARESH UPADHYAY, J.

and V. BHAVANI SUBBAROYAN, J.

ssm To:

1.The Secretary to Government, Public Works Department, Fort St.George, Chennai.

2.The Engineer – in – Chief, W.R.O & Chief Engineer (General), Public Works Department, Chepauk, Chennai – 600 005.

3.The Tamilnadu Public Service Commission, Rep. By its Secretary, Frazer Bridge Road, Chennai – 600 003.

4.The Engineer-in-Chief (Buildings), Public Works Department, Chepauk, Chennai – 600 005.

Judgment in W.A.Nos.82 & 95 of 2015, W.P.Nos.5249,5251,5811 & 5248 of 2022, W.P.No.3617 of 2017 03.08.2022 https://www.mhc.tn.gov.in/judis Page 43 of 43

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