Madras High Court
K.Priya vs The Secretary To Government on 21 July, 2023
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.Nos.6224 & 6750 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
WP.Nos.6224 & 6750 of 2023 &
WMP.Nos.6235, 6236, 6820, 6822 & 16128 of 2023
1. K.Priya
2. A.Sathya
3. M.Kowsalya
4. T.Saravanan
5. M.Anbu Kannan ... petitioners in W.P.No.
6224 of 2023
1. A.Kannan
2. R.P.Ranjani
3. J.Jansimala
4. R.Thirusarbaharish
5. I.Kasirajan
6. N.Abul Fernaz
7. R.Hemalatha
8. S.Rameshkumar ... Petitioners in W.P.No.
6750 of 2023
Vs
1. The Secretary to Government,
Housing and Urban Development Department,
Fort St. George, Chennai – 09.
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W.P.Nos.6224 & 6750 of 2023
2. The Managing Director,
Tamilnadu Housing Board,
CMDA Complex, E & C Market Road,
Koyambedu, Chennai – 107.
3. The Secretary and Personal Officer,
Tamilnadu Housing Board,
CMDA Complex, E & C Market Road,
Koyambedu, Chennai – 107. ... Respondents 1 to 3 in
both WPs
4. C.Girija Kumari
5. S.Vijayakumar
6. M.P.Subramanian
7. J.Praveen
8. J.Ibrahim
9. C.Shanmugapriya
10. S.Nancy Jasmine
11. R.Susivan
12. G.Balamurugan
13. S.Murugan
14. S.Deepa
15. K.Manikandan
16. M.Raja
17. K.Sathishkumar
18. K.Parthiban
19. K.Sankar
20. M.Vijay
21. M.Murugesan
22. M.Prabanjali
23. S.Dinesh Babu
24. R.Balasubra Manian
25. V.Subashini
26. S.Saravanan
27. M.Kondasamy
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W.P.Nos.6224 & 6750 of 2023
28. R.Viniain Kumar
29. K.Prabudeva
30. R.Gopalakrishnan
31. M.Jeeva
32. P.Kumar
33. S.Kumar
34. G.M.Shibi Sakthiya
35. P.Arockia Georgebruno
36. M.Gopinath
37. M.A.Muthu Manikkam
38. F.Abdul Azeez
39. S.Elangovan
40. N.Arumugam
41. V.Kalaiselvan
42. S.Tamihosai
43. A.Selvakumar
44. A.Jothiprakash
45. B.Suganya
46. M.S.Mouleeswaran
47. S.Sinduja
48. S.Rajkumar
49. S.Yokesh
50. J.Ebinesan
51. K.Sivanesan
52. P.Vinothkumar
53. R.Anbu karthick
54. K.Ilayaperumal
55. R.Elamvazhuthi
56. S.Partiban
57. V.Priyanga
58. A.Aaruthra
59. k.Chitra
60. G.Thulasimani
61. M.Anusha
62. S.Rajeswari
63. p.Shalini
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W.P.Nos.6224 & 6750 of 2023
64. G.Sundhara Moorthi
6. P.Haswini
66. R.Suguna
67. R.Malathidevi
68. K.Brinda
69. G.Lavanya
70. G.Antony Beaula Rani
71. J.Mohanambal
72. P.Pandiselvi
73. S.Sasikala
74. S.Shehnaz
75. R.Boopathi
76. G.Dinakaran
77. K.Vaira Moorthy
78. M.Karthikeyan ... Respondents 4 to 78 in
in both Writ Petitions
[Respondents 4 to 78 impleaded in W.P.No.
6224 of 2023 as per the Order of this Court in
WMP.No.6601 of 2023 in W.P.o.6224]
Prayer:- Writ Petitions filed under the Article 226 of Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records
in connection with the impugned Order passed by the second respondent
in Memo No.PT3/1010/2023 dated 20.02.2023 and to quash the same to
an extent of non-inclusion of the petitioners/ Surveyors name in the panel
for the post of AE/JE for the panel year 2022-23 and consequently direct
the second respondent to include the Surveyors/Petitioners in the panel to
the post of AE/JE for the panel year 2022-23 as per the TNHB
Regulation, 1969 and in accordance with the provisions of Tamilnadu
Government Servants [Conditions of Service] Act, 2016 within a
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W.P.Nos.6224 & 6750 of 2023
reasonable time.
For petitioners : Mr.K.S.Viswanathan
for S.Sivakumar – in both WPs.
For respondents : Mr.V.Jeevagiridharan,
in both WPs Additional Government Pleader – R1
Mr.R.Shanmuga Sundaram, AG
Asst. by Mr.D.Veerasekaran R2 & R2
Mr.Richadson Wilson
for R 7, 12, 13, 21, 26, 29, 37, 43, 48,
49, 51,54, 46, 63,64,72
in WP.No.6224 of 2023
for R7, 10, 12, 13, 14, 17, 20, 21, 23,
25,
26, 27, 28, 29, 30, 31, 36, 37, 39, 43,
45,
48, 49, 51, 54, 46, 59, 62,63,64, 65, 68,
71, 72 - in W.P.No.6750 of 2023
COMMON ORDER
These Writ Petitions have been filed to quash impugned Order passed by the second respondent in Memo No.PT3/1010/2023 dated 20.02.2023 to an extent of non-inclusion of the petitioners/ Surveyors name in the panel for the post of AE/JE for the panel year 2022-23 and consequently direct the second respondent to include the Surveyors/Petitioners in the panel to the post of AE/JE for the panel year 5/16 https://www.mhc.tn.gov.in/judis W.P.Nos.6224 & 6750 of 2023 2022-23 as per the TNHB Regulation, 1969 and in accordance with the provisions of Tamilnadu Government Servants [Conditions of Service] Act, 2016 within a reasonable time.
2. The main challenge is being made on the provisional list in the cadre of Technical Assistant for the post of Assistant Engineer during the financial year 2022. The said list has been challenged mainly on the ground that there are three cadres of feeder post for the promotion to the post of Assistant Engineer and for several years promotions are effected on the basis of the combined Seniority List. However, now, the provisional seniority list has been prepared among the Technical Assistant for promotion to the post of Assistant Engineer. Hence, the above list has been challenged for non consideration of surveyors for the post of Assistant Engineer. Since the Board Regulations contemplates promotion from other category of service with the qualification prescribed for direct recruitment, the impugned order is a result of discrimination and malafide and clear violation of principles of natural justice. The Board has no authority to adopt such a procedure for promotion since 6/16 https://www.mhc.tn.gov.in/judis W.P.Nos.6224 & 6750 of 2023 there are regulations regulating the conditions.
3. In the counter, it is the contention of the respondent that in the year 2018, the board has recruited 25 Assistant Engineers, 19 Surveyors, 19 Junior Draughting Officers and 76 technical assistants by direct recruitment and separate examinations have been conducted for each of categories and syllabus were also different. The nature of work, the roles and responsibilities are also different. Whereas, the Technical Assistans were recuited for field works to assist the Field Engineer, viz., Asisstnat Engineers / Assistant Executive Engineers who are involved in core Civil Engineering activities in the project site day-in and day-out. As far as recruitment of Assistant Engineer is concerned, thereare two modes of recruitment, one mode is by direct recruitment. The other mode is by promotion of Technical Assistant. The total vacancy in the post of Assisant Engineer will be apportioned between direct recruitees and Technical Assistants in the ration 3 : 1. Hence, it is their contention that the post Surveyor is not a feeder category for promotion to the post of Assistnat Engineer, whereas, the post of Technical Assistant is the only 7/16 https://www.mhc.tn.gov.in/judis W.P.Nos.6224 & 6750 of 2023 feeder category for promotion for the post of Assistant Engineer. It is their further contention that the other category such as Surveyor/Head Surveyor/Draughting Officer were consdered for promotion to the post of Assistant Engineers on few occasions due to insufficient number of persons in the post of Technical Assistant, which is only feeder category for the post of Assistant Engineer and at that time, the only recruitment avenue available was through Emploment Exchange. Subsequently, open advertisements were issued for recuitment and as such this cannot be cited as precedent to fill the Assistant Engineer vacancies from other categories every time, when there are eligible persons in the feeder category, i.e., Technical Assistant. Hence, opposed the Writ Petition.
4. The learned counsel appearing for the petitioners submitted that that the Rule specifically stipulates for promotion to the post of Assistant Enginner by promotion from other categories of service with qualification prescribed for direct recuirtment and having adopted combined seniority all these years, now the seniority list has been prepared only from the Technical Assistants. Hence, the same cannot be sustained in the eye of 8/16 https://www.mhc.tn.gov.in/judis W.P.Nos.6224 & 6750 of 2023 law. According to him, merely because persons were appointed as surveyer who have qualification for the appointment of Assistant Engineer, they cannot be denied promotion on the grround that there is separate avenue for promotion for the surveyor. Hence, it is his contention that all along combined seniority has been maintained and without there being any amendment to the Rules governing appointment, now the respondent cannot take a different stand.
5. Whereas, the learned Advocate General appearing for the second and third respondents submitted that the Surveyors have been appointed on the basis of a separate examination conducted and there is next promotion avenue as Head Surveyor as per G.O.Ms.160 dated 25.02.1982. Hence, it is the contention of learned Advocate General that for promotion of Assistant Engineer, Technical Assistants alone will be considered and the petitioners cannot challenge the panel.
6. According to the learned counsel appearing for the respondents 4 to 78, who are said to be Technical Assistants, the petitioners cannot challenge the panel and it is his contention that consideration for 9/16 https://www.mhc.tn.gov.in/judis W.P.Nos.6224 & 6750 of 2023 promotion will arise only after the panel has been separetly prepared and that stage has not even arise in this case. Therefore, the Writ Petition is premature and is not maintainable.
7. I have perused entire materials. The fact that for promotion for the post of Assistant Engineers, there are two ways of recruitment one way is by direct recruitment, other by promotion from other category with qualification prescribed for direct recruitment. It is relevant to extract rule as follows :
Category Scale of Qualification Method of Recruitment of Posts Pay [3] [4] [1] [2 ] [i] Must possess a degree [i] By direct recruitment in Engineering of any OR University recognised by [ii] By promotion from the State Government for other categories of the purpose or any other service with he equiva1ent qualification qualification prescribed for direct recruitment.
[ii] Must have passed
Section A and B of the [iii] Preference shall be
AMIE [Ind] Examination given o candidates who
with the following have rendered Army
Service. The persons
[a] School have passed who are already in the
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W.P.Nos.6224 & 6750 of 2023
Category Scale of Qualification Method of Recruitment
of Posts Pay [3] [4]
[1] [2
]
Geology under Section B service of the State is an optional or additional Housing Board in a subject temporary capacity and those who are not [b] A pass in the working in the State intermediate or P.U.C. Housing Board but who Examination [or] is apply for recruitment of equivalent G.O.Ms.No.560 posts direct after they Hg. & H.D. Development, return from Army dt.19.07.84 Service shall also be eligible for appointment [a] Should have put in against the reserved service of three years in permanent vacancies the State Housing Board provided that the or the Public Works priority to appointment Department or the in the shall be in the Highways and Rural Order of priority works Department or any detailed below;
other institution acceptable
to the appointing [a] Persons already in
authority. the regular service of the
Housing Board but who
have not been appointed
to substantive posts in
the category:
[b] Persons employed
in State Housing Board
in a temporary capacity
without probationary
rights.
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W.P.Nos.6224 & 6750 of 2023
Category Scale of Qualification Method of Recruitment
of Posts Pay [3] [4]
[1] [2
]
[c] Persons who are not
in the State Housing
Board Service
8. Admittedly, all along the panel has been prepared from all the three categories, namely, Surveyor, Junior Drafting Officers, Technical Assistants and combined Seniority has been maintained. These facts have not been disputed. Now a different stand has been taken by the respondents to the effect that since from the surveyor post, there is promotion avenue to head surveyor, surveyors would not be included in the panel for the promotion to the Assistant Enginner. When the Rule is specific about two modes of appointment either by direct recruitment and by promotion from other category of service with qualification prescribed for direct recuitment, the persons, who are in otherwise is qualified as direct recruit, also entitled to be considred. The respondent cannot bye pass the rule and take a stand contrary to the Rule, without there being any amendment brought in the Rule.12/16
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9. A perusal of the above rule makes it very clear that promotion from other categories is not limited to any particular category. The persons who are in other category, who possess requisite degree in Engineering of any University, also entitled to be considered for promotion as Assistnat Engineer as per the Rule position. The submissions of the learned Advocate General to the effect that since there is promition avenue for Surveyors to Head Surveyors, Surveyors, panel need not be prepared, cannot be countenanced. It is relevant to note that the minimum qualification of Surveyor is only IIT Diploma and other categories also diploma and the next avenue of promotion is head Surveyor. Further, there is no promotion from Head Surveyor. Be that as it may.
10. If the persons holding only minimum qualification required for the post of surveyor and they are appointed as surveyor, then those persons certainly cannot compete with the engineering graduates for the post of Assistant Engineer. Their promotion freezes with Head Surveyor. When the Service Rules stipulates a person who possess 13/16 https://www.mhc.tn.gov.in/judis W.P.Nos.6224 & 6750 of 2023 requisite Engineering degree from a recognized University, who are in the category of Surveyor is also entitled for promotion and they cannot be denied unless Rule has been specifically amended. The challenge has been made only with regard to the provisional preparation of panel among Technical Assistants. Though the same cannot be challenged by the pereson from other categories, this Court is of the view that unless the Rule is amended, the petitioner cannot be denied promotion merely on the ground that they are holding the post of Surveyor. In Such view of the matter, this Court is of the view that respondent is at liberty to amend the Rule, if they really want to exclude any other category and proceed further.
11. With the above direction, these Writ Petitions are disposed of. Consequently connected miscellaneous petitions are closed. No costs.
21.07.2023 Index:Yes/No Neutral Citation : Yes/No 14/16 https://www.mhc.tn.gov.in/judis W.P.Nos.6224 & 6750 of 2023 vrc To,
1. The Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai – 09.
2. The Managing Director, Tamilnadu Housing Board, CMDA Complex, E & C Market Road, Koyambedu, Chennai – 107.
3. The Secretary and Personal Officer, Tamilnadu Housing Board, CMDA Complex, E & C Market Road, Koyambedu, Chennai – 107.
15/16 https://www.mhc.tn.gov.in/judis W.P.Nos.6224 & 6750 of 2023 N.SATHISH KUMAR, J.
vrc WP.Nos.6224 & 6750 of 2023 21.07.2023 16/16 https://www.mhc.tn.gov.in/judis