Supreme Court - Daily Orders
Association Of Engineers vs Government Of Tamil Nadu And Ors. on 14 September, 2017
Bench: Arun Mishra, Mohan M. Shantanagoudar
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.995 OF 2009
ASSOCIATION OF ENGINEERS ...APPELLANT(S)
VS.
GOVERNMENT OF TAMIL NADU & ORS ... RESPONDENT(S)
WITH
CIVIL APPEAL NOS.997-998 OF 2009
T. KANNAN ... APPELLANT(S)
VS.
ASSOCIATION OF ENGINEERS, TAMIL
NADU & ORS. ... RESPONDENT(S)
O R D E R
1. The appellant has come up in appeals, questioning the adjudication made by the Tribunal, which has been affirmed by the High Court. The Tribunal had directed with respect to the posts of Assistant Engineers that the same shall be filled up in the ratio of 3:1, with reference to direct recruitment and recruitment by transfer Signature Not Verified from the eligible persons holding basic Digitally signed by SARITA PUROHIT Date: 2017.10.06 qualifications as per rules.
15:34:51 ISTReason: 1
2. The case has a chequered history. In the year 1972, Government order, i.e., G.O.Ms.No.1745 dated 10th October, 1972 was promulgated, which amended the Special Rules for the Tamil Nadu Engineering Subordinate Service for appointment of Overseers, Head Draftsmen or Civil Draftsmen possessing L.C.E. and A.M.I.E. (India) qualification with a minimum service of three years as Junior Engineers re-designated as Assistant Engineers. The following amendment had been made in the said Rules:
“AMENDMENT In the said Special Rules in Schedule-II to Branch 1 of Part-II after the existing proviso under Item-5(IV)(C) in Col.2 against the item 'Supervisors' in Col(1) the following shall be added, namely:-
"Provided further than an Overseer or Head Draftsman or Civil D'Man (possessing diploma in Civil Engineering and A.M.I.E. (India) qualification shall be eligible for appointment as Junior Engineer if he has rendered service for not less than three years'."
3. As per the aforesaid amendment made, the Overseers or Head Draftsmen or Civil Draftsmen possessing the qualification of Diploma in Civil Engineering and the qualification of A.M.I.E. (India) were eligible for the posts of Junior Engineers. It was followed by another 2 Government order, i.e., G.O.Ms.No.1356 dated 2.8.1980, which contained the proposal of the Government in paragraph 3, with respect to the promotion to the post of Junior Engineers and Supervisors, equivalent to Assistant Engineers and Junior Engineers respectively. A suggestion was made that quota should be filled up by way of transfer from the cadre of Head Draftsmen and Draftsmen, on acquiring the degree, qualification or its equivalent. Paragraph 3 is extracted hereunder:
"3. The Commission, is of the view that a person holding the post of Overseer and Draftsmen, Grade II and III carrying a lower pay cannot be equated to a person holding the higher post of Junior Engineer (now Assistant Engineer) on acquiring the degree qualification for the purpose of appointment to the still higher post of Assistant Engineers (now Assistant Executive Engineers) and that while considering him for promotion to a higher post, the rank held by him and the pay drawn by him in the lower post cannot be wholly ignored. The Commission is of the opinion that the provision made in the amendment issued in 1972, viz. Automatic conversion of Overseers/Head Draftsmen/Civil Draftsman as Assistant on acquiring A.M.I.E. qualification with three years service is not correct and that the anomaly should be set right. The Commission has therefore, suggested that Head Draftsmen and Draftsman Grade alone, whose scale of pay is higher than those of Junior Engineers and Supervisors (now Assistant Engineer and Junior Engineer respectively), on acquiring the degree qualification or its equivalent, be assigned rank below the last Junior Engineer (now Assistant 3 Engineer) selected by the Commission in the year in which they acquire the qualification. The Government has decided to accept the recommendations of the Tamil Nadu Public Service Commission in this regard."
4. The same culminated into an amendment of the Rules. The following amendment had been made in the Rules, on 6.1.1983, which came into force on 2.8.1980 :
“AMENDMENT In the said special Rules, in Part II, in Branch I, in schedule II, for the third proviso in column (2) against the post "Supervisors" in column (1) thereof, the following proviso shall be substituted, namely:-
“Provided also that the Head Draftsman or Draftsman, Grade I possessing A.M.I.E. (India) or B.E. Degree qualifications shall be eligible for appointment as Junior Engineer if he has rendered service for not less than three years”.
5. The proposal had been accepted by amending the rules the posts of Junior Engineers re-designated as Assistant Engineers were required to be filled up from the grade of Head Draftsmen and Draftsmen Grade I, possessing the requisite qualification of AMIE or B.E. Degree and 3 years service.
6. Thereafter, another set of Rules had come into force, called Tamil Nadu Engineer Service Special Rules, 1985. 4 Rule 2 deals with the appointment to several categories of officers and the method of their recruitment. We are concerned with the promotion to the post of Assistant Engineers, which is prescribed in Category No.5 of Rule 2(a) of the aforesaid Rules of 1985. The relevant provisions are extracted below:
“2. Appointment :- (a) Appointment to the several categories in this branch shall be made as follows:
“Category Method of recruitment
5.Assistant (1) Direct recruitment; or Engineers (2) Recruitment by transfer from Junior Engineers, Overseers, Head Draftsmen or Civil Draftsmen of the Tamil Nadu Engineering Subordinate Service.” Rule 5 of Rule of 1989 provided the eligibility criteria, method of recruitment and qualifications. For the purpose of recruitment to the post of Assistant Engineers, Rule 5 is extracted hereunder:
“5. Qualification” – No person shall be eligible for appointment to the category and by the method mentioned in Columns (1) and (2) of the table below unless he possesses the qualifications prescribed in the corresponding entry in column (3) thereof:-5
“Table Method of Qualifications Category recruitment (1) (2) (3) Assistant Direct recruit- (1) Must Engineer ment possess the B.E. degree in Civil Engineering;
or 6 (2) (I) Must have passes in Sections A and B of the Institution of Engineers Examinations under Engineering branch, subject to the following further conditions namely:-
(i) should
furnish
evidence of
having
undergone
practical
training in
surveying for
a period of
not less than
one year; or
(ii) should
have put in
service for a
period of not
less than one
year in Public
Works
Department as
Overseer or
Junior
Engineer; or
(iii) should
hold the Upper
Subordinate or
L.C.E. diploma
of the College
of
Engineering,
7
(II)
Practical
experience for
a period of
not less than
three years
before or
after passing
Sections A and
B of the
Institution of
Engineers
Examinations;
and
(3) Must not
have completed
or will not
complete 28
years of age
on the first
day of July of
the year in
which the
selection for
appointment is
made;
Provided that
other things
being equal
preference
shall be given
to those who
have undergone
one year of
apprenticeship
training under
the Government
of India
Scheme or the
State
Government
Apprenticeship
Scheme.
8
Recruit-ment Must have
Transfer acquired the
following
qualification
after entering
service as
Junior
Engineer,
namely:-
(1) Degree in
Civil
Engineering or
:
9
(2)(1) A Pass
in Sections A
and B of the
Institution of
Engineering
Examination
under Civil
Engineering
branch subject
to the
following
further
conditions,
namely:-
(i) should
furnish
evidence of
having
undergone
practical
training in
surveying for
a period of
not less than
one year; or
(ii) should
have put in
service for a
period of not
less than one
year in the
Public Works
Department as
Overseer or
Junior
Engineer; or
, Madras;”
(iii) should
hold the Upper
Subordinate or
L.C.E. diploma
of the College
of
Engineering,
10
It is apparent from a reading of the aforesaid provisions made in Rule 5 of the Rules of 1985 that an Overseer or Junior Engineer can also seek the claim for direct recruitment as Assistant Engineer, in case he possess the requisite qualification, and had put in service for a period of not less than one year in the Public Works Department as an Overseer or Junior Engineer. For recruitment by way of transfer, as per Rule 2 can be filled from Junior Engineers, Overseers, Head Draftsmen and Civil Draftsmen. It appears that grades of Draftsmen have been done away with and merged into category of Civil Draftsman. The aforesaid Rule 5 of Rules of 1985 make it clear one should possess the requisite qualification, as prescribed in the aforesaid rules, and had put in service for not less than one year in the Public Works Department as Overseer or Junior Engineer. Thus, there was clear departure made in the Rules of 1985 that holds the field today, from amendment made in 1985 w.e.f. 1980.
7. It was pointed out by Mr. Jayant Bhushan, learned 11 senior counsel appearing for the appellant, that as a matter of fact the ratio of 3:1 is not maintained. He urged two submissions; firstly, the Overseers and Civil Draftsman Grade II and Grade III could not have been recruited by way of transfer to the post of Assistant Engineer; and secondly, that in the guise of the order of the Tribunal, a wrong is being done, by virtually making 56% recruitment on the posts of Assistant Engineers by way of direct recruitment, and 44% recruitment way of transfer. More posts than reserved as per quota are being occupied by Overseers and Civil Draftsmen.
8. On the other hand, Mr. V. Prakash, learned senior counsel appearing on behalf of the respondents submitted that ground urged as to ratio is based on misapprehension. He stated at the outset, that the ratio as ordered by the Tribunal is 3:1, that is to say that out of 100 posts, 75 posts have to be filled up by way of direct recruitment from the eligible persons and 25% posts have to be filled up by way of transfer by promotion of the candidates, i.e., Overseers and Civil Draftsman as per 1985 Rules is being maintained. The 12 Rules of 1985 clearly holds the field and thus, there is no reason to make interference with the impugned order.
9. After hearing learned counsel for the parties, we are of the considered view that though initially in 1972, the Rule was that Overseers and Draftsmen Gr. II and III could be recruited by way of transfer to the posts of Assistant Engineer, in case they had acquired the qualification after they had entered into the service and rendered requisite period of service, as prescribed by the Rules of 1972. However, thereafter, amendment came into force in 1983 w.e.f. 1980, and Overseers and Civil Draftsman Grade II and III were made ineligible for promotion as Assistant Engineer. The eligibility was confined to Head Draftsmen Gr. I. Thus, the position of 1972 was altered and given a go bye till 1985 rules came into force.
10. Then again position had been changed by the Rules of 1985. A bare reading of Rule 5, read with Rule 2(a) of Rules of 1985 makes it clear that the incumbents, working at the post of Overseers and Civil Draftsmen, in case they had requisite qualification and experience, are to 13 be promoted by way of transfer to the posts of Assistant Engineers.It is clear that differentiation of grades of Draftsmen had been done away with and all Civil Draftsmen had been made eligible including Overseer under Rule 2 of 1985 Rules.
11. Thus, we find no force in the submissions urged by learned counsel for the appellant, as the Rules of 1985 holds the field, and the action of the respondents is in accordance with law.
12. With respect to the alleged illegal usurpation of the quota of direct recruitment. It is apparent that inter alia the incumbents, holding the post, in the Public Works Department, of Overseers or Junior Engineer after serving for one year becomes eligible to stake their claim to the post of direct recruitment. Thus, if they are appointed by way of direct recruitment, it could not be said that they had illegally usurped the quota reserved for direct recruitment. As a matter of fact, on being appointed by way of process of direct recruitment they are not to be treated as recruited against the quota reserved for recruitment by way of transfer. Once they 14 have been selected by process of direct recruitment, they have to be counted towards quota of 75% reserved for the direct recruitment.
13. In view of the aforesaid discussion, and order passed by Tribunal there is no room to entertain the submission urged by the learned senior counsel appearing for the appellant. To put the doubt at rest, in our opinion the order of the Tribunal is quite clear. The relevant portion of the order of the Administrative Tribunal, is extracted hereunder:
“The Tamil Nadu Public Service Commission Advertisement No.9/94 and Publication of the results pursuant thereto are quashed to the extent that it is not in conformity with the ratio of 3:1. Those who were selected in this selection shall be given appointments only to the extent of 3 by way of direct recruitment and 1 by way of recruitment by transfer from the feeder categories mentioned in Rule 2(a)(5) of the Tamil Nadu Engineering Service Special Rules. Out of the 15 vacancies the Applicants in the O.As. shall be considered along with other feeder categories mentioned in the said Rule 2(a)(5) of Special Rules for the Tamil Nadu Engineering Service recruitment by transfer and appointment shall be made in the above 1 out of every 4 vacancies. Future vacancies shall be filled up in the above ratio, till altered by any Statutory Amendment.
O.A.4563/94 and 4564/94 fail and shall stand 15 dismissed.” In view of aforesaid discussion, the second submission is hereby rejected.
14. The appeals are found bereft of merits same deserves to be and are hereby dismissed.
.......................J. [ARUN MISHRA] .......................J. [MOHAN M. SHANTANAGOUDAR] NEW DELHI;
14TH SEPTEMBER, 2017.
16
ITEM NO.110 COURT NO.10 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).995/2009 ASSOCIATION OF ENGINEERS Appellant(s) VERSUS GOVERNMENT OF TAMIL NADU AND ORS. Respondent(s) (With appln.(s) for clarification/direction) WITH C.A.Nos.997-998/2009 (XII) Date : 14-09-2017 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR For Appellant(s) Mr. Jayant Bhushan,Sr.Adv. CA 995 Mr. N. Subramaniyan,Adv.
Mr. Pranav Sachdeva,AOR Ms. Neha Rathi,Adv.
CA 997-998 Ms. Kamini Jaiswal,Adv.
Mr. N. Subramaniyan,Adv.
Mr. Pranav Sachdeva,AOR Mr. Nikhil Nayyar,AOR For Respondent(s) Mr. V. Prakash,Sr.Adv.
Mr. Eashwar,Adv.
Mr. A.V. Rangam,AOR Mr. Buddy A. Ranganadhan,Adv.
State Mr. K.V. Vijaykumar,AOR Ms. Maitreyee Mishra,Adv.
Intervenor Mr. P. Rajendran,Adv.
Mr. Beno Banugar,Adv.
Mr. Harsh Prabha,Adv.
For Mr. Sanjay Kumar Visen,AOR Mr. R. Nedumaran,AOR Ms. A. Sumathi,AOR Mr. B. Balaji,AOR ..2/-17
.2.
UPON hearing the counsel the Court made the following O R D E R C.A.Nos.997-998/2009 are dismissed and C.A.No.995/ 2009 is allowed in terms of the signed reportable order.
(Sarita Purohit) (Tapan Kumar Chakraborty) Court master Branch Officer (Signed reportable order is placed on the file) 18