Madras High Court
Nataraja P vs The Government Of Tamilnadu on 8 March, 2010
Author: T. Raja
Bench: T. Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.03.2010
CORAM
THE HONOURABLE MR.JUSTICE T. RAJA
W.P. Nos.11772/2009 and 600/2006 and
M.P.Nos.1,3,5 and 6 of 2009 and
WP.MP.No.691/2006
1. Nataraja P
2. Khaleel Ahamed A
3. Ganesan VK
4. Amudhan S
5. Sivakumar G
6. Jhon Christopher T
7. Ganesh Bapu DR
8. Gnana Amirtharaja T
9. Anantha Babu P
10.Edwin Samuel Rajendiran A
11.Thanneer Malai A
12.Kather Sulthan S
13.Ilangovan V
14.Thomas R
15.Murugan G
16.Mohana Chandran V
17.Gunasekar MS
18.Ramakrishnan R
19.Navakodi G
20.Rathinasabaathy P
21.Unnikrishnan N
22.Prakash S
23.Ramesh Babu P
24.Somasundaram S
25.Velmurugan E
26.Raju R
27.Prabhu S
28.Shanmugam K
29.Harsha Vardhanan MA
30.Chinna Samy R
31.Prasath
32.Khan HN
33.Sivanatham T
34.Durai Rajan L
35.Sathiya Kumar P
36.Arasu P
37.Narayanan R
38.Anbu J
39.Selvarathinam R
40.Subramaniamn G
41.Murugan S
42.Manickavelu V
43.Baskaran M
44.Ramanathan P
45.Bhaskaran R
46.Ravichandran R
47.Kamala Thiyagarajan T
48.Panneer Selvam KP
49.Rengasamy V
50.Jagadeesan S
51.Lakkumanan S
52.Jayamani M
53.Paul P
... Petitioners in
W.P.No.11772/2009
1. P. Sundar
... Petitioner in
W.P.No.600/2006
-vs-
1.The Government of Tamilnadu
Rep. by its Secretary
Agriculture Department,
Fort St. George, Chennai 600 009.
2.The Chief Engineer,
Agricultural Engineering Department,
Chennai 600 005.
3.K. Palanisamy
4.S. Rajendran
5.R. Gunasekaran
6.K.V.Raman
7.M.Subramanian
8.Engineering Diploma Association,
Agricultural Engineering Department,
rep. by its General Secretary,
Mr.S.B.Mathivannan
B.144 TNHB quarters,
Keezhpermbakkam,
Villupuram. ... Respondents in
W.P.No.11772/2009
1. The Secretary to Government,
Agricultural Department,
Fort St. George,
Chennai 600 009.
2. The Chief Engineer,
Agricultural Engineering Department,
Nandanam, Chennai.
... Respondents in
W.P.No.600/2006
Prayer in W.P.No.11772/2009: Petition filed under Article 226 of Constitution of India praying to issue a writ of declaration declaring the rule 2(b) of Tamilnadu Agricultural Engineering Service as illegal, void ab initio and unconstitutional and consequently direct the respondents to consider the petitioners for notional promotion as Assistant Executive Engineer with all consequential service and monetary benefits with retrospective effect from the relevant/respective anterior date on which a Junior Engineer who joined as Junior Engineer subsequent to joining of service by the petitioners was appointed as Assistant Executive Engineer and to revise accordingly the seniority in the category of Assistant Executive Engineer and pass such further orders.
Prayer in W.P.No.600/2006: Petition filed under Article 226 of Constitution of India praying to issue a writ of certiorarified mandamus, calling for the records in the Chief Engineer Lr.No.Ma.Va.Me.2(2)71384/2004 dated 25.08.2005 on the file of the second respondent and G.O.Ms.No.1987, Agricultural Department, dated 28.08.1981 on the file of the first respondent herein and to quash the same and the relative portion wherein amendments were made to the special rules for Agricultural Engineering Service and the ratio 1:3:2 in Rule 2 in Sub Rule (b) and to consequently direct the first respondent to modify the ratio pertaining to appointment to vacancies arising in class IV (Assistant Executive Engineer) as suitably in accordance to the law and to pass such further orders.
For Petitioners : N.Subramaniyan
in W.P.No.11772/2009
Mr.C.K.Chandrasekhar
For Ms.Malarvizhi Udayakumar
in W.P.No.600/2006
For Respondents : Mr.N.Senthilkumar, AGP for R1 & R2
in both W.Ps
Mr.P.Rajendran for R3 to R7
in W.P.No.11772/2009
Mr.M.Hidyathulla Khan
For R8 in W.P.No.11772/2009
Ms.A.Arulmozhi for R3
in W.P.No.600/2006
COMMON ORDER
The present writ petition in W.P.No.11772/2009 has been filed with a prayer to issue a writ of declaration to declare the rule 2(b) of Tamilnadu Agricultural Engineering Service as illegal, void ab initio and unconstitutional and consequently direct the respondents to consider the petitioners for notional promotion as Assistant Executive Engineer with all consequential service and monetary benefits with retrospective effect from the relevant/respective anterior date on which a Junior Engineer, junior to the petitioners, was appointed as Assistant Executive Engineer and, accordingly, to revise the seniority list in the category of Assistant Executive Engineer.
2. The writ petitioners are Engineering Graduates, working as Assistant Engineers in Agricultural Engineering Department. After their initial appointment as Assistant Engineers temporarily by direct recruitment, they got their services regularized by G.O.Ms.No.444/AD dated 13.06.1990 from the date of their initial appointments and as on today, they have completed more than 20 years of service as Assistant Engineers. After acquiring two decades of experience, while waiting for promotion to the post of Assistant Executive Engineers, the Junior Engineers, who are diploma holders and who have joined as Junior Engineers, subsequent to the petitioners, are given promotion as Assistant Executive Engineers, even earlier to the petitioners, on the basis of ratio of 3:2 between Assistant Engineers and Junior Engineers. For promotion as Assistant Executive Engineers, Rule 2(b) of Tamil Nadu Agricultural Engineering Service prescribes a ratio of 3:2 between Assistant Engineers and Junior Engineers. Therefore, the petitioners, who are Assistant Engineers, are constrained to challenge the validity of Rule 2(b) of Tamil Nadu Agricultural Engineering Service as illegal, void and unconstitutional and the petitioners seek a direction to the respondents to consider the petitioners for notional promotion as Assistant Executive Engineer with all consequential service and monetary benefits with retrospective effect from the relevant/respective anterior date on which a Junior Engineer, Junior to the petitioners were appointed as Assistant Executive Engineers.
3. Learned counsel appearing for the petitioners submits that even though the categories of Assistant Engineers and Junior Engineers are different and coming under two different services, they occupied the same post called as Section Officer. The Assistant Engineers are posted in sections to execute original works, requiring higher technical skills and the Junior Engineers are posted in sections to execute normal works, requires lower technical skills. The Assistant Engineers and Junior Engineers are eligible for promotion and recruitment by transfer respectively as Assistant Executive Engineers and the Rules also provide for direct recruitment to the category of Assistant Executive Engineers. The Rules also prescribe a ratio of 1:3:2 between various methods of appointment to the post of Assistant Executive Engineers, namely, direct recruitment, promotion from Assistant Engineers and recruitment by transfer from Junior Engineers respectively. Initial appointment to the post of Section Officers i.e. Assistant Engineers and Junior Engineers, which are made proportionately in the ratio of 3:1 respectively between them. Even though, the ratio for initial appointment to the post of Assistant Engineers and Junior Engineers being 3:1, due to appointment of Junior Engineers in large numbers, during the earlier period, the ratio of 3:2 was fixed. But, the respondents, even after the increase in the cadre strength of Assistant Engineers, failed to modify the ratio due to which the Junior Engineers, who joined as Junior Engineers, later to Assistant Engineers, started to get promotion earlier to that of Assistant Engineers and this has created hardship. Therefore, a representation was made from the Association of Engineering Graduates, to modify the Rules to redress the grievance of the Assistant Engineers, but, no action was taken. Again, the Association of the Engineering Graduates made a representation dated 11.08.2005 requesting to modify the Rules, so that, a Junior Engineer, who joined as Junior Engineer, later to the Assistant Engineer, shall not march over the senior for promotion as Assistant Executive Engineer. Again, there was no action taken by the respondents. Their inaction compelled the association of Engineering Graduates to file W.P.No.600/06 before this Court to quash the impugned Rule. The said W.P.No.600/06 has challenged the ratio of 1:3:2, namely, direct recruitment, promotion of Assistant Engineer, recruitment by transfer of Junior Engineer to the post of Assistant Executive Engineers. Once again, the petitioners' Association made a written representation on 28.02.2008 to the 2nd respondent with a request to keep in abeyance the above said ratio and to promote Assistant Engineers only, till all Assistant Engineers Senior to the Junior Engineers are promoted. In the meanwhile, the respondents issued executive orders in G.O.Ms.No.479 dated 16.11.2007, directing to upgrade the conservation Officers as Junior Engineers on the reason that they are working in the same post for more than 20 years. Therefore, the same was challenged in W.P.No.37329 of 2009 by unemployed Engineers, which is also pending now.
4. It was further stated that the nature of work involved in Agricultural Engineering Department is maintaining the machineries, namely, tractors, Bull dozers, etc., used for agricultural works, for which the qualification of mechanical engineering is required. But, for the work of soil conservation, the qualification of Civil Engineering is required. Since the colleges offered either Civil Engineers or Mechanical Engineers, the department was divided as Mechanical Division and Civil Division and respective Engineers were posted in the respective Divisions. As the above division resulted in wasteful expenditure, to get over the problem, a new curriculum, namely, Agricultural Engineering, was introduced by blending the Civil Engineering syllabus and Mechanical Engineering syllabus to the extent required for Agricultural activities and on that basis, both Mechanical Division and Civil Division were merged into one as Agricultural Engineering to manage the combined divisions. Here, again, to recruit more graduates of Agricultural Engineering, G.O.Ms.No.1896 Agriculture (AA-III) Department, dated 24.12.1974, prescribed 3:1 ratio for appointment to the post of Assistant Engineers and Junior Engineers respectively. In due course, the said policy decision taken for the betterment of the department have been breached and persons with Diploma in Civil or Mechanical Engineering alone were appointed as Junior Engineers in blatant violation of 3:1 ratio. Going by this, the cadre strength of diploma holders have got increased much higher than the degree holders and in the matter of giving promotion to them, the 2nd respondent has called for the service particulars of 28 Assistant Engineers and 20 Junior Engineers for preparing a panel for making appointments as Assistant Executive Engineers in his letter dated 02.06.2009. All the 28 Assistant Engineers have joined duty during the year 1984, whereas, all the Junior Engineers have joined service only in the year 1985. But, in view of the ratio going to be applied, the Junior Engineers, who got appointment much after the appointment of the Assistant Engineers will take march over their seniors. Therefore, the impugned rule has been challenged on the ground that the petitioners put to irreparable loss and serious violation of their fundamental rights and classification of Assistant Engineers and Junior Engineers for further elevation as Assistant Executive Engineers under the impugned rule is violative of rule of equality guaranteed under Articles 14 and 16 of Constitution of India.
5. Further, the learned counsel appearing for the petitioners submitted that the said impugned rule would demoralize and cause heart burning among the entire Assistant Engineers of the Department thereby ruining the efficiency of Administration guaranteed under Article 335 of Constitution of India, since the said impugned rule holds that the Junior Engineers over takes the higher qualified Assistant Engineers, who are working with a longer service.
6. Learned counsel appearing for the respondents filed their counter supporting the impugned Rule 2(b) of the Tamil Nadu Agricultural Engineering Service as legal on the reason that the post of Assistant Executive Engineers(Agricultural Engineering) is a class IV post governed by the special rules of Tamil Nadu Agricultural Engineering Service issued in the above said G.O. A ratio of 1:3:2 has been prescribed for filling the post of Assistant Executive Engineer(Agricultural Engineering) in the following order of rotation:-
a) By direct recruitment
b) By promotion
c) By recruitment by transfer
d) By promotion
e) By recruitment by transfer
f) By promotion When the above said rule was challenged by Diploma holders of Agricultural Engineering Department before this Hon'ble Court, the Special Rules issued in August 1981 was first declared unconstitutional by an order dated 05.09.1986 by this Court in W.P.Nos.7068/83, 8120/83 and 326/85. Aggrieved persons filed Writ Appeal before this Court and Division Bench of this Court by an order dated 26.7.1989 in W.A.Nos.359, 279, 280, 565 of 1989 and 389/88, reversed the order of the learned single Judge and as against that judgment of the Division Bench of this Court, further challenge was made before the Hon'ble Supreme Court and after hearing, the Hon'ble Supreme Court of India, upheld the ratio of Rule 3:2. Therefore, while following the ratio concerning two different categories of services, there may be some instances, where a member in a category of service gets promoted, before a member in another category of service, appointed earlier to that member and such instances are inevitable. Therefore, the petitioners cannot be aggrieved over such inevitable hardships. Further, in order to mitigate their grievances only, proposals have been received from the Chief Engineer(Agricultural Engineering) and the same is under examination of the Government. Till such time, the ratio has to be followed as upheld by the Hon'ble Supreme Court of India. Therefore, it was argued that the writ petitions are not maintainable.
5. Heard the learned counsel appearing on either side and perused the materials available on record.
6. The promotional post of Assistant Executive Engineer(Agricultural Engineering) is a class IV post governed by the Special Rules for Tamil Nadu Agricultural Engineering Service issued in G.O.Ms.No.1987, Agricultural Department, dated 28.8.81 with effect from 1.2.81. According to Rule 2(b) of the Tamil Nadu Agricultural Engineering Service, appointment to arising vacancy, shall be made by direct recruitment, by promotion from among the holders of the post of Assistant Engineer in Class V and by recruitment by transfer from among the holders of the post of Junior Engineer in the Tamil Nadu Agricultural Subordinate Service in the ratio of 1:3:2 and shall be filled up in the following order of rotation:-
a) By direct recruitment
b) By promotion
c) By recruitment by transfer
d) By promotion
e) By recruitment by transfer
f) By promotion When the Department of Agricultural Engineering was bifurcated from the composite department of Agricultural Department and consequent to the formation of the Department of Agricultural Engineering, new set of special Rules, namely, the special rules for the Tamil Nadu Agricultural Engineering Service was issued in the above said G.O.Ms.No.1987, Agricultural Department, dated 28.8.81. When the above said Rule was challenged by the Diploma holders of Agricultural Engineering Department, a learned single Judge of this Court declared the said rule as unconstitutional by an order dated 5.9.86 and the same was reversed by the Division Bench of this Court and subsequently, the matter was taken up to the Hon'ble Apex Court and the Hon'ble Apex Court finally upheld Rule 2(b) of the Tamil Nadu Agricultural Engineering Service prescribing a ratio of 3:2. Therefore, the ratio of Rule prescribed by the Government in the above said G.O.Ms.No.1987, Agriculture Department, dated 28.08.1981, have become final once for all and the Assistant Engineers/Junior Engineers(Agricultural Engineering) are promoted to the post of Assistant Executive Engineers as per the said Rule.
7. As rightly argued by the learned counsel appearing for the petitioners, noticing the hardship caused to the Senior Engineers, the representation made by petitioners' side has also been considered and based on the representation, the 2nd respondent, the Chief Engineer of Agricultural Engineering Department, has also recommended in his letter dated 07.03.2008 to the 1st respondent, the Secretary to the Agricultural Department to keep in abeyance the ratio of 1:3:2 under Rule 2(b) and to promote Assistant Engineers/Junior Engineers, who had completed 20 years of service by taking into account the date of their joining in service. The grievance of the petitioners that the same recommendation has not been followed, has been rightly replied by the learned counsel appearing for the respondents, who has stated that some amendments by way of proviso to Special Rules for the Tamil Nadu Agricultural Engineering Service has been suggested and recommended by the Chief Engineer. The said proposal requires a detailed and in-depth examination and till the said amendments to the Special Rules are finalised and final orders are issued, the ratio as upheld by the Hon'ble Apex Court, has to be followed, requires acceptance by this Court.
7. No doubt, the hardships brought out by way of representation to the respondents that by allowing the above said ratio to continue the same would demoralize, and cause heart burning among the entire Assistant Engineers of the Department and thereby challenging the efficiency of Administration has been accepted by the respondents and thereupon, the amendments by way of proviso to Special Rules of Tamil Nadu Agricultural Engineering has already been recommended by the Chief Engineer. Since the respondents also have taken useful efforts to mitigate the hardship faced by the Senior Assistant Engineers in the matter of reaching the promotional post of Assistant Executive Engineers, this Court, deems it fit to direct the respondents to expedite the said process and to get it finalized with a period of six months from the date of receipt of a copy of this order. In the meanwhile, as upheld by the Hon'ble Apex Court, the present ratio will be followed by the respondents. Accordingly, the writ petitions are disposed of with the aforesaid directions. No Costs. Consequently, connected miscellaneous petitions are closed.
rkm To
1. The Government of Tamilnadu Rep. by its Secretary Agriculture Department, Fort St. George, Chennai 600 009.
2.The Chief Engineer, Agricultural Engineering Department, Chennai 600 005.
3. Engineering Diploma Association, Agricultural Engineering Department, rep. by its General Secretary, Mr.S.B.Mathivannan B.144 TNHB quarters, Keezhpermbakkam, Villupuram