published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40839
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8758 OF 2013
(Arising out of SLP (C.) No. 20986 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8759 OF 2013
(Arising out of SLP (C.) No. 15918 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8762 OF 2013
(Arising out of SLP (C.) No. 15988 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8763 OF 2013
(Arising out of SLP (C.) No. 16064 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8764 OF 2013
(Arising out of SLP (C.) No. 18310 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8765 OF 2013
(Arising out of SLP (C.) No. 20987 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted in all the Special Leave Petitions.
2. These appeals are directed against the common judgment
and final order dated 29th January, 2007 passed by the
High Court of Judicature at Madras in Writ Petition
Nos. 26990 and 26973 of 2005; 36096 of 2004,
Writ Appeal No.500 of 2005, Writ Petition Nos. 31416 of
2004 and 9460 of 2005. By this order, the High Court
dismissed the Writ Petitions and the Writ Appeal filed
by the Appellant-Association.
3. Since the facts involved in the controversy in all the
appeals are common, we shall make a reference to the
facts as narrated by the High Court. This shall be
supplemented by any additions made by the parties in
this Court.
4. The facts noticed by the High Court are that the members
of the Tamil Nadu Rural Development Engineers'
Association (hereinafter referred to as 'Appellants')
were initially appointed as 'Overseers' by the then
Highways and Rural Works Department and posted
exclusively to various Panchayat Unions for executing
all the Civil works / Rural works in the Panchayat
Unions of Tamil Nadu. Since they were earlier under the
administrative control of the erstwhile Highways and
Rural Works Department, they had no proper avenues of
promotion especially for the post of Assistant Engineer
(for short ‘AE’) and many of them were languishing in
the same post, i.e., as Overseers, for nearly two
decades.
5. By virtue of G.O. Ms. No. 263, Rural Development
Department (in short ‘RD Department’), dated 27th
December, 1996, the Government of Tamil Nadu decided to
set up a separate ‘Engineering Wing’ for the RD
Department itself so as to exercise adequate control
over various Central and State sponsored Schemes and
accordingly several new posts such as Assistant
Engineers (AE). Assistant Executive Engineers (AEE),
Executive Engineers (EE) and Superintending Engineers
(SE), were created.
6. By virtue of G.O. Ms. No. 102, RD Department, dated
25th May, 1998, the Government directed that the then
Highways and Rural Works Department should cease
forthwith from exercising control over the promotions
and appointments in the RD Department. The Government
Order also recognised the rights of the Overseers, whose
entire service is only in the RD Department, for
promotion to the posts of AEs and Junior Engineers
(JEs). Finally, the Government framed Service Rules for
various technical posts in the RD Department and
notified the same in G.O. Ms. No. 15, dated 25th
January, 2000, by invoking the powers under proviso to
Article 309 of the Constitution of India. On 14th
December, 2001 G.O. M.S. No. 295 (RD) Department
was issued to amend the service rules with effect from
25th May, 1998
7. As soon as the Engineering Wing was created in the RD
Department, the posts were filled up by drawing
personnel from other technical Departments of Government
of Tamil Nadu on 'deputation basis' as an interim
arrangement. However, the Tamil Nadu Highway Engineers
Association opposed the creation of a separate
Engineering Wing under the RD
Department and filed Original Application in O.A. No.
253 of 1997 before the Tamil Nadu Administrative
Tribunal (in short 'Tribunal'). This Application was
dismissed by the Tribunal by order dated 12th November,
1997. Aggrieved by the order of the Tribunal, the
Association filed W.P. No. 6513 of 1998 before the
Madras High Court. By order dated 2nd April, 2002, the
Madras High Court upheld the order of the Tribunal.
8. The constitutional Validity of G.O. Ms. No. 15,
dated 25th January, 2000, and G.O. Ms. No.
102, dated 25th May, 1998, was
challenged before the Tribunal by a group of individuals
and by the Association of Tamil Nadu Engineering
Graduates in O.A. Nos. 5338 and 7766 of 2000. Both the
Government Orders were upheld by the Tribunal by order
dated 3rd June, 2002.
9. A group of AE - Direct Recruits, on completion of five
years of service in the RD Department, filed O.A.
Nos.1068 to 1081 of 2004 before the Tribunal, praying
that they be considered for promotion to the post of AEE
in the RD Department under Rule 39 of General Rules of
the Government of Tamil Nadu. The Tribunal, by Order
dated 16th March, 2004, directed the Government and the
Director, RD Department, to consider and grant promotion
to the applicants under Rule 39 of the General Rules. It
was also held that regular promotion and selection can
be done after preparing a Panel. This order was
challenged by the Appellants in Writ Petition Nos. 34029
and 34040 of 2004 and 1174 of 2005.
10. Appellant-Association made representations to the
respondent to fix a ratio of 1:1 among AE- direct
recruits and AE- Promotees, for promotion to the post of
AEE. The above ratio was requested to be fixed based on
the cadres strength in category of AEs, between AE-
direct recruits and AE-
promotees, which is 1:1. The same ratio was sought to be
maintained for the promotional post of AEE as well.
11. It is stated that without reference to the ratio
envisaged in G.O. Ms. No. 15, respondent No.2 sought to
make a common Seniority List for direct recruits and
promotees. The Appellant-Association challenged the
common Seniority List in W.P.No.26276 of 2004. An
interim stay was granted in the said W.P. on 2nd
September, 2004. Later, the Writ Petition was withdrawn
by the Appellant-Association with liberty to file a
fresh Writ Petition.
12. Shortly thereafter respondent No.1 effected promotions
of a group of direct recruits who had completed 5 years
of service as AEE by issuing G.O.(2D) NO.116 on 29th
October, 2004. This was followed by G.O. (D) No. 966
(RD) (E1) dated 16th November, 2004
issuing posting orders of these promotees. Appellant-
Association then filed W.P. No. 36096 of 2004
challenging the promotions and posting of the direct
recruits as AEE.
13. Appellant-Association also filed W.P. No. 31416 of 2004
seeking a writ of Mandamus directing the respondents to
effect promotions to the post of Assistant Executive
Engineers, RD Department, from the post of Assistant
Engineer on 1:1 ratio between ‘Assistant Engineer-Direct
Recruits’ and ‘Assistant Engineers -Promoted by transfer
of service’ in the RD Department.
14. In the meantime, the High Court passed an order dated
2nd December, 2004 in Writ Petition 35315 of 2004
directing the Government to implement the order of the
Tribunal in O.A. No. 1799 of 2004 and to
consider the case of the Promotees who had been absorbed
from the Highways Department, if there were no other
impediments. Appellant-Association filed Writ Appeal No.
500 of 2005 against the order of the Single Judge.
15. The Government vide letter dated 29th December, 2004
rejected the request of the Appellant-Association to fix
a ratio of 1:1, on the ground that the promotions of
both the categories have to be made on the basis of the
date of joining as Assistant Engineer, irrespective of
the source. This led the Appellant-Association to file
W.P. No. 9460 of 2005 praying for quashing of the
rejection letter issued by the Government
on 29th December, 2004.
16. Appellant-Association also filed W.P. No. 26973 of 2005
seeking issuance of a writ of Mandamus directing the
respondents to give retrospective effect to the
promotions given to Overseers as Assistant Engineers
from 25th May, 1998, i.e., the date from which the
Service Rules for ‘AE-Promotees’ as notified in G.O.
M.S. No.295 Rural Development (E1) Department dated 14th
December, 2001, came into effect.
17. Aggrieved by the non-fixation of ratio for ‘AE -
Promotees’ inspite of various representations, the
members of the Appellant-Association, filed a Writ
Petition No. 26990 of 2005 seeking issuance of writ
declaring Rule 3(2) of Notification-III of G.O. Ms. No.
15, RD Department, dated 25th January, 2000, as ultra
vires in the absence of fixation of quota between
AE- Direct Recruits and Promotees to the post
of AEE.
18. By the impugned judgment, the Division Bench of the High
Court has held that Service of the Appellants in the RD
Department before absorption and immediately after the
absorption was in a lower post, i.e., Overseer.
Therefore, they could not be equated with the direct
recruits who joined the RD Department as Assistant
Engineers. The post of Overseer was a feeder post for
promotion on the post of Assistant Engineer. It was
further noticed that admittedly, the Appellants had
voluntarily given the option to be absorbed as
Overseers. Hence, they cannot claim to be equated with
the Assistant Engineers. Further, the Appellants, after
absorption, were given benevolent treatment by way of
being considered for promotion and, in fact, promoted as
AEs. The High Court opined that it cannot lightly ignore
the specific stand of the Government that the minimum
qualifying service of 5 years in the post of AE for
promotion to the post of AEE has been prescribed for the
reason that the incumbents should acquire the needed
practical experience before taking up 'higher
responsibilities' so as to achieve administrative
efficiency in the Engineering services. The Appellants
cannot claim that the services rendered by them in the
Highways Department as Overseers for 20 years be taken
into account for promotion in the RD Department. They
cannot make use of the currency that is extinct and not
in vogue. Already, they were rewarded well inasmuch as
their past services had been taken into account much
prior to their absorption, i.e., from 1997 onwards;
whereas, the services of the direct recruits were
counted from the date on which they entered Government
Service; therefore, benefit in fact has been extended
only to the Appellants and not to the direct recruits.
In equity also, the claim of the Appellants was without
any merit as after being absorbed in the RD Department,
they have been given promotion and made to stand on par
with the direct recruits. Therefore, there is no
justification at all in asking for further
classification in the integrated cadre and relaxation of
five years experience for the purpose of promotion. It
was made clear that once the direct recruits and
promotees are absorbed in one cadre, they form one class
and they cannot be further classified for the purpose of
promotion. It is not the case of the Appellants that the
requisite experience as provided in the Rules is applied
only in respect of their case and the direct recruits
are let free to climb the ladder to reach the zenith. In
fact, though the Appellants’ voice that retrospective
promotions should have been given to them, admittedly,
they are not qualified for promotion till date, in that,
their absorption in the RD Department with their consent
as overseers was on 8th March, 1999; their
promotion as AEs was on 2nd September, 2002; and they
would be completing the 5 years of service as AEs. only
on 2nd September, 2007. As on date, they are all juniors
to the direct recruits, hence, they cannot unfairly ask
for a relief contrary to the procedure and statutory
provisions so as to destroy the right accrued to their
seniors/direct recruits. It is reiterated that rules
having been made in exercise of the power under proviso
to Article 309 of the Constitution, being statutory,
cannot be impeached for whimsical and flimsy reasons. In
service law, it is settled principle that fixation of
quota between various feeder categories is prerogative
of the employer/authority. No valid ground was raised or
invincible argument made before the High Court to
sustain the claim that the orders of the Tribunal suffer
from infirmities warranting interference. With these
reasons, the High Court has held that the impugned part
of the Government Order does not in any way offend
Articles 14 and 16 of the Constitution and no Mandamus
can be issued as prayed for. Resultantly, the Writ
Petitions and the Writ Appeal were dismissed.
19. We have heard the learned counsel for the parties at
length.
20. The submissions made by the Appellants are as follows :
It is submitted that the State Government has
proceeded arbitrarily in filling up the post of Assistant
Engineer created in 1996 by initiating the process of
direct recruitment in 1997 when the Appellants (Overseers)
being more qualified and experienced as well as being
available for recruitment by transfer in terms of G.O. Ms.
No.15 dated 25th January, 2000. It is further submitted
that the recruitment rules in respect of direct recruit
Assistant Engineers were notified with effect from 26th
September, 1997 retrospectively, facilitating the en-masse
promotion of direct recruits to Assistant Executive
Engineer. The Appellants further claimed that the
provisions of G.O. Ms. No. 15 dated 25th January, 2000 have
been wrongly interpreted to impose the condition that even
the Overseers who possessed the degree in Civil Engineering
need to have 5 years service for being
promoted as Assistant Engineers. Imposing such a condition
has deprived the members of the Appellant-Association and
their previous service as Overseers over the last two
decades. The Appellants also claimed that G.O. Ms. No.295
dated 14th December, 2001 would not be applicable to them,
it would result in depriving them of their best at rights
retrospectively. The Appellants claimed that they are
entitled to be transferred as Assistant Engineers with
effect from 25th May, 1998 the date on which the service
rules for the Assistant Engineers were notified. It is
further submitted that the ratio of 1:1 which is provided
between the direct recruits and the Appellants for
recruitment on the post of Assistant Engineer has also to
be maintained for the next promotional post of Assistant
Executive Engineers.
21. The respondents on the other hand submitted that the
Appellants have no legal cause to challenge the direct
recruitment which was initiated in 1997. They were not
even eligible for absorption in the RD Department till
the issuance of G.O. Ms.No.102 dated 25th May, 1998.
According to the respondents, various posts were filled
under G.O. Ms. No. 263 dated 27th December, 1996 on
deputation and transfer from other Departments. But this
was a temporary arrangement which was made for a period
of 3 years. There was no scheme providing for the
absorption and recruitment of the Engineering Personnel
drawn from other Departments in the
RD Department till the issuance of G.O. Ms. No. 102
dated 25th May, 1998. There was no
impediment to the post being filled by the direct
recruitment of the post created under G.O. Ms. No. 263
dated 27th December, 1996. It is further submitted that
the Appellants are wrongly claiming that the direct
recruits have been given any undue benefit with
retrospective effect from 26th September, 1997. The
aforesaid date was given only for regularising the
recruitment of the Assistant Engineer direct recruits.
For all other purposes, the services rendered by the
Assistant Engineer direct recruit have been taken into
account from 1998. The respondents claimed that in fact
the Appellants have been given benefit of the service
from the date much prior to their absorption, their
services have been taken into account from 1997 onwards
whereas they were not absorbed in the RD Department in
1998. Learned counsel for the respondents then submitted
that the Appellants did not raise before the High Court
the issue that G.O. Ms. No.15 dated 25th January, 2000
should not be interpreted to impose the condition of 5
years service as Overseers for the holders of degree in
Civil Engineering for being promoted as Assistant
Engineers. The only submission before the High Court was
that the appointment on the post of Assistant Executive
Engineer should also be made in the ratio of 1:1 and not
in the ratio of 6:2:1 as mentioned in notification of
G.O. Ms. No.15 dated 25th January, 2000. It is also
pointed out by the respondents that even otherwise G.O.
Ms. No. 15 was amended by G.O. Ms. No.295 dated 14th
December, 2001 which amended the qualification for
recruitment by transfers and provided that the candidate
“must possess a BE degree in Civil Engineering” or “must
have passed AIME” and (ii) “must have rendered service
as Overseer for not less than 5 years.” G.O. Ms. No. 295
was never challenged by the Appellants.
22. Learned counsel for the respondents further submitted
that the Appellants cannot claim any benefit on the
basis of the previous service as Overseers for 20
years. They were well aware that their services in
the Highways Department would not be counted for the
purpose of seniority in the RD Department as early as
on 8th March, 1999 when they had given their consent
to be absorbed as Overseers in the RD Department.
Having given the option, they cannot now make the
grievance that they have lost the benefit of 20 years
service. With regard to the submission of the
Appellants that G.O. Ms. No. 295 dated 14th December,
2001 cannot affect the vested rights of the
Appellants. It is submitted by the respondents that
this submission of the petitioner is contrary to the
prayer made by them in W.P. No. 26973 of 2005 wherein
the Appellants had relied on the aforesaid
notification. In the aforesaid writ petition, the
Appellants had specifically prayed to be given
retrospective promotion on the basis of G.O. Ms. No.
295. The respondents claimed that the submission of
the Appellants that they are entitled to be
transferred as Assistant Engineers with effect from
25th May, 1998 cannot be accepted as on that date
they were working on the lower post of Overseer and
further they were members of the Highways Department.
It was only on the basis of their option that they
were absorbed as Overseers in the RD Department in
1998. On the other hand, Assistant Engineers direct
recruit had entered into service in 1998 itself. The
respondents further submitted that the claim of the
Appellants with regard to maintaining the ratio 1:1
for the promotional post of Executive Engineer cannot
be considered as it was given up by the Appellants
before the High Court.
23. We have considered the submissions made by the
learned counsel for the parties.
24. In essence, the grievance of the appellant is two
fold:-
i) They can not be deprived of their past
service.
ii) Their ought to be a ratio of 1:1 between
Direct Recruits / Promotees for promotion on
the post of A.E.E.
25. In our opinion, the Appellants can not now claim that
the past service in the Highways Department should be
recognised in the RD Department. It has been noticed
earlier that the members of the Appellant-Association
were initially appointed as Overseers by the then
Highways and Rural Works Department and posted
exclusively to various Panchayat Unions for executing
all the Civil works/Rural works in the Panchayat
Unions of Tamil Nadu. Since they were earlier under
the administrative control of the erstwhile Highways
and Rural Works Department, they had no proper
avenues of promotions especially for the post of A.E.
Many of them were languishing in the same post i.e.,
as Overseers, for nearly two decades. On 27th
December, 1996, the Government set up a separate
Engineering Wing (GOMs.No.263; RD Department dated
27th December, 1996) for the RD Department
itself. This was necessary to exercise adequate
control over the various Central and State sponsored
scheme. 384 posts of Assistant Engineers were created
for a period of three years. These posts were filled
up on a purely temporary basis on deputation/transfer
of service basis by drawing engineering personnel
from other Departments like Highways and Rural Works,
Public Works Department, Agricultural Engineering,
Tamil Nadu Water Supply and Drainage Board etc. The
Appellants although belonging to the Highways
Department were already discharging the functions of
Overseers in the Rural Development Department for a
number of years. On 26th September,
1997, Tamil Nadu Public Service Commission invited
application for the posts of Assistant Engineers in
the RD Department. The respondents-Assistant
Engineers were directly recruited from 24th November,
1998 to November, 1999. Drawing of technical staff on
deputation basis from different Departments was
causing administrative difficulties in implementing
various pivotal schemes of the State as well as the
Centre. It was noticed that the implementing
authority did not have adequate powers to exercise
control over the engineering staff of other
departments. Therefore, it had become imperative need
from a purely administrative point of view that RD
Department should have an Engineering Wing of its
own. It was further noticed that as a first step GO
Ms. No.263 RD Department dated 27th December, 1996
had been issued. Government had created 384
additional posts of Union Engineers i.e. one
Assistant Engineer for each block, 15
additional posts of Assistant Executive Engineers,
and 28 posts of Executive Engineers. The
Engineers required for these posts were drawn from
Highways and Rural Works Department, Public Works
Department, Agricultural Engineering, Tamil Nadu
Water Supply and Drainage Board and other technical
Departments. On 25th May, 1998, the State issued
orders for absorption and recruitment of the
Engineering Staff through GO Ms. No.102 RD
Department, which provided as follows :
“III. Although the posts of overseers are found only in the
panchayat unions, the incumbents cannot be promoted against
a part of the posts of Block Engineers/Assistant Engineers
(RD) because they are presently staff of Highways
Departments. They need to be permanently absorbed into RD
Department by getting individual options and only
thereafter can the question of their promotions be taken
up. …the Chief Engineer (H&RW) may be requested to obtain
options from all those personnel and place them at the
disposal of Rural Development Department.
IV. 209 posts in the category of Block Engineers/Assistant
Engineer (RD) will be earmarked to be filled up by
promotion from the feeder categories of Overseers and
Junior Draughtsman. But this route would be open to them
only after they exercise their option and are permanently
absorbed in RD Department……”
26. It also deserves to be noted here that on 25th May,
1998, the Appellants were occupying the posts of
Overseer in the Highways Department, but on temporary
service in the RD Department under the GO Ms. No.263
dated 27th December, 1996. The Appellants were given
an opportunity to be permanently absorbed in the RD
Department, by seeking their option as to whether
they were willing to be absorbed. On the basis of the
above exercise of option, the Appellants were
absorbed in the RD Department on 8th March, 1999.
Thereafter, the Government issued ad hoc rules for
the Engineering Wing for the RD Department by
notification GO Ms. No.15 dated 25th
January, 2000. The four notifications (I to IV) in
the GO Ms.No.15 providing the qualification and mode
of recruitment on the post of Superintending
Engineer, Executive Engineer, Assistant Executive
Engineer and Assistant Engineer respectively. The
first three categories of Superintending Engineer,
Executive Engineer and Assistant Executive Engineer
did not admit of any direct recruitment. Therefore,
these notifications were given effect from 25th May,
1998, the date on which the absorption and
recruitment of engineering personnel belonging to
other Departments were notified. It was only under
Notification IV in respect of Assistant Engineers
that provided for direct recruitment. Since the
process of direct recruitment to the post of
Assistant Engineer in RD Department was initiated by
TNPSC vide notification dated 26th September, 1997,
the rules under notification IV in respect of
Assistant Engineer were declared to be deemed to have
come into force on 26th September, 1997. This was
necessary to regularise the action taken to recruit
Assistant Engineer for RD Department, directly
through TNPSC on the basis of the executive order. It
is, however necessary to clarify that such
retrospective operation of the rules did not confer
any benefit whatsoever on the direct recruits in the
matter of seniority. The seniority of the respondents
has been reckoned with reference to the date of
appointment on the post. This is a well recognised
general principle of computing seniority and no
exception can be taken to it. In fact, the service of
the Appellants has been counted form 1997 i.e. from
the time when they started serving as Overseers in
the RD Department on deputation from the Highways
Department under GO Ms. No. 263
dated 27th December,1996.
27. The Appellants having voluntarily opted to be
absorbed in the RD Department, without any protection
of their previous service, can not now be permitted
to make a grievance that they have not been treated
at par with the Direct Recruits. We have noticed
above that the Direct Recruits joined on the post of
AE. Appellants, even though some of them possessed
the degree qualification, were absorbed on the post
of Overseer. They were working on the post of
Overseer in the Highways Department, the parent
Department, even though they were degree holders. As
noticed earlier, they were stagnating in the Highways
Department without any prospect of career
advancement. They, therefore, willing gave the option
to be absorbed in the RD Department as Overseers,
even though they possessed the degree qualification.
Having given the option to be absorbed in RD
Department on the post of Overseer, their claim for
absorption as AE is without any legal or factual
justification.
28. It would also be relevant to notice here that the
Appellants were promoted as Assistant Engineers on
2nd September, 2002, having been given the benefit of
service as Overseers in the RD Department from the
year 1997. The Appellants did not question their
appointment as Assistant Engineers since they were
well aware that they had been so appointed on
completion of five years service as Overseers in the
RD Department by virtue of GO Ms. No.15 dated 25th
January, 2000 as amended by GO Ms. No.295 dated 14th
December, 2001. On the other hand, the respondents-
Assistant Engineers (Direct Recruits) had started
discharging their functions as Assistant Engineers in
RD Department from 24th November, 1998 to November,
1999. Therefore, they had completed five years
service as Assistant Engineers for the period between
November, 2003 to November, 2004 under the relevant
rules (Notification III in GO Ms. No.15 dated 25th
January, 2000) eligible under the rules to be
promoted as Assistant Executive Engineers.
Consequently, they were duly promoted as Assistant
Executive Engineer. In our opinion, the action taken
by the State cannot be said to be either arbitrary or
violative of Article 14 or 16 of the Constitution of
India.
29. The claim of the Appellants that the promotion on the
post of Assistant Executive Engineer ought to be made
in the ratio of 1:1 is also wholly devoid of any
merit. The Appellants claimed such ratio on the basis
that the direct recruits-respondents are much younger
in age. The Appellants had already spent over 20
years in the Highways Department before their
absorption in the RD Department. Therefore, in case
the promotions are to be based purely on the basis of
seniority, the Appellants would never get a change to
be promoted on the higher ranks. They would have to
retire as Assistant Engineer only as their
promotional avenues to the post of AEE and above will
be completely choked by AE-Direct Recruits who are
atleast 8 years younger than the
Assistant Engineer Promotees. It is also the case of
the Appellants that the ratio of 1:1 which is fixed
for appointment on the post of Assistant Engineer
ought to be maintained for the next promotional post
of Assistant Executive Engineer. It cannot be
disputed that for promotion to the post of Assistant
Executive Engineer (RD) Notification No. III GO Ms.
No.15, more than one mode of recruitment i.e.
promotion from Assistant Engineer (RD) and
recruitment by transfer from the feeder category of
Junior Engineer and Senior Draughting Officer have
been recognised and stipulated. Further more, it is
also a matter of record that on the post of Assistant
Engineer (RD) there is more than one mode of
recruitment i.e. direct recruitment and recruitment
by transfer from the feeder category of Overseers
only. Therefore, the rules have provided a ratio on
appointment to the post of Assistant Executive
Engineer (RD) as 6:2:1 (promotion from AE (RD); JE;
SDO). The Appellants, however, claimed that this
ratio ought to be 1:1, on the ground that otherwise
they would stagnate on the position of Junior
Engineer. We are unable to accept the submissions
made by the learned counsel for the Appellants. Prior
to the absorption of the Appellants in the RD
Department admittedly they had no chance of being
promoted on the post of Assistant Executive Engineer,
Executive Engineer or Superintending Engineer. It is
only upon their absorption that they now enjoy a
chance of being promoted on the higher posts. We are
unable to agree with the submissions of the learned
counsel for the Appellants that the aforesaid ratio
is, in any manner, violative of Article 14 or 16 of
the Constitution of India.
30. Even otherwise, the fixation of the quota/ratio is
the prerogative of the executive. It is not disputed
that the ratio of 6:2:1 has been fixed in the service
rules in exercise of the powers of the governor under
proviso to Article 309 of the Constitution of India.
In the absence of the Appellants placing on the
record material to establish that fixation of such a
ratio is patently arbitrary, the action of the
Government cannot be nullified. Fixation of
rota/quota on the basis of qualification is well
accepted in service jurisprudence. We, therefore, see
no merit in the submissions of the Appellants that
the ratio of 6:2:1 ought to be replaced with the
ratio by 1:1.
31. The Appellants, thereafter, submitted that the
Overseers possessing the degree qualification ought
to be exempted from rendering five years service in
the RD Department for being considered for further
promotion on the basis of Assistant Executive
Engineer.
We are unable to accept this submission, as
the Appellants had willingly given the option to be
absorbed as Overseers.
In case the submission made by
the Appellants is accepted, it would mean that the
Appellants were actually absorbed on the post of
Assistant Engineer which would be factually
incorrect.
Under the rules, an Assistant Engineer can
only be considered for promotion as Assistant
Executive Engineer on completion of five years
service in the RD Department.
Therefore, it would not
be possible to accept the submission of the
Appellants that the services rendered by the
Appellants in the Highways Department ought to be
substituted for the service to be rendered in the RD
Department.
In fact, the Appellants have already been
given benefit of two years service in the Highways
Department on the basis that they had actually been
functioning in the RD Department since 1997.
But such
concession would not create a legal right in favour
of the Appellants to claim that the services rendered
in the Highways Department ought to be treated as
service rendered in the RD Department. We, therefore,
see no merit in the submissions that the degree
holder Overseers ought to be exempted from having
rendered five years service in the RD Department,
before they can be eligible to be considered for
promotion as Assistant Executive Engineer.
The
Appellants had relied on the judgment of Sub-
Inspector Rooplal and Another Vs. Lt. Governor
through Chief Secretary, Delhi and Others[1] in
support of the submission that their past service of
20 years cannot obliterated.
The aforesaid submission
cannot be accepted for the simple reason that the
Appellants were absorbed in the RD Department as
Overseers. Their previous service in Highways
Department was also on the post of Overseers.
In
Rooplal’s case (supra), the Appellants were Sub-
Inspectors of Boarder Security Force who were
initially taken on deputation in Delhi Police as Sub-
Inspectors (Executive) and were later on absorbed in
Delhi Police in the same capacity. While fixing their
seniority in Delhi Police, service already rendered
by them as Sub-Inspectors in BSF was not taken into
consideration.
This Court, therefore, held that there
is no reason why the Appellants on being absorbed in
equivalent cadre in the transferred post should not
be permitted to count their service in the parent
department.
The Appellants herein claimed the benefit
of the previous service on the lower post of Overseer
for determining the seniority on the higher post of
Assistant Engineer.
The aforesaid submission cannot
be accepted for the simple reason that the Appellants
had voluntarily accepted and given the option to be
absorbed in the RD Department on the post of
Overseer.
No claim was made at that stage to be
either absorbed or promoted as Assistant Engineer or
to be given the benefit of the service already
rendered by them in the Highways Department.
Having
considered the entire matter, we see no reason to
differ with the view taken by the High Court.
32. The appeals are accordingly dismissed.
….….…………………..J.
[Surinder Singh Nijjar]
….…………………,……J.
[M.Y.Eqbal]
New Delhi;
September 27, 2013.
-----------------------
[1] 2000 (1) SCC 644
-----------------------
33
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8758 OF 2013
(Arising out of SLP (C.) No. 20986 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8759 OF 2013
(Arising out of SLP (C.) No. 15918 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8762 OF 2013
(Arising out of SLP (C.) No. 15988 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8763 OF 2013
(Arising out of SLP (C.) No. 16064 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8764 OF 2013
(Arising out of SLP (C.) No. 18310 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
WITH
CIVIL APPEAL NO.8765 OF 2013
(Arising out of SLP (C.) No. 20987 of 2007)
Tamil Nadu Rural Development
Engineers Association
…Appellant
VERSUS
The Secretary to Government Rural
Development Department & Ors.
…Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted in all the Special Leave Petitions.
2. These appeals are directed against the common judgment
and final order dated 29th January, 2007 passed by the
High Court of Judicature at Madras in Writ Petition
Nos. 26990 and 26973 of 2005; 36096 of 2004,
Writ Appeal No.500 of 2005, Writ Petition Nos. 31416 of
2004 and 9460 of 2005. By this order, the High Court
dismissed the Writ Petitions and the Writ Appeal filed
by the Appellant-Association.
3. Since the facts involved in the controversy in all the
appeals are common, we shall make a reference to the
facts as narrated by the High Court. This shall be
supplemented by any additions made by the parties in
this Court.
4. The facts noticed by the High Court are that the members
of the Tamil Nadu Rural Development Engineers'
Association (hereinafter referred to as 'Appellants')
were initially appointed as 'Overseers' by the then
Highways and Rural Works Department and posted
exclusively to various Panchayat Unions for executing
all the Civil works / Rural works in the Panchayat
Unions of Tamil Nadu. Since they were earlier under the
administrative control of the erstwhile Highways and
Rural Works Department, they had no proper avenues of
promotion especially for the post of Assistant Engineer
(for short ‘AE’) and many of them were languishing in
the same post, i.e., as Overseers, for nearly two
decades.
5. By virtue of G.O. Ms. No. 263, Rural Development
Department (in short ‘RD Department’), dated 27th
December, 1996, the Government of Tamil Nadu decided to
set up a separate ‘Engineering Wing’ for the RD
Department itself so as to exercise adequate control
over various Central and State sponsored Schemes and
accordingly several new posts such as Assistant
Engineers (AE). Assistant Executive Engineers (AEE),
Executive Engineers (EE) and Superintending Engineers
(SE), were created.
6. By virtue of G.O. Ms. No. 102, RD Department, dated
25th May, 1998, the Government directed that the then
Highways and Rural Works Department should cease
forthwith from exercising control over the promotions
and appointments in the RD Department. The Government
Order also recognised the rights of the Overseers, whose
entire service is only in the RD Department, for
promotion to the posts of AEs and Junior Engineers
(JEs). Finally, the Government framed Service Rules for
various technical posts in the RD Department and
notified the same in G.O. Ms. No. 15, dated 25th
January, 2000, by invoking the powers under proviso to
Article 309 of the Constitution of India. On 14th
December, 2001 G.O. M.S. No. 295 (RD) Department
was issued to amend the service rules with effect from
25th May, 1998
7. As soon as the Engineering Wing was created in the RD
Department, the posts were filled up by drawing
personnel from other technical Departments of Government
of Tamil Nadu on 'deputation basis' as an interim
arrangement. However, the Tamil Nadu Highway Engineers
Association opposed the creation of a separate
Engineering Wing under the RD
Department and filed Original Application in O.A. No.
253 of 1997 before the Tamil Nadu Administrative
Tribunal (in short 'Tribunal'). This Application was
dismissed by the Tribunal by order dated 12th November,
1997. Aggrieved by the order of the Tribunal, the
Association filed W.P. No. 6513 of 1998 before the
Madras High Court. By order dated 2nd April, 2002, the
Madras High Court upheld the order of the Tribunal.
8. The constitutional Validity of G.O. Ms. No. 15,
dated 25th January, 2000, and G.O. Ms. No.
102, dated 25th May, 1998, was
challenged before the Tribunal by a group of individuals
and by the Association of Tamil Nadu Engineering
Graduates in O.A. Nos. 5338 and 7766 of 2000. Both the
Government Orders were upheld by the Tribunal by order
dated 3rd June, 2002.
9. A group of AE - Direct Recruits, on completion of five
years of service in the RD Department, filed O.A.
Nos.1068 to 1081 of 2004 before the Tribunal, praying
that they be considered for promotion to the post of AEE
in the RD Department under Rule 39 of General Rules of
the Government of Tamil Nadu. The Tribunal, by Order
dated 16th March, 2004, directed the Government and the
Director, RD Department, to consider and grant promotion
to the applicants under Rule 39 of the General Rules. It
was also held that regular promotion and selection can
be done after preparing a Panel. This order was
challenged by the Appellants in Writ Petition Nos. 34029
and 34040 of 2004 and 1174 of 2005.
10. Appellant-Association made representations to the
respondent to fix a ratio of 1:1 among AE- direct
recruits and AE- Promotees, for promotion to the post of
AEE. The above ratio was requested to be fixed based on
the cadres strength in category of AEs, between AE-
direct recruits and AE-
promotees, which is 1:1. The same ratio was sought to be
maintained for the promotional post of AEE as well.
11. It is stated that without reference to the ratio
envisaged in G.O. Ms. No. 15, respondent No.2 sought to
make a common Seniority List for direct recruits and
promotees. The Appellant-Association challenged the
common Seniority List in W.P.No.26276 of 2004. An
interim stay was granted in the said W.P. on 2nd
September, 2004. Later, the Writ Petition was withdrawn
by the Appellant-Association with liberty to file a
fresh Writ Petition.
12. Shortly thereafter respondent No.1 effected promotions
of a group of direct recruits who had completed 5 years
of service as AEE by issuing G.O.(2D) NO.116 on 29th
October, 2004. This was followed by G.O. (D) No. 966
(RD) (E1) dated 16th November, 2004
issuing posting orders of these promotees. Appellant-
Association then filed W.P. No. 36096 of 2004
challenging the promotions and posting of the direct
recruits as AEE.
13. Appellant-Association also filed W.P. No. 31416 of 2004
seeking a writ of Mandamus directing the respondents to
effect promotions to the post of Assistant Executive
Engineers, RD Department, from the post of Assistant
Engineer on 1:1 ratio between ‘Assistant Engineer-Direct
Recruits’ and ‘Assistant Engineers -Promoted by transfer
of service’ in the RD Department.
14. In the meantime, the High Court passed an order dated
2nd December, 2004 in Writ Petition 35315 of 2004
directing the Government to implement the order of the
Tribunal in O.A. No. 1799 of 2004 and to
consider the case of the Promotees who had been absorbed
from the Highways Department, if there were no other
impediments. Appellant-Association filed Writ Appeal No.
500 of 2005 against the order of the Single Judge.
15. The Government vide letter dated 29th December, 2004
rejected the request of the Appellant-Association to fix
a ratio of 1:1, on the ground that the promotions of
both the categories have to be made on the basis of the
date of joining as Assistant Engineer, irrespective of
the source. This led the Appellant-Association to file
W.P. No. 9460 of 2005 praying for quashing of the
rejection letter issued by the Government
on 29th December, 2004.
16. Appellant-Association also filed W.P. No. 26973 of 2005
seeking issuance of a writ of Mandamus directing the
respondents to give retrospective effect to the
promotions given to Overseers as Assistant Engineers
from 25th May, 1998, i.e., the date from which the
Service Rules for ‘AE-Promotees’ as notified in G.O.
M.S. No.295 Rural Development (E1) Department dated 14th
December, 2001, came into effect.
17. Aggrieved by the non-fixation of ratio for ‘AE -
Promotees’ inspite of various representations, the
members of the Appellant-Association, filed a Writ
Petition No. 26990 of 2005 seeking issuance of writ
declaring Rule 3(2) of Notification-III of G.O. Ms. No.
15, RD Department, dated 25th January, 2000, as ultra
vires in the absence of fixation of quota between
AE- Direct Recruits and Promotees to the post
of AEE.
18. By the impugned judgment, the Division Bench of the High
Court has held that Service of the Appellants in the RD
Department before absorption and immediately after the
absorption was in a lower post, i.e., Overseer.
Therefore, they could not be equated with the direct
recruits who joined the RD Department as Assistant
Engineers. The post of Overseer was a feeder post for
promotion on the post of Assistant Engineer. It was
further noticed that admittedly, the Appellants had
voluntarily given the option to be absorbed as
Overseers. Hence, they cannot claim to be equated with
the Assistant Engineers. Further, the Appellants, after
absorption, were given benevolent treatment by way of
being considered for promotion and, in fact, promoted as
AEs. The High Court opined that it cannot lightly ignore
the specific stand of the Government that the minimum
qualifying service of 5 years in the post of AE for
promotion to the post of AEE has been prescribed for the
reason that the incumbents should acquire the needed
practical experience before taking up 'higher
responsibilities' so as to achieve administrative
efficiency in the Engineering services. The Appellants
cannot claim that the services rendered by them in the
Highways Department as Overseers for 20 years be taken
into account for promotion in the RD Department. They
cannot make use of the currency that is extinct and not
in vogue. Already, they were rewarded well inasmuch as
their past services had been taken into account much
prior to their absorption, i.e., from 1997 onwards;
whereas, the services of the direct recruits were
counted from the date on which they entered Government
Service; therefore, benefit in fact has been extended
only to the Appellants and not to the direct recruits.
In equity also, the claim of the Appellants was without
any merit as after being absorbed in the RD Department,
they have been given promotion and made to stand on par
with the direct recruits. Therefore, there is no
justification at all in asking for further
classification in the integrated cadre and relaxation of
five years experience for the purpose of promotion. It
was made clear that once the direct recruits and
promotees are absorbed in one cadre, they form one class
and they cannot be further classified for the purpose of
promotion. It is not the case of the Appellants that the
requisite experience as provided in the Rules is applied
only in respect of their case and the direct recruits
are let free to climb the ladder to reach the zenith. In
fact, though the Appellants’ voice that retrospective
promotions should have been given to them, admittedly,
they are not qualified for promotion till date, in that,
their absorption in the RD Department with their consent
as overseers was on 8th March, 1999; their
promotion as AEs was on 2nd September, 2002; and they
would be completing the 5 years of service as AEs. only
on 2nd September, 2007. As on date, they are all juniors
to the direct recruits, hence, they cannot unfairly ask
for a relief contrary to the procedure and statutory
provisions so as to destroy the right accrued to their
seniors/direct recruits. It is reiterated that rules
having been made in exercise of the power under proviso
to Article 309 of the Constitution, being statutory,
cannot be impeached for whimsical and flimsy reasons. In
service law, it is settled principle that fixation of
quota between various feeder categories is prerogative
of the employer/authority. No valid ground was raised or
invincible argument made before the High Court to
sustain the claim that the orders of the Tribunal suffer
from infirmities warranting interference. With these
reasons, the High Court has held that the impugned part
of the Government Order does not in any way offend
Articles 14 and 16 of the Constitution and no Mandamus
can be issued as prayed for. Resultantly, the Writ
Petitions and the Writ Appeal were dismissed.
19. We have heard the learned counsel for the parties at
length.
20. The submissions made by the Appellants are as follows :
It is submitted that the State Government has
proceeded arbitrarily in filling up the post of Assistant
Engineer created in 1996 by initiating the process of
direct recruitment in 1997 when the Appellants (Overseers)
being more qualified and experienced as well as being
available for recruitment by transfer in terms of G.O. Ms.
No.15 dated 25th January, 2000. It is further submitted
that the recruitment rules in respect of direct recruit
Assistant Engineers were notified with effect from 26th
September, 1997 retrospectively, facilitating the en-masse
promotion of direct recruits to Assistant Executive
Engineer. The Appellants further claimed that the
provisions of G.O. Ms. No. 15 dated 25th January, 2000 have
been wrongly interpreted to impose the condition that even
the Overseers who possessed the degree in Civil Engineering
need to have 5 years service for being
promoted as Assistant Engineers. Imposing such a condition
has deprived the members of the Appellant-Association and
their previous service as Overseers over the last two
decades. The Appellants also claimed that G.O. Ms. No.295
dated 14th December, 2001 would not be applicable to them,
it would result in depriving them of their best at rights
retrospectively. The Appellants claimed that they are
entitled to be transferred as Assistant Engineers with
effect from 25th May, 1998 the date on which the service
rules for the Assistant Engineers were notified. It is
further submitted that the ratio of 1:1 which is provided
between the direct recruits and the Appellants for
recruitment on the post of Assistant Engineer has also to
be maintained for the next promotional post of Assistant
Executive Engineers.
21. The respondents on the other hand submitted that the
Appellants have no legal cause to challenge the direct
recruitment which was initiated in 1997. They were not
even eligible for absorption in the RD Department till
the issuance of G.O. Ms.No.102 dated 25th May, 1998.
According to the respondents, various posts were filled
under G.O. Ms. No. 263 dated 27th December, 1996 on
deputation and transfer from other Departments. But this
was a temporary arrangement which was made for a period
of 3 years. There was no scheme providing for the
absorption and recruitment of the Engineering Personnel
drawn from other Departments in the
RD Department till the issuance of G.O. Ms. No. 102
dated 25th May, 1998. There was no
impediment to the post being filled by the direct
recruitment of the post created under G.O. Ms. No. 263
dated 27th December, 1996. It is further submitted that
the Appellants are wrongly claiming that the direct
recruits have been given any undue benefit with
retrospective effect from 26th September, 1997. The
aforesaid date was given only for regularising the
recruitment of the Assistant Engineer direct recruits.
For all other purposes, the services rendered by the
Assistant Engineer direct recruit have been taken into
account from 1998. The respondents claimed that in fact
the Appellants have been given benefit of the service
from the date much prior to their absorption, their
services have been taken into account from 1997 onwards
whereas they were not absorbed in the RD Department in
1998. Learned counsel for the respondents then submitted
that the Appellants did not raise before the High Court
the issue that G.O. Ms. No.15 dated 25th January, 2000
should not be interpreted to impose the condition of 5
years service as Overseers for the holders of degree in
Civil Engineering for being promoted as Assistant
Engineers. The only submission before the High Court was
that the appointment on the post of Assistant Executive
Engineer should also be made in the ratio of 1:1 and not
in the ratio of 6:2:1 as mentioned in notification of
G.O. Ms. No.15 dated 25th January, 2000. It is also
pointed out by the respondents that even otherwise G.O.
Ms. No. 15 was amended by G.O. Ms. No.295 dated 14th
December, 2001 which amended the qualification for
recruitment by transfers and provided that the candidate
“must possess a BE degree in Civil Engineering” or “must
have passed AIME” and (ii) “must have rendered service
as Overseer for not less than 5 years.” G.O. Ms. No. 295
was never challenged by the Appellants.
22. Learned counsel for the respondents further submitted
that the Appellants cannot claim any benefit on the
basis of the previous service as Overseers for 20
years. They were well aware that their services in
the Highways Department would not be counted for the
purpose of seniority in the RD Department as early as
on 8th March, 1999 when they had given their consent
to be absorbed as Overseers in the RD Department.
Having given the option, they cannot now make the
grievance that they have lost the benefit of 20 years
service. With regard to the submission of the
Appellants that G.O. Ms. No. 295 dated 14th December,
2001 cannot affect the vested rights of the
Appellants. It is submitted by the respondents that
this submission of the petitioner is contrary to the
prayer made by them in W.P. No. 26973 of 2005 wherein
the Appellants had relied on the aforesaid
notification. In the aforesaid writ petition, the
Appellants had specifically prayed to be given
retrospective promotion on the basis of G.O. Ms. No.
295. The respondents claimed that the submission of
the Appellants that they are entitled to be
transferred as Assistant Engineers with effect from
25th May, 1998 cannot be accepted as on that date
they were working on the lower post of Overseer and
further they were members of the Highways Department.
It was only on the basis of their option that they
were absorbed as Overseers in the RD Department in
1998. On the other hand, Assistant Engineers direct
recruit had entered into service in 1998 itself. The
respondents further submitted that the claim of the
Appellants with regard to maintaining the ratio 1:1
for the promotional post of Executive Engineer cannot
be considered as it was given up by the Appellants
before the High Court.
23. We have considered the submissions made by the
learned counsel for the parties.
24. In essence, the grievance of the appellant is two
fold:-
i) They can not be deprived of their past
service.
ii) Their ought to be a ratio of 1:1 between
Direct Recruits / Promotees for promotion on
the post of A.E.E.
25. In our opinion, the Appellants can not now claim that
the past service in the Highways Department should be
recognised in the RD Department. It has been noticed
earlier that the members of the Appellant-Association
were initially appointed as Overseers by the then
Highways and Rural Works Department and posted
exclusively to various Panchayat Unions for executing
all the Civil works/Rural works in the Panchayat
Unions of Tamil Nadu. Since they were earlier under
the administrative control of the erstwhile Highways
and Rural Works Department, they had no proper
avenues of promotions especially for the post of A.E.
Many of them were languishing in the same post i.e.,
as Overseers, for nearly two decades. On 27th
December, 1996, the Government set up a separate
Engineering Wing (GOMs.No.263; RD Department dated
27th December, 1996) for the RD Department
itself. This was necessary to exercise adequate
control over the various Central and State sponsored
scheme. 384 posts of Assistant Engineers were created
for a period of three years. These posts were filled
up on a purely temporary basis on deputation/transfer
of service basis by drawing engineering personnel
from other Departments like Highways and Rural Works,
Public Works Department, Agricultural Engineering,
Tamil Nadu Water Supply and Drainage Board etc. The
Appellants although belonging to the Highways
Department were already discharging the functions of
Overseers in the Rural Development Department for a
number of years. On 26th September,
1997, Tamil Nadu Public Service Commission invited
application for the posts of Assistant Engineers in
the RD Department. The respondents-Assistant
Engineers were directly recruited from 24th November,
1998 to November, 1999. Drawing of technical staff on
deputation basis from different Departments was
causing administrative difficulties in implementing
various pivotal schemes of the State as well as the
Centre. It was noticed that the implementing
authority did not have adequate powers to exercise
control over the engineering staff of other
departments. Therefore, it had become imperative need
from a purely administrative point of view that RD
Department should have an Engineering Wing of its
own. It was further noticed that as a first step GO
Ms. No.263 RD Department dated 27th December, 1996
had been issued. Government had created 384
additional posts of Union Engineers i.e. one
Assistant Engineer for each block, 15
additional posts of Assistant Executive Engineers,
and 28 posts of Executive Engineers. The
Engineers required for these posts were drawn from
Highways and Rural Works Department, Public Works
Department, Agricultural Engineering, Tamil Nadu
Water Supply and Drainage Board and other technical
Departments. On 25th May, 1998, the State issued
orders for absorption and recruitment of the
Engineering Staff through GO Ms. No.102 RD
Department, which provided as follows :
“III. Although the posts of overseers are found only in the
panchayat unions, the incumbents cannot be promoted against
a part of the posts of Block Engineers/Assistant Engineers
(RD) because they are presently staff of Highways
Departments. They need to be permanently absorbed into RD
Department by getting individual options and only
thereafter can the question of their promotions be taken
up. …the Chief Engineer (H&RW) may be requested to obtain
options from all those personnel and place them at the
disposal of Rural Development Department.
IV. 209 posts in the category of Block Engineers/Assistant
Engineer (RD) will be earmarked to be filled up by
promotion from the feeder categories of Overseers and
Junior Draughtsman. But this route would be open to them
only after they exercise their option and are permanently
absorbed in RD Department……”
26. It also deserves to be noted here that on 25th May,
1998, the Appellants were occupying the posts of
Overseer in the Highways Department, but on temporary
service in the RD Department under the GO Ms. No.263
dated 27th December, 1996. The Appellants were given
an opportunity to be permanently absorbed in the RD
Department, by seeking their option as to whether
they were willing to be absorbed. On the basis of the
above exercise of option, the Appellants were
absorbed in the RD Department on 8th March, 1999.
Thereafter, the Government issued ad hoc rules for
the Engineering Wing for the RD Department by
notification GO Ms. No.15 dated 25th
January, 2000. The four notifications (I to IV) in
the GO Ms.No.15 providing the qualification and mode
of recruitment on the post of Superintending
Engineer, Executive Engineer, Assistant Executive
Engineer and Assistant Engineer respectively. The
first three categories of Superintending Engineer,
Executive Engineer and Assistant Executive Engineer
did not admit of any direct recruitment. Therefore,
these notifications were given effect from 25th May,
1998, the date on which the absorption and
recruitment of engineering personnel belonging to
other Departments were notified. It was only under
Notification IV in respect of Assistant Engineers
that provided for direct recruitment. Since the
process of direct recruitment to the post of
Assistant Engineer in RD Department was initiated by
TNPSC vide notification dated 26th September, 1997,
the rules under notification IV in respect of
Assistant Engineer were declared to be deemed to have
come into force on 26th September, 1997. This was
necessary to regularise the action taken to recruit
Assistant Engineer for RD Department, directly
through TNPSC on the basis of the executive order. It
is, however necessary to clarify that such
retrospective operation of the rules did not confer
any benefit whatsoever on the direct recruits in the
matter of seniority. The seniority of the respondents
has been reckoned with reference to the date of
appointment on the post. This is a well recognised
general principle of computing seniority and no
exception can be taken to it. In fact, the service of
the Appellants has been counted form 1997 i.e. from
the time when they started serving as Overseers in
the RD Department on deputation from the Highways
Department under GO Ms. No. 263
dated 27th December,1996.
27. The Appellants having voluntarily opted to be
absorbed in the RD Department, without any protection
of their previous service, can not now be permitted
to make a grievance that they have not been treated
at par with the Direct Recruits. We have noticed
above that the Direct Recruits joined on the post of
AE. Appellants, even though some of them possessed
the degree qualification, were absorbed on the post
of Overseer. They were working on the post of
Overseer in the Highways Department, the parent
Department, even though they were degree holders. As
noticed earlier, they were stagnating in the Highways
Department without any prospect of career
advancement. They, therefore, willing gave the option
to be absorbed in the RD Department as Overseers,
even though they possessed the degree qualification.
Having given the option to be absorbed in RD
Department on the post of Overseer, their claim for
absorption as AE is without any legal or factual
justification.
28. It would also be relevant to notice here that the
Appellants were promoted as Assistant Engineers on
2nd September, 2002, having been given the benefit of
service as Overseers in the RD Department from the
year 1997. The Appellants did not question their
appointment as Assistant Engineers since they were
well aware that they had been so appointed on
completion of five years service as Overseers in the
RD Department by virtue of GO Ms. No.15 dated 25th
January, 2000 as amended by GO Ms. No.295 dated 14th
December, 2001. On the other hand, the respondents-
Assistant Engineers (Direct Recruits) had started
discharging their functions as Assistant Engineers in
RD Department from 24th November, 1998 to November,
1999. Therefore, they had completed five years
service as Assistant Engineers for the period between
November, 2003 to November, 2004 under the relevant
rules (Notification III in GO Ms. No.15 dated 25th
January, 2000) eligible under the rules to be
promoted as Assistant Executive Engineers.
Consequently, they were duly promoted as Assistant
Executive Engineer. In our opinion, the action taken
by the State cannot be said to be either arbitrary or
violative of Article 14 or 16 of the Constitution of
India.
29. The claim of the Appellants that the promotion on the
post of Assistant Executive Engineer ought to be made
in the ratio of 1:1 is also wholly devoid of any
merit. The Appellants claimed such ratio on the basis
that the direct recruits-respondents are much younger
in age. The Appellants had already spent over 20
years in the Highways Department before their
absorption in the RD Department. Therefore, in case
the promotions are to be based purely on the basis of
seniority, the Appellants would never get a change to
be promoted on the higher ranks. They would have to
retire as Assistant Engineer only as their
promotional avenues to the post of AEE and above will
be completely choked by AE-Direct Recruits who are
atleast 8 years younger than the
Assistant Engineer Promotees. It is also the case of
the Appellants that the ratio of 1:1 which is fixed
for appointment on the post of Assistant Engineer
ought to be maintained for the next promotional post
of Assistant Executive Engineer. It cannot be
disputed that for promotion to the post of Assistant
Executive Engineer (RD) Notification No. III GO Ms.
No.15, more than one mode of recruitment i.e.
promotion from Assistant Engineer (RD) and
recruitment by transfer from the feeder category of
Junior Engineer and Senior Draughting Officer have
been recognised and stipulated. Further more, it is
also a matter of record that on the post of Assistant
Engineer (RD) there is more than one mode of
recruitment i.e. direct recruitment and recruitment
by transfer from the feeder category of Overseers
only. Therefore, the rules have provided a ratio on
appointment to the post of Assistant Executive
Engineer (RD) as 6:2:1 (promotion from AE (RD); JE;
SDO). The Appellants, however, claimed that this
ratio ought to be 1:1, on the ground that otherwise
they would stagnate on the position of Junior
Engineer. We are unable to accept the submissions
made by the learned counsel for the Appellants. Prior
to the absorption of the Appellants in the RD
Department admittedly they had no chance of being
promoted on the post of Assistant Executive Engineer,
Executive Engineer or Superintending Engineer. It is
only upon their absorption that they now enjoy a
chance of being promoted on the higher posts. We are
unable to agree with the submissions of the learned
counsel for the Appellants that the aforesaid ratio
is, in any manner, violative of Article 14 or 16 of
the Constitution of India.
30. Even otherwise, the fixation of the quota/ratio is
the prerogative of the executive. It is not disputed
that the ratio of 6:2:1 has been fixed in the service
rules in exercise of the powers of the governor under
proviso to Article 309 of the Constitution of India.
In the absence of the Appellants placing on the
record material to establish that fixation of such a
ratio is patently arbitrary, the action of the
Government cannot be nullified. Fixation of
rota/quota on the basis of qualification is well
accepted in service jurisprudence. We, therefore, see
no merit in the submissions of the Appellants that
the ratio of 6:2:1 ought to be replaced with the
ratio by 1:1.
31. The Appellants, thereafter, submitted that the
Overseers possessing the degree qualification ought
to be exempted from rendering five years service in
the RD Department for being considered for further
promotion on the basis of Assistant Executive
Engineer.
We are unable to accept this submission, as
the Appellants had willingly given the option to be
absorbed as Overseers.
In case the submission made by
the Appellants is accepted, it would mean that the
Appellants were actually absorbed on the post of
Assistant Engineer which would be factually
incorrect.
Under the rules, an Assistant Engineer can
only be considered for promotion as Assistant
Executive Engineer on completion of five years
service in the RD Department.
Therefore, it would not
be possible to accept the submission of the
Appellants that the services rendered by the
Appellants in the Highways Department ought to be
substituted for the service to be rendered in the RD
Department.
In fact, the Appellants have already been
given benefit of two years service in the Highways
Department on the basis that they had actually been
functioning in the RD Department since 1997.
But such
concession would not create a legal right in favour
of the Appellants to claim that the services rendered
in the Highways Department ought to be treated as
service rendered in the RD Department. We, therefore,
see no merit in the submissions that the degree
holder Overseers ought to be exempted from having
rendered five years service in the RD Department,
before they can be eligible to be considered for
promotion as Assistant Executive Engineer.
The
Appellants had relied on the judgment of Sub-
Inspector Rooplal and Another Vs. Lt. Governor
through Chief Secretary, Delhi and Others[1] in
support of the submission that their past service of
20 years cannot obliterated.
The aforesaid submission
cannot be accepted for the simple reason that the
Appellants were absorbed in the RD Department as
Overseers. Their previous service in Highways
Department was also on the post of Overseers.
In
Rooplal’s case (supra), the Appellants were Sub-
Inspectors of Boarder Security Force who were
initially taken on deputation in Delhi Police as Sub-
Inspectors (Executive) and were later on absorbed in
Delhi Police in the same capacity. While fixing their
seniority in Delhi Police, service already rendered
by them as Sub-Inspectors in BSF was not taken into
consideration.
This Court, therefore, held that there
is no reason why the Appellants on being absorbed in
equivalent cadre in the transferred post should not
be permitted to count their service in the parent
department.
The Appellants herein claimed the benefit
of the previous service on the lower post of Overseer
for determining the seniority on the higher post of
Assistant Engineer.
The aforesaid submission cannot
be accepted for the simple reason that the Appellants
had voluntarily accepted and given the option to be
absorbed in the RD Department on the post of
Overseer.
No claim was made at that stage to be
either absorbed or promoted as Assistant Engineer or
to be given the benefit of the service already
rendered by them in the Highways Department.
Having
considered the entire matter, we see no reason to
differ with the view taken by the High Court.
32. The appeals are accordingly dismissed.
….….…………………..J.
[Surinder Singh Nijjar]
….…………………,……J.
[M.Y.Eqbal]
New Delhi;
September 27, 2013.
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[1] 2000 (1) SCC 644
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33
