IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 09.09.2009 C O R A M THE HONOURABLE MR. JUSTICE K.N.BASHA Writ Petition Nos.8870 of 2008, 9093 and 27694 of 2008 9260 of 2009, 9838, 9839, 9842, 9857 to 9861, 10183, 10486 and 10577 of 2009 1. D.Aravindhan 2. KR.Thiruguna 3. A.Ganesan 4. K.S.Sadanandam 5. N.Chitra 6. L.Chandrika ..Petitioners in WP.No.8870 of 2008 1.K.T.Senthilarasu 2.P.Dhanbalan 3.S.Balasubramonian 4.S.Manoharan 5.S.Shanmuganthan ..Petitioners in WP.No.9093 of 2008 K.Poongothai ..Petitioner in WP.No.27694 of 2008 I.Mommathu Yagub ..Petitioner in WP.No.9260 of 2009 J.Kannan ..Petitioner in WP.No.9838 of 2009 P.Sujatha ..Petitioner in WP.No.9839 of 2009 Association of Engineers, Chennai- rep. by its General Secretary, F-9 Vasanth Appartments 100 feet By-Pass Road, Velacheri, Chennai-42 ..Petitioner in WP.No.9842 of 2008 B.Thirunavukarasu ..Petitioner in WP.No.9857 of 2009 P.Govindan ..Petitioner in WP.No.9858 of 2009 G.Muralidharan ..Petitioner in WP.No.9859 of 2009 https://hcservices.ecourts.gov.in/hcservices/ K.Ravichandran ..Petitioner in WP.No.9860 of 2009 K.Kadhiresh ..Petitioner in WP.No.9861 of 2009 Association of Tamil Nadu Highway Engineers-rep. by its General Secretary 35 Taluk Office Road, Chennai -15. ..Petitioner in WP.No.10183 of 2009 1. R.MUTHUCHAMY 2. N.CHITRA 3. R.RADHA MUTHUKUMARI 4. M.LAWANYA 5. T.D.MYTHILI 6. A.MARIAPPAN 7. M.R.LAKSHMI 8. S.BANGARUMYTHILI 9. K.R.SURESH BABU 10. A.MUNEESWARAN 11. V.MANIMARAN 12. M.MANGAYARKARASI 13. K.R.TAMIL SELVAN 14. V.KUMARESAN 15. K.MANICKAM 16. S.SURESH KUMAR 17. R.PADMA 18. V.MANIVANNAN 19. K.SURESH 20. N.ASHOK KUMAR 21. M.CHOCKALINGAM 22. R.SELVARAJ 23. N.MAYAVELU ..Petitioners in W.P.No.10486 of 2009 1. A. CHANDRASEKARAN 2. C. JAYASUDHA 3. N. SUGANTHA 4. K.ANBUKKARASI 5. S. KARTHIKHA 6. R.ANBUMANI 7. S.HEMA 8. G. UMAMAHESWARI 9. GADDAMEEDI MADHAVI 10. N.SUJATHA 11. D.M. SUJATHA 12. M.ANANTHAKALYANA RAMAN https://hcservices.ecourts.gov.in/hcservices/ 13. S.JANAKUMARAN 14. K.BANUDHASAN ..Petitioner in W.P.No.10577/2009 vs. 1. The Government of Tamilnadu, Rep. by its Secretary, Highways Department, Fort St. George, Chennai-9. 2. The Chief Engineer (Gl.), Highways Department, Public Works Department Campus, ..Respondents 1 & 2 Chepauk, Chennai -5. in all WPs. 3. T.Natanasabapthy 4. T.HariBabu 5. V.Nagarajan 6. A.Azhagappan 7. M.Rajandran 8. S.Gnanamuthu 9. M.Balasubramanian 10.V.Shanmugam 11.K.Rathinakumar 12.G.Panneerselvam 13.R.Ramsamy 14.S.Gandhi 15.A.Pachimuthu 16.C.Gopalan 17.M.Govindasamy 18.T.Srinivasan 19.C.Venkatachalam 20.V.Chandrasekaran 21.K.Chikkandar Meeran Moheedin 22.V.Rajagopal 23.K.Thankavel ..Respondents 3 to 23 in WP.Nos.8870, 9093 of 2008 24.P.Subramanian 25.A.Jachandra Suriya Narayanan 26.M.Chidambaram 27.N.Sabtharishi 28.V.Velu ..Respondents 24 to 28 in WP.Nos.8870 of 2008 ** RR 24 to 28 impleaded as per order dated 9.7.2008 in M.P.No.3 of 2008 in W.P.No.8870 of 2008 https://hcservices.ecourts.gov.in/hcservices/ K.N.Nanjundan R.Subramani ..Respondents 3 and 4 in W.P.No.27094 of 2008 (RR3 and 4 impleaded as per Court order dated 28.11.2008 in M.P.No.2/08 in W.P.No.27694/08 by NPVJ) K.N.Nanjundan P.Subramanian A.Jayachandra Suriya Narayanan M.Chidambaram N.Saptharishi K.S.Sadanandam ..Respondents 3 to 8 in W.P.No.9260 of 2009 (RR3 to 7 impleaded as per order dated 26.5.2009 in M.P.No.2/09 and R8 impleaded as per Court order dated 26.5.2009 in M.P.No.3/09 in W.P.No.9260/09 by MMSJ) R.Rubramani P.Subramanian M.Chidambaram A.Jayachandra Suriya Narayanan K.N.Nanjundan ..Respondents 3 to 7 in W.P.No.10183/09 (RR3 to 7 impleaded as per order dated 24.6.2009, by KNBJ in MP.2 to 6/09 in W.P.No.10183/09. Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of (1) Declaration to declare the appointments of respondents 3 to 23 as Assistant Divisional Engineers as illegal, void and unconstitutional and consequently to direct the respondents 1 and 2 to revert the respondents 3 to 23 to the post of Junior Engineers and further direct the respondents 1 and 2 to give retrospective notional promotion to the petitioners as Assistant Divisional Engineers without following 3 : 1 ratio between Assistant Engineers and Junior Engineers, if Junior Engineers who rendered 10 years service after becoming Junior Engineer are not available, from the date on which the Junior Engineers who are junior to petitioners were appointed as Assistant Divisional Engineer as aforesaid (WP.Nos.8870 of 2008 and 9093 of 2008) (2) Mandamus, directing the respondents not to promote the Junior Engineers with less than 10 years of Service in the category of Junior Engineers in Violation to the rules and consequently direct the respondents to promote the Qualified Assistant Engineers as per https://hcservices.ecourts.gov.in/hcservices/ rules in the existing vacancies of Assistant Divisional Engineers. (W.P.No.27694 of 2008) (3) Mandamus, forbearing the respondents from promoting the Junior Engineers with less than 10 years of service in the category of Junior Engineers to Assistant Divisional Engineer in violation to the rules and till the disposal of Similar W.P.Nos.8870/08, 9093/08, and 27694/08. (W.P.No.9260 of 2009) (4) Mandamus, forbearing the respondents from promoting Junior Engineers who have less than 10 years of Service in the category of Junior Engineers as Assistant Divisional Engineers till the final disposal of the W.P.Nos.8870, 9093 and 27694 of 2008 (W.P.Nos.9838 & 9839/09, 9857 to 9861 of 2009 and 10577 of 2009) (5) Mandamus, forbearing the respondents from appointing any Junior Engineer as Assistant Divisional Engineer in Highways Department by recruitment by transfer before rendering a minimum of 10 years of service after hearing Junior Engineer as mandated under the Special rules to Tamil Nadu Highways Engineers Service till the final disposal of W.P.Nos.8870, 9093, and 27694 of 2008 by this Hon'ble Court (W.P.Nos.9842 of 2009, 10183 of 2009 & 10486 of 2009) For Petitioners 1, 4-6 in : Mr.V.Vijay Narayan, W.P.No.8870/08 & petitioner Senior Counsel for in W.P.No.10486/09 M/s.N.Subramaniyan For Petitioners in W.P : Mr.N.Subramaniyan Nos.9093/08 & 9842/09 For R-8 in W.P.No.9260/08 For Petitioner in : Mr.N.G.R.Prasad W.P.No.27694 of 2008 for M/s.R.Rengaramanujam For Petitioner in : Mr.K.Venkatachalapathy, SC W.P.No.9260 of 2009 for M/s.M.Ravibharati For Petitioners in W.P. : Mr.M.A.Gouthaman Nos.9857-9861/09 and 10577 of 2009 Mr. K. Venkataramani, S.C. for M/s. M.A. Gowthaman For Petitioners in : Mr.D.Gopinath W.P.Nos.9838 & 9839/09 For Petitioners in : Mr.M.Venkatachalapathy, SC W.P.No.10183 of 2009 for M/s.S.Pattabiraman https://hcservices.ecourts.gov.in/hcservices/ For Petitioners 2 & 3 : Mr.K.Manikandan in W.P.No.8870/2008 For Respondents 1 & 2 : Mr.P.S.Raman, in all these petitions Additional Advocate General assisted by Mr.P.Muthukumar,GA and Ms.Pushpa : Mr.R.Thiagarajan, Sr.Counsel for M/s.M.Muthappan (RR-4, 5 &6) (in WP.No.10183/09) M/s.G.Ethirajulu (R-3) (in WP.No.10183/09) and RR-23 and 24 to 28 (WP.No.8870/08) For RR 3-5 and 13 in W.P. : Mr.L.Chandrakumar No.8870 of 2008 & RR 13 in W.P.No.9093/2009 R-7 in W.P. No.10183 of 2009 For RR 9, 10, 17 & 20 in : Mr.M.D.Subramaniam W.P.Nos.8870/08 & 9093/09 For RR-11, 12, 19 in W.P. : Mr.G.Ethirajulu Nos.8870/08 & 3&4 in 27694/08 For RR 6 and 16 in : Mr.Sivam Sivanandraj W.P.No.8870/2008 For RR 3 & 4 in : Mr.Pitty Parthasarathy W.P.No.27694/08 & 3-7 in W.P.No.9260/09 C O M M O N O R D E R In view of the common questions involved in all these writ petitions, these writ petitions have been taken up for hearing together and disposed of by this common order. 2. The tussle is between Assistant Engineers (B.E. Degree- holders) (hereinafter referred to as "AEs") and Junior Engineers (diploma-holders) (hereinafter referred to as "JEs"), who are working in the Highways Department, in the matter of promotion to the post of Assistant Divisional Engineers (hereinafter referred to as "ADEs"). The petitioners in W.P.No.8870 of 2008 are AEs who challenge the promotion of the respondents 3 to 23 as Assistant Divisional Engineers from the post of JEs and to forbear the respondents 1 and 2 from promoting the respondents 24 to 28. W.P.No.9842 of 2009 has been filed by an association, whose members are AEs, seeking a writ of Mandamus to forbear the department from promoting JEs as ADEs unless such JEs have put in 10 years of service as JEs. W.P.No.10183 https://hcservices.ecourts.gov.in/hcservices/ of 2009 has been filed by yet another similar association praying for similar relief. Writ petitions in W.P.Nos.9093 of 2008, 27694 of 2008, 9260 of 2009, 9838, 9839, 9857 to 9861, 10183, 10486 and 10577 of 2009 have been filed by AEs (B.E.Degree-holders) seeking for the same relief. 3.1. Before going into the actual issues involved, it is better to recapitulate, the status and position of various officers in the department with reference to the relevant service rules. 3.2. There are two service rules governing the services of various staff in the department. Upto to the level of JEs, they are governed by the "Special Rules to Tamil Nadu Highways Engineering Subordinate Service" (hereinafter referred to as "Engineering Subordinate Rules"). The post of AEs, ADEs and above are governed by "Special Rules to Tamil Nadu Highways Engineering Service" (hereinafter referred to as "Engineering Service Rules"). The section offices of the department are manned by either AEs or JEs. As a matter of fact, as per rule 18 of the Engineering Service Rules, 75% of the section offices are to be manned by AEs and 25% are to be manned by JEs. Insofar as the nature of work is concerned, there is absolutely no difference between AEs and JEs. The next avenue of promotion for AEs as well as JEs is to the post of ADE. The Engineering Service Rules prescribes the method of recruitment of ADEs and also it prescribes the qualification for the same. According to the said rules, the post of ADE is to be filled up on promotion either from AEs or from JEs, but the same should be filled up in the ratio of 3 : 1. To put it otherwise, three vacancies should be filled up by promoting the AEs and the fourth vacancy should be filled up by promoting a JE. After a JE is so promoted to the post of ADE, he is brought under the Engineering Service Rules. Insofar as the qualification is concerned, the engineering graduates (B.E.Degree-holders) are eligible for appointment as AEs, whereas, the diploma-holders in engineering in various subjects are eligible to be appointed as JEs. JEs can be appointed either by means of direct recruitment or promotion from the lower category such as Draughtsman, Overseer etc. Engineering Service Rules prescribes the qualification for promotion from the cadres of AE by prescribing that an AE holding a B.E.Degree with five years of experience in the said post is eligible for promotion as ADE. Insofar as the JEs are concerned, the experience needed is either 10 years or 18 years as the case may be which would be stated in detail hereunder. 3.3. In the case on hand, the respondents 3 to 23, who were JEs, have been now promoted as ADEs against the quota earmarked for them, viz., ratio of 3 : 1. The respondents 24 to 28, who are also Junior Engineers, are likely to be promoted. It is the common grievance of all these petitioners that the respondents 3 to 28 are not eligible to be promoted as ADEs for want of sufficient number of years of experience as it is claimed by them that number of years of service https://hcservices.ecourts.gov.in/hcservices/ only as JE is to be taken into consideration excluding the service rendered as Overseer and Draughtsman as per the rules. It is further contended that in the event of there being no sufficient number of qualified candidates in the cadre of JEs for the purpose of promoting them as ADEs, the AEs should be appointed as against the vacancies earmarked for JEs. With these two main contentions, the petitioners have come forward with these petitions. 4.1. The common case of the petitioners in all these writ petitions is that the AEs, who are B.E. degree holders, were appointed by direct recruitment through the Tamil Nadu Public Service Commission in Tamil Nadu Highways Engineering Service and they joined in highways department during the year 1998 as against the vacancies accrued during the years 1993-1995 and 1995-1996. The respondents 3 to 23 are diploma holders promoted as JEs from the category of Draughting Officials during the year 1999 and afterwards and now promoted as ADEs. 4.2. As already pointed out, the post of ADE is governed by the Special Rules to Tamil Nadu Highways Engineering Service. The appointment to the post of ADE is made from the AEs having not less than five years of service by promotion and from the JEs with not less than ten years of service as JE or Draughtsman or not less than eighteen years of service as Overseer, JE or Draughtsman by recruitment by transfer in the ratio of 3 : 1 as per the relevant provisions under Rule 9(a) and (b) and 10(b)(2)(a) and (b) or 10(b) (3)(a) and (b) of the Engineering Service Rules respectively. 4.3. The petitioners further claim that a harmonious reading of above Rules 9(a) and (b) and 10 would show that the proviso to rule 10 stipulating 10 years Draughtsman's service for a JE shall mean the service rendered by a JE in the category of Draughtsman when posted as Draughtsman due to administrative reasons as stipulated under Rule 9(b) and cannot be construed as the service rendered as Draughtsman prior to promotion as JE. But, wrongly construing the said proviso to mean the service rendered as Draughtsman prior to promotion as JE, the respondents 3 to 23 were appointed as ADEs even before completion of 10 years of service in the category of JE, thereby marching over the petitioners and other similarly placed AEs who are seniors. Further the respondents 1 and 2 even went to the extent of appointing the unqualified JEs as ADEs. 4.4. The further grievance of the petitioners is that an AE, who has rendered more than ten years of service is stagnating without promotion, whereas, a JE with four years of service is getting promotion and a Draughtsman, who was working in the lower category to AE got promoted as ADE, which is illegal and discriminatory. 4.5. The appointment of diploma holder (JE) with lesser experience as ADE earlier to the degree holder (AE) with higher https://hcservices.ecourts.gov.in/hcservices/ qualification of B.E. Degree, is nothing but meriting the demerits and demeriting the merits which is in violation of Rule of Equality mandated under Articles 14 and 16 (1) of the Constitution of India and is also highly discriminatory. 4.6. It is claimed that any construction of the rules that it permits to take the service rendered in draughtsman category before becoming JE for the purpose of promotion to the post of ADE would make the rules illegal, arbitrary and liable to be declared void. The petitioners submitted that the respondents 1 and 2 did not publish the panel for the post of ADE in Tamil Nadu Government Gazettee as amended under Rule 4(a) of General Rules and hence, the petitioners do not have the copy of the Government Orders appointing the respondents 3 to 23 as ADEs and the petitioners were able to get the details of the respondents only when the seniority list of JEs were communicated during the month of August 2007 and thereafter, they have come forward with these petitions. 4.7. The same averments and grounds have been raised by the other petitioners in the other writ petitions filed by the individual AEs. 5.1. The respondents 1 and 2 filed a counter refuting the claims and contentions raised by the petitioners. In respect of the main point raised by the petitioners, namely, whether ten years combined service in the post of JE and Draughtsman is sufficient for appointment to the post of ADE by recruitment by transfer of JEs possessing diploma in Engineering or a minimum service of ten years in the category of JE is required, it is stated by the respondents 1 and 2 that as per the rule 10(b)(2)(b), it is mentioned as "Service as Junior Engineer or Draughtsman for a period of not less than ten years" and therefore, it is clear that the JEs, who have put in a 'combined service' of not less than ten years in the categories of JE and Draughtsman (now Junior Draughting Officer) are eligible for appointment as ADE and accordingly, while preparing the selection list of persons eligible for appointment as ADE, 'ten years of total service' is taken into account. 5.2. The respondents 1 and 2 further stated in their counter that the petitioners joined the highways department as AEs by direct recruitment through the TNPSC in the year 1998, while the respondents 3 to 23 have joined in the service as Junior Draughting Officer between 1978 and 1983 and they were subsequently promoted as JEs on various dates. As per Rule 10, a JE, who has put in a service of not less than 10 years in the categories of JE or Draughtsman are eligible for appointment as ADE and the respondents 3 to 23 have fulfilled the requirements of the above said provision and accordingly, they were selected and included in the list of JEs fit for appointment as ADE approved by the Government. It is further stated by the respondents 1 and 2 that Section Offices in Highways https://hcservices.ecourts.gov.in/hcservices/ Department are manned either by B.E. Degree holders or diploma holders. The degree holders are called as AEs and diploma holders are called as JEs. As per Rule 18, 75 % of the vacancies to be filled up by AEs (degree holders) and 25 % of the vacancies shall be filled up by JEs (diploma holders) and in the Section Office both the AEs and JEs are interchangeable. As per Rule 9(a), the same ratio of 3 : 1 between AEs and JEs is being followed while filling up the vacancies in the post of ADE. As per the statutory rules, only the eligible candidates in both the categories of AEs/JEs are being considered for promotion and appointment as ADE by following the ratio of 3 : 1. Hence the appointment of the respondents 3 to 23 to the post of ADE is valid and legal and they have been appointed only in the quota reserved for diploma holders and none of them have been appointed in the quota earmarked for degree holders. 5.3. It is further stated that the contention of the petitioners that the approved panel should be published in the Tamil Nadu Government Gazettee is not correct and as per the provisions contained under Rule 4(a) as amended in G.O.Ms.No.284, Personnel and Administrative Reforms Department, dated 01.12.1997, it is enough if the approved panels are displayed in the notice board of the approving authority. 5.4. The respondents 1 and 2 have also emphatically denied the allegations of acting and favouring the diploma holders as totally baseless. 5.5. The respondents 3, 4, 5 and 13 and the respondents 11, 12, 19 and 23 to 28 and the respondents 6 and 16 in W.P.No.8870 of 2008 have filed separate counters refuting the averments and contentions of the petitioners stating that they are eligible and qualified and they have been promoted as ADE as per the statutory rules. It is stated that the petitioners having not challenged the order of promotion of the respondents 3 to 23 made in G.O.Ms.No.147 Highways Department, dated 30.05.2007 and the 3 : 1 ratio and prescribed qualification for the promotion as per the Engineering Service Rules, these writ petitions are not maintainable. The respondents 3 to 23 have rendered more than 20 years of combined service as Draughtsman, Overseer and JEs and as such they are eligible for promotion as ADE. It is further stated that the petitioners wrongly interpreted the service rules and thereby erred in alleging that an employee, who rendered service for 10 years as JE alone should be promoted as ADE without taking note of the fact that as per Rule 10(b)(3)(a) and (b) service as Overseer, Junior Engineer or Draughtsman for a period of not less than 18 years is the eligibility for the post of ADE. 5.6. In respect of the other averments and contentions, the above said respondents taken a similar stand as that of the respondents 1 and 2. https://hcservices.ecourts.gov.in/hcservices/ 6.1. Mr.Vijay Narayan, learned senior counsel for the petitioners while assailing the promotion of the respondents 3 to 23 and the proposed promotion of the respondents 24 to 28 as ADE put forward the following contentions : (1)The respondents 3 to 28 are not qualified as they are not having 10 years experience as JE and as such they are not eligible for promotion as ADE ; (2)From the reading of the Rule 9(a), it is clear that the reservation of quota of 3 : 1 ratio between AEs and JEs is applicable only in the event of qualified and suitable candidates are available and if qualified and suitable candidates are not available in either of the categories of AEs and JEs, it goes to the other, i.e., of AEs are not available, three posts can be filled up from among the eligible JEs and vice-versa. The said rule is not absolute in its terms, but it is conditional upon qualified and suitable candidates are being available. (3)Rule 10 makes it very clear that the persons who do not possess the qualification prescribed therein are not eligible for appointment to the category under the methods of recruitment stated therein. (4)If the promotions are made to the post of ADE by appointing unqualified persons, rule 9(b) would become redundant. Rule 9(a) if harmoniously read with Rule 10(b) (2)(a) and (b) would show that the fourth vacancy out of every four vacancies in the category of ADE shall be filled either by a JE or by a permanent Draughtsman, who has been appointed as JE but working in the drawing office for administrative reasons and who has rendered service as JE or as draughtsman after becoming JE. The draughtsman referred to shall be the draughtsman who after appointment as JE continues to work as draughtsman for administrative reasons and he should have rendered ten years either as Junior Engineer or Draughtsman after becoming Junior Engineer. (5)The Government can, under Rules 9(b) and 10(b)(3)(a) and (b) of the rules notwithstanding anything contained in these rules, i.e., de hors, the said 3 : 1 ratio, appoint JEs with lower subordinate diploma with total service of 18 years as Junior Engineer, Overseer or Draughtsman with proven efficiency. This rule is not applicable to the present case as the said respondents have not been appointed as ADE under this rule as the first respondent replied to the query put under the Right to Information Act, 2005 that the respondents 3 to 23 have not been https://hcservices.ecourts.gov.in/hcservices/ appointed under Rule 10(b)(2)(a) and (b) of the rules. (6)The petitioners who are the degree holders and working as AEs after completing 9 years of service are stagnating, whereas the respondents 3 to 23, who are not having 10 years of service as JEs, are promoted/included in the panel for promotion as ADEs ; (7)The respondent No.23, who has been promoted as JE on 18.04.1999 is due for promotion on 18.04.2009, i.e., after completing 10 years of service as JE, whereas, he was promoted as ADE on 30.05.2007 itself. Likewise, one P.Subramanian (respondent No.24), who was promoted as Junior Engineer on 11.09.2004 will be finishing 10 years of service as JE only on 11.09.2014, but his name is under consideration for promotion as ADE in the year 2009 itself. On the other hand, the petitioners, who are the degree- holders and serving as AEs since 1998, 1999 and 2000 and who are eligible for promotion as ADE after completing five years of service are not included in the list for promotion as ADE. Therefore, the question is whether 10 years of service as JE is sufficient or not or ten years of service as JE includes draughtsman also and if such contention is accepted, then Rule 9(b) of the rules becomes redundant. 6.2. The learned senior counsel placed reliance on the decision of a Division Bench of this Court in W.A.No.1542 of 1992 dated 10.10.2003. 7.1. Mr.N.Subramaniyan, learned counsel for the petitioners while adopting the arguments of Mr.Vijay Narayan, would further submit that as per Rule 10(b)(4) a Junior Engineer, even if he acquires B.E. Degree, he will not eligible for appointment as Assistant Divisional Engineer before completion of five years and as such care was taken by the framers of the rules to see that the AEs already in service shall not be overlooked by subsequently appointed JEs. It is further submitted that there are inequalities between the petitioners and the respondents 3 to 23. The respondents 3 to 23