IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.02.2009 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.Nos.24453, 37206 to 37208, 28434, 31619, 23942, 23072 and 29715/2004 and 26228/2005 and 3162/2006 1.S.Ponnusamy 2.K.Jayaraman (writ petition dismissed as against the second petitioner alone by order dated 8.8.2006) 3.M.Loganathan (writ petition dismissed as against the third petitioner alone by order dated 10.07.2007) 4.C.Selvaraj 5.V.Narayanasamy 6.A.K.Rajaduraivelpandian 7.D.Xavier 8.D.Ravikarathikayan 9.C.Rengaswamy Pandian ... Petitioners Vs. 1.Government of Tamil Nadu, Rep. By its Secretary, Rural Development (CSS.I) Department, Fort St. George, Chennai  600 009. 2.The Director of Rural Development, Pangal Building, Saidapet, Chennai  600 015. 3.The Chief Engineer, Highways Department, Chepauk, Chennai  600 005. 4.D.Ramasamy 5.S.Muthusamy 6.v.Suresh 7.P.Selvaraj 8.S.Thanikachalam 9.S.Sadaiappan 10.P.Sankarapandian 11.C.Sakthimurugan 12.E.Sivakumar 13.Madasamy Sundararaj ... Respondents Petition filed under Article 226 of the Constitution of India, praying for a Writ of mandamus directing the 1st and 2nd respondents to absorb the services of the petitioners as Assistant Executive Engineers in the 1st respondent department in the original posts earmarked for the personnel from Highways Department. Appearance :- Mr.N.Muthukumarasamy, Sr. Counsel, for Mr.Balan Haridas, for petitioners in ... W.P.Nos.31619/2004, 37206 to 37208/2004, 26228/2005 24453/2004 Mrs.Nalini Chidambaram, Sr. Counsel, for Ms.Gladys Daniel, for petitioners in ... W.P.Nos.29715/2004, 23072/2004 Mr.R.Singaravelan for petitioners in ... W.P.No.23942/2004, 3162/2004 Mr.P.S.Raman, Addl. Advocate General, assisted by Mr.K.Elango, Special Govt. Pleader for Government Mrs.C.N.G.Ezhilarasi for TNPSC. Mrs.Geetha Thamaraiselvan, for M/s.Sudha Ravi Associates Mr.Srinath Sridevan, for impleaded respondent in W.P.No.24453/2004 COMMON JUDGMENT K.K.SASIDHARAN, J. These Writ Petitions relate to the absorbtion of Engineers of Highways Department and Agricultural Engineering Department in the Rural Development Department of the Government of Tamil Nadu and the question involved is as to whether deputationists who continue to have their lien in their parent department are entitled for absorption in the Borrowing Department in the absence of a provision in the statutory rules framed under Article 309 of the Constitution of India. 2.Since the issue involved in all these Writ Petitions are similar in nature and as the challenge was very much in relation to the Government order in G.O.Ms.No.15 dated 25.01.2000, the Writ Petitions were taken together and are being disposed of by this common Judgment. 3.In order to appreciate the relief sought for by the respective petitioners, the prayer in each of the Writ Petitions are reproduced herein. (i)W.P.No.26228/2005 :- The relief sought for is to quash the ad hoc Rules issued by the Government of Tamil Nadu in G.O.Ms.No.15 dated 25.01.2000 insofar as it failed to make provision to absorb the petitioner and similarly placed Engineers of Highways Department and to direct the Government to absorb the petitioner in Rural Development Department as Assistant Executive Engineer. (ii)W.P.No.24453/2004 :- This Writ Petition is for a Writ of Mandamus directing the respondents 1 and 2 in the said Writ Petition to absorb the service of the Writ Petitioners as Assistant Executive Engineers in the original post earmarked for the personnel from Highways Department in Rural Development Department. (iii)W.P.Nos.37206 to 37208/2004 :- The petitioners have challenged the order dated 10.12.2002, terminating their deputation. (iv)W.P.No.28434/2004 :- Writ Petition No.28434/2004 was preferred against the order dated 27.04.2004 in O.A.No.1791/2004 on the file of the Tamil Nadu Administrative Tribunal, whereby the Tribunal directed the Government to consider the claim of the applicants in the said Original Application for being promoted to the post of Assistant Executive Engineer in Rural Development Engineering Wing. (v)W.P.No.31619/2004 :- In W.P.No.31619/2004, the petitioner has challenged the order dated 16.03.2004 in O.A.Nos.1068 to 1081/2004 on the file of the Tamil Nadu Administrative Tribunal whereby, the Tribunal directed consideration of the applicants in the said original applications for promotion on regular basis in terms of Rule 39 of the General Rules and to go ahead with the selection process by preparing the panel. (vi)W.P.No.23942/2004 :- In W.P.No.23942/2004, the challenge is to the order dated 12.08.2004, whereby, the Writ Petitioner was repatriated to the Highways Department. (vii)W.P.No.3162/2005 :- W.P.No.3162/2005 was filed by the very same petitioner in W.P.No.23942/2004, and the challenge is to the order dated 17.11.2005 in G.O.(D) No.572, to quash the same and to promote him to the post of Assistant Executive Engineer in the Rural Development Department with effect from the date of promotion given to his juniors. (viii)W.P.No.23072/2004 :- In W.P.No.23072/2004 filed by the Engineers of the Agricultural Engineering Department, their prayer was to issue a Writ of Mandamus to forbear the respondents from applying the qualification of Degree in Civil Engineering for the post of Assistant Engineer in Rural Development Department as per recruitment Rule in G.O.Ms.No.15 dated 25.01.2000 and consequently, to absorb the Engineers holding B.E. Degree in Agricultural Department as Assistant Engineers in Rural Development Department. (ix)W.P.No.29715/2004 :- In W.P.No.29715/2004, the prayer is to issue a Writ of Mandamus to direct the respondents to draw up a panel of persons holding the post of Assistant Engineers in Rural Development Department by including the petitioner, and fix the seniority in the post of Assistant Engineers after counting the service rendered by the petitioners in Agricultural Engineering Department and Rural Development Department, as per G.O.Ms.No.102 dated 25.05.1998. 4.There were two other Writ Petitions in W.P.Nos.24672/2004 and 24710/2004 preferred for identical reliefs and those Writ Petitions were dismissed as withdrawn on 14.03.2007 and 21.03.2007 respectively, as found from the records. 5.The background facts in all these Writ Petitions are more or less similar and the ultimate relief claimed is to absorb them in the Rural Development Department. Therefore, we are of the view that the facts as found in W.P.Nos.28434/2004 and 31619/2004 would project the contentions raised in all these Writ Petitions. The facts of the case as found in W.P.No.23942/2004 and W.P.No.3162/2005 would be dealt with separately. W.P.Nos.28434 and 23072/2004 :- Petitioner's contention :- 6.This Writ Petition is directed against the order dated 27.04.2004 in O.A.No.1791/2004 on the file of the Tamil Nadu Administrative Tribunal. The application in O.A.No.1791/2004 was preferred by the second Respondent to direct the third Respondent to promote him as Assistant Executive Engineer in the existing or future vacancy in the Rural Development Department as per the statutory Rules framed by the Government in G.O.Ms.No.15 dated 21.05.2000. The Writ Petitioner was not a party to the said application. The Original Application No.1791/2004 was taken up along with O.A.Nos.1792 to 1801/2004 and all the applications were disposed of by a common order by the Tribunal on 27.04.2004. 7.It was the case of the applicants in the original applications that they have been working as Assistant Engineers in the Engineering Wing of Rural Development Department. The Rural Development Department previously used to take Engineering staff on deputation from the Highways Department. In the year 1996, a separate Engineering Wing was formed in Rural Development Department itself and recruitment of Assistant Engineers were taken on direct recruitment basis. All the applicants before the Tribunal were selected by Tamil Nadu Public Service Commission and they have been appointed as Assistant Engineers in the Rural Development Department in the year 1998. Their appointments have been regularized and their probation was also declared and as such, they constituted regular cadre of Rural Development Engineering Wing. Since they have completed five years of service in the Rural Development Engineering Wing, they have become eligible for promotion to the next post of Assistant Executive Engineer. It was their grievance that instead of promoting them and filling up the post of Assistant Executive Engineer, Rural Development Department was trying to take Engineers from Highways Department and other Departments. Therefore, they have sought for appropriate directions to the Department to consider them for promotion to the post of Assistant Executive Engineer. 8.In the counter affidavit filed by the Rural Development Department before the Tribunal, it was made clear that they have no intention to fill up the post of Assistant Executive Engineer by receiving the officers on deputation again from the Highways Department. It was also indicated that persons who were working on deputation as Assistant Executive Engineers would be sent back to the parent Department after the completion of the period of deputation. Therefore, taking into consideration of all the contentions of the respondents, the Tribunal directed the Rural Development Department to consider the case of the applicants for promotion and posting them as Assistant Executive Engineers in the Rural Development Engineering Wing. 9.The said common order was challenged by the petitioner after taking leave. 10.The Writ Petitioner is working as Assistant Executive Engineer in the Rural Development Department and he originally joined the services of the Highways Department through the Tamil Nadu Public Service Commission [hereinafter referred to as 'the Service Commission'] and his date of appointment as Engineer was on 06.05.1981. 11.According to the petitioner, the Highways Department was constituted in the year 1946 and all the main roads hitherto maintained by the District Boards were transferred to the Government and the same was under the control of the Highways Department. The Highways Department was headed by a Chief Engineer and it was placed under the administrative control of Public Works Department insofar as Government roads were concerned. Similarly, other roads coming under the District Boards were entrusted to the local administration Department. The Highways Department was entrusted with the technical control of all Government Roads and other works of erstwhile District Boards, presently known as Panchayat Unions. Divisional Engineers were directed to continue as District Engineers and they were performing all the functions as District Engineers and they were made responsible for the District Roads as far as the District Board Works were concerned. Assistant Engineers and Supervisors under the control of Divisional Engineers were directed to work in relation to Government Roads and all District Board works within their jurisdiction. 12.Subsequently, the Government in exercise of the powers conferred u/s 8 of the Madras District Municipalities and Local Boards (Amendment) Act, 1946, directed that the Highways Department will function with effect from 01.02.1947 and during the year 1950, Special Rules to Madras Highways Engineering Services and Madras Highways Engineering Subordinate Services Rules were framed and all the Engineers of the erstwhile District Boards were transferred to the Highways Department. 13.In the year 1958, Madras Panchayat Act was enacted and as per the provisions of the said Act, Community Development Block was created for National Extension Service and the District Boards were superseded by the Panchayat Development Block. Properties and works vested with the District Boards were transferred to the Panchayat Union Council. 14.The Government as per G.O.Ms.No.851 Rural Development and Local Administration Department dated 09.05.1960 directed the Highways Department to carry out the works brought under the Panchayat Unions and the technical supervision of all rural works were entrusted to a single self contained Engineering organization and the staffs in-charge of various schemes under the Panchayat Union were integrated with the staff of Highways Department. Consequently, the Highways Department was reorganized as Highways and Rural Works Department and the same was placed under the control of Chief Engineer and he was designated as Chief Engineer [Highways and Rural Works]. The petitioner along with others were posted to undertake Rural Development work under the Panchayat Union. 14.The Engineering staff working in the Rural Development Department were taken only from the Highways and Rural Works Department. While so, the Government decided to create the post of Engineers for the Rural Development Department for the purpose of executing works in Panchayat Unions. Accordingly, the third Respondent issued G.O.Ms.No.263 dated 27.12.1996 and created 384 additional posts of Assistant Engineers, 15 additional posts of Assistant Executive Engineers, 28 additional post of Executive Engineers and one Superintending Engineer with the powers of Chief Engineer. This was followed by another Government Order in G.O.Ms. No.102 Rural Development Department dated 25.05.1998 which contains directions in respect of the old posts manned by the staff of Highways Department. As per the said Government Order, the technical post in Rural Development Department was categorized into "New posts" and "Original posts". The third Respondent in the said G.O.Ms.No.102 ordered that the Chief Engineers (H&RW) would stop posting of personnel directly to the original 53 post of Assistant Executive Engineer (RD), 384 posts of Block Engineers, 768 posts of Overseers, 53 posts of Junior Engineers/Assistant Engineers and 53 posts of Junior Draughtsmen and all the post of Road Inspectors. It was also provided that the "original" 53 posts of Assistant Executive Engineer (Rural Department) and other posts as indicated above would be earmarked for personnel from Highways Department and their services would be permanently absorbed. 15.Subsequently, option was sought for from the petitioner and other similarly situated employees for absorption in the Rural Development Department and accordingly, the petitioner and other employees have exercised their option to be absorbed in the service of the Rural Development Department. This fact was recorded in the counter affidavit filed by the third Respondent in W.P.No.6513/1998 wherein it was specifically stated that there would be no reversion of Engineers in the Highways Department and willing technical staff of Highways Department would be absorbed in Rural Development Department. 16.In pursuance of G.O.No.263 dated 27.12.1996, the Director of Rural Development directly recruited Assistant Engineers and they were recruited in the newly created post and those Engineers were all juniors to the petitioner, and the second Respondent, applicant in O.A.No.1791/2004, was also far junior to him. 17.Even though the petitioner submitted his option for being absorbed in the fourth Respondent Department, no orders have been passed. In the year 2000, about 758 overseers and 650 Road Inspectors belonging to the Highways Department and working in the Rural Development Department were absorbed in the Engineering Wing of the Rural Development Department after taking their option. 18.It was the further contention of the petitioner that after the issuance of G.O.No.102 dated 25.05.1998, the entire control over posting and the manner of execution of work were all exercised only by the Director of Rural Development Department as well as by the concerned Collectors and the petitioner has been working under them and as such, he was impliedly absorbed in the Rural Development Department. The second Respondent has projected an incorrect picture before the Tribunal as if the Writ Petitioner and others have entered the service of the Rural Development Department only during the year 2003. The second Respondent has deliberately suppressed the fact that the petitioners and persons like him have been working in the Rural Development Department for more than a decade and that their claim for regularization was pending. According to the petitioner, the second Respondent has just completed the qualifying service and he was not having the length of experience and service in the Rural Development Department compared to the petitioner and as such, he was aggrieved by the direction of the Tribunal to consider the second Respondent and other applicants for promotion as Assistant Executive Engineer in the Rural Development Department. W.P.No.31619/2004 :- 19.This Writ Petition is directed against the common order dated 16.03.2004 in O.A.Nos.1068 to 1081 of 2004, whereby, the Tribunal directed the Rural Development Department to consider and grant promotion to the Panchayat Union Engineers working in various Panchayat Union in the State of Tamil Nadu as Assistant Executive Engineer in the existing or future vacancies in the Rural Development Department in accordance with the statutory Rules framed in G.O.Ms.No.15 Rural Development Department dated 25.01.2000. 20.The second Respondent filed the original application in O.A.No.1068/2004 before the Tribunal and it was his contention that he was recruited by the Service Commission and he was appointed as Assistant Engineer in Rural Development Department as per Government Order dated 30.11.1998 subject to the out come of O.A.No.8813/1997. The second Respondent joined as Assistant Engineer in the Rural Development Department in December, 1998. It was his case before the Tribunal that ad hoc Rules for the post of Superintending Engineer, Executive Engineer, Assistant Executive Engineer and Assistant Engineer in the Rural Development Department were framed and notified by the Government as per G.O.Ms.No.15 Rural Development Department dated 25.01.2000 and the said Rule was given retrospective effect from 25.05.1998, the date on which separate Rural Development Department Engineering Wing was formed. As provided by the ad hoc Rules governing the post of Assistant Executive Engineer, the second Respondent possessed the degree in Civil Engineering and he has also worked as Assistant Engineer in Rural Development Department for a period exceeding five years and as such, he was fully qualified for promotion as Assistant Executive Engineer. 21. O.A.No.8813/1997 preferred by the employees possessing only Agricultural Engineering Degree, for promotion as Assistant Executive Engineer in the Rural Development Department was dismissed by the Tribunal as per order dated 07.11.2003. In view of the dismissal of the said Original Application, Rural Development Department was bound to consider the case of the petitioner and other employees who have satisfied the requirements for promotion to the post of Assistant Executive Engineer as per G.O.Ms.No.102 dated 25.05.1998. In the said circumstances, the petitioner has prayed for a direction to the Tribunal to promote him in the post of Assistant Executive Engineer. 22.The Tamil Nadu Administrative Tribunal as per order dated 16.03.2004 directed the Government and the Rural Development Department to consider the grant of promotion to the petitioner after preparing the panel. The said order is the subject matter of this Writ Petition. 23.The contention of the petitioner is similar as found in W.P.No.28434/2004 and his prayer is to set aside the Order of the Tribunal and to promote him as Assistant Executive Engineer by taking into consideration of his service in the Rural Development Department in the original post as categorized in G.O.No.102 dated 25.05.1998. Contention of the Government :- 24.In the counter affidavit filed on behalf of the Rural Development Department, the claim of the Writ Petitioners for absorption in the Rural Development Department de hors G.O.Ms.No.15 dated 25.01.2000 was disputed. 25.It was the case of the Department that consequent to the 73rd amendment to the Constitution of India, the Tamil Nadu Panchayats Act, 1994 was enacted and the said Act replaced the Tamil Nadu Panchayats Act, 1958. Due to increase in the number of schemes to be implemented, worth about Rs.15,000 crores every year, the Government took steps to create a separate Engineering Wing for the Rural Development Department. This was mainly on account of the fact that the District Engineer, Superintending Engineer and Chief Engineer of Highways and Rural Works Department failed to bestow their attention to the works of the Rural Development Department works on priority basis and they were mainly concerned with works in the Highways Department. It was also felt that the responsibility of achieving target and the authority for discipline and control of Engineers should be vested with the Director of Rural Development and Collectors and a decision was also taken to create additional technical posts on account of the large volume of works. 26.The Government as per G.O.Ms.No.263 Rural Development Department dated 27.12.1996 ordered for creation of the Engineering Wing headed by the Superintending Engineer (Rural Development) (with the power of the Chief Engineer in other departments) in the Directorate of Rural Department under the control of the Director of Rural Department. The Government have also ordered to create additional technical posts viz., 400 posts of Assistant Engineers in the Rural Development Department, 28 posts of Senior Draughting Officers, 71 posts of Junior Draughting Officers for the Engineering Wing of the Rural Development Department. Consequently, it was decided to take technical personnel on deputation basis from other departments like Highways and Rural Works Department, Public Works Department, Agricultural Engineering Department, Tamil Nadu Water Supply and Drainage Board and other allied technical department as temporary measure since promotion and direct recruitment would be a time consuming process. 27.The Government issued G.O.Ms.No.102 RD(E.IV) Department dated 25.05.1998 and the said order provided for placement of the existing staff of Highways Department on transfer of service to Rural Development Department at the disposal of the Director of Rural Development/Collector. 28.The 53 posts of Assistant Executive Engineers in 53 NREP Sub-Division manned by Highways Department staff before issue of Government Order was termed as "Original posts" and those 53 post were earmarked for personnel from Highways Department to avert reversion within the Highways Department. In para IV of the Government Order, instructions were issued to the Director of Rural Development to explore the possibility and report to the Government of permanently absorbing Assistant Engineers from other technical Departments giving them 1:1 weightage for service already put in by them in their respective departments and this would enable Rural Development Department to have officers of varying seniority. Pursuant to the said decision, options were sought for from the Assistant Engineers of various Departments and action was taken in Rural Development Department. With respect to the Assistant Executive Engineers, options were sought for and the Engineers have exercised their option through the Collector directly without the concurrence of their parent department. Since those options were not sent through their parent department, the options so received were referred to the parent department for remarks as per communication dated 09.09.2004. 29.Even though the Assistant Executive Engineers of other Departments were working in the Rural Development Department, their service was monitored by their parent Department and only transfer and posting within the Department was done by the Rural Development Department. The employees who were drawn from the Highways Department and other Departments were having their lien with their parent Departments and as and when they were promoted as Executive Engineers, they used to be relieved from the Rural Development Department. 30.Subsequently, the Government issued G.O.Ms.No.15 RD (E1) dated 25.01.2000 and the said Rule was in regard to Superintending Engineer / Executive Engineer / Assistant Executive Engineer and Assistant Engineer in Rural Development Department and there was no provision in the said recruitment Rule to absorb the Assistant Executive Engineers of other Departments in Rural Development Department. As per the Recruitment Rules framed under Article 309 of the Constitution of India, Assistant Engineer (RD), recruited directly and Junior Engineers/ Senior Draughting Officers alone are eligible for consideration for promotion to the post of Assistant Executive Engineer (RD) by drawing the panel in the ratio of 6:2:1. 31.It was also contended that the applicants joined the Rural Development Department only after the formation of Rural Development Engineering Wing on 01.06.1998 and as none of the Assistant Executive Engineers were in the service in any of the NREP Sub Division hitherto under the control of Highways Department, they cannot claim any right for permanent absorption and they were only on deputation terms in Rural Development Department. 32.With respect to the undertaking given in W.P.No.6153/1996, it was the contention of the Government that the said undertaking was only a temporary measure based on G.O.Ms.No.102 dated 25.05.1998 and in view of the Recruitment Rules framed by the Government in G.O.Ms.No.15 dated 25.01.2000, no relief could be claimed by the erstwhile Engineers of the Highways Department for permanent absorption in the Rural Development Department. 33.First batch of Assistant Engineers (RD) recruited in the year 1998 were eligible for promotion to the post of Assistant Executive Engineer (RD) as they have already completed five years of qualifying service in the feeder category, as provided under the Recruitment Rule, and it was only to grant promotion to the direct recruits in the Rural Development Department that the persons drawn from other technical department including the Highways were permitted to continue. The services of the Assistant Executive Engineers in the Rural Development Department drawn from other services have to be taken only as a transfer of service and they are not eligible for absorption in the absence of necessary prescription in the Recruitment Rules. 34.The order of the Government in G.O.Ms.No.102 RD (EIV) Dept. dated 25.05.1998 was explained by the Government as the one issued for exploring the possibilities for getting experienced hands and the same in no way permit those employees to claim absorption in the rural development Department. Claim of seniority on par with the Assistant Engineers directly recruited through the Service Commission was also disputed by the Rural Development Department, as according to