IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-11-2011 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN W.A.NOs.113, 207 & 208 of 2009 W.A.No.113 of 2009 1. V. Vivekanandan 2. V. Appadurai .. Appellants (Respondents 3 & 4 in W.P.34077/05 Vs. 1. S. Pannerselvam 2. T.G. Rajasekaran 3. K. Thangathurai 4. S. Sankaranarayanan 5. P. Natarajan 6. The Government of Tamil Nadu, Rep. by its Secretary, Highways Department, Fort St. George, Chennai 600 009. 7. The Chief Engineer (General), Highways Department, PWD Building, Chepauk, Chennai 600 005. 8. V. Ramachandran S/o.K. Veerasamy R8 impleaded as party respondent vide order dt. 16.6.10 made in M.P.No.1/10 in W.A.No.113/2009 .. Respondents (Petitioners 1 to 5 & Respondents 1 & 2 in W.P.34077/05 & 5th Respondent W.A.No.207 of 2009 U. Palaniappan .. Appellant (3rd Respondent in W.P.33735/05 https://hcservices.ecourts.gov.in/hcservices/ Vs. 1. S. Pannerselvam 2. T.G. Rajasekaran 3. K. Thangathurai 4. S. Sankaranarayanan 5. A. Samuel Ebinezar Jebarajan 6. The Secretary, The Government of Tamil Nadu, Highways Department, Fort St. George, Chennai 600 009. 7. The Chief Engineer (General), Highways Department, PWD Buildings, Chepauk, Chennai 600 005. .. Respondents (Petitioners 1 to 5 & Respondents 1 & 2 in W.P.33735/2005 W.A.No.208 of 2009 U. Palaniappan .. Appellant 3rd Respondent in W.P.39142/2005 Vs. 1. R. Abishekarajanathan 2. M.K. Gowthamaraja 3. M. Ambedkar 4. G. Rani 5. The Secretary, The Government of Tamil Nadu, Highways Department, Fort St. George, Chennai 600 009. 6. The Chief Engineer (General), Highways Department, PWD Buildings, Chepauk, Chennai 600 005. .. Respondents (Petitioners 1 to 4 & Respondents 1 & 2 in W.P.No.39142/2005) Appeals filed under Clause 15 of the Letters Patent against the common order of the learned single Judge in W.P.Nos.34077, 33735 and 39142 of 2005 respectively, dated 23.12.2008. These writ petitions filed under Article 226 of constitution of India to issue a writ of https://hcservices.ecourts.gov.in/hcservices/ Certiorarified Mandamus, calling for the records pertaining to the issue of the seniority list of Asst. Divisional Engineers of Highways Dept. as on 01.04.2004 published by the second respondent in his special Memo Nirvagam 1 (3)/1978776/2004-1/Dated 29.4.2004 culminating into the panel of Assistant Divisional Engineers approved in G.O. Ms. NO. 169 Highways Dept. dated 19.08.2005 and to quash the said seniority list published in the said special Memo No.Nivagam 1(3)/197876/2004-1/dated 29.4.2004 and to direct the first and second respondents to prepare the revised seniority list of Assistant Divisional Engineers as per the Special rules to Tamil Nadu Highways Engineering service and in accordance with the orders of the Hon'ble Tamil Nadu Administrative Tribunal dated 29.11.1996 in O.A.No.2186/1996 and orders of this Hon'ble Court dated 10.3.2004 in W.P.Nos.38438 & 38439/2003 and consequently revise the panel of Assistant Divisional Engineers fit for promotion as Divisional Engineers approved in G.O.Ms.No.169 High ways Department dated 19.8.2005 and accordingly issue promotions as Divisional Engineers. W.P. No.33735 of 2005: This petition filed under Article 226 of constitution of India to issue a writ of Certiorarified Mandamus,Calling for the records pertaining to issue of the seniority list of Assistant Divisional Engineers of Highways Department as on 01.04.2004 published by the Second Respondent in Special Memo No. Nirvagam 1 (3) / 197876 / 2004-1 / dated 29.04.2004 culminating into the panel of Assistant Divisional Engineers approved in G.O. Ms. NO. 169 Highways Dept. dated 19.08.2005 and to quash the said order dated 29.04.04 and to direct the first and second respondents to prepare the revised seniority list of Assistant Divisional Engineers applying the orders of Honourable Tamil Nadu Administrative Tribunal dated 29.11.1996 in O.A. No. 2186 of 1996 which has been confirmed by the orders dated 10.03.2004 of this Hon'ble Court in W.P.Nos.38438 & 38439 of 2003 in respect of the 3rd Respondent and like persons. For Appellants : Mr. Sriram Panchu in WA.113/2009 Senior Counsel for Mr.P.V. Balasubramaniam & P.Munusamy For Appellant : Mrs. Nalini Chidambaram in WA.Nos.207 & Senior Counsel for 208 of 2009 Mrs.C. Uma For Respondent-3 to 5: Mr. Vijay Narayan in WA.No.113/2009 Senior Counsel for & R1 to R4 in Mr.N. Subramanian WA.Nos.207 & 208/09 For Respondent-4 : Mr.V.T. Gopalan in WA.No.113/2009 Senior Counsel for Mr.M.A. Gowthaman https://hcservices.ecourts.gov.in/hcservices/ For Respondent-5 : Mr.R. Thiagarajan in WA.No.113/2009 Senior Counsel for Mr.M. Muthappan For Respondents 6&7 : Mr.S. Ramasamy in WA.No.113/2009 & Addl. Advocate General Respondents 5 & 6 in Assisted by Mr.G. Desingh WA.Nos.207 & 208/09 Special Govt. Pleader and 6 & 7 in W.A.207/09 COMMON JUDGMENT ELIPE DHARMA RAO, J Aggrieved by the order of the learned single Judge in interfering with the seniority list of the Assistant Divisional Engineers of the Highways Department, dated 29.4.2004, the promotees, have come forward with the present appeals. 2. The learned single Judge in the impugned order has narrated the entire background of facts leading to the litigation in detail and we feel it not necessary to reiterate the same once again, however, brief facts in order to understand the case are reproduced hereunder :- In the Tamil Nadu Highways Department, there were two services in respect of Engineers and Para Engineering Staff, viz., Tamil Nadu Highways Engineering Service and Tamil Nadu Highways Engineering Subordinate Service. The categories of Chief Engineer, Superintending Engineer, Divisional Engineer and Assistant Divisional Engineer initially fall under the Tamil Nadu Highways Engineering Service, whereas the other categories, viz., Assistant Engineer, Junior Engineer, Overseers, etc., fall under the Tamil Nadu Highways Engineering Subordinate Service. Subsequently, by G.O.Ms.No.807, Public Works Department, dated 24.05.1993, the category of Assistant Engineer was brought into Tamil Nadu Highways Engineering Service from the Tamil Nadu Highways Engineering Subordinate Service with retrospective effect from 17.2.1971. Promotion to the post of Divisional Engineers including Deputy Chief Engineers is from the post of Assistant Engineers. The post of Assistant Engineers is to be filled by direct recruitment or recruitment by transfer from Junior Engineers or Supervisors in the Tamil Nadu Highways Engineering Subordinate Service in the ratio of 3: 1 i.e., first three vacancies shall be filled or reserved to be filled by recruitment by transfer from permanent Junior Engineers and the fourth vacancy shall be filled by recruitment by transfer from among permanent supervisors of the Tamil Nadu Highways Engineering Service. 3. While the matter stood thus, the Department published seniority list of Assistant Engineers and Junior Engineers as on https://hcservices.ecourts.gov.in/hcservices/ 01.01.1993, dated 18.4.1994 and the list fit for the post of Assistant Divisional Engineers from the cadre of Assistant Engineer, dated 6.4.1995. The aforesaid Seniority List came to be challenged by an Assistant Engineer, who was subsequently re-designated as Assistant Divisional Engineer before the Tamil Nadu Administrative Tribunal on the ground that the respondents therein are juniors to him in the list of Assistant Engineers, which was done by the Department applying the rule of reservation and that application of Rule 12 of Special Rules to the promotion was erroneous. The Tribunal, by relying upon the decision of the Supreme Court in Ajit Singh Januja & others v. State of Punjab & others (JT 1996(2) SC 727) allowed the Original Application by observing as follows :- ". . . So, even though respondents 4 to 8, 10, 12 to 15 came to be promoted as Assistant Divisional Engineers earlier to the applicant in the panel of Assistant Divisional Engineers fit for promotion as Divisional Engineers, they cannot be placed above the applicant by virtue of the accelerated promotion in view of the reservation rule. Instead the rank has to be reckoned only on the basis of that given by the Tamil Nadu Public Service Commission when they were recruited as Assistant Engineers. Thus the applicant who is admittedly senior to respondents 4 to 9, 10 and 12 to 15 in the order of Assistant Engineer who will regain the seniority over them in the category of Assistant Divisional Engineer as their accelerated promotion as Assistant Divisional Engineer was only on account of application of the rule of reservation." 4. This decision of the Tribunal came to be challenged by the unsuccessful Assistant Engineers before the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.(3) 24455/96, which was dismissed by order dated 18.12.1996. Subsequent to the aforesaid decisions, the Department vide proceedings in G.O.Ms.No.78, dated 3.4.1998, approved the adhoc list of Assistant Engineers and Junior Engineers fit for temporary promotion as Assistant Divisional Engineer, whereunder the appellants in W.A.No.113 of 2009 were promoted as Assistant Divisional Engineers, however, subject to the implementation of the order passed in the earlier O.As. Thereafter, the seniority list of officers serving as Assistant Divisional Engineer (Highways) as on 1.4.2004, dated 29.4.2004, was issued. Subsequently, the Association of Tamil Nadu Highways Engineers, made a representation dated 6.7.2004 pointing out the irregularities in the seniority list of Assistant Divisional Engineers. Thereafter, vide order dated 19.8.2005 in G.O.(Ms) No.169, the Department approved the list of Assistant Divisional Engineers fit for promotion temporarily as Divisional Engineers in the Highways Department under General Rule 39(a)(i) of the Tamil Nadu State and Subordinate Service Rules. https://hcservices.ecourts.gov.in/hcservices/ 5. Aggrieved by the seniority list fit for the promotion of Assistant Divisional Engineers, dated 29.4.2004 and the subsequent seniority list fit for promotion to the post of Divisional Engineer, dated 19.8.2005, the Assistant Engineers, who were selected through Tamil Nadu Public Service Commission towards general category, filed the writ petitions mainly on the ground that they were appointed earlier to the appellants under general category and, since the appellants belong to Scheduled Caste, on the basis of the rule of reservation, they were promoted earlier to them. It is their specific claim that though such promotion was based on rule of reservation, that would not reverse the seniority in the promotional post of the seniors in the feeder category, who gained promotion subsequently. On the question of accelerated promotion and seniority, the learned single Judge by placing strong reliance upon the decisions of the Supreme Court in Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684, Ajit Singh Januja v. State of Punjab (1996) 2 SCC 715, R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745, Ajit Singh II v. State of Punjab (1999) 7 SCC 209, M. Nagaraj v. Union of India (2006) 8 SCC 212 and various other decisions factually observed as follows :- "65. Perusal of the service particulars show that Mr.R. Abishekarajan (sic. Abishekarajanathan) and Mr. Gowthamaraja, petitioners 1 and 2 in W.P.No.39142 of 2005, belonging to Schedule Caste Community were selected as Assistant Engineers in Highways Engineering Subordinate Service in the open competition during the year 1982 and subsequently appointed as Assistant Divisional Engineers by recruitment by transfer on 21.01.1991 and 01.05.1991 respectively, by applying Rule 12 of the Tamil Nadu Highways Engineering Service. It is further evident from the Tabular Column, the respondents, viz., Mr.U. Palanaiappan, (third respondent in W.P.No.33735 and 39142 of 2005) and Thiru.V. Vivekanandan and Thiru.V. Appadurai (respondents 3 and 4 in W.P.No.34047 of 2005) belonging to the Scheduled Caste Community, have been appointed to the post of Assistant Divisional Engineer on 12.05.1999, 16.06.1998 and 29.04.1998 respectively seven years later than the petitioners 1 and 2 in W.P.No.39142 of 2006. Even though Mr. Abeishkarajanathan and Mr.M.K. Gowthamaraja (Petitioners 1 and in W.P.No.39142 of 2006) belonging to the Scheduled Caste community, were appointed by recruitment by transfer to the post of Assistant Divisional Engineer, they have been assigned seniority in the post of Assistant Divisional Engineers at Sl.No.1204 and 1299 respectively, below the general cateogry candidates, following the Ajit Singh (I)'s case, without taking into consideration the date of their continuous service in the promotional post of Assistant Divisional Engineers. Whereas, the official respondents by applying a different https://hcservices.ecourts.gov.in/hcservices/ yardstick, in the case of Mr.U. Palaniappan (third respondent in W.P.No.33735 and 39142 of 2006) and Mr.V. Vivekanandan and Mr.V. Appadurai, respondents 3 and 4 in W.P.No.34077 of 2006, placed them above the general category candidates by applying rule of reservation as provided in Rule 12 of the Tamil Nadu Highways Engineering Rules, I do not find any plausible reason either in the counter affidavit of the respondents or in their submissions for the deviation, which is apparent on the face of the record." 6. The learned single Judge further proceeded to observe as follows:- "73. In view of the above, this Court of the considered view that the official respondents have failed to follow the dictum laid down by the Supreme Court in the above referred judgments and erroneously issued the seniority list of Assistant Divisional Engineers, Tamil Nadu Highways Engineering Service, by ignoring the principle of "catch up rule", vis-a-vis "inter-se seniority" of the seniors, who have gained promotion subsequently. The decision relied on by the learned counsel for the respondents in Chandravathi P.K., v. C.K. Saji reported in (2004) 3 SCC 734, is inapposite to the facts of the case." 7. Ultimately, the learned single Judge allowed the writ petitions by setting aside the seniority list dated 29.04.2004 and directed to prepare the revised seniority list of Assistant Divisional Engineers. Aggrieved by the aforesaid order, the present writ appeals have been preferred. 8. The Appellants in W.A.No.103 of 2009 had joined as Junior Engineers on 30.4.1985 and 29.4.1985 respectively in the Tamil Nadu Highways Engineering Subordinate Service and, subsequently, got promoted as Assistant Divisional Engineers on 03.4.1998 following the rule of reservation and further promoted as Divisional Engineer as per G.O.Ms.No.169, dated 19.8.2005, which was under challenge. They belong to Schedule Caste community. The respondents in the aforesaid Writ Appeal were initially appointed as Assistant Engineers temporarily and subsequently selected through Tamil Nadu Public Service Commission in 1982. The appellant in W.A.Nos.207 and 208 of 2009, namely, Thiru U. Palaniappan, a Diploma Holder in Engineering, got appointed as Junior Engineer in the Tamil Nadu Highways Engineering Subordinate Service on 13.04.1987 and as Assistant Divisional Engineer on 12.05.1999 by recruitment of transfer following rule of reservation. https://hcservices.ecourts.gov.in/hcservices/ 9. Mr. Sriram Panchu, learned Senior Counsel for the appellant, contended that the appellants and the private respondents belong to two different categories and services in the Engineering Service as the former were diploma holders, whereas the latter were Engineering graduates in a gazetted post. Therefore, according to the learned Senior Counsel, the services of the appellants and the respondents cannot be compared and the 'catch up' rule relied on by the learned single Judge following the decisions of the Supreme Court is not applicable to the facts of the present case. He further submitted that the aforesaid two streams merge for the first time only in the post of Assistant Divisional Engineer and if at all, a common seniority list could be drawn, the same could be done only at the level of Assistant Divisional Engineer and not in the other subordinate posts. He has also submitted that the promotions given to the appellants were not accelerated promotions on account of reservation, but were made following the Rule 9(b) of the services rules. Apart from the aforesaid contentions, the learned Senior Counsel has also submitted, by drawing our attention to Article 16(4-A) of the Constitution of India that the Constitution by amending Article 16(4), by 85th amendment, has protected the consequential seniority arising out of accelerated promotions and when such amendment is held to be valid and not ultra vires by the Supreme Court in M. Nagaraj's case (cited supra), the learned single Judge ought not to have allowed the writ petitions. 10. Mrs. Nalini Chidambaram, learned Senior Counsel appearing for the appellants in the connected Writ Appeals, contended that the private respondents are not the aggrieved parties as they have been promoted to the post of Assistant Divisional Engineer from the post of Assistant Engineers, whereas the appellants were recruited by transfer from Junior Engineer and if at all if there is any grievance only the general category Junior Engineers could file the writ proceedings. Learned Senior Counsel also reiterated the contentions raised in the other writ appeal that the principles of 'catch up' rule do not apply to the present case as the two categories do not belong to a common feeder post. Learned Senior Counsel has also contended that Rule 12 of the Tamil Nadu Highways Engineering Service Rules applies to the appointment of Assistant Divisional Engineer only by recruitment on transfer and not to the category of Junior Engineer as it falls under the Tamil Nadu Highways Engineering Subordinate Service. With regard to Article 16(4-A) of the Constitution, the learned Senior Counsel submitted that even assuming that the 'catch up' rule applies, Article 16(4-A) preserves the seniority of the appellants. 11. Mr. Vijay Narayan, learned Senior Counsel appearing for Respondents 3 to 5 in W.A.No.113 of 2009, reiterated once again the contentions raised before the learned single Judge. He stressed the contention that these respondents having been appointed as Assistant Engineers through the Tamil Nadu Public Service Commission as early https://hcservices.ecourts.gov.in/hcservices/ as in the year 1982 and they being seniors in the post of Assistant Engineers, the learned single Judge has rightly rejected the contentions of the appellants by relying on various decisions of the Supreme Court and the said reasoned order of the learned single Judge should not be interfered by this Court. In respect of application of Article 16(4-A) to the present case, the learned Senior Counsel contended that the power conferred under the aforesaid amendment has been exercised arbitrarily and therefore the appellants are not entitled to the protection available under Article 16(4-A). 12. Mr. Ramasamy, learned Addl. Advocate General, appearing for the State submitted that the order passed in O.A.No.2186 of 1996, which was confirmed by the Supreme Court, is not applicable to the appointments made in the Tamil Nadu Highways Engineering Subordinate Service by recruitment on transfer and it would be applicable only to the category of Assistant Engineers in the other service. 13. On a perusal of the entire materials placed on record and upon hearing all the parties, the point which arises for consideration is "whether the 'catch up' rule relied on by the learned single Judge in order to reject the claim of the appellants is applicable to the present case and whether there is any excessiveness to refuse applicability of Article 16(4-A) of the Constitution to the case on hand"? 14. It is not in dispute that there were two separate service rules among the engineering personnel in the Highways Department, viz., the Tamil Nadu Highways Engineering Service Rules and the Tamil Nadu Highways Engineering Subordinate Service Rules and, as per G.O.Ms.No.807, dated 24.5.1993, the categories of Assistant Engineer, Assistant Divisional Engineer, Divisional Engineer, Superintending Engineer and the Chief Engineer fell under the Tamil Nadu Highways Engineering Service Rules, whereas the categories of Junior Engineer, Supervisor, and other subordinate posts are governed by the Tamil Nadu Highways Engineering Subordinate Service Rules. In the present case, we are concerned with the seniority list fit for promotion to the post of Assistant Divisional Engineers, dated 29.4.2004. The service rules provide the method of recruitment to the post of Assistant Divisional Engineer. As per which, the post of Assistant Divisional Engineer shall be made from the categories of Assistant Engineer and Junior Engineer in the ratio of 3: 1 respectively. Rule 12 of the Tamil Nadu Highways Engineering Service Rules provides for Reservation of appointments. As per Rule 12, the rule of reservation of appointments shall apply to the appointment of Assistant Divisional Engineers by direct recruitment and recruitment by transfer separately and the appointment of Assistant Engineers by direct recruitment. In other words, the appointment of Assistant Divisional Engineers shall be made from the Assistant Engineers and Junior Engineers in the ratio of 3:1 respectively by applying the rule of reservation. https://hcservices.ecourts.gov.in/hcservices/ 15. In order to ascertain whether the 'catch up' rule is applicable to the present case, one has to go by the decisions rendered by the Honourable Supreme Court. The 'catch up' rule came to be applied by the Supreme Court first in the decision of Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684. In the aforesaid decision, after considering the decision in R.K. Sabharwal's case (1995) 2 SCC 745, regarding seniority between the general candidates and the reserved candidates, the Hon'ble Apex Court has held as follows :- "25. . . . Hence, the seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position. We have discussed hereinbefore the meaning of the expression ‘panel’ and held that in case of non-selection posts, no ‘panel’ is prepared or is necessary to be prepared. If so, the question arises, what did the circular/letter dated 31-8-1982 mean when it spoke of seniority being governed by the panel position? In our opinion, it should mean the panel prepared by the selecting authority at the time of selection for Grade ‘C’. It is the seniority in this panel which must be reflected in each of the higher grades. This means that while the rule of reservation gives accelerated promotion, it does not give the accelerated — or what may be called, the consequential — seniority.” It has been further observed: “29. . . . In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.” 16. The learned counsel appearing for the contesting Respondents mainly relied on the aforesaid decision, particularly the emphasised portion to contend that even when a scheduled caste candidate is promoted earlier than his senior general candidate, the general candidate would regain his seniority and such promotion to the scheduled caste candidate would not confer any seniority over the general candidate. https://hcservices.ecourts.gov.in/hcservices/ 17. The aforesaid view taken by the Supreme Court in Virpal Singh Chauhan's case was subsequently confirmed in Ajit Singh Januja v. State of Punjab (1996) 2 SCC 715. In the subsequent decision, the seniority of the reserved category candidates over the general category candidates was further diluted by observing as follows:- "16. We respectfully concur with the view in Union of India v. Virpal Singh Chauhan, that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated “consequential seniority”. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out above that when a Scheduled Caste/Tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis-à-vis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be