IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN WRIT PETITION No.23874 of 2004 & W.P.M.P.No.28950 of 2004 1. M. Natarajan 2. S. Sankaran 3. P. Paulraj 4. P. Narayanasamy 5. C. Sathyavasagam 6. S. Thangapandi 7. S. Kanaga Sabapathy 8. P. Shanmugam 9. P. Subramanian 10. S. Sankara Nainar 11. M. Isakki 12. M. Poolpandi 13. S. Sankara Subbu 14. D. Veerabagu 15. T. Vavasi Mohideen 16. R. Rangan 17. G. Shanmugasundaram 18. E. Sudalaikannu 19. K. Kumaresan Asari 20. S. Sankara Narayanan 21. S. Narayanan ..Petitioners Vs. 1. Secretary to Government Revenue Department Fort St. George Chennai-9. 2. Director of Survey and Settlements (Survey) PWD Complex Chepauk Chennai-5. https://hcservices.ecourts.gov.in/hcservices/ 3. Assistant Director of Survey and Land Records Thoothukudi District 4, South Raja Street Thoothukudi. 4. Assistant Director of Survey and Land Records Tirunelveli District Survey Unit, Palayamkottai Tirunelveli-2. 5. The Registrar The Tamil Nadu Administrative Tribunal Chennai-600 104. 6. S. Gurusamy 7. Tamil Nadu Survey Officers Union Thoothukudi District rep.by its President R. Subramanian RR 6 & 7 impleaded as per order dated 1.4.2008 WPMP Nos.274 & 275 of 2008 by PKMJ & KCJ .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue of a writ of Certiorarified Mandamus calling for the records relating to the impugned order in O.A.No.3626 of 1992 dated 30.10.2003 on the file of the 5th respondent and G.O.Ms.No.626, Revenue Department dated 16.4.1990 and G.O.Ms.No.851, Revenue Department dated 23.5.1990 on the file of the first respondent and quash the same in so far as the petitioners are concerned and consequently direct respondents 1 to 4 to regularise the services of the petitioners in the category of Surveyor as recommended by the second respondent in J-2/21322/91 dated 5.4.1991 and grant all consequential benefits. For Petitioners : Mr.P. Rajendran For Respondent : Mr.M. Dhandapani Spl.G.P. for RR1 to 4 Tribunal - R5 Mr.V. Manisekaran for RR6 & 7 --------- https://hcservices.ecourts.gov.in/hcservices/ O R D E R K.K.SASIDHARAN, J This writ petition is directed against the order dated 30.10.2003 in O.A.No.3626 of 1992 on the file of Tamil Nadu Administrative Tribunal, Chennai whereby and whereunder the Tribunal was pleased to dispose the original application preferred by the petitioners on the ground that the petitioners have already been regularized and therefore they have not suffered in any way in the matter of promotion. 2. Brief facts which are necessary for the disposal of the writ petition are as under: (i) The petitioners were appointed as Surveyor-cum-Draftsman in the year 1981 on consolidated pay. The selection was made by resorting to a transparent procedure from the list of candidates sponsored by the Employment Exchange by following the Rules of Reservation. (ii) The petitioners and other selected candidates were given survey training and they have been working in the survey line and they were also given promotion in the survey line as Firka Surveyor and Sub Inspector of Survey. (iii) Subsequently, in pursuance to the communication dated 26.6.1986 of Tamil Nadu Public Service Commission, the second respondent had submitted proposal to regularize the services of Surveyor/Draftsman from their date of appointment in the time scale of pay posts and as a follow up action, the first respondent, as per order in G.O.Ms.No.626, Revenue Department, dated 16.4.1990 regularized the services of 1055 employees including the petitioners. Another order in G.O.Ms.No.851, Revenue Department, dated 23.5.1990 has also been issued by the first respondent whereby the remaining employees were regularized. (iv) Even though the petitioners were appointed in the post of Surveyor/Draftsman and they have been later promoted in the survey line, they were directed to be regularized in the category of Draftsman. Therefore the petitioners have filed O.A.No.3626 of 1992 challenging G.O.Ms.Nos.626 and 851 dated 16.4.1990 and 23.5.1990 respectively in so far as the direction to regularize their service in the category of Draftsman and for a consequential direction to regularize their services in the category of Surveyor. https://hcservices.ecourts.gov.in/hcservices/ (v) In the counter affidavit filed by the first respondent in O.A.No.3626 of 1992 they have admitted the initial appointment of the petitioners as Surveyor-cum-Draftsman and the promotion given to them in the survey line. It was the further contention of the first respondent before the Tribunal that in as much as the services of the petitioners were regularized, there is no scope for any kind of grievance to be resolved in the original proceedings by the Tribunal. (vi) The Administrative Tribunal having found that the services of the petitioners were regularized and a seniority list has already been published, closed the very Original Application as per order dated 30.10.2003 which resulted in filing this writ petition at the instance of the unsuccessful applicants in the said Original Application. 3. Respondents 6 and 7 were impleaded in the writ petition on the basis of their application, as they apprehended that their seniority is likely to be affected in case of disposal of the writ petition in favour of the petitioners. 4. We have heard Thiru P.Rajendran, learned counsel for the petitioner; Thiru M. Dhandapani, learned Special Government Pleader appearing for respondents 1 to 4 and Thiru V. Manisekaran, learned counsel for respondents 6 and 7. 5. Learned counsel for the petitioner contended that the Administrative Tribunal grievously erred in closing the Original Application without adverting to the contention of the petitioners and without considering the substantial issues involved in the matter in as much as the petitioners, who were working in the survey line and who got promotion as Firka Surveyor and Sub Inspector of Survey were directed to be regularized in the post of Draftsman. 6. Per contra, the learned Special Government Pleader as well as the learned counsel appearing for respondents 6 and 7 while supporting the order of the Tribunal further contended that, in case the petitioners are directed to be regularized in the survey line, it would unsettle the seniority list drawn earlier thereby giving rise to practical difficulties in the functioning of the survey administration. 7. We have considered the submissions of the learned counsel on either side and we have also perused the Government Orders impugned in the original proceedings as well as the order of the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 8. It is not in dispute that the petitioners were initially appointed as Surveyor-cum-Draftsman and they were given necessary training and subsequently they were all promoted in the survey line as Firka Surveyor and later as Sub Inspector of Survey. By way of impugned Government Orders the respondents have taken a decision to regularize the services of the Surveyor-cum-Draftsman. Subsequently the matter was clarified by the Government as per proceedings dated 29.8.1990 as there were certain practical difficulties in the matter of regularization. The relevant portion of the clarification letter is extracted below: "If the procedure of getting options is adopted, it will create problem as a huge number of persons may give options to a particular category for which the required number of posts may not be available on the dates on which these persons were appointed in time scale of pay posts. Hence, it would be better that the services of all the persons now working as Sub Inspector of Survey/Firka Surveyor/Field Surveyor are reguarised in the category of Field Surveyor and the services of of the persons working as senior Draftsman/Land Records Draftsman/Draftsman are regularised in the category of Draftsman. This is because the persons appointed as Sub Inspector of Survey or Firka Surveyor would have been appointed only if they had passed the required tests for those posts. Likewise, persons appointed as Senior Draftsman/Land Records Draftsman would have been appointed only if they had passed the required test for those posts. All the Assistant Directors of Survey are requested to follow this procedure and to report of any problem arises on following this procedure." 9. It is evident from the letter sent by the second respondent to the Government that the department has underlined the necessity to regularize the services of employees in the survey line in the category of Surveyor. Para 4 of the said letter dated 5.4.1991 is reproduced below for better appreciation: "There are certain cases of persons now working as Sub Inspector of Survey/Firka Surveyor whose services have to be regularised in the category of Draftsman by virtue of their initial appointment as Draftsman and certain https://hcservices.ecourts.gov.in/hcservices/ cases of persons now working as Senior Draftsman/Land Records Draftsman whose services have to be regularised in the category of Surveyor by virtue of their initial appointment as Surveyor. In view of this it has so happened that the persons working as Sub Inspector Survey, Firka Surveyors have to be reverted as Draftsman and the persons working as Senior Draftsman, Land Records Draftsman have to be reverted as Surveyor. To over come this difficulty it would be better that the services of the persons working as Sub Inspector of Survey/Firka Surveyor are regularised in the category of Surveyor and the services of the persons working as Senior Draftsman/Land Records Draftsman are regularised in the category of Draftsman." 10. Indisputably, the petitioners were working as Surveyors initially and after survey training they were all promoted in the survey line, initially as Firka Inspector and subsequently as Sub Inspector of Survey. Now after so many years of continuous service, by virtue of the impugned Government Orders the petitioners were directed to be regularised in the category of Draftsman and consequently the petitioners become the junior most in the said category. The Administrative Tribunal, without taking note of the issues involved in such regularization of services of surveyors as Draftsman, closed the Original Application, without addressing itself to the real controversy. 11. In fact, the issue is squarely covered by the judgment of the Honourable Supreme Court dated 12.3.1996 in Civil Appeal Nos. 5139 - 61 of 1996 (A. MAHUDESWARAN & ORS. v. GOVERNMENT OF TAMIL NADU & ORS.) The issue in the said case pertains to regularization of Section Writers, who were appointed as Surveyors on consolidated pay consequent to the abolition of the post of Village Officer in the year 1982. They were regularized in the post of Surveyor initially and on the basis of certain clarification issued by the Government, subsequent proceedings dated 31.7.1992 came to be issued whereby re-regularisation was done, in and by which, the appellants before the Supreme Court became junior most. When the matter was taken up before the State Administrative Tribunal, the Tribunal favoured with regularization of their services in alternative vacancies and disposed the Original Application as per order dated 27.10.1983. The said order was challenged before the Hon'ble Supreme Court and the Apex Court after taking into consideration the Government clarification dated https://hcservices.ecourts.gov.in/hcservices/ 29.8.1990 which is also the basis for the present writ petition, ultimately allowed the Civil Appeal and observed thus:- "It is true that some of the candidates were working in the respective fields, namely, as Draftsman and Surveyors. It is seen that each one is independent of the other. The Survey Department consists of Surveyors, Field Surveyors, Firka Surveyors, Sub Inspectors, Deputy Inspectors, Inspectors and Assistant Directors. As far as the Draftsman Department is concerned, the hierarchical posts of the Draftsman are Draftsman, Senior Draftsman, Head Draftsman, Manager (Technical), Assistant Director (Maps) and Assistant Directors (Drawings). It would thus be seen that each is a distinct and separate service and one cannot be mingled with the other. When this nomenclature and service conditions are made different, there is no scope for intermingling the surveyors with the Draftsman. It would thus be seen that the regularization of the services of the appellants is consistent with the General Rules and also with the scheme in Special Rules. The Direction, therefore, to regularise the services of the persons in the rotational alternative vacancies would create hardship to the senior persons who have come into service much earlier to the other sources and who would be given seniority over the senior surveyors. The doctrine of legitimate expectation must be consistent within the operation of the statutory rules, orders or Act. For instance, promotion on the basis of merit and ability enables a more meritorious junior-most incumbent to steal a march over senior-most person in the service. In such a case, legitimate expectation gets back seat. In a converse case of promotion on the basis of seniority without reference to merit would generate legitimate expectation. When the principle https://hcservices.ecourts.gov.in/hcservices/ of merit is involved, the legitimate expectation dashes of its hopes inculcating spirit of competence and zeal to improve excellence. Regulation of legitimate expectation cannot be indiscriminately projected but required consideration in the setting and scenario of factual backdrop. Though a wrong principle of regularization by rotation generates expectation of regularization, it cannot be said to be legitimate nor be put in operation contrary to general and special rules. In other words, the view taken by the Tribunal is not consistent with the Scheme of the Special Rules and also of the General Rules. Therefore the orders are illegal. 12. Learned Counsel for the petitioners brought to our notice the order dated 10.7.2006 in W.P.No.3190 of 2004 of the Madurai Bench of this Court wherein a Mandamus was issued by the learned Judge to regularize the petitioners in the writ petition as Surveyors. The issue involved in the said matter is similar to the one in the present writ petition and we are also informed by the counsel that the said order has already been implemented by the Government as per G.O.Ms.No.593 dated 17.10.2007. 13. Hence, we are of the considered opinion that the proposed action to regularize the service of the petitioners as Draftsman would cause undue hardship and prejudice to the petitioners. By virtue of the proposal, the petitioners, who are fairly seniors in the survey line would become junior most in the Draftsman category. In the said circumstances, we are inclined to set aside the order of the Tamil Nadu Administrative Tribunal dated 30.10.2003 in O.A.No.3626 of 1992. The writ petition is allowed. The first respondent is directed to regularize the services of the petitioners in the category of Surveyors in the Survey and Land Records Department. Consequently, the connected WPMP is closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government Revenue Department Fort St. George Chennai-9. 2. The Director of Survey and Settlements (Survey) PWD Complex Chepauk Chennai-5. 3. The Assistant Director of Survey and Land Records Thoothukudi District 4, South Raja Street Thoothukudi. 4. The Assistant Director of Survey and Land Records Tirunelveli District Survey Unit, Palayamkottai Tirunelveli-2. 1 cc to Mr.P.Rajendran, Advocate, SR.25021 1 cc to Mr.V.Manisekaran, Advocate, SR.24865 1 cc to Government Pleader, SR.25231 vsv (co) dv/5.5. W.P.NO.23874 OF 2004 https://hcservices.ecourts.gov.in/hcservices/