IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.04.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.2448 of 2007 and connected miscellaneous petitions. 1.R.K.Ravindran 2.K.Anbu 3.V.Rajkumar 4.S.Alagesan .. Petitioners vs. 1.The Government of Tamil Nadu rep. By the Secretary Public Works Department Fort St.George Chennai 600 009. 2.The Chief Engineer (General) Public Works Department Public Works Department Campus Chepauk, Chennai 600 005. 3.V.Sathuragiri 4.P.B.Mohan 5.V.Senthilkumar .. Respondents R4 & R5 impleaded as per order of this Court dated 12.03.2009 in WPMP.4 & 5 of 2007 Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein calling for the records pertaining to the issue of the impugned G.O(3D).No.56 Public Works (B2) Department dated 22.03.2002 on the file of the first respondent and quash the same and any further proceedings issued pursuant to the same and consequently direct the first and second respondents to reckon the third respondent as Assistant Engineer only based on the selection by Tamil Nadu Public Service commissioner for the year 1985-86 and reckon his seniority in the category of Assistant Engineer as assigned by the Tamil Nadu Public Service Commission. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.N.Subramani For respondents : Mr.K.Balasubramanian Spl.Govt.Pleader for R.1 & 2 Mr.Yashod Varadhan SC for Mr.S.Namasivayam for R.3 Mr.D.John Samuvel for R.4 & 5 ORDER The writ petition is directed against the order of the Government viz., G.O.(3D) No.56, Public Works (B2) Department dated 22.3.2002, by which the Government complied with the request of the third respondent based on the recommendations of the Chief Engineer (General), appointing him as a Junior Engineer with effect from 25.8.1982 on par with his junior Thiru B.N.Ramachandran and redesignating him as Assistant Engineer with effect from 13.12.1984, the date following the date of last examination leading to his acquiring B.E. degree by recruitment by transfer for the purpose of seniority in the categories, however, restricting his eligibility for arrears of pay and allowances as Junior Engineer from 25.8.1982 and ordering his redesignation as Assistant Engineer from 13.12.1984 instead of 9.8.1986 as per the earlier order dated 27.3.1991. 2. The petitioners, apart from respondents 3 to 5 are all engineering personnel in the Tamil Nadu Engineering Department, who are governed by the Special Rules to the Tamil Nadu Engineering Service as well as Special Rules to the Tamil Nadu Engineering Subordinate Service. It is stated that the category of Assistant Engineer and above up to Chief Engineer are covered under the Tamil Nadu Engineering Service, which is a State service and the categories of Junior Engineer, Draftsman and below are coming under the Tamil Nadu Engineering Subordinate Service. a) It is stated that the Assistant Engineer post was under the Tamil Nadu Engineering Subordinate Service up to 17.2.1971 and by virtue of G.O.Ms.No.1581 dated 11.9.1985, it was brought under the Tamil Nadu Engineering Service. According to the petitioners, the methods of recruitment for Assistant Engineer both prior to 1971 and under the Tamil Nadu Engineering Service after 17.2.1971 are, direct recruitment through Tamil Nadu Public Service Commission (in short, "TNPSC") and recruitment by transfer from Junior Engineer possessing B.E. degree. b) It is stated that prior to 11.9.1985, the Junior Engineers with B.E. degree were designated as Assistant Engineers and from 2.8.1980 as per G.O.Ms.No.31 dated 6.1.1983, even the Draftsman Grade II and Grade III with B.E. degree were eligible for appointment as Assistant Engineer by way of open competition through TNPSC. It is stated that prior to issuance of G.O.Ms.No.294, Public Works Department dated 22.2.1977, the Junior Engineers were known as https://hcservices.ecourts.gov.in/hcservices/ Supervisors while the Assistant Engineers were termed as Junior Engineers and Assistant Executive Engineers were called as Assistant Engineers. c) The methods of recruitment for the post of Junior Engineer as per rule 2 of Special Rules to the Tamil Nadu Engineering Subordinate Service prior to 22.12.1986 were by way of promotion from Overseers or Technical Assistants or Draftsmen Grades I, II and III after rendering a service of 4 years in the respective categories and by direct recruitment if no qualified and suitable candidates are available by promotion and by transfer from any other service, for special reasons. By subsequent amendments in G.O.Ms.No.3037 PWD dated 22.12.1986, Draftsman Grade III were removed from the feeder categories for the post of Junior Engineer. d) It is the case of the petitioners that the third respondent was originally appointed as Draftsman Grade III on 10.4.1978 and subsequently promoted as Draftsman Grade II on 4.9.1981 and for the purpose of regular selection as Junior Engineer, he appeared before the TNPSC and got selected and joined as Junior Engineer on 8.8.1986 and he acquired his B.E. degree in the meantime during 1984 and applied to TNPSC for selection as Assistant Engineer during 1985-86 and he was selected through TNPSC with rank at 393rd position, however, he could not be appointed as Assistant Engineer for want of vacancy. He was ultimately accommodated as Assistant Engineer in 1989. Therefore, according to the petitioners, the third respondent was never appointed as Assistant Engineer before 1989. e) It is seen that after regular appointment as Assistant Engineer in 1989, he represented that he should be redesignated as Assistant Engineer with effect from 13.12.1984 by which time, he completed his B.E. degree or from 9.8.1986 the next day of his joining duty as Junior Engineer. The Government by letter dated 27.3.1991, accepted the said representation of the third respondent and directed for his redesignation as Assistant Engineer with effect from 9.8.1986. However, it is stated by the petitioners that his seniority was fixed in the category of Assistant Engineer only as per the rank given by TNPSC for the year 1985-86 in accordance with rule 35(a) of General Rules. f) According to the petitioners, the third respondent’s redesignation as Assistant Engineer with effect from 9.8.1986 is illegal since after 11.9.1995 the category of Assistant Engineer was brought under the State Service as per G.O.Ms.No.1581 dated 11.9.1985, by which appointment to the post of Assistant Engineer can be done only by way of transfer by drawing panel by following the procedures contemplated under rule 4(a) of General Rules. Therefore, according to the petitioners, the third respondent can be reckoned as Assistant Engineer only as per selection by TNPSC which was in 1985- 86. https://hcservices.ecourts.gov.in/hcservices/ g) It is stated that after 10 years, the third respondent made another representation on 28.8.2001 requesting that he should be promoted as Junior Engineer from 25.8.1982, the date on which his junior Thiru B.N.Ramachandran was promoted as Junior Engineer and be redesignated as Assistant Engineer with effect from 13.12.1984, the day following the last date of his B.E. degree examination and that was favourably considered by the second respondent, the Chief Engineer and recommended to the first respondent, who passed the impugned Government Order dated 22.3.2002, promoting the third respondent as Junior Engineer from 25.8.1982 viz., the date on which his junior B.N.Ramachandran was promoted as Junior Engineer and also redesignating him as Assistant Engineer with effect from 13.12.1984, the day following the last date of his B.E. degree examination. 3. According to the petitioners, since the Government had not published the seniority list of Assistant Engineers after the year 1988, they were not aware of the redesignation of the third respondent as Assistant Engineer and they came to know about the promotion of the third respondent only from the classified list of Assistant Executive Engineers published by the second respondent during April, 2006, after a gap of 9 years and thereafter, they filed the present writ petition. It is the case of the petitioners that B.N.Ramachandran and others were not only appointed as Work Assistants through Employment Exchange, but also made as Draftsman Grade III on emergency basis, which itself is invalid under the Tamil Nadu Engineering Subordinate Service Rules and their appointment as Draftsman Grade III was illegal and the regularization of the same by the Secretary to Government is not proper and without jurisdiction and the regularization of illegal appointment cannot confer any benefit and therefore, according to the petitioners, the case of B.N.Ramachandran cannot be taken as yardstick for the purpose of conferring benefit on the third respondent. 4. According to the petitioners, B.N.Ramachandran can claim regular appointment in the category of Junior Engineer only from the date of issue of order viz., 8.12.1988 and he should be placed in the rank below the Junior Engineers already in service on 8.12.1988. It is stated that after 11.9.1985,when the Tamil Nadu Engineering Service was formulated, by taking away from the Tamil Nadu Engineering Subordinate Service the post of Assistant Engineer, the concept of redesignation was removed and the Junior Engineers can be appointed as Assistant Engineers only by recruitment by transfer as per the procedure under rule 4(a) of the General Rules. Therefore, according to the petitioners, the third respondent having been rightly appointed as Junior Engineer on 8.8.1986, after selection by TNPSC, cannot be automatically redesignated as Assistant Engineer and therefore, the redesignation as per G.O.(3D) No.56, Public Works Department, dated 22.3.2002, is void ab initio. https://hcservices.ecourts.gov.in/hcservices/ 5. It is stated that the petitioners 1 to 3 were temporarily appointed as Assistant Engineers and selected by TNPSC for the years 1983-85 and got regularized from the initial dates of joining viz., 27.7.1983, 31.1.1984 and 15.2.1982, much earlier to 13.12.1984 the date from which the seniority of the third respondent was ordered to be reckoned. It is stated that the 4th petitioner was selected by TNPSC in the year 1985-86 and he got 14th rank in the selection, whereas the third respondent got only 393rd rank in the same selection and therefore, it is not proper to fix the third respondent above the 4th petitioner. It is stated that the Government issued a letter dated 27.3.1991, reckoning the seniority of the third respondent in the category of Assistant Engineer from the date of selection by TNPSC in the year 1986 and reviewing this order by the first respondent leading to the issue of impugned Government Order to reckon the seniority of the third respondent from 13.12.1984, is illegal. The impugned order is challenged by the petitioners on the above said grounds. 6. In the counter affidavit filed by the first and second respondents, it is stated that the third respondent was appointed as Junior Engineer on par with his junior B.N.Ramachandran with effect from 25.08.1982 and he was considered in accordance with Rule 35(aa) of the General Rules of the Tamil Nadu State and Subordinate Service to redesignate him as Assistant Engineer with effect from 13.12.1984, viz., from the day following the last date of examination of passing of B.E., degree in accordance with Rule 2(a)(5) and Rule 5 of the Special Rules for the Tamil Nadu Engineering Service. a) It is stated that placing of the third respondent in that manner is under the provisions of Rule 2 under Fundamental Rules 26(a) and also in accordance with the Rules 2(a)(5) and 5 of the Special Rules for the Tamil Nadu Engineering Service, and those rules are statutory rules framed under Article 309 of the Constitution of India and hence, there is no illegality. b) It is stated that the post of Junior Engineer, now redesignated as Assistant Engineer had been raised to gazetted rank without any increase in emoluments and that was given retrospective effect from 17.02.1971, by amending the Service Rules by order dated 11.09.1985. Before the issue of amendments, the post of Supervisor (now Junior Engineer) and Junior Engineer (now Assistant Engineer) were coming under the Tamil Nadu Engineering Subordinate Service. c) It is stated by the respondents that the method of appointment to the post of Supervisor, presently called as Junior Engineer was by direct recruitment or promotion from Overseers or from Head Draughtsman or from Civil Draughtsman Grade I, II and III https://hcservices.ecourts.gov.in/hcservices/ or recruitment by transfer from Municipal Engineer Grade III of the Tamil Nadu Municipal Engineering Subordinate Service or from any other service. d) Before the issuance of G.O.(Ms)No.1581 Public Works Department dated 11.09.1985, the Supervisors (now Junior Engineers) possessing degree in Engineering were designated as Junior Engineers (now Assistant Engineers). Regarding the appointment of Junior Engineer (now Assistant Engineer) from the category of Draughting Officials, the Government in G.O.(Ms)No.31 Public Works Department dated 06.01.1983 issued orders amending the rules to the effect that the holder of the post of Draftsman Grade I and Head Draftsmen possessing certificate in institution Examination or B.E., degree shall be eligible for appointment as Junior Engineer (now Assistant Engineer), if he has rendered service not less than three years. e) In view of the change in nomenclature as per G.O.(Ms) No.1582 Public Works Department dated 11.09.1985 with retrospective effect from 22.02.1977, the methods of appointment to the post of Assistant Engineer are, direct recruitment or recruitment by transfer from the Junior Engineers, Overseer and Civil Draftsman in Tamil Nadu Engineering Subordinate Service. f) It is also stated that prior to 22.12.1986, viz., before the date of issue of amendments to the Special Rules of Tamil Nadu Engineering Subordinate Service, the categories of Overseers or Head Draftsman or Civil Draftsman Grade I, II and III were eligible for promotion to the post of Supervisor (now Junior Engineer) and after 22.12.1986, the categories of Overseers, Technical Assistants and Draftsman Grade II were specified as eligible categories for promotion to the post of Junior Engineer. g) It is stated that even though the third respondent was got selected through TNPSC as Assistant Engineer during 1985-1986, no posting order appointing him as Assistant Engineer was issued till October, 1990 for want of vacancy. He has not lost his lien in the post of Junior Engineer, since he has not joined as Assistant Engineer, based on the TNPSC selection and therefore, he has applied for redesignation as Assistant Engineer either from 13.12.1984, viz., the date following the last date of B.E., degree examination. The Government has correctly considered the request of the third respondent and redesignated him as Junior Engineer with effect from 09.08.1986, which is the next date of his joining as Junior Engineer in Public Works Department in accordance with the statutory rules. h) The question of drawing a panel in the matter of redesignation regarding the appointment of Assistant Engineer by recruitment by transfer from the post of Junior Engineer on acquiring B.E., degree does not arise, since the individuals were allowed to work in the same station and to do the same work. i) As per Rule 35(aa) of the General Rules of the Tamil Nadu State and Subordinate Services, when a junior appointed by a https://hcservices.ecourts.gov.in/hcservices/ particular method of recruitment, happens to be appointed to another service and category earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category on the same day on which the junior was so appointed. j) As per the above said provision, the third respondent was appointed as Junior Engineer with effect from 25.08.1982, that is from the date on which his junior B.N.Ramachandran was appointed as Junior Engineer by regularizing the services in the post of Junior Engineer. It is stated that the redesignation of the third respondent was in accordance with Rule 5 of the Special Rules for the Tamil Nadu Engineering Service and Rule 2 under Rule 26(a) of the Fundamental Rules. k) It is stated that inter-se seniority of the third respondent as 39A in the 1999-2000 panel fit for promotion/appointment as Assistant Executive Engineer was issued on 01.10.2002 and the copy of the order was also communicated to the all senior persons to the junior most person included in the approved panel and that was also published in the Tamil Nadu Government gazette dated 06.11.2002, however, the petitioners approached this Court belatedly only in the year 2007. l) It is stated that B.N.Ramachandran was initially appointed as Work Assistant and the nomenclature was subsequently changed as Technical Assistant. The said B.N.Ramachandran was appointed as Draftsman Grade III from the post of Technical Assistant and there was no relaxation of rules required. However, it is stated that by G.O.Ms.No.1957 Public Works Department dated 08.12.1988, the services of B.N.Ramachandran were regularized in the post of Junior Engineer and the relevant rules were relaxed by the Governor of Tamil Nadu in exercise of the powers conferred under Rule 48 of the General Rules for the Tamil Nadu State and Subordinate Services. Therefore, the appointment, regularization and promotion were ordered only as per the rules and there was no illegality in the appointment to any post. m) The appointment of the third respondent on par with his junior B.N.Ramanchandran was made in accordance with Rule 35 (aa) of the General Rules for the Tamil Nadu State and Subordinate Services. The last date of examination of B.E. degree of the third respondent was 12.12.1984 and as per Rule 5 of the Special Rules of the Tamil Nadu Engineering Services, the third respondent was considered as Assistant Engineer from the post of Junior Engineer by recruitment by transfer in accordance with the impugned Government Order. There is no suppression and in the impugned Government Order itself it was explained clearly that there is no mistake involved in this matter and according to the respondents, the impugned Government Order does not suffer from any illegality. https://hcservices.ecourts.gov.in/hcservices/ 7. The main ground on which the petitioners who are stated to have been temporarily appointed as Assistant Engineers by the TNPSC in the year 1983-85 and the 4th petitioner who is stated to have been selected in the year 1985-86, is that the conferment of benefit on the third respondent as Junior Engineer from 25.08.1982 and Assistant Engineer from 13.12.1984, based on his junior B.N.Ramanchandran, is not proper due to the reason that the said regularization of B.N.Ramachandran and his appointment as Draftsman Grade III itself is illegal and the Government is not competent to make such illegal appointment, and therefore, according to the petitioners when the appointment of the said B.N.Ramachandran as Draftsman Grade III is illegal, such illegal order cannot be the basis for the purpose of conferring benefits on the third respondent and therefore, the third respondent, having been selected through TNPSC in the year 1985-86 should have been fixed only as per the seniority assigned by the TNPSC and therefore, the impugned order revising the same and conferring the benefit of promotion on the third respondent as Assistant Engineer from 13.12.1984 and Junior Engineer with effect from 25.02.1982 is not valid. 8. It is not in dispute that acquiring of B.E. degree by the petitioners was in 1984 and as per the Rules, when a Junior Engineer obtained B.E. degree, he is eligible for the post of Assistant Engineer, which fact is also not in dispute. On the face of it, I am of the considered view that the petitioners cannot question the validity or otherwise of the appointment of B.N.Ramachandran at this later point of time. B.N.Ramachandran, who is admittedly junior to the third respondent has been conferred promotion and that cannot be a ground for the petitioners to say that B.N.Ramanchandran’s appointment should be set aside as illegal. In any event, at this late point of time, it is certainly not open to the petitioners to question the appointment of B.N.Ramachandran at all. Moreover, as stated correctly by the respondents, the benefit conferred on the third respondent was in accordance with Rule 35(aa) of the General Rules for the Tamil Nadu State and Subordinate Services, which is a statutory rule framed under Article 309 of the Constitution of India. 9. Further, when it is the categorical case of the first and second respondents in the counter affidavit that the panel was published in the Government gazette on 06.11.2002, the petitioners cannot turn around and say that they were aware of the position of the third respondent only in the year 2000. In any event, the petitioners having been aware of the position in the year 2000, have chosen to approach this Court only in the year 2007 and there is no proper explanation offered for such delay of seven years and I am of the considered view that the delay from 2000 to 2007 has to be necessarily attributable to the conduct of the petitioners. The petitioners having not challenged the appointment of https://hcservices.ecourts.gov.in/hcservices/ B.N.Ramachandran, as Draftsman Grade III, cannot now question the appointment of the third respondent as illegal. In any event, the conferment of benefit given to the third respondent under the impugned order is not depending upon the validity of appointment of B.N.Ramachandran. Even assuming that the said B.N.Ramachandran has not completed four years of service, the fact remains that he is junior to the third respondent and therefore, the conferment of benefit given to the third respondent under Rule 35 (aa) of the General Rules for the Tamil Nadu State and Subordinate Services, has to be taken as a rectification of mistake as per Rule 35(f). 10. The conduct of the petitioners in questioning the benefit conferred on the third respondent which can only be considered as a rectification of mistake amounts to claiming negative equality, is not permissible under Article 14 of the Constitution of India. If the petitioners are entitled for certain benefits on their own right and claim right as per Article 14 of the Constitution of India, the same can be considered to be a positive equality. But, on the facts of the present case, by relying upon the appointment of some third parties, questioning the rectification of mistake done for appointment of the third respondent, in my considered view, is not correct, for the simple reason that Article 14 guarantees equality before law and not equality in subverting law and if the petitioners are entitled to, they can make a justifiable claim by positive conduct. That was also the view expressed in a land acquisition case by the Hon’ble Apex Court in Bondu Ramaswamy vs. Bangalore Development Authority (2010 (7) SCC 129). Therefore, the reliance placed on the above said judgment by the learned counsel for the petitioners is not applicable to the facts of the present case. Further, one cannot presume that the appointment of B.N.Ramachandran as Draftsman Grade III is void unless the same is declared so by the competent Court or by the Department by applying its mind. 11. On record, it is seen that the third respondent has joined the Public Works Department as Draftsman Grade III Under 10(a)(1) on 10.04.1978 and at that time, he was at 780A in seniority and he was promoted as Draftsman Grade II on 04.09.1981. However, B.N.Ramachandran was appointed as Draftsman Grade III on 25.08.1978 with his seniority at 883B, which is subsequent to the date of appointment of the third respondent and he was temporarily promoted on 27.6.81 as Draughtsman Grade II and after completion of four years of Draftsman service, the said B.N.Ramachandran was regularized as Junior Engineer on 25.08.1982 while the third respondent acquired the Engineering degree on 12.12.1984 and the third respondent’s appointment through TNPSC as Junior Engineer was based on the selection of the year 1984 and his posting was not given because of want of vacancy and therefore, there is no fault on the part of the respondents and therefore, the conferment of benefit given to the https://hcservices.ecourts.gov.in/hcservices/ third respondent with effect from 12.12.1984 in the category of Assistant Engineer is based on the Rules, and he is working as Executive Engineer in the Department as on date. 12. The judgment of the Supreme Court in Direct Recruit Class II Engineering Officers' Association vs. State of Maharastra (1990 (2) SCC 715) on which reliance was placed by the learned counsel for the petitioners, has no application to the facts of the present case. That was a case relating to inter se promotion among direct recruitees and promotees and the Rule governing the said case is relating to the quota rule, which has no application to the