IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.07.2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition Nos.14222 and 14407 of 2008 and M.P.Nos.2 to 4 of 2008 in W.P.Nos.14222 and 14407 of 2008 W.P.No.14222 of 2008:- 1.M.Rajesh 2.S.Vediyappan 3.P.Balaraman 4.D.Chandrasekaran 5.K.N.Senthil Kumar 6.D.Vijayan 7.K.Sekar 8.R.Kavitha 9.I.Yesu Essabilla 10.S.Amutha 11.A.Thangavelu 12.M.Vijayarangan 13.S.Vijayakumar 14.J.Ganapathy 15.A.Palani 16.M.Jagatheesh Badu 17.J.Manogaran 18.S.Ramasamy 19.R.Rangasamy 20.K.Seenuvasan 21.R.Yogishwaran 22.A.Elumalai 23.S.Ramesh 24. V. Bathmavathi 25. A. Alex Albert Raj 26. A. Selvi 27. V. Shanmugam 28. T. Dhanachelian 29. M. Subramaniyan 30. P. Prema 31. K. Kalaiselvi 32. D. Gopinath 33. M. Kavitha 34. R. Subramani 35. K. Momathi Kala https://hcservices.ecourts.gov.in/hcservices/ 36. E. Renugambal 37. N. Selvi 38. M. Baskaran 39. S. Yosuva 40 .V. Nagarajan 41. T. Arumuam 42. V. Baskaran 43. R. Jalal Batcha 44. S. Suresh Kamal 45. C. Kalpana 46. C. Sridhar 47. N. Naina Mohamed 48. L. Bhuvana 49. M.K. Srinivasan 50. D.Sujatha 51. B.Gopala Krishnan 52. S.Sugumaran 53. A.Saravana Kumar 54. K.Bamavathi 55. D.Santhi 56. C.Santhamoorthi 57. G.Arumugam 58. L.Jansi Rani 59. K.Jamunarani 60. K.Chandaramma 61. M.Munusamy 62. S.B.Sivaraman 63. S.Jaya Sekar 64. K.Hari Prabu 65. R.Vinayagam 66. D.Santhosh Kumar 67. V.Elumalai 68. M.Ganapathi 69. E.Sudhakaran 70. S.Ragupathy 71. P.Gopinathi 72. R.Poovannan 73. S.Thangadurai -Vs.- 1.The State of Tamil Nadu, Rep. by its Secretary to Government, Rural Development and Panchayat Raj, Fort St. George, Chennai - 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.The Director of Rural Development and Panchayat Raj, Panagal Building, No.1, Geen's Road, Saidapet, Chennai. 3.The District Collector Thiruvannamalai District, Thiruvannamalai. .. Respondents Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for the writ of certiorarified mandamus calling for the records of the 1st respondent pertaining to G.O.Ms.No.96 rural development and Panchayat Raj [E3] Department dt. 6.6.08 and the consequential proceedings having ref.No.D.O.Re.13983 / 2008 / EE dt. 6.6.08 and ROC.No.9000/2008/PA2 dt. 09.06.2008 of the 2nd and 3rd respondents respectively and quash the same and consequently direct the 1st respondent to extend the benefit of relaxation of Rule 2 of the Special Rules for the Tamil Nadu Panchayat Development Engineering in Favour of the Technical Assistants recruited through the out sourcing method under the NREGS and absorb them as over seers under the TN Panchayat Development Engineering Subordinate Service in Exercise of the Power under rule 48 of General Rules of the Tamil Nadu State and subordinate Services contained in part-II in volume-1 of the Tamil Nadu Services Manual 1977. WP. No.14407/08 1.A.Alageswaran, 2.T.Sakila, 3.S.Prabhu, 4.L.Narmatha, 5.P.Muthukrishnan, 6.A.Anbazhagan, 7.R.Jeya, 8.A.Jeyanthi, 9.P.T.Raja Marthandaboopathy, 10.K.Renganayaki, 11.M.Sundarapandi, 12.K.Amuthavalli, 13.A.Janaki, 14.K.Sasikala, 15.A.Amaravathi, 16.F.Magdalin Jeyanthi, 17.M.Menaka, 18. M.Kathiravan 19. M.Durairaju 20. S.A.Arun Prasad Jesuraja, https://hcservices.ecourts.gov.in/hcservices/ 21. P.Sivasakthi 22. K.Thiagarajan 23. J.Rajeswari 24. P.Veerakumar 25. B.Alagunachiyar 26. A.Tamilselvi 27. S.Vinothini 28. S.Mahalakshmi 29. P.Mohandoss 30. P.Gokulakannan 31. A.Mareeswaran 32. P.Kamaraj 33. S.Arul Hubert Kingsely 34. K.Kokila 35. K.Vennila 36. K.Sivamani 37. M.Lachumaraj 38. K.P.Raja 39. A.Bharathi 40. K.Saraswathi 41. B.Senthil Raj 42. K.Saravana Samy 43. I.Daisy Rani 44. C.Balasubramanian 45. M.Kamaraj, 46. K.Dharmaraj. 47.P.Annalakshmi 48.B.Selvaraj 49.M.Saravanan. 50.M.Dhanapal 51.S.Sharjas 52.Mr.K.Dharmaraj 53.P.M.Sangaralingam 54.V.Sakthivel ... Petitioners -vs- 1. The State of Tamilnadu Rep.by its Secretary to Government, Rural Development and Panchayat Raj Fort St.George, Chennai - 600 009 2. The Director of Rural Development and Panchayat Raj, Panagal Building, No.1, Geen's Road, Saidapet, Chennai https://hcservices.ecourts.gov.in/hcservices/ 3. The District Collector, Dindigul District, Dindigul ... Respondents Prayer in W.P.No.14407 of 2008:- Writ petition filed under Article 226 of the Constitution of India praying for the writ of certiorarified mandamus calling for the records of the 1st respondent pertaining to G.O.M.s.No.96 Rural Development and Panchayat Raj (E3) Department dt 6.6.2008 and the consequential proceedings having Ref.No.D.O. Re.13985/2008/EE dt 6.6.2008 passed by the 2nd respondent and quash the same and consequently direct the 1st respondent to extend the benefit of relaxation of rule 2 of the Special Rules for the Tamil Nadu Panchayat Development Engineering in favour of the Technical Assistants recruited through the outsourcing method under the NREGS and absorb them as Overseers under the TN Panchayat Development Engineering Subordinate Service in Exercise of the power under Rule 48 of General Rules of the Tamil Nadu State and Subordinate Services Contained in part-II in Volume-1 of the Tamil Nadu services Manual 1977. For petitioners in both WPs : Mrs.Nalini Chidambaram, SC for Mrs.C.Uma For Respondents in both WPs : Mr.P.S.Raman, Addl. Advocate General-I Assisted by Mrs.Lita Srinivasan, GA COMMON ORDER Though the miscellaneous petitions are listed today, by consent of both sides, the writ petitions are taken up for final disposal. 2.Alleging that they have been discriminated in the matter of public employment thereby violating Articles 14 and 16 of the Constitution of India, the petitioners who are diploma holders in Civil Engineering have come to this Court with these two writ petitions. The petitioners in W.P.No.14222 of 2008 belong to Tiruvannamalai District and the petitioners in W.P.No.14407 of 2008 belong to Dindigul District. 3.The Government of India with the avowed object of providing for enhancement of livelihood security of the households in rural areas of the country by providing atleast 100 days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work, enacted the National Rural Employment Guarantee Act of 2005 on 02.02.2006. As per Section 4 of the said act, the Government of Tamil Nadu launched a scheme https://hcservices.ecourts.gov.in/hcservices/ known as "Tamil Nadu Rural Employment Guarantee Scheme" (NREGS) w.e.f 02.02.2006 in six districts namely, Cuddalore, Villupuram, Dindigul, Thiruvannamalai, Nagapattinam and Sivaganga Districts in Tamil Nadu. The Government of Tamil Nadu issued G.O.Ms.No.153, Rural Development and Panchayat Raj (CGS I) Department, dated 20.10.2006 thereby sanctioning 180 posts of Computer Assistants, 383 posts of Technical Assistants at the rate of one such Technical Assistant for every ten village panchayats in the above six districts. The Government Order inter alia prescribed the procedure for appointing the Technical Assistants. The relevant portion of the said Government Order is as follows:- "After careful examination of the recommendation of the Director of Rural Development and Panchayat Raj, the Government sanction the following posts in the six districts viz., Cuddalore, Villupuram, Tirucannamalai, Nagapattinam, Dindigul and Sivaganga, where the Tamil Nadu Rural Employment Guarantee Scheme is under implementation till the scheme is in existence of the necessity of the post ceased whichever is earlier. (i)180 posts of Computer Assistants at the rate of one of Technical Assistants (two posts of Computer Assistant and two posts of Technical Assistant for each of the 90 blocks in six districts) (ii)383 posts of Technical Assistants at the rate of one for every ten village Panchayats in six districts. (iii)For Computer Assistants (two per block), the Collectors shall recruit the eligible persons by calling for a list from the Employment Exchange of through outstanding them on contract basis by prescribing a qualification of "Degree in Computer Applications or Computer Science". They shall be paid Rs.4,000/- per month on consolidated pay. (iv)The selection of two Technical Assistants per block and one for every ten village Panchayats shall be made by calling for the list from the Employment Exchange and conducting a simple test for them or by outsourcing them locally on contract basis and place them on consolidated pay of Rs.4,000/- per month. The qualification for the post of Technical Assistants shall be "Diploma/Degree in Civil Engineering". https://hcservices.ecourts.gov.in/hcservices/ 4.As per the said Government Order, Technical Assistants could be appointed by means of selection by calling for the list of eligible candidates from the respective local employment exchanges and conducting a simple test for them. This indicates that the mode of selection is on the basis of employment seniority and on the basis of merit. The Government Order also provides an alternative mode namely by outsourcing the Technical Assistants locally on contract basis and place them on consolidated pay of Rs.4,000/- per month. In this method, there is no selection of the candidates by the District Collector either on the basis of employment seniority or on the basis of comparative merits. The appointment is made by outsourcing agencies and the District Collectors have been empowered to negotiate with the outsourcing agencies and engage such Technical Assistants with required qualification namely Diploma or degree in Civil Engineering who are working with the said outsourcing agencies. 5.Admittedly, in all the districts except Thiruvannamalai District and Dindigul District, the recruitment for Technical Assistants was made through the first method namely, through employment exchange by the respective District Collectors. There were 120 posts of Technical Assistants created in the district of Thiruvannamalai and 59 posts of Technical Assistants in Dindigul District. But the District Collectors of Thiruvannamalai and Dindigul Districts did not choose to appoint Technical Assistants through employment exchange and instead, they adopted the second method of engaging Technical Assistants through outsourcing agencies. The petitioners were appointed by an outsourcing agency known as "Master Consultancy and Security Service" having its head office at Thiruvannamalai. From the call letters filed along with the typed set of papers it could be seen that "Master Consultancy and Security Service" conducted interview on various dates at the office of the said agency and appointed them. Thereafter, the petitioners in W.P.No.14222 of 2008 were engaged by the District Collector of Thiruvannamalai District as Technical Assistants. Similarly the petitioners in W.P.No.14407 of 2008 were engaged by the District Collector, Dindigul as Technical Assistants. It is to be remembered that the petitioners have got their names registered in the respective local employment exchanges. Since the District Collectors of Thiruvannamalai and Dindigul did not go for the first method through employment exchange, the petitioners allege that they could not be recruited through employment exchange under the first method. After such appointment, there was no difference between the Technical Assistants appointed through employment exchanges in other districts and the Technical Assistants appointed through outsourcing agencies in terms of qualification, tenure, salary, the nature of training and the nature of the work. https://hcservices.ecourts.gov.in/hcservices/ 6.While so, the Government of Tamil Nadu issued G.O.Ms.No.96 Rural Development and Panchayat Raj (E3) Department dated 06.06.2008 thereby disbanding all the 961 posts of Technical Assistants sanctioned under the National Rural Employment Guarantee Scheme in all the Districts including Thiruvannamalai and Dindigul Districts. The said Government Order was issued accepting the proposal of the Director of Rural Development and Panchayat Raj. The Director of Rural Development and Panchayat Raj in his proposal had stated that unlike the other governmental schemes that require the preparation of bills to be done at the most once in a month, the work bills are to be prepared under the National Rural Employment Guarantee scheme once in a week in each village panchayat and hence it is highly required to fill up the Additional posts of Overseers in order to ensure that the measurement of National Rural Employment Guarantee Scheme work is done without delay in all panchayats in the state besides the proper supervision of the other Rural Development Schemes. Therefore, the Director of Rural Development suggested that existing Technical Assistants can be disband and those who were appointed as Technical Assistants through employment exchange could be absorbed as Overseers. The Director has further stated that the Technical Assistants recruited through Employment Exchanges in various districts may be accommodated as Overseers for the reasons given below: "(i) The Technical Assistants employed in the Districts in National Rural Employment Guarantee Scheme are having the same minimum technical qualification of Diploma in Civil Engineering as is stipulated for the posts of Overseers and have also been recruited earlier through the Employment Exchanges itself. (ii) The Technical Assistants in National Rural Employment Guarantee Scheme are senior to the persons now proposed to be recruited through employment exchanges for the posts of Overseers. (iii) The present Technical Assistants are having a field working experience of 1-2 years in the Districts which will be advantageous for the district administration in effective implementation of Rural Development Schemes, whereas the new recruits from employment exchange will be raw hands." 7.The said proposal was accepted and the Government in the said Government Order directed to absorb 543 persons as Overseers in the Engineering wing of Rural Development and Panchayat Raj Department who were previously recruited under the scheme through employment exchanges. To enable the said absorption, the Tamil Nadu Panchayat https://hcservices.ecourts.gov.in/hcservices/ Development Engineering Subordinate Service Rules which governs the appointment and service conditions of Overseers were duly relaxed. 8.According to the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules, the mode of recruitment of Overseers in the Department of Rural Development and Panchayat Raj as per Rules 2 and 4(a) are as follows:- "2.Appointment:Appointment to the category specified in column (1) of the Table below shall be made by the methods specified in the corresponding entries in column (2) thereof THE TABLE Category (1) Methods of Appointments (2) Overseer (a) Director recruitment or (b) Promotion from the category 2 Road Inspector Director recruitment 4.Qualification (a) Age: No person shall be eligible for appointment for the posts of Overseer or Road Inspector by direct recruitment, if he has completed the age of 35 years on the first day of July of the year in which the selection for appointment to the posts are made. (b)Other Qualifications: No person shall be eligible for appointment to the category specified in column (1) of the Table below by the methods specified in the corresponding entries in column (2) thereof, unless he possesses the qualifications specified in the corresponding entries in column (3) thereof. https://hcservices.ecourts.gov.in/hcservices/ Category (1) Method of Appointment (2) Qualifications (3) Overseer Direct recruitment Promotion Must possess a Diploma in Civil Engineering (1)Must possess a Diploma in Civil Engineering and (2) Must have rendered service as Road Inspector for a period of not less than 15 years: Provided person appointed by promotion, must have passed the following tests. (a) The Account Test for PWD Officers and subordinates. (b)Paper IV of the Departmental Test for Officers of the Panchayat Development Department viz. Tamil Nadu Panchayats Act 1994 and the rules and orders issued there under The ratio for appointment to the category of Overseer by promotion and by direct recruitment shall be 1:3 and the following rotation shall be followed, while making appointment to the vacancies arising in that category: (1)Promotion (2)Direct recruitment (3)Direct recruitment (4)Direct recruitment https://hcservices.ecourts.gov.in/hcservices/ Category (1) Method of Appointment (2) Qualifications (3) Road Inspector Direct recruitment Must possess an I.T.I Certificate in Civil Draughtsmenship from a Government recognized Institute 9.By means of G.O.No.96 Rural Development and Panchayat Raj (E3) Department dated 06.06.2008, the Government relaxed the Rules 2 and 4, which reads as follows:- "8. The Government after detailed examination have decided to accept the proposal of the Director of Rural Development and Panchayat Raj and hereby order as follows: (a) The eligible 543 persons indicated in the Annexure I to this order recruited through employment exchange shall be absorbed as Overseas in the Engineering Wing of the Rural Development and Panchayat Raj Department. (b) The Rule 2 (relating to the modes of appointment) of the special rules for the Tamil Nadu Panchayat Development Engineering Subordinate Service shall be relaxed of the said 543 persons as a special case. (c) The Rule 4 (a) of the special rules for the Tamil Nadu Panchayat Development Engineering Subordinate Service which prescribes that the age for direct recruitment shall not exceed 40 years be relaxed in favour of 98 persons out of 543 persons who are aged above 40 years of age as on 01.07.2008 as indicated in the Annexure II to this order. (d) The Districts to which these newly appointed Overseers have been allotted are indicated in Annexure I to this order. The District Collectors concerned will issue the appointment orders as Overseers after once again satisfying themselves that the said persons were originally appointed as Technical Assistants only through the employment exchange; that they have at least a Diploma in Civil Engineering; and https://hcservices.ecourts.gov.in/hcservices/ about their community (in respect of SCs, STs, MBCs and DNCs and Bcs) (e) The Overseers now appointed shall be junior to all those Overseers appointed by direct recruitment through employment exchange or by promotion from the category of Road Inspectors prior to the date of issuance of this government order i.e.06.06.2008. (f) Their dates of joining as Technical Assistants in any District either under the National Rural Employment Guarantee Scheme or the Tsunami Rehabilitation Programmes – and where their dates of joining are the same, then their age – shall be the basis for the limited purpose of fixing the inter-se seniority among the bloc of 543 Overseers now appointment. Accordingly, their inter-se seniority at the district level is indicated in Annexure I to this order. The above principles shall also form the basis for determining their inter-se seniority at the State level, if required at any time in the future. Notwithstanding anything stated above, their previous service as Technical Assistants on consolidated pay basis will not be counted for service/pensionary benefits of any kind. They shall furnish an undertaking in triplicate to the District Collector agreeing to these stipulation before the appointment orders are issued to them. (g) The balance 130 posts of Overseers as detailed in the Annexure III to this order shall be filled up through employment exchange. (h) All the 961 posts of Technical Assistants sanctioned in National Rural Employment Guarantee Scheme Districts shall be disbanded. (i) The 95 sanctioned posts of Technical Assistants in Tsunami District Implementation Units may be continued, but filled up only through outsourcing from an engineering manpower Firm in the future. 9. In exercise of the powers conferred by rule 48 of General Rules of the Tamil Nadu State and Subordinate contained in part – II in volume https://hcservices.ecourts.gov.in/hcservices/ – I of the Tamil Nadu Services Manual 1977, the Governor of Tamil Nadu hereby relaxes the Rule 2 (relating to the modes of appointments) and Rule 4(a) (relating to age) of the Special Rules for the Tamil Nadu Panchayat Development Engineering Subordinate Service in favour of the persons indicated in Annexure – I and II to this order respectively, so as to enable them to be appointed as Overseers in the Tamil Nadu Panchayat Development Engineering Subordinate Service, with effect from the date of their joining duty." 10.The said relaxation is not applicable for the petitioners since they do not come within the 543 persons in whose favour the rules have been relaxed by the Government. So, the petitioners could not be absorbed as Overseers. In those circumstances, the petitioners have come forward with these two writ petitions challenging G.O.Ms.No.96 Rural Development and Panchayat Raj (E3) Department dated 06.06.2008 to the extent that the Government relaxes Rules 2 and 4 of the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules only in favour of 543 persons who were appointed through employment exchanges thereby depriving such relaxation in favour of the petitioners though they claim that they are equals to those 543 persons. 11.The main contention of the learned Senior Counsel appearing for the petitioners is that the impugned Government Order discriminates between 543 persons recruited through employment exchanges and the petitioners who were engaged through outsourcing agency and thus, it violates Articles 14 and 16 of the Constitution of India. 12.But the learned Additional Advocate General appearing for the respondents would refute the said argument by contending that the petitioners and those 543 persons in whose favour relaxation has been made are not equals and so, there is no question of infraction of Articles 14 and 16 of the Constitution of India. He would further submit that the petitioners are unequals to those 543 persons so they cannot claim any relaxation on par with those 543 persons. Thus, according to him, there is no infringement of fundamental rights and so, the writ petitions are liable to be dismissed. 13.At the outset, it is worthwhile to refer to the judgment of a Constitution Bench of the Hon'ble Supreme Court in Secretary, State of Karnataka and others v. Umadevi (3) (2006 (4) SCC 1), wherein it has been held thus. "The right to life protected by Article 21 of the Constitution of India would not include the right of employment. There is no fundamental right https://hcservices.ecourts.gov.in/hcservices/ in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution of India. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution of India are therefore overruled." 14.Applying the law laid down by the Hon'ble Supreme Court in Umadevi’s case (cited supra) if the claim of the petitioners is approached it is crystal clear that since they were not appointed through the regular scheme of appointment they do not have any right to claim that they should be absorbed as Overseers. But, what all that is contended is that when such relaxation has been given and such absorption has been made in the matter of other candidates who were appointed through employment exchanges, the petitioners alone are deprived of such benefit of relaxation which according to them is an infraction to Article 14 of the Constitution of India. But in my considered opinion, the said argument though attractive cannot be accepted for the following reasons:- The law is well settled that unequals cannot be treated with other equals. In the case on hand, in so far as the candidates appointed through employment exchanges numbering 543 persons are concerned there cannot be any dispute that they are equals among themselves and they constitutes one class. But the question is whether the petitioners could be treated as equals to them or not? For that, the learned Senior Counsel for the petitioners would make the following comparisons:- (a) They are equally qualified as all of them are not diploma holders in Civil Engineering; (b) They were all appointed under a single scheme though by adopting two different methods. (c) Same training was imparted together to all the Technical Assistants irrespectively. (d) The nature of work and the duty discharged by them were also one and the same. (e) The tenure and salary are also same. https://hcservices.ecourts.gov.in/hcservices/ 15.Let me now analyse as to whether the above comparisons ensures in favour of the petitioners. It is to be noticed that except educational qualification, in all other aspects, as rightly contended by the learned Additional Advocate General they do not stand par with the others. Firstly, the petitioners were not appointed by the Government namely, the District Collectors. A perusal of G.O.M.s.No.153 Rural Development and Panchayat Raj (CCS 1) Department dated 20.10.2006 would go to show that the District Collectors were empowered to engage Technical Assistants with required qualification through the outsourcing agencies. Interview letters produced along with the typed set of papers would indicate that these petitioners were called for interview and appointed as Technical Assistants only by the outsourcing agency namely "Master Consultancy and Security Service" at Thiruvannamalai. The method of selection by the Agency is not known. In terms of G.O.M.s.No.153 Rural Development and Panchayat Raj (CCS 1) Department dated 20.10.2006, the appointment through employment exchange was not made only on the basis of the employment seniority. The selection was made from among the candidates forwarded by the respective employment exchanges by conducting a small test to assess the merits. But no such merit was even tested in the matter of these petitioners when they were appointed by the outsourcing agency or when they were engaged by respective District Collectors. Thus the petitioners who were not appointed on the basis of