IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.Nos.21127 of 2010 and 23167 of 2010 and M.P.Nos.1 & 2 of 2010 1. S.Raghunathan 2. A.Venkatesan 3. A.K.Rajadurai Velpandian 4. S.Chidambaram ... Petitioners in W.P.No.21127/10 V.Krishnasamy ... Petitioner in W.P.No.23167/10 Vs. 1. The State of Tamil Nadu Rep. By its Secretary to Government, Highways Department, Fort St. George, Chennai 600 009. 2. The Chief Engineer (General), now as Director General (Highways), Highways Department, Chepauk, Chennai 600 005. 3. The Secretary, Tamil Nadu Public Service Commission, Government Estate, Chennai 600 002. 4. The Secretary to the Government, Personnel & Administrative Reforms Dept., Fort St. George, Chennai – 9. ... Respondents 1 to 4 in both W.Ps. 5. V.E. Vairappan 6. V.Selvarajan 7. C.Subramanian 8. C.Brahma Rajan 9. K.Ravichandran 10.M.Devkumar 11.S.Balasubramanian 12.M.Govindarajan 13.C.S.Sundaram 14.L.Palanivelu 15.L.Antony Xavier https://hcservices.ecourts.gov.in/hcservices/ 16.V.Ramanathan 17.C.Jayaselvan 18.S.Arasappan 19.S.Ilango 20.S.Kalavanan 21.J.Nagarajan 22.R.Gnanasekaran 23.P.Arulselvan 24.M.G.Jeyakumar 25.R.Amirthalingam 26.M.Karunanidhi 27.M.Thirugnanasambandam 28.A.Prabharan 29.R.Sivasathivel 30.S.Ashok Kumar 31.Paneerselvam ... Respondents 5 to 15 and 17 to 31 in W.P.No.23167/2010 A.Raman (Deceased) ... R5 to 31 in W.P.No.21127/10 Respondent No.16 in W.P.23167/10 PRAYER IN W.P.No.21127 of 2010: Writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified mandamus or Writ or Direction in the nature of writ, calling for the records of the respondents 1 to 3 in connection with the impugned orders issued in (1) Lr.No.13058/HK2/2004-24, dated 27.08.2009 (2) Lr.No.60765/ Admn. 3(4)/2004 dated 29.05.2009 and (3) Lr.No.4997/CDC1/2009 dated 12.08.2010 respectively and quash the same and further direct the respondents 1 to 4 to promote the petitioners as Divisional Engineers based on the existing seniority and grant them all consequential service and monetary benefits. PRAYER IN W.P.No.23167 of 2010: Writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified mandamus or Writ or Direction in the nature of writ, calling for the entire records relating to the impugned concurrence letter No.4997, CD, C1/2009 dated 12.08.2010 by the third respondent in refixation of seniority of 37 Assistant Engineers who had been initially appointed through the G.O.Ms.No.528 Public Works Department dated 30.6.1995 and quash the same and consequently forbearing the respondents from passing any orders revising the seniority panel as on date 01.04.2010 in the post of ADE for promotion to the post of DE. For petitioners : Mr.K.Venkatramani, S.C. in both Wps. For Mr.S.N.Ravichandran For respondents : Mr.B.Vijay, G.A. 1 to 4 https://hcservices.ecourts.gov.in/hcservices/ For respondents : Mr.Vijaynarayanan, S.C. 8 & 25 for Mrs.Jothivani For respondents : Mr.A.R.L.Sundaresan, S.C. 10 & 25 for Mrs.A.L.Gandhimathi For other respondents : No appearance COMMON ORDER As the common question of law and facts are involved in both writ petitions, common order is being passed. For the sake of brevity, facts have been taken from W.P.No.21127 of 2010. 2. The petitioners in both writ petitions have invoked the writ jurisdiction of this Court to challenge the concurrence letter No.4997, CD, C1/2009 dated 17.08.2010 of the third respondent, in refixation of seniority of 37 Assistant Engineers, who had been initially appointed through the G.O.Ms.No.528 Public Works Department dated 30.6.1995 and consequently restraining the respondents 1 to 4 from passing any orders revising the seniority panel as on 01.04.2010 in the post of ADE for promotion to the post of DE. 2. In the affidavit filed in support of the W.P.No.21127 of 2010, it is averred by the petitioner that the petitioners are aggrieved by the recommendation made by the respondents 1 to 3 for revising the seniority of respondents 5 to 31, in view of the orders passed by this Court in W.P.No.21786 of 2004 dated 27.04.2009. 3. The petitioner No.1 is a Diploma Holder in Engineering and was appointed on compassionate ground as Junior Engineer in the Highways Department during the year 1977. Subsequently, his service was terminated. He was reappointed on 18.12.1977. The petitioner No.1 thereafter appeared in the competitive examination conducted by the Tamil Nadu Public Service Commission and on his being declared successful, was appointed as Junior Engineer on 14.03.1986. On acquiring degree in Engineering, he was re-designated as Assistant Engineer with effect from 15.03.1986. The service of the petitioner No.1 was regularised with effect from 15.03.1986 and he has successfully completed his probation on 22.03.1988. 4. The petitioners 2 to 4 herein, were Diploma holders in Engineering, who also participated in the selection for appointment to the post of Junior Engineer (Civil) by the Tamil Nadu Public Service Commission in the year 1986. They were appointed as Junior Engineers on 12.12.1986 and on acquiring B.E. Degree they were re- designated as Assistant Engineers. The service of the petitioners in the cadre of Junior Engineer was regularised with effect from 29.04.1987, 08.04.1987 and 09.04.1987 F.N. respectively. 5. The case of the petitioners is that though at the time of the process of selection, they were holding Diploma qualification, https://hcservices.ecourts.gov.in/hcservices/ but before the publication of the select list, they acquired B.E. Degree and therefore joined as Assistant Engineers in the year 1987. Their service has been counted for the purpose of seniority from 23.5.1987 and 10.04.1987 F.N. respectively. Their services was regularised in the cadre of Assistant Engineer from the date of their re-designation on acquiring Degree in Engineering. 6. The respondents 5 to 31 were temporarily appointed as Assistant Engineers in the Highways and Rural Works department under Rule 10(a)(i) of the General Rules by the Chief Engineer in the year 1971, 1984, 1985 and 1986. However, their services were terminated before expiry of two years for want of vacancies. They were subsequently re-appointed in the year 1987, 1988, 1989. 7. The case of the petitioners is that attempt of the respondents 5 to 31 to get regular appointment did not fructify in the subsequent years, but, they were allowed to continue in service. This resulted in filing of O.A.No.3115 of 1992 by the persons who were selected as Assistant Engineer but was not given appointment for want of vacancies, which in fact were occupied by the respondents 5 to 31. 8. The learned Tribunal vide order dated 21.01.1994 directed that though the temporary Assistant Engineers (respondents 5 to 31 herein) are liable to be replaced, by the regular candidates selected by Tamil Nadu Public Service Commission, but they were given one more chance of selection in relaxation of Rules, so as to enable them to qualify for regular appointment. 9. In compliance with the order passed by the learned Tribunal, the respondents 1 and 2 sought concurrence of the Tamil Nadu Public Service Commission, under Regulation 16(b) of the TNPSC Regulations, 1954 for regularising the services of the temporary Assistant Engineers. 10. The case of the 37 temporary Assistant Engineers including the respondents 5 to 31, was considered by the TNPSC, and they were allowed to be regularised, subject to the condition, that they would not claim any seniority and that they would be placed below the candidates selected by the TNPSC in their approved list of 1992. 11. In view of the recommendation made by the TNPSC, the Government issued G.O.Ms.No.528 Public Works(HK2) Department dated 30.06.1995 to the following effect: "6. In exercise of powers conferred by Rule 48 of the General Rules contained in Part II of the Tamil Nadu State and Subordinate Services in Volume I of Services Manual 1987, the Governor of https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu hereby relax those rules mentioned in Column 3 of the statement annexed to this order in their favour to the extent necessary, to enable them to be regularly appointed with effect from the dates mentioned in Column 2. The Government further direct that this regularization shall not confer any right on seniority and they direct this regularization shall not confer any right on seniority and they direct that 37 persons be placed below the candidates selected by Tamil Nadu Public Service Commission in the last selection (1992 approved list). They shall be placed in the same order as in the annexure. The Chief Engineer is requested to take action accordingly." 12. The case of the petitioners is that order of the Government dated 30.6.1995 referred to above, attained finality and therefore, Rule 35F of the General Rules now bar the revision of seniority, on expiry of three years, 13. It is also the case of the petitioners that representation made by the respondents 5 to 31 for revision of seniority in November 2001 after a period of three years was rejected on 5.4.2004. 14. The case of the petitioners is that order dated 5.4.2004 rejecting the representation was not challenged by the respondents 5 to 31 which has also attained finality. 15. This assertion is disputed by the respondents on the plea that the respondents 5 to 31 had agitated against the fixation of seniority, and being unsuccessful, filed W.P.No.21786 of 2004 to challenge the G.O.Ms.No.525 Highways Department dated 30.6.95 as also the rejection of their request by the Government. The first respondent filed counter to the writ petition stating that the respondents 5 to 31 were entitled to get seniority based on the Government order dated 30.6.1995, which specifically bar them from claiming seniority from the date of their initial appointment. 16. The writ petition filed by the respondents 5 to 31 was disposed off. The operative part order reads as under: "In view of the submission made by the learned counsels appearing on behalf of the petitioners, as well as the respondents, it is made clear that it is open to the petitioners to make representations to the first respondent, with regard to the reliefs sought for in the writ petition, within a period of four weeks from today and on receipt of such representations, the first https://hcservices.ecourts.gov.in/hcservices/ respondent is directed to pass appropriate orders thereon on merits and in accordance with law, after hearing those who may be adversely affected by such refixation of seniority, as prayed for by the petitioners, if found necessary, and by taking into consideration the recommendations made by the second and third respondents, on 01.03.2002 and 23.04.2002 respectively, within a period of four months from the date of receipt of a copy of this order." 17. The case of the petitioners is that inspite of the fact that specific directions were given to the respondents to pass an appropriate order on merit after hearing those who may be adversely affected by such refixation of seniority by the respondent, the respondents in violation of the direction of this Court, have passed the impugned order, recommending refixation of seniority by giving them benefit of their appointment on temporary basis. 18. The contention of the learned Senior counsel for the petitioners is disputed by the learned Senior counsel for the respondents 5 to 31, by contending that reading of the impugned order would show, that it is merely a proposal and not final order therefore the writ petition is premature. 19. It is also the contention of the learned Senior counsel for the respondents 5 to 31, that vide notice dated 7.12.2010, the petitioners were given personal hearing and in pursuance thereto, final order is yet to be passed. The order therefore stands complied with. 20. On consideration, I find force in the contention raised by the learned Senior counsel for the petitioners. The orders placed on record show, that vide letter dated 29.05.2009, the Chief Engineer (General), (A/c), Highways Department, Chepauk, Chennai – 5 made a positive recommendation to the Principal Secretary to Government, Highways and Minor Ports Department, Secretariat, Chennai 600 009, for revision of the seniority in favour of the respondents 5 to 31, by giving them in the year 1982 to 1986. The recommendations are also made for amending Select list of TNPSC. This recommendation is prior to giving hearing to the petitioner. 21. Even if this is taken as merely recommendation, by the Chief Engineer to the Government, in the subsequent letter dated 27.8.2009, the Secretary to the Government in a letter addressed to the Secretary, TNPSC sought approval by stating therein that the matter is to be considered on merit, in view of the recommendation made by the Chief Engineer, that the seniority of the persons be https://hcservices.ecourts.gov.in/hcservices/ refixed in accordance with the date of regular appointment. Specific recommendations are made in the order of the Government for grant of seniority from the date of regularisation so as to to place them between the year 1982 and 1986, after concurrence of TNPSC. 22. In response to the letter issued by the State Government vide letter dated 12.8.2010, the Secretary, TNPSC has given his concurrence, for refixation of seniority of the respondents 5 to 31, with effect from the date of their regularisation, by placing them between Sl.No.1982 and 1986, after hearing those who may be adversely affected by such fixation of seniority. 23. The proceedings referred to above clearly shows that after a positive view though termed as tentative view has been formed, that notice has been issued on 7.12.2010 calling upon the petitioners to file their objections if any, to proposed change of seniority and also appear for personal hearing. 24. The principle of natural justice are required to be followed in letter and spirit, therefore the petitioners were required to be heard before any opinion was formed. In the facts and circumstances referred to above shows that show cause notice to the petitioners is mere eye wash. 25. This Court while disposing of the W.P.No.21786 of 2004, has specifically mentioned that the claim of the respondents 5 to 31 could only be considered after hearing the persons who are likely to be affected meaning thereby that the petitioner required to be heard along with the respondents 5 to 31 before any opinion was formed by the State Government. It cannot be disputed that order refixing the seniority of the respondents 5 to 31 has so far not been passed. 26. For the reasons stated, the first respondent is directed to give one more hearing to the petitioners, as well as the respondents 5 to 31, and thereafter form an independent opinion, with regard to the claim raised by the respondents 5 to 31 by ignoring the recommendation made by the Chief Engineer (General), Highways Department, Chennai 600 005 to the State Government, or the recommendation of TNPSC and their approval in this regard. It will be appreciated, if a speaking order dealing with the contentions raised by the petitioners as well as the respondents 5 to 31 is passed, before taking any decision with regard to change of seniority. https://hcservices.ecourts.gov.in/hcservices/ 27. Both the writ petitions are disposed of accordingly. No costs. Connected miscellaneous petitions are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vaan To 1. The Secretary to Government, State of Tamil Nadu, Highways Department, Fort St. George, Chennai 600 009. 2. The Chief Engineer (General), now as Director General (Highways), Highways Department, Chepauk, Chennai 600 005. 3. The Secretary, Tamil Nadu Public Service Commission, Government Estate, Chennai 600 002. 4. The Secretary to the Government, Personnel & Administrative Reforms Dept., Fort St. George, Chennai – 9. 2 cc to M/s.C.Uma, Advocate, Sr.No.8793, 8794 2 cc to Mr.M.Muthappan, Advocate, Sr.No.8844 2 cc to M/s.AL.Ganthimathi, Advocate, Sr.No.8963,8964 1 cc to Mr.S.N.Ravichandran, Advocate, Sr.No.9054 1 cc to Government Pleader, Sr.No.8952 W.P.Nos.21127 of 2010 and 23167 of 2010 and M.P.Nos.1 & 2 of 2010 SV {CO} TP/10.2.2011. https://hcservices.ecourts.gov.in/hcservices/