IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 15.07.2011 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition Nos.32062 to 32064/04 & 6457 and 6458 of 2005 M.Sivashanmugam R.Sakthivelan N.Prabhakaran S.S.Baskaran P.T.Mohan ... Petrs. in Wps.32062 to 32064 of 2004 M.R.Kendra Devi ... Petrs. in Wps.6457 and 6458 of 2005 vs. 1. The Government of Tamilnadu, rep. By its Secretary, Highways Department, Fort St. George, Chennai 600 009. 2. Government of Tamil Nadu, rep. By its Secretary, Labour and Employment Department, Fort St. George, Chennai 600 009. 3. Tamil Nadu Public Service Commission, rep. By its Secretary, Chennai 600 002. 4. The Chief Engineer (General), Highways Department, Chepauk, Chennai 600 005. 5.R.Sundaramurty 6.G.Thatchinamoorthy 7.S.Karthikeyan 8.H.Ramesh 9.M.Somasundaramurugan https://hcservices.ecourts.gov.in/hcservices/ 10.J.Nirmala 11.M.Sundarsingh 12.M.Selvakumar 13.S.Palanichamy 14.S.Sethupathy 15.R.Baranitharan 16.V.Senthilkumar 17.V.V.Nithilan 18.U.Velraj 19.K.Santhakumar 20.S.Balasubramanian 21.V.Saravana Selvan 22.R.Pugazhendhi 23.A.Sathiya Viswanathan 24.S.Mathan Kumar 25.J.Illam Valuthi 26.S.Vellivel 27.C.S.Senbagavalli 28.M.Chandrasekaran 29.M.Balaji 30.A.Prabakaran 31.M.Muthukumaran 32.S.Swaminathan 33.R.Balasingaravelan ... Respondents 1 to 33 in Wps.32062 to 32064 of 2004. 1.The Government of Tamil Nadu, rep. By its Secretary, Labour and Employment Department, Fort St. George, Chennai 600 009. 2.The Secretary to Government of Tamilnadu, Highways Department, Fort St. George,Chennai 600 009. 3.The Chief Engineer (General), Highways, Chepauk, Chennai 600 005. 4.The Tamil Nadu Public Service Commission, rep. by its Chairman, Chennai 600 005. 5.R.Sundaramurthy 6.G.Thatchinamoorthy https://hcservices.ecourts.gov.in/hcservices/ 7.S.Karthikeyan 8.H.Ramesh 9.M.Somasundaramurugan 10.J.Nirmala 11.M.Sundarsingh 12.M.Selvakumar 13.S.Palanichamy 14.S.Sethupathy 15.R.Baranitharan 16.V.Senthilkumar 17.V.V.Nithilan 18.U.Velraj 19.K.Santhakumar 20.S.Balasubramanian 21.V.Saravana Selvan 22.R.Pugazhendhi 23.A.Sathiya Viswanathan 24.T.Thiyagarajan 25.S.Mathan Kumar 26.J.Ilam Valuthi 27.S.Vellivel 28.C.S.Senbagavalli 29.M.Chandrasekaran 30.M.Balaji 31.A.Prabakaran 32.M.Muthukumaran 33.S.Swaminathan 34.R.Balasingaravelan 35.J.Prem Anand 36.P.Sathiyanarayanan 37.P.Krishnan ... Respondents 1 to 37 in W.P. Nos. 6457 & 6458/2005. W.P. No.32062 of 2004:- Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the concerned records relating to seniority list of Officers in Tamil Nadu Highways Engineering Service Rules (Category V) as on 1.1.2004 published by the 4th respondent vide memo no.22369/Nirvagam 3(4)/2004, dated 15.06.2004, and quash the same insofar as placing the respondent No.5 to 33, who are appointed on compassionate grounds in serial no.172 to 181 and serial no.288 to 307 above the Direct Recruitee Engineers like the petitioners, who got selected through the Tamil Nadu Public Service Commission, as illegal, arbitrary and contrary to Article 14 and 16 of the Constitution of India and consequently direct the 4th respondent to place the petitioners above respondent Nos.5 to 33. https://hcservices.ecourts.gov.in/hcservices/ WP.No.32063/2004:- Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the concerned records from the second respondent, quash G.O.Ms.No.155, Labour and Employment Department, dated 16.07.1993, in so far as excluding Provident Fund accumulation, Family Benefit, Death-cum- Retirement Gratuity, Encashment of leave at credit at the time of death, interest earnings which accrue on deposit of amounts for consideration of indigent circumstances while considering for compassionate appointment and G.O.Ms.No.156, Labour and Employment Department, dated 16.07.1993, as illegal, arbitrary and contrary to Highways Service Rules. W.P.No.32064/2004 :- Petition under Article 226 of the Constitution of India for the issuance of a writ of declaration to declare that the appointment of respondents 5 to 33 as Assistant Engineers in the fourth respondent Highways Department is contrary to Highways Engineering Service Rules. W.P.No.6457/2005:- Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records relating to G.O.Ms.No.156, Labour and Employment, dated 16.07.1993, issued by the first respondent and to quash the same and consequently to direct the respondents 1 to 3 to remove the respondents 5 to 37 from the post of Assistant Engineers in the service of the Tamil Nadu Highways Engineering Service as their appointment is not valid. W.P. No.6458 of 2005:- Petition under Article 226 of the Constitution of India for the issuance of a writ of cetiorarified mandamus to call for the list of seniority of Assistant Engineers in the Tamilnadu Highways Engineering Service prepared by the third respondent in proceeding No.22369/Nirvagam 3 (4)-2004, dated 15.06.2004, and to quash the same insofar as respondents 5 to 37 herein and to direct the third respondent to draw the list of seniority among Assistant Engineers placing the appointees in accordance with Rule 17 of Tamilnadu State and Subordinate Service Rules to the vacancy notified for the particular year above all other appointees to the said post. WP Nos.32062 to 32064 of 2004:- For Petitioners : Mr. Balan Haridas For R1, R2 & R4 : Mrs.Lita Srinivasan, Govt. Advocate. For R3 : Ms.CNG.Ezhilarasi https://hcservices.ecourts.gov.in/hcservices/ For R5, R7, R8, R10 and R21 : Mr.R.Thiyagarajan, Sr. Counsel for Mr.M.Muthappan For Respondents-6, 13, 15,18,19,20,25,26,28 & 30 to 33 : Mr.G.Venkateswaramurthy For Respondents-9, 17, 23,24, and 29 : Ms.G.Arulselvi For Respondents-11, 14,16,22 and 27 : Mr.R.Sureshkumar For R-12 : Mr.R.Muthukannu W.P. Nos.6457 & 6458/05:- For petitioners : Mr.N.Subramaniyan For R1 to R3 : Mrs.Lita Srinivasan, Govt. Advocate. For R4 : Ms.CNG.Ezhilarasi For Respondents-6, 13,15,18,19,20,26, 27,29 & 31 to 37 : Mr.G.Venkateswaramurthy For R5, R7, R8, R10 and R21 : Mr.R.Thiyagarajan, Sr. Counsel for Mr.M.Muthappan For Respondents-9, 17, 23,25, and 30 : Ms.G.Arulselvi For Respondents-11, 14,16,22 and 28 : Mr.R.Sureshkumar For R-12 : Mr.R.Muthukannu For R 24 : expired https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The present petitioners/Degree Holders in Civil Engineering, who came to be appointed as Assistant Engineers in the Highways Department in different spells during 1991-92, 1993-95 and 1995-96 through the Tamil Nadu Public Service Commission (referred hereinafter as the 'Commission/TNPSC') after emerging successful in various Tests and Exams conducted by the Commission, have approached this Court invoking its jurisdiction under Article 226 of the Constitution of India through the above writ petitions which, in all, contain prayers in three dimensions: (a) challenging the Government Orders in G.O. Ms. Nos.155 and 156 dated 16.07.1993 whereby compassionate appointments and regularisation of such appointments in respect of respondents/compassionate appointees were allowed for Class-II Services in the Highways Department (vide prayer in WP Nos.32063/04 and 6457/06); (b) questioning the Seniority List published on 15.06.2004 and seeking a consequential direction to the official respondents-1 to 4 to place the petitioners above the respondents-compassionate appointees (vide prayer in WP Nos.32062 of 2004 and 6458 of 2006); and (c) to declare the appointments of the respondents/compassionate appointees as AEs in the Highways Department as illegal by holding that such appointments are contrary to the Highways Engineering Service Rules (as per the prayer in WP No.32064 of 2004). Inasmuch as all the three inter-connected writ petitions require a joint disposal on common issues, they are dealt with and decided so. 2. The brief facts leading to filing of the present petitions are mentioned below for better appreciation of the case and cause:- The petitioners herein, in pursuant to the advertisements issued by the TNPSC in different spells during 1991-1995 for Direct Recruitment to the post of Assistant Engineers for Tamil Nadu Highway Engineering Service governed by the Special Rules framed under Article 309 of the Constitution of India, applied for the same and, after successfully passing through various levels of the Tests including preliminary examination, main examination and viva-voce, they came to be appointed as Assistant Engineers. The post in question being a 'Technical Post' under class-II services, the entire process of selection was commenced and concluded by the Commission. While so, the Chief Engineer, High Ways Department, issued a 'Seniority List' in Memo No.22369/Nirvagam 3 (4) 2004, https://hcservices.ecourts.gov.in/hcservices/ dated 15.06.2004, where-from, for the first time, the petitioners came to know that a handful of persons were appointed to the post of Assistant Engineer by way of compassionate appointment even though there was no scheme for appointment by such course as the only mode for appointment for Class-II service is selection through the competitive exams conducted by the Commission, and that, deviating from the Rules and Procedure relating to selection, those compassionate appointees, whose appointment itself is illegal as it is contrary to the 'entry scheme' specified and provided in the Rules, were accommodated in the Seniority List to compete with the petitioners, who joined the services after undergoing due process of selection as set by the Commission. Inasmuch as the governing rules were framed under Article 309 of the Constitution and it has been clearly stipulated that the appointment to the post of AEs under Class-II shall only be by two modes i.e., either by direct recruitment or by transfer, the petitioners made representations seeking clarification as to the status of the compassionate appointees and their legitimacy in competing with the petitioners in the Seniority List, but, there was no response. The enquiries revealed that those respondents were appointed on compassionate grounds on the demise of the Government Servant in harness and further, in some of the cases, at the time of appointment, the appointee did not even possess the requisite qualification/BE. The framework of G.O. Ms. Nos.155 and 156, (L&E), dated 16.07.1993 in providing compassionate appointment for class-II Services is illegal and such process can never be legally sustained much less under the Service Rules governing the Highways Engineering Services, therefore, those Government Orders cannot have any legal sanctity. The petitioners gained knowledge about the illegal appointment only from the Seniority List dated 15.06.2004 and in such case, the cause of action had arisen only on the said date. Since the request of the petitioners to remove the names of compassionate appointees, who cannot lawfully stand to compete with them, from the Seniority List was not considered, the present petitions have been filed to declare the appointment of all the compassionate appointees who have been appointed to the posts falling under Class-II as illegal and to quash G.O. Nos.155 and 156, dated 16.07.1993, as well as the Seniority List dated 15.06.2004 so that the Assistant Engineers, who were appointed through proper mode by the Commission, can compete for promotion on the basis of seniority amongst them. 3. Mr.Balan Haridas, learned counsel appearing for the petitioners in W.P. Nos.32062 to 32064 of 2004 and Mr.Subramanian, learned counsel appearing for the petitioners in WP Nos.6457 and 6458 of 2005, while advancing lengthy arguments questioning the validity of the aforesaid G.Os. of the year 1993 and the Seniority https://hcservices.ecourts.gov.in/hcservices/ List as well as the legality of the compassionate appointment given to the respondents-compassionate appointees, made the following submissions:- a) Until the publication of the Seniority List on 15.06.2004, the petitioners were not aware of the compassionate appointment of the respondents/AEs based on G.O. Ms. Nos.155 and 156, in the year 1993. As soon as they became aware of such phenomenon, immediately, due representation was made to the Department questioning the legal status of those compassionate appointees to hold the post and their locus standi to compete in terms of seniority with the petitioners whose appointments were purely based on merits and ability assessed by the Commission. Therefore, when the Department did not respond to a serious issue, the petitioners immediately approached this court by way of present writ petitions and, at no stretch of imagination, slackness or laches can be attributed to the petitioners in questioning the above referred G.Os. which are nothing but executive instructions. The ground of delay and laches cannot be argued by the respondents particularly without specifically taking a plea in that regard, for, such plea is a mixed question of fact and law. At any rate, the Government Orders, which clearly violate Articles 14 and 16 of the Constitution of India, should be declared as illegal. To highlight the submission that the scheme of compassionate appointment should be made only in consonance with the yardstick outlined in Art.14 and 16 of the Constitution of India, the following observation of the Apex Court In State of Haryana and others v. Rani Devi and another [AIR 1996 SC 2445] has been pressed into service:- „ It cannot be disputed that appointment on compassionate ground is an exception to the equality clause under Article 14 and can be upheld if such appointees can be held to form a class by themselves, otherwise any such appointment merely on the ground that the person concerned happens to be a dependant of an ex-employee of the State Government or the Central Government shall be violative of Articles 14 and 16 of the Constitution. But this Court has held that if an employee dies while in service then according to rule framed by the Central Government or the State Government to appoint one of the dependants shall not be violative of Articles 14 and 16 of the Constitution because it is to mitigate the hardship due to the death of the bread earner of the family and sudden misery faced by the members of the family of such employee who had served the Central Government or the State Government. It appears that this benefit has also been extended to the employees of the authorities which can be held https://hcservices.ecourts.gov.in/hcservices/ to be a State within the meaning of Article 12 of the Constitution. But while framing any rule in respect of appointment on compassionate ground the authorities have to be conscious of the fact that this right which is being extended to a dependant of the deceased employee is an exception to the right granted to the citizen under Articles 14 and 16 of the Constitution. As such there should be a proper check and balance. „ b) Though compassionate appointment is the exclusive domain of the State which extends it to a family member of the deceased Government Servant to come out of the penurious situation and the crippling crisis that had arisen due to the sudden demise of the employee, the exercise to make such appointments is not routine in all cases and only in exceptional cases where the situation is such that grant of appointment is absolutely warranted, as otherwise, the family would sink down and collapse due to penury. Even in that situation, the compassionate appointment would be considered for class-III and IV irrespective of whatever high qualification the incumbent possesses. In other words, a person cannot be considered for compassionate appointment for those posts which ought to be filled up by open competition involving various levels of test to assess the merit and ability. If at all the State intended to extend compassionate appointment to the legal heirs of the deceased employees without exposure to any test or exam to assess their merit and ability, in law, they should have extended the benevolent gesture by posting them for Class-III and IV Services alone and not for Class-II Services for which the mode of selection is specifically provided in the Rules framed in terms of Article 309 of the Constitution. It is settled position of law that if executive instructions are contrary to statutory Rules, the Rules will prevail and not the executive instructions. Any deviation from the mandatory procedure for selection to a post which falls under open competition would undoubtedly run contrary to the recruitment rules. c) The prescribed mode of entry to the post of Assistant Engineer which falls under Class-II Category in the Tamil Nadu Highways Services being Selection process through the Commission and when the relevant Rule ie., Rule 17 of the Tamil Nadu Highways Engineering Service Rules, mandates that any appointment to the said post should only be by way of direct recruitment though the Commission based on merits or recruitment through transfer, the executive instructions in the form of G.O. Ms. Nos. 155 and 156, dated 16.07.1993 which, in effect, override the scheme for entry into service under class-II category and run repugnant to the statutory rule governing the post, thereby, illegally conferring https://hcservices.ecourts.gov.in/hcservices/ lawful status to the compassionate appointees, whose appointment has no sanctity in the eye of law, should be declared void ab initio. As a consequence, whatever be the length of service such illegal entrants have, their entry being contrary to the rules and the scheme provided therein, the appointments should be set aside. In this regard, the decision of the Apex Court reported in 1994 (4) SCC 138 (Umesh Kumar Nagpal vs. State of Haryana and others) is very much stressed to fortify the submission that class II posts governed by rules cannot be brought within the purview of compassionate appointment, and to highlight that any policy of the State Government which allows compassionate appointment to the post above Classes-II and IV is clearly illegal. d) Even otherwise, unlike the petitioners whose appointment and regularisation had been duly notified in the publication of the Commission, the details of regularisation relating to the compassionate appointees were not notified. Coupled with that, respondents 21 to 27 were not even possessing the requisite qualification ie., graduation in B.E., at the time of entry into service based on the compassionate appointment. That being so, upsetting the whole scheme relating to both in respect of appointment as well as seniority, the Department very unfortunately placed the illegal entrants, many of whom not even possessed requisite qualification at the time of appointments and whose regularisations were not properly notified by the Commission, top in the seniority rank above the petitioners. The said action clearly shows the arbitrariness and partisan attitude on the part of the Department from the inception and when an illegality is given premium, if this Court does not intervene to right the wrong, great prejudice would result to the petitioners, who entered the service legitimately and now exposed to prejudice at the hands of the Department in unduly favouring the illegal entrants. e) Even if the appointment of compassionate appointees is held to be sustainable, they cannot stand to compete with the petitioners in the light of GO. Ms No.1119, dated 20.05.1981. The said G.O., while conferring the State with a right to appoint a person, who is the son of a deceased government servant, to the post of Assistant Engineer to tide over the crisis on the death of the employee, explicitly safeguards the selection rule, particularly in terms of Rule 17 of the Rules, by mandating that, for regular appointments, they should apply only through the TNPSC. Seemingly, Rule-17 contemplates that the appointment for class-II service can be made only by direct recruitment or recruitment through transfer. Coupled with the same, Rule 35(a) of the Tamil Nadu Subordinate Service Rules protect the seniority of a person who is selected on merits. In the same line, Rule 19(3) stipulates that all persons as that of the compassionate appointees, whose appointments were not https://hcservices.ecourts.gov.in/hcservices/ based on merits and ability, shall be ranked below the candidates selected through competitive examinations conducted by the commission for the year to which they are allotted. Therefore, when the compassionate appointees were not recruited in terms of the Rules and their appointments were made by way of exemption to the general rules, legally, they cannot claim seniority over and above the directly recruited Assistant Engineers. f) By way of summing up the arguments, both the counsels added that, in the light of the pronouncements of the Apex Court including Nag pal's case (cited supra) which still holds the field good, economic criterion cannot be the basis for classification and public appointments on compassionate basis that too for Class-I and II grade posts for which the selection process involves various modes of tests and exams by the Commission to assess the merit and ability of the candidates; that the illegal entrants cannot plead right to livelihood under Article 21 seeking regularisation of their appointments to class-II service; that G.O. Ms. Nos.155 and 156 cannot be allowed to stand as they are nothing but executive instructions and they go contrary to the TN Highways Service Rules framed under Article 309 of the Constitution of India; and that, at any rate, seniority can not be given to them with retrospective effect by regularising their appointments and overlooking the legitimate appointees. Thus, the entire three-fold prayer as sought for by the petitioners may be granted, as otherwise, great injustice would result to the petitioners. 4. Controverting the above submissions, Mr.R.Thiyagarajan, learned Senior Counsel appearing for some of the compassionate appointees/respondents-5, 7, 8, 10 and 21 in WP Nos.32062 to 32064 of 2004, by pointing out that their date of appointment being 14.12.1988, 09.09.1992, 25.04.1994 21.09.1994 and 25.3.1996 and that of the petitioners 1 to 5/direct recruits being 03.05.1995, 18.10.1995, 06.02.1998, 18.02.1998 and 29.01.1998 respectively, at the foremost, would stress that the law is well settled that if at all the Direct Recruits claim seniority, it can only be reckoned from the date on which they were appointed ie., even in the case of the senior-most person amongst the petitioners, the crucial year is 1995. According to him, irrespective of the fact that the respondents were appointed on compassionate basis in terms of G.O. Ms. No.156, dated 16.07.1993, regularisation of service having been given effect from 16.07.1993 for respondents-5, 7 and 8, from 21.09.1994 and 25.03.1996 for respondents-10 and 21, those respondents should be given seniority with effect from 1993, 1994 and 1996 as stated above. It follows that the petitioners who came to be recruited after 16.07.1993 cannot be heard to say that they have any claim much less legally enforceable claim as regards seniority over the compassionate appointees. According to him, the https://hcservices.ecourts.gov.in/hcservices/ question over their appointment and regularisation is not open for debate at this point of time in view of the following dictum of the Apex Court laid down in Secretary, State of Karnataka and others vs. Umadevi (2006 (4) SCC 1):- ” One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by- passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.“ Placing much reliance on the above observation of the Apex Court, learned Senior Counsel argued that so far as the regularisation of those respondents is concerned, there cannot be any claim for the petitioners to uproot the compassionate appointees who have rendered a valuable service of about 13 years. 4-a. In an endeavour to elaborate the circumstances that led to appointment and regularisation of the respondents, learned Senior Counsel next submitted that initially, the Government issued G.O. Ms. No.155, dated 16.07.1993, outlining the criterion as regards indigent circumstances to the effect that the family should not own https://hcservices.ecourts.gov.in/hcservices/ any house or landed properties, etc. Consequently, for the genuine candidates, compassionate appointments were ordered only on temporary basis stating that those candidates, for regularisation of their appointments, should get themselves selected by applying before the TNPSC. Due to the risk factor involved in the said process ie., possibility of non-selection and thereby, the purpose for which the compassionate appointment was given itself would get defeated, the Government with an intention to provide employment in terms of the educational qualification of the compassionate appointees, re-examined the procedure and addressed