IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 22.02.2010 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.32618 of 2004 and W.P.M.P.No.39495 of 2004 N.Balagurumoorthy .. Petitioner vs. 1. The Government of Tamil Nadu repd by the Secretary to Government Public Works Department Fort St.George Madras-9 2. The Chief Engineer(General) Public Works Department Madras-5 3. The Chief Engineer, Irrigation Public Works Department Madras-5 .. Respondents Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.V.Lakshminarayanan For Respondents : Mrs. C.K.Vishnupriya AGP(W) O R D E R The petitioner has filed this writ petition, praying for issuance of a writ of certiorarified mandamus, in calling for the records on the file of the first respondent in Proc.No. G.O.ID . No.430(PW(C1) Department dated 10.11.1994 and to quash the proceedings as illegal, incompetent, unconsitutional and without jurisdiction and further to direct the respondent No.1, to regularise the services of the petitioner on and from 5.11.1959 together with consequential benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was appointed as a temporary Draughtsman Grade III under Rule 10(1)(i) of the General Rules of Tamil Nadu State and Subordinate Services on a monthly salary of Rs.70/- per month plus D.A. And HRA admissible under State Government Rules and posted to the office of the Executive Engineer, Kattalai High Level Canal Division No.2, Tiruchi. In the said letter, he was informed that his appointment was purely temporary and was liable to be terminated at any time without previous notice and it would not also confer on him any preferential claim to future appointment to the category. Later, by means of proceedings dated 2.11.1963 of the Superintending Engineer, P.W.D Irrigation Planning Circle, Chepauk, Madras-5 as per Rule 39(a)(i) of Madras State and Subordinate Service Rules, he was promoted as a Draughtsman Grade II(E) on a pay of Rs.175/- in the scale of pay Rs.175-10-225 and retained in Circle Office to relieve Sri.S.Janakiraman, Draughtsman Grade II and further he was informed that the promotion now ordered was purely temporary and would not have any preferential claim for future promotions or continuance. 3. Further it transpires from the proceedings dated 12.6.1967 of the Superintending Engineer, P.W.D. Irrigation Planning Circle, Madras-5 that the earlier order in Office proceedings No.1200 M dated 3.5.1965 regularising the services of the petitioner under Rule 39(e) of General Rules for Madras State and Subordinate Services Rules as Draughtsman Grade II with effect from 2.11.1963 A.N.,was cancelled and further the petitioner was placed on probation under Branch I Category 4(b) of Madras Engineering Subordinate Services as Draughtsman Grade III with effect from 6.6.1963 F.N., viz., the date on which he passed the examination and fully qualified for the post for a period of two years on duty within a continuous period of three years and completed the period of probation of two years on duty on 16.6.1965 A.N., By means of proceedings dated 3.5.1965 issued by the Office of the Superintending Engineer, P.W.D.Irrigation Scheme Circle, Chepauk, Chennai-5 addressed to the petitioner, it is mentioned that as per Section 39(e) of General Rules for Madras State and Subordinate Services Rules, his service was regularised from 2.11.1963 F.N. in the post of Draughtsman Grade II and from 2.11.1963 A.N., his probation was declared and he was also directed to receive the arrears of salary. 4. Further the said proceedings dated 12.6.1967 of the Superintending Engineer, P.W.D. Irrigation Planning Circle, Madras-5 had referred to, had referred to the petitioner's declaration of probation on his satisfactorily completion as Draughtsman Grade III in Branch I category 4(b) (Draughtsman Civil) of Madras Engineering Subordinate Services on 16.6.1965 A.N.,the emergency promotion was ordered in the office proceedings dated 2.11.1963 promoting him as Draughtsman Grade II with effect from 2.11.1963 A.N., regularised under 39(e) of General Rules for Madras State and Subordinate Services Rules with effect from 17.61965 F.N., ie., the next day of https://hcservices.ecourts.gov.in/hcservices/ his satisfactory declaration of completion of probation as Draughtsman Grade III. 5. That apart, the petitioner by means of the proceedings of the Superintending Engineer, P.W.D. Salem-Dharmapuri Circle, Salem-4 in No.23085/70,II E1 dated 9.12.70 was temporarily promoted as Draughtsman Grade I and transferred and posted to the newly formed Chinnar Project Division at Marandahalli with immediate effect. 6. The Government had issued G.O.Ms.No.767 P.W.D. Dated 25.5.1986 amending the Service Rule with retrospective effect from 1978 as a result of which the Draughtsman Grade III brought under one Unit System and further the nomenclature of the Draughtsman category was changed as Junior Drafting Officer(Draughtsman Grade III) Drafting Officer (Draughtsman Grade I) Senior Drafting Officer(Special Grade Draughtsman) and Head Drafting Officer(Chief Head Draughtsman). He was promoted as Special Grade Drafting Officer by the Chief Engineer, PW.D(General)in his proceedings in E1/19225/86-10 dated 20.6.1986. Pending commencement of one Unit of seniority list, the petitioner's name was included in the panel for the year 1989-90 for promotion as Head Drafting Officer in G.O.Ms.No.2187 Public Works (A1) Department dated 2.11.1989 and appointed as temporary Chief Head Draughtsman (Head Drafting Officer) in G.O.Ms.No.2383 Public Works (A1) Department dated 28.11.1989. 7. Added further, the Government by its letter No.16256/A1/90.2 dated 20.3.1990 had certified that the petitioner was fully qualified to the post of Chief Head Draughtsman,P.W.D. with effect from 30.11.1989 for the fixation of pay under Rule 4 of FR 22B of the Tamil Nadu Financial Code. As a matter of fact, the Tamil Nadu Public Service Commission in consulting with the Chief Engineer(General) Public Works Department made a recommendation for the selection of the petitioner in regard to the appointment of regularisation and transfer as Head Drafting Officer in Tamil Nadu Engineering Service for the year 1989-90 and the same was ordered to be notified in the Gazette in G.O.Ms.No.1812 Public Works Department dated 1.11.1991. Also, the Government in G.O.Ms.No.1279 Public Works (A1) Department dated 1.9.1993 regularised the service of the petitioner as Head Drafting Officer with effect from 30.11.1989 F.N and also issued a direction for arrears of increments, if any, to be paid consequent on the regularisation of the service of the concerned. 8. Notwithstanding the above Government orders mentioned supra, the petitioner, (Senior Draughtsman) on transfer of one K.Sengodan, Special Grade Drafting Officer was appointed. Moreover, the petitioner, pending commencement of one Unit Seniority list, was not regularised by the Chief Engineer (Irrigation) and the annual increment in the post of Head Drafting Officer was not sanctioned and paid by the Chief Engineer(Irrigation) on the basis of doubt that he was not properly recruited through the Employment Exchange at the https://hcservices.ecourts.gov.in/hcservices/ time of his initial appointment in 1959. But no communication was issued to the petitioner sofar for non grant of annual increment . 9. As per G.O.Ms.No.1279P.W.(A1) Department dated 1.9.1993, the Government of Tamil Nadu regularised the service of the petitioner and directed the payment of arrears of increment also and in spite of the clear cut order to that effect, no increment was paid to the petitioner in the cadre of Head Drafting Officer and the respondent was bound to implement the aforesaid order read with Rule 23(a) of the Tamil Nadu State and Subordinate Service General Rules. The petitioner submitted his representation on 5.6.1992, 105.1994, 5.9.1994 and 19.10.1994 to the Chief Engineer(Irrigation) P.W.D. Madras and till date, he had not received any reply. 10. The Chief Engineer(General) sent proposal to the Government of Tamil Nadu to ratify his action in regard to the irregular appointment made as Draughtsman Grade III on 5.11.1959 A.N. in respect of the petitioner in regularisation rule 2 and 6 of the Tamil Nadu Engineering Subordinate Services and the Government in exercise of powers conferred under Rule 48 of the General Rules mentioned in Part II of the State and Subordinate Service Rules of Tamil Nadu Service Manual 1987 relaxed Rule 2(Mode of appointment) and Rule 6 (Educational Qualification) of Branch IA Engineer Branch of the special Rules for the Tamil Nadu Engineering Subordinate Service in favour of the petitioner so as to enable him to be regularly appointed as Draughtsman Grade III from the date of issue of G.O.ID.NO.430 Public Works(C1) Department dated 10.11.1994. 11. The core contention put forward by the learned counsel for the petitioner is that the petitioner's initial appointment as Draughtsman Grade III on temporary basis was made on 5.11.1959 as per Rule 10(1)(i) of the General Rules of Tamil Nadu State and Subordinate Services and the Employment Exchange ( Compulsory Notification of Vacancies)Act 1959 came into force only from 1.5.1960 and as such in so far as it related to the regularisation of the petitioner, the said Act would not apply and earlier the Government of Tamil Nadu passed G.O.Ms.No.790 Labour Department dated 5.7.1971 to the effect that an appointment made without the sponsorship from the Employment Exchange should be ratified and the appointments if any made after the date of issue of the above said Government order should not be regularised and therefore, the petitioner was fully qualified to hold the post of Draughtsman Grade III and regularisation upto the date of appointment and as such the impugned order dated 10.11.1994 passed in G.O.ID.No.430 P.W.(C1) Department in ratifying the action of the Chief Engineer(General) in having appointed the petitioner irregularly in the category of Draughtsman Grade III on 5.11.1959 A.N. In relaxation of Rules 2 and 6 of Tamil Nadu Engineering Subordinate Service so as to enable him to be regularly appointed from the date of issue of the order is an invalid in the eye of law. https://hcservices.ecourts.gov.in/hcservices/ 12. In short, the stand of the petitioner is that by no stretch of imagination,his appointment would have construed as the case of one irregular appointment and because of the impugned order G.O.ID NO.430 Public Works (C1) Department dated 10.11.1994, he is put to financial loss because of the non commutation of his pensionary benefits. 13. Advancing his arguments, the learned counsel for the petitioner contends that when the petitioner was appointed as per proceeding No. 2397 M dated 2.11.1959, of the Superintending Engineer, P.W.D. Projects Circle, Tiruchirapalli, to regular appointment made from the date of G.O.ID.NO.430 dated 10.11.1994 is to take away his unblemished 35 years of service and more over, the impugned order dated 10.11.1994 is in violation of Article 14 of Constitution of India and by any means, the respondents are not entitled to fix an unilateral and arbitrary date viz., 10.11.1994 being the cut of date as mentioned in G.O.ID.NO.430 and therefore, prays for allowing the writ petition to secure the ends of justice. 14. It is an axiomatic principle in law that if a regularisation of services in respect of an individual was in accordance with relevant statutory provisions then, the services rendered prior to the said regularisation will have to be counted only towards discrimination of seniority as opined by this Court. It is to be noted that the regularisation is governed by statutory Rules. It is not out of place for this Court to recall the decision of the Hon'ble Supreme Court reported in The Direct Recruit Class-II, Engineering Officers' Association-v- State of Maharashtra(AIR 1990 Supreme Court, 1607 at 1627)wherein it is held as follows: " Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only adhoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if https://hcservices.ecourts.gov.in/hcservices/ rules are framed in this regard, they must ordinarily be followed strictly. If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quote rule had broken down. Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. The posts held by the permanent Deputy Engineers as well as the Officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of service to unsettle a settled position.' 15. It is also quite evident from the G.O.(Standing) NO.407 PWD (C1) Department dated 28.7.1999 that nearly 26 persons mentioned in the annexure thereto were regularised with effect from the date of joining and conspicuously,the petitioner's name does not find a place. At this stage, one cannot ignore an important fact that the petitioner also was similarly placed like that of 26 persons mentioned in the annexure in G.O.(Standing) NO.407 PWD (C1) Department dated 28.7.1999 and tenor of the aforesaid G.O was https://hcservices.ecourts.gov.in/hcservices/ applicable to the petitioner in the considered opinion of this Court and by any means the petitioner could not be discriminated whatsoever. 16. As far as the present case, the petitioner's first appointment on 2.11.1959 as temporary Draughtsman Grade III under Rule 10(1)(i) of the General Rules of Tamil Nadu State and Subordinate Services on a monthly salary of Rs.70/- per month plus D.A. And HRA admissible under State Government Rules could not be construed to be an irregular one because of the fact that the Employment Exchange(Compulsory Notification of Vacancies) Act 1959 came into force only on 1.5.1960 and more over the Government of Tamil Nadu already issued G.O.Ms.No.770 Labour Department dated 5.7.1971 stating that appointments made without sponsorship from the employment exchange should be ratified and regularisation upto the date of appointment viz., 5.7.1971 and as a matter of fact, the petitioner was entitled to get his annual increments in the post of Head Drafting Officer in usual course and by passing the impugned order in G.O.ID.NO.430 Public Works(C1)Department dated 10.11.1994, there was a violation of Article 14 of the Constitution of India and when the petitioner had put in nearly 35 years of service, his experience gained could not be snatched abruptly by means of the impugned order in G.O.ID.NO.430 Public Works (C1) Department dated 10.11.1994 and looking at from any angle, the petitioner had made out a case for allowing the writ petition since the impugned order in G.O.ID.No.430 dated 10.11.1994 of the first respondent was arbitrary and invalid and the same was not in accordance with law. 17. In the result, this writ petition is allowed leaving the parties to bear their own costs. The impugned order in G.O.ID.No.430 PW (C!) Department dated 10.11.1994 is quashed. Consequently, connected W.P.M.P.No.39495 of 2004 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sg To 1. The Secretary Government of Tamil Nadu Public Works Department Fort St.George Madras-9 https://hcservices.ecourts.gov.in/hcservices/ 2. The Chief Engineer(General) Public Works Department Madras-5 3. The Chief Engineer, Irrigation Public Works Department Madras-5 1 cc To Mr.V.Raghavachari, Advocate, SR.11696 1 CC to the Government Pleader SR NO 11875 W.P.NO.32618/2004 GR(CO) sra 03/03/2010 https://hcservices.ecourts.gov.in/hcservices/