IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-1-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.RAJA W.A.Nos.1334 and 1336 of 2009 and MP No.1 of 2009 in WA No.1334 of 2009 and MP Nos.1, 2 and 3 of 2009 in WA No.1336 of 2009 1.K.T.Senthilarasu 2.P.Dhanabalan 3.S.Balasubramonian 4.S.Manoharan 5.S.Shanmuganathan .. Petitioners in WA 1334/2009 1.D.Aravindhan 2.K.S.Sadanandam .. Petitioners in WA 1336/2009 vs 1.The Government of Tamilnadu Rep. By its Secretary Highways Department Fort St. George Chennai 9. 2.The Chief Engineer (G1) Highways Department Public Works Department Campus Chepauk, Chennai 5. 3.T.Natanasabapathy 4.T.Hari Babu .. Respondents 1 to 4 in both appeals 5.A.Azhagappan 6.M.Rajandran 8.S.Gnanamuthu 9.M.Balasubramanian 10.V.Shanmugam 11.K.Rathinakumar 12.G.Panneerselvam 13.R.Ramasamy 14.S.Gandhi 15.A.Pachimuthu 16.C.Gopalan https://hcservices.ecourts.gov.in/hcservices/ 17.M.Govindasamy 18.T.Srinivasan 19.C.Venkatachalam 20.V.Chandrasekaran 21.K.Chikkandar Meeran Moheedin 22.V.Rajagopal 23.K.Thankavel .. Respondents 5 to 23 in WA 1334/09 and 24.V.Nagarajan Respondents 5 to 23 25.P.Subramanian Nil and 24 to 30 in 26.A.Jayachandra Suriya Narayanan W.A.1336/09 27.M.Chidambaram 28.W.Sabtharishi 29.V.Velu 30.Chitra 31.Chandrika .. Respondents 5 and 24 to 31 in WA 1336/2009 Writ appeals preferred under Clause 15 of Letters Patent against the order of this Court made in W.P.Nos.9093 and 8870 of 2008 dated 9.9.2009.Petition filed under Article 226 of the Constitution of India praying for the issuance of Writs of Declaration to to declare the appointments of respondents 3 to 23 as Assistant Divisional Engineers as illegal, void and unconstitutional and consequently to direct the respondents 1 and 2 to revert the respondents 3 to 23 to the post of Junior Engineers and further direct respondents 1 and 2 to give retrospective notional promotion to the petitioners as Assistant Divisional Engineers without following 3:1 ratio between Assistant Engineers and Junior Engineers, if Junior Engineers who rendered 10 years service after becoming Junior Engineer are not available, from the date on which the the Junior Engineers who are Junior to the petitioners were appointed as Assistant Divisional Engineer as aforesaid (W.P.Nos.8870 of 2008 and 9093 of 2008) For Appellants : Mr.N.Subramanian in WA 1334/2009 Mr.K.M.Vijayan Senior Counsel for Mr.M.A.Gouthaman in WA 1336/2009 For Respondents : Mr.P.S.Raman Advocate General Assisted by Mrs.Malarvizhi Udayakumar, Special Government Pleader & Mr.V.Viswanathan Additional Government Pleader for RR1 & 2 in both appeals https://hcservices.ecourts.gov.in/hcservices/ Mr.L.Chandrakumar for RR3, 4, 5 & 13 in WA 1334/2009 Mr.V.Vijaya Shankar for R16 in WA 1334/2009 & R17 in WA 1336/2009 Mr.G.Ethirajulu for RR11, 12, 19 and 24 to 28 in WA 1336/2009 Mr.R.Thiagarajan Senior Counsel for Mr.M.Muthappan for R24 in WA 1336/2009 Mr.M.S.Umashankar for RR25 to 27 in COMMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These two writ appeals challenge a common order of the learned Single Judge of this Court made in W.P.Nos.9093 and 8870 of 2008 whereby the writ petitions were dismissed. 2.The Court heard the learned Counsel on either side and looked into all the materials available. 3.The writ petitioners sought the relief of declaration that the appointments of the respondents 3 to 23 as Assistant Divisional Engineers (ADEs) is illegal, void and unconstitutional and also direction to the respondents 1 and 2 to revert the respondents 3 to 23 to the post of Junior Engineers and further direction to the respondents 1 and 2 to give retrospective notional promotion to the writ petitioners as Assistant Divisional Engineers without following 3 : 1 ratio between Assistant Engineers and Junior Engineers, if Junior Engineers who rendered 10 years of service after becoming Junior Engineer, are not available, from the date on which the Junior Engineers who are junior to petitioners, were appointed as Assistant Divisional Engineers, alleging that the post of Assistant Divisional Engineer (ADE) has been governed by the Special Rules to Tamil Nadu Highways Engineering Service; that the said post is made from the Assistant Engineers (AE) who possess not less than five years of service by promotion, and from the Junior Engineers (JE) with not less than ten years of service as JE or Draughtsman or not less than eighteen years of service as Overseer, JE or Draughtsman by recruitment by transfer in the ratio of 3 : 1; that the appointment is being made as per Rule 9(a) and (b) and 10(b)(2)(a) and (b) or 10 (b)(3)(a) and (b) of the Engineering Service Rules; that the proviso https://hcservices.ecourts.gov.in/hcservices/ to Rule 10 stipulating 10 years Draughtsman's service for a JE shall mean the service rendered by a JE in the category of Draughtsman when posted as Draughtsman due to administrative reasons as stipulated under Rule 9(b) and cannot be construed as the service rendered as Draughtsman prior to promotion as JE; that despite the same, the respondents 3 to 23 were appointed as ADEs even before completion of 10 years of service in the category of JE marching over the writ petitioners and other similarly placed AEs who are seniors; that an AE having rendered more than ten years of service is stagnating without promotion, whereas a JE having four years of service is getting promotion; that likewise, a Draughtsman who is in the lower category to AE, got promoted as ADE; that the same is illegal and discriminatory; that the appointment of a diploma holder (JE) with lesser experience as ADE earlier to the degree holder (AE) with higher qualification of B.E. Degree is nothing but meriting the demerits and demeriting the merits which is in violation of Rule of Equality mandated under Articles 14 and 16(1) of the Constitution of India, and it is also highly discriminatory; that any construction of the Rules which permit to take the service rendered in Draughtsman category before becoming JE for the purpose of promotion to the post of ADE would make the Rules illegal and arbitrary; that the respondents 1 and 2 did not publish the panel for the post of ADE in the Gazette under Rule 4(1) of the General Rules; that the writ petitioners do not have the copy of the Government Orders appointing the respondents 3 to 23 as ADEs and hence those orders have got to be declared as illegal. 4.The respondents 1 and 2 namely the State, filed a counter affidavit stating that under Rule 10(b)(2)(b), it is mentioned as Service as Junior Engineer or Draughtsman for a period of not less than ten years; that it is very clear that the JEs who have put in a combined service of not less than ten years in the categories of JE and Draughtsman (now Junior Draughting Officer), are eligible for appointment as ADEs; that while preparing the selection list, ten years of total service is taken into account; that the petitioners joined the highways department as AEs by direct recruitment through the TNPSC in the year 1998, while the respondents 3 to 23 joined in the service as Junior Draughting Officers between 1978 and 1983 and they were subsequently promoted as Junior Engineers on various dates; that as per Rule 10, a Junior Engineer, who has put in a service of not less than 10 years in the categories of JE or Draughtsman, are eligible for appointment as ADE; that the respondents 3 to 23 have fulfilled the requirements of the above said provision and hence they were selected and included in the list of JEs fit for appointment as ADE approved by the Government; that the Section Offices in Highways Department are even manned either by BE Degree holders or Diploma holders; that in fact, the Degree holders are called as AEs, while the Diploma holders are called as JEs; that as per Rule 18, 75% of the vacancies to be filled up by AEs (degree holders) and 25% of the vacancies shall be filled up by JEs (diploma holders); that in the Section Office both the AEs and JEs are interchangeable; that as per Rule 9(a), the same ratio of 3 : 1 between AEs and JEs is being followed while filling up the vacancies in the post of ADE; that only the eligible candidates in both the categories of AEs/JEs are being https://hcservices.ecourts.gov.in/hcservices/ considered for promotion and appointed as ADE by following 3 : 1 ratio; that under the circumstances, their appointment is valid and legal, and hence the writ petitions were to be dismissed. 5.The other contesting respondents filed separate counters stating that they are eligible and qualified and hence they have been promoted as ADE as per the statutory Rules; that their appointment is made as per the Rules and hence, the writ petitions were to be dismissed. 6.The learned Single Judge on enquiry, has dismissed the writ petitions by a common order. Hence these writ appeals at the instance of the appellants/writ petitioners. 7.Advancing arguments on behalf of the appellants in WA No.1334/2009, the learned Counsel would submit that the order of the learned Single Judge is erroneous; that the phrase "so far as qualified and suitable candidates are available" makes it amply clear that 3 : 1 ratio can be invoked only when there are qualified candidates; that Rule 10 makes it clear that no person shall be eligible for appointment to any category thereunder if he does not possess the qualifications prescribed therein; that it is pertinent to note that the Junior Engineers only possessing the qualifications mentioned in Rule 9(a) alone can be considered for appointment as Assistant Divisional Engineers in the fourth vacancy out of every 4 vacancies successively arising in the category of ADE, and no Junior Engineer with any other qualification can be fitted into the quota stipulated for JEs; that the respondents 3 to 23 possess only DCE qualification which is equivalent to LCE diploma stipulated under Rule 9(a), and hence they have to render 10 years service after becoming Junior Engineer as mandated under Rule 10(c)2(a) & (b); that none of the respondents 3 to 23 have 10 years service after becoming JE; that under the circumstances, their appointment is illegal; that it is crystal clear that JEs referred to in Rule 9(b) do not fall under Rule 9(a) and vice versa; that Rule 9(b) enables the Government to appoint only the Junior Engineers with the said qualifications and efficiency as ADE in exceptional cases; that it is pertinent to point out that the letter of the first respondent addressed to the Additional Advocate General and the information furnished by the first respondent under RTI Act, 2005, show that none of the respondents 3 to 23 possess Lower Subordinate Diploma or its equivalent as stipulated under Rule 9(b) or Rule 10(c)3(a) & (b) to invoke 18 years total service in the category of Junior Engineer, Overseer or Draughtsman; that in fact, the respondents 3 to 23 were appointed as ADEs by not considering their total service of 18 years but were appointed only by misinterpreting the Rule 10(c)2(b) as if the said Rule permits combined service of 10 years taking into account the service rendered in the draughtsman category also; that the qualification of Lower Subordinate Diploma became obsolete long back; that in fact, the qualification for a JE has been amended in Tamilnadu Highways Engineering Subordinate Service earlier to the year 1982 itself prescribing only qualification as DCE or higher qualification for the category of Junior Engineer and hence in the Highways Department after 1980, no JE was appointed with Lower Subordinate Diploma qualification; that under the circumstances, https://hcservices.ecourts.gov.in/hcservices/ Rules 9(b) or 10(c)3(a) & (b) have become obsolete; that a harmonious reading of Rules 9 and 10 of Special Rules to Tamilnadu Highways Engineering Service would show that a Junior Engineer with a service of 10 years as JE or a JE who works as Draughtsman even after becoming JE due to administrative reasons with 10 years service alone are eligible to be considered for appointment as ADE and hence the appointment of the respondents 3 to 23 is liable to be declared as illegal and void; that allowing the subordinates to march over their superiors and forcing the superiors to work under those subordinates would cause irreparable loss to the superiors; that the learned Single Judge has not considered any one of these aspects, and under the circumstances, the order of the learned Single Judge has got to be set aside. 8.The learned Senior Counsel appearing for the appellants in WA No.1336 of 2009, Mr.K.M.Vijayan would submit that Rules 9(a) and 9(b) and 10 have not been properly taken into account by the learned Single Judge; that the respondents 3 to 23 were appointed as ADE even before the completion of 10 years of service in the category of JE thereby marching over the writ petitioners and also similarly placed AEs; that the Assistant Engineers who have rendered more than 10 years of service, are stagnating without promotion whereas the Junior Engineers with four years of service are getting promotion, and a Draughtsman who was working in the lower category to the Assistant Engineers, got promoted as ADE, which is illegal, arbitrary and against the Rules; that any construction of the rules that it permits to take the service rendered in draughtsman category before becoming Junior Engineer for the purpose of promotion to the post of ADE would make the Rules illegal, arbitrary and liable to be declared as void; that Rule 9(b) clearly states that the ratio of 3 : 1 shall be invoked and operative only so far as the qualified candidates are concerned and in case of absence of JEs with 10 years service, the respondents 1 and 2 ought to have promoted only the AEs as ADEs, and hence the order of the learned Single Judge has got to be set aside. 9.The learned Advocate General Mr.P.S.Raman appearing for the State would submit that the appointment of the respondents 3 to 23 as ADE has been made as per the Rules; that there is nothing to interfere in the order of the learned Single Judge and hence the same has got to be confirmed. 10.The learned Counsel and learned Senior Counsel Mr.R.Thiagarajan appearing for the respective respondents in their sincere attempt of sustaining the order under challenge, put forth their contentions which were raised before the learned Single Judge. 11.This Court paid its anxious consideration on the submissions made. 12.As could be seen above, the appellants and other Assistant Engineers questioned the promotion of the respondents 3 to 23 as Assistant Divisional Engineers from the post of Junior Engineers alleging that the Highways Department should not have promoted the JEs as ADEs since they have not put in 10 years of service as JEs. https://hcservices.ecourts.gov.in/hcservices/ It was urged that the respondents 3 to 23 though they were Junior Engineers and though the ratio of 3 : 1 was earmarked, were not eligible to be promoted as ADEs for want of sufficient number of years of experience. Pointing to the Rules, it is contended by the appellants' side that number of years of service only as JEs must be the criteria and the service rendered as Overseer and Draughtsman should be excluded as per Rules, and under such circumstances, for the promotion to the post of ADEs, the AEs should be appointed for the vacancies though earmarked for JEs. It is further contended that the Junior Engineers of minimum service would be getting promotion while Assistant Engineers who are fully qualified as per the Rules could not get the same. In order to substantiate their contention, more emphasis was made pointing to the Rules. According to the appellants, a harmonious reading of the relevant Rules would indicate that they were below 10 years and the Draughtsman referred to would mean the service rendered prior to the promotion as JE, and so long as the Junior Engineers have not completed 10 years of service as and in the category of JE, they cannot get shelter under the ratio for being promoted as ADE. 13.On the contrary, it is urged on the respondents' sided that a combined service of 10 years in the post of JE and Draughtsman was sufficient to satisfy the Rule for appointment to the post of ADE by recruitment by transfer of JEs; that what is all required is that they should possess diploma in Engineering or a minimum service of 10 years in the capacity of JE and hence the period of not less than 10 years as envisaged under Rule 10(2)(b) was only a combined service; that they were eligible for appointment as ADE; that the statutory Rules make it abundantly clear that without promotion and appointment as ADE, both the categories of AEs and JEs should be filled in the ratio of 3 : 1. 14.Under the circumstances, the question that would arose for consideration would be whether the respondents 3 to 23 were unqualified and their promotion was improper as contended by the appellants or their promotion was proper since they were qualified and eligible to be promoted as contended by the respondents. The answer for the question would rest on the following statutory Rules and the interpretation thereon. While Rule 9 of the Engineering Service Rules deals with the appointment of Assistant Divisional Engineer, Rule 10 deals with the qualification of ADEs and AEs. Rule 9 (a) and (b) read thus: "9.Appointment of Assistant Divisional Engineer: (a) So far as qualified and suitable candidates are available, out of every four vacancies successively arising otherwise than substantively among Assistant Divisional Engineers, the first three shall be filled or reserved to be filled by promotion from among permanent Assistant Engineers in category 5, possessing the B.E., degree (Highways, Civil or Mechanical) of any University or Institution recognised by the University Grants Commission for the purpose of its grant or the diploma in Engineering (Highways, Civil or https://hcservices.ecourts.gov.in/hcservices/ Mechanical) of the College of Engineering, Guindy, or of any University or Institution recognised by the University Grants Commission for the purpose of its grant and the fourth vacancy shall be filled or reserved to be filled by recruitment by transfer from among permanent Junior Engineers of the Tamil Nadu Highways Engineering Subordinate Service or permanent Draughtsmen who have been appointed as Junior Engineer but working in the Drawing Office for administrative reasons possessing the Upper Subordinate or L.C.E. Diploma of the College of Engineering, Guindy or the L.C.E. Diploma of the Technological Diploma Board, Madras, or a diploma in Engineering of any University or Institution recognised by the University Grants Commission for the purpose of its grant. (b) A Junior Engineer holding the Lower Subordinate diploma of the College of Engineering, Guindy, or a diploma in Engineering of any University or Institution recognised by the University Grants Commission for the purpose of its grant who has rendered a total service of not less than eighteen years on duty as Junior Engineer, Overseer or Draughting Officer and has proved himself to be efficient may, notwithstanding anything contained in these rules be appointed as Assistant Divisional Engineers if the State Government consider that he is competent for such appointment." Rule 10 reads as follows: Category (1) Method of recruitment (2) Qualifications (3) Assistant Divisional Engineer (a) .......... (b) Promotion (1) Must possess a degree in Highways, Civil or Mechanical Engineering or a pass in Sections - A and B of the A.M.I.E. (India) Examinations (re-named as Institution Examination); and (2) Must have put in service for a period of not less than five years as Assistant Engineer. https://hcservices.ecourts.gov.in/hcservices/ Category (1) Method of recruitment (2) Qualifications (3) (c) Recruitment by transfer from among Junior Engineers in the Tamil Nadu Highways Engineering Subordinate Service or from Junior Engineers of the Public Works Department in the Tamil Nadu Engineering Subordinate SErvice 1(a)Must possess a Diploma in Highways Civil or Mechanical Engineering of the College of Engineering Guindy; and (b) Services as Junior Engineers for a period of not less than five years; or 2(a) Must possess upper Subordinate or L.C.E. Diploma of the College of Engineering, Guindy or the L.C.E., L.M.E. or L.A.E., Diploma of the Technological Diploma Board, Madras or any diploma in Engineering; and (b) Service as Junior Engineer or Draughtsman for a period of not less than ten years; or 3(a) Must possess Lower subordinate Diploma of the College of Engineering, Guindy or any Diploma in Engineering; and (b) Service as Overseer, Junior Engineers or Draughtsman for a period of not less than eighteen years; Provided that L.M.E., and L.A.E., diploma holders shall, on appointment as Assistant Divisional Engineers be, as far as possible, posted in the vacancies arises in the workshops under the control of the Highways Department. https://hcservices.ecourts.gov.in/hcservices/ Category (1) Method of recruitment (2) Qualifications (3) EXPLANATION: For the purpose of this rule, the service rendered as District Board Overseers or temporary Overseer or Assistant Engineer or Junior Engineers in any Public Works Department Roads Circle shall be treated as service; or 4.Must possess a degree in Engineering or its equivalent after appointment and on completion of either ten years of total service or three years of service from the date of taking his degree whichever is earlier, subject to the condition that no person who has a total service of less than five years shall be eligible for appointment as Assistant Divisional Engineer. 15.It could be seen that there are only two feeder categories for promotion to the post of ADE. Needless to say that one category is from Assistant Engineers and the other category from Junior Engineers. It is also not disputed as found in the Rule that the ratio is fixed as 3 : 1 between them, and hence the eligibility for promotion to the post of ADE could be at the time of promotion. During the relevant time they must be working as JE or AE. As per the Rules, an Assistant Engineer having not less than five years of service, can be promoted as ADE, and as far as JEs are concerned, they should have got not less than 10 years of service as JE or Draughtsman or not less than 18 years of service as Overseer, JE or Draughtsman by recruitment by transfer in the ratio of 3 : 1 as could be seen from Rule 9(a) & (b) and 10(b)(2)(a) and (b) or 10(b)(3)(a) and (b) as shown above. Pointing to the above Rules, the appellants would contend that a harmonious reading of the Rule 9(a) and (b) and the above provisions in Rule 10 must be made, and the proviso to Rule 10 would make it clear that a person's service as Draughtsman for 10 years would mean that it was a service in the category of a draughtsman, and hence it could not be taken as service rendered prior to the promotion as JE. In short, it was contended that before the completion of 10 years of service as JE, one would remain unqualified. The contention put forth by the learned Counsel for the appellants cannot be countenanced in law. Rule 10(2)(c) which speaks of the recruitment by transfer from among the JEs, makes it clear under 2(a) & (b) that he should possess the Upper Subordinate or LCE https://hcservices.ecourts.gov.in/hcservices/ diploma of the College of Engineering, Guindy, or LCE, LME or LAE diploma of the Technological Diploma Board, Madras or any Diploma in Engineering and also served as JE or draughtsman for a period of not less than 10 years or under Rule 3(a) & (b) he should possess Lower Subordinate Diploma of the College of Engineering, Guindy or any diploma in engineering and served as Overseer, JE or Daughtsman for a period of not less than 18 years. Hence the very reading of the above Rule would indicate that it is explicit and unambiguous that if there was a total service of not less than 18 years rendered as JE, Overseer or Draughtsman, it would suffice, and the service of a candidate for 10 years as JE is not at all required or contemplated under the above Rule. (emphasis made) 16.It is pertinent to point out that the appellants have not challenged either the Rules or the ratio 3 : 1 for AEs and JEs. While fixing the ratio as 3 : 1 for AEs and JEs, the Rule