TAMIL NADU RURAL DEVELOPMENT ENGINEERS ASSOCIATION Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) Tamil Nadu Rural Development Engineers' Association (hereinafter referred to as 'Association') is the appellant in W.A. No.500 of 2005 and petitioner in all the Writ Petitions. The Writ Appeal is directed against the order of the learned single Judge, dated 02.12.2004, made in W.P. No.35315 of 2004, in and by which, the learned Judge, taking into consideration the facts and circumstances of the case, directed the Government to implement the order of the Tamil Nadu Administrative Tribunal, Chennai, in O.A. No.1799 of 2004, dated 27.04.2004, if there is no impediment, within a period of six weeks from the date of receipt of copy of the order.

(2.) In W.P. No.31416 of 2004, the Association prays to issue a writ of mandamus, directing the official respondents to effect promotions to the post of Assistant Executive Engineer, Rural Development Department (in short R.D. Department), from the post of Assistant Engineer on a strict 1:1 ratio between 'Assistant Engineer - Direct Recruits' and 'Assistant Engineers - promoted by transfer of service' in the R.D. Department as prayed in the representation dated 23.03.2004. 2(a). In W.P. Nos.34029, 34030/04 and 11744 to 11766/05, challenge is made to the order of the Tamil Nadu Administrative Tribunal in O.A. Nos.1068 to 1081 of 2004 and 1791 to 1801 of 2004 on various grounds. 2(b). In W.P. No.36096 of 2004, the Association challenges the panel and promotion of directly recruited Assistant Engineers issued in G.O. (2D) No.116, dated 29.10.2004, and G.O.(D) No.966, dated 16.11.2004. 2(c). In W.P. No.9460 of 2005, the Association seeks to quash the rejection letter of the Government, dated 29.12.2004, and to fix ratio as 1:1 for promotion to the post of Assistance Executive Engineer (AEE). 2(d). In W.P. No.26973 of 2005, prayer is for the issuance of a writ of mandamus to the official respondents to give retrospective effect to the promotions made to Overseers as Assistant Engineers (A.Es) on 02.09.2002 as 25.5.1998, i.e., the date of effect of the Service Rules. 2(e). In W.P. No.26990 of 2005, the Association seeks to issue a writ of declaration, declaring Rule 3(2) of Notification-III of G.O.Ms. No.15, R.D. Department, dated 25.01.2000, as ultra vires in the absence of fixation of quota between A.E. - Direct Recruits and promotees to the post of A.E.E.

(3.) Case of the petitioner is briefly stated here-under:- As could be seen from W.P. No.34029 of 2004, the members of the Association (hereinafter referred to as 'petitioners') were initially appointed as 'Overseers' by the then Highways and Rural Works Department and posted exclusively to various Panchayat Unions for executing all the Civil works / Rural works in the Panchayat Unions of Tamil Nadu. Since they were earlier under the administrative control of the erstwhile Highways and Rural Works Department, they had no proper avenues of promotion especially for the post of A.E. and many of them were languishing in the same post ie., as Overseers, for nearly two decades. By virtue of G.O. Ms. No.263, R.D. Department, dated 27.12.1996, the Government decided to set up a separate 'Engineering Wing' for the R.D. Department itself so as to exercise adequate control over various Central and State sponsored schemes and accordingly several new posts were created. By virtue of G.O. Ms. No.102, R.D. Department, dated 25.05.1998, the Government directed that the then Highways and Rural Works Department should cease forthwith from exercising control over the promotions and appointments in the R.D. Department. The Government Order also recognised the rights of the Overseers, whose entire service is only in the R.D. Department, for promotion to the posts of AEs and Junior Engineers (JEs). Finally, the Government framed Service Rules for various technical posts in the R.D. Department and notified the same in G.O. Ms. No.15, dated 25.01.2000, by invoking the powers under proviso to Article 309 of the Constitution of India. As soon as the Engineering Wing was created in the R.D. Department, the posts were filled up by drawing personnel from other technical Departments of Government of Tamil Nadu on 'deputation basis' as an interim arrangement. However, the Tamil Nadu Highway Engineers Association opposed the creation of a separate Engineering Wing under the R.D. Department and filed Original Application in O.A. No.253 of 1997 before the Tamil Nadu Administrative Tribunal (in short 'Tribunal'). However, the said Application was dismissed by the Tribunal by order dated 12.11.1997. Aggrieved by the said Order, the said Association filed W.P. No.6513 of 1998 before this Court. By order dated 02.04.2002, this Court upheld the order of the Tribunal. Validity of G.O. Ms. No.15, dated 25.01.2000, and G.O. Ms. No.102, dated 25.05.1998, was challenged before the Tribunal by one K.Loganathan and others in O.A. Nos.5338 and 7766 of 2000. Both the said Government Orders were upheld by the Tribunal by order dated 03.06.2002. A group of A.E. - Direct Recruits, on completion of just five years of service in the R.D. Department, filed O.A. Nos.1068 to 1081 of 2004 before the Tribunal, praying that they be considered for promotion to the post of AEE in the R.D. Department under Rule 39 of General Rules of the Government of Tamil Nadu. The Tribunal, by Order dated 16.03.2004, directed the Government and the Director, R.D. Department, to consider and grant promotion to the applicants in the said O.A. under Rule 39 of the General Rules and that regular promotion and selection can be done after preparing a Panel. It is stated that the Tribunal failed to note that the petitioners, who acquired the Degree in Civil Engineering much earlier than 'AE - direct recruits', were promoted to the post of A.E. only after G.O. Ms. No.15, containing the 'Service Rules' were notified. The Government and the Director, R.D., are proceeding with the process of filling up the vacancies in the post of AEE of the R.D. Department by considering only A.E.-direct recruits for promotion. On the other hand, AE-promotees, who are similarly placed as that of AE-Direct Recruits and are in the same post of AE, have not been considered for promotion to the post of AEE. In WP No.36096 of 2004, the association, while challenging the panel and promotion of directly recruited Assistant Engineers issued in G.O. (2D) No.116 dated 29.10.2004 and G.O.(D) No.966 dated 16.11.2004, contended that till the disposal of W.P. No.31416 of 2004 relating to fixing a ratio of 1:1 between AE-Direct Recruits and AE-promotees for promotion to the post of AEE, the official respondents have erroneously filled up all the vacant posts of AEE on temporary basis. In G.O. Ms. No.15, the appointing authority for the post of AEE has not been stipulated. The Association made several representations, highlighting the lacunae in G.O. Ms. No.15. The Government and the Director, R.D. Department, without bothering to set right forthwith the lacunae and inequities as pointed out by the Association, proceeded with much haste to fill up the existing vacant posts of AEE by considering a group of AE-Direct Recruits alone. The method being followed is prejudicial to the departmental people whereas the Direct Recruits without any hurdle or battle got selection and now, under the impugned order, they have been further promoted as AEEs. They also made a representation to the Government either to relax the experience (5 years as AE) or to give notional promotion from the date on which the Engineering Wing was formed and the Government Order was issued as the same benefit has been given to the direct recruits giving retrospective effect. Therefore, the present promotion under the impugned order cannot be said as one of equitable balance meeting equity justice. In Writ Petition No.9460 of 2005, while seeking to quash the rejection letter of the Government and to fix ratio as 1:1 for promotion to the post of AEE, it is stated that, after the introduction of the Special Rules in G.O. Ms. No.15, R.D. Department, dated 25.01.2000, it is only the Overseers who were promoted by way of recruitment by transfer and there was no direct recruitment to the post of Assistant Engineer after the Special Rules. Therefore, the directly recruited A.Es. are strangers to the service and they are not at all entitled for promotion and nevertheless they were given promotion as if they were recruited under the Special Rules. When the Government and the Director wanted to give the benefit, they ought to have considered them as the persons recruited under the Special Rules only from the date of issuance of the Special Rules, in which event, they are not having 5 years experience. Therefore, when ineligible persons are promoted as AEEs, applying the same analogy, the petitioners should have been given promotion without insisting for 5 years experience, which has not been done. The Department should have fixed a ratio at least for the present vacancies, because, if all the vacancies are filled up, they would go only to the directly recruited A.Es, who are youngsters and there will not be any vacancy in the near future. Even if future vacancies arise, all such vacancies will go to them only inasmuch as they have gained 5 years of experience and the promotee AEs are to retire only as AEs inasmuch as they already served a number of years in the lower post. Therefore, the denial of ratio is per se arbitrary and without any application of mind. By oversight, there was a lacunae in G.O. Ms. No.15 by not recognising the justifiable separate identity of AE-promotees and by not fixing a suitable ratio for their promotion to AEE post. In W.P. No.26973 of 2005, while seeking for a direction to the Government to give retrospective effect to the promotion made to Overseers as A.Es. on 02.09.2002 as 25.05.1998, it is averred that a Rule cannot have two retrospective dates and that too for the same post i.e., for the post of AE, hence, it constitutes an anamoly in G.O. Ms. No.15. AE promotees are having more than two decades of experience in executing various Panchayat Union Works and they have acquired the Degree Qualification much earlier than the AE - Direct Recruits as evident from the service particulars submitted. As the delay in effecting promotions is due to the delay on the part of the R.D. Department in not initiating timely action to fill up the vacancies and as AE-Direct Recruits have already been given 'double advantage', it is only fair, justifiable and reasonable to give retrospective effect to the promotions given to the Overseers as AE in the RD Department with effect from 25.05.1998, i.e., the date of retrospective effect given in G.O.Ms. No.295 dated 14.12.2001. In W.P. No.26990 of 2005, the Association challenges Rule 3(2) of Notification-III of G.O. Ms. No.15, R.D. Department, dated 25.01.2000. Apart from reiterating what was stated in the earlier Writ Petitions, it is also said that since the direct recruits and the promotees are different and distinct, it is necessary that a ratio should be fixed between them. If it is not done, the petitioners will not get an opportunity to be promoted to the next higher post (AEE) for the rest of the service with the Department and all of them will have to retire in the present post itself, i.e., A.E. It is further stated that when once the direct recruits and promotees are posted in one cadre namely Assistant Engineer, no favourable treatment to direct recruits alone shall be given, which is violative of Articles 14 and 16 of the Constitution of India. The respondents ought to have seen that seniority should be fixed by rotation in a case when a service is composed of fixed proportion of direct recruits and promotees. The principle of determination of seniority of the direct recruits and the promotees inter se in the ratio of 1:1 shall have to be followed so as not to cause injustice to anyone in the Department.