Madras High Court

K.Murugan vs The Government Of Tamil Nadu on 26 October, 2021

                                   IN THE HIGH COURT JUDICATURE AT MADRAS
                                              DATED: 26.10.2021
                                                     CORAM
                                   THE HON'BLE MR. JUSTICE P.VELMURUGAN
                                             W.P.No. 33541 of 2007
                                              and M.P.No.2 of 2007
                 1.K.Murugan
                 2.P.Krishnamoorthy
                 3.R.Anbarasan
                 4.R.Kunjjithapatham                                  ...Petitioners
                                                Vs
                 1.The Government of Tamil Nadu
                   Rep. By the Secretary
                   Public Works Department
                   Fort St.George, Chennai-9

                 2.The Chief Engineer(GI)
                   Public Works Department
                   PWD Campus, Chepauk
                   Chennai-5

                 3.The Tamil Nadu Public Service Commission
                   Rep. By its Secretary
                   Government Estate, Chennai-2

                 4.K.Ravindran
                   Assistant Engineer (PWD)
                   Water Resources Organisation
                   Mamallapuram

                 5.P.Sridhar                                    ...Respondents


                 1/23


https://www.mhc.tn.gov.in/judis/
                 Prayer: Writ petition is filed under Article 226 of the Constitution of India
                 prayed to issue a WRIT OF Declaration declaring the redesignations of the Junior
                 Engineers on acquiring B.E.Degree as Assistant Engineers in Public Works
                 Department ordered by the 2nd respondent after 11.09.1985, in so far as
                 redesignating the Junior Engineers as Assistant Engineers even before approval
                 of satisfctory completion of probation in the category of Junior Engineer and
                 without preparing an approved list of candidates following the procedure, criteria
                 etc., contemplated under the Tamil Nadu State and Subordianate Service Rules,
                 especially General Rules 4 and 36A and Special Rules to Tamil Nadu
                 Engineering service by giving retrospective effect from the day following the
                 laste date of examination of B.E.Degree and reckoning the seniority of such
                 redesignated Assistant Engineers from the aforesaid anterior date, is illegal
                 unconstitutional and void ab initio and consequently direct the 2nd respondent to
                 cancel all the orders of such redesignations and fixation of seniority issued after
                 11.09.1985 and further direct the 2nd respondent to appoint only the Junior
                 Engineers, who are approved probationer in the category of Junior Engineer and
                 who have acquired B.E.Degree after entering service as Junior Engineer, as
                 Assistant Engineers by recruitment by transfer only after preparation of a list of
                 approved candidates after following all the procedures, evaluation criteria etc., as
                 contemplated under Tamil Nadu State and subordinate Service Rules and Special
                 Rules to Tamil Nadu Engineering Service and to reckon the seniority of such
                 Assistant Engineers appointed or to be appointed by recruitment by transfer from
                 Junior Engineers only from the actual date of appointment and place them below
                 the last Assistant Engineer selected by Tamil Nadu Public Service Commission

                 2/23


https://www.mhc.tn.gov.in/judis/
                 whose select list was communicated to the 1st respondent in the same year as
                 contemplated under rule 2(E) of Special Rules to Tamil Nadu Engineering
                 service.
                                   For Petitioners : Mr.N.Subramaniayan


                                   For Respondents : Mr.K.Magesh, Spl.Govt.Pleader
                                                     for R1 and R2
                                                     Mr.S.Namasivayam for R4 and R5
                                                     R3- No appearance.


                                                         ORDER

This writ petition is filed seeking a direction to the 2nd respondent to cancel

all the orders of redesignations and fixation of seniority ordered by the 2 nd

respondent on 11.09.1985 and to direct the 2nd respondent to appoint only the

Junior Engineers, who are approved probationer in the category of Junior

Engineer and who have acquired B.E. Degree after entering service as Junior

Engineer, as Assistant Engineers by recruitment by transfer only after preparation

of a list of approved candidates after following all the procedures as contemplated

under Tamilnadu State and Subordinate Service Rules and Special Rules to

Tamilnadu Engineering service.

https://www.mhc.tn.gov.in/judis/

2. It is averred in the writ petition that the Engineering personnel in the

Tamilnadu Public works Department are governed by the Special Rules to

Tamilnadu Engineering Service and Special Rules to Tamilnadu Engineering

Subordinate Service. The category of Assistant Engineer and above, up to Chief

Engineer, are coming under, Tamilnadu Engineering Service, a State Service, and

the categories viz., Junior Engineer, Draughtsmen and below are coming under

Tamilnadu Engineering Subordinate Service, a Subordinate Service. The category

of Assistant Engineer was originally under Tamilnadu Engineering Service in

G.O.Ms.No.496 dated 17.02.71 which was given statutory effect by the

amendments issued retrospectively in G.O.Ms.Nos.1581 and 1582 even dated

11-09-85. Prior to issue of G.O.Ms.No.294 PWD dated 22-2-77, the Junior

Engineers were known as Supervisors, the Assistant Engineers were known as

Junior Engineers and Assistant Executive Engineers were known as Assistant

Engineers.

3. The methods of recruitment for the post of Assistant Engineer when

under Tamilnadu Engineering Subordinate Service were:

(i) Direct recruitment through TNPSC and

https://www.mhc.tn.gov.in/judis/

(ii)By designating Junior Engineers who possess B.E. Degree as Assistant Engineers.

The aforesaid designation of Junior Engineers who possess B.E. Degree as

Assistant Engineers was based on the provisions under the “Note” appended to

the constitution of categories in Rule 1 of Tamilnadu Engineering Subordinate

Service. The above said note was available in the rules even from 1950s. Even

though part time B.E degree was introduced only during 1970s, the provisions

under the said 'Note' were used to re-designate the Junior Engineers who acquire

B.E. Degree as Assistant Engineers. The categories, Assistant Engineer and

Junior Engineer, even though are separate and distinct categories, they occupy an

office known as Section Office and the vacancies accruing in that Section office,

i.e., in both categories of Assistant Engineers and Junior Engineers, every year

shall be apportioned between Assistant Engineers and Junior Engineers at a ratio

of 75%:25% (3:1). Accordingly the 75% of vacancies accruing every year in the

category of both Assistant Engineer and Junior Engineer are filled by Assistant

Engineers from degree holders and the balance 25% vacancies are filled by the

Junior Engineers from the diploma holders.

4. The amendments were issued to Special Rules to Tamilnadu Engineering

https://www.mhc.tn.gov.in/judis/ Service in G.O.Ms.Nos 1581 and 1582 both dated 11-09-1985, based on which

the category of Assistant Engineer became 5th category in Tamilnadu Engineering

Service and the method of Appointment to the category of Assistant Engineer

thereafter became

(i) By direct recruitment through TNPSC and

(ii) By recruitment by transfer from Junior Engineers, overseers, civil draughts men who acquire B.E. Degree after entering service as Junior Engineer.

Thus the concept of the re-designation of Junior Engineer as Assistant Engineer

on acquiring B.E. Degree came to an end on 11.09.1985, the date on which the

rules were amended by bringing the category of Assistant Engineer as 5th category

in Tamilnadu Engineering Service and the method of Appointment to the

category of Assistant Engineer from Junior Engineer became recruitment by

transfer thereafter. As per the amended rules, a Junior Engineer who acquired

B.E. Degree after entering service as Junior Engineer can be appointed as

Assistant Engineer only by recruitment by transfer after preparation of panel and

publishing the same in Government Gazette as per Rule 4(a) of General Rules.

The date of appointment shall have to take effect only from the date of order of

such appointment. The seniority of such Assistant Engineers appointed by

https://www.mhc.tn.gov.in/judis/ recruitment by transfer as aforesaid in a calendar year shall be placed below the

last Assistant Engineer selected by direct recruitment in that calendar year

through Tamilnadu Public Service Commission, and the calendar year shall be

decided based on the date of communication of the list by Tamilnadu Public

Service Commission as mandated under rule 2(e) of Special Rules to Tamilnadu

Engineering Service.

5. The 1st respondent issued G.O.Ms.No.66 P.W.D dated 12.03.2007

wherein orders were issued to reckon the seniority of Assistant Engineers

redesignated from the category of Junior Engineers who acquired B.E. Degree by

placing them above the Assistant Engineers directly recruited if the date from

which the re-designation is given effect to is earlier to the actual date of

appointment orders of directly recruited Assistant Engineers and vice versa. The

petitioners have challenged the said G.O. in W.P.No.14865 of 2007.

6. The respondents 4 and 5 and their Association have filed

W.P.Nos.17596, 21008, 24783, 28771 of 2007 praying to implement the G.O.66

dated 12.03.07. A perusal of G.O.66 dated 12.03.07 and the affidavits filed in

https://www.mhc.tn.gov.in/judis/ support of the Writ Petitions show that the 2nd respondent have been continuously

redesignating the Junior Engineers who acquired B.E.Degree even after

11.09.1985, the date on which the category of Assistant Engineer was brought

under Tamilnadu Engineering service and method of appointment of Assistant

Engineers from the Junior Engineers who acquired B.E. Degree became

recruitment by transfer as per rule and 2 and 5 of Special Rules to Tamilnadu

Engineering Service. It is pertinent to note that the 2 nd respondent had not

published the appointment of Assistant Engineers made by redesignation of

Junior Engineers in the Tamilnadu Government official Gazette as mandated

under rule 4 of Tamilnadu State and Subordinate Service Rules.

7. It is submitted by the petitioners that an appointee became full member

of a service only after confirmation by satisfactory completion of probation. A

Junior Engineer if acquires B.E. Degree will become only eligible to be

considered for appointment as Assistant Engineer by recruitment by transfer as

per rules 2 and 5 of Special Rules to Tamilnadu Engineering service. Thereafter

the 2nd respondent has to prepare an approved list of Junior Engineers with B.E.

Degree who are approved probationers and against whom no charges, under rule

https://www.mhc.tn.gov.in/judis/ 17(b) of Discipline and Appeal Rules, are pending and whose records are rated,

based on merits, making them eligible for inclusion in the list of approved

candidates, and after approval of the list, the same has to be published in the

official Government gazette and also to be communicated by registered post to all

the persons concerned to receive objections if any as contemplated under rules 4,

36A, etc., of General rules of Tamilnadu State and Subordinate Service.

Thereafter appointments are to be made from the said approved list and a

candidate became appointed as Assistant Engineer only from the date on which he

discharges duty as Assistant Engineer as defined under rule 2 of Part-1,

Preliminary, of Tamilnadu State and Subordinate Service Rules. The seniority of

such Assistant Engineers shall be reckoned only from the rank in the approved

list among themselves. The inter se seniority of such Assistant Engineers

recruited by transfer shall be fixed by placing them below the last Assistant

Engineer selected by direct recruitment through Tamilnadu Public Service

Commission in the same year in which the appointments were actually made by

recruitment by transfer.

8. The petitioners would submit that respondents 4 and 5 were appointed

https://www.mhc.tn.gov.in/judis/ as Junior Engineers on 05.06.1986 and 07.03.1986 respectively. They have been

initially redesignated as Assistant Engineers by the 2nd respondent in proceedings

dated 26.07.1995 and 11.06.1994 respectively giving retrospective effect to the

redesignations from 05.06.1988 and 07.03.1988 respectively, the days following

the date of completion of probation in the category of Junior Engineer as ordered

in G.O.No.1586 dated 15.11.1993. Shockingly the said orders were

reviewed/revised by the 2nd respondent, without any power or authority for such

review or revision, in his proceedings dated 18.07.2000 and 06.03.2000

respectively on the representations of the said respondents directing their

redesignations to take retrospective effect from 16.12.1986, the day following the

last date of examination of B.E.Degree in blatant violation of the Tamil Nadu

State and Subordinate Service and Special Rules to Tamil Nadu Engineering

Service. Aforesaid redesignations of Junior Engineers like respondents 4 and 5 as

Assistant Engineers and reckoning their seniority from the day following the last

date of Examination of B.E.degree seriously affect the vested rights of seniority

of the petitioners.

9. A direct recruit Assistant Engineer is appointed only after competing in

https://www.mhc.tn.gov.in/judis/ the open competition among thousands of engineering graduates. Without any

test or criteria or even without prescribing any minimum length of service but

simply on the strength of acquiring B.E. Degree, Assistant Engineers

redesignation is done. This is nothing but back door entry to the post of Assistant

Engineer. Therefore the very concept of redesignation of Junior Engineers as

Assistant Engineers being ordered by the 2nd respondent after 11.09.1985 is

arbitrary, unreasonable and is against the efficiency of public administration

mandated under Art.335 of Constitution of India. Therefore the said

redesignations of Junior Engineers as Assistant Engineers ordered by the 2nd

respondent so far, after 11.09.1985, are unconstitutional and liable to be

cancelled.

10. Respondents 1 and 2 filed Counter affidavit. In the counter affidavit, it

is submitted that the issue has already been adjudicated by the Hon'ble Supreme

Court of India in the case of B.Thirumal Vs Ananda Sivakumar and other

reported in (2013 8 MLJ 479(SC)), in which the Hon'ble Supreme Court has

observed as follows:-

“16. xxx xxx it is evident that upgradation which is

https://www.mhc.tn.gov.in/judis/ synonymous to redesignation in the facts of this case simply confers a financial benefit by raising the scale of pay of the posts without there being movement from a lower position to a higher position. In the case of upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale” xxx xxx xxx

17. The rationale behind upgradation not being considered tantamount to promotion would, in our opinion, apply with full force even to a case where the upgradation / redesignation is sought to be termed as a case of recruitment by transfer. If the process of upgradation / redesignation has no correlation to the vacancies available in the State Engineering Service and if such upgradation/redesignation is granted as a matter of course without any selection process and merely on the incumbent acquiring a degree qualification, we see no reason why such upgradation / redesignation should be treated as a case of appointment to the said service by transfer. What could not constitute promotion (assuming that the post of Assistant Engineer (Electrical) was a post of Subordinate Service) cannot obiviously be considered to be a case of appointment by transfer.

22. The upshot of the above discussion is that the degree holder Junior Engineers continue to be members of the Subordinate Engineering Service even after they are redesignated as Assistant

https://www.mhc.tn.gov.in/judis/ Engineers upon them getting a degree qualification. They can, therefore, be considered only against the 25% quota reserved for the Subordinate Service and not against 75% reserved for the State Service members directly recruited to that, service or appointed by transfer in terms of the Rules. To the extent the redesignated Assistant Engineers have been considered in the past for promotion in the quota reserved for Assistant Engineers in the State Service, the consideration was legally bad. Having said that, we do not propose to interfere with what has been done in the past especially when there is no challenge before us to the appontment of the re- designated Assistant Engineers as Assistant Executive Engineers against vacancies falling in the 75% quota. The settled position need not, therefore, be unsettled at this stage in these proceedings. With the above observations and clarification these appeals fail and are hereby dismissed, but in the circumstances without any orders as to costs.”

11. It is therefore, evident that the Hon'ble Apex Court has taken

cognizance of the fact that a Degree holder Junior Engineer is re-designated as

Assistant Engineer without correlation to the estimate of vacancies and the

redesignation is granted as a matter of course without any selection process and

https://www.mhc.tn.gov.in/judis/ merely on the incumbent acquiring a Degree qualification. Therefore the

proposition that the redesignation of a Degree holder Junior Engineer as an

Assistant Engineer need not necessarily be done against the estimate of vacancy

has been accepted and upheld by the Hon'ble Apex Court.

12. It is also submitted by respondents 1 and 2 that the Tamilnadu

Engineering Association, Public Works Department, represented by its General

Secretary Thiru K.Ravindran, has filed W.P.No. 24783 of 2007 on the file of

High Court Madras, praying for a issue of a Writ of Mandamus, directing the

respondents to implement G.O(Ms) No.66, Public Works (B2) Department, dated

12.03.2007, for preparing the seniority list of the Junior Engineers who are

redesignated as Assistant Engineers by placing them above the Assistant

Engineers selected by the Tamilnadu Public Service Commission in the year

1986. By common order, dated 15.10.2014, in W.P. No. 34276, 14865 and 24783

of 2007, have taken cognizance of the Hon'ble orders of the Apex Court in Civil

Appeal Nos. 10660-10662 of 2013 filed by Thiru B.Thirumal, and has ordered as

follows:-

“6. We have examined the judgement of the Honourable

https://www.mhc.tn.gov.in/judis/ Supreme Court in B.Thirumal case cited supra, which has a direct bearing on the controversy in question. As usual, there is no stand of the State Government on record. It really cannot be disputed now that acquiring of a B.E. Degree would not confer automatically on the Junior Engineers a promoted post, but only among to re- designation of their post as Assistant Engineers. They, thus continue to be part of the Tamil Nadu Engineering Subordinate Service and can be promoted only under the 25% quota. As far as the persons who have already been erroneously promoted under the 75% quota are concerned, the order of the Honourable Supreme Court protects them to the extent, that it does not seek to set at naught what has been done in the past. It however, does not take care of the issue of inter-se-seniority, which would not have to be examined by the State Government in the context of those persons still being part of the Tamil Nadu Engineering Subordinate Service. There are no details as to how many posts were available at the relevant point of time when promotions took place and under which quota. The seniority list would undoubtedly have to be worked out again on the basis of the Judgment pronounced by the Honourable Supreme Court and thus, while the Judgment protects the Junior Engineers from being demoted, inter-se-seniority may be affected as a consequence of the ratio of the said Judgment, which we have discussed aforesaid. We, thus call upon the State Government to apply its mind to the issue of inter-se-seniority in the context of the

https://www.mhc.tn.gov.in/judis/ aforesaid Judgement and accordingly circulate a draft seniority list, invite objections and thereafter publish the final seniority list. This task be carried out within a maximum period of six months from today.

7.The writ petitions accordingly stand disposed of. No costs.”

13. It is submitted that the Hon'ble Supreme Court of India and the Hon'ble

High Court of Madras, has already answered the prayer of the petitioners with

regard to 1st part pertaining to re-designation of Junior Engineers as Assistant

Engineers on acquiring B.E. Degree qualification and with regard to the 2nd part

pertaining to placing of Seniority of such re-designated Assistant Engineers on

acquiring B.E. Degree qualification.

14. The respondents 1 and 2 also submitted that though the appointment of

Junior Engineers, who possess B.E. Degree has been defined as recruitment by

transfer in rule 5 of the Special Rules for Tamil Nadu Engineering Services, the

basic difference between Junior Engineer and Assistant Engineer is that the

former is a diploma holder and the later is a degree holder. When a Junior

Engineer acquires B.E. Degree, he becomes eligible for appointment as Assistant

Engineer from the date of acquiring of B.E. Degree as per rules 2 and 5 of the

https://www.mhc.tn.gov.in/judis/ Special Rules for Tamil Nadu Engineering Services read with ruling 2 under rule

26(a) of the Fundamental Rules. In appointing a Junior Engineer as Assistant

Engineer, the date of issue of order is irrelevant and the date of acquiring of B.E.

Degree alone will be a criterion for redesignation. Therefore, even if a panel is

prepared for the appointment of Assistant Engineers from the post of Junior

Engineer, the appointment as Assistant Engineer will take effect only from the

date of acquiring of B.E degree and not from any prospective date.

15. It is further submitted that as the Junior Engineers were appointed as

Assistant Engineers only after acquiring the required B.E. Degree, the stipulation

in rule 36 A of the General Rules for Tamil Nadu State and Subordinate Services

now under section 43 of the Tamil Nadu Government Servants (Conditions of

Services) Act, 2016 was not violated. It is further submitted that the procedure

stipulated in rule 4(a) of the General rules for Tamil Nadu State and Subordinate

Services now under section 7(1) of the Tamil Nadu Government Servants

(Conditions of Services) Act, 2016 is meant to be adopted in respect of the cases

where appointments are made by promotion and recruitment by transfer against

the estimated number of vacancies expected to arise during the course of a year.

https://www.mhc.tn.gov.in/judis/ The appointment of Junior Engineers as Assistant Engineers on acquiring

B.E.Degree is not being made against any vacancies, since it is not more than

mere redesignation. The Junior Engineers even after appointment as Assistant

Engineers on acquiring B.E degree continue to work in the same post and perform

same duties. The duties and responsibilities attached to the posts of Junior

Engineer and assistant Engineer are the same. The only difference between the

posts is that the qualification prescribed for the post of Assistant Engineer is B.E.

Degree and the qualification prescribed for the post of Junior Engineer is

Diploma.

16. The respondents 1 and 2 would point out that the conferment of the

right of redesignation to Junior Engineers on acquiring B.E.Degree is based on

the provisions contained in rules 2 and 5 of the Special Rules for Tamil Nadu

Engineering Services read with ruling 2 under rule 26(a) of the Fundamental

Rules. The contention that mere possession of minimum educational qualification

for a post does not ipso facto makes a person eligible for appointment to the post

is not applicable to the redesignation of Junior Engineers who have already

entered service either by selection through Tamil Nadu Public Service

https://www.mhc.tn.gov.in/judis/ Commission or by the method of promotion from feeder categories. It is

submitted that as the appointment of respondents 4 and 5 were made on the basis

of the provisions contained in the Special Rules for Tamil Nadu Engineering

Services and General Rules for Tamil Nadu State and Subordinate Service, their

appointment as Assistant Engineers is valid.

17. In the counter affidavit, it is submitted by the respondents 1 and 2 that

respondents 4 and 5 were now promoted as Assistant Executive Engineers and

therefore, there is no need for granting any relief. Since the prayer of the

petitioners has already been answered by the Supreme Court in the case of

B.Thirumal Vs. Ananda Sivakumar and others reported in (2013) 8 MLJ 479

(SC) and also by this court by its common order dated 15.10.2014 in

W.P.Nos.34276, 14865 and 24783 of 2007, this writ petition is liable to be

dismissed.

18. Heard both sides and perused the records.

19. The issue raised in this writ petition has already been answered by the

https://www.mhc.tn.gov.in/judis/ Supreme Court in the case of B.Thirumal Vs. Ananda Sivakumar and others

reported in (2013) 8 MLJ 479 (SC) and also by this court by its common order

dated 15.10.2014 in W.P.Nos.34276, 14865 and 24783 of 2007. The Honourable

First Bench of this court vide order dated 15.10.2014 in W.P.Nos.34276, 14865

and 24783 of 2007, had an occasion to deal with similar issue and held in

paragraph 6 as under:-

“6. We have examined the judgment of the Honourable Supreme Court in B.Thirumal case cited supra, which a direct bearing on the controversy in question. As usual, there is no stand of the State Government on record. It really cannot be disputed now that acquiring of a B.E.Degree would not confer automatically on the Junior Engineers a promoted post, but only amount to re-designation of their post as Assistant Engineers. They, thus continue to be a part of the Tamil Nadu Engineering Subordinate Service and can be promoted only under the 25% quota. As far as the persons who have already been erroneously promoted under the 75% quota are to the extent that it does not seek to set as naught what has been done in the past. It however, does not take care of the issue of inter set seniority, which

https://www.mhc.tn.gov.in/judis/ would now have to be examined by the State Government in the context of those persons still being part of the Tamil Nadu Engineering Subordinate Service. There are no details as to how many posts were available at the relevant point of time when promotions took place and under which quota. The seniority list would undoubtedly have to be worked out again on the basis of the Judgment pronounced by the Honourable Supreme court and thus, while the Judgment protects the Junior Engineers from being demoted, inter set seniority may be effected as a consequence of the ratio of the said Judgment, which we have discussed aforesaid. We, thus call upon the State Government to apply its mind to the issue of inter se seniority in the context of the aforesaid Judgment and accordingly circulate a draft seniority list, invite objections and thereafter publish the final seniority list. This task be carried out within a maximum period of six months from today.