Madras High Court
C.Vijaya Baskar vs The Government Of Tamil Nadu on 21 August, 2023
W.P.Nos.11779 & 18604 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.08.2023
CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.Nos.11779 & 18604 of 2017
1. C.Vijaya Baskar
2. P.Senthilkumar
3. S.Selvam Petitioners in
4. S.Prakash .. W.P.No.11779 of 2017
1. P.Arivalagan
2. M.Seenuvasan
3. V.Harikrishnan
4. R.Santhanakrishnan
5. B.Sakthivel
6. R.Arulmozhi Selvi
7. S.Mohammed Yaseen
8. D.Vijayaragunath
9. A.D.Tamilselvan
10. P.Prasath
11. A.Arivoli
12. A.Narayanan
13. R.Kalaiselvi
14. P.R.Jayashree
15. A.Ganesan
16. P.Prakash
17. M.Vijayakumar
18. R.Mugugesan
19. R.Valli
Page 1 of 22
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W.P.Nos.11779 & 18604 of 2017
20. K.Vellingiri
21. M.Elankumaran
22. R.Chandrasekar
23. V.Palanivel
24. S.Pandiyan
25. K.Eswaramoorthy
26. R.Chandran
27. N.Arun
28. P.G.Palaniswaamy
29. K.Kaneeswari
30. A.Shankar
31. R.Anburaj
32. S.Boopathyraja
33. P.Murthy
34. S.Kannan
35. T.Karthik
36. A.Saravanan
37. N.Kumaresan
38. T.Sankar
39. P.Ashokkumar
40. P.Rajeswari
41. R.Ragunathan
42. R.Saravanan
43. R.Sureshkumar
44. N.T.Thangamani
45. M.Thangavelu
46. S.Sethuraman
47. M.Jessymalathi
48. T.Mohan Babu
49. P.Ulaganathan
50. J.S.Jayaraj
51. G.Palanisamy
52. K.Kumar
53. V.M.Murugesan
54. M.Poompavai
55. N.Jagadeesh Kumar
56. S.Deepamani
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W.P.Nos.11779 & 18604 of 2017
57. A.Thamhil
58. R.Manivannan
59. G.Deivani
60. R.Thiyagu
61. V.john Britto
62. T.Senthil Kumar
63. S.Ranjithkumar
64. G.R.Muthukumar
65. P.Poornadevi
66. V.Karthickkumar
67. S.Karpagam
68. M.Sivaraj
69. R.Raveendran
70. T.Tharmalingam
71. P.Karthik Kumar
72. S.Senthil Kumar
73. S.Mahalakshmi
74. K.Elango
75. S.P.Senthilkumar
76. T.Sasikumar
77. R.Krishnamoorthy
78. A.Elavanil
79. M.Sakthivani
80. V.Sakthivel
81. S.Rajendran
82. S.Srinivasaprabhu
83. K.Poonkodi
84. D.Srinivasan Petitioners in
85. G.Gayathiri .. W.P.No.18604 of 2017
Vs.
1. The Government of Tamil Nadu
Rep. by its Secretary
Rural Development & Panchayat Raj Department
Fort St. George, Chennai – 9.
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W.P.Nos.11779 & 18604 of 2017
2. The Director of Rural Development &
Panchayat Raj Department
Panagal Building Respondents in
Saidapet, Chennai – 15. .. W.P.No.11779 of 2017
1. The Government of Tamil Nadu
Rep. by its Secretary
Rural Development & Panchayat Raj Department
Fort St. George, Chennai – 9.
2. The Director of Rural Development &
Panchayat Raj Department
Panagal Building, Saidapet, Chennai – 15.
3. M.Kolanjiappan
Assistant Engineer (RD)
Kalrayan Hills Panchayat Union
Villupuram District.
4. K.Kandasamy
Assistant Engineer (RD)
Kadavur Panchayat Union, Karur District.
5. S.Kanagaraj
Assistant Engineer (RD)
Sirkali Panchayat Union
Nagapattinam District.
6. D.Veeramani
Assistant Engineer (RD)
Kottampatti Panchayat Union
Madurai District.
7. R.Ilango
Assistant Engineer (RD)
Ramanathapuram Panchayat Union
Ramanathapuram District.
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8. V.Veeramanikandan
Assistant Engineer (RD)
Andipatti Panchayat Union
Theni District.
9. G.Sridharan
Assistant Engineer (RD)
Thiruvaiyur Panchayat Union
Thanjavur District.
10. M.Balakrishnan
Assistant Engineer (RD)
Thiruppulani Panchayat Union
Ramanathapuram District.
11. P.Deivakumar
Assistant Engineer (RD)
Kadayanallur Panchayat Union
Tirunelveli District.
12. M.Sahul Hameed
Assistant Engineer (RD)
Sriperumputhur Panchayat Union
Kancheepuram District.
13. K.Kunjumadan
Assistant Engineer (RD)
Mudukulathur Panchayat Union
Ramanathapuram District.
14. M.Kolanjiappan
Assistant Engineer (RD)
Kalrayan Hills Panchayat Union Respondents in
Villupuram District. .. W.P.No.18604 of 2017
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Common Prayer: Petition filed under Article 226 of the Constitution of
India seeking a writ of declaration, declaring the impugned ad hoc
Rules framed in G.O.Ms.No.15 Rural Development (E1) Department
dated 25.01.2000 in respect of the post of Assistant Executive
Engineer is concerned as illegal and unconstitutional and consequently
direct the respondents not to consider a Junior Engineer appointed as
Junior Engineer in a particular year or with lesser experience in the
category of Junior Engineer earlier to an Assistant Engineer, appointed
in the same year during which the said Junior Engineer was appointed
or with longer experience than the said Junior Engineer in the category
of Assistant Engineer, for appointment to the category of Assistant
Executive Engineer.
For the Petitioners : Mr.N.Subramaniyan
in both W.Ps
For the Respondents : Mr.K.M.D.Muhilan
in both W.Ps Additional Government Pleader
COMMON ORDER
(Made by the Hon'ble Chief Justice)
The petitioners herein are Assistant Engineers under the
Tamil Nadu Panchayat Department Service. The prima donna grievance
of the petitioners is that the post of Assistant Engineer is the feeder
category for the post of Assistant Executive Engineer, however the post
of Junior Engineer, which is lower than the post of Assistant Engineer is
also the feeder category for the post of Assistant Executive Engineer.
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W.P.Nos.11779 & 18604 of 2017
2. Learned counsel for the petitioners submits that the Junior
Engineers are from Subordinate Services, while Assistant Engineers
are from the State Services. The scale of pay for Junior Engineers is
lower when compared with the Assistant Engineers.
2.1. Assistant Engineers possess higher qualification by holding a
Degree in Civil Engineering, while the Junior Engineers are holding only
Diploma in Civil Engineering. The prescribed qualification mandates
service period of not less than five years for both Assistant Engineers
and Junior Engineers for the promotional avenue to the post of
Assistant Executive Engineer is bad in law, as Assistant Engineers are
higher in rank compared with the Junior Engineers.
2.2. It is further submitted that there is a quota for the Assistant
Engineers and the Junior Engineers for such promotion to the post of
Assistant Executive Engineers, viz., 6:2, with higher quota in favour of
the Assistant Engineers.
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2.3. According to learned counsel for the petitioners, higher
qualification would naturally result in higher efficiency, as laid down by
the Apex Court in the case of State of Jammu & Kashmir vs. Triloki
Nath1. The very quota of 6:2 between the Assistant Engineers and the
Junior Engineers for promotion to the post of Assistant Executive
Engineer, giving clear edge to Assistant Engineers than the Junior
Engineers is defeated.
2.4. The impugned Rules, insofar as enabling the Junior
Engineers, who are lower in category possessing lower qualification to
get promoted as Assistant Executive Engineer earlier before the
Assistant Engineers, possessing higher qualification, is violative of
Article 14 and 16(2) of the Constitution of India. Thus, lesser qualified
and lesser experience became the basis for qualification, which does
not have any rational nexus with the object of efficiency in public
administration mandated under Article 335 of the Constitution of India.
1 (1974) 1 SCC 19
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2.5. The impugned Rules are required to be declared as void
insofar as making the Junior Engineers, who are in lower category with
lesser qualification and lesser experience, eligible to be appointed as
Assistant Executive Engineers earlier to Assistant Engineers, who are
in higher service with higher qualification and longer experience.
Reliance is placed on the judgment of the Apex Court in the case of
Sakuntala Sharma vs. High Court of H.P., Shimla2.
3. Per contra, learned Additional Government Pleader submits
that the appointment of Junior Engineers is only by way of promotion
and not by direct recruitment. The feeder category to the post of
Junior Engineer is the post of Overseer. Before a person reaches the
post of Junior Engineer, he should have served for a minimum period
of fifteen years in the post of Overseer, thereby gaining vast
experience. Whereas, the appointment of Assistant Engineers is by
direct recruitment and the qualification prescribed is a Degree in
Engineering.
2 (1994) 2 SCC 411
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3.1. It is further submitted that minimum service of not less than
five years is prescribed for both Assistant Engineers and the Junior
Engineers before they are considered for promotion to the post of
Assistant Executive Engineer. Though qualification prescribed for
promotion to the post of Assistant Executive Engineer is a minimum
experience of not less than five years for both Assistant Engineers and
Junior Engineers, in reality, Junior Engineers would have rendered
service of not less than twenty years, while the Assistant Engineers
would have rendered service of only five years.
3.2. Though Assistant Engineers possess higher qualification by
way of a Degree in Engineering and Junior Engineers possess lower
qualification of a Diploma, such difference is equated by taking into
account the total experience of twenty years of service gained by the
Junior Engineers.
3.3. Learned Additional Government Pleader relied upon the
judgment of the Apex Court in the case of Dilip Kumar Garg and Ors.
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vs. State of U.P.3, and in the case of P.Murugesan and Ors. vs. State of
Tamil Nadu and Ors4. It is held that the Rule prescribing the ratio of
3:1 between Graduates and Diploma-holders in promotion, as also the
longer qualifying period of service for Diploma-holders is valid.
Reliance is also placed on the judgment of the Apex Court in the case
of Union of India vs. Pushpa Rani and Ors5.
3.4. It is further submitted by learned Additional Government
Pleader that for appointment to the post of Assistant Executive
Engineer from Assistant Engineers and Junior Engineers in Rural
Development Department is fixed as 3:1 as per the Government Order
in G.O.(Ms.) No.259, Rural Development (E1) Department dated
14.12.2001.
4. We have considered the submissions canvased by learned
counsel appearing for the parties.
3(2009) 4 SCC 753
4(1993) I LLJ 944 SC
5 (2008) 9 SCC 243
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5. The phraseology “recruitment” includes various methodologies
for inducting a person into public service. Recruitment could be by
promotion, selection, appointment, deputation and transfer.
Recruitment to public services and various other posts could be
regulated by framing Rules and Regulations, resorting to Article 309 of
the Constitution of India. The State is empowered to take a policy
decision and frame Rules and Regulations with regard to the manner of
recruitment.
6. This Court, in exercise of its powers under Article 226 of the
Constitution of India, would not readily interfere with the policy, unless
it is satisfied that the Rule making Authority has acted arbitrarily,
unreasonably or in such a capricious manner so as to erode upon the
Fundamental Rights guaranteed under Articles 14 & 16 of the
Constitution of India.
7. In the present case, the appointment to the Assistant
Executive Engineer post is governed by Notification 3 of the Tamil Nadu
Panchayat Department Service Rules framed vide G.O.(Ms) No.15,
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W.P.Nos.11779 & 18604 of 2017
dated 25.01.2000 of the Rural Development (E1) Department. The
method of appointments are:
1. (a) Recruitment by transfer from the categories of
Junior Engineer and Senior Draughting Officer of the
Tamil Nadu Rural Development Department and;
(b) Promotions from the category of Assistant
Engineer in the Rural Development Department.
2. The ratio for the appointment to the post, by
promotion from the category of Assistant Engineer
and by recruitment by transfer from the categories of
Junior Engineer and Senior Draughting Officer shall
be 6:2:1.
The manner of rotation to be followed is also detailed under the said
Rules.
8. The qualification for appointment as an Assistant Executive
Engineer is a Degree in Civil Engineering or pass in Sections A and B
Examinations (AMIE) conducted by the Institution of Engineers and
should have served as an Assistant Engineer for a period of not less
than five years. The other methodology is recruitment made by
transfer from the category of Junior Engineer in Rural Development
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W.P.Nos.11779 & 18604 of 2017
Department and Senior Draughting Officer and the qualification is
Diploma in Civil Engineering and should have served as a Junior
Engineer or Senior Draughting Officer, as the case may be, for a period
of not less than five years in the Tamil Nadu Rural Development
Department.
9. Assistant Engineers are appointed by direct recruitment only
and there is no source of appointment by promotion and the minimum
qualification is a Degree in Engineering. Whereas, the post of Junior
Engineers are filled only by promotion and not by direct recruitment.
The feeder category for promotion to the post of Junior Engineer is the
post of Overseer. Before a person reaches the post of Junior Engineer,
he should have served for a minimum of fifteen years in the post of
Overseer. A person working as an Assistant Engineer for a period of
five years is considered for promotion to the post of Assistant
Executive Engineer, so also the person working for not less than five
years as a Junior Engineer can also be considered, but prior to that,
the Junior Engineer necessarily has to render service of fifteen years in
the post of Overseer before he is promoted to the cadre of Junior
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Engineer.
10. The qualifications prescribed for promotion to the post of
Assistant Executive Engineer is a minimum experience of not less than
five years for both Assistant Engineers and Junior Engineers. Though
Assistant Engineers possess a qualification of a Degree and the Junior
Engineers that of a Diploma, still Junior Engineers are considered for
promotion to the next higher post after rendering five years of service,
but prior to that, he has to render service of fifteen years as an
Overseer.
11. More over, the ratio for appointment to the post of Assistant
Executive Engineers from Assistant Engineers and Junior Engineers in
the Rural Development Department is fixed as at the ratio of 3:1 as
per G.O.(Ms).No.259 Rural Development (E1) Department dated
14.12.2001. So, if four posts are vacant, three are filled-up from the
cadre of Assistant Engineer and one post from the post of Junior
Engineer. It is not merely that a person after completing service of five
years is automatically designated as an Assistant Executive Engineer. It
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depends upon the availability of the vacancies in the post and that too
by maintaining the ratio of 3:1. Such methodology cannot be
considered to be illegal and ultra vires of Articles 14 and 16 of the
Constitution of India.
12. On the basis of facts of the case of Shankuntala Sharma2
(supra), the Apex Court observed that it is not necessary to go into the
question whether Rule 11 of 1990 Rules, which provided for the
promotion to the post of the Superintendent was valid or not. The
Apex Court observed that the basic weakness in Rule 10 is that it
places two unequal set of posts on par with each other and also
prescribes qualifying service for higher post as well.
12.1. In the said case, Rule 10 provides that appointment to the
post of Superintendent was “by promotion from amongst Graduate
Deputy Superintendents / Revisors with minimum 3 years of service as
such in the ratio of 4:1, failing which, by promotion from amongst
Senior Assistants / Translators with minimum 6 years' service as such
2 (1994) 2 SCC 411
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in the same ratio”.
12.2. The Apex Court observed that the substance of the Rule is
that the appointment to the post of Superintendent is to be made by
promotion from amongst the Graduate Deputy Superintendents and
Revisors with a minimum of three years of service in the ratio of 4:1,
i.e., four from Deputy Superintendents and one from Revisors.
Appointment from Revisor to the post of the Superintendent is to be
made only after four from Deputy Superintendent are promoted to the
said post. If none from the Deputy Superintendents and Revisors with
the minimum of three years' service is available, appointment is to be
made from amongst the Senior Assistants and Translators with
minimum service of six years in the said posts.
12.3. In the said judgment, the Apex Court has held that if none
from the Deputy Superintendents and Revisors with the minimum of
three years' service is available, the appointment is to be made from
amongst the Senior Assistants and Translators with minimum service
of six years in the said posts. The appellant therein had not put in
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three years' service as Revisor. She was dis-entitled to the post of
Superintendent. On the relevant date, i.e, on 03.12.1992, there was
no Deputy Superintendent or Revisor with minimum three years'
service in the respective posts, hence, the post was given to the
second respondent therein, as he was Senior Assistant with more than
six years' service.
13. In the present case, the ratio of 6:2:1 or 3:1 is fixed. The
Junior Engineers cannot encroach upon the post earmarked for
promotion from the feeder category of Assistant Engineers to the post
of Assistant Executive Engineer. The ratio is nowhere to be deviated,
even if Assistant Engineers are not available.
14. In the case of The State of Jammu and Kashmir1 (supra),
classification was between the Assistant Engineers of Degree-holders
and Diploma-holders. In the said case, the Apex Court observed that
classification on the basis of educational qualification, made with a
view to achieving administrative efficiency, cannot be said to rest on
1 (1974) 1 SCC 19
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any fortuitous circumstance and one has always to bear in mind the
facts and circumstances of the case in order to judge the validity of a
classification.
15. It is settled that when the State makes a classification
between two sources, unless the vice of the classification is writ large
on the face of it, the person assailing the classification must show that
it is unreasonable and violative of Article 14 of the Constitution of
India. The Apex Court in the case of Dilip Kumar Garg and Ors.
vs. State of U.P6, held that the decision of the Government treating the
Diploma-holders on the same footing of Degree-holders was not
unconstitutional and that the Government is the best judge to take a
policy decision in this regard. The Courts cannot act as an appellate
body.
16. In the case of P.Murugesan and Ors. vs. State of Tamil Nadu
and Ors.7, the Apex Court upheld the Rule prescribing the ratio of 3:1
between the Graduates and the Diploma-holders for promotion,
6 (2009) 4 SCC 753
7 (1993) I LLJ 944 SC
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observing the longer period of service rendered by the
Diploma-holders. The facts in the case of P.Murugesan7 (supra) are
nearer to the facts involved in the present case.
17. The Administrative Authorities are in the best position to
decide the requisite qualifications for promotion to the post of
Assistant Executive Engineer from Junior Engineer and it is not for the
Court to sit over their decision like a Court of Appeal.
18. The power of Judicial Review in the mode of recruitment,
restructuring the cadres prescribing qualification, are matters that fall
in the employers' domain and the scope of Judicial Review would be in
a narrow campus. The Court would exercise its power of Judicial
Review only if the State action is contrary to the Constitutional or
statutory provisions or is vitiated by malafides and/or is arbitrary.
Some leverage will have to be given to the employers to adopt to the
methodology of recruitment.
7 (1993) I LLJ 944 SC
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19. In the light of the aforesaid discussions, we do not find that
G.O.Ms.No.15, Rural Development (E1) Department dated 25.01.2000
suffer from arbitrariness nor are violative of Articles 14 and 16 of the
Constitution of India.
20. The writ petitions, as such, are dismissed. There will be no
order as to costs. Consequently, W.M.P.Nos.20178 & 12754 of 2017
are closed.
(S.V.G., CJ.) (P.D.A., J.)
21.08.2023
Index : Yes/No
Neutral Citation : Yes/No
drm
To
1. The Secretary
The Government of Tamil Nadu
Rural Development & Panchayat Raj Department
Fort St. George, Chennai – 9.
2. The Director of Rural Development &
Panchayat Raj Department
Panagal Building, Saidapet, Chennai – 15.
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W.P.Nos.11779 & 18604 of 2017
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
(drm)
W.P.Nos.11779 & 18604 of 2017
21.08.2023
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