Madras High Court
T.Kuruthivel Maran vs The Government Of Tamilnadu on 23 November, 2023
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).Nos.4287, 4288 & 21380 of 2022, 17614 & 19113 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 30.10.2023
ORDER PRONOUNCED ON : 23 .11.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).Nos.4287, 4288 & 21380 of 2022 and 17614 & 19113 of 2023
and
W.M.P(MD).Nos.15853 & 14715 of 2023, 15547 of 2022, 15854, 14716
and 18021 of 2023 and 3644 & 3646 of 2022
and 17934 and 18353 of 2023
W.P(MD).No.4287 of 2022
T.Kuruthivel Maran ....Petitioner
Vs
1.The Government of Tamilnadu
Through its Additional Chief Secretary
Public Works (A1)Department
Secretariat
Chennai
2.The Government of Tamil Nadu
Through its Additional Chief Secretary
Water Resources Department
Secretariat
Chennai
3.The Engineer-in-Chief(Buildings)
Public Works Department, Secretariat
Chennai 5
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4.The Engineer-in-Chief
Water Resources Department
Chennai – 5 ...Respondents
Prayer in WP(MD).No.4287 of 2022: This Petition filed under Article 226
of the Constitution of India, to issue a Writ of Certiorarified Mandamus to
call for the records of the impugned G.Os.in G.O(3D) No.31 and consequent
G.O(3D)No.32 both dated 20.10.2021 on the file of the first respondent and
quash the same and further directing the respondents to prepare the year wise
panel by taking into consideration of the reservation for SC/ST communities
in the promotional post of Assistant Executive Engineer.
Prayer in WP(MD).No.4287 of 2022
For Petitioner : Mr.G.Prabhu Rajadurai
For Respondents : Mr.R.Sureshkumar
Additional Government Pleader
COMMON ORDER
W.P(MD).Nos.4288 of 2022, 17614 of 2023 and 19113 of 2023 have
been filed by the Assistant Engineers (now working as Assistant Executive
Engineers) who were recruited in the year 1998 in the Public Works
Department.
2.W.P(MD).Nos.4287 and 21380 of 2022 have been filed by the
Assistant Engineers (now working as Assistant Executive Engineers) who
were selected in the year 1999 in the Public Works Department.
3.The interse seniority between the petitioners and others were fixed on
the basis of communal roster by Tamil Nadu Public Service Commission at
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the time of their selection. Under the impugned Government orders, the
respondents have revised the seniority list on the basis of merit list prepared
by TNPSC at the time of their selection.
4.In view of the common question involved, all the writ petitions are
tagged together.
(A). 5.Prayer in the writ petitions:
5(i).WP(MD).No.4287 of 2022:
The present writ petition has been filed challenging G.O(3D).No.31
Public Works (A1) Department, dated 20.10.2021 wherein a supplementary
temporary list of Assistant Engineers/Junior Engineers fit for promotion to
the post of Assistant Executive Engineers (Civil) for the year 2010-2011 was
approved and the seniority list of Assistant Engineers (Civil) was revised
based upon the orders of the Hon'ble Supreme Court of India in Contempt
Petition (Civil).No.638 of 2017. In the said writ petition, G.O(3D).No.32
Public Works (A1) Department, dated 20.102021 wherein the temporary list
of Assistant Engineers for being promoted as Assistant Executive Engineers
(Civil) for the year 2013-2014 was approved and the revised seniority list was
published. Both these Government Orders are under challenge.
5(ii)W.P(MD).No.4288 of 2022:
The present writ petition has been filed challenging G.O(3D).No.29
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Public Works (A1) Department, dated 20.10.2021 wherein the temporary list
of Assistant Engineers fit for promotion to the post of Assistant Executive
Engineers (Civil) for the year 2007-2008 was approved and the seniority list
of Assistant Engineers (Civil) was revised based upon the orders of the
Hon'ble Supreme Court in Contempt Petition (Civil) No.638 of 2017 and
consequent G.O(3D).No.30, Public Works (A1)Department, dated 20.10.2021
wherein the temporary list of Assistant Engineers fit for promotion to the post
of Assistant Executive Engineers (Civil) for the year 2010-2011 was
approved and the seniority list of Assistant Executive Engineers was revised
based upon the orders of the Hon'ble Supreme Court in Contempt Petition
(Civil).No.638 of 2017. Both these impugned orders are under challenge in
this writ petition.
5(iii).WP(MD).No.21380 of 2022:
The present writ petition has been filed challenging
G.O(2D).No.23, Public Works (A1) Department, dated 30.08.2022 wherein a
temporary list of Assistant Executive Engineers (Civil) fit for promotion as
Executive Engineers (Civil) in Public Works Department for the year
2022-2023 was approved. A consequential prayer has been sought for to
direct the official respondents to prepare the year wise panel by taking into
consideration of the reservation for SC/ST communities in the promotional
post of Assistant Executive Engineer.
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5(iv).WP(MD).No.17614 of 2023:
The present writ petition has been filed challenging the
proceedings of the Engineer-in-Chief and Chief Engineer (General), Public
Works Department, dated 13.10.2021 wherein the revised seniority list
communicated by TNPSC pursuant to the order of the Hon'ble Supreme Court
is under challenge. G.O(D).No.126 Water Resources (A2) Department, dated
19.06.2023 wherein the promotion of Assistant Executive Engineers (Civil)
as Executive Engineers (Civil) in Water Resources Department is also under
challenge. A further consequential prayer has been sought to restore the
seniority of the writ petitioner to Rank No.22.
5(v).WP(MD).No.19113 of 2023:
The present writ petition has been filed seeking to quash the
proceedings of the Engineer-in-Chief, Public Works Department, Chennai,
dated 13.10.2021 wherein the seniority list of the Assistant Engineer(Civil)
was revised pursuant to the orders of the Hon'ble Supreme Court. A
consequential Government Order (3D).No.30, Public Works (A1)Department,
dated 20.10.2021 wherein a temporary list of Assistant Engineers fit for
promotion to the post of Assistant Executive Engineers(Civil) for the year
2010-2011 was approved. Consequentially the petitioner has sought to restore
his seniority at Rank No.49.
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(B).6. The facts leading to the filing of these writ petitions are as follows:
(i)All these writ petitioners have been recruited and appointed in the
year 1998-1999 as Assistant Engineers (Civil) in Public Works Department.
At the time of their recruitment, their interse seniority was fixed based upon
the communal roster. One Santosh Kumar and others who belong to 1999
batch had filed a writ petition seeking to quash the seniority list and to refix
the seniority on the basis of merit list prepared by TNPSC. The said writ
petition was dismissed by the learned Single Judge. On appeal, the Hon'ble
Division Bench in a judgment reported in (2015) 4 MLJ 281 (N.Santosh
Kumar and others Vs. The Tamil Nadu Public Service Commission and
others) had set aside the said judgment and directed the official respondents
to take their rank assigned by the Service Commission to the selectees, as the
basis for fixation of seniority and issue appropriate orders within a period of
four weeks. This order was challenged before the Hon'ble Supreme Court in
SLP(Civil).No.14794 of 2015 and 23070 and 2371 of 2015. The Hon'ble
Supreme Court was pleased to dismiss the Special Leave Petition on
22.01.2016.
(ii)The Tamil Nadu Public Service Commission had filed a Review
Petition (Civil) No.3148 of 2016 seeking to review the said order. The said
Review Application was also dismissed on 25.08.2020. One of the
beneficiaries of the order of the Hon'ble Supreme Court had filed Contempt
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Petition (Civil).No.638 of 2017. The Hon'ble Supreme Court was pleased to
find that the official respondents have committed contempt and directed them
to revise and publish the seniority list of the selectees strictly on the basis of
the merit determined by TNPSC in the selection process and not on the basis
of roster point. This order was passed by the Hon'ble Supreme Court on
01.10.2021.
(iii)Pursuant to the orders of the Hon'ble Supreme Court, TNPSC had
revised the seniority list of the Assistant Engineers selected in the year
1998-1999 in their letter dated 12.10.2021 and communicated the same to the
Public Works Department. In the contempt proceedings, the Chief Secretary
of Government of Tamil Nadu had filed an affidavit before the Hon'ble
Supreme Court on 24.09.2023 to the effect that the State has proceeded to
revise the seniority as far as the original petitioners in the contempt petitions
are concerned, as per the undertaking given by it, pursuant to the orders of
the Hon'ble Supreme Court dated 19.01.2021 in Contempt Petition
(Civil).No.638 of 2017.
(iv)In TNPSC in their letter dated 12.10.2021 addressed to the
Engineer-in-Chief, Water Resources Department and Chief Engineer
(General), Public Works Department had furnished the revised seniority list
of candidates as per merit order passed by the Hon'ble Supreme Court of
India recruited for the post of Assistant Engineers (Civil) in Public Works
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Department during 1997-1998, 1997-1999 and 2006-2007. Based on the said
letter issued by TNPSC, the Public Works Department had issued the
impugned Government Orders and the impugned orders revising the seniority
in the cadre of Assistant Engineers (Civil) and the promotion panel to
Assistant Executive Engineers.
(C).7. Contentions of the learned counsel appearing for the writ
petitioners are as follows:
(i)The petitioners are Schedule Caste candidates and their seniority was
fixed by TNPSC at the time of their recruitment based upon the communal
roster. Only based upon the said seniority, they are able to reach up to the
level of Assistant Executive Engineers. Otherwise it would be impossible for
them to move to the higher cadre.
(ii)The seniority got settled way-back in the year 1999-2000 and the
promotions have been effected based upon the communal roster seniority.
Therefore, unsettling the said seniority would not only result in reversion of
the Schedule Caste candidates, but also it would affect the morale of the
members of the service.
(iii)As per judgment of the Hon'ble Supreme Court in AIR 1993 SC
477 (Indra Sawhney & Others v. Union of India) dated 16.11.1992, Article
16(4) provides only for reservation at the time of appointment and it will not
extend to reservation to promotion. In order to remove the base of the said
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judgment, Article 16(4A) was introduced by way of 77th amendment for
providing reservation in matters of promotion in favour of the Schedule Caste
and Schedule Tribes, if they are not adequately represented. This Article was
further amended to confer consequential seniority to the SC and ST
candidates who were promoted based on communal reservation. Therefore,
the promotion already effected based on communal roster should only be
construed to be in consonance with Article 16(4A) of Constitution of India
and therefore, they need not be disturbed or revisited.
(iv)The Tamil Nadu Act 45 of 1994 provides for reservation not only
at the time of appointment, but also at the time of promotion. Therefore, the
promotion effected by the Department based upon the communal roster
seniority are having a statutory backing and therefore, the said seniority and
the promotion effected shall not be disturbed
(v)Sections 3(b) and 3(q) of Tamil Nadu Government Servants
(Conditions of Service) Act, 2016 will clearly point out that the appointment
includes promotion. Therefore, the promotion of the petitioners herein based
upon the communal roster should be preserved and the same shall not be
disturbed or the seniority be revised.
8.The learned counsel for the petitioners in WP(MD).Nos.4288 of 2022
and 21380 of 2022 had contended that as per judgment of the Hon'ble
Supreme Court, Article 16(4A) of the Constitution of India is an enabling
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provision permitting the State to bring in legislation for providing reservation
to Scheduled Caste and Scheduled Tribes people in promotion. In consonance
with the said Article, Tamil Nadu Act 45 of 1996 and Tamil Nadu Act 14 of
2016 provide for reservation in promotion also. Therefore, the judgment of
the Hon'ble Supreme Court may not be applicable to the facts of the present
case.
9.The learned counsel for the petitioners had relied upon the judgment
of the Hon'ble Supreme Court in Civil Appeal Nos.529 and 530 of 2023
( Reserve Bank of India & others Vs. A.K.Nair & others) dated 04.07.2023
reported in 2023 INSC 613 to contend that the Hon'ble Supreme Court has
interpreted Section 33 Persons with Disabilities Act, 2016 and have arrived at
a finding that even though no provision has been made for reservation in
promotion for physically challenged person, the same can be construed.
10.The Hon'ble Supreme Court has also interpreted Section 34 of
Persons with Disabilities Act, 2016 to the effect that the Act expressly makes
available benefits of reservation to promotional posts for persons with
disabilities. It was further submitted that the Hon'ble Supreme Court has
interpreted the word “appoint” and held that the promotion is also included
within the definition of appointment. Therefore, even assuming without
admitting that there is no statutory backing for providing reservation to SC
and ST candidates in promotion, in view of interpretation of the Hon'ble
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Supreme Court in the Persons with Disabilities Act, 2016 and in the light of
the Article 16 (4A) of the Constitution of India, it could only be construed
that the communal roster seniority already fixed by the authorities should be
preserved and protected so that, the same is reflected in the higher cadre also
while effecting promotion. Hence, he prayed for setting aside the order of the
Government wherein their original seniority based on communal roster has
been revised based upon the order of the Hon'ble Supreme Court and to
restore their seniority fixed by TNPSC at the time of their appointment.
(D).11.Contentions of the learned Additional Advocate General are
as follows:
(i)Tamil Nadu Act 45 of 1996 only protects 69% of reservation in
Educational Institution and in public appointments. It does not speak about
providing reservation in promotion.
(ii)In Section 41 of Tamil Nadu Act 14 of 2016 which deals with
promotion, there is no reference about accelerated promotion to the SC and
ST candidates by providing reservation in promotion.
(iii)The writ petitioners have only challenged the order of the
department revising the seniority without challenging the revised seniority
published by Tamil Nadu Public Service Commission.
(iv)All the Government Orders which are impugned in the writ
petitions clearly reflect that they have been issued in compliance with the
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order of the Hon'ble Supreme Court. The writ petitioners belong to
1998-1999 batch of Assistant Engineers. The issue relating to their seniority
was already decided by the Hon'ble Division Bench of our High Court in a
judgment reported in (2015) 4 MLJ 281 (N.Santosh Kumar and others Vs.
The Tamil Nadu Public Service Commission and others) which was
confirmed by the Hon'ble Supreme Court and it has attained finality. Only
after contempt proceedings were initiated by the beneficiaries, by orders of
the Hon'ble Supreme Court, TNPSC has issued revised seniority list, based
upon which, each one of the departments of Government of Tamil Nadu are
issuing revised seniority list for their respective members. These writ
petitions having been filed by some other members of the same batch are not
maintainable.
(v)The cut-off date fixed by the Hon'ble Supreme Court in its order
dated 18.04.2023 is not applicable to the petitioners. In fact, paragraph No.22
of the said order is also not in favour of the writ petitioners, but it is in favour
of the official respondents.
(E).12.Contentions of the learned counsel appearing for TNPSC:
(i)The order of the Hon'ble Division Bench of our High Court in a
judgment reported in (2015) 4 MLJ 281 (N.Santosh Kumar and others Vs.
The Tamil Nadu Public Service Commission and others) dated 31.03.2015
was confirmed by the Hon'ble Supreme Court in SLP(Civil).Nos.23070 and
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23071 of 2015 on 22.01.2016. The Review Petition filed by Tamil Nadu
Public Service Commission was also dismissed by the Hon'ble Supreme
Court on 25.08.2020. In contempt proceedings in Civil Appeal No.4954 of
2016, an order was passed by the Hon'ble Supreme Court on 01.10.2021
directing the TNPSC to revise and publish the seniority list of the selectees
strictly on the basis of the merit determined by it in the selection process.
Only in compliance with the order of the Hon'ble Supreme Court, TNPSC has
issued a communication on 12.10.2021 to the Public Works Department
revising the seniority list of all the candidates recruited in 1997-1998,
1997-1999 and 2006-2007. An affidavit of compliance was filed before the
Hon'ble Supreme Court on 19.01.2022. Based upon the said affidavit, the
contempt proceedings were closed. Therefore, the contention of the writ
petitioners that their original seniority based on communal roster should be
restored is bereft of any merits and it would be clearly in violation of the
orders of the Hon'ble Supreme Court.
(ii)The petitioners having not challenged the communication of
TNPSC revising the seniority list, but only challenging the consequential
order passed by the Public Works Department, the writ petitions are not
maintainable.
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(F).13.Contentions of the learned counsel appearing for the private
respondents:
(i)There is no provision under Tamil Nadu Act 14 of 2016 or in Tamil
Nadu Act 45 of 1996 providing for reservation in promotion. Article 16(4A)
of Constitution of India was introduced by way of 77th amendment with effect
from 17.06.1995. Therefore, on the date when Tamil Nadu Act 45 of 1996
came into existence, the order of the Hon'ble Supreme Court in India in Indra
Sawhney's was holding the field. Hence, no such interpretation could be
given to the provisions of Tamil Nadu Act 45 of 1996 to the effect that it
provides for reservation in promotion also.
(ii)Section 27 of Tamil Nadu Act 14 of 2016 does not provide for any
reservation in promotion. Ground No.'C' raised in WP(MD).No.21380 of
2022 to the effect that the Tamil Nadu Engineering Service Special Rule
provides for reservation is factually incorrect. Unless there is a violation of
fundamental rights or statutory rights, a writ petition would not be
maintainable. In the present case, though Article 16(4A) of Constitution of
India provides for reservation in promotion, as per the judgment of the
Hon'ble Supreme Court, unless the State Government makes a specific
provision or come out with a policy decision for providing reservation in
promotion, the same cannot be implemented.
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(iii) In the present case, the petitioners do not have any statutory rights
to get their communal roster seniority restored and that too in violation of the
orders of the Hon'ble Supreme Court. He had further contended that the
reservation in promotion is not followed in any department of Government of
Tamil Nadu. Hence, he prayed for dismissal of the writ petitions.
14.I have considered the submissions made on all the parties and
perused the material records.
(G).Discussion:
15.The petitioners were recruited to the post of Assistant Engineers
(civil) in Public Works Department in the year 1998-1999. They were
governed by Special Rules of Tamil Nadu Engineering Service. At the time of
their appointments, their seniority was fixed as per communal roster. Based
upon the said seniority, they were promoted as Assistant Executive Engineers
in which they are functioning as on the date of filing of the writ petition.
These facts are not in dispute.
16.The Hon'ble Supreme Court in a judgment reported in (2003) 5
SCC 604 (Bimlesh Tanwar Vs. State of Haryana and others) in Paragraph
No.40 has held as follows:
“40.An affirmative action in terms of Article 16(4) of the
Constitution is meant for providing a representation of class of
citizenry who are socially or economically backward. Article 16
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of the Constitution of India is applicable in the case of an
appointment. It does not speak of fixation of seniority. Seniority
is, thus, not to be fixed in terms of the roster points. If that is
done, the rule of affirmative action would be extended which
would strictly not be in consonance of the constitutional schemes.
We are of the opinion that the decision in P.S. Ghalaut does not
lay down a good law.”
17.Based upon the said judgment, 1999 batch Assistant Engineers in
Public Works Department had filed a writ petition to revise their seniority on
the basis of merit. Though the said writ petition was dismissed, on appeal the
Hon'ble Division Bench was pleased to allow the writ appeal and the said
judgment is reported in (2015) 4 MLJ 281( N.Santosh Kumar and others
Vs. The Tamil Nadu Public Service Commission and others). The judgment
of the Hon'ble Division Bench has been confirmed by the Hon'ble Supreme
Court. Therefore, the legal issue that interse seniority of the candidates
recruited and selected through a common examination should be fixed only
on the basis of the merit rank prepared by TNPSC and not on the basis of
communal roster has reached its finality.
18.The Hon'ble Supreme Court has reiterated the said view in a recent
decision reported in 2022 SCC Online SC 782 (Manoj Parihar and others
Vs. State of Jammu & Kashmir and others). Paragraph No.29 of the said
judgment is extracted as follows:
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“29. Thus, the principle of law discernible from all the
aforesaid decisions of this Court is that the roster system is only for
the purpose of ensuring that the quantum of reservation is reflected
in the recruitment process. It has nothing to do with the interse
seniority among those recruited. To put it in other words, the roster
points do not determine the seniority of the appointees who gain
simultaneous appointments; that is to say, those who are appointed
collectively on the same date or are deemed to be appointed on the
same date, irrespective when they joined their posts.....”
19.In view of attaining finality of the legal issue, the beneficiaries of
the orders of the Hon'ble Supreme Court initiated contempt proceedings as
against TNPSC and their respective departments to implement the order of
the Hon'ble Supreme Court in letter and spirit. The Hon'ble Supreme Court by
its order dated 10.01.2021 in Paragraph No.28 has held as follows:
“28.We therefore direct the respondents to revise and publish
the seniority list of the selectees, who were selected in the selection
process conducted in pursuance of the notification issued by
TNPSC dated 10th September 1999, strictly on the basis of the merit
determined by it in the selection process and not on the basis of the
roster point. The same shall be done within a period of 12 weeks
from the date of this order.”
(H).20.Analysis of Impugned Orders:
(i) A perusal of G.O.Ms.Nos.29,30, 31 and 32 all dated 20.10.2021
which are impugned in the writ petitions clearly point out that those
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Government Orders have been issued by the Public Works Department
pursuant to the orders of the Hon'ble Supreme Court and in compliance with
the orders of the Hon'ble Supreme Court, dated 01.10.2021 relying upon
paragraph No.28 as referred above.
(ii).G.O.(2D).No.23, dated 30.08.2022 which is impugned in
W.P(MD).No.21380 of 2022 reveals that it is only a consequential order
wherein the temporary list of Assistant Executive Engineers who are fit for
promotion as Executive Engineers for the year 2023 have been approved. A
perusal of the proceedings of the Chief Engineers dated 13.10.2021 and
G.O.Ms.No.126 Water Resources Department dated 19.06.2023 which are
impugned in WP(MD).No.17614 of 2023 reveals that they have been issued
in compliance with the orders of the Hon'ble Supreme Court in Contempt
Petition(Civil) No.638 of 2017 dated 01.10.2021. There is also a reference to
the letter of TNPSC dated 12.10.2021 wherein the seniority list fixed was
revised by the Public Service Commission. Therefore, the Government
Orders and the reference impugned in the writ petition clearly reveal that they
are in compliance with the orders of the Hon'ble Supreme Court which has
already attained finality. The prayers of the writ petitioners that their seniority
has been unsettled after 25 years without issuing any notice to them is not
legally sustainable.
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(I).Effect of Hon'ble Supreme Court Order dated 18.04.2023:
21.The learned counsel appearing for the petitioners placed reliance
upon the order of the Hon'ble Supreme Court dated 18.04.2023 in Contempt
Petition(Civil).No.6415 of 2021 to contend that a cut-off date has been fixed
by the Hon'ble Supreme Court in paragraph No.17 of the said order.
Therefore, any seniority that was fixed prior to the said date shall not be
disturbed. They further relied upon paragraph No.22 of the said order of the
Hon'ble Supreme Court to support their contention.
22. In paragraph Nos.17, 21 and 22 of the said order dated 18.04.2023,
the Hon'ble Supreme Court has held as follows:
“17.We, therefore, though are not inclined to disturb the
seniority lists which are finalized prior to 10th March, 2003
wherein the benefit is granted to either of the parties ie. as per the
roster or as per the seniority list, the seniority list finalized after
10th March, 2003 will have to be re-visited in accordance with the
law laid down by this Court in Bimlesh Tanwar(supra) and the
first judgment of the Madras High Court.
21.We therefore, direct the State Government to complete
the exercise of finalising the seniority lists of selection processes
conducted after 10th March, 2003 on the basis of the principle that
the seniority list shall be reckoned only on the basis of the merit
as determined by TNPSC in the selection process.
22.It is further made clear that if any list is finalized in case
of selections held prior to 2003 giving benefit to the persons
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selected as per their seniority or as per merit, the same shall also
not to be disturbed.”
23.The Hon'ble Supreme Court has categorically held that any seniority
list that was finalized prior to 10.03.2003 wherein the benefit is granted to
either of the parties that is as per roster or as per seniority list shall not be
disturbed. However, any seniority list finalised after 10.03.2003 will have to
be revisited in accordance with law laid down in Bimlesh Tanwar's case and
the first judgment of the Madras High Court. The Hon'ble Supreme Court has
further directed the State Government to complete the finalisation of seniority
on the basis of merit as determined by TNPSC. The Hon'ble Supreme Court
was pleased to fix a cut off date for the first time in its order dated
18.04.2023. Therefore, if any one of the departments have already followed
Bimlesh Tanwar's before 18.04.2023 and revised the seniority list (from
roster to merit) the same shall not be disturbed. Therefore, the Hon'ble
Supreme Court has only protected merit basis seniority list prepared by
TNPSC( pursuant to Bimlesh Tanwar's case) before 18.04.2023.
24.In the present case, the seniority list has been revised by TNPSC
with regard to the petitioners herein based upon their communication dated
12.10.2021 which is prior to 18.04.2023. Therefore, the order of the Hon'ble
Supreme Court dated 18.04.2023 cannot be taken advantage of by the writ
petitioners. In fact, the Chief Secretary to Government by his letter dated
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06.07.2023 has directed all the Secretaries to revise the seniority list based
upon the orders of the Hon'ble Supreme Court dated 18.04.2023.
(J).Whether reservation in promotion is a fundamental right?
25.The Hon'ble Supreme Court in a judgment reported in (2006) 8
SCC 212 (M.Nagaraj and others Vs. Union of India and others) has
categorically held that Article 16 (4A) of the Constitution of India is only an
enabling provision and the State is not bound to make reservation for SC and
ST candidates in the matter of promotion. However, if the State intends to
exercise their discretion, they have to collect quantifiable data showing
backwardness of the class and inadequacy of representation of that class in
public employment. The ratio laid down in the said judgment was approved
by another Five Judges Bench reported in (2018) 10 SCC 396 ( Jarnail
Singh and others Vs. Lachhmi Narain Gupta and others). However, the
direction to the State in a judgement reported in (2006) 8 SCC 212
(M.Nagaraj and others Vs. Union of India and others) to collect
quantifiable data was held to be invalid. The Three Judges Bench of the
Hon'ble Supreme Court in a judgment reported in (2022) 10 SCC 595
(Jarnail Singh and others Vs. Lachhmi Narain Gupta and others) has held
that the judgment reported in (2006) 8 SCC 212 (M.Nagaraj and others Vs.
Union of India and others) is prospective in nature.
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W.P(MD).Nos.4287, 4288 & 21380 of 2022, 17614 & 19113 of 2023
26.The Hon'ble Supreme Court in a judgment reported in (2020) 3
SCC 1 (Mukesh Kumar and another Vs. State of Uttarakhand and others)
in paragraph No.18 has held that the State Government is not bound to make
reservations. There is no fundamental right to claim reservation in promotion
and therefore, no mandamus can be issued by the Court directing the State
Government to provide reservation.
(K).Whether statutory rules in Tamil Nadu provide for reservation
in promotion?
27.An argument was advanced by the learned counsel appearing for the
writ petitioner in WP(MD).Nos.4288 and 21380 of 2022 to the effect that
already reservation in promotion has been provided by statutes in Tamil Nadu
and this fact is brought to the notice of the Court only for the first time.
Hence, the seniority issue may be reconsidered in the light of the said
statutes.
28.There is no dispute that the petitioners are governed by Special
rules of the Tamil Nadu Engineering Service. Rule 2(b) and Rule 4 are
extracted as follows:
“2.Appointment:....
(b).Promotion as Chief Engineers, Superintending
Engineers, Executive Engineers and Assistant Executive
Engineers shall be made on grounds of merit and ability seniority
being considered only where merit and ability are approximately
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W.P(MD).Nos.4287, 4288 & 21380 of 2022, 17614 & 19113 of 2023
equal.
4. Reservation of appointment.—The rule relating to
reservation of appointments (General rule 22) shall apply for
appointment by direct recruitment to all the posts, if the cadre
strength of which is more than one. The roster prescribed in
Schedule III to the General rules for the Tamil Nadu State and
Subordinate Services shall be followed. “
29.A parimateria provision in Tamil Nadu Highways Engineering
Service Rules came up for consideration before the Hon'ble Supreme Court
relating to reservation in promotion and consequential seniority. In the
judgment reported in (2015) 10 SCC 292 ( S.Panneer Selvam and others Vs.
State of Tamil Nadu and others), paragraph Nos. 25 and 26 are extracted as
follows:
“25. The respondents placed heavy reliance upon Rule 12 of
the Special Rules to Tamil Nadu Engineering Service and contended
that their consequential seniority is protected in terms of Rule 12
and under Article 16 (4A) of the Constitution of India. Rule 12
reads as under:-
“Rule 12: Reservation of appointments: The rule of
reservation of appointments (General Rule 22) shall apply to the
appointment of Assistant Divisional Engineers by direct recruitment
and recruitment by transfer separately and the appointment of
Assistant Engineers by direct recruitment.”
As per Rule 12, reserved category Assistant Engineers and
the reserved category Junior Engineers secured promotion as
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W.P(MD).Nos.4287, 4288 & 21380 of 2022, 17614 & 19113 of 2023
Assistant Divisional Engineers much earlier to the general category
Assistant Engineers and Junior Engineers respectively because of
their accelerated promotion following rule of reservation.
26. The true legislative intent under Article 16 (4A) of the
Constitution is to enable the State to make provision or frame rules
giving consequential seniority for the accelerated promotion gained
based on the rule of reservation. Rule 12 evidently does not provide
for the consequential seniority for reserved category promotees at
any point of time. The consequential seniority for such reserved
category promotees can be fixed only if there is express provision
for such reserved category promotees in the State rules. In the
absence of any specific provision or policy decision taken by the
State Government for consequential seniority for reserved category
accelerated promotees, there is no question of automatic
application of Article 16 (4A) of the Constitution”
30.The Hon'ble Supreme Court in the judgment cited supra has
categorically held that the said Rule-12 (which is parimateria to Rule 4 of
Tamil Nadu Engineering Service Rules) does not provide for consequential
seniority for reserved category promotees at any point of time. The Hon'ble
Supreme Court was pleased to hold that the consequential seniority can be
fixed only if there is an express provision for reserved category of promotees
in the State Rule. In the absence of any specific provisions, there is no
question of automatic application of Rule 16(4A) of the Constitution of India.
Therefore, the contention of the learned counsel appearing for the writ
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W.P(MD).Nos.4287, 4288 & 21380 of 2022, 17614 & 19113 of 2023
petitioner that their service rules provide for reservation in promotion is not
legally sustainable.
31.A further submissions was made on behalf of the petitioners that
Tamil Nadu Act 14 of 2016 and Tamil Nadu Act 45 of 1996 provide for
reservation in promotion and therefore, there is being a statutory backing, the
promotion granted to the writ petitioners based on communal roster seniority
should be protected. A perusal of Tamil Nadu Act 45 of 1996 clearly reveals
that it protects only 69% communal reservation in Education Institutions and
in public employment. There is no whisper about the reservation in
promotion or for consequential seniority. A perusal of Tamil Nadu
Government Servants (Conditions of Service) Act 2016 (Act 14 of 2016)
reveals that in Sections 27 and 41 of the said Act, no provision has been made
for granting reservation in promotion to Scheduled Caste and Scheduled
Tribes employees.
(L).32.Conclusion:
(a).A combined reading of the judgement of the Hon'ble
Supreme Court referred to above will clearly indicate that Article 16(4A) of
Constitution of India is only an enabling provision and unless the State
Government makes a specific provision or takes a policy decision, the right
emanating from Article 16(4A) cannot be enforced. In the present case, in the
preceding paragraphs, this Court has already arrived at a finding that neither
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W.P(MD).Nos.4287, 4288 & 21380 of 2022, 17614 & 19113 of 2023
Tamil Nadu Act 45 of 1996 nor Tamil Nadu Act 14 of 2016 provide for
reservation in promotion and the Service Rules governing the writ petitioners
also not provide for any reservation in promotion.
(b).The revision of seniority from roster to merit based for the same
batch of employees hailing from Public Works Department has already
attained finality which has not been modified by the orders of the Hon'ble
Supreme Court, dated 18.04.2023.
(c).In view of the above said deliberations, there are no merits in the
writ petitions. All the writ petitions are dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
23.11.2023
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
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W.P(MD).Nos.4287, 4288 & 21380 of 2022, 17614 & 19113 of 2023
To
1.The Additional Chief Secretary
Government of Tamilnadu
Public Works (A1)Department
Secretariat
Chennai
2.The Additional Chief Secretary
The Government of Tamil Nadu
Water Resources Department
Secretariat
Chennai
3.The Engineer-in-Chief(Buildings)
Public Works Department, Secretariat
Chennai 5
4.The Engineer-in-Chief
Water Resources Department
Chennai – 5
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W.P(MD).Nos.4287, 4288 & 21380 of 2022, 17614 & 19113 of 2023
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).No.4287, 4288 & 21380 of
2022 and 17614 & 19113 of 2023 and
W.M.P(MD).Nos.15853 & 14715 of 2023,
15547 of 2022, 15854, 14716 and 18021
of 2023 and 3644 & 3646 of 2022 and
17934 and 18353 of 2023
23.11.2023
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