Association of Tamilnadu v. Govt of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 28.08.2023 Delivered on : 12.12.2023 CORAM THE HONOURABLE MR. JUSTICE R.SURESH KUMAR AND THE HONOURABLE MR. JUSTICE K.KUMARESH BABU Writ Appeal Nos.358 & 359 of 2014 W.A.No.358 of 2014

1.Association of Tamil Nadu Highways Engineers represented by its General Secretary, No.35, Taluk Office Road, Saidapet, Chennai – 600 015.

2.C.Saikumar

3.J.Kumaresan

... Appellants Vs

1.The Government of Tamil Nadu Represented by its Commissioner and Secretary, Highways Department, Fort St. George, Chennai – 9.

2.The Chief Engineer (General), Highways Department, Chepauk, Chennai – 5. Page No.1/21

3.K.Shanmughasundram

4.S.Asokan

5.D.Relton Chandrakumar

6.S.Veluswamy

7.V.Vijaya

8.C.Satish

9.K.Monoharan

10.R.Jayachandran

11.V.Arunachalam

12.Panneer Selvam

13.M.Shanmugavel

14.E.Rajamohan

15.D.Naterajan

16.A.Achuthan

17.G.Natarajan

18.T.Raju ... Respondents PRAYER:- Writ Appeal filed under Clause 15 of Letter Patent against the order dated 03.01.2014 made in W.P.No.1327 of 2005. For Appellants : Mr.N.Subramaniyan For Respondents : Mr.K.V.Sanjeev Kumar for R1 & R2 Special Government Pleader

No appearance of R3 to R18 W.A.No.359 of 2014

1.M.Someswaran

2.K.Lokanathan

3.M.Moahana Gandhi

4.R.Muthuchamy

5.P.Govindan

6.V.Uthaya Kumar

7.P.Chandra Page No.2/21

8.M.Ravi

9.B.Prabhakar

10.A.Matheswaran

11.K.Thangavel

12.M.Sathiaseelan

13.J.Muralikumar

14.V.Agila

15.T.Tharmaraj

16.M.R.Rajinikanth

17.A.Anaiappan

¶18K.Mariappan

19.M.Chandra Sekaran

20.I.Prabaharan Prince

21.C.Sathiyamoorthi

22.M.Murugaboopthy

23.A.Kumanan

24.G.Murugan

25.R.Lakshmi

26.A.Thangapandi

27.P.Dhanabalan

28.U.Arumuga Nainar

29.C.Merlin Chirstal

30.A.Eugin

31.M.Xavier Therese

32.R.Viswanathan

33.P.N.A.Balamurugan

34.K.Karunakaran

35.S.Gangadaran

36.K.Kannan

37.K.G.Jayaprakash

38.T.Thiruvarulselvan

39.N.K.S.Sree Anbarasu

40.G.Sekar

41.S.Malliga

42.R.Jose Antony Syril

43.M.Lenin Page No.3/21

44.C.Arulnathan

45.K.Balaji

46.D.Krishnamurthy

47.C.Sivakumar

48.A.Arutselvam

49.R.Selvaraj

50.A.Ganesan

51.V.Veerappan

52.R.Ravi

53.J.Kannan ... Appellants Vs

1.The Government of Tamil Nadu represented by its Secretary, Highways Department, Fort St.George, Chennai – 9.

2.The Chief Engineer (General) Highways Department, P.W.D, Building, Chepauk, Chennai – 5.

3.Tamil Nadu Public Service Commission, Represented by its Secretary, Government Estate, Chennai – 2.

4.V.Srinivasan

5.N.Subramanian

6.T.Relton Chandrakumar

7.R.Kandasamy

8.R.Lakshmanan

9.N.Kannappan

10.J.K.Paulraj

11.K.Suriya Prabakaran Page No.4/21

12.R.Jayachandran

13.R.Adhinathan

14.P.Guruvarettiyar

15.V.Puthiyanayagam

16.P.Sengottuvan

17.P.Chinnasamy

18.R.Kesavakannan

19.N.Nagarajan

20.G.Sathish

21.M.Shanmugavelu

22.K.Manoharan

23.K.Arumugasamy

24.R.Thangaraj

25.N.Rengaraj

26.K.Shanmugasundaram

27.G.Natarajan

28.M.Subramanian

29.V.Vijaya

30.Ramachandran

31.S.Bharathi

32.D.Natarajan

33.E.Rajmohan

34.P.Panneer Selvam

35.S.Veluchamy

36.A.Muthuchamy

37.M.M.Chakravarthy

38.V.Jayakumar

39.K.Thirumaran

40.Veerapandian

41.S.Vijayakumar

42.R.Sakthivel

43.S.Ashokan

44.M.Shanmugam

45.P.Vaiyapuri

46.P.Saraswathi

47.C.Gnanamurugan Page No.5/21

48.R.Vedaraniyan

49.A.C.Murugesan

50.R.Thangamuthu

51.T.Elangovan

52.R.Sundararajulu

53.T.Thamaraiselvan

54.M.Arumugam

55.P.Arunachalam

56.T.Raju

57.A.Achuthan

58.S.Jayanthi

59.M.Selvam

60.C.Ravi

61.M.Xavier Jayaseelan ... Respondents PRAYER:- Writ Appeal filed under Clause 15 of Letter Patent against the order dated 03.01.2014 made in W.P.No.40220 of 2005. For Appellants : Mr.N.Subramaniyan For Respondents : Mr.K.V.Sanjeev Kumar for R1 & R2 Special Government Pleader : Mr.R.Bharanidharan for R3 : R4 and R5 died : No appearance – R6 to R61 COMMON JUDGMENT K.KUMARESH BABU.,J. These Intra Court Appeals have been preferred by the unsuccessful petitioners being aggrieved against the common order passed by the learned Page No.6/21 Single Judge in W.P.Nos.1327 & 40220 of 2005 and W.P.No.19732 of 2006. The petitioner in W.P.No.19732 of 2006 has not preferred any appeal.

¶2The issue involved in these Intra Court Appeals is with regard to the validity of G.O.Ms.No.265 Highways (HK2) Department, dated

24.09.2004 in which services of about 67 Assistant Engineers working in the Highways Department were regularised from various dates particularly from the date on which they were appointed as Assistant Engineers. On such regularisation, on the dates from which they were regularised, they were also directed to be placed in the seniority list below the last directly recruited Assistant Engineers in that particular year.

¶3Heard Mr.N.Subramaniyan, learned counsel appearing for the appellants in both the appeals and Mr.K.V.Sajeev Kumar, learned Special Government Pleader appearing for the respondents 1 and 2 in both the appeals and Mr.R.Bharanidharan, learned counsel appearing for 3rd respondent in W.A.No.359 of 2014. Page No.7/21

¶4Mr.N.Subramaniyan, the learned counsel appearing for the ap­ pellants at the outset would submit that the order of regularisation is wholly illegal, arbitrary and is contrary to the principles governing the fields. He would submit that the private respondents are all working as Draftsman and Overseers in the Highways Department. They were all only Diploma hold­ ers. During the year 1991 to 1995, in contravention with the Special Rules to Tamil Nadu Highways Engineering Subordinate Service and Tamil Nadu Highways Engineering Service Rules, the private respondents were all appointed as Assistant Engineers. He contended that as per the provi­ sions of the aforesaid Rules, the method of recruitment for the category of Assistant Engineer was by direct recruitment through Tamil Nadu Public Service Commission or by recruitment by transfer from Junior En­ gineers who were also known as Supervisors prior to 22.02.1977. Such per­ sons who were working as Junior Engineers to be recruited as Assistant Engineers should necessarily possess a B.E. Degree. He would submit that admittedly in the case of private respondents when they were appointed as Assistant Engineers, they were not holding a B.E. Degree. He would submit that the appellants/petitioners were all holding B.E. Degree and were dir­ Page No.8/21 ectly recruited as Assistant Engineers through the Tamil Nadu Public Ser­ vice Commissions for the vacancies that had arisen during the years between 1989 to 1990 and 1997 to 1998.

¶5He would also rely upon various Government orders to con­ tend that the appointment of the private respondents as Assistant En­ gineers itself is a violation of such Government orders. When such ap­ pointments were all illegal appointment orders, the private respondents did not have any right to seek for regularisation. But, however, the Gov­ ernment without considering all aspects have not only regularised the ser­ vices of the private respondents by G.O.Ms.No.265, dated 24.09.2004, but also regularised them retrospectively and further directed them to be placed in the seniority list below the Tamil Nadu Public Service Com­ mission candidates of the respective year.

¶6In that context, he would submit that the private respondents are all persons who have been appointed without following the relevant Recruitment Rules and therefore, they have gained a back door entry into the services which have been deprecated by the Hon'ble Apex Courts in Page No.9/21 various judgments. He would further submit that without admitting that such regularisation, even though could have been made, the private respondents ought not to have been placed in the seniority list of the year which they been retrospectively regularised and they should have been placed in the seniority list of the last candidate who was holding the post of the Assistant Engineer as on the date of the issuance of the Government order namely G.O.Ms.No.265, dated 24.09.2004. He would submit that such placement of seniority is in violation of the Rule 35(aa) of the General Rules of Tamil Nadu State Subordinate Rules governing the subject.

¶7He would also place reliance upon judgment of the Hon'ble Apex Court reported in 2006 (6) SCC 558 and 2009 (6) SCC 428 and con­ tended that even though they could be retrospectively regularised, their seniority should not have been retrospectively fixed. He would submit that by fixing such seniority, they had marched over the appellants herein who have been regularly appointed as per the Rules through Tamil Nadu Public Service Commission. He would submit that these aspects have not been considered by the learned Single Judge and the learned Single Judge had totally misplaced his reasonings and findings to deny the appellants' rightful Page No.10/21 claim and therefore sought interference with the orders of the learned Single Judge and prayed to allow these Writ Petitions.

¶8Countering his arguments, Mr.K.V.Sajeev Kumar, learned Special Government Pleader appearing on behalf of the respondents 1 and 2 would submit that private respondents have all been working in the Feeder cat­ egory at the relevant point of time and were promoted as Assistant En­ gineers from such Feeder category. The relaxation was issued by the Gov­ ernment to regularise their services by taking into account that the private respondents have been working in the aforesaid posts for a very long time and have been regularised, also taking into consideration the experi­ ence that have been gained by them. He would submit that the im­ pugned Government order regularising the services of the private re­ spondents have been issued by the Government after taking into con­ sideration the various earlier Government orders issued and only after ob­ taining concurrence of the Tamil Nadu Public Service Commission.

¶9He would contend that the private respondents were initially work­ Page No.11/21 ing as Draftsman and Overseer in the Highways Department and have been regularly appointed. They had not gained any back door entry into the ser­ vices of the Highways. They have been promoted as Assistant Engineers during such relevant years temporarily. In certain cases the incumbent had a B.E. Degree. But in other cases, they did not possess a B.E. Degree on the date of promotion, but they had subsequently, obtained a B.E. Degree and qualified themselves to hold the post of the Assistant Engineer. Therefore, as a Policy decision, the Government had decided to regularise their services from the date of their joining as Assistant Engineers. In issuing the Government orders, the Government had also relaxed the Rule 3 of the Subordinate Rules to Tamil Nadu Highways Engineering Services and they have been retrospectively regularised and directed to be placed in the order of seniority below the last Assistant Engineer in the list of Assistant Engineers selected by the Tamil Nadu Public Service Commission in that year, in which they were regularised.

¶10He would also submit that the seniority list that was published after the regularisation order impugned in this Writ Petition was subject Page No.12/21 matter of challenge before this Court in W.P.No.31101 of 2005 which had been dismissed by the learned Single Judge and had not been appealed against and therefore, the entire issue of seniority had been already decided by this Court cannot be sought to be revoked by the petitioners.

11.We have considered the rival submissions of the respective coun­ sels appearing on either side and perused the materials placed on record.

¶12Before proceeding any further, it is relevant to take note of the rel­ evant fact namely all the private respondents whose services were regu­ larised under the Government Order impugned in these Writ Petitions had attained the age of superannuation while these appeals were taken up for hearing. The appellants are as on this day working.

¶13The learned counsel for the appellant had vehemently con­ tended on the validity of the Government orders regularising the service of the private respondents. The learned counsel for the appellant also do not dispute the fact that all the private respondents have superannuated from Page No.13/21 services. Even though the learned counsels for the appellants had raised very many issues pertaining to the regularisation of the private respondents having been in violation of the earlier Government orders and also in violation of the General Service Jurisprudence (gaining back door entry), considering the fact that all the private respondents from the date of their regularisation have continuously worked and were holding B.E. Degree on the date of their regularisation, we do not now propose look into the issue as their services were properly regularised. One main bone of the contention of the appellants to assail the said Government Order was that the appellants been regularly appointed through Tamil Nadu Public Service Commission were being dislodged from the seniority list by placing the private respondents senior to them in view of such retrospective regularisation. The learned Single Judge had unsuited the relief even in respect of the seniority by holding that it was the delay in part of the Government in regularising the services of the private respondents for which they could not be held to be at fault to deny their seniority. According, to the learned Single Judge, had such regularisation been made by the Government within a reasonable time, this issue would not at all have cropped. Page No.14/21

¶14It is not the case of the appellants that at the date of regularisation the private respondents did not possess a B.E. Degree to hold the post of a Assistant Engineer in the Highway Department. It is their case that had all been regularly appointed as Assistant Engineers on the basis of the Rules of recruitment through the Tamil Nadu Public Service Commission and by placing the private respondents who were temporarily working as Assistant Engineers above them is causing serious prejudice to their career advancement and monitory benefits.

¶15As already noted supra that all the private respondents have su­ perannuated. The list annexed to the impugned Government Order in these Writ Petitions, the date of birth of the respective private respondents have been noted against their names. A casual perusal of the same would reveal that some of the private respondents are all in their 80's, most of them are in their 70's and some of them in their 60's. Even the cause list indicates that two of the respondents are no more. In spite of notice being tried to be served upon them to their last known address, the private respondents were Page No.15/21 unserved and hence a paper publication had been directed to be issued by this Court. It was also been complied with by the appellants. In spite of which they had not chosen to appear before this Court.

¶16Be that as it may, we are of the opinion that there would be no useful purpose now to look into the validity of the said Government Order as much water had flown over as of today. We also feel that there will be no useful purpose in now setting aside the aforesaid order on the grounds that have been raised by the learned counsel for the appellants.

¶17But, however, the fact is that the Assistant Engineers who have been appointed, by following the Rules of Recruitment through the Tamil Nadu Public Service Commission between the years 1989 to 1990 and 1997 to 1998 were sought to be dislodged in their seniority list in view of the Government Order in the year 2004. In that respect we are in agree­ ment with the application of the ratio laid in the judgment reported in 2009

(6) SCC 428. Therefore, we are of the view that the impugned Gov­ ernment Order in so far as relates to placing the private respondents in the Page No.16/21 seniority list on the strength of the year of regularisation to be placed below the Assistant Engineers appointed through TNPSC for that year alone is bad.

¶18Therefore, these Writ Appeals are allowed in part and the Gov­ ernment Order in G.O.Ms.No.265 Highways (HK2) Department dated

24.09.2004 in so far as the directions fixing the seniority alone is set aside and the order of the learned Single Judge to that aspect alone is held to be bad.

¶19In sequel, we issue the following directions:

(a) The appellants seniority ante to G.O.M­ s.No.265 Highways (HK2) Department dated 24.09.2004 shall stand restored.

(b) The appellants and other Assistant Engin­ eers working as on the date of the Government Order shall be given notional promotions based upon the aforesaid seniority and they are also entitled to notional re-fixation of Page No.17/21 their salary on basis of such notional promotion. They are entitled to receive such revised salary only from the date of this order and they would not be entitled to any backwages.

¶20We are also conscious about the fact that in view of the present order, the private respondents seniority could have to be re-fixed and their salary & pensionary benefits would also have to be revisited. As already in clear terms we have found that all of the private respondents have already superannuated and they had pensionary benefits which have already been calculated and is being paid to them, we do not propose to direct the Government to re-fix their seniority and also their pensionary benefits. If such an exercise is made it would amount to disturbing the rights that have been vested in them for no fault of theirs. They shall continue to receive their pensionary benefits as available to them on the date of their superannuation as may be revised from time to time.

¶21With the aforesaid directions, these Writ Appeals are disposed of. However, there shall be no order as to costs. Page No.18/21 (R.S.K.,J.) (K.B., J.)

12.12.2023 Index: Yes/No Speaking Order/Non Speaking Order gba Page No.19/21 To

1.The Government of Tamil Nadu represented by its Secretary, Highways Department, Fort St.George, Chennai – 9.

2.The Chief Engineer (General) Highways Department, P.W.D, Building, Chepauk, Chennai – 5.

3.Tamil Nadu Public Service Commission, Represented by its Secretary, Government Estate, Chennai – 2. Page No.20/21

R.SURESH KUMAR., J. and K.KUMARESH BABU.,J. gba Writ Appeal Nos.358 & 359 of 2014

12.12.2023 Page No.21/21