Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 1835 (MAD)

T. Sekar v. V. Appadurai

2010-04-19

ELIPE DHARMA RAO, K.K.SASIDHARAN

body2010
Judgment :- K.K. Sasidharan, J. 1. These two Writ Appeals are directed against the Order dated 1st September 2008, whereby and whereunder, the Highways Department was directed to consider the case of the First Respondent for promotion as Superintendent Engineer if he was otherwise eligible. The Facts: 2. There are two sets of Appeal – one at the instance of the Government and the other at the instance of private parties. The facts as noted in W.A. No.1190/2008 are taken for the purpose of narrating the background facts. 3. The First Respondent was initially appointed as Road Inspector in the Highways Department on 25 January 1972. While in service, he acquired Diploma in Civil Engineering and accordingly, he was promoted as Junior Engineer in the year 1985. Subsequently, he was promoted to the post of Assistant Divisional Engineer in the year 1998 and he was further promoted as Divisional Engineer on 2nd September 2005. 4. According to the First Respondent, he was eligible for promotion as Superintending Engineer as per the Tamil Nadu Highways Engineering Service Rules. The Chief Engineer, Highways Department prepared a panel of 25 Divisional Engineers, including the First Respondent, for promotion to the post of Superintending Engineer. However, while considering the panel for promotion, the name of the First Respondent was excluded and the Government accorded approval for promotion in respect of 13 other Divisional Engineers. Though the First Respondent was senior to the Appellants, he was denied promotion. Therefore, the First Respondent challenged the proceedings of the Government dated 03.11.2007 in W.P. No.515/2008. 5. Before the learned Single Judge, the Government as well as Appellants contended that the Government have taken a policy decision in respect of promotion of Executive Engineers as Superintending Engineers and as per the said decision, diploma holders shall be considered for promotion only up to the level of Executive Engineer. Accordingly, a Government Order in G.O.Ms.No.270 dated 20.09.1984 was issued by the Municipal Administration and Water Supply Department. In S1.No.3 of the said Government Order, it was indicated that the impugned rules shall be applicable not only to the Municipal Administration Department but also to the employees of other Departments, including the Highways Department. The First Respondent was excluded from the zone of consideration on account of the fact that he was only a diploma holder, ineligible for promotion as per the revised policy decision of the Government. 6. The First Respondent was excluded from the zone of consideration on account of the fact that he was only a diploma holder, ineligible for promotion as per the revised policy decision of the Government. 6. Since the Government justified its action on the basis of the Government Order in G.O.Ms. No.270 dated 20.09.1984, the First Respondent has also challenged the said Government Order in the Writ Petition. The Order in Appeal: 7. The learned Single Judge was of the view that there was no amendment to the Recruitment Rule with respect to the Highways Department, and as such, the Government was not justified in excluding the name of the First Respondent from the zone of consideration. Accordingly, the learned Single Judge held that the exclusion of the First Respondent from the list of eligible candidates for promotion to the post of Superintending Engineer was illegal and directed the Government to consider his case as per the recruitment rules. It is the said Order which is impugned in W.A. No.1190/2008 at the instance of aggrieved Superintending Engineers. Submissions: 8. The learned Additional Advocate General appearing on behalf of Government and the learned Counsel for the Appellant in W.A. No.1190/2008 justified the order passed by the Government denying promotion to the First Respondent. According to the learned Counsel for the Appellants in W.A.No.1190/2008, the Government have taken a policy decision to restrict the promotion to the Diploma Holders up to the level of Executive Engineers and the said decision was clearly indicated in the Government Order in G.O.Ms. No.270 dated 20.09.1984. The said Government Order was in the nature of an executive direction issued for the purpose of filling up the gap and as such, the learned Single Judge was not justified in directing the Government to consider the case of the First Respondent de hors the policy decision taken by the Government. 9. The learned Senior Counsel for the First Respondent supported the Order passed by the learned Single Judge. According to the learned Senior Counsel, Tamil Nadu Municipal Administration and Water Supply Department has nothing to do with the Highways Engineering Services and as such, Rules framed in respect of the Municipal Administration and Water Supply Department does not have automatic application with respect to the Tamil Nadu Highways Department. Analysis: 10. According to the learned Senior Counsel, Tamil Nadu Municipal Administration and Water Supply Department has nothing to do with the Highways Engineering Services and as such, Rules framed in respect of the Municipal Administration and Water Supply Department does not have automatic application with respect to the Tamil Nadu Highways Department. Analysis: 10. There is no dispute that the Government have framed Rules under the Proviso appended to Article 309 of the Constitution of India in respect of Tamil Nadu Highways Engineering Service. Similar rules were also framed in respect of Municipal Administration and Water Supply service. The First Respondent was a member of the State Highways Engineering Service. Tamil Nadu Highways Engineering Service deals with promotion to different category of employees and the method of such recruitment. As per the Recruitment Rule, promotion to the post of Superintending Engineer is from the feeder category of Divisional Engineer Category-3. The Rule further provides that promotion as Superintending Engineer shall be made on the ground of merit and ability and seniority can be considered only where merit and ability are approximately equal. Tamil Nadu Highways Engineering Service has not categorized Engineers on the basis of their qualifications. There was nothing indicated in the Rules restricting promotion to Diploma Holders or prescribing that the Diploma Holders would be promoted only up to the level of Executive Engineers. 11. The Government appears to have taken a policy decision subsequently, to the effect that Diploma Holders shall be considered for promotion only up to the level of Executive Engineer. However, there was no corresponding amendment made to the Tamil Nadu Highways Engineering Service. It is true that the Government Order in G.O.Ms. No.270 dated 20.09.1984, contains a statement that the Rule shall be applicable to the Highways Department also. However, the fact remains that the Government Order in G.O.Ms. No.270 was issued only in respect of Tamil Nadu Municipal Administration and Water Supply Department. Even the sad Government Order contains a further stipulation that the Tamil Nadu Water Supply and Drainage Board has to amend the Tamil Nadu Water supply and Drainage Board Rules, 1972. Therefore, even in respect of Tamil Nadu Water Supply and Drainage Board, the Government wanted amendment to the Service Rules. 12. It is trite that the Government is within their powers to amend the Service Rules. Therefore, even in respect of Tamil Nadu Water Supply and Drainage Board, the Government wanted amendment to the Service Rules. 12. It is trite that the Government is within their powers to amend the Service Rules. The State being the employer, has got every right to amend the Service Rules or to incorporate new Rules. Employees have no vested right to claim that the Service Rules should be stagnant. They cannot be heard to say that the Rules which were in force during the time of initial appointment should be preserved till their retirement. Experience is the best Teacher. In case the Government forms an opinion to introduce new rules or to re-model the existing rules, the employees have no cause for alarm, unless it affects their vested right. However, mere decision f the Government to revise the recruitment rule alone is not sufficient. Such decisions should be translated into action by amending the relevant service rules. 13. The Tamil Nadu Highways Engineering Service Rules were framed in accordance with the Proviso appended to Article 309 of the Constitution of India. Those Rules are legislative in nature. Therefore, unless and until the Rules are amended through the procedure known to law, it cannot be said that future promotions shall be made in accordance with the Government decision and not as per the existing statutory Rules. 14. The Tamil Nadu Water Supply and Drainage Board Rules, 1972 was directed to be amended in accordance with the decision of the Government. It was only as per the amendment made to the Water Supply and Drainage Board Rules, 1972, the said Department could restrict the promotion of Diploma Holders by stipulating that they would be promoted only up to the level of Executive Engineer. Therefore, G.O. Ms.No.270 dated 20.09.1984 was only in respect of Tamil Nadu Municipal Administration and Water Supply Department and it has no binding effect in respect of the Tamil Nadu Highways Engineering Services. It is also true that there is an incidental reference in G.O.Ms.No.270 about the binding nature of the Government decision even on the employees of the Tamil Nadu Highways Department. However, the fact remains that there was no follow up action to amend the Tamil Nadu Highways Engineering Service Rules to make it in tune with the Government decision in G.O.Ms. No.270. The incidental observation in G.O.Ms. However, the fact remains that there was no follow up action to amend the Tamil Nadu Highways Engineering Service Rules to make it in tune with the Government decision in G.O.Ms. No.270. The incidental observation in G.O.Ms. No.270 which was issued exclusively for amending the Tamil Nadu Water Supply and Drainage Rules, 1972, does not have the effect of automatic amendment to the Tamil Nadu Highways Engineering Service Rules. 15. The Tamil Nadu Highways Engineering and the Tamil Nadu Municipal Administration and Water Supply Department are altogether different Departments with different service regulations. Though both the service contains similar posts, amendment made to the Rules pertaining to one service would not bind the other service. There are prescribed procedures for making amendment to the Service Rules. The Rules made by the Proviso appended to Article 309 of the Constitution of India would operate until those Rules are amended. Legal position: 16. The question as to whether the Government Order can be a substitute to the Service Rules, came up for consideration before the Supreme Court in Rajinder Singh (Dr.) v. State of Punjab, 2005(1) SCC 482. The legal position was indicated by the Supreme Court thus: 7. The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the Civil servants under the Constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a Government order and ignoring the mandate of Article 309 of the Constitution. 17. In Punjab State Warehousing Corpn. V. Manmohan Singh, 2007 (9) SCC 337 : 2007 (3) Scale 401 , the Supreme Court observed that recruitment Rules cannot be amended by issuing notification under Article 162 of the Constitution. The observation reads thus: “12. 17. In Punjab State Warehousing Corpn. V. Manmohan Singh, 2007 (9) SCC 337 : 2007 (3) Scale 401 , the Supreme Court observed that recruitment Rules cannot be amended by issuing notification under Article 162 of the Constitution. The observation reads thus: “12. Furthermore, when the terms and conditions of the service of an employee are governed by the rules made under a statute or the Proviso appended to Article 309 of the Constitution of India laying down the mode and manner in which the recruitment would be given effect to, even no order under Article 162 of the Constitution of India can be way of alterations or amendments of the said rules. A fortiori if the Recruitment Rules could not be amended even by issuing a notification under Article 162 of the Constitution of India the same cannot be done by way of a circular letter.” 18. The claim made by the First Respondent for promotion to the post of Superintending Engineer was on the basis of the Tamil Nadu Highways and Engineering Service Rules. There was no amendment to the Service Rules as on the date on which the panel forwarded by the Chief Engineer was considered by the Government, which culminated in passing the order granting promotion to the Appellants in W.A. No.1190/2008 and denying promotion to the First Respondent, on the ground that he holds only a diploma. The proceedings dated 29th October 2007 on the file of the Secretary to Government Highways Department clearly indicates that the claim of the First Respondent was rejected only on account of the stipulation as contained in G.O.Ms. No.270 dated 20th September 1994 to the effect that Diploma Holders are not entitled for promotion beyond the level of Executive Engineer. Therefore, it was not the case of the Government that the First Respondent was not eligible for promotion, taking note of his merit and ability. The basis for denial was only account of the fresh qualification of degree in Engineering which was prescribed as per the Government Order in G.O.Ms.No.270. 19. It is a matter of record that even now there are no amendments made to the Tamil Nadu Highways Engineering Service Rules in accordance with the Government decision to freeze the promotion of Diploma Holders in the level of Executive Engineer. In such circumstances, the Government was not justified in denying promotion to the First Respondent. 19. It is a matter of record that even now there are no amendments made to the Tamil Nadu Highways Engineering Service Rules in accordance with the Government decision to freeze the promotion of Diploma Holders in the level of Executive Engineer. In such circumstances, the Government was not justified in denying promotion to the First Respondent. The issue was considered by the learned Single Judge in the light of the Tamil Nadu Highways Engineering Service Rules and Writ Petition was rightly allowed. We do not find any ground to take a different view in the matter. 20. In the result, the Writ Appeals are dismissed. No costs. Consequently, the connected Miscellaneous Petitions are also dismissed. 21. The Government is directed to consider the claim of the First Respondent for promotion to the post of Superintending Engineer in accordance with the Tamil Nadu Highways and Engineering Service Rues, without taking note of the Government Order in G.O.Ms. No.270 dated 20.09.1984. Such exercise shall be completed within a period of two months from the date of receipt of a copy of this judgment.