S.Maheswaran v. The State Of Tamilnadu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.11.2022

CORAM

THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN W.P(MD)Nos.7634, 8302, 16782 and 16788 of 2020 and W.M.P.(MD)Nos.7121, 7122, 7697, 7700, 7705, 9990, 14014 & 16695 of 2020 In W.P.(MD)No.7634 of 2020 : - 1.Er.S.Maheswaran 2.Er.S.Sharmila 3.Er.C.Peria Thirumal 4.Er.M.Balaji 5.Er.Ganeshkumar 6.Er.K.Sangeetha 7.Er.K.Sathasivam 8.Er.P.Arivazhagan 9.Er.C.Karthik Kumar 10.Er.R.Rajkumar 11.Er.A.Soundrarajan 12.Er.P.Manikandan 13.Er.M.Sundarapandi 14.Er.M.S.Mohammed Shagul Hameedraja 15.Er.V.Mahalakshmi 16.Er.S.Naganathan 17.Er.V.Mahalakshmi 1/14

18.Er.G.Chelva Kumar 19.Er.M.Ramanathan 20.Er.T.P.Rajeswari 21.Er.A.Yazhini 22.Er.A.V.Ashok Pandian 23.Er.M.Azhagenthiran 24.Er.S.Pon Murali 25.Er.A.Perumalsamy 26.Er.P.Gayathri 27.Er.P.Rajapandi 28.Er.S.Jeganathan 29.Er.P.Sathish Ajay 30.Er.P.T.Rangarajan 31.Er.D.Priya 32.K.Selvaganapathy 33.V.Suresh 34.M.Venkatesh 35.P.Ramalingam 36.M.Velayutham 37.Er.M.Ravichandran 38.Er.S.Suresh 39.Er.S.C.Vadivelkumaran 40.S.Balakrishnan 41.V.Rameshkumar 42.Er.P.Suresh 43.Er.S.Senthilkumar 44.Er.K.Babu Saravanan 2/14

45.Er.C.Poonkodi 46.Er.R.Vidya 47.Er.M.Yogavel 48.Er.A.Benazeer Fathima 49.Er.P.Arunadevi 50.S.Yashmeen Sulthana Barveen 51.M.Venkatesh 52.A.Arun Prakash 53.P.Mohamed Althaf 54.K.Raja 55.S.Siva Nanthini 56.Er.M.Arivezhil 57.Er.K.Vairamuthu 58.Er.T.Selvan 59.Er.R.Marikani 60.Er.K.Geetha 61.Er.R.Jose Antony Syril 62.Er.M.Mathan Kumar 63.Er.T.Vishnuvardhan 64.Er.T.Nagaraja 65.Er.J.Jemi Shalini 66.Er.M.Balaganesh 67.Er.T.S.Rajesh Kumar 68.Er.M.Kalai Kannadasan 69.Er.K.Krishnakumar 70.Er.S.Raja 71.Er.M.Sheik Mohamed 3/14

72.Er.M.Palavesam 73.Er.F.Alfin Ashmita 74.Er.P.Rajendran 75.Er.P.Saravanan 76.Er.P.Lavanya 77.Er.G.Krishnakumar 78.Er.J.Dominic Amalesh 79.Er.A.R.Venodkumar 80.Er.P.Prem Sankar 81.Er.K.S.Vignesh 82.Er.M.Paramasivam ... Petitioners Vs.

1.The State of Tamil Nadu, Rep.by the Secretary, Highways and Minor Ports Department, Fort St.George, Chennai - 9.

2.The Director General, Highways Department, Guindy, Chennai.

3.The Secretary, Tamil Nadu Public Service Commission, Chennai.

4.N.Indhumathi 5.S.Thirumalai Dhathachari 6.S.S.V.S.Raja 7.P.Philip Prabakaran 8.P.Balajisingh 9.V.Ramamoorthy ... Respondents 4/14

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus to call for the records on the file of the first respondent vide G.O (Ms) No.61, Highways and minor port (HK1) Department dated 23.03.2020 and 2nd respondent vide proceedings Na.Ka.No.3620Nir 1(1)/2019 dated 08.05.2019 (originally passed on 08.05.2020) and quash the same as illegal as devoid of merits and direct the respondents to get concurrence on inter-se-seniority list for the promotion to the post of Assistant Divisional Engineer in Highways Department between directly recruited Assistant Engineers and promotive Junior Engineers from the third respondent/Tamil Nadu Public Service Commission from the year 2008 onwards (prayer amended vide court order dated 14.06.2021 in WMP(MD)No. 9988 of 2020).

For Petitioner : Mr.Raja Karthikeyan For Respondents : Mr.Veera Kathiravan, Additional Advocate General assisted by Mr.A.K.Manikkam, Special Government Pleader for R1 & R2 Mr.J.Anandkumar for R3 Mr.S.Govindan for R4 to R10 In W.P.(MD)No.8302 of 2020: - 1.Er.M.Rohini 2.Er.P.Ashokkumar 3.Er.K.Sriram 4.Er.C.Natarajan 5/14

5.Er.M.Arunraj 6.Er.Thiyagarajan ... Petitioners vs.

1.The State of Tamil Nadu, rep.by its Secretary, Highways and Minor Ports Department, Fort St.George, Chennai - 9.

2.The Director General, Highways Department, Guindy, Chennai.

3.The Secretary, Tamil Nadu Public Service Commission, Chennai.

4.The State of Tamil Nadu, Rep.by the Secretary, Personal & Administrative Reforms Department, St.George Fort, Secretariat, Chennai.

5.N.Indhumathi 6.S.Thirumalai Dhathachari 7.S.S.V.S.Raja 8.P.Philip Prabakaran 9.P.Balajisingh 10.V.Ramamoorthy 11.K.Tholkapian ... Respondents 6/14

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records of the 2nd respondent vide proceedings Na.Ka.No.3620/Nir1(1)/2019 dated 08.05.2019 (originally passed on 08.05.2020) and quash the same as illegal as devoid of merits and direct the 2nd respondent to get concurrence on inter-se-seniority list for the promotion to the post of Assistant Divisional Engineer in Highways Department between directly recruited Assistant Engineers and promotive Junior Engineers from the third respondent/Tamil Nadu Public Service Commission from the year 2008 onwards. For Petitioner : Mr.Raja Karthikeyan For Respondents : Mr.Veera Kathiravan, Additional Advocate General assisted by Mr.A.K.Manikkam, Special Government Pleader for R1, R2 & R4 Mr.J.Anandkumar for R3 Mr.S.Govindan for R5 to R11 in WP(MD)No.16782 of 2020 : - Er.P.Gayathri ... Petitioner v.

1.The State of Tamil Nadu, Rep.by the Secretary, Highways and Minor Ports Department, Secretariat, St.George Port, Chennai.

2.The Director General, Highways Department, Guindy, Chennai.

7/14

3.The State of Tamil Nadu, Rep.by the Secretary, Personal & Administrative Reforms Department, Secretariat, St.George Port, Chennai.

... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus to direct the first and second respondents to forbear from revising the panel for the promotion to the post of Assistant Divisional Engineer in the time barred/lapsed panel for the year 2018-19 and further direct the first and second respondents to strictly adhere the procedures contemplated under Sections 7 and 40 of Tamil Nadu Government Servants (Conditions of Service) Act.

in WP(MD)No.16788 of 2020 : - Er.E.V.Ashok Pandian ... Petitioner v.

1.The State of Tamil Nadu, Rep.by the Secretary, Highways and Minor Ports Department, Secretariat, St.George Port, Chennai.

2.The Director General, Highways Department, Guindy, Chennai.

3.The State of Tamil Nadu, Rep.by the Secretary, Personal & Administrative Reforms Department, Secretariat, St.George Port, Chennai.

... Respondents 8/14

Prayer : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus to direct the first and second respondents to forbear from revising the panel for the promotion to the post of Assistant Divisional Engineer in the time barred/lapsed panel for the year 2018-19 and further direct the first and second respondents to strictly adhere the procedures contemplated under Sections 7 and 40 of Tamil Nadu Government Servants (Conditions of Service) Act.

in WP(MD)Nos.16782 & 16788 of 2022 : - For Petitioner : Mr.Raja Karthikeyan For Respondents : Mr.Veera Kathiravan, Additional Advocate General assisted by Mr.A.K.Manikkam, Special Government Pleader COMMON ORDER Heard the learned counsel for the petitioner and the learned Additional Advocate General for the respondents and the learned counsel for the private respondents.

2.The learned counsel for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petitions. He also filed notes of submissions. He raised host of contentions. According to him, the crucial date 9/14

was erroneously reckoned. He would also state that the private respondents are not at all eligible to be promoted as Assistant Executive Engineers and the official respondents have not considered the petitioners case on merits. 3.The learned Additional Advocate General and the learned counsel for the private respondents raised their preliminary objection and they also submitted that the issue on hand had already been raised before this Court in WP Nos.8870 of 2008 etc., and that it had been answered against the direct recruits. This decision was questioned in W.A Nos.1334 and 1335 of 2009 and the Hon'ble Division Bench vide order dated 21.01.2010 confirmed the judgment of the learned Single Judge. They also submitted that the petitioners do not have any cause of action and that these writ petitions are liable to be dismissed as not maintainable.

4.I carefully considered the rival contentions and went through the materials on record. The petitioners are directly recruited Assistant Engineers. On the other hand, the private respondents were promoted as Junior Engineers from the feeder category of Junior Drafting Officer. As per the service rules, the vacancies in the post of AEEs are to be filled up on a 3:1 ratio. 25% of the vacancies has been reserved for the promotees. The learned counsel for the 10/14

petitioners would contend that the crucial date if properly reckoned for the year 2018-19, it would be seen that the private respondents were not eligible and once this Court comes to the conclusion that the private respondents were not eligible on the crucial date, the vacancies should go to the direct recruits. Though this contention on the face of it appears to be attractive, as rightly contended by the learned Additional Advocate General, this has already been dealt with in the decision reported in CDJ 2009 MHC 3933 (D.Aravindan v. The Government of Tamil Nadu). Paragraphs 20 and 25 of the said decision reads as follows :

"20.Rule 9(a) has to be read conjointly with the other rules to understand its purport and meaning and it cannot be read in isolation. Merely because Rule 9(a) begins with the phrase "so far as qualified and suitable candidates are available", it cannot be misunderstood to give a go-by to 3 : 1 ratio contemplated under the said rule between AEs (degreeholders) and JEs (diploma-holders). The phrase used "so far as the qualified and suitable candidates are available" should be taken into consideration along with Rules 9(b) and 10 prescribing qualification and experience as eligibility criteria for the promotion to the post of ADE.

.....

11/14

25.The quota of 3:1 ratio prescribed under rule 9(a) between AEs (degree-holders) and JEs (diploma-holders) is proportionate to their qualification and experience. It is pertinent to note that even as per Rule 18 a similar quota is fixed in respect of the post of AEs stipulating 75% of the vacancies arising in the Section Offices shall be reserved to be filled by the degree holders and 25% of vacancies shall be filled by the diploma holders. In view of such clarity in the said rules, neither the AEs (degree holders) embark into the quota of JEs (diploma holders) nor JEs (diploma holders) embark into the quota reserved for AEs (degree holders).

As held by the Hon'ble Apex Court in the decision cited supra, there is a water tight compartment for AEs (degree holders) and JEs (diploma holders) as per the above said rules and they are entitled for promotion only on the basis of their respective quotas. Even in the event of non-availability of qualified and suitable candidates in either of the categories, one cannot embark into the quota of the other as the said rule 9(a) does not contemplate such situation. Such being the position, it is not possible for the Court to add or delete words in statutory rules."

It has been already noted that this decision was confirmed by the Hon'ble Division Bench. Admittedly, the case on hand relates to filling up of the vacancies in the post of AEEs as against 25% quota. It has also been noted that 12/14

the direct recruits cannot have any grievance against the manner in which the 25% quota has been filled up in the promotion of Junior Engineers. The preliminary objection raised by the respondents is sustained. These writ petitions are not maintainable. They stand dismissed. No costs. Connected miscellaneous petitions are also stand dismissed. 30.11.2022 Index : Yes / No Internet : Yes/ No skm To 1.The Secretary, Highways and Minor Ports Department, Fort St.George, Chennai - 9.

2.The Director General, Highways Department, Guindy, Chennai. 3.The Secretary, Tamil Nadu Public Service Commission, Chennai. 13/14

G.R.SWAMINATHAN, J.

skm W.P(MD)Nos.7634, 8302, 16782 and 16788 of 2020 and W.M.P.(MD)Nos.7121, 7122, 7697, 7700, 7705, 9990, 14014 & 16695 of 2020 30.11.2022 14/14