Ananda Sivakumar v. B. Thirumal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04-08-2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE R. SUBBIAHWRIT APPEAL Nos.1155,1156 and 1346 OF 20081.Ananda Sivakumar2.K. Lingam3.M. Udayasuriyan ..Appellants in W.A.Nos. 1155 and 1156/2008Vs.

B. Thirumal2.State of Tamil Nadu, rep. by itsSecretary to Government, Public Works Department, Secretariat, Chennai 9.3.Engineer-in-Chief (WRO) and Chief Engineer (General),Public Works Department, ..Respondents 1 to 3 in W.A.Nos. Chepauk, Chennai 5.1155 & 1156 of 20084.Tamil Nadu Engineering Association, rep. by its Secretary,(Organization & Legal),Chepauk, Chennai 5. ..4th Respondent in W.A.No. 1155 of 2008W.A.No.1346 of 2008 Tamil Nadu Engineering Association, rep. by its Secretary,(Organization & Legal),Chepauk, Chennai 5. ..Appellant (3rd Respondent)Vs.1.B. Thirumal https://hcservices.ecourts.gov.in/hcservices/

State of Tamil Nadu, rep. by itsSecretary to Government, Public Works Department, Secretariat, Chennai 9.

Engineer-in-Chief (WRO) and Chief Engineer (General),Public Works Department, Chepauk, Chennai 5...RespondentsWrit Appeals filed under Clause 15 of the Letters Patent against the common order of the learned single Judge in W.P.Nos.25871 of 2006and 8925 of 2007, dated 29.8.2008 respectively.W.P.No.25871 of 2006: This Writ Petition presented to this Court under Article 226 of the Constitution of India, to issue a Writof Certiorarified Mandamus calling for the records of the 2ndrespondent made in Memorandum No.C.I(3)/10786/2005-I dated18.01.2006, quash the same and direct the respondents to consider and include the name of the petitioner in the panel for the post of Assistant Executive Engineer (Electrical) for the year 2005-2006.W.P.No.8925 of 2007: To issue a Writ of Certiorarified Mandamuscalling for the records of the 1st respondent made in LetterNo.15634/B2/2006-2 dated 14.6.2006, and quash the same and direct the respondents to consider and include the name of the petitioner in the panel for the post of Assistant Executive Engineer (Electrical) for the year 2005-2006 in the quota of the 4th vacancy out of every 4vacancies, according to his seniority in the category of DiplomaHolder Junior Engineers.

It is the contention of the appellants that the aforesaid conclusion of the learned single Judge is not sustainable keeping in view the scheme of the different Rules as well as the existing convention which has continued in the Department for a long period.

Learned counsel appearing for the State Government also has supported the submissions made by the counsel for the appellants.

Learned counsel appearing for Respondent No.1, who has filed the two writ petitions in question, however, has supported the conclusion of the learned single Judge.

Before proceeding further to consider the rival submissions, it would be appropriate to notice the various Rules and Government Orders operating in the field. Since we are concerned only with the Electrical Branch, we have riveted our attention on those Rules and Government Orders having bearing on the question involved.

The Electrical Branch consists of three categories, Category-1 is Electrical Engineer, Category-2 is Assistant ExecutiveEngineer (Electrical) and Category-3 is Assistant Engineer(Electrical). As per the Rules, appointment to the categories 1 to 3as specified in column (1) of the Table shall be made by the methods specified in column (2) thereof. So far as the Assistant ExecutiveEngineer (Electrical) is concerned, the method of recruitment is (1)by promotion from Assistant Engineer (Electrical) and (ii) by recruitment by transfer from the category of Junior Engineer(Electrical) in the Tamil Nadu Engineering Subordinate Service or(iii) from the category of Junior Electrical Inspectors in the TamilNadu Electrical Inspectorate service.8.1 So far as the Assistant Engineer (Electrical) is concerned, the method of recruitment is (i) by direct recruitment or (ii) by transfer from the category of Junior Engineer (Electrical) in the Tamil Nadu Engineering Subordinate Service, who possess a Degree in Electrical Engineering or from the category of Junior ElectricalInspectors in the Tamil Nadu Electrical Inspectorate service.

Apart from these provisions contained in the Rules, there were several Government Orders issued from time to time, which have some bearing in the matter and, therefore, are noticedhereunder :-On the basis of the recommendation made by the Tamil Nadu PayCommission and taking note of several other Government Orders, the Government had issued G.O.Ms.No.288 dated 1.3.1978. The relevant portion of the G.O. is to the following effect :-"2. . . . They accordingly direct that Supervisorsacquiring an engineering degree or an equivalent qualification after entering service, will be eligible for appointment as Assistant Engineers by transfer on completion of either 10 years of total service or 3 years from the date of taking their degree whichever is earlier, subject to the condition that none who has a total service of less than 5 years will be eligible for appointment as Assistant Engineer. " https://hcservices.ecourts.gov.in/hcservices/

9.1 Subsequently, the Government issued clarification in the shape of G.O.Ms.No.2070, dated 30.12.1980.9.2 Subsequently, the Government issued G.O.Ms.No.662,dated 24.3.1983. These two G.Os., however, mainly relate to the question of seniority of Junior Engineers re-designated as AssistantEngineers.

The main contention of the writ petitioner before the learned single Judge, which was apparently accepted, is to the effect that the Diploma holders who after being appointed as JuniorEngineers acquire the Engineering degree have an option of becomingfull-fledged Assistant Engineers and once they choose to becomeAssistant Engineers, they have to compete with other graduates, who are directly recruited as Assistant Engineers, and can be considered only against three-fourth quota available to such Assistant Engineersfor being appointed as Assistant Executive Engineers and they cannot encroach upon one-fourth quota available to Diploma-holders, who continue as Junior Engineers in the Tamil Nadu EngineeringSubordinate Service. In this context, it was further contended that since their seniority is fixed in the cadre of Assistant Engineer, which is borne in Tamil Nadu State Engineering Service, it would be inappropriate to consider their promotion from the Junior Engineermerely because once upon a time they were appointed as Diploma HolderJunior Engineers.

Various Government Orders read in the light of the Rules only indicate that a Junior Engineer in the Tamil NaduEngineering Service on acquiring Degree in Engineering isredesignated as Assistant Engineer. Neither the Rules nor variousGovernment Orders contain any provision that such a person has gotany choice or option in the matter nor there is anything to indicate categorically that such a person loses his lien in the parent cadre of Junior Engineer. In our considered opinion, the main intention behind the Government Orders issued from time to time appears to beaimed at encouraging a Diploma-holder Junior Engineer to acquire higher qualification, obviously through correspondence course orpart-time study, with a view to enhance the quality of service to be rendered by such junior Engineer.

It is not at all in dispute that the AssistantEngineers, who are directly recruited from among the graduates, the Diploma-holder Junior Engineers, who on acquisition of Degree in Engineering are re-designated as Assistant Engineers and the Diploma-holder Junior Engineers as such do the same type of work. If the conclusion reached by the learned single Judge and the submission snow made by the learned counsel for Respondent No.1 are to be accepted, it would be discouraging the Diploma-holder JuniorEngineers in pursuing higher study for the purpose of acquiring adegree in Engineering. It has been highlighted in the counter filed https://hcservices.ecourts.gov.in/hcservices/ by the State Government before the learned single Judge and during the submissions made before us that the past convention was to consider the Diploma-holder Junior Engineers who subsequently acquireDegree in Engineering to be eligible for being posted as AssistantExecutive Engineer (Electrical) from among the category of JuniorEngineer (Electrical). We do not find any inconsistency between such convention which was being followed and the specific rules holding the field. As has been observed in AIR 1992 SC 564 (N. SURESH NATHAN AND ANOTHERv. UNION OF INDIA AND OTHERS) and subsequently in (2007) 5 SCC 535(SHAILENDRA DANIA AND OTHERS v. S.P. DUBEY AND OTHERS), the convention relating to service condition available in a Departmentcan also be given effect to, provided there is nothing contrary to such convention in the statutory rules.13. It was strenuously contended on behalf of RespondentNo.1 that if the Diploma-holder Junior Engineers, who subsequently acquire Degree in Engineering and thereby getting re-designated as Assistant Engineers, would be still considered eligible within the quota of Diploma-holders, the prospect of a long serving Diploma-holder would be adversely affected. Moreover, since such persons would also be eligible to be considered from among the quota of Assistant Engineers as such, such persons will have the best of both worlds. In other words, they would be considered eligible from 75%quota available for Assistant Engineers as well as 25% quota available for Junior Engineers. In this connection, learned counselfor Respondent No.1 has further submitted that such an interpretation would be contrary to the decision of the Supreme Court in ShailendraDania's case.

Though such contention may prima facie appears to be attractive, on deeper scrutiny, we do not find any merit in suchsubmission.A Diploma-holder Junior Engineer, who on acquisition of Degree in Electrical Engineering is re-designated as AssistantEngineer, is placed below the directly recruited graduate Engineerduring the year concerned. Therefore, obviously he does not steal march over such directly recruited Assistant Engineers having degree in Engineering. Similarly it cannot be said that he is stealing march over the Diploma-holder Junior Engineers who continue as such inasmuch as such a person only gets a better opportunity because of his perseverance in pursuing further study and acquisition of ahigher qualification subsequently adds to the quality of the work done by such person. A diploma-holder Junior Engineer, who subsequently acquires a degree in Engineering, does not become senior above any Diploma-holder Junior Engineer.

In our considered opinion there is nothing in the ratio of Shailendra Dania's case which can be said to be contrary to the present order passed by us as the said decision has expressly confined itself to the question of eligibility as apparent from paras25 and 37 of such judgment which are extracted hereunder :-"25. Large number of authorities are cited by learned counsel appearing for both sides raising various issuesviz. whether a diploma-holder after obtaining a degree would be compulsorily shifted to the group of graduateEngineers giving a go-by to their claim for promotion todiploma-holders’ quota or they have a choice to select and continue with either of them. What should be the seniority position of the diploma-holders after they have qualified as graduates, etc. We have refrained ourselves from expressing any opinion on these points and have confined ourselves to the specific issue raised before us and answered by the High Court in the impugned judgment.37. The only question involved in these appeals and transferred cases can be stated thus: whether a diploma-holder Junior Engineer, who obtains a degree while in service, becomes eligible for promotion to the post of Assistant Engineer on completion of three years of service after he obtained the Engineering degree or on completion of three years of service prior to obtaining the degree in Engineering. " https://hcservices.ecourts.gov.in/hcservices/

Learned counsel appearing for the respondents have further placed reliance upon the decisions of the Supreme Courtreported in (2001) 1 SCC 475 (KULDEEP KUMAR GUPTA AND OTHERS v. H .P.STATE ELECTRICITY BOARD AND OTHERS) in support of his contention that it is open to the Government to prescribe rules for quota in the promotional post in respect of the persons having different educational qualifications even if all of them belong to a particular cadre. The question in the present case is not regarding the validity of any quota prescribe for promotional avenue and, therefore, in our considered opinion, the ratio of the decision of the Supreme Court is not at all applicable.

Similarly the Division Bench decision of this Court inN. SURESHNATHAN & 3 OTHERS v. GOVERNMENT OF PONDICHERRY inW.P.No.36947 of 2006 disposed of on 27.1.2009, relied on by the learned counsel appearing for the respondents, is of no significance inasmuch as the core question in the said case was as to whether the Diploma-holder, who subsequently acquires a graduate degree, after he becomes eligible for promotion can count his previous seniority. TheDivision Bench has simply followed the earlier decision of the HighCourt and it cannot be said that there is anything contrary in the said decision to our present conclusion.

Leaned counsel appearing for the respondents further submitted that an incumbent in service cannot hold a lien in two different cadres and since Diploma-holders are members of the TamilNadu Engineering Subordinate Service, whereas the Assistant Engineersare the members of Tamil Nadu Engineering State Service, a Diploma-holder Junior Engineer, who is designated as Assistant Engineer on acquisition of higher degree, loses his lien in the post of JuniorEngineer. In support of the above contention, the learned counselfor the Respondents has placed reliance upon the decisions of the Supreme Court reported in AIR 1989 SC 1985 (RAMLAL KHURANA (DEAD) BYL.Rs v. STATE OF PUNJAB AND OTHERS) and (1997) 6 SCC 538 (JAGDISH LALAND OTHERS v. STATE OF HARYANA AND OTHERS).

In our considered opinion, the Junior Engineers, on acquisition of higher qualification are re-designated as AssistantEngineers, but it cannot be said that they have become full-fledgedmembers of any other service. It is to be noticed that though technically two services may be different, the nature of the work-done is the same and, since two services are essentially same, the traditional concept of losing lien in the original service while absorbed or deputed in any other service does not strictly arise for consideration.

As we have already noticed, there is no categorical rule nor G.O. which says that if a person acquires a higher https://hcservices.ecourts.gov.in/hcservices/ qualification in the shape of a Degree in Engineering, he would cease to be a Junior Engineer for all purposes nor any option is contemplated to be given to such person. Learned single Judgeappears to have proceeded on the assumption that a person, who acquires the higher degree in Engineering, has an option of continuing as Junior Engineer or being re-designated as AssistantEngineer. Re-designation of Assistant Engineer comes automatically and the Rules and G.Os no where contemplate that such a person is to severe all his rights in the rank of Junior Engineer. Theconvention, which was hitherto being followed by the Department and now approved by us, has the effect of conferring additional benefit on a person who pursues the study for acquiring higher qualification.

In the absence of any conflict with the Rules, we do not think there was any thing arbitrary in the decision taken by the Chief Engineer as per the Memorandum dated 18.1.2006 or the subsequent rejection of the representation by the State Governmentdated 14.9.2006.

In our considered opinion, therefore, the learned single Judge has erred in quashing those orders. Accordingly, weallow the writ appeals and dismiss both the writ petitions filed by Respondent No.1. There would be no order as to costs.sd/-Asst. Registrar/true copy/Sub Asst. RegistrardpkTo1. The Secretary to Government, State of Tamil Nadu, Public Works Department, Secretariat, Chennai 9.2. The Engineer-in-Chief (WRO) and Chief Engineer (General), Public Works Department, Chepauk, Chennai 5.+ 2 c.cs. to Mr. S. Mani, Advocate. S.R.No.35681.+ 1 c.c. to Mr. C. Prakasam, Advocate. S.R.No.35815.+ 1 c.c. to Mr. S. Namasivayam, Advocate. S.R.No.35856.+ 1 c.c. to The Government Pleader. S.R.No.35495.COMMON JUDGMENT INWA.NOs.1155,1156 &1346/2008MBS (CO)GSK 14.08.2009.