Pethel Raj v. VE Vairappan

26.M.Thirugnanasambandam27.A.Prabhakaran28.P.Sivasakthivel29.S.Ashok Kumar30.Paneerselvam31.S.Devairakkam32.S.Palanivel33.M.Paneerselvam34.S.Palani(R31 to 34 impleaded vide orderdated 26.7.2012 in MP.No.1/2012)35.C.Sasikumar36.N.S.Saravanan ...Respondents/Petitioner & Respondents 1 to 9, 11 to 24 & 27 to 30(R35 and R36 impleaded vide orderdated 26.7.2012 in MP.No.2/2012)PRAYER in W.A.No.1704 of 2010: Appeal against the order of thelearned Single Judge dated 27.4.2009 made in W.P.No.21786 of 2004.Writ Petition filed under Article 226 of the Constitution of Indiapraying to issue a Writ of Certiorarified Mandamus to quashg.O.Ms.No.528, Public Works (HK.2) Department dated 30.6.1995 in SOfar as if fixes the seniority of the petitioners and to direct therespondents to refix their seniority from the date of their re-appointment in the years 1987-1988 and to give them all benefitsbased on such re fixation of Seniority.PRAYER in W.A.No.304 of 2011: Appeal against the order of the learnedSingle Judge dated 4.2.2011 made in W.P.No.21127 of 2010 Writpetition filed under Art.226 of the Constitution of India praying toissue a writ of Certiorarified Mandamus, calling for the records ofthe respondents 1 to 3 in connection with the impugned orders issuedin (1) Lr. No. 13058/HK2/2004-24 dt 27.8.2009 (2) Lr. No. 60765/Admn.3 (4) /2004 dt 29.5.2009 and (3) Lr.No. 4997/CD C1/2009 dt 12.8.2010respectively and quash the same and further direct the respondents 1to 4 to promote the petitioners as Divisional Engineers based on theexisting seniority and grant them all consequential service andmonetary benefitsW.P.No.23167 of 2010:PRAYER in W.A.No.305 of 2011: Appeal against the order of the learnedSingle Judge dated 4.2.2011 made in W.P.No.23167 of 2010 WritPetition filed under Article 226 of the Constitution of India prayingto issue a Writ of Certiorarified Mandamus Calling for the entirerecords relating to the impugned concurrence letter No.4997 CDC1/2009 dated 12.08.2010 by the 3rd respondent in refixation of https://hcservices.ecourts.gov.in/hcservices/ seniority of 37 Assistant Engineers who had been initially appointedthrough the G.O.Ms.No.528 Public Works Department dated 30.06.1995and quash the same and consequently forbearing the Respondents frompassing any orders revising the seniority panel as on date 01.04.2010in the post of ADE for promotion to the post of DE.For Appellants inW.A.No.1704 of2010:Mr.V.Prakash, Senior Counsel for Mr.S.N.RavichandranFor Respondents 1,3, 5, 7, 9, 11, 14to 20 inW.A.No.1704 of2010:Mrs.Nalini Chidambaram, Senior Counsel for Mrs.C.UmaFor Respondents 4and 21 inW.A.No.1704 of2010:Mr.Vijayanarayanan, Senior Counsel for Mrs.JothivaniFor Respondents 6and 22 inW.A.No.1704 of2010 and forappellants inW.A.Nos.304 and305 of 2011:Mr.AR.L.Sundaresan,Senior Counsel for M/s.AL.GandhimathiFor 8th Respondentin W.A.No.1704 of2010:Mr.R.Muthukumarasamy, Senior Counsel for Mr.R.N.AmarnathFor Respondents 32to 35, 42 to 45and 46 to 50 inW.A.No.1704 of2010 and for 1strespondent inW.A.No.304 of 2011:Mr.K.Venkatramani, Senior Counsel for Mr.T.Ayngara PrabhuFor 24th respondentin W.A.No.1704 of2010:Mr.Silambanan, Senior Counsel forM/s.Profexs Associates https://hcservices.ecourts.gov.in/hcservices/ For Respondents 29and 30 inW.A.No.1704 of2010:Mr.A.Navaneethakrishnan,Advocate General assisted byMr.I.S.Inbadurai, SpecialGovernment PleaderFor 31st respondentin W.A.No.1704 of2010:Mr.N.S.NandakumarFor Respondents 36and 37 inW.A.No.1704 of2010 andrespondents 38 and39 in W.A.No.304of 2011 andrespondents 35 and36 in W.A.No.305of 2011:Mr.M.SivavarthananFor Respondents 38to 41 inW.A.No.1704 of2010 andrespondents 34 to37 in W.A.No.304of 2011 andRespondents 31 to34 in W.A.No.305of 2011:Mr.R.ThiagarajanSenior Counsel for Mr.RamajagadeesanFor Respondents 2,8, 26 to 28 inW.A.No.1704 of2010 :No appearanceFor Respondents10, 12, 23 inW.A.No.1704 of2010:Given upFor respondents 13and 25 inW.A.No.1704 of2010, respondents2 to 33 inW.A.No.304 of 2011and respondents 1to 30 inW.A.No.305 of 2011:Not ready in notice https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TP.JYOTHIMANI,J.These writ appeals appertain to a dispute between the personsappointed as Assistant Engineers in and around the years 1981-1985 inthe Highways and Rural Works Department of the Government of TamilNadu on temporary basis, who continue in service, and the personsappointed in the said category in 1991-1992 through the examinationconducted by the Tamil Nadu Public Service Commission (for brevity,"the TNPSC").2. The writ appeal in W.A.No.1704 of 2010 has been filed againstthe order dated 27.4.2009 of the learned Judge in W.P.No.21786 of2004 by the appellants, who are the direct recruits through the TNPSChaving passed the competitive examination in the year 1991-1992 andwere not parties to the writ petition, but filed the appeal afterobtaining leave.3. The appellants in W.A.Nos.304 and 305 of 2011, who arerespondents 10 and 25 in W.P.Nos.21127 and 23167 of 2010 andpetitioners 6 and 22 in W.P.No.21786 of 2004, are temporaryappointees to the post of Assistant Engineer in the year 1984 andthey continued in service.4. Since all these writ appeals raise a common issue, they weredirected to be posted jointly and accordingly, they were heardjointly by us.W.A.No.1704 of 2010:5.1. This appeal came to be filed by third parties toW.P.No.21786 of 2004 on obtaining leave. The said writ petition wasfiled by 28 writ petitioners, who were all appointed as AssistantEngineers in the Highways and Rural Works Department, beingEngineering graduates registered under the Professional EmploymentExchange. They were all selected by the Chief Engineer, being theappointing authority, between 1981 and 1986 under Rule 10(a)(i) ofthe Tamil Nadu State and Subordinate Services Rules, 1955 (forbrevity, "the Rules"). Some of the writ petitioners possess thequalification of M.E./M.Tech. and it is stated that they were allposted in the regular and substantial vacancies and were dischargingthe normal functions as Assistant Engineers in various projects ofthe Highways Department. 5.2. It is stated that their services were terminated in 1985-86without assigning any reason and subsequently they were reappointedin 1987-1988 as per G.O.Ms.No.46, Transport Department, dated7.1.1987 under Rule 10(a)(i) of the Rules. It is stated that thewrit petitioners thus appointed were performing all functions https://hcservices.ecourts.gov.in/hcservices/ involving planning, investigation, research and computerized know-howand are fully qualified engineers according to the HighwayEngineering Service Rules from the time of their first appointment.5.3. It is their case that at the time of their originalappointment through employment exchange, they were made to give anundertaking that they would work at least for one year and all theirdocuments were retained by the Highways Department, thereby deprivingthem to get employment elsewhere and due to the large number ofvacancies in the department, the petitioners were given to understandthat their services would be continued and regularized in the courseof time, since there was no selection by the TNPSC for the post ofAssistant Engineers for a long period of seven years after 1982. Itis also stated that they were all made to work on temporary basiswithout the authorities taking any action to regularize and fix theirseniority.5.4. It is their further case that during 1989-1990, 15 AssistantEngineers, fresh from college, were recruited through the TNPSC andposted in the Public Works Department and they were brought into theHighways Department and were placed above the petitioners and belowthe persons appointed in the 1982. It is further stated that thepetitioners have made representation when the 15 Assistant Engineersof the Public Works Department were placed above them in theseniority and ultimately approached the Tamil Nadu AdministrativeTribunal, which has taken a decision against the petitioners on theground that the petitioners should have participated in theexamination conducted by the TNPSC in the year 1989. Whiledismissing the applications, the Tribunal observed that there is noreason for ousting the petitioners in the year 1985-1886 andreappointing them in the year 1987-1988 and it is a clear faultcommitted by the Highways Department.5.5. It is also stated that five of the petitioners were selectedby the TNPSC in 1983 and 1985 for the Public Works Department, butthey continued to serve the Highways Department with a fervent hopethat they will be regularized from the date of initial appointmentwith due seniority. It is stated that similarly situated persons inother department, to wit Agricultural Engineering Department, havebeen regularized as per G.O.Ms.No.444, Agriculture (AssistantEngineers II) Department, dated 13.6.1990 and such an approach hasnot been adopted in respect of Highways Department.5.6. It is stated that as per the decision of the Supreme Court,the persons who are already in service are entitled to seniority fromthe date of their initial appointment, however the petitioners whohave been in service for nearly 20 years have been deprived of theirequitable right of seniority from the date of their originalappointment. https://hcservices.ecourts.gov.in/hcservices/

5.7. It is also stated that the Government has taken a stand toregularize the petitioners and nine others in the year 1995, butwithout giving due seniority from the date of their originalappointment vide G.O.Ms.No.528, Public Works (HK2) Department, dated30.6.1995 and that was challenged on the ground that the same isunjustified and unreasonable. The petitioners have also stated thatthe stand of the official respondents in placing the petitionersbelow the persons selected through the TNPSC in 1992 is unjustifiedand as a result of the same, the petitioners have lost theirseniority of about 13 years.5.8. It is also stated that while the Secretary to Government,Highways Department has sent a report to the TNPSC to consider thecase of the petitioners for regularization from the date of theiroriginal appointment, the TNPSC has taken a contra view andultimately, the Government has acquiesced to the said view of theTNPSC, as it is seen in the communication of the Chief Engineer dated29.6.2004. Therefore, the petitioners have challengedG.O.Ms.No.528, Public Works (HK2) Department, dated 30.6.1995, bywhich the Government has regularized the petitioners and nine otherswith effect from the dates of their original appointment howeverwithout giving due seniority from the said dates.6.1. In the counter affidavit filed by the Government in the writpetition while it is admitted that the petitioners are among thosewho were appointed temporarily during 1981-1985 as AssistantEngineers in the Highways Department, being sponsored by theProfessional and Executive Employment Exchange, it is stated thatsuch appointment was only to implement Self-Sufficiency Schemelaunched by the Government and it was on completion of the saidscheme, they were terminated gradually during 1986 and subsequently,reappointed on temporary basis in 1987-1988 and are continuing inservice till date. It is further stated that their services were notregularized for the reason that they were not appointed through theTNPSC.6.2. It is admitted that between 1983 and 1988 there was noselection of Assistant Engineers by the TNPSC and it was in thosecircumstances, the petitioners were allowed to continue due to dearthof hands. It is stated that even in the appointment order it wasspecifically indicated that they could be terminated at any time. 6.3. It is stated that the 15 Assistant Engineers selected bythe TNPSC were originally for Public Works Department, but were re-allotted Highways Department based on the availability of vacanciesand the same cannot be said to be invalid and the prospects of thepetitioners are not affected by including them and the petitionerscannot equate themselves with the regularly appointed persons throughTNPSC in 1989-1990. https://hcservices.ecourts.gov.in/hcservices/

6.4. It is stated that few of the candidates selected through theTNPSC in 1989-1990 but placed in the reserve list for regularappointment as Assistant Engineers approached the Tamil NaduAdministrative Tribunal by filing O.A.Nos.3715, 3716, 2562 and 5635of 1992 and the Tribunal in its order dated 21.1.1994 while observingthat the temporary Assistant Engineers are liable to be replaced byregular candidates selected by the TNPSC, directed that they may beallowed to appear for selection in relaxation of rules to the extentnecessary to give them a chance to qualify for regular appointmentand that was only on sympathetic grounds.6.5. It is stated that five of the petitioners selected by theTNPSC were regularized from the date of their first appointment andin respect of the other petitioners, the Government after consideringthe views of the TNPSC has issued the impugned government orderregularizing the services of the petitioners, but directing to placethem in the seniority below the candidates selected by the TNPSC inthe year 1991-1992 and, therefore, according to the Government, thepetitioners, who were not regularly appointed, have no manner ofright to claim seniority, inasmuch as their claim for regularizationhas been considered.7. While disposing of the writ petition, the learned Judgeconsidering the request made on behalf of the petitioners that theymay be permitted to make fresh representation to the Secretary toGovernment, State of Tamil Nadu, Highways Department, with regard totheir claim for regularization and fixing of seniority from the dateof their original appointment, gave liberty to the petitioners tomake representation to the Secretary to Government, State of TamilNadu, Highways Department with regard to the relief sought in thewrit petition within a period of four weeks from the date of theorder and directed that on receipt of such representation, theSecretary to Government, State of Tamil Nadu, Highways Departmentshall pass orders on merits and in accordance with law after hearingthose who may be adversely affected by such re-fixation of seniorityand by taking into consideration the recommendations made by theChief Engineer (General), Highways Department and the TNPSC, to witrespondents 2 and 3, dated 1.3.2002 and 23.4.2002 respectively,within a period of four months.8. It is as against the said order, the third parties, who wereappointed through the TNPSC in the year 1991-1992, on obtaining leavehave filed the above appeal contending inter alia as under:(i)that the writ petition ought not to have been orderedwithout impleading the appellants who are the necessaryparties;(ii)that even otherwise the Secretary to Government,Highways Department and the Chief Engineer, HighwaysDepartment cannot modify the impugned government orderin G.O.Ms.No.528, Public Works (HK.2) Department, dated https://hcservices.ecourts.gov.in/hcservices/

30.6.1995 and therefore no direction ought to have beengiven to the said respondents who have no statutoryobligation; (iii)that the original writ petitioners have suppressedthe material facts about the rejection of their earlierrequest by the TNPSC; (iv)that based on G.O.Ms.No.528, Public Works (HK.2)Department, dated 30.6.1995, which was impugned in thewrit petition, the original petitioners were given onepromotion as Assistant Divisional Engineers and thatwas accepted by them and having accepted the promotion,they are estopped from challenging the government orderafter a lapse of 15 years and, therefore, the writpetition ought to have been dismissed on the ground oflaches; (v)that the claim of the petitioners is illegal andagainst Rule 10(a)(i)(1) of the Rules; and(vi)that the order passed by the learned Single Judge isagainst the law laid down by the Supreme Court in M.P.Palanisamy v. A. Krishnan, (2009) 6 SCC 428.9.1. Mr.V.Prakash, learned Senior Counsel appearing for theappellants in W.A.No.1704 of 2010 would submit that the original writpetitioners having obtained the benefit of promotion based on thegovernment order impugned in the writ petition are estopped fromchallenging the government order or making a representation for thepurpose of altering the contents of the government order. It is hissubmission that by the conduct of the original writ petitioners inaccepting the promotions based on the impugned government order, theyhave waived their right. 9.2. He would also contend that the writ petitioners even thoughwere given an opportunity to appear regularly for the competitiveexamination conducted by the TNPSC, they failed, and therefore theycannot be said to be qualified and even the benefit given under theimpugned government order to regularize them but placing them in theseniority list below the persons appointed through regularlyconducted examination by the TNPSC is a matter of sympathy orcompassion. He would rely upon the judgment of the Supreme Court inH.S. Vankani v. State of Gujarat, (2010) 4 SCC 301. He would alsorely upon the decisions in M.P. Palanisamy v. A. Krishnan, (2009) 6SCC 428 and K.Madalaimuthu and another v. State of Tamil Nadu andothers, (2006) 6 SCC 558 to substantiate his contention that settledseniority position cannot be unsettled.10.1. The learned Advocate General appearing for respondents 29and 30, while supporting the contention of the learned Senior Counselfor the appellants, would submit that the government order, impugnedin the writ petition granting regularization to respondents 1 to 28in the appeal from the date of their original appointments, but https://hcservices.ecourts.gov.in/hcservices/ placing them in the seniority list after the persons appointed onregular basis through the TNPSC in last selection in 1992, cannot besaid to be either invalid or arbitrary. 10.2. It is his submission that respondents 1 to 28, who are notpersons appointed by regular process through the examinationconducted by TNPSC but where appointed as per Rule 10(a)(i) of theRules, cannot as a matter of right claim themselves to be seniors tothe persons who are regularly appointed through the competitiveexamination conducted by the TNPSC and, therefore, it is hiscontention that the government order cannot be held to be invalid andin such circumstances, there is no possibility or necessity for theGovernment to reconsider the case of respondents 1 to 28 for placingthem in the seniority list above the persons who were selected by thedue process through competitive examination conducted by the TNPSCafter the notification issued in the year 1989.10.3. He further submitted that, in fact, the TNPSC has conductedexamination in respect of the said post in the years 1985-1986,1989-1990 and 1991-1992 and even in the year 1991-1992 therespondents 1 to 28, who are the original writ petitioners, have notmade any effort for the purpose of getting through the examinationconducted by the TNPSC and, therefore, even after opportunity wasgiven to them to enter through the proper channel, they have notutilized the same. 10.4. He would lastly submit that respondents 1 to 28 havingaccepted further promotion based on the impugned government ordercannot go back and challenge the said order.11. Mr.N.S.Nandakumar, learned counsel appearing for the 31strespondent/TNPSC also reiterates the contentions made by the learnedAdvocate General.12.1. On the other hand, it is the contention of Mrs.NaliniChidambaram, Mr.Vijayanarayanan, Mr.AR.L.Sundaresan,Mr.R.Muthukumarasamy, Mr.Silambanan, learned Senior Counsel appearingfor various respondents, who were appointed as per 10(a)(i) of theRules and are the original writ petitioners working as AssistantEngineers on temporary basis appointed in and about the year 1984,ousted in the year 1987, and reappointed in 1987-1988 on temporarybasis and continued till date and who are affected by the impugnedgovernment order insofar as it fixes their seniority below thepersons who were appointed through TNPSC notification in the year1989, contended that while it is true that the said respondents wereappointed as per Rule 10(a)(i) of the Rules, it remains a fact thatever since their appointment in 1984, except for a brief period inthe year 1987, they all continued in service throughout till date andin the absence of any rule prohibiting their seniority to be fixedbased on their experience, they are entitled to claim seniority above https://hcservices.ecourts.gov.in/hcservices/ the persons who were appointed subsequent to their appointment, eventhough such subsequent appointment was through the TNPSC.12.2. It is further contended that when the TNPSC has notconducted the examinations regularly and the Government has continuedthe services of the said respondents on temporary basis, there is nofault on their part.12.3. It is their submission that when the TNPSC, which is aconstitutional authority, has taken a decision, as it is seen in thecommunication of the TNPSC dated 12.8.2010 addressed to theGovernment, and accorded its concurrence in respect of the originalwrit petitioners and similarly situated persons numbering 37, whowere appointed on temporary basis as Assistant Engineers, that theircase should be treated as special case for re-fixing their seniorityin the Highways Department with reference to the date of theirregularization and that they should be placed between 1982 and 1986directly recruited Assistant Engineers after hearing those who may beadversely affected, the same has to be treated as final and there isnothing wrong on the part of the Government in re-fixing theseniority. This claim was specifically made by Mrs.NaliniChidambaram, learned Senior Counsel in her contention.12.4. It is the submission of Mr.AR.L.Sundaresan, learned SeniorCounsel that, in fact, the Government in the letter dated 27.8.2009has requested the TNPSC to submit its views on the re-fixation ofseniority in respect of 37 persons, including the petitioners, basedon the observation made by the learned Single Judge in the impugnedorder dated 27.4.2009 and it was in those circumstances, the TNPSChas given its views on 12.8.2010 to the Government, as stated above,giving its concurrence for the purpose of re-fixing the seniority of37 persons, including the writ petitioners, by placing them between1982 and 1986 and, therefore, by such a direction issued by thelearned Judge in the impugned order no one is affected and the appealis premature.12.5. Mr.AR.L.Sundaresan, learned Senior Counsel also brought tothe notice of this Court that accepting such concurrence of theTNPSC, the Government in respect of Agricultural EngineeringDepartment has, in fact, revised the seniority list, as it is seen inG.O.Ms.No.444, Agricultural AE(II) Department, dated 13.6.1990. Hehas also brought to the notice of this Court that even in theHighways Engineering Department, while regularizing the services, theGovernment in G.O.Ms.No.265, Highways (HK-2) Department, dated24.9.2004 has re-fixed the seniority. He has also relied upon thedecision of the Supreme Court in Rudra Kumar Sain v. Union of India,AIR 2000 SC 2808, apart from the decision of a Division Bench of thisCourt in Indian Council of Medical Research and others v.K.Rajalakshmi and another, 2005 (1) CTC 488 to buttress the saidcontention. https://hcservices.ecourts.gov.in/hcservices/

12.6. Mr.AR.L.Sundaresan, learned Senior Counsel has alsosubmitted that inasmuch as no seniority was subsequently drawn, thewrit petitioners cannot be thrown out on the ground of laches,especially when representations have been made to the Government andthe same were pending. It is his submission that copy of theimpugned government order was not served on them and, therefore, theywere unable to approach the Court at the earliest point of time andeven otherwise when once their seniority is ignored, there is no baragainst the writ petitioners in challenging the government order.12.7. It is the further submission of Mr.AR.L.Sundaresan thateven in the impugned order passed by the learned Judge, he has onlydirected the Government to consider the case of the writ petitionersalong with the persons who are likely to be affected and it isultimately for the Government to pass orders and inasmuch as theGovernment is yet to pass orders, the same cannot be questioned bythe appellants.13.1. Respondents 32 to 35 and 42 to 50 in the writ appeal, towit the persons selected through the TNPSC based on the notificationissued in the year 1989 as Assistant Engineers, got themselvesimpleaded as parties. Likewise, respondents 36 to 41, who were alsoappointed through TNPSC and were directed to be placed under theimpugned government order above the original writ petitioners in theinter se seniority list, have also got themselves impleaded andMr.K.Venkataramani, Mr.R.Thiagarajan, learned Senior Counsel, apartfrom Mr.Sivavarthanan, learned counsel appearing for respondents 36and 37, have made their submissions in line with the submissions madeby Mr.V.Prakash, learned Senior Counsel appearing for the appellants.13.2. Mr.R.Thiagarajan, learned Senior Counsel would submit thatwhen once 37 persons, including the writ petitioners, have gotthemselves regularized from the date of their original appointmentand only in respect of their inter se seniority they were directed tobe placed below the regularly appointed persons through the TNPSC,they cannot have any grievance at all and, in fact, regularizingtheir services from the date of their original appointment ontemporary basis under Rule 10(a)(i) of the Rules itself is a matterof grace.13.3. It is his submission that the persons appointed as per Rule10(a)(i) of the Rules, to wit 37 persons including the original writpetitioners, have challenged the notification issued by the TNPSC inO.A.No.1612 and 1791 of 1989 before the Tamil Nadu AdministrativeTribunal and the said applications were dismissed on 21.1.1994 andthereafter they made representation for regularization and it wasbased on that G.O.Ms.No.528, Public Works (HK2) Department, dated30.6.1995 came to be passed and it was subsequently, the Governmenthas passed orders by relaxing the rules as per the powers conferred https://hcservices.ecourts.gov.in/hcservices/ under Rule 48 of the Rules to enable the 37 persons appointed witheffect from their original date of appointment for regularization,but directing the seniority to be placed below the candidatesselected by the TNPSC in the last selection, as per the approved listin the year 1992, and therefore the request of the HighwaysDepartment to reconsider and confer them seniority from the date oftheir original appointment was rejected by the Government in theletter dated 5.4.2004 and that has become final and when that is so,it would be improper for the Government or the Highways Department towrite a letter on 27.8.2009 to the TNPSC to give its opinion on thesame issue once again and, therefore, according to the learned SeniorCounsel, the letter of the TNPSC dated 12.8.2010 has no legal basisat all.13.4. It is his submission that insofar as the decision taken bythe Government on 5.4.2004 against the 37 persons, including the writpetitioners, stands final and is not challenged by any one, theletter of the TNPSC cannot confer any right. He would also submitthat when the 37 persons, including the writ petitioners, wereregularized under the impugned government order as early as30.6.1995, no reason has been adduced by the writ petitioners forchallenging the same in the year 2004, especially when they haveaccepted the regularization from the date of their appointment andsubsequent promotions.13.5. Mr.K.Venkataramani, learned Senior Counsel while adoptingthe arguments of Mr.R.Thiagarajan, learned Senior Counsel, as statedabove, would submit that the respondents who were appointed throughthe examination conducted by the TNPSC in 1986 have been regularizedon 25.3.1987, 9.4.1987 and 10.4.1987 and were promoted as AssistantDivisional Engineers in 2004 and Divisional Engineers in 2011,whereas the original writ petitioners were appointed as per Rule 10(a)(i) of the Rules in 1971, 1972, 1981, 1984, 1985 and 1986 andousted in the year 1987 and again reappointed and the persons whowere selected through the TNPSC were not given posting and it was inthose circumstances the persons selected through TNPSC have filedO.A.No.3715 of 1992 before the Tamil Nadu Administrative Tribunal toterminate the persons appointed as per Rule 10(a)(i) of the Rules,since they cannot hold the post beyond three years as per Rule 35(f)of the Rules, and the Tribunal has passed the final order on21.1.1994, in which the Tribunal while directing that one moreopportunity must be given to 10(a)(i) appointees to appear forregular examination to be conducted by the TNPSC, has made it veryclear that in the meantime, the regularly appointed candidates are toreplace the 10(a)(i) candidates in the regular vacancy and that orderhas become final and is not challenged by anyone and when the 37persons, including the writ petitioners, have not chosen to getthrough in the subsequently conducted examination by the TNPSC as perthe direction of the Tamil Nadu Administrative Tribunal, there is no https://hcservices.ecourts.gov.in/hcservices/ question of reconsideration, as stated by the learned Single Judge inthe impugned order.13.6. In order to support his contention that the claim of thewrit petitioners is affected by laches, he would rely upon thedecisions in M.P. Palanisamy v. A. Krishnan, (2009) 6 SCC 428 andP.Mariyappan v. The Government of Tamil Nadu, rep. by the Secretaryto Government, Forest and Fisheries Department, Madras, 1985 WLR 349.W.A.Nos.304 and 305 of 2011:14.1. In the meantime, the said impleaded respondents inW.A.No.1704 of 2010, who were selected in the examination conductedby the TNPSC as Assistant Engineers as per the notification of theyear 1989, have challenged the letter of the Government dated27.8.2009 by which the Government has requested the TNPSC to give itsviews on the re-fixation of seniority of the 37 Assistant Engineersappointed and continued under 10(a)(i) basis; the recommendations ofthe Chief Engineer of the Highways Department dated 29.5.2009addressed to the Principal Secretary to the Government, HighwaysDepartment recommending the revision of seniority to confer the 10(a)(i) appointees their seniority from the date of their originalappointment; and the subsequent letter of the TNPSC dated 12.8.2010recommending that the 37 persons appointed under Rule 10(a)(i) can beregularized and their inter se seniority can be fixed between 1982and 1986 directly recruited Assistant Engineers by filingW.P.Nos.21127 and 23167 of 2010 and a learned Single Judge of thisCourt in the common order dated 4.2.2011 while disposing of the saidwrit petitions has issued directions to the Government of Tamil Naduto give one more hearing to the petitioners in these writ petitionsas well as respondents 5 to 31, who are also similarly situated asthat of the writ petitioners, and form an independent opinion withregard to their claim and take a decision regarding their seniority,ignoring the recommendations made by the Chief Engineer to theGovernment or the recommendation of the TNPSC dated 12.8.2010 andpass a speaking order.14.2. Respondents 10 and 25 in the said writ petition, who areamong the 37 persons appointed under Rule 10(a)(i) of the Rules andwhose services were regularized in G.O.Ms.No.528, Public Works (HK2)Department, dated 30.6.1995 with effect from the date of theiroriginal appointment however directing them to be placed in theseniority below the persons who were appointed through the TNPSC asAssistant Engineers pursuant to the notification issued by the TNPSCin the year 1989, have challenged the the said order of the learnedSingle Judge in W.A.Nos.304 and 305 of 2011 insofar as it relates tothe direction given to the Government under the impugned order toindependently consider the case of the writ petitioners ignoring therecommendations of the Chief Engineer, Highways Department and the https://hcservices.ecourts.gov.in/hcservices/ TNPSC contending inter alia that the learned Judge ought to havedismissed the writ petitions when the writ appeal in W.A.No.1704 of2010 filed by the Assistant Engineers recruited through the TNPSCexamination conducted in 1989 was pending before the Division Bench;that the recommendations are the internal communication between thedepartment and the TNPSC and cannot be challenged and there cannot bea direction to ignore such recommendations.14.3. The respective counsel who are appearing for the partieshave made the submissions as enumerated above in W.A.No.1704 of 2010.15. We have considered the rival submissions made in these casesand have given our anxious thought to the issues involved.16. On a perusal of the records it is seen that 37 persons, outof whom some are diploma holders and some are degree holders, wereappointed on temporary basis as Assistant Engineers in the Highwaysand Rural Works Department of the Government of Tamil Nadu during1971, 1972, 1981, 1984, 1985 and 1986 on temporary basis under Rule10(a)(i) of the Rules by the Chief Engineer, even though suchrecruitment to the post should be done by the TNPSC. However, those37 persons who were appointed as Assistant Engineers were ousted inthe year 1987 for want of vacancies and subsequently reappointed asper Rule 10(a)(i) of the Rules and they are continuing till date andit is not in dispute that they were not selected till date throughthe TNPSC, even though they have been originally appointed bysponsorship through the employment exchange.17. Under the Tamil Nadu State and Subordinate Service Rules,1955, Rule 10(a)(i) contemplates in the public interest, in caseswhere there would be undue delay in making appointment in accordancewith the Rules, that temporary appointments can be filled upotherwise than through the TNPSC. The Rule also contemplates thatany such person appointed shall be replaced as soon as possible by amember of a service or an approved candidate qualified to hold thepost and cannot be continued for a period more than one year from thedate of the temporary appointment. They are also not to undergo theperiod of probation. A reference to the appointments made during thesaid period shows that the appointment orders while referring to Rule10(a)(i) of the Rules show that the candidates were sponsored throughemployment exchange and they were informed that their appointment waspurely temporary on account of non availability of selectedcandidates and their services are liable to be terminated without anyreason.18. In the meantime, the TNPSC issued a notification on 15.9.1989inviting applications to fill up 60 posts of Assistant Engineers(Civil) in the Tamil Nadu Highways and Rural Works Departmentprescribing a degree in Civil Engineering as qualification. Eventhough the notification was in respect of 60 vacancies, the select https://hcservices.ecourts.gov.in/hcservices/ list of 47 candidates was prepared by the TNPSC and 12 candidateswere placed in the reserve list. The TNPSC again has issued anotification on 30.11.1992 inviting applications for 20 posts. Thosecandidates who have been selected through TNPSC as well as thecandidates temporarily appointed as per Rule 10(a)(i) of the Ruleshave approached the Tamil Nadu Administrative Tribunal in variousbatch of cases in O.A.No.1612 of 1989, etc. While regularly selectedcandidates through the TNPSC would contend that they have to beposted since they were selected in accordance with the Rules throughthe TNPSC, it was the contention of the candidates who have beenappointed on 10(a)(i) basis temporarily that they have been sponsoredthrough the employment exchange and it was also their case that eventhough the TNPSC has notified for examination in 1989 and 1992, theyhave been wrongly advised not to appear since they have continued inservice.19. The Tribunal in the order dated 21.1.1994, while dealing withthe merits of the contentions and comparative merit of the appointeesthrough the TNPSC and temporary appointees, has referred to itsearlier order in O.A.No.2115 of 1989, etc. batch dated 24.7.1991extracting the portion of the decision as follows:"When recruitment is made through the Public ServiceCommission an advertisement is issued calling forapplications in the papers. Wide publicity is thusgiven so that all eligible persons may apply if they sodesire. Thereafter a competitive selection is made by awritten examination followed by an interview.Appointments through the Employment Exchange on theother hand does not afford the same scope for all theeligible candidates to apply if they so desire. Nodoubt all such eligible candidates may registerthemselves with the Employment Exchange but theEmployment Exchange sponsors only some candidates withspecial reference to the seniority of registration.Therefore, it cannot be said that all eligiblecandidates as contemplated under the rules areconsidered when the recruitment is made of candidatessponsored by the Employment Exchange. Recruitment byopen advertisement and competitive selection is from amuch wider base of eligible candidates and it cancertainly be said that the employment by calling forcandidates from the Employment Exchange excludes personsotherwise eligible, from competing in the selection.The class of persons to be considered in this context ispersons who are qualified in accordance with the rulesfor such direct recruitment and who are eligible tocompete in the selection to be made by the PublicService Commission. When the rules contemplate that theselection should be made by affording opportunity to allsuch eligible candidates, the selection made through the https://hcservices.ecourts.gov.in/hcservices/ employment exchange from a limited body of personssponsored by the Employment Exchange from among thosewho have registered, which class again may not cover allthe persons eligible because such registration with theEmployment Exchange is not compulsory and the EmploymentExchange is not the only means through which therecruitment could be made to Government Service. Suchopen selection through a competitive examination inwhich all eligible persons can compete and due publicityis given to enable all such eligible persons to competeis consistent with the principles of Art. 14 and 16 ofthe Constitution conferring the equality before the lawand equal opportunities in the matter of GovernmentService. When the rules specifically provides thatregular employment for a category of post should be donein this manner employing persons in violation of therules from a smaller body of persons would be denial ofrights conferred by Art. 14 and 16 of the Constitutionwhich had been incorporated in the rules, and servicefollowing such appointment cannot be treated on par withregular service or as conferring any right to regularemployment."The Tribunal has also referred to another order passed in O.A.No.1451of 1990, dated 26.6.1992 in the same terms. Following the saidorders, while dealing with the claim of the regularization of thetemporarily appointed Assistant Engineers, the Tribunal whileobserving as follows:"In this case, the applicants being terminated in 1986,the re-employment thereafter in 1987-88 was totallyunjustified. A selection by the Public ServiceCommission had been notified in 1989, within two yearsof such re-appointment. Therefore it cannot be saidthat they have continued fairly long time followingtemporary appointment. The earlier spell of temporaryappointment cannot be taken into account in thiscontext, when that had been terminated in 1985-86. Thatis bearly after short period, except in a few cases,C.Swaminathan who had been employed about 5 years. But,they had also been terminated and been re-employed onlyafter a further period of over a year. While Governmentmay on compassionate grounds consider their cases, onaccount of the extended temporary service, there will beno justification for such consideration in respect ofothers, in view of the limited period of their tenurebefore and after the break. The failure to apply forthe selection notified in 1989 cannot be excused. Therehas been failure on both sides.",has ultimately held while referring to G.O.Ms.No.185, P. & A.R.Department, dated 15.5.1991 in respect of temporary appointments asfollows: https://hcservices.ecourts.gov.in/hcservices/ "'The practice of conducting Special Qualifying Tests byTamil Nadu Public Service Commission/TeachersRecruitment Board be dispensed with.All temporary employees who were in service as on31.3.1991 and all other persons who were recruited toGovernment service under General Rule 10(a)(i) and whowere discharged from service after serving continuouslyfor a minimum period of one year between 1.4.1986 and31.3.1991 be permitted to appear for the next regularrecruitment examination to be conducted by the TamilNadu Public Service Commission/Teachers RecruitmentBoard. They will be given age relaxation if necessary,to appear for the above competitive examination. Theservices of temporary employees who do not appear forthe regular recruitment Examination and also do not getselected by the Tamil Nadu Public ServiceCommission/Teachers Recruitment Board will beterminated....A total ban be imposed on recruitment of temporaryemployees through Employment Exchange for a period ofone year in the first instance, from the date of issueof this order. Even according to the General Rule 10(a)(i) no temporary appointment shall be made of personsother than the ones sponsored by the Tamil Nadu PublicService Commission to any of the posts within thepurview of the Tamil Nadu Public Service Commission.The appointing authorities are thus divested of theirpowers of making temporary appointments of candidatessponsored by the Employment Exchanges.'We would expect the Government to take action strictlyin accordance with the rules for recruitment by theCommission promptly and make temporary appointmentsduring the interim period only from the reserve list ofthe Commission and to deal with the past cases oftemporary employment which have been allowed to continuecontrary to rules on account of slackness in takingaction for regular recruitment and deliberately as inthis case when the temporary appointment have beenallowed to continue even after selection by theCommission and the vacancies had not been notified tothe Commission even though the temporary appointmentshad been in operation only for a limited period of lessthan two years when the selection was notified, inaccordance with these orders without making anyexceptions and relaxations. As we have stressed in ourearlier orders we would expect the Government to adhereto the extended temporary employment to be followed by https://hcservices.ecourts.gov.in/hcservices/ request for regularization in relaxation of the rules.The applicants in O.A.Nos.2562, 3715, 3716, 5635 and5806/92 who have been selected by the Public ServiceCommission following the notification in 1989 and placedin the reserve list should be appointed regularly inreplacement of temporary incumbents, if necessary. Thetemporary candidates, who are applicants inO.A.Nos.1612, 1791, 2023/89 and 6671 & 6672/93 shouldtake their chance in the selection in progress,following the notification issued in 1992, if theCommission can so consider or in the next selection. Inthe meantime, they are liable to be replaced by regularcandidates selected by the Public Service Commission.However, they may be allowed to appear for one selectionin relaxation of the rules to the extent necessary, togive them a chance to qualify for regular appointment,even though they had not availed themselves of suchchance in the current selection as they should have."(emphasis supplied)20. The said order passed by the Tamil Nadu AdministrativeTribunal in the batch of cases has become final. In fact, it wasbased on the said decision, the Government has passed the GovernmentOrder in G.O.Ms.No.528, Public Works (HK.2) Department, dated30.6.1995 impugned in the writ petition. A reference to the saidimpugned order makes it clear that the order has been passed based onthe direction issued by the Tamil Nadu Administrative Tribunal dated21.1.1994.21. It is not in dispute that in spite of such directions havingbeen given, in the examination conducted by the TNPSC by invitingapplications on 30.11.1992, these temporary appointees have notchosen to appear. Therefore, it is not as if there was noopportunity for them to come under the regular stream. In fact, itwas taking note of the contention raised on their behalf that theywere wrongly advised not to appear in examination conducted in 1982,they were given another opportunity to appear in 1992. It was afterconsidering the representations made on their behalf to regularizetheir services on the ground that they were continued from 1971,1972, 1981 1984, 1985 and 1986 on temporary basis and the observationmade by the Tamil Nadu Administrative Tribunal, the Government hasdecided to obtain concurrence from the TNPSC for regularization ofthe temporarily appointed persons in the services as AssistantEngineers.22. Regulation 16(b) of the Tamil Nadu Public Service CommissionRegulations, 1954, which is as follows:"16. It shall not be necessary for the Commission to beconsulted: https://hcservices.ecourts.gov.in/hcservices/ (a) ....(b) as respects any of the matters mentioned in sub-clauses (a) and (b) of clause (3) of the Article 320 ofthe Constitution in the case of posts specified inAnnexure-IA to these regulations and other posts inrespect of which the State Government have directed ormay with the concurrence of the Commission, direct thatappointment may be made without reference to theCommission."contemplates that the State Government may make appointments inrespect of the posts specified in Annexure I-A to the Regulationswithout reference to the TNPSC, but with the concurrence of theCommission. In Annexure I-A, Item No.106 relates to the appointmentof Assistant Engineers in the Highways and Rural Works Department.Item 106 reads as under:"106. Assistant Engineers in the Highways and RuralWorks Department when appointment to the post is madefrom among the holders of the posts of Head Draftsmanand Draftsman Grade I on acquiring A.M.I.E. or B.E.degree qualifications."23. Ergo, it is in accordance with the Constitutional mandate andthe TNPSC Regulations, 1954, the Government has sought concurrencefrom the TNPSC and it is seen that in respect of 37 temporaryappointees, including the original writ petitioners, the TNPSC hasgiven concurrence for regularizing their appointment suggesting thatthe relevant Rules, including the rules relating to the the method ofrecruitment/reservation, may be relaxed in order to regularize theirservices. The TNPSC has also made it clear, as it is seen in theGovernment Order challenged, that the retrospective regularization ofthese candidates will not confer any right on seniority and theyshould be placed below the candidates selected by the TNPSC in thelast selection, to wit 1992 approved list. 24. It was thereafter, the Government has passed the above saidgovernment order, impugned in the writ petition, by relaxing therules relating to reservation and other aspects so as to enable these37 Assistant Engineers to be regularized and they were allregularized from the date of their original appointment. However,the Government Order states that they should be placed in theseniority below the candidates selected by the TNPSC in the lastselection in the year 1992 and it is this part of the governmentorder which came to be challenged by these temporary appointees inthe Highways Department by way of writ petitions in the year 2004.25. First of all, as submitted by Mr.K.Venkataramani, learnedSenior Counsel appearing for the regularly appointed candidates, theorder of the Tamil Nadu Administrative Tribunal, which was the basisfor the Government to pass the government order impugned in the writpetition, to the effect that the temporary appointees are liable to https://hcservices.ecourts.gov.in/hcservices/ be replaced by regular candidates selected by the TNPSC, but eligiblefor appearing in the selection in relaxation of the Rules to theextent necessary to give them a chance to qualify for regularappointment even though they have not availed chances earlier, aselicited above, has become final and the said 37 persons, except fewhave not chosen to appear in the subsequent selection process and inspite of that the Government has passed the order which is impugnedin the writ petition after obtaining the concurrence of the TNPSCregularizing all these 37 persons from the date of their appointmentwhich can be only said to be a matter of grace and not as a matter ofright, for no one of these writ petitioners have availed theopportunity of appearing before the TNPSC and getting themselvesregularly appointed and enter into the service and, therefore, in ourview, they are not entitled, as a matter or right, to claim that theyshould be placed in the seniority above the persons who appeared inthe regularly conducted selection process of the TNPSC in the year1989. While the regularization of their services with effect fromthe date of their regular appointment was itself on humanitarianground, they cannot as a matter of right claim to be seniors to thepersons who are regularly appointed. 26. It is further relevant to note that the writ petitionershave taken advantage of the said government order and got themselvesregularized in services from the date of their original appointmentsand based on the same they have also obtained various promotionssubsequently which is not in dispute and is also evident from theseniority list produced before this Court. While so, they arecertainly not entitled now after a lapse of nearly 9 years toapproach the Court in the year 2004 by filing a writ petitionchallenging the government order of the year 1995. There is noearthly reason given by the writ petitioners for such long delay, forthey cannot approbate and reprobate. 27. When that is the position, we do not understand the reasonfor directing the Government to consider the representation onceagain as it is seen in the order dated 27.4.2009 passed by thelearned Single Judge in W.P.No.21786 of 2004. The writ petitionershaving accepted the order of the Tamil Nadu Administrative Tribunal,which has become final as far as their service conditions areconcerned, cannot under the guise of giving representation attempt tounsettle the settled position. 28. The contention by the learned Senior Counsel appearing forsome of the respondents who are the temporary appointees that thedirection given by the learned Judge in the impugned order is only toconsider the representation without expressing any opinion on themerits of the matter and therefore the regularly appointed personshave no grievance since they will also be heard at the time when theGovernment takes a decision has absolutely no meaning. If such sortof representations are directed to be considered again and again when https://hcservices.ecourts.gov.in/hcservices/ the judicial pronouncement has become final, there is no end to anydispute. 29. When a similar question arose before the Supreme Court inM.P. Palanisamy v. A. Krishnan, (2009) 6 SCC 428, in respect ofappointment of teachers in Matriculation Schools in the State ofTamil Nadu vide G.O.Ms.No.1813, dated 12.12.1988, by which theteachers temporarily appointed as per Rule 10(a)(i) were regularizedfrom the date of their original appointment, however directing themto be placed in the seniority below the last candidate selected bythe TNPSC, while confirming the said government order, the ApexCourt has, in fact, referred to Rule 23(a)(i) of the Tamil Nadu Stateand Subordinate Service Rules, 1955, which is as follows:“23. (a)(i) Date of commencement of probation of personsfirst appointed temporarily.— If a person appointedtemporarily either under sub-rule (a) or sub-rule (b) ofthe Rule 10 to fill a vacancy in any service, class orcategory otherwise than in accordance with the rulesgoverning appointment thereto, such vacancy being avacancy which may be filled by direct recruitment, issubsequently appointed to the service, class or categoryin accordance with the rules, he shall commence hisprobation if any, in such category either from the dateof his first temporary appointment or from suchsubsequent date, as the appointing authority maydetermine. If the post is one to which appointment maybe made by transfer, and the person who had beenappointed thereto either under General Rule 10(a) or 10(d) is subsequently recruited thereto by transfer andincluded in the list of approved candidates, theappointing authority may, in his discretion, allow suchperson to commence his probation if any, from the dateof his first temporary appointment or from suchsubsequent date, as the appointing authority maydetermine:Provided that the date so determined by the appointingauthority to commence probation in this clause, shallnot be earlier than the date of commencement ofprobation of the juniormost person already in service:Provided further that on the date so determined by theappointing authority to commence probation in thisclause, the person shall not only possess all thequalifications prescribed for appointment to theservice, but also be fit for inclusion in the list ofapproved candidates drawn up by the Tamil Nadu PublicService Commission or the appointing authority, as thecase may be.” https://hcservices.ecourts.gov.in/hcservices/ and took particular reference to the first proviso stated above, andrejected the contention of the temporary appointees to have theirseniority placed above the persons appointed through TNPSC and hasheld as follows:"42. We are not impressed by this, as we have alreadypointed out that under Rule 23(a)(i) of the Tamil NaduState and Subordinate Services Rules, the persons whowere in service, could not be rendered junior by theregularisation of the ad hoc candidates at a laterstage. This G.O.Ms.No. 1813, therefore, has to beinterpreted in the light of Rule 23(a)(i), which was ageneral rule and applicable to all the appointments.After all, when a clear reference was made to Rule 10(a)(i)(1), which was from the General Rules, there was noreason to make any exception and not to read Rule 23(a)(i) of the General Rules. For this reason, the argumentmust fail."30. A similar issue regarding the appointments made in theDirector of Statistics and promotions effected to persons above thepersons who are regularly appointed affecting the vested right of thedirectly recruited candidates came up for consideration before aDivision Bench in P.Mariyappan v. The Government of Tamil Nadu, rep.by the Secretary to Government, Forest and Fisheries Department,Madras, 1985 WLR 349. That was a case where by exercise of the powerunder Article 309 of the Constitution of India, Government gaveretrospective effect to the rules and a proviso was introduced to theeffect that the qualification of possessing a degree withStatistics, Mathematics and Economics shall not be insisted forSupervisors and Junior Assistants who entered service prior to18.11.1968. However, by accepting the qualification such personswere given seniority by unsettling the seniority of persons who werealready holding the posts appointed through the TNPSC. In thosecircumstances, it was held by the Division Bench of this Court asfollows:"Undoubtedly rules under Article 309 of the Constitutionof India can be made with retrospective effect. Makingthe rules retrospective in operation and makingappointments in accordance with such rules are twodifferent things. The power to make rules is alegislative power and, therefore, can be exercisedretrospectively. When in the light of such rules someappointments are being made with retrospective effect,it is purely an administrative act, if it prejudiciallyaffects vested rights of other Government employees,then to that extent such administrative act will becomeunfair and arbitrary. It is this that has happened inthe present case. When the rules were givenretrospective effect and a proviso was introduced to theeffect that the qualification of possessing a degree https://hcservices.ecourts.gov.in/hcservices/ with Statistics, Mathematics and Economics shall not beinsisted upon in the case of Supervisors and JuniorAssistants who entered service in the Department ofStatistics prior to 18.11.1968, that did not have theeffect of enabling the State Government to makeappointments retrospectively to the prejudice of thosewho were already appointed in clear vacancies throughthe Public Service Commission. The effect of the amendedrules and the introduction of the proviso was that thoseof the Junior Assistants and Supervisors who werepromoted temporarily by the order dated 4th September,1971, and who were not qualified originally merelybecame qualified for being considered for appointment.Becoming qualified for being considered for appointmentcannot be equated with getting a right to be appointedretrospectively with effect from the date on which alltemporary appointments were made. 77 of the vacancieshaving been filled by direct recruitment and these 77vacancies being the first available vacancies, anyappointment made even in accordance with the new rulewould have effect only after 1.2.1974. The Director ofStatistics was, therefore, clearly not entitled to giveseniority to the persons whose appointments have beenregularised so as to adversely affect the vested rightsof the directly recruited persons who hold the posts ina substantive capacity. They could not have, therefore,become junior to those whose appointments wereregularised merely because by way of temporaryarrangements they were appointed on 4th September, 1971,under Rule 39(a) of the General Rules. We are,therefore, of the considered view that the Director ofStatistics was clearly in error in making the senioritylist relying upon the amended Rules dated 14th October,1978, so as to give the originally temporary appointedpersons seniority over the directly recruited persons.Accordingly to this limited extent we quash theseniority list and direct the State Government not todisturb seniority of the appellant and the other personswho have been appointed directly and the benefits ofregularisation would be given to those persons onlyafter the date of appointment of the directly recruitedAssistant Statistical Investigators. The appeal istherefore allowed."(emphasis supplied)31. The principle that the seniority once settled cannot bedirected to be unsettled, which has been reiterated in a plethora ofcases, came to be confirmed by the Apex Court in H.S. Vankani v.State of Gujarat, (2010) 4 SCC 301 in the following words:"38. Seniority is a civil right which has an important https://hcservices.ecourts.gov.in/hcservices/ and vital role to play in one's service career. Futurepromotion of a government servant depends either onstrict seniority or on the basis of seniority-cum-meritor merit-cum-seniority, etc. Seniority once settled isdecisive in the upward march in one's chosen work orcalling and gives certainty and assurance and boosts themorale to do quality work. It instils confidence,spreads harmony and commands respect among colleagueswhich is a paramount factor for good and soundadministration. If the settled seniority at the instanceof one's junior in service is unsettled, it may generatebitterness, resentment, hostility among the governmentservants and the enthusiasm to do quality work might belost. Such a situation may drive the parties to approachthe administration for resolution of that acrimoniousand poignant situation, which may consume a lot of timeand energy. The decision either way may drive theparties to litigative wilderness to the advantage oflegal professionals both private and government, drivingthe parties to acute penury. It is well known that thesalary they earn, may not match the litigation expensesand professional fees and may at times drive the partiesto other sources of money-making, including corruption.Public money is also being spent by the Government todefend their otherwise untenable stand. Further, it alsoconsumes a lot of judicial time from the lowest court tothe highest resulting in constant bitterness among theparties at the cost of sound administration affectingpublic interest."32. In K.Madalaimuthu and another v. State of Tamil Nadu andothers, (2006) 6 SCC 558, Altamas Kabir,J. speaking for the Benchwhile considering about the 10(a)(i) appointees, in categoric termshas held that such persons who are appointed on temporary basiswithout recourse to the recruitment rules cannot be said to beholding the regular appointment at all in the following paragraph:"24. On a consideration on the submissions made onbehalf of the respective parties and the decisions citedon their behalf, the consistent view appears to be theone canvassed on behalf of the appellants. The decisionscited by Mr.Rao have been rendered in the context ofRule 10(a)(i)(1) and the other relevant rules which arealso applicable to the facts of the instant case. Apartfrom the above, the law is well settled that initialappointment to a post without recourse to the rules ofrecruitment is not an appointment to a service ascontemplated under Rule 2(1) of the General Rules,notwithstanding the fact that such appointee is calledupon to perform duties of a post borne on the cadre ofsuch service. In fact, Rule 39(c) of the General Rules https://hcservices.ecourts.gov.in/hcservices/ indicates that a person temporarily promoted in terms ofRule 39(a) is required to be replaced as soon aspossible by a member of the service who is entitled tothe promotion under the Rules. It stands to reason thata person who is appointed temporarily to discharge thefunctions in a particular post without recourse to therecruitment rules, cannot be said to be in service tillsuch time as his appointment is regularised. It,therefore, follows that it is only from the date onwhich his services are regularised that such appointeecan count his seniority in the cadre."33. The settled legal position that seniority list once settledcannot be unsettled after a lapse of long time was reiterated againby the Supreme Court in Union of India and another v. S.K.Goel andothers, (2007) 14 SCC 641 in the following words:"28. ........ Since the matter of seniority has beenwell settled and this Court in a plethora of cases hasheld that the seniority/promotion granted on thestrength of DPC selection should not be unsettled aftera lapse of time."34. The reliance placed by Mr.AR.L.Sundaresan, learned SeniorCounsel appearing for some of the temporary appointees on thejudgment of the Supreme Court in Rudra Kumar Sain v. Union of India,AIR 2000 SC 2808 to insist that fortuitous or ad hoc appointmentcannot be for a longer period, since stop-gap arrangement cannot beperpetual, is no doubt an established concept, but in the saidjudgment, the Supreme Court has held that the issue is to be decidedon the factual circumstances. Further, the facts in that case wererelating to the appointment of Additional District Judges in theDelhi Judicial Service against temporary posts created by the DelhiAdministration and those persons have been working for long years andit was in that context while deciding about the seniority, theSupreme Court has held as follows:"16. The three terms “ad hoc”, “stopgap” and“fortuitous” are in frequent use in servicejurisprudence. In the absence of definition of theseterms in the Rules in question we have to look to thedictionary meaning of the words and the meaning commonlyassigned to them in service matters. The meaning givento the expression “fortuitous” in Stroud's JudicialDictionary is “accident or fortuitous casualty”. Thisshould obviously connote that if an appointment is madeaccidentally, because of a particular emergent situationand such appointment obviously would not continue for afairly long period. But an appointment made either underRule 16 or 17 of the Recruitment Rules, after due https://hcservices.ecourts.gov.in/hcservices/ consultation with the High Court and the appointeepossesses the prescribed qualification for suchappointment provided in Rule 7 and continues as such fora fairly long period, then the same cannot be held to be“fortuitous”. In Black's Law Dictionary, the expression“fortuitous” means “occurring by chance”, “a fortuitousevent may be highly unfortunate”. It thus, indicatesthat it occurs only by chance or accident, which couldnot have been reasonably foreseen. The expression “adhoc” in Black's Law Dictionary, means “something whichis formed for a particular purpose”. The expression“stopgap” as per Oxford Dictionary, means “a temporaryway of dealing with a problem or satisfying a need”....19. The meaning to be assigned to these terms whileinterpreting provisions of a service rule will depend onthe provisions of that rule and the context in and thepurpose for which the expressions are used. The meaningof any of these terms in the context of computation ofinter se seniority of officers holding cadre post willdepend on the facts and circumstances in which theappointment came to be made. For that purpose it will benecessary to look into the purpose for which the postwas created and the nature of the appointment of theofficer as stated in the appointment order. If theappointment order itself indicates that the post iscreated to meet a particular temporary contingency andfor a period specified in the order, then theappointment to such a post can be aptly described as “adhoc” or “stopgap”. If a post is created to meet asituation which has suddenly arisen on account ofhappening of some event of a temporary nature then theappointment of such a post can aptly be described as“fortuitous” in nature. If an appointment is made tomeet the contingency arising on account of delay incompleting the process of regular recruitment to thepost due to any reason and it is not possible to leavethe post vacant till then, and to meet this contingencyan appointment is made then it can appropriately becalled as a “stopgap” arrangement and appointment in thepost as “ad hoc” appointment. It is not possible to laydown any strait-jacket formula nor give an exhaustivelist of circumstances and situation in which such anappointment (ad hoc, fortuitous or stopgap) can be made.As such, this discussion is not intended to enumeratethe circumstances or situations in which appointments ofofficers can be said to come within the scope of any ofthese terms. It is only to indicate how the mattershould be approached while dealing with the questions ofinter se seniority of officers in the cadre. https://hcservices.ecourts.gov.in/hcservices/

20. In service jurisprudence, a person who possesses therequisite qualification for being appointed to aparticular post and then he is appointed with theapproval and consultation of the appropriate authorityand continues in the post for a fairly long period, thensuch an appointment cannot be held to be “stopgap orfortuitous or purely ad hoc”. In this view of thematter, the reasoning and basis on which the appointmentof the promotees in the Delhi Higher Judicial Service inthe case in hand was held by the High Court to be“fortuitous/ad hoc/stopgap” are wholly erroneous and,therefore, exclusion of those appointees to have theircontinuous length of service for seniority is erroneous."But the facts of the present case are totally different, as theappointment was not for temporarily created post. Moreover, theconduct of the temporary appointees in approaching the Court afterfairly long period of nine years is certainly not the issue beforethe Supreme Court in the above said case. 35. The further reliance placed by him on a Division Benchjudgment of this Court in Indian Council of Medical Research andothers v. K.Rajalakshmi and another, 2005 (1) CTC 488 relates toregularization of services of a person working in the project oncontinuation of the project and that is not applicable to the factsof the present case.36. It is relevant as correctly submitted by Mr.K.Venkataramani,learned Senior Counsel appearing for the candidates appointed throughTNPSC that Rule 35(f) of the Rules, which is as follows:"Rule 35(f). Application for the revision of seniorityof a person in a service, class, category or gradeshall be submitted to the appointing authoritywithin a period of three years from the date ofappointment to such service, class, category or grade orwithin a period of three years from the date of orderfixing the seniority, as the case may be. Anyapplication received after the said period of threeyears shall be summarily rejected. This shall not,however, be applicable to cases of rectifying orders,resulting from mistake of facts."makes it very clear that in respect of revision of seniority if thereis any dispute, the same has to be raised within three years from thedate of appointment in the said service or class and it makes it alsoclear that any application made after three years shall be summarilyrejected, except in cases where it resulted from mistake of facts. https://hcservices.ecourts.gov.in/hcservices/

37. By applying the said Rule to the facts of the present case,when the Government Order was passed in the year 1995, the writpetitioners have chosen to come to the Court in the year 2004 and,therefore, the grievance of the original writ petitioners cannot belooked into even as per the statutory provisions.38. The reliance placed on G.O.Ms.No.444, Agricultural (AE.II)Department, dated 13.6.1990 by Mr.AR.L.Sundaresan, learned SeniorCounsel to show that in Agricultural Engineering Departmentregularization has been effected in respect of the Engineersappointed is under totally different circumstances, wherein theGovernment has regularized their services on the ground that theTNPSC has not conducted any recruitment process after 1982 in respectof the Assistant Engineers (Agricultural Engineering) and it was inthose circumstances, by relaxation of various requirements, theGovernment has regularized the services. In the said order, theGovernment has also stated that the seniority must be assigned belowthe candidates last selected/approved by the TNPSC for the post ofAssistant Engineer (Agricultural Engineering). This order does nothelp the candidates who are temporarily appointed since on the factsof the present case all the 37 candidates have been regularized witheffect from the date of their original appointment.39. Even the other Government order in G.O.Ms.No.265, Highways(HK2) Department, dated 24.9.2004 relating to the appointment to thepost of Assistant Engineers relied upon by the learned Senior Counselclearly shows that the temporary appointees numbering 67 are to beregularized from the date of their original appointment, but inrespect of the seniority they should be placed below the personsappointed through the TNPSC. Therefore, the same can be of no helpto the writ petitioners.40. In these circumstances, the contentions raised by the learnedSenior Counsel appearing for the temporary appointees as if theimpugned order dated 27.4.2009 made in W.P.No.21786 of 2004 has notdecided any issue and has only left it open to the Government todecide on merits again is not acceptable. 41 For the aforesaid reasons, W.A.No.1704 of 2010 is allowed andthe order dated 27.4.2009 in W.P.No.21786 of 2004 of the learnedSingle Judge stands set aside. By virtue of the allowing ofW.A.No.1704 of 2010, there is no question of the Governmentreconsidering the claims of the temporary appointees and in view ofthe same, the question of ignoring the concurrence of the TNPSC orany authority, as directed in the order dated 4.2.2011 in https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.21127 and 23167 of 2010 does not arise and W.A.Nos.304 and305 of 2011 are closed. No costs. Consequently, all connectedmiscellaneous petitions stand closed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarsasiTo:1. The Secretary to Government Highways Department State of Tamil Nadu Fort St.George, Chennai – 9. 2. The Chief Engineer (General) Highways Department Now as Director General, Chepauk, Chennai – 600 005. 3. The Secretary Tamil Nadu Public Service Commission (TNPSC) Government Estate Chennai – 600 002. 4. The Secretary to the Government Personnel & Administrative Reforms Department Fort St. George, Chennai – 600 009. + 1 cc to M/s. S.S. Jothivani, Sr.58641+ 1 cc to Mr. N.S. Nandakumar, Sr.58619+ 1 cc to Mr.M. Muthappan, Sr.58401+ 2 ccs to Mr.s.N. Ravichandran, Sr.58535+ 1 cc to Ms. C. Uma, Sr.58256+ 1 cc to Mr.K. Kannan, Advocate Sr.58658+ 3 ccs to M/s. A.L. Gandhi, Sr.58804+ 1 cc to Mr.R. N. Amarnath, Sr.58707+ 2 ccs to Mr.V. RamaJegadeesan, Sr.58531, 58992+ 1 cc to Government Pleader SR.58693W.A.Nos.1704 of 2010 and 304 and 305 of 2011and connected miscellaneous petitionsGV(CO)Eu 25.9.12