K.C.Parameswaran14. V.S.Thangavel15. T.Chandraseakarn16. M.Chakravarthy Vijayakumar17. G.M.Mani18. A.Sugumaran19. G.Rani v. The Government of Tamilnadu

13. K.C.Parameswaran14. V.S.Thangavel15. T.Chandraseakarn16. M.Chakravarthy Vijayakumar17. G.M.Mani18. A.Sugumaran19. G.Rani.. Petitioners in W.P.No.31101 of 2005 vs.1. The Government of Tamilnadu, represented by its Secretary, Highways Department, Fort St.George, Chennai-9.2. The Chief Engineer (General), Highways Department, P.W.D. Building, Chepauk, Chennai-5.3. A.Chandrasekaran4. S.Asirvatham5. N.Krishnan Achari6. Association of Tamil Nadu Highways Engineers, rep. by its General Secretary, 35, Taluk Office Road, Saidapet, Chennai-600 015... Respondents in W.P.No.31101 of 2005Writ Petition No.41342 of 2002 filed under Article 226 of theConstitution of India, praying for issuance of a Writ of CertiorarifiedMandamus, to call for the records of the common order dated 11.7.2002passed by the Tamil Nadu Administrative Tribunal in O.A.Nos.9547, 9548,9549, 9824, 9826 and 9828 of 1997 and the respondents culminated in theLetter Lr.(Ms.)No.614/KH1/95, dated 27.7.1995 of the Secretary toGovernment, Public Works Department, Government of Tamilnadu, quash thesame and direct the respondents to accord all service benefits to thepetitioners as provided under Tamil Nadu Highways Engineering StateService Rules which govern their service conditions.Writ Petition No.31101 of 2005 filed under Article 226 of theConstitution of India, praying for issuance of a Writ of CertiorarifiedMandamus, to call for the records pertaining to issue of the senioritylist of Assistant Divisional Engineers of Highways Department as on1.4.2004 published by the second respondent in Special Memo No.Nirvagam 1(3)/197876/2004-1, dated 29.4.2004 culminating into the panel of AssistantDivisional Engineers approved in G.O.Ms.No.169, Highways Department, dated19.8.2005 and to quash he same and to direct the first and secondrespondents to prepare the revised seniority list of Assistant DivisionalEngineers afresh as per the order dated 11.7.2002 passed by the Tamil NaduAdministrative Tribunal in O.A.No.9546 of 1997 and other batch cases. https://hcservices.ecourts.gov.in/hcservices/ For petitioners inW.P.No.41342 of 2002and respondents 3 to 5in W.P.No.31101 of 2005 :Mr.R.Muthukumarasamy, Senior Counsel for Mr.V.SankaranarayananFor petitioners inW.P.No.31101 of 2005 : Mr.R.Selvakumar For respondent-3 inW.P.No.41342 of 2002: Mr.N.Subramanian for Mr.MuthukannuFor respondents 1 & 2in both W.Ps. : Mr.S.Ramasamy, Addl. Advocate General For respondent-6 in W.P.No.31101 of 2005: Mr.Yashod Vardhan, Senior Counsel ORDERF.M.IBRAHIM KALIFULLA,JSix of the applicants before the Tamil Nadu Administrative Tribunal inO.A.Nos.9546 of 1997, etc. batch are the petitioners in W.P.No.41342 of2002. The challenge in that Writ Petition is to the common order of theTribunal dated 11.7.2002 passed in the said batch of OriginalApplications. Some of the aggrieved persons in respect of the senioritylist drawn by the State Government in its Special Memo No.Nirvagam 1(3)/197876/2004-1, dated 29.4.2004, culminating in the panel of AssistantDivisional Engineers, as approved in G.O.Ms.No.169, Highways Department,dated 19.8.2005, are the petitioners in W.P.No.31101 of 2005.2. The fate of W.P.No.31101 of 2005 virtually depends upon thedecision to be taken in W.P.No.41342 of 2002. Therefore, W.P.No.41342 of2002 is considered in the first instance before going into the merits ofthe claim made in W.P.No.31101 of 2005.3. For the sake of convenience, the petitioners in W.P.No.41342 of2002 shall hereinafter be called as the applicants and the petitioners inW.P.No.31101 of 2005 shall hereinafter be referred to as they are arrayedtherein and the other respondents are referred to as they are arrayed inW.P.No.41342 of 2002. The issue in both the Writ Petitions relate to theseniority of the applicants vis-a-vis the petitioners in W.P.No.31101 of2005. The applicants were all employed in the Tamil Nadu HighwaysEngineering Service. 15 persons filed the Original Applications commencingfrom O.A.No.9546 of 1997, etc. batch, challenging the determination oftheir seniority as per the proceedings of the Secretary to Government, https://hcservices.ecourts.gov.in/hcservices/ Public Works Department, Chennai-9, dated 27.7.1995. To understand thecontroversy involved in both the Writ petitions, the background as to howthe services of certain categories of employees in the Tamil Nadu HighwaysEngineering Service came to be treated right from the year 1972, isrequired to be briefly stated.4. By G.O.Ms.No.1745, Public Works Department, dated 10.10.1972, theSpecial Rules for the Tamil Nadu Engineering Subordinate Service came tobe amended to provide for appointment of Overseers, Head Draftsman orCivil Draftsman possessing Diploma in Engineering and A.M.I.E.qualifications with a minimum service of three years as Junior Engineers(now Assistant Engineers). The said Special Rules applicable to the Tamilnadu Engineering Subordinate Service in the Public Works Department wasadopted by the Highways Department for the Tamil Nadu Highways EngineeringService. By virtue of the said Rule position, Draftsman who were in threedifferent categories, namely Grade-I, II and III on acquiring A.M.I.E.qualification, were eligible to be promoted as Junior Engineers (nowAssistant Engineers). Such position prevailed till 2nd August, 1980. Theapplicants were all working as Draftsman Grade-II and III who had acquiredthe requisite qualification between 1972 and 1980 and thereby, were fullyeligible for being promoted as Junior Engineers (now Assistant Engineers).On 2.8.1980, by G.O.Ms.No.1356, Public Works Department, the position wasaltered, by which while directing the regularisation of such of thoseDraftsman who have acquired Degree qualification in Engineering and whohave so far been appointed as Junior Engineers (now Assistant Engineers)temporarily, be regularised in that post. It was further ruled thathenceforth, the Draftsman Grade-I alone who have put in three years ofservice, would be eligible for appointment as Assistant Engineers onacquiring A.M.I.E. and B.E. Degree qualifications. On and from that date,namely 2.8.1980, the Draftsman Grade-II and III and the Overseers were noteligible for such appointment and they have to take their chance alongwith the fresh candidates for direct recruitment to the post of AssistantEngineers in the Tamil Nadu Engineering Service. 5. By virtue of the issuance of the above said Government Orders, theposition was that the applicants and such of those Draftsman in Grade-IIand III who had acquired necessary qualifications, namely B.E/A.M.I.E. andwho were appointed temporarily as Junior Engineers (now AssistantEngineers), their services were regularised retrospectively from10.10.1972. In effect, the applicants who were temporarily appointed asJunior Engineers on acquisition of the required qualifications, namelyB.E/A.M.I.E. on the respective dates of such temporary appointments inbetween 10.10.1972 and 2.8.1980, as such came to be regularised in thepost of Junior Engineer (now Assistant Engineer).6. By a subsequent Government Order in G.O.Ms.No.574, TransportDepartment, dated 4.5.1982, the benefits as provided in G.O.Ms.No.1356,Public Works Department, dated 2.8.1980, were "mutatis mutandis" extendedto the persons working in the Tamil Nadu Highways and Rural Works https://hcservices.ecourts.gov.in/hcservices/ Department also retrospectively from 10.10.1972. By yet another G.O. inG.O.Ms.No.478, Transport Department, dated 23.5.1988, the amendment to theSpecial Rules for the Tamil Nadu Highways Engineering Subordinate Servicecame to be made with effect from 10.10.1972 in exercise of the powersconferred on the Governor of Tamil Nadu by the proviso to Article 309 ofthe Constitution of India. By virtue of the said amendment which wasbrought into force with effect from 10.10.1972, the purport intended inG.O.Ms.No.1356, P.W.D., dated 2.8.1980 and G.O.Ms.No.574, TransportDepartment, dated 4.5.1982, was brought into the statutory Rules.7. The services of the applicants came to be regularised in the postof Assistant Engineers after the issuance of G.O.Ms.No.478, TransportDepartment, dated 23.5.1988. Thereafter, it is stated that the senioritylist was drawn in the year 1993 based on the above referred to GovernmentOrders. One other factor was that the petitioners in W.P.No.31101 of 2005were all candidates who got selected and appointed by way of directrecruitment to the post of Assistant Engineers. Though prior to suchdirect recruitment, they were working based on their appointment underRule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules, theirseniority was stated to have been determined based on their directrecruitment, which came to be made in the year 1982.8. In the above stated circumstances, the Secretary to Government,Public Works Department, came forward with a letter dated 27.7.1995, whichwas impugned before the Tribunal by the applicants. By the saidcommunication dated 27.7.1995, it was directed that the seniority of theapplicants whose services were regularised with retrospective effect underG.O.Ms.No.478, Transport Department, dated 23.5.1988, should be fixedbelow the last candidate selected by the TNPSC prior to 23.5.1988, whichvirtually referred to the petitioners in W.P.No.31101 of 2005. It was alsodirected therein that the anomalies in the fixation of seniority ofAssistant Engineers as on 1.1.1993 be rectified. By the order impugned inthese Writ Petitions, the Tribunal held that such a direction issued bythe Secretary to Government, P.W.D. in the impugned communication dated27.7.1995, was valid. 9. Assailing the said impugned order of the Tribunal,Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the applicants(i.e. the petitioners in W.P.No.41342 of 2002) contended that theseniority of a member of a service should be regulated only by the Rulesand cannot be done by Executive instructions. The learned Senior Counselalso contended that the applicants were all in service right from theirrespective date of their temporary promotion to the post of JuniorEngineers (now Assistant Engineers) between 1972 and 1980, that when oncesuch a service was regularised by G.O.Ms.No.574, Transport Department,dated 4.5.1982 retrospectively from the respective dates of theirappointment and when such appointment in the promoted post was alsogoverned by the amended Rules in the Tamil Nadu Highways EngineeringSubordinate Service in G.O.Ms.No.478, Transport Department, dated https://hcservices.ecourts.gov.in/hcservices/

23.5.1988, it will have to be held that their entry into service in thepost of Assistant Engineers was earlier to the appointment of thepetitioners in W.P.No.31101 of 2005, who came to be appointed in theregular service by way of direct recruitment only after 1982, andtherefore, their seniority was rightly determined in the year 1993 overand above the petitioners in W.P.No.31101 of 2005, which ought not to havebeen interfered with as directed by the Secretary to Government, P.W.D.,in the impugned communication dated 27.7.1995. The learned Senior Counselalso contended that the consequential amendment to the Rules relating tothe Tamil Nadu Highways Engineering Subordinate Service when continued toremain in force, the first and second respondents were bound to follow thesaid Rules without any deviation.10. As against the above submissions, Mr.R.Selvakumar, learned counselappearing for the petitioners in W.P.No.31101 of 2005 and Mr.YashodVardhan, learned Senior Counsel appearing for the sixth respondent-Association of Tamil Nadu Highways Engineers in W.P.No.31101 of 2005,contended that without proving their respective date of appointments, theapplicants (the petitioners in W.P.No.41342 of 2002) cannot claim theirseniority overlooking the rightful claim of the petitioners inW.P.No.31101 of 2005. Mr.Selvakumar, learned counsel relied upon 1985(Supp) SCC 38 (Bhagwan Das vs. I.C.A.R) in support of his submissions. Hefurther contended that even the retrospective operation of the Rules willnot affect the persons who were already in service, as held by the SupremeCourt in the decision reported in 1994 Supp (1) SCC 44 (K.Narayanan vs.State of Karnataka). It was then contended by both the learned counselthat the applicants cannot be held to have been appointed in accordancewith the Rules prior to 23.5.1988 and unless their appointments were inaccordance with the Rules, which is a condition precedent fordetermination of their seniority, they are not entitled to claim seniorityover and above the petitioners in W.P.No.31101 of 2005. Reliance was alsoplaced upon the decision reported in 1995 Supp (1) SCC 572 (V.SreenivasaReddy vs. Govt. of A.P) in support of the above said contentions. Ourattention was also drawn to Rule 2(1) and Rule 35(aa) of the Tamil NaduState and Subordinate Service Rules. Mr.Yashod Vardhan, learned SeniorCounsel also placed reliance upon the decision of the Supreme Courtreported in 2006 (6) SCC 558 (K.Madalaimuthu vs. State of T.N) to contendthat the appointment made under Rule 10(a)(i) of the Tamil Nadu State andSubordinate Service Rules, cannot be the basis for determining theseniority.11. Having heard the learned counsel for the respective parties, oneother Government Order which is required to be mentioned is G.O.Ms.No.807,Public Works (HK) Department, dated 24.5.1993, by which the relevantamendment in pursuance of the earlier G.Os. including G.O.Ms.No.574,Transport Department, dated 4.5.1982 and G.O.Ms.No.478, TransportDepartment, dated 23.5.1988, came to be notified. It was notified withspecific reference to the dates from which the amendment to the relevantRules was brought into effect. It specifically provided that the amendment https://hcservices.ecourts.gov.in/hcservices/ which was brought into the Rule providing for the regularisation ofDraftsman Grade-I, II and III will take effect from 10.10.1972. Theamended Rule 5 of the Special Rules for the Tamil Nadu HighwaysEngineering Service, relating to the category of Junior Engineers, whichpost was to be filled by way of direct recruitment or recruitment bytransfer, specifically recognises the entitlement of Draftsman Grade-I toIII in Category 4 (a) or 4 (b) of the Tamil Nadu Highways EngineeringSubordinate Service as one of the source by which the post of JuniorEngineer can be filled up by way of recruitment by transfer. However, inthe amended Rule 5(d) after the third proviso, a further proviso was addedwhich made clear that after 2.8.1980, they were not eligible to beconsidered and that they can only aspire to become Assistant Engineersalong with the fresh candidates appointed by direct recruitment. Theamended Rule 23 by way of "saving" clause reinforces the position thatnothing contained in those Rules shall adversely affect the appointmentsmade from the category of Draftsman Grade I to III to the category ofJunior Engineers from 10.10.1972 onwards till the date of issuance ofthose amendments.12. A conjoint reading of G.O.Ms.No.1356, Public WorksDepartment, dated 2.8.1980, G.O.Ms.No.574, Transport Department, dated4.5.1982, G.O.Ms.No.478, Transport Department, dated 23.5.1988 andG.O.Ms.No.807, Public Works (HK) Department, dated 24.5.1993, boils downto the position that the Draftsman Grade-I to III having acquired thequalifications of B.E/A.M.I.E. between 10.10.1972 and 2.8.1980, becameeligible for being promoted as Junior Engineers (now Assistant Engineers),that such of those Draftsman in these Grades who were temporarily promotedbetween 10.10.1972 and 2.8.1980, were regularised from their respectivedate of such temporary appointments and that such regularisation wasprotected by the relevant amended Rules, which was brought into the Rulebooks, though subsequently by giving retrospective effect as from10.10.1972.13. To buttress the argument of the petitioners in W.P.No.31101 of2005 as well as the third respondent-Association of Engineers therein,insofar as it related to the retrospectivity of the operation of the Rulesand its validity, at the outset, it will have to be stated that so far,neither the petitioners in W.P.No.31101 of 2005 nor the third respondenttherein, have made any challenge to any of the above referred to G.Os. orthe amended Rules in the manner known to law. It will have to be kept inmind that the applicants were not appointees in the post of JuniorEngineer (now Assistant Engineer), directly by way of temporaryappointment under Rule 10(a)(i) of the Tamil Nadu State and SubordinateService Rules. They were all already in service as Draftsman in Grade-IIand III. It is also not in dispute that they were all temporarily promotedto the post of Junior Engineers (now Assistant Engineers) between 1972 and1980 from the existing category of Draftsman-II and III, whereas thepetitioners in W.P.No.31101 of 2005 were all stated to have been appointedin the post of Junior Engineers (now Assistant Engineers) under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules for the first https://hcservices.ecourts.gov.in/hcservices/ time and who were all appointed directly through the TNPSC only in theyear 1982. Therefore, when the Rules specifically deal with the case ofthe applicants providing for their regularisation from the respectivedates of their temporary promotions in the post of Junior Engineers (nowAssistant Engineers) as early as on 4.5.1982 and when such regularisationwas confirmed by G.O.Ms.No.478, Transport Department, dated 23.5.1988and G.O.Ms.No.807, Public Works (HK) Department, dated 24.5.1993, it willhave to be held that such regularisation based on the conscious decisionmade by the State Government should also be validated by bringing forthnecessary amendment to the Rules, which will certainly stand on a higherfooting over the claims of the petitioners in W.P.No.31101 of 2005, whohad entered into the service on a regular basis only as from the year1982, i.e. long after the regularisation of the services of theapplicants in the post of Junior Engineers (now Assistant Engineers).14. In the light of the said factual position as regards the serviceof the applicants (the petitioners in W.P.No.41342 of 2002) vis-a-vis thepetitioners in W.P.No.31101 of 2005, when the various decisions reliedupon by the counsel for the petitioners in W.P.No.31101 of 2005 areexamined, as far as the reliance placed upon 1985 (Supp) SCC 38 (citedsupra) is concerned, in the said decision, the Supreme Court held that inthe absence of satisfactory proof of the date of appointment of thepetitioners; in that case in the Grade as Assistants; they cannotsuccessfully urge as to the violation of Articles 14/16 of theConstitution of India. The said ratio as regards the proof of appointmentcannot be applied to the facts of this case, where the applicants werealready in service as Draftsman Grade-II and III. 15. A reference to G.O.Ms.No.574, Transport Department, dated4.5.1982 (paragraph 6 of that G.O) makes it clear that the applicants wereall persons whose services came to be regularised between 1972 and 1980from the respective dates when they were temporarily appointed asAssistant Engineers. Such appointment of the applicants was neverchallenged by anyone much less by the petitioners in W.P.No.31101 of 2005.It is not the case of the petitioners in W.P.No.31101 of 2005 that therewas no such temporary appointment of those applicants in the post ofAssistant Engineers. In fact, the third respondent-Association of TamilNadu Highways Engineers who represented the petitioners in W.P.No.31101 of2005, did not raise any such contention as could be seen from the impugnedorder of the Tribunal, where there is no such contention raised.Therefore, in our considered opinion, it is not now open for thepetitioners in W.P.No.31101 of 2005 for the first time to question ordispute the factum of temporary appointment of the applicants in the postof Assistant Engineers between 1972 and 1980.16. Reliance was also placed upon the decision of the Supreme Courtreported in 1994 Supp (1) SCC 44 (cited supra) for the proposition thatthe retrospective operation of a Rule in violation of any Constitutionalright, cannot be made. We are unable to apply the said decision to the https://hcservices.ecourts.gov.in/hcservices/ facts of this case. In the said judgment of the Supreme Court, when weread the facts, we have found in paragraph 3 that the Supreme Court hasillustrated how the retrospectivity operation of a Rule causes hardship tothe other group, which reads as under:"3. ..... ..... Yet when seniority list was publishedin 1988 the Junior Engineers appointed by transfer in1988 were given their seniority by giving benefit bothunder Notes (2) and (3). How did it work, can beexplained by taking illustration of a Junior Engineertransferred in 1988. He has been placed at serialNo.801 in the list. He acquired the degreequalification in July 1976. Since on notional workingout the vacancy was found to exist in December 1976 hisseniority was pushed to 1976 the rule having come inforce on that day and he being qualified was deemed tohave been appointed as an Assistant Engineer andthereafter he was given weightage of four years beingone-third of the service he had rendered as JuniorEngineer. He thus came to be placed as AssistantEngineer from December 1972. Consequently a secondclaim petition was filed before the Tribunal. It wasdismissed as the Tribunal did not find any illegalityin placement of the diploma holder as the weightage offour years was given only from the date the rule isdeemed to have come into force namely 1976."As compared to the case on hand, first and foremost, while giving effectto G.O.Ms.No.1356, Public Works Department, dated 2.8.1980, G.O.Ms.No.574,Transport Department, dated 4.5.1982, G.O.Ms.No.478, TransportDepartment, dated 23.5.1988 and G.O.Ms.No.807, Public Works (HK)Department, dated 24.5.1993, none of the provisions contained either inthese G.Os. or in the amended Rules, provided for grant of any benefit ofany notional promotion or deemed appointment. On the other hand, even ifthe Draftsman Grade-II and III had acquired the qualifications ofB.E/A.M.I.E. on a particular date, their status as Junior Engineers wasascertained from the actual date when they were temporarily appointed asJunior Engineers (now Assistant Engineers). That apart, unlike the factsinvolved in the said decision of the Supreme Court, the Rule did notprovide for any weightage to the detriment of the petitioners inW.P.No.31101 of 2005 in favour of the applicants for the past servicesrendered as Draftsman Grade-II and III. In fact, in the light of the factsin that case, the Supreme Court has not held that retrospective operationof a Rule can never be made. On the other hand, in the ruling of theSupreme Court, the ratio is while the Rules operate prospectively, theretrospectivity is an exception. In paragraph 7 of the said decision (1994Supp (1) SCC 44), the Supreme Court has stated as under as to theretrospectivity of the Rule:"7. .... Rules operate prospectively. https://hcservices.ecourts.gov.in/hcservices/ Retrospectivity is an exception. Even where the statutepermits framing of rule with retrospective effect theexercise of power must not operate discriminately or inviolation of any constitutional right so as to affectvested right. The rule-making authority should not bepermitted normally to act in the past. The impugnedrule made in 1985 permitting appointment by transferand making it operative from 1976 subject toavailability of vacancy in effect results in appointinga Junior Engineer in 1986 with effect from 1976.Retrospectivity of the rules is a camouflage forappointment of Junior Engineers from a back date. Inour opinion the rule operates viciously against allthose Assistant Engineers who were appointed between1976 to 1985. ..... ..... .... ...As seen earlier there is no nexus between framing arule permitting appointment by transfer and making itretrospective with effect from 1976. Appointing aperson to a higher post in a different cadre in whichhe has never worked is violative of constitutionalguarantee of those who are working in the cadre. It isagainst basic principle of recruitment to any service...... "In the case of hand, it is not as if the applicants' service in the cadreof Draftsman Grade-II and II was deemed to have been rendered in the cadreof Junior Engineer (now Assistant Engineer) in order to state that theretrospective operation of the Rule in the case of hand had no nexus tothe appointment of the applicants to the post of Junior Engineers. On theother hand, taking into account the fact that the applicants who were inthe services of the State in the cadre of Draftsman Grade-II and III andwho got temporarily promoted to the post of Junior Engineers on acquiringthe required qualifications, were functioning as such in the service andthe regularisation of their appointments in that post was a justifiableone, and therefore, the Rule providing for such regularisation from therespective date of their functioning in that post, cannot be held to bewithout any nexus to the appointment so made. In our opinion, in the caseon hand, it will fall under the exception category where the retrospectiveoperation of a Rule was inevitable to the applicants and therefore, theRule providing for such retrospective operation can never be held to beunjustified. Therefore, reliance placed upon the said decision on behalfof the petitioners in W.P.No.31101 of 2005 cannot be accepted.17. Reliance was also placed upon the decision of the Supreme Courtreported in 1995 Supp (1) SCC 572 (cited supra). In paragraph 15, theSupreme Court has stated that the appointment in accordance with the Rulesis a condition precedent to count the seniority and that temporary or ad-hoc or fortuitous appointments etc., are not appointments in accordance https://hcservices.ecourts.gov.in/hcservices/ with the Rules and the temporary service cannot be counted towards theseniority. While relying upon the said decision, a reference was made toRule 2(1) of the Tamil Nadu State and Subordinate Service Rules, whichstates that a person is said to be "appointed to a service" when inaccordance with these Rules or in accordance with the Rules applicable atthe time, as the case may be, he discharges, for the first time the dutiesof a post borne on the cadre of such service or commences the probation,instruction or training prescribed for members thereof. In the Explanationto the said Rule 2(1), it is stated that the appointment of a personholding a post borne on the cadre of one service to hold additional chargeof a higher post in the same service or a post borne on the cadre ofanother service or to discharge the current duties thereof, does notamount to appointment to the latter service. 18. Under Rule 35(aa) of the Tamil Nadu State and Subordinate ServiceRules, for determining the seniority of a person in service, it isstipulated that it should be determined with reference to the date onwhich he is appointed to the services, class, category or grade. 19. Even a combined reading of Rule 2(1) along with Rule 35(aa) of theTamil Nadu State and Subordinate Service Rules, does not prohibit creationof weightage by way of an amendment to provide for regularisation of aservice of a person who was already appointed to a cadre and who came tobe temporarily promoted to a higher post. It is not the case of thepetitioners in W.P.No.31101 of 2005 that the applicants (the petitionersin W.P.No.41342 of 2002) were all continuing in the post of DraftsmanGrade-II and II and were all temporarily attending the duties of a higherpost, namely Junior Engineer (now Assistant Engineer) in order to statethat they were not appointed to the post of Junior Engineers. When oncethe temporary appointment to the post of Junior Engineer came to be madeon acquiring the requisite qualifications, the right of the applicants inthat post got crystallised by virtue of G.Os. issued in G.O.Ms.No.1356,Public Works Department, dated 2.8.1980, G.O.Ms.No.574, TransportDepartment, dated 4.5.1982, G.O.Ms.No.478, Transport Department, dated23.5.1988 and G.O.Ms.No.807, Public Works (HK) Department, dated24.5.1993. Therefore, the counting of their service was from the date whenthey were functioning as Junior Engineers, which functioning was temporaryat the inception, which got regularised in the year 1982 itself, i.e. on4.5.1982 and got further reinforced by G.O.Ms.No.478, TransportDepartment, dated 23.5.1988 and G.O.Ms.No.807, Public Works (HK)Department, dated 24.5.1993. Inasmuch as the appointment of the applicants(the petitioners in W.P.No.41342 of 2002) was in accordance with theRules, the ratio of the Supreme Court (in 1995 Supp (1) SCC 572) that insuch cases, it is a pre-condition for counting the seniority, is fullysatisfied. For the very same reasoning, it will have to be held that thetemporary appointment of the applicants once regularised loses itstemporary phenomenon and thereby, their right as regular Junior Engineersstood established by virtue of the issuance of the several GovernmentOrders referred to above and as per the amended Rules. The said decision https://hcservices.ecourts.gov.in/hcservices/ therefore does not help the case of the petitioners in W.P.No.31101 of2005.20. As far as the decision reported in 2006 (6) SCC 558 (cited supra)is concerned, the Supreme Court dealt with a case of a Rule 10(a)(i)appointees under Tamil Nadu State and Subordinate Service Rules, whoseservices came to be subsequently regularised retrospectively, based onwhich the seniority came to be determined as against the subsequentregular appointees. In the said decision, it was an admitted position thatthe contesting respondents therein were admittedly appointed under Rule 10(a)(i) of the Rules. It is in the above stated circumstances, it was heldthat the said appointment cannot be held to be the one covered by Rule 2(1) of the Rules and consequently, their regularisation from the date oftheir initial appointment under Rule 10(a)(i) for the purpose of countingthe seniority was not in accordance with the Rules. In the light of thefacts involved in the case on hand, we find that the case on hand isdistinguishable and therefore, the said decision cannot also be applied tothe facts of this case. Moreover, when we read the judgment of the SupremeCourt reported in 1994 Supp (1) SCC 44 (cited supra) and the one reportedin 2006 (6) SCC 558 (cited supra) together, we find that a statutory Ruleproviding for retrospective regularisation is not prohibited always andthat in exceptional circumstances, it is permissible. The Rule makingauthority should ensure that exercise of such power does not result indiscriminatory treatment or in violation of any Constitutional right.Therefore, when the creation of a Rule by way of Amendment takes note ofsuch safeguards and was intended to confer certain benefits for somedeserving categories, no fault can be found with such actions. Moreover,the amended Rule providing for retrospective regularisation to theapplicants did not create any fictitious right but was only intended tolegitimise the status of the applicants as temporary Assistant Engineersfrom the factual date of their functioning, which can never be held asfictitious or not a real one. 21. For all the above stated reasons, we find that the Tribunal'sorder impugned in W.P.No.41342 of 2002 cannot be sustained. Unfortunately,the Tribunal has not examined the application of the various GovernmentOrders and the ultimate amendment to the Rules which created a legallyenforceable right and an entitlement for the petitioners in W.P.No.41342of 2002 to claim precedence over the petitioners in W.P.No.31101 of 2005in the matter of seniority. We therefore set aside the impugned order ofthe Tribunal in the batch of Original Applications as well as the impugnedcommunication dated 27.7.1995 before the Tribunal in the batch of theOriginal Applications, namely in Letter No.614/HK1/95, Public WorksDepartment, dated 27.7.1995 and direct the first and second respondents inW.P.No.41342 of 2002 to determine the seniority of the petitioners inW.P.No.41342 of 2002 accordingly.22. In view of our order passed in W.P.No.41342 of 2002, we do notfind any scope to interfere with the proceedings challenged in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.31101 of 2005, dated 29.4.2004, culminating in the panel ofAssistant Divisional Engineers approved in G.O.Ms.No.169, HighwaysDepartment, dated 19.8.2005. Accordingly, W.P.No.41342 of 2002 standsallowed and W.P.No.31101 of 2005 stands dismissed with the aboveobservations. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.cs Copy to1. Chief Engineer, Highways and Rural Works Department, P.W.D. Buildings, Chepauk, Chennai-600 005.2. The Secretary to Government, Government of Tamilnadu, Highways Department, Fort St.George, Chennai-600 009.+ 2 CCs To Mr. Sivam Sivandaraj, Advocate SR NO.43906+ 1 CC to the Government Pleader SR NO 44882W.P.Nos.41342 of 2002 and 31101 of 2005nsm[co]gp/26.7.