High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22..01..2008CORAMTHE HONOURABLE MR. JUSTICE K. CHANDRUWrit Petition Nos. 26885, 27555 and 28979 of 2007andM.P. Nos. 2 and 3 in respective W.Ps.T. Manthiramoorthy ..Petitioner in W.P. No. 26885 of 20071.E. Valavan2.S. Athinarayanan3.E. Iyyappa Babu4.R. Ravichandran5.C. Thanaraj6.S.S. Mariappan7.A. Manivel Raj8.T.M. Jawahar Kennedy9.V. Baskaran10.R. Jeevashankar11.S. Stephen Anthony Jayapal12.M. Ramamoorthy13.T. Justes Raj14.K. Saravanan15.S. Vivekanandan ..Petitioners in W.P. No. 27555 of 20071.S. Rajagopal2.S. Manikandan3.V. Ravi Ganesh ..Petitioners in W.P. No. 28979 of 2007Vs.1.Tamil Nadu Water Supply and Drainage Boardrep. By its Managing DirectorChepaukChennai – 52.Selection CommitteeHeaded by the ChairmanTWAD BoardBoard House Chennai – 5 https://hcservices.ecourts.gov.in/hcservices/

3.N. Rajappa4.G. Selvam5.S. Savadamuthu6.V. Muthukrishnan7.S. Uma8.M. Shanmugam9. G. Kalyani10.N. Venkatachalam11.S. Senthilkumar12.K. Thangaraj13.S. Sooriyanarayanan14.S. Murugesan15.N. Subramanian16.A.K. Raja17.S. Muthumala18.J. Sudhakar19.H. Shanmugasamy20.R. Venkatachalapathy21.R. Ganesapandian22.G. Nagendran23.S. Ramaiah24.K. Nallathambi25.D. Tamilarasan26.K. Ramesh27.H. Mohan28.M. Kaliraj29.R. Govindaraj30.R. Baskaran31.J. Dharmaseelan32.R. Sridhar33.S. Govindaraj34.P. Murugaraj35.A. Prabakaran36.A. Chinniyan37.K. Tamil Selvan38.A. Jeganathan39.S. Dass40.B. Hari Govind41.V. Rajapandian42.O. Jeyaprakash43.S. Raja44.S. Balasubramanian45.M. Ramasamy46.S.S. Ayyappan47.V. Senthilnathan48.C. Thiagarajan49.P. Venkatesa https://hcservices.ecourts.gov.in/hcservices/

50.S. Dharmar51.G. Gonanasambantham52.R. Venkatachalam @ Neethipathi53.D. Eugine Visuvasam54.R. Rajendran55.J. Ramesh56.C. Udayakumar57.V. Jeevanantham58.R. Perumal59.V. Danies60.S. Elango61.D. Robert Kennedy62.P. Parthiban63.K. Shanmugam64.M. Sankaran65.K. Lakshmanan66.S. Rajendran67.K. Pattan68.M. Vetriveeran69.T. Thayalan Jebakumar Moses... RR 1- 69 in all W.Ps.70.TWAD Board Diploma Engineers' Associationrep. By its Head Quarters SecretaryS. BaskaranNo. 31 Kamarajar SalaiChepaukChennai -5.. R70 in W.P. No. 26885 of 2007[R70 impleaded vide order dated 17.9.2007 in MP 5/07 in WP26885/07]Petitions filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus calling forthe records of the respondents relating to the resolution of thesecond respondent Selection Committee allegedly held on 06.7.2007 andthe consequential order issued in Selection Committee Proceedings No.1 bearing the date 06.7.2007 (WP 26885,27555 & 28979/07 respectively)and the order of the first respondent in Memo. No. 80197/Rs/A2/FManthiramoorthy/07 dated 08.8.2007 (WP 26885/07) and quash the sameinsofar as they relate to selection 67 departmental candidates forappointment as Assistant Engineers on transfer of service from lowercategories as listed in Annexure II and direct the respondents 1 and2 herein to consider the claim of the petitioners for promotion tothe post of Assistant Engineers on the basis of length of service.For Petitioners in: Mr. Kandavadivel DoraisamyW.P. Nos. 26885 & 27555 of 2007For Petitioners in: Mr. G. RavisankarW.P. No. 28979 of 2007 https://hcservices.ecourts.gov.in/hcservices/ For Respondent TWAD Board: Mr. N. Kannadasan, Addl. AG for Mrs. Sudharshana SundarFor RR37 & 38in: Mr. S. ArunachalamW.P. Nos. 26885 & 27555 of 2007COMMON ORDERAs per the amended prayer in W.P. No. 26885 of 2007 vide orderdated 18.8.2007 in M.P. No. 4 of 2007, the petitioner, who is workingas Junior Engineer in the first respondent Tamil Nadu Water Supplyand Drainage Board is seeking to quash the resolution of theSelection Committee held on 06.7.2007 and to quash the proceedingsNo. 1 of the Selection Committee as well as the order of the firstrespondent in memo dated 08.8.2007 insofar as it relates to selectionof 67 departmental candidates appointing them as Assistant Engineersby transfer of service from lower categories and to direct therespondents 1 and 2 to consider the case of the petitioner forpromotion to the post of Assistant Engineer on the basis of length ofservice. This matter was admitted on 18.8.2007.2.W.P. No. 27555 of 2007 is filed by 15 technical Assistants,who are awaiting promotion to the post of Assistant Engineers andthey have made a similar prayer as that of the earlier writpetition.3.W.P. No. 28979 of 2007 is filed by three TechnicalAssistants working in the first respondent Board seeking for the verysame prayer as per the above said two petitions.4.In view of the interconnectivity between the threepetitions, the matters were clubbed together and heard. Heard thearguments of Mr. Kandavadivel Doraisamy, learned counsel appearingfor the petitioners in W.P. Nos. 26885 and 27555 of 2007 and Mr. G.Ravisankar, learned counsel appearing for the petitioners in W.P. No.28979 of 2007 and Mr. N. Kannadasan, learned Additional AdvocateGeneral leading Mrs. Sudharshana Sundar, learned counsel for theTWAD Board and Mr. S. Arunachalam, learned counsel appearing for someother contesting respondents in W.P. Nos. 26885 and 27555 of 2007and perused the records.5.The first respondent Tamil Nadu Water Supply and DrainageBoard [for short, 'Board'] is created by the Tamil Nadu Water Supplyand Drainage Board Act, 1970 (T.N. Act No. 4 of 1971) by the StateLegislature. By virtue of Section 73 of the TWAD Board Act, theBoard is empowered to make regulations including fixing the terms andservice conditions of appointment and scales of pay of officers andservants of the Board. The first respondent Board had framed Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Water Supply and Drainage Board Service Regulations 1972. Bythe said regulation, Tamil Nadu Water Supply and DrainageEngineering Service has been created. For the post of AssistantEngineer, it is prescribed that a person must have B.E. Degreequalification and five years' experience as Technical Assistant /Junior Draughting Officer / Draughting officer. All thepetitioners are working as Technical Assistants eligible to bepromoted as Assistant Engineers.6.According to the petitioners, though Rule of reservation isnot applicable for promotion by transfer and that the total number ofTechnical Assistants available was 88 at the time when the promotionare to be made and out of which, 36 Technical Assistants arequalified to be promoted as Assistant Engineers and in respect ofJunior Draughting Officers, 304 persons were working and out ofwhich, there were 64 qualified persons, who are eligible to bepromoted. The grievance of the petitioners is that the only avenueof promotion available to the Technical Assistants is the post ofAssistant Engineers whereas the Junior Draughting Officers areeligible to be promoted either as Assistant Engineers or DraughtingOfficers. But the first respondent Board has inherently biasedtowards Junior Draughting Officers and, therefore, they were onlypromoting Junior Draughting Officers to the post of AssistantEngineers and this forced some of the petitioners to approach thisCourt with W.P. No. 24161 of 2007 and this Court, vide order dated18.7.2007, directed the official respondents to consider thegrievance of the petitioners on the basis of the representations madeby them. But even before any worthwhile consideration is made, todefeat the claim made by the petitioners, the first respondent Boardgranted promotions on 23.7.2007 ignoring the claim of thepetitioners. Further, the orders were anti-dated as 06.7.2007.Since the petitioners were aggrieved, a Contempt petition being C.P.No. 696 of 2007 was filed before this Court and when it came up forhearing on 03.8.207, the first respondent Board filed a counteraffidavit and also presented the proceedings of the SelectionCommittee dated 06.7.2007 containing the list of names of promotedcandidates. This, according to the petitioners, was based uponpick and choose method without following any seniority. Theselected persons have been arrayed as respondents 3 to 69 in thesepetitions. 7.According to the petitioners, the length of service of allthe respondents were taken into account and as many as 56 of themhave joined subsequent to the filing of the petitions and even thequalifying Engineering Degree was obtained by them much later. Itis also contended that not only a person must have B.E. Degree butalso must have five years' service in the feeder post. It wasstated that adopting communal roster in the promotion is against thereasoning given by the Division Bench of this Court vide order dated https://hcservices.ecourts.gov.in/hcservices/

28.02.2005 in W.P. No. 11296 of 2003, etc. batch cases and S.L.P.filed by the State was also rejected by the Supreme Court. TheSelection Committee constituted by the first respondent Board, byproceedings dated 06.7.2007, was directed to fill up 100 vacancies ofAssistant Engineers in terms of the ratio of 1:2 prescribed by theBoard, ie., 33 vacancies by direct recruitment and 67 by departmentalcandidates working in the lower categories. After getting all thenames of candidates, it was found that the number of qualifiedpersons available from the lower categories was 67, viz., thefollowing categories.Electrical Superintendent - 1Draughting Officer-9Junior Draughting Officer-44Technical Assistant- 13The names of the 67 departmental candidates were arranged byfollowing the rule of reservation and 19 candidates, who wereselected by direct recruitment, were also arranged on the basis ofthe communal roster. It is this selection proceedings dated06.7.2007 that is under challenge in all the three writ petitions andat the time of admission of the writ petitions, this Court, by aninterim order directed that any selection made will be subject to theresult of the writ petitions.8.A counter affidavit dated Nil (September 2007) has beenfiled by the Managing Director of the first respondent Board onbehalf of the Board as well as Selection Committee. It was statedthat the respondents have followed the due procedure prescribed bythe Government and also the practice of the Board. It was furtherstated that the total number of sanctioned posts in the category ofJunior Draughting Officer was 307 and Technical Assistant was 85 androughly, it comes out to 78% of Junior Draughting Officers and 22%of Technical Assistants. Since the scale of pay of the DraughtingOfficers and Electrical Superintendents was higher, ten eligiblepersons were allotted to the post of Assistant Engineers and thebalance of 57 posts were given on the basis of ratio of each of thecategory. In view of the above method, since the Junior DraughtingOfficers were occupying 78% of the total strength, they were given 44posts and Technical Assistants were occupying 22% and they were given13 posts thereby all the 57 posts were filled up with these twocategories. It was also stated that while filling up the posts,category strength as well as communal roster were strictly followedand there was no deviation from the same. 9.As per Regulation 19 of the Tamil Nadu Water Supply andDrainage Board Service Regulations, 1972, the post of AssistantEngineer can be filled up only by direct recruitment and unmindful ofthe same, 206 persons have been appointed as Assistant Engineers by https://hcservices.ecourts.gov.in/hcservices/ promotion from the lower categories from the years 1986 to 1988. Asit was contrary to the Regulations, they were not able to beregularised and since the Board did not have the power toretrospectively amend the regulations, the persons, who wereappointed earlier, could not be regularised. Even though letterswere addressed to the State Government about the same issue as earlyas in the year 1998 followed up to the year 2004, the StateGovernment issued Tamil Nadu Ordinance 3 of 2007 amending Section 73of the Act enabling the Board for making regulations bothprospectively and retrospectively and also made it mandatory that anymodification or cancellation of regulations should be approved by theState Government. Pursuant to this, the Government also issuedG.O. Ms. No.128 Municipal Administration and Water Supply Departmentdated 11.9.2007 regularising the appointment of 206 persons asAssistant Engineers, who were recruited from the lower categories.In fact, as early as in the year 1997, by Board Proceedings beingB.P. Ms. No. 131 dated 04.4.2007, the ratio of 1:2 between directrecruits and recruitment by transfer was arrived at though it wasdone pending amendment to the regulations.10.The learned Additional Advocate General contended that thepetitioners, who were all Technical Assistants, have been fairlytreated by the Board and necessary proportionate allotment of postshas been given to them in consonance with the strength occupied bythem in the Board. It is also stated that while fixing percentagefor each of the categories, the Board followed the Government orderin G.O. Ms. No. 1069 Personnel and Administrative Reforms Departmentdated 13.10.1984 wherein it was stated that if the scales of pay ofthe feeder categories are similar, then for the purpose of promotion,a percentage of each feeder category can be prescribed taking intoconsideration the cadre strength of each of the feeder categories andfurther, that higher scale of pay in the feeder category may beconsidered first and thereafter, it can go down to the next higherfeeder categories. It is also contended that there cannot be anycombined seniority list of all Technical Assistants and JuniorDraughting Officers and in the present case, the appointment is onlyby transfer of service. Therefore, rule of reservation has beenfollowed. It is also stated that the Division Bench judgment of thisCourt will have no application in the facts and circumstances of thepresent case. This is not a case where the direct recruits wereeligible through open market were challenging the rule ofreservation. The ratio fixed by the Board based upon the percentageof each of the feeder categories cannot be said to be arbitrary andviolative of Articles 14 and 16 of the Constitution of India. Infact, the said arrangement is rational and will only enhance fairplay in the action of the first respondent Board. Further, in thepresent case, all the persons, who were eligible, have beenconsidered and depending upon the ratio fixed on each of the feedercategories, they have been promoted. https://hcservices.ecourts.gov.in/hcservices/

11.In the light of the above, all the writ petitions aremisconceived and devoid of any legal grounds. Accordingly, allthe writ petitions will stand dismissed. However, there will beno order as to costs. Connected Miscellaneous Petitions areclosed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriTo1.Managing DirectorTamil Nadu Water Supply and Drainage BoardChepaukChennai – 52.The ChairmanTWAD BoardBoard House Chennai – 5+1cc to Mrs.Sudharshana Sunder, Advocate Sr 2467+1cc to Mr.G.Ravisankar, Advocate Sr 2353+2ccs to A.Jenasenan, Advocate Sr 2718,2719+2ccs to M/s. S.Arunachalam Associates Sr 2611,2609+2ccs to Mr. Muthumani Doraisami, Advocate Sr 2420SA (CO)km/28.1.W.P. Nos. 26885, 27555 and 28979 of 2007