High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.04.2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARANWRIT PETITION No.23874 of 2004& W.P.M.P.No.28950 of 20041. M. Natarajan2. S. Sankaran3. P. Paulraj4. P. Narayanasamy5. C. Sathyavasagam6. S. Thangapandi7. S. Kanaga Sabapathy8. P. Shanmugam9. P. Subramanian10. S. Sankara Nainar11. M. Isakki12. M. Poolpandi13. S. Sankara Subbu14. D. Veerabagu15. T. Vavasi Mohideen16. R. Rangan17. G. Shanmugasundaram18. E. Sudalaikannu19. K. Kumaresan Asari20. S. Sankara Narayanan21. S. Narayanan..PetitionersVs.1. Secretary to Government Revenue Department Fort St. George Chennai-9.2. Director of Survey and Settlements (Survey) PWD Complex Chepauk Chennai-5. https://hcservices.ecourts.gov.in/hcservices/

3. Assistant Director of Survey and Land Records Thoothukudi District 4, South Raja Street Thoothukudi.4. Assistant Director of Survey and Land Records Tirunelveli District Survey Unit, Palayamkottai Tirunelveli-2.5. The Registrar The Tamil Nadu Administrative Tribunal Chennai-600 104.6. S. Gurusamy7. Tamil Nadu Survey Officers Union Thoothukudi District rep.by its President R. SubramanianRR 6 & 7 impleaded as per orderdated 1.4.2008 WPMP Nos.274 & 275 of 2008 by PKMJ & KCJ.. Respondents Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue of a writ of Certiorarified Mandamuscalling for the records relating to the impugned order inO.A.No.3626 of 1992 dated 30.10.2003 on the file of the 5threspondent and G.O.Ms.No.626, Revenue Department dated 16.4.1990and G.O.Ms.No.851, Revenue Department dated 23.5.1990 on the fileof the first respondent and quash the same in so far as thepetitioners are concerned and consequently direct respondents 1 to4 to regularise the services of the petitioners in the category ofSurveyor as recommended by the second respondent in J-2/21322/91dated 5.4.1991 and grant all consequential benefits. For Petitioners : Mr.P. Rajendran For Respondent: Mr.M. Dhandapani Spl.G.P. for RR1 to 4 Tribunal - R5 Mr.V. Manisekaran for RR6 & 7--------- https://hcservices.ecourts.gov.in/hcservices/ O R D E RK.K.SASIDHARAN, JThis writ petition is directed against the order dated30.10.2003 in O.A.No.3626 of 1992 on the file of Tamil NaduAdministrative Tribunal, Chennai whereby and whereunder theTribunal was pleased to dispose the original application preferredby the petitioners on the ground that the petitioners have alreadybeen regularized and therefore they have not suffered in any wayin the matter of promotion.2. Brief facts which are necessary for the disposal of thewrit petition are as under:(i) The petitioners were appointed as Surveyor-cum-Draftsmanin the year 1981 on consolidated pay. The selection was made byresorting to a transparent procedure from the list of candidatessponsored by the Employment Exchange by following the Rules ofReservation.(ii) The petitioners and other selected candidates were givensurvey training and they have been working in the survey line andthey were also given promotion in the survey line as FirkaSurveyor and Sub Inspector of Survey.(iii) Subsequently, in pursuance to the communication dated26.6.1986 of Tamil Nadu Public Service Commission, the secondrespondent had submitted proposal to regularize the services ofSurveyor/Draftsman from their date of appointment in the timescale of pay posts and as a follow up action, the firstrespondent, as per order in G.O.Ms.No.626, Revenue Department,dated 16.4.1990 regularized the services of 1055 employeesincluding the petitioners. Another order in G.O.Ms.No.851, RevenueDepartment, dated 23.5.1990 has also been issued by the firstrespondent whereby the remaining employees were regularized.(iv) Even though the petitioners were appointed in the postof Surveyor/Draftsman and they have been later promoted in thesurvey line, they were directed to be regularized in the categoryof Draftsman. Therefore the petitioners have filed O.A.No.3626of 1992 challenging G.O.Ms.Nos.626 and 851 dated 16.4.1990 and23.5.1990 respectively in so far as the direction to regularizetheir service in the category of Draftsman and for a consequentialdirection to regularize their services in the category ofSurveyor. https://hcservices.ecourts.gov.in/hcservices/ (v) In the counter affidavit filed by the first respondent inO.A.No.3626 of 1992 they have admitted the initial appointment ofthe petitioners as Surveyor-cum-Draftsman and the promotion givento them in the survey line. It was the further contention of thefirst respondent before the Tribunal that in as much as theservices of the petitioners were regularized, there is no scopefor any kind of grievance to be resolved in the originalproceedings by the Tribunal.(vi) The Administrative Tribunal having found that theservices of the petitioners were regularized and a seniority listhas already been published, closed the very Original Applicationas per order dated 30.10.2003 which resulted in filing this writpetition at the instance of the unsuccessful applicants in thesaid Original Application.3. Respondents 6 and 7 were impleaded in the writ petition onthe basis of their application, as they apprehended that theirseniority is likely to be affected in case of disposal of the writpetition in favour of the petitioners.4. We have heard Thiru P.Rajendran, learned counsel for thepetitioner; Thiru M. Dhandapani, learned Special GovernmentPleader appearing for respondents 1 to 4 and Thiru V. Manisekaran,learned counsel for respondents 6 and 7.5. Learned counsel for the petitioner contended that theAdministrative Tribunal grievously erred in closing the OriginalApplication without adverting to the contention of the petitionersand without considering the substantial issues involved in thematter in as much as the petitioners, who were working in thesurvey line and who got promotion as Firka Surveyor and SubInspector of Survey were directed to be regularized in the post ofDraftsman.6. Per contra, the learned Special Government Pleader aswell as the learned counsel appearing for respondents 6 and 7while supporting the order of the Tribunal further contended that,in case the petitioners are directed to be regularized in thesurvey line, it would unsettle the seniority list drawn earlierthereby giving rise to practical difficulties in the functioningof the survey administration.7. We have considered the submissions of the learned counselon either side and we have also perused the Government Ordersimpugned in the original proceedings as well as the order of theTribunal. https://hcservices.ecourts.gov.in/hcservices/

8. It is not in dispute that the petitioners were initiallyappointed as Surveyor-cum-Draftsman and they were given necessarytraining and subsequently they were all promoted in the surveyline as Firka Surveyor and later as Sub Inspector of Survey. Byway of impugned Government Orders the respondents have taken adecision to regularize the services of the Surveyor-cum-Draftsman.Subsequently the matter was clarified by the Government as perproceedings dated 29.8.1990 as there were certain practicaldifficulties in the matter of regularization. The relevant portionof the clarification letter is extracted below:"If the procedure of getting options isadopted, it will create problem as a huge numberof persons may give options to a particularcategory for which the required number of postsmay not be available on the dates on which thesepersons were appointed in time scale of payposts. Hence, it would be better that theservices of all the persons now working as SubInspector of Survey/Firka Surveyor/Field Surveyorare reguarised in the category of Field Surveyorand the services of of the persons working assenior Draftsman/Land Records Draftsman/Draftsmanare regularised in the category of Draftsman.This is because the persons appointed as SubInspector of Survey or Firka Surveyor would havebeen appointed only if they had passed therequired tests for those posts. Likewise,persons appointed as Senior Draftsman/LandRecords Draftsman would have been appointed onlyif they had passed the required test for thoseposts. All the Assistant Directors of Survey arerequested to follow this procedure and to reportof any problem arises on following thisprocedure."9. It is evident from the letter sent by the secondrespondent to the Government that the department has underlinedthe necessity to regularize the services of employees in thesurvey line in the category of Surveyor. Para 4 of the saidletter dated 5.4.1991 is reproduced below for better appreciation:"There are certain cases of persons nowworking as Sub Inspector of Survey/FirkaSurveyor whose services have to be regularisedin the category of Draftsman by virtue of theirinitial appointment as Draftsman and certain https://hcservices.ecourts.gov.in/hcservices/ cases of persons now working as SeniorDraftsman/Land Records Draftsman whose serviceshave to be regularised in the category ofSurveyor by virtue of their initial appointmentas Surveyor. In view of this it has so happenedthat the persons working as Sub InspectorSurvey, Firka Surveyors have to be reverted asDraftsman and the persons working as SeniorDraftsman, Land Records Draftsman have to bereverted as Surveyor. To over come thisdifficulty it would be better that the servicesof the persons working as Sub Inspector ofSurvey/Firka Surveyor are regularised in thecategory of Surveyor and the services of thepersons working as Senior Draftsman/Land RecordsDraftsman are regularised in the category ofDraftsman." 10. Indisputably, the petitioners were working as Surveyorsinitially and after survey training they were all promoted in thesurvey line, initially as Firka Inspector and subsequently as SubInspector of Survey. Now after so many years of continuousservice, by virtue of the impugned Government Orders thepetitioners were directed to be regularised in the category ofDraftsman and consequently the petitioners become the junior mostin the said category. The Administrative Tribunal, without takingnote of the issues involved in such regularization of services ofsurveyors as Draftsman, closed the Original Application, withoutaddressing itself to the real controversy.11. In fact, the issue is squarely covered by the judgment ofthe Honourable Supreme Court dated 12.3.1996 in Civil Appeal Nos.5139 - 61 of 1996 (A. MAHUDESWARAN & ORS. v. GOVERNMENT OF TAMILNADU & ORS.) The issue in the said case pertains toregularization of Section Writers, who were appointed as Surveyorson consolidated pay consequent to the abolition of the post ofVillage Officer in the year 1982. They were regularized in thepost of Surveyor initially and on the basis of certainclarification issued by the Government, subsequent proceedingsdated 31.7.1992 came to be issued whereby re-regularisation wasdone, in and by which, the appellants before the Supreme Courtbecame junior most. When the matter was taken up before the StateAdministrative Tribunal, the Tribunal favoured with regularizationof their services in alternative vacancies and disposed theOriginal Application as per order dated 27.10.1983. The said orderwas challenged before the Hon'ble Supreme Court and the Apex Courtafter taking into consideration the Government clarification dated https://hcservices.ecourts.gov.in/hcservices/

29.8.1990 which is also the basis for the present writ petition,ultimately allowed the Civil Appeal and observed thus:-"It is true that some of thecandidates were working in the respectivefields, namely, as Draftsman andSurveyors. It is seen that each one isindependent of the other. The SurveyDepartment consists of Surveyors, FieldSurveyors, Firka Surveyors, SubInspectors, Deputy Inspectors, Inspectorsand Assistant Directors. As far as theDraftsman Department is concerned, thehierarchical posts of the Draftsman areDraftsman, Senior Draftsman, HeadDraftsman, Manager (Technical), AssistantDirector (Maps) and Assistant Directors(Drawings). It would thus be seen thateach is a distinct and separate serviceand one cannot be mingled with the other.When this nomenclature and serviceconditions are made different, there is noscope for intermingling the surveyors withthe Draftsman. It would thus be seen thatthe regularization of the services of theappellants is consistent with the GeneralRules and also with the scheme in SpecialRules. The Direction, therefore, toregularise the services of the persons inthe rotational alternative vacancies wouldcreate hardship to the senior persons whohave come into service much earlier to theother sources and who would be givenseniority over the senior surveyors. Thedoctrine of legitimate expectation must beconsistent within the operation of thestatutory rules, orders or Act. Forinstance, promotion on the basis of meritand ability enables a more meritoriousjunior-most incumbent to steal a marchover senior-most person in the service.In such a case, legitimate expectationgets back seat. In a converse case ofpromotion on the basis of senioritywithout reference to merit would generatelegitimate expectation. When the principle https://hcservices.ecourts.gov.in/hcservices/ of merit is involved, the legitimateexpectation dashes of its hopesinculcating spirit of competence and zealto improve excellence. Regulation oflegitimate expectation cannot beindiscriminately projected but requiredconsideration in the setting and scenarioof factual backdrop. Though a wrongprinciple of regularization by rotationgenerates expectation of regularization,it cannot be said to be legitimate nor beput in operation contrary to general andspecial rules. In other words, the viewtaken by the Tribunal is not consistentwith the Scheme of the Special Rules andalso of the General Rules. Therefore theorders are illegal.12. Learned Counsel for the petitioners brought to our noticethe order dated 10.7.2006 in W.P.No.3190 of 2004 of the MaduraiBench of this Court wherein a Mandamus was issued by the learnedJudge to regularize the petitioners in the writ petition asSurveyors. The issue involved in the said matter is similar to theone in the present writ petition and we are also informed by thecounsel that the said order has already been implemented by theGovernment as per G.O.Ms.No.593 dated 17.10.2007.13. Hence, we are of the considered opinion that the proposedaction to regularize the service of the petitioners as Draftsmanwould cause undue hardship and prejudice to the petitioners. Byvirtue of the proposal, the petitioners, who are fairly seniorsin the survey line would become junior most in the Draftsmancategory. In the said circumstances, we are inclined to set asidethe order of the Tamil Nadu Administrative Tribunal dated30.10.2003 in O.A.No.3626 of 1992. The writ petition is allowed.The first respondent is directed to regularize the services of thepetitioners in the category of Surveyors in the Survey and LandRecords Department. Consequently, the connected WPMP is closed.No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government Revenue Department Fort St. George Chennai-9.2. The Director of Survey and Settlements (Survey) PWD Complex Chepauk Chennai-5.3. The Assistant Director of Survey and Land Records Thoothukudi District 4, South Raja Street Thoothukudi.4. The Assistant Director of Survey and Land Records Tirunelveli District Survey Unit, Palayamkottai Tirunelveli-2.1 cc to Mr.P.Rajendran, Advocate, SR.250211 cc to Mr.V.Manisekaran, Advocate, SR.248651 cc to Government Pleader, SR.25231vsv (co)dv/5.5. W.P.NO.23874 OF 2004