P.M.Mari v. The State of Tamil Nadu

M. MadasamySundararajAssistant Engineer (RD)PMGSY District Rural DevelopmentAgency, Thirunelveli.R3 impleaded as per order dated 4.10.2004 in W.P.M.P.32748/04... 3rd Respondent in W.P.22277/042. The SecretaryPersonnel and Administrative Reforms(P & AR) Department,Fort St. George, Chennai-9.3. The SecretaryTamilnadu Public Service commissionGovernment Estate,Anna Salai, chennai.4. The Director of Rural DevelopmentChennai-15.... respondent 2 to 4 in W.P.31510/04WP.19401/04:- Petition under Article 226 of the Constitution of Indiafor the issuance of a writ of Mandamus as stated therein. Mandamus directing the respondents to abosorb the Petitioner Assistant Engineer Rural Development Department from the date of hisappointment pursuant to the directions in g.O.MS.No.102 dated25.5.1998 issued by the Ist respondent (in W.P.19401, 19402, 19403,19404, 19405, 19406, 19407, 19408, 19409 & 19410/04) 20676, 20681/04, 22268 to 22277/04.Mandamus directing the Ist and 4th respondent herein to repatriateAssistant Engineer/ Assistant Executive Engineer of the presenthighways Department Agricultural Engineering Department and DharmapuriDistrict Development Corporation possessing a Bachelor's Decree of itsequivalent is Mechanical and Agricultural engineering and all JuniorEngineers Assistant Engineers/ Assistant Executive Engineers of variousof the Technical Department who are an Deputation / on contract basisand serving in the Rural Development Department, beyond five years their respective parent Department forthwith and maintain the cadrestrength between Assistant Engineer/ Junior Engineers of the RuralDevelopment Department as stipulated in the Rules in force.(in W.P.31510/04) https://hcservices.ecourts.gov.in/hcservices/ certiorarified Mandmus calling for the records of the 2nd respondentin RC.No.32949/04 EE1/dated 18.9.2004 and quash the same and direct himto retain the petitioner as AEE with the Rural Development Department(in W.P.31561/04)ceritorarified Mandamus or any other appropriate Writ calling for therecords relating to the letter issued by the Managing Director,Tamilnadu water supply and Drainage Board, the 3rd respondent hereinmade in his office letter No.C2/HO/EE/68375/2004-17 dated 27.12.2004quash the same in so far as the petitioner are concerned andconsequently direct the respondents herein to give effect to the orderof absorption issued by the 2nd respondent, the Director of RuralDevelopment, Chennai made in his office proceedings No.90329/98/Ee.2dated 17.3.99 by treating the subsequent order issued by him in hisoffice proceedings No.90329/98/EE.2 dated 2.7.1999 as void so as enable the petitioners herein to get all the consequential, service andmonetary benefits accrued on account of absorption within a short datethat may be fixed by this Honourable Court. (in w.P.26807/04)(i) Para 2 of Notification IV of G.O.Ms.No.15 Rural Development (E1)Department dated 25.1.2000 issued by the Secretary to Government, RuralDevelopment Department, Chennai-9, the Respondent herein in givingretrospective effect of the rule from 26.9.1997 and(ii) In so far as the non inclusion of Deputationist from TWADBoard as one of the method of appointment for recruitment to the postof Assistant Engineer in Rule 3 of the Adhoc rules issued G.O.Ms.No.15, Rural Development (E1) Department dated 25.1.2000 underthe heading of Appointment, as null andd void and ultra vires theconstitution of India and for consequential direction directing therespondent herein to include the Deputationist from TWAD Board as onefo the method of appointment is Rule 3 of the adhoc rules governingAssistant Engineer post in Rural Development Department and absorb thepetitioenr as Assistant Engineer in Rural Development Department withall consequential service and monetary benefits. (in W.P.33503/06)For petitioners in WP Nos.19402, 19406, 19407 : Mr.Sanjay Mohan, forand 19408 of 2004Mr.K.RajkumarFor Petitioners in WPNos.19410, 20678, 22268:Ms.R.Vaigai, and 22273 of 2004for Mr.G.Rajesh.For Petitioner in WPNo.33503 of 2006:Mr.AL.Somayaji, SeniorCounsel for Mr.K.Rajkumar https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in WPNos.19404, 19405, 19409:Mr.AL.Somayaji, Senior and 19401/2004 Counsel for Mr.S.GovindaprasadFor Petitioner in WPNos.22269, 22272, 22274:Mr.V.K.Muthusamy, Seniorand 22276 of 2004Counsel for Mr.R.MuthukrishnanFor Petitioner in WPNos.20676 to 20681/04: Mr.R.Syed MustafaFor Petitioner in WPNo.31510 of 2004:Mr.C.Selvaraju, Senior Counsel for Mr.Srinath SridevanFor Petitioner in WPNos.19403, 22270, 22271,:Mrs.Hema Sampath 22275, 22277 & 31561/04For R-3 in WPs.19401 to19410/04, 20676 to 20681/04:Mr.R.Thiyagarajan,26807/05 and for petitionerSenior Counsel. for Mr.Raviin WVMP 2114 of 2005For TWAD Board:Mr.Sudharshana SundharFor State (in all matters):Mr.R.Viduthalai, Advocate General, assisted by Mr.P.Subrmanian, Govt. AdvocateCOMMON JUDGMENT(Judgment of the Court, delivered by P.SATHASIVAM, J.)Petitioners, working in the Rural Development Department deputation from Tamil Nadu Water Supply and Drainage Board (in shortTWAD Board), pray to issue a writ of mandamus, directing therespondents - Secretary, Rural Development Department (in short R.D.Department), and the Director, Rural Development, Chennai, to absorbthem as Assistant Engineers, R.D. Department, from the date of theirappointment pursuant to the directions in G.O.Ms. No.102, dated25.5.1998, issued by the Government of Tamil Nadu. II. Some of the petitioners seek to quash the letter of theTWAD Board, dated 27.12.2004, and pray for a consequential direction give effect to the order of absorption issued by the Director of R.D.made in his proceedings dated 17.03.1999. They also pray to hold that https://hcservices.ecourts.gov.in/hcservices/ his order dated 02.07.1999, cancelling absorption of A.Es. of TWADBoard in R.D. Department, is void.III. In one Writ Petition, viz., W.P. No.35303 of 2006, thepetitioner has prayed for a writ of declaration, declaring,(a) para 2 of Notification IV of G.O. Ms. No.15, R.D.(E1) Department, dated 25.01.2000, giving retrospective effect to theAd hoc Rules from 26.09.1997, as void,(b) non-inclusion of deputationists from TWAD Board one of the methods of appointment for recruitment to the post Assistant Engineer in Rule-3 of the ad hoc Rules in G.O.Ms. No.15 void. Apart from the above relief, the petitioner also seeks for consequential direction to include the deputationists from TWAD Boardas one of the methods of appointment in Rule 3 and absorb him Assistant Engineer in the R.D. Department with all consequentialbenefits. IV. In W.P. No.31510 of 2004, The Tamil Nadu Rural DevelopmentEngineers' Association through its General Secretary P.Ravikumar, praysfor the issuance of a writ of mandamus, directing the Secretary Government, R.D. Department, and Director of R.D., Chennai-15, repatriate the Assistant Engineers/Assistant Executive Engineers of thepresent Highways Department/Agricultural Engineering Department andDharmapuri District Development Corporation, possessing a Bachelor'sDegree or its equivalent in Mechanical and Agricultural Engineering,and all Junior Engineers, Assistant Engineers/Assistant ExecutiveEngineers of various other Technical Departments, who are deputation/on contract basis and serving in the R.D. Department beyondfive years, to their respective parent Departments forthwith andmaintain the cadre strength between Assistant Engineers/JuniorEngineers of the R.D. Department as stipulated in the Rules in force.2. Since the reliefs sought for in all these Writ Petitionsare interconnected and the W.Ps. having been filed by two sets individuals; viz., deputationists from other departments to R.D.Department on the one hand, seeking absorption and promotion in thepresent Department; and the insiders/in-service personnel of the R.D.Department on the other hand, claiming repatriation of thedeputationists to their respective parent Departments; they are beingdisposed of by the following common judgment.3. As the Writ Petitions filed by the deputationists containcommon pleas, we cull out the facts from some of the Writ Petitions:-A. For convenience, at first, we shall refer the case P.M.Mari, petitioner in W.P. No.19401 of 2004.He is an Engineer with B.E. in Civil Engineering. He joinedthe TWAD Board on 10.06.1985 as Assistant Engineer. In 1997, he wassent on deputation to the R.D. Department when 'Engineering Wing' wasstarted there. This was under G.O. Ms. No.263, dated 27.12.1996, https://hcservices.ecourts.gov.in/hcservices/ issued by the Government - first respondent. Additional technicalposts sanctioned under the said Government Order were directed to filled up on deputation/by transfer of service basis for a period three years as temporary measure. At present, he is working Assistant Engineer in the R.D. Department. The Director of R.D.,Chennai-15, following the notification dated 21.01.1997, requested theCollectors to issue orders to individuals who had been selected fromthe willing candidates from the Highways, Rural Works Department andTWAD Board. Persons, who went on deputation, were found eligible andsuitable based on their qualifications. Along with the petitioner, number of persons from the TWAD Board also came to the R.D. Departmenton deputation. In G.O. Ms. No.102, R.D. Department, dated 25.05.1998,the Government directed the Director to report about permanentlyabsorbing Assistant Engineers from other Technical Departments giving them weightage for the service put in by them in theirrespective parent departments. Based on such direction, ad hoc ruleswere framed by the Government for the persons holding temporary posts.These rules were based on the earlier Government Orders in G.O. Ms.Nos.263 and 102. The Rule relating to the appointment contemplated thefollowing, (a) by direct recruitment; (b) recruitment by transfer from overseer in the RDDepartment; (c) the ratio for appointment to the post bydirect recruitment and recruitment by transfer shall be 1:1.According to the petitioner, he comes within the category of directrecruitment which contemplated only a degree in Civil Engineering amongother things. G.O.Ms. No.15, dated 25.01.2000, shall be deemed to havecome into effect from 25.05.1998. Even on 17.3.1999, the Director hadpassed an order for permanent absorption of 125 Assistant Engineersworking on deputation from various other departments into the Department. But, on 2.7.1999, this order was cancelled by him as theManaging Director of the TWAD Board had refused to accept the proposalfor absorption of persons deputed from the Board by his letter dated15.4.1999. After sometime, the Director was informed by the ManagingDirector, TWAD Board, on 22.07.1999, that the Board was willing for thepermanent absorption of the Assistant Engineers on deputation by theR.D. Department. Willingness was conveyed to the firstrespondent/Government also. In spite of those proceedings, there waslot of confusion in the office of the Director, R.D., whereupon, theDirector issued proceedings dated 10.03.2004 to the District Collectorsasking them to give particulars about the Assistant Engineers who havebeen recruited by the TNPSC to enable him to promote them as AssistantExecutive Engineers. The petitioners and other similarly placedpersons gave representations to the respondents, requesting them include their names in the panel for promotion. So far, they have notreceived any reply. They apprehend that promotion would be madewithout including their names. Hence, they filed several writpetitions, seeking for a direction to the respondents to absorb them https://hcservices.ecourts.gov.in/hcservices/ Assistant Engineers in the R.D. Department from the date of theirappointment pursuant to the direction in G.O. No.102 dated 25.05.1998issued by the first respondent. B. P.M.Mari and others joined together and filed W.P.No.26807 of 2005 making similar contentions to those raised in W.P.No.19401 of 2004. C. In W.P. No.33503 of 2006, filed by T.Venkatesh, Assistant Engineer directly recruited in TWAD Board, now in the R.D.Department, it is stated that the Government of Tamil Nadu, with a viewto have a separate Engineering Wing in the R.D. Department createdcertain posts. One such post is Assistant Engineer or Additional UnionEngineer. To meet the immediate requirement and development of theEngineering Wing, the Government directed to draw Assistant Engineersby way of deputation from various Technical Departments including TWADBoard as the same has been considered as one of the TechnicalDepartments. Accordingly, options were called for by the Director Rural Development through the respective Collectors who in turnobtained the same from the Superintending Engineers of the TWAD Board.The petitioner expressed his willingness to go on deputation. SinceJanuary 1997, he has been working continuously till this date. TheGovernment took a policy decision to absorb the deputationists andissued G.O.Ms. No.102, R.D. (EIV) Department, dated 25.05.1998,wherein, it directed the Director of R.D. to explore the possibility absorbing all the deputationists in the R.D. Department. Though thesaid order was implemented initially, the same was cancelled 02.07.1999 on the ground of not giving consent by the TWAD Board.However, the said deficiency was made good by the succeeding ManagingDirector of the TWAD Board by sending two letters on 22.07.1999 and12.10.1999, giving willingness for permanent absorption of their staffin the R.D. Department. On the basis of those letters, the petitionerwas allowed to continue beyond the period of deputation. Thepetitioner and others were hoping that they would be permanentlyabsorbed and given all service benefits, but, nothing has been done. The Government framed ad hoc Rules for the post of AssistantEngineers in the R.D. Department vide G.O. Ms. No.15, Rural Development(E1) Department, dated 25.01.2000. The Rules had come into effect from26.09.1997. Paragraph No.3 of the Rules deals with the method appointment and it provides that the post of Assistant Engineer can filled by (a) Direct Recruitment; (b) Recruitment by transfer; and (c)Ratio of 1:1 provided for Direct Recruitment and recruitment transfer. However, the Rules do not take in the deputationists underits method of appointment and thereby the right of the petitioner continue in the Department is curtailed. Further, non-inclusion deputationists in the method of appointment though they have beenworking for the development of the Engineering Wing in the R.D.Department violates Article 14 of the Constitution. The petitioner entered the R.D. Department long before the https://hcservices.ecourts.gov.in/hcservices/ issue of ad hoc rules, that being so, the retrospective effect of therules from 26.09.1997 affects his right very much, because, even beforepassing of orders, an absorption order has been issued, subject framing of rules. Such being the case, the authorities ought to havemade a provision to include the deputationists as one of the methods appointment so as to give effect to the orders already passed in favourof the petitioner and others. Hence, the ad hoc rules are ultra viresthe Constitution of India. 3(a). Now, we shall briefly narrate the case of thepetitioner-association (in-service personnel of the R.D. Department) W.P. No.31510 of 2004.According to the General Secretary of the petitioner-Association, R.D. Department has been executing several State Centrally sponsored Anti-Poverty Programmes besides executingdevelopment works out of the funds of Panchayat and Panchayat Unions employing technical personnel of the erstwhile Highways & Rural WorksDepartments on service lend basis upto 1996. Consequent to theConstitutional 73rd Amendment, introducing new Tamil Nadu PanchayatsAct, 1994, and of the fact that several new schemes to be implemented,it became inevitable on the part of the Government to create a separateEngineering Wing for the R.D. Department. By G.O.Ms. No.263, Department, dated 27.12.1996, the Government decided to set up separate Engineering Wing for the R.D. Department. By virtue of thesaid Government Order, new posts were created in the R.D. Department.However, no Service Rules were framed and notified for appointment those posts at the relevant time (during 1996). Hence, the posts wereinitially filled up by drawing personnel from other technicaldepartments of Government of Tamil Nadu like TWAD Board, AgriculturalEngineering Department, P.W.D, etc. including Highways Department 'onDeputation Basis' as a temporary measure. According to the petitioner,the above arrangement was very unsatisfactory since the deputationistshad no commitment or motivation for executing the various time-boundschemes of the R.D. Department. The Association of Tamil Nadu HighwaysEngineers' opposed the creation of a separate 'Engineering Wing' underthe R.D. Department, claiming that all the posts created by virtue G.O. Ms. No.263 be earmarked only for Engineers of the erstwhileHighways and Rural Works Department. Certain personnel on deputation basis at various points time since 1996 opted for repatriation to their parent Departments various lending Departments could not sponsor the required number eligible Engineers willing to serve in the R.D. Department. TheGovernment decided to fill up 200 posts of AE (RD) by DirectRecruitment through TNPSC by notification dated 26.09.1997. TheGovernment also framed necessary Service Rules in G.O. Ms. No.15 dated25.01.2000. The constitutional validity of both G.O. Ms. Nos.102 and15 were challenged before the Tamil Nadu State Administrative Tribunalby a group of individuals and by the Association of Tamil NaduEngineering Graduates, however, both the Government Orders were upheld https://hcservices.ecourts.gov.in/hcservices/ by the Administrative Tribunal. The personnel working in the R.D.Department were not given proper promotions. On the other hand, thedeputationists / 'on contract basis personnel' are occupying variousposts of AE/AEEs without any specific and valid order against the Rulesin Force. There are nearly 20 AEs/AEEs, who have been deputed fromHighways Department, Agricultural Engineering Department and DharmapuriDistrict Development Corporation, belonging to Government of TamilNadu, with Bachelors Degree qualification (B.E./B.Tech) entrusted withthe execution of various Panchayat Union Works in the R.D. Department.They are not fully competent enough to execute / supervise the works per specifications and exercise quality control over the works.Moreover, the qualification possessed by them is against the provisionscontained in the Service Rules framed by the Government of Tamil Naduunder Article 309 of the Constitution of India, hence, their continuedpresence in the R.D. Department is illegal and against the interests the R.D. Department and general public. The petitioner-associationmade several representations to various authorities in the Governmentof Tamil Nadu and to the Secretary, Tamil Nadu Public ServiceCommission, complaining about the illegality being committed. Similarpersons, unqualified and not fit enough to continue, are alsocontinuing from TWAD Board and Tamil Nadu State ConstructionCorporation and they are to be repatriated to their respective parentDepartments. There are 295 Engineers (AEs/JEs) from various otherEngineering Departments of Government of Tamil Nadu, working in theR.D. Department 'on deputation' / 'on contract' basis as on 18.08.2004,which is about 35-40% of the total sanctioned posts of AEs/JEs in theR.D. Department. Such a large number of 'deputationists' / 'oncontract personnel' are blocking the promotional avenues of the in-service personnel in the R.D. Department. The continued presence nearly a large number of Engineers 'on deputation' / 'on contractbasis' beyond legally permissible period is leading to the creation vested interests being developed by such 'deputationists' / 'oncontract personnel', thereby jeopardise the very purpose of thecreation of a separate Engineering Wing in the R.D. Department forexecuting the Panchayat Union time-bound schemes sponsored by CentralState Governments and also completely block the promotionalopportunities available to the in-service Engineers of the R.D.Department including the members of the petitioner-association. 4. Though the State Government / first respondent (R.D.Department) has not filed counter affidavit in all the Writ Petitions,they highlighted their stand by filing counter affidavit in W.P.No.33503 of 2006. They explained the reason for formation 'Engineering Wing’ exclusively for the R.D. Department by referring G.O. Ms. No.263 R.D. Department dated 27.12.1996. Based on the same,several Engineering personnel were drawn temporarily on deputationbasis from other departments like Highways Department, Agricultural https://hcservices.ecourts.gov.in/hcservices/ Engineering department, TWAD Board etc. However, this arrangement ledto lot of operation problems, therefore, G.O. Ms. No.102, R.D. (E1)Department, dated 25.05.1998, was issued, whereby; clear instructionswere issued to the Chief Engineer (Highways) to stop posting hispersonnel to the newly sanctioned posts. With regard to the claim the petitioner in W.P. No.33503 of 2006 that he was recruited by theTWAD Board, it is pointed out that TWAD Board is not a GovernmentDepartment but it is an independent body created under the Tamil NaduWater Supply and Drainage Board Act, 1970. The petitioner is notGovernment Servant. If he wants to join in a Government Department, should either be recruited afresh through the Tamil Nadu Public ServiceCommission (TNPSC) or through Employment exchange as specified in theTamil Nadu State and Subordinate Service Rules. There is no other wayof entering into the Government Service except through the said twoways specified. The petitioner is employed on contract basis accordance with Rule 11 of the State and Subordinate Service Rules. In G.O. Ms. No.102, R.D. (E1) Department, dated 25.05.1998,there was a direction to absorb Highways Department personnel only andnot TWAD Board personnel. Even otherwise, the said Government Orderdirected the Director, R.D., to explore the possibility or absorbingthe deputationists from the borrowing department, hence, the questionof absorbing the deputationists from other departments is only possibility and not finality. The Director of R.D. absorbed AssistantEngineers of other Departments provisionally by his proceedings dated17.3.1999 without waiting for the Government's clearance. Theabsorption of personnel belonging to Highways Department and TWAD Boardwas objected to by the respective Heads of Departments. The Directorof R.D., realising the infirmities in the absorption order, cancelledthe same by proceedings dated 02.07.1999. The petitioner was taken the R.D. Department only on contract basis and he has absolutely right to challenge the statutory rule which has been framed exclusivelyfor the engineers of the R.D. Department. The petitioner has not beenappointed from a Government Service; hence, his appointment is made 'contract basis'. The question of absorbing the deputationists is onlya possibility and not finality. Even otherwise, the instructionsissued in the Government Order are only for the personnel working Government Departments and not for those in statutory Boards Corporations. Further, the Government had not decided to absorb allthe deputationists and had directed the Director of R.D. only explore the possibility of absorption. In the meanwhile, as ad hocrules were framed, the orders issued on 25.05.1998 had become null andvoid and ceased to have any effect. Since the order of the Director,R.D., suffers from two infirmities, the Director himself withdrew thesame within a period of four months. The Government have issued ad hocrules for R.D. Engineering Service in G.O. Ms. No.15, R.D. Department,dated 25.1.2000. According to the Service Rules, there are only twoways for entering into the service, viz., (a) Direct Recruitmentthrough TNPSC and (2) recruitment by transfer from the category Overseer in the R.D. Department. There is no provision for absorbing https://hcservices.ecourts.gov.in/hcservices/ employees of other organisations. Service Rules have overridingeffects on G.O. Ms. No.102, R.D. Department, dated 25.5.1998, which only an executive order. The petitioner is not a Government Employeeunder the provisions contained in Fundamental Rules. He was employedon contract basis in accordance with Rule 11 of the State andSubordinate Service Rules and can be terminated by the Government whenthe need for his services ceases. If the plea of the petitioner conceded to, it would amount to inflicting gross injustice to theunemployed engineering graduates and who are waiting for employmentthrough the TNPSC. The ad hoc Rules issued for the post of Assistant Engineer arenot arbitrary and violative of Article 14 and 16 of the Constitution India as contended. The petitioner does not belong to R.D. EngineeringService; hence, he has no locus standi to challenge the service rulesas contained in G.O. Ms. No.15, R.D. Department, dated 25.01.2000. Thepetitioner appointed on contract basis from TWAD Board has therefore legal right to get absorbed in the borrowing Department. 5. The Managing Director, TWAD Board, has filed counteraffidavit in W.P. No.26807 of 2005, wherein, it is stated that, requested by the Director of R.D. Department, certain Engineers of TWADBoard were deputed to R.D. Department as per terms and conditions forappointment of personnel from the Public Sector Undertakings/Boards Government Services. While the Assistant Engineers of TWAD Board wereworking in the District Rural Development Agency on deputation basis,the Director of R.D. issued orders in his proceedings dated 17.3.1999among other things, absorbing 57 Assistant Engineers belonging to TWADBoard in the R.D. Department, based on their exercise of option subjectto certain conditions, pending framing of ad hoc rules for Tamil NaduRural Development Engineering Services. However, the ManagingDirector, TWAD Board, in his letter, dated 15.04.1999, informed to theR.D. Department that the said exercise of option is not acceptable the TWAD Board. Since the services of Assistant Engineers areessentially required for the current year work of the TWAD Board, theManaging Director, TWAD Board, requested the Director, R.D. Department,to revert back all the Assistant Engineers to the TWAD Boardimmediately. In those circumstances, orders issued for permanentabsorption of the 57 Assistant Engineers belonging to TWAD Board werecancelled by the Director of R.D. Subsequently, the Managing Director,in his letter dated 22.07.1999, informed the Director of the R.D.Department that TWAD Board is willing for the permanent absorption its Assistant Engineers. Based on the same, the Director, R.D., in hisCircular dated 16.11.1999 ordered that the A.Es. of the TWAD Board maybe retained in the R.D. Department till a final decision is taken the Government. Again, when the consent of the TWAD Board was soughtfor, considering the financial position, a letter was sent to theDirector, R.D., in Managing Director's proceedings dated 27.12.2004,informing that the Board is not in a position to accept any permanentabsorption of Board's AEs/AEEs in the R.D. Department. The TWAD Board https://hcservices.ecourts.gov.in/hcservices/ denied the allegation that the continuance of petitioners in the R.D.Department gives them a right to the post of Additional UnionEngineers. The Assistant Engineers deputed from TWAD Board have beenworking in the R.D. Department beyond the period of deputation forthree years and their continuance in the said Department is subject the decision to be taken by the Director of R.D. / Government. Thoughoriginally the M.D. consented for absorption, subsequently, taking noteof various aspects including dearth of hands in the TWAD Board, conveyed his decision not to accept any permanent absorption of A.Es.in the R.D. Department. 6. Some of the petitioners filed a Rejoinder, reiteratingtheir earlier stand. All of them denied the allegation of the R.D.Department and the TWAD Board that their employment was on contractbasis. According to them, when the Government decided to absorb UnionOverseers who came on deputation from Highways and they were givenpromotion as Assistant Engineers for 209 Blocks, it is arbitrary anddiscriminatory to deny the same benefit to the personnel from TWADBoard and the same would be violative of Articles 14 and 16 of theConstitution of India. 7. Persons, working in the R.D. Department, who are shown respondents, filed a reply affidavit, wherein, it is stated that TWADBoard is an undertaking of the Government of Tamil Nadu and the mode appointment relating to it is outside the purview of the TNPSC. TheGovernment, in their letter dated 01.07.1997, and subsequent letter,dated 15.2.2003, have clarified that the TWAD Board Assistant Engineersare appointed on contract basis and are not entitled for deputation payand allowance. When TWAD Board, which is the lending department, hadnot accepted for absorption, and the borrowing R.D. Department had alsonot agreed for absorption of AEs of TWAD Board, the petitioners have legal right to claim permanent absorption in the R.D. Department. the request of the writ petitioners viz., deputationists from TWADBoard, is considered, persons working in the R.D. Department and theirpromotional opportunities would be vitally affected. When the servicerules framed under Article 309 of the Constitution of India do notpermit absorption from other Departments or Boards, the writ petitionsfiled by the deputationists are not maintainable. The Tamil NaduAdministrative Tribunal, in various orders, directed the Department promote the Assistant Engineers recruited for the R.D. Department andto stop deputation from other Departments contrary to statutory rules.The said decision has become final and the same was not challenged anyone. Further, TWAD Board Engineers have not passed the DepartmentalTests for promotion as Assistant Executive Engineers and they are stillon contract basis in the R.D. Department. In the statutory Rule, viz.,G.O. Ms. No.15, dated 25.01.2000, as there is no provision for thesedeputationists or persons appointed on contract basis to be absorbed Assistant Executive Engineers in the R.D. Department, they cannot claim https://hcservices.ecourts.gov.in/hcservices/ promotion as Assistant Executive Engineers. In any event, the Directorof R.D. has no jurisdiction to absorb an Assistant Engineer from TWADBoard. For permanent absorption, the Government alone is the competentauthority that too after consent of the M.D., TWAD Board. As per thelaw laid down by the Supreme Court, petitioners/deputationists have vested right of absorption in the R.D. Department. There is provision under the ad hoc Rules for appointment by transfer of servicefrom the TWAD Board or for absorbing A.Es. from other Departments. 8. With the above pleadings, we heard Mr.Sanjay Mohan,Ms.R.Vaigai, learned counsels; Mr.AL.Somayaji, Mr.V.K.Muthusamy,learned Senior Counsels; Mr.Syed Mustafa, learned counsel; appearingfor writ petitioners; Mr.C.Selvaraju, Mrs.Hema Sampath, learned SeniorCounsels; Mr.R.Thiyagarajan, learned Senior Counsel; for therespondents; Mr.Sudharshana Sundhar, learned counsel appearing for theTWAD Board; and Mr.R.Viduthalai, learned Advocate General for theState.9. Now, let us decide the cases on hand with reference to fourmajor issues, raised by the respective sides, viz., (a) claim of the deputationists regarding their position the R.D. Department and substance in their plea for issuingmandamus as prayed for by them;(b) Validity or otherwise of the impugned Rules;(c) discrimination alleged; and(d) retrospective operation of the Rules.Depending upon our decision on the above issues, we will determine theclaim of the petitioner/Association in W.P. No.31510 of 2004.10. Relating to the first issue, main contentions projected behalf of the petitioners/deputationists are as follows:-(a) In view of the decision embodied in the proceedings dated17.03.1999 and the willingness expressed by the TWAD Board by lettersdated 22.07.1999 and 12.10.1999, it is obligatory on the part of therespondents to treat the deputationists as employees of the R.D.Department.(b) TWAD Board, having made a decision in terms of Regulation 13 ofthe TWAD Board Rules to the effect that the petitioners may henceforthbecome employees of the R.D. Department, can no longer go behind suchdecision.(c) Equally, the R.D. Department, having acted upon the decision ofthe TWAD Board, can not take a stand that absorption cannot be done.All that remain is only the follow up action by the R.D. Department absorb the petitioners.(d) The doctrine of legitimate expectation would come intooperation by the conduct of the TWAD Board and the R.D. Department regard to the absorption of the Petitioners into the services of theR.D. Department. (e) The reason given for non-absorption based upon non-availability https://hcservices.ecourts.gov.in/hcservices/ of Rules would not be available to the respondents since Service Ruleswere framed much after the Executive decision taken to absorb them. (f) It would not lie in the respondents to now claim that there dearth of hands in the TWAD Board in the light of TWAD Board's letterdated 30.11.2004 to the effect that absorption may be done. (g) The TWAD Board and the R.D. Department are now estopped frompleading that absorption cannot be made.(h) The plea that absorption can be done only when Rules are framedwould not arise since prior to the framing of the Rules Executivedecision has the force of law. 11. Contentions by the respondents:-(i) As per the Board's proceedings, for continuing deputationbeyond 3 years, the matter should be placed before the Board forconcurrence. (ii) Further proceedings show that the deputation pay would paid for a maximum period of 3 years and the period of deputation wouldalso be for a maximum period of 3 years. It was already made clearthat the deputationists can be recalled by the lending authority at anytime at its discretion. All the petitioners are aware that thedeputation period can only be for a maximum period of three years andunless and until the M.D. gives concurrence, absorption cannot claimed by the TWAD Board Engineers. (iii) As per G.O. Ms. No.263, R.D. Department, dated27.12.1996, the policy of the Government was only to take Engineers deputation from various Departments, and the letter addressed to theTWAD Board makes it clear that only Engineers were recruited 'ondeputation basis' for the newly formed Department. (iv) Even in G.O. Ms. No.102, R.D. Department, dated25.05.1998, the Government directed the Director to explore thepossibility and report to it regarding permanent absorption and had notdelegated its powers to permanently absorb Assistant Engineers by theDirector of R.D.. (v) As per proceedings dated 17.3.1999, the Director of R.D.had passed an order absorbing 57 TWAD Board Engineers subject to thecondition of pending framing of ad hoc rules / Service Rules of TamilNadu Rural Development, therefore, it was a conditional absorption andthe Director had no jurisdiction to pass the order dated 17.03.1999without the concurrence of the Managing Director, TWAD Board. (vi) Considering dearth of hands, a decision was taken by thelending authority/TWAD Board, expressing its unwillingness forabsorption of its engineers in the R.D. Department, hence, there cannotbe a mandamus compelling the Government to permanently absorb the TWADBoard Engineers in the R.D. Department against the said policydecision.(vii) Inasmuch as the Engineers in the TWAD Board were notrecruited through the TNPSC, they cannot claim absorption in the R.D.Department since A.Es. in the R.D. Department come within the purview https://hcservices.ecourts.gov.in/hcservices/ of TNPSC. (viii) When the statutory rule does not provide for absorptionas one of the methods of appointment, the TWAD Board Engineers have right to claim absorption; therefore, all the Writ Petitions filed the TWAD Board Engineers are liable to be dismissed. 12. Perused all the relevant materials and carefullyconsidered the rival contentions. 13. At the foremost, let us consider the proceedings of theTWAD Board, various orders passed by the Government in respects absorption, cancellation, etc. B.P. Ms. No.71, dated 19.03.1990, speaks about TWAD Board'sguidelines regarding absorption and powers of the Managing Director.As per Clause-10, the M.D. is empowered to sanction deputation officers to other organisations upto the level of Executive Engineersfor a period of three years. For continuance of deputation beyondthree years, the matter should be placed before the Board. The M.D. also delegated with powers to give concurrence for the absorption TWAD Board employees upto the level of E.Es. in other organisations. B.P. No.342, dated 06.11.1996, speaks about the terms andconditions governing deputation of TWAD Board's employees. Clause-10 the Board's proceedings speaks about the 'period of Deputation', as perwhich, the period of deputation will, unless otherwise specificallystated, be three years. It further states that the deputationists may,however, be recalled by the lending authority at any time at itsdiscretion subject to certain conditions, viz., the deputation willcommence on the date on which the deputationists hands over charge his post in Board service or under the previous Foreign Employer, the case may be, and on the date he assumes charge of a post in TWADBoard. The order passed by the Government in G.O. Ms. No.263, R.D.Department, dated 27.12.1996, is very relevant. It is seen that, the letters dated 31.07.1996 and 12.09.1996, the Director of R.D.pointed out that technical supervision of works related to R.D.Department is inadequate as currently there is only one post of UnionEngineer in the Panchayat Union and that the works taken up perPanchayat Union exceed Rs.1.5 crores and this requires close technicalmonitoring supervision and control to ensure timely execution of worksas well as implementation quality. In those circumstances, forstrengthening the technical wing in the R.D. Department, the Directorapproved for a full fledged office of a Divisional Engineer / ExecutiveEngineer in each District, a sub division headed by AssistantDivisional Engineer / Assistant Executive Engineer in each division andat least two Union Engineers for each block. The proposals of theDirector were considered by the Staff Committee presided over by theChief Secretary and the Staff Committee recommended the creation several posts. The Government, after consideration, ordered the https://hcservices.ecourts.gov.in/hcservices/ creation of the following posts for a period three years or till theneed therefor ceases whichever is earlier:-" (a) At the Panchayat Union level, 384 postsof additional Union Engineer in the rank of AssistantEngineer at the rate of one additional Union Engineerper Panchayat Union. (b) At the Divisional level, 15 sub-divisions at the rate of one sub-division to each ofthe development division which do not have technicalstaff at present (viz Cuddalore, Krishnagiri, Lalgudi,Palani, Dharmapuri, Perambalur, Maduranthakam,Tiruttani, Uthamapalayam, Tiruchengode, Tiruvarur,Kulithalai, Paramakudi, Thenkasi & Udayarpalayam). "Clause-5 of the said Order makes it clear that the additional technicalposts sanctioned would be filled up on deputation / by transfer service basis for a period of three years on temporary basis. further says that the staff for those posts would be drawn from variousDepartments, viz., Highways and Rural Works, Public Works Department,Agricultural Engineering, TWAD Board and other allied TechnicalDepartments. The Government Order also makes it clear that since theexisting staff particularly technical personnel in the R.D. Departmentare insufficient and inadequate, considering the need for execution various centrally sponsored schemes, it was decided to have a separatewing, for which, several technical personnel are needed. It furthershows that in order to cope up with the work and urgency, theGovernment authorised the R.D. Department to borrow suitable personnelfrom various departments including TWAD Board for a period of threeyears on temporary basis. In other words, the deputation is for period three years and the same is on temporary basis. The next Government Order very much relied on by thepetitioners is G.O. Ms. No.102, R.D. Department, dated 25.05.1998. is stated therein that, considering various aspects, 209 posts in thecategory of Block Engineers/Assistant Engineers would be earmarked be filled up by promotion from the feeder categories of Overseers andJunior Draughtsmen. It is further stated that this route would be opento them only after they exercise their option and are permanentlyabsorbed in the R.D. Department. The said Government Order furthershows that this number of 209 would be out of the 384 posts of BlockEngineers suggested in item -1 to be earmarked for Engineers fromHighways Department. In those circumstances, the Government directedthe Director, R.D., to explore the possibility and report to theGovernment of permanently absorbing A.Es. from other TechnicalDepartments, giving them 1:1 weightage for the service already put by them in their respective Departments. Thus, the above G.O. makes clear that the Director was asked to find out possibilities permanently absorbing the AEs from other technical departments and alsoto submit his report regarding the feasibility / acceptability. other words, the Government has not absorbed all those engineers fromthe technical departments including the personnel from TWAD Board https://hcservices.ecourts.gov.in/hcservices/ the R.D. Department.No doubt, in the proceedings, dated 17.3.1999, deputationistsincluding the personnel from the TWAD Board, working in the posts Additional Union Engineer / Assistant Engineers (RD) in R.D.Department, who opted for permanent absorption in the R.D. Departmentwere ordered to be absorbed permanently subject to the condition pending framing of ad hoc / service rules or Tamil Nadu RuralDevelopment Engineering Service / Tamil Nadu Rural DevelopmentEngineering Subordinate Service by Government in R.D. Department.However, on receipt of the above communication, TWAD Board conveyedtheir inability to accept and, in their letter dated 15.04.1999, theManaging Director informed the Director of R.D. Department, statingthat the proposal for the permanent absorption of A.Es deputed fromTWAD Board to R.D. Department based on their option is not acceptableto the TWAD Board. In the same communication, the M.D. reiterated thatthe services of the A.Es. are essentially required for the current yearworks in the TWAD Board and requested that the A.Es be reverted to TWADBoard immediately. Based on the above communication of the TWAD Board,the Director, R.D. Department, in his proceedings dated 02.07.1999,after examining the issue of absorbing Engineers from other Departmentsworking on deputation in the R.D. Department in detail and finding thatthe Block Engineers / Junior Engineers / Assistant Engineers fromHighways and Rural Works Department come under the purview of TNPSC;cancelled the permanent absorption of all 204 Block Engineers / JuniorEngineers / Assistant Engineers and 129 Assistant Engineers belongingto other Technical Departments. On 25.01.2000, the Government, in G.O. Ms. No.15, R.D.Department, framed ad hoc rules for the posts of Executive Engineer,Assistant Executive Engineer and Assistant Engineer, (videNotification-IV) under Article 309 of the Constitution of India. Thesaid Rules came into effect from 26.09.1997. We are concerned aboutRule-3, which speaks about 'Appointment'," 3. APPOINTMENT (1) Appointment to the post shallbe made by (a) direct recruitment(b) recruitment by transfer from Overseer in theRural Development Department(c) The ratio for appointment to the post bydirect recruitment – and recruitment by transfer shallbe 1:1"Admittedly, there is no provision for taking deputationists for fillingup the posts in the R.D. Department. Since the said aspect is underchallenge by way of W.P. No.33503 of 2006, we will consider it atlater point of time.13-A. Inasmuch as the deputationists stoutly deny their statusof service with the R.D. Department 'on contract basis', it necessary to refer to the proceedings of the Director of R.D., dated28.12.2001, which refers to G.O. Ms. No.263, R.D. Department, dated https://hcservices.ecourts.gov.in/hcservices/

27.12.1996, and Annexure-II appended thereto, containing terms deputation by the Director of R.D., " Annexure-IITerms and conditions for appointment ofpersonnel from the State Public SectorUndertakings/Boards in Government Services on contractbasis under General Rule 11 of the Tamil Nadu State andSubordinate Service (Vide Govt. Lr. No.1569/BPE/92-1Finance (BPE) Dept., dt. 15.2.93 andGovt.Lr.No.2749/BPE/96-1 Finance (BPE) Dept., dt.9.12.96)i) The contract appointment will be for a periodof 3 years from the date of relief from theCorporation/Board.ii) While on Contract appointment, he will drawpay and allowances as applicable to the post held by himin his parent Organisation, viz., Corporation/Board.iii) The Government shall recover every monththe Employees Contributory Provident Fund subscriptionfrom the pay of the employees on Contract appointment atthe rate specified by his parent organisation and remitit to that foreign body. It is only that lendingorganisation, which has to make an equal amount ofemployer's contribution and no contribution in thisregard will be made by the Government. "In respect ofemployees of statutory Boards, where a pension scheme isavailable, the pension contribution shall be met by thestatutory Boards themselves in the event of appointingsuch employees in Government Service on contract basisunder General Rule 11 of the Tamil Nadu State andSubordinate Service" (amended vide Govt. LetterNo.2749/BPE/96-1, Finance (BPE) Dept., dated 09.12.1996.iv) The Government shall pay direct to theemployee concerned an amount as one time compensatoryallowance equivalent to the bonus admissible at the ratesas per the payment of Bonus Act as and when paid by theparent Organisation to its employees provided that at thetime of payment of bonus, the employee continued to servein Government on contract basis. The expenditure on thiswill be on service share basis for the accounting yearbetween the Government and the foreign body concerned.In such cases, during the contract period, the employeewill not be eligible for any other exgratia payment, ifany, allowed to the Government employees like pongalgift. https://hcservices.ecourts.gov.in/hcservices/ v) Government also will not pay any contributiontowards gratuity. The gratuity contribution shall beborne only by the lending Corporation/Board concerned forthe period of contract service. vi) The employee on contract basis shall bedeemed to be a member of the parent organisation for thepurpose of the disciplinary rules, under the ServiceRules of the parent organisation concerned.Notwithstanding the fact that his services are placed atthe disposal of the Government, if he commits any act ofomission or commission which make him liable to thepenalty specified in the said rules, the parentorganisation under whom he is serving at the time ofomission or commission of such act shall be competent toinitiate the disciplinary proceedings against him and toimpose on him such penalties specified in the relevantrules and the Government under whom he is serving at thetime of institution of such proceedings shall render allreasonable facilities to the parent organisation for theinstitution and conduct of such proceedings.Vii) The Government shall give leave salarycontribution at the termination of the contract periodfor the actual leave earned during the contract service,after deducting the actual Earned Leave availed duringthe contract service period. If the Earned Leave appliedfor in a year while on contract service for exceeds theleave that would accrue for the tenure period mentionedin the contract appointment, then for such excess days ofEarned Leave, the foreign body shall bear the liabilityby reimbursing the amount to Government, first bearingentire leave salary for the Earned Leave period by theGovernment.Viii) The employees shall be allowed tosurrender Earned Leave for a maximum of 15 days for eachyear of contract service, subject to the condition thathe has that many days of leave earned after deducting theEarned Leave availed during the contract service. ix) Regarding reimbursement of medicalexpenditure, it may be left to the option of the employeeon contract service to get his medical expenditurereimbursed either from Government or from theCorporation, subject to the stipulation that the optiononce exercised will be final for the entire contractservice. Sd/- For Director of Rural Development." https://hcservices.ecourts.gov.in/hcservices/ The above terms and conditions are rather self-speaking about thestatus of the petitioners that their services with the R.D. Departmentare only on 'contract basis'. 14. According to Mr.Sanjay Mohan, Ms.Vaigai, learnedcounsels; and Mr.V.K.Muthusamy, learned Senior Counsel, in view of thefact that the petitioners came to R.D. Department on deputation fromTWAD Board and that their request for regularisation in the R.D.Department was accepted and proper orders were passed by the Director,R.D. Department, with the consent of the TWAD Board, the respondentsare not justified in reversing their said decision. According to them,on the principle of 'Legitimate Expectation', the respondents ought have let them to continue in the R.D. Department along with otherEngineers. They also contended that the respondents are estopped fromrepatriating all these petitioners to their parent Department, viz.,TWAD Board, as they are entitled to permanent absorption in the R.D.Department. Inasmuch as we have already referred to the factualdetails in the earlier paragraphs, let us consider the issue involvedwith reference to various decisions of this Court and the SupremeCourt. 14(1). Learned Counsels for the petitioners/deputationistsrelied on a decision of the Apex Court reported in AIR 2003 SC page1713 (Chanchal Goyal Vs. State of Rajasthan) in support of theirargument on the principle 'legitimate expectation'. It is relevant extract paragraph Nos.16 to 18 in this regard," 16. The basic principles in this branchrelating to 'legitimate expectation' were enunciated byLord Diplock in Council of Civil Service Unions andOrs. v. Minister for the Civil Service (1985 AC 374(408-409) (Commonly known as CCSU case). It wasobserved in that case that for a legitimate expectationto arise, the decisions of the administrative authoritymust affect the person by depriving him of some benefitor advantage which either (i) he had in the past beenpermitted by the decision-maker to enjoy and which hecan legitimately expect to be permitted to continue todo until there has been communicated to him somerational grounds for withdrawing it on which he hasbeen given an opportunity to comment: or (ii) he hasreceived assurance from the decision-maker that theywill not be withdrawn without giving him first anopportunity of advancing reasons for contending thatthey should not be withdrawn. The procedural part ofit relates to a representation that a hearing or otherappropriate procedure will be afforded before thedecision is made. The substantive part of theprinciple is that if a representation is made that a https://hcservices.ecourts.gov.in/hcservices/ benefit of a substantive nature will be granted or ifthe person is already in receipt of the benefit that itwill be continued and not be substantially varied, thenthe same could be enforced. In the above case, LordFraser accepted that the civil servants had alegitimate expectation that they would be consultedbefore their trade union membership was withdrawnbecause prior consultation in the past was the standardpractice whenever conditions of service weresignificantly altered. Lord Diplock went a littlefurther when he said that they had a legitimateexpectation that they would continue to enjoy thebenefits of the trade union membership, the interest inregard to which was protectable. An expectation couldbe based on an express promise or representation or byestablished past action or settled conduct. Therepresentation must be clear and unambiguous. It couldbe a representation to the individual or generally toclass or persons. 17. The principle of a substantive legitimateexpectation, that is, expectation of favourabledecision of one kind or another, has been accepted aspart of the English Law in several cases. (De smith,Administrative Law, 5th Ed.) (Para 13.030). (See alsoWade, Administrative Laws, 7th Ed.) (pp.418-419).According to Wade, the doctrine of substantivelegitimate expectation has been "rejected" by the HighCourt of Australia in Attorney General for N.S.W. v.Quin (1990) 93 ALL E.R. 1 (But see Teon's case referredto later) and that the principle was also rejected inCanada in Reference Re Canada Assistance Plan (1991) 83DLR (4th 297, but favoured in Ireland: Canon v. Minsterfor the Marine 1991 (1) I.R. 82. The European Courtgoes further and permits the Court to applyproportionately and go into the balancing of legitimateexpectation and the Public Interest.18. Even so, it has been held under Englishlaw that the decision maker's freedom to change thepolicy in public interest, cannot be fettered by theapplication of the principle of substantive legitimateexpectation. ...."We find that what was observed in the above decision was, forlegitimate expectation to arise, the decisions of the administrativeauthority must affect the person by depriving him of some benefit advantage which either he had in the past been permitted by thedecision maker to enjoy and which he can legitimately expect to permitted to continue to do until there has been communication to him,the same rational grounds for withdrawing on which he has been given https://hcservices.ecourts.gov.in/hcservices/ opportunity to comment or he has been given an assurance that they willnot be withdrawing without giving him first an opportunity. Coming to the case on hand, insofar as the TWAD BoardEngineers/deputationists are concerned, they cannot claim legitimateexpectation or applicability of the above Supreme Court decision forthe reason that their appointment order itself was either 'on contractbasis' or 'deputation' for a specified period and they were wellinformed that their absorption was subject to framing of ad hoc rules.When they have no legal right to claim absorption, the principle legitimate expectation cannot be invoked by them; therefore, the abovecase law is not applicable to the facts and circumstances of the caseson hand. 14(2). Reliance is made on the decision reported in AIR 1998SC 2779 (National Buildings Construction Corporation vs. S.Raghunathanand others), wherein, it was held that the doctrine of 'legitimateexpectation' has been developed both in the context of reasonablenessand in the context of natural justice. In the above decision, Their Lordships of the Supreme Courthave specifically pointed out that the question whether the expectationand the claim are reasonable or legitimate is a question of fact each case. Not stopping therewith, it was also observed that suchquestion has to be determined not according to the claimants'perception but in larger public interest. Further, the point forconsideration therein was as to whether the deputationists wereentitled to foreign allowance on the original basic salary or on thesalary as revised on account of the recommendations of the IV PayCommission. On consideration, the Apex Court dismissed the plearelating to foreign allowance. In the case on hand, the deputationists, who were informed thatthey were taken on deputation basis or contract basis, were fully awarethat their rights are only with the TWAD Board and not in the R.D.Department and they were informed as early as on 02.07.1999 that theycannot be absorbed in the R.D. Department. Having not challenged thesaid order for more than 6 years, the TWAD Board Engineers now cannotbe permitted to raise a plea of legitimate expectation on the groundthat the deputation allowance was stopped to them. At best, they canonly claim deputation allowance for all these years and no other rightover the R.D. Department. Hence, the decision relied on is not helpfulto the petitioners.14(3). In Union of India vs. Hindustan Development Corporation(AIR 1994 SC page 988), Their Lordships of the Supreme Court, quotedpassage explaining the scope of 'legitimate expectation' fromHalsbury's Laws of England, which reads thus:-" 81. Legitimate expectations. A personmay have a legitimate expectation of being treatedin a certain way but an administrative authorityeven though he has no legal right in private law to https://hcservices.ecourts.gov.in/hcservices/ receive such treatment. The expectation may ariseeither from a representation or promise made by theauthority, including an implied representation, orfrom consistent past practice."After discussing the fact regarding expectation, it was observed," A pious hope even leading to a moralobligation cannot amount to a legitimate expectation.The legitimacy of an expectation can be inferred onlyif it is founded on the sanction of law or custom or anestablished procedure followed in regular and naturalsequence. Such expectation should be justifiablylegitimate and protectable. Every such legitimateexpectation does not by itself fructify into a rightand therefore it does not amount to a right in theconventional sense. " ......." It can be one of the grounds to considerbut the Court must lift the veil and see whether thedecision is violative of these principles warrantinginterference. It depends very much on the facts andthe recognised general principles of administrative lawapplicable to such facts and the concept of legitimateexpectation which is the latest recruit to a long listof concepts fashioned by the Courts for the review ofadministrative action, must be restricted to thegeneral legal limitations applicable and binding themanner of the future exercise of administrative powerin a particular case. The court should restrainthemselves and restrict such claims duly to the legallimitations. "Coming to the cases on hand, inasmuch as the TWAD Board Engineers not have legal right to claim absorption and when the Government andthe Managing Director of TWAD Board have taken a decision not entertain absorption, legitimate expectation cannot be invoked to thefacts of the present case. To invoke the principle of legitimateexpectation, there should be a legal right. Thus, the decision reliedon cannot be applied to the cases on hand. 14(4). The following conclusion in Rameshwar Prasad vs.Managing Director U.P. Rajkiya Nirman Nigam Limited (AIR 1999 SC 3443)was pressed into service," 17. In our view, it is true that whetherthe deputationists should be absorbed in service or notis a policy matter, but at the same time, once thepolicy is accepted and rules are framed for suchabsorption, before rejecting the application, theremust be justifiable reasons. Respondent No.1 cannotact arbitrarily by picking and choosing thedeputationists for absorption. The power ofabsorption, no doubt, is discretionary, but is coupled https://hcservices.ecourts.gov.in/hcservices/ with the duty not to act arbitrarily, or at whim orcaprice of any individual. ..."On going through the above referred decision, we find that it has beenclearly held therein that an employee, who is on deputation, has right to be absorbed in the service where he is working on deputation,however, in some cases, it may depend upon the statutory rules to thecontrary. If rules provide for absorption of an employee on deputationthen such an employee has a right to be considered for absorption accordance with those Rules. It was further held that whether thedeputationists should be absorbed in service or not is the policymatter, but, once the policy is accepted and rules are framed for suchabsorption, there must be justifiable reasons for rejecting application. As far as the present cases are concerned, theService Rules of R.D. Department do not provide for absorption employees, who are on deputation and, in fact, under the method appointment, there are only two modes, ie., one by direct recruitmentand the other by transfer of service of certain specific categories.Therefore, this decision also is not applicable to the cases on hand.14(5). Reliance was also placed on the decision reported AIR 2003 SC 43 (P.Tulsi Das vs. Govt. of A.P.), wherein, it wasobserved that, in the absence of Rules under Article 309 of theConstitution in respect of a particular area, aspect or subject, it waspermissible for the State to make provisions in exercise of itsexecutive powers under Article 162 which is co-extensive with itslegislative powers laying conditions of service and rights accrued or acquired by a citizen would be as much rights acquired under law andprotected to that extent. The facts involved in the above case law wereregarding the validity of Andhra Pradesh Educational Service UntrainedTeachers (Regulation of Services and Fixation of Pay) Act, 1991, andthe Supreme Court had upheld the right of those who were appointed SGBT teachers to be entitled to the pay scales of School Assistants forthe period prior to the said Act. The said decision is in no wayapplicable to the facts of TWAD Board Engineers since the impugnedrules have retrospective effect and there is no right accrued on thedeputationists to claim absorption. 14(6). Next decision, that was pressed into service on theconcept of deputation, is the one reported in AIR 1999 SC 1948 = 1999(4) SCC 659 (Umapati Choudhary vs. State of Bihar). Before commentingupon the applicability of this decision to the cases before us, it relevant to refer to the contents at para No.9 of the decision," 9. Deputation can be aptly described as anassignment of an employee (commonly referred to as thedeputationists) of one department or cadre or even anorganisation (commonly referred to as the parentdepartment or lending authority) to another departmentor cadre or organisation (commonly referred to as theborrowing authority). The necessity for sending on https://hcservices.ecourts.gov.in/hcservices/ deputation arises in public interest to meet theexigencies of public service. The concept ofdeputation is consensual and involves a voluntarydecision of the employer to lend the services of hisemployee and a corresponding acceptance of suchservices by the borrowing employer. It also involvesthe consent of the employee to go on deputation ornot. In the case at hand, all the three conditionswere fulfilled."In the above case law referred, the University, which was the parentdepartment or lending department, the Bihar Sanskrit Education Board,ie., the borrowing authority and Umapati Choudhary, the deputationist,had all given their consent for deputation of the appellant and for hispermanent absorption in the establishment of the borrowing Department.Therefore, this decision is in no way supporting the case of thepetitioners as in their cases, neither the lending authority nor theborrowing authority has given any consent/willingness for permanentabsorption of the deputationists. 14(7). In the decision reported in AIR 1979 SC 621 (MotilalPadampat Sugar Mill vs. State of Uttar Pradesh), the Doctrine Promissory Estoppel has been discussed and it was held that the trueprinciple of Promissory Estoppel seems to be that where one party hasby his words or conduct made to the other a clear and unequivocalpromise which is intended to create legal relations or effect a legalrelationship to arise in the future, knowing or intending that it wouldbe acted upon by the other party to whom the promise is made and it in fact so acted upon by the other party, the promise would be bindingon the party making it and he would not be entitled to go back upon it,if it would be inequitable to allow him to do so having regard to thedealings which have taken place between the parties and this would so irrespective of whether there is any pre-existing relationshipbetween the parties or not.In the present cases, the TWAD Board Engineers were nevergiven any promise that they would be absorbed after 3 years of thedeputation nor had they acted upon any such promise. In fact, even 17.3.1999, they were issued with an absorption order by the Director R.D. subject to framing of the ad hoc rules and this order too wascancelled within 4 months. Hence, the principle of promissory estoppelcannot be applied to. Neither the Government nor the M.D., TWAD Board,had given any assurance that the petitioners would be absorbed in theR.D. Department. The TWAD Board Engineers have not suffered anyservice rights in their parent Department due to any such promise madeand, therefore, the principle laid down in the above decision is notapplicable to the facts of the present cases. 14(8). Coming to the decision relied on by the petitionersreported in 1999 (8) SCC 99 (Nagpur Improvement Trust vs. Yadao RaoJagannath Kumbare and others), it is seen that the point considered https://hcservices.ecourts.gov.in/hcservices/ therein was, in the absence of any statutory rule governing serviceconditions of the employees, executive instructions or decisions takenadministratively would operate in the field and appointments promotions can be made in accordance with such executive instructions.The above said decision is also not applicable to the cases hand for the simple reason that the Service Rules have been framed G.O. Ms. No.15, R.D. Department, dated 25.01.2000, with effect from1997 and as per the Service Rules, deputationists cannot claimabsorption. Executive instructions issued in G.O.102, R.D. Departmentdated 25.5.1998, have become null and void after framing of the ad hocrules. 14(9). Insofar as the decision in Ramasanjeevayya vs. State Mysore (1969 (2) LLJ 169) is concerned, it was a case, where thepetitioner therein relinquished his promotion in the Secretariat andopted to remain in the department of Civil Supplies foregoing hispromotion. The Division Bench held that the petitioner was permanentlytransferred to Civil Supplies Department and therefore, the Governmentcould not repatriate him. The facts of the above case are completely different from thatof the cases on hand as the deputationists here had not relinquishedany promotion in their parent department. But, in fact, they werejuniors in TWAD Board, who were promoted and posted in the R.D.Department. Now, the seniors to them in TWAD Board have givenwillingness to be posted in the R.D. Department to gain the samepromotion. Due to these administrative difficulties, the M.D., TWADBoard, had expressed that none of the TWAD Board Engineers be absorbedin the R.D. Department. Hence, this decision also cannot be applied the case of the petitioners. 15. In addition to the above case laws, Mr.V.K.Muthusamy,learned Senior Counsel, very much relied on a Division Bench decisionof the Calcutta High Court reported in 1985 (1) SLR 257 (West BengalIndustrial Development Corporation vs. West Bengal IndustrialDevelopment Corporation Employees Union), wherein the Bench had dealtwith a case where one Anil Chandra Chattopadhyay was posted as SpecialOfficer, Petro Chemical Projects, on deputation from Home (P&AR)Department, Government of West Bengal. He was further posted as ChiefAdministrative Officer in addition to his duties as Special Officer,Petro Chemicals. We find that, in the above referred case, the borrowingdepartment, the lending Department, the deputationists and the ChiefMinister of the State had all given consent for absorption of the saidAnil Chandra. Coming to the present cases, neither the M.D., TWADBoard, agreed for absorption as on 27.12.2004 nor the Government / R.D.Department agreed therefor and the service rules also do not permitabsorption of TWAD Board Engineers in the R.D. Department. In suchcircumstances, the case law cited is not useful to the petitioners. For the same reasons, another Division Bench decision, viz., 1995 https://hcservices.ecourts.gov.in/hcservices/ (5) SLR 426 (Director of Administrative Training v. S.C. Misra),relied on by Mr.V.K.Muthusamy, learned Senior Counsel, cannot be madeapplicable to the cases on hand. 16. Now, we shall consider various decisions and submissionsmade by Mr.C.Selvaraju and Mr.R.Thiyagrajan, learned Senior Counselsand Mr.R.Viduthalai, learned Advocate General.16-A. In the decision reported in 2001 (10) SCC 520 (Union India vs. S.N.Panikar), the facts show that the appellant was the Unionof India and the appeal was filed as against the order of the CentralAdministrative Tribunal dated 24.04.1992 passed in O.A. No.1001 1991. By the impugned order, the Tribunal directed the UnionGovernment to absorb the respondent in the post of Deputy Director(Development) with effect from the date when the last period of hisdeputation formally ended, ie., with effect from 01.01.1990. It further seen that the post of Deputy Director could be filled up onlyby direct recruitment under the relevant Recruitment Rules framed underthe Proviso to Article 309 of the Constitution of India. Rule-6confers powers of relaxation on the Central Government and suchrelaxation has to be given for reasons recorded in writing and consultation with the Union Public Service Commission. The respondent,who was serving in the Department, was sent on deputation after dueconsultation with UPSC. But, after the period of deputation was over,when the Department requested UPSC for further continuance of therespondent on deputation, UPSC refused the request of the UnionGovernment and informed the Union Government that UPSC has not agreedto the extension of period of deputation in the post of DeputyDirector. The respondent thereafter approached the Tribunal which cameto the conclusion that the deputation itself having been made by theUnion Government in consultation with the UPSC in relaxation of theprovisions of the Recruitment Rules providing for direct recruitment,the applicant must be held to have a right to hold the post accordingto the terms and conditions of appointment and he was not an ad hocappointee and the respondents were not right in terming his appointmentas ad hoc. Disagreeing with the said conclusion, the Hon'ble SupremeCourt has observed as follows:- " ...... This conclusion ofthe Tribunal is contrary to the service jurisprudenceand to the relevant rules under which the respondentwas sent on deputation to the post of Deputy Director(Development). The further conclusion of the Tribunalthat regardless of whether the formal order states itor not the decision to fill up the post by transfer ondeputation should be deemed to be a decision taken inrelaxation of the Recruitment Rules as provided inRule 6, is also erroneous. The power of relaxationwas exercised by the Union Government in consultation https://hcservices.ecourts.gov.in/hcservices/ with UPSC for a limited purpose, namely, to fill upthe post by taking somebody on deputation whichotherwise required to be filled up only by directrecruitment. In that view of the matter, adeputationists cannot claim either a right to the postin question nor can he claim absorption on permanentbasis to the post in question. ...." In the above decision, the Supreme Court had categorically held thatwhen the statutory rule does not provide absorption as one of themethods of appointment, there can be no right for the deputationists claim for absorption in the said post. The facts of the TWAD BoardEngineers are identical and, therefore, as per the principle laid downin the Supreme Court decision, all the writ petitions filed to claimabsorption as a right are liable to be dismissed. 16-B. In U.P. Land Dev. Corpn. v. Amar Singh (2003 (5) SCC388, the Hon'ble Supreme Court has held that when the work of thescheme had come to an end, the respondents were not entitled to claimregularisation of their services. 16-C. Heavy reliance was placed on the Division Benchdecision of this Court in Writ Appeal No.2682 of 2003 etc., dated23.12.2003. The writ petitioners/appellants approached this Court issue a writ of mandamus, directing the respondents to consider andabsorb them in the Oil and Natural Gas Corporation Limited. They weresent on deputation with respondents-3 to 5. As per G.O. Ms. No.741,dated 24.06.1978, the deputation would be for a period of three yearsand in special circumstances, it would be for four years. The questionbefore the learned single Judge as well as the Division Bench was as whether the appellants can claim as a matter of right to be in foreigndepartment and to be absorbed or are they be repatriated to theirparent department. After considering the rival submissions and thedecisions of the Apex Court, the Division Bench was of the view thatrespondents-1 and 2 made it clear that the appellants belonged to theirservice and they were sent only on deputation to respondents-3 to 5 andthe said position is also not disputed. The Bench further observedthat when the parent Department, viz., respondents-1 and 2, wanted recall or repatriate them, the same cannot be questioned or stalled the appellants. It further observed that repatriation of its employeesby the parent department is a rule and allowing them to continue in theforeign department is only an exception. After finding that theappellants cannot challenge the action of respondents-1 and 2 repatriating the appellants, the Division Bench dismissed the appeal.We are in agreement with the view expressed by the Division Bench. 16-D. In State of Punjab v. Jagdip Singh (AIR 1964 SC 521),Their Lordships have observed that, where a Government Servant has right to a post or to a particular status, though an authority under https://hcservices.ecourts.gov.in/hcservices/ the Government acting beyond its competence had purported to give thatperson a status which it was not entitled to give, one will not in lawbe deemed to have been validly appointed to the post or given theparticular status; that, no doubt, the Government has used theexpression 'deconfirming' in its notification which may be susceptibleof the meaning that it purported to undo an act which was thereforevalid; that the expression, however, must be interpreted in the lightof actual facts which led up to the notification; that those factsclearly show that the so-called confirmation by the Financialcommissioner of Pepsu was no confirmation at all and was thus invalid;and that in view of this, the notification of October 31, 1957, couldbe interpreted to mean that the Government did not accept the validityof the confirmation of the respondents and other persons who wereconfirmed as Tahsildars by the Financial commissioner, Pepsu. Applyingthe principle laid down in the above decision, it is clear that right or claim can be made by the deputationists based on the orderdated 17.3.1999 which was passed without jurisdiction. 16-E. In the decision reported in 1976 (4) SCC 543(G.Muniyappa Naidu v. State of Karnataka), after finding that the Cadreand Recruitment Regulations recognised only two modes of recruitment the post of Senior Health Inspectors, viz., promotion from the cadre Junior Health Inspectors and deputation from the State Directorate Health Services and one half of the cadre was to be drawn from each these two sources, it was observed that no other mode of recruitmentcould be resorted to by the Corporation under the Cadre and RecruitmentRegulations. It was concluded that it is difficult to see how in theface of the said provision, which has admittedly statutory effect, theposts of Senior Health Inspectors could be filled in by absorption deputationist Senior Health Inspectors from the Karnataka State CivilService. Following the principles laid down in the above decision, the claimfor absorption has to be rejected inasmuch as the ad hoc rules do notpermit the deputationists to be absorbed,.16-F. In Ratilal B.Soni v. State of Gujarat (1990 (Supp) SCC243), the Supreme Court has held that the appellants being deputation, they could be reverted to their parent cadre at any timeand they do not get any right to be absorbed on the deputation post.After holding so and finding no infirmity in the Judgment of the HighCourt, the Apex Court dismissed the appeal.In the above decision, the Supreme Court upheld the decisionof the Gujarat High Court which had held that the deputationists had legal right to be absorbed in State Service unless the option accepted by the Government. The principles laid down in the abovedecision are squarely applicable to the facts of the present casessince the option of the TWAD Board Engineers was neither accepted the M.D., TWAD Board, nor by the Secretary to Government, R.D.Department. Hence, as per the above Supreme Court decision, the TWAD https://hcservices.ecourts.gov.in/hcservices/ Board Engineers have no right to claim absorption in the R.D.Department. 16-G. In the decision reported in 1996 (2) SCC 282(Balakrishna Pandey vs. State of Bihar and others), the Apex Court hasheld as follows:-" 5. It is settled law that an employee ontemporary promotion would continue to hold the lien inhis substantive post until it is duly terminated. Hecannot hold two substantive posts at the same time.Once it is concluded that the appellant is adeputationists working in the Directorate of SEP, hisname was rightly not shown in the seniority list ofthat Department. Therefore, he continued to hold hislien and seniority as Junior Statistical Supervisor inthe parent Department. On reversion, he came back tohis post as a Junior Statistical Supervisor and in hisown right he was promoted as SSA. Since the fifthrespondent happened to be a permanent incumbent in theDirectorate of SEP, he was promoted as SSA. Whenfurther vacancy in the higher ladder, viz., SRA, hadfallen vacant, he was considered and promoted in thatvacancy. Under those circumstances, the High Court iswell justified in refusing to interfere with thematter and we do not find any justification warrantinginterference. " In the above decision, the Supreme Court found that the appellanttherein was only a deputationist and cannot claim right to promotion the Transport Department and can have right only in the parentDepartment. Even though the appellant continued to be on deputation view of the interim directions of the Court, the Supreme Court advertedto that he continued to hold lien in his parent Department. In the present case also, though the TWAD Board Engineers, an interim order, continued in the R.D. Department since 2004, theycontinued to hold their lien with their parent department which is TWADBoard, hence, cannot claim absorption as a right. 16-H. Coming to the decision of the Apex Court in State Punjab and others vs. Inder Singh and Others (1997 (8) SCC page 372),it is relevant to refer to the conclusion with regard to the concept deputation in para No.18 of the said Judgment," 18. The concept of 'deputation' is wellunderstood in service law and has a recognisedmeaning. 'Deputation' has a different connotation inservice law and the dictionary meaning of the word'deputation' is of no help. In simple words'deputation' means service outside the cadre oroutside the parent Department. Deputation is deputing https://hcservices.ecourts.gov.in/hcservices/ or transferring an employee to a post outside hiscadre, that is to say, to another department on atemporary basis. After the expiry period ofdeputation the employee has to come back to his parentdepartment to occupy the same position unless in themeanwhile he has earned promotion in his parentdepartment as per the Recruitment Rules. ....."In the above decision, the Supreme Court had not permitted the claim absorption where the respondents therein continued in the posts fornearly 20 years and in fact, directed to revert those who havecompleted 20 years of qualifying service to their parent department.The principle laid down in the above decision is applicable to thefacts of the present case. The TWAD Board Engineers were sent deputation to R.D. Department from 1997 for 3 years and were revertedback in 2004. They were continuing on deputation in view of theinterim order of this Court and, as per the above Supreme Courtdecision, they cannot claim absorption when the Rules do not permittheir absorption in the R.D. Department. 16-I. In the decision reported in 2000 (5) SCC 362 (KunalNanda vs. Union of India and another), the following conclusion relevant," 6. On the legal submissions also made thereare no merits whatsoever. It is well settled thatunless the claim of the deputationists for a permanentabsorption in the department where he works ondeputation is based upon any statutory rule,regulation or order having the force of law, adeputationists cannot assert and succeed in any suchclaim for absorption. The basic principle underlyingdeputation itself is that the person concerned canalways and at any time be repatriated to his parentdepartment to serve in his substantive positiontherein at the instance of either of the departmentsand there is no vested right in such a person tocontinue for long on deputation or get absorbed in thedepartment to which he had gone on deputation. ...."In the above decision, the principle relating to the position deputationists was settled by the Supreme Court by holding that thereis no vested right for a deputationist to claim absorption in theborrowing department. In view of the principle laid down in the aboveSupreme Court decision, there cannot be a mandamus compelling theGovernment to absorb the deputationists in the R.D. Department whenthey have no vested right to claim absorption. 16-J. In the decision reported in 2001 (10) SCC 655 (MaheshChand Bhargawa and others vs. Union of India and others), the casebefore the Supreme Court was, the appellants/deputationists claimedabsorption in the Commercial Department while retaining their lien with https://hcservices.ecourts.gov.in/hcservices/ the Loco Shed and drawing wages therefrom. The Supreme Court held thatthe appellants did not acquire any right of absorption in theCommercial Department.The principle laid down in the above Supreme Court decision applicable to the facts of the present case as the TWAD Board Engineersretained their lien in TWAD Board and are only on deputation terms the R.D. Department. Hence, the writ petitioners did not acquire anyright to be absorbed in the R.D. Department. 16-K. In Mahesh Kumar K.Parmar & Others vs. S.I.G. Of Policeand others (2002 (9) SCC 485), the Apex Court has held that no mandamuscan be issued to the State Government requiring them to permanentlyabsorb the deputationists. Hence, the position is made very clear the above decision regarding the plea for issuance of a mandamus favour of the petitioners. 16-L. In the decision reported in 2006 (4) SCC page (Secretary, State of Karnataka and others vs. Umadevi and others),Constitution Bench of the Supreme Court has held that the High Courtsacting under Article 226 should not, ordinarily, issue directions forabsorption, regularisation or permanent continuance unless therecruitment itself was made regularly and in terms of theconstitutional scheme; and that merely because an employee hadcontinued under cover of an order of the court, under "litigiousemployment", he would not be entitled to any right to be absorbed made permanent in the service. As per the Constitution Bench Judgment of the Supreme Court,this Court may not issue a mandamus, directing the Government to absorbthe TWAD Board Engineers who were not appointed through the TNPSC forthe post of Assistant Engineer. The respondents, who were recruitedthrough the TNPSC as Assistant Engineers, should not be deprived their promotions and other service rights by entertaining the relief TWAD Board Engineers, who were not appointed in accordance with theRules to hold the post of Assistant Engineer in the R.D. Department. 17. Legitimate Expectation is an aspect of promissoryestoppel. In the absence of an unequivocal promise by the competentauthority, neither the doctrine of promissory estoppel nor legitimateexpectation can be invoked. (vide, – 1998 (7) SCC 66 (cited supra);J.P. Bansal vs. State of Rajasthan – 2003 (5) SCC 134 ; Union of Indiavs. International Trading Co. - 2003 (5) SCC 437 ; 2006 (5) SCC 702Kuldeep Singh vs. NCT Delhi). In Dr. Rajinder Singh v. State of Punjab (2001 (5) SCC 482)and National Fertilisers vs. Somvir Singh (2006 (5) SCC 493), the ApexCourt has held that mere proposal of absorption cannot be construed an order of absorption.In the decision reported in 2006 (6) SCC 430 (R.S.Garg State of U.P.), the Supreme Court has held that members of thestatutory corporation and those in government service form different https://hcservices.ecourts.gov.in/hcservices/ classes of employees. This is primarily because of the mode selection process adopted in each case. Even if they are broughttogether to one department temporarily on deputation, they cannot treated as a homogenous class as they trace their deputation independent sources. The AEs of TWAD Board are not appointed by TNPSC.The other Departments do not include statutory corporations like theTWAD Board. 18. Learned Advocate General, in support of his contentionthat, in the absence of specific Rules, deputationists from TWAD Boardcannot compel anyone including the Director, R.D. Department Government to regularise them in the R.D. Department itself, very muchrelied on the following proposition in the decision reported in 2001(5) SCC 482 (cited supra)," 7. The settled position of law is that nogovernment order, notification or circular can be asubstitute of the statutory rules framed with theauthority of law. Following any other course would bedisastrous inasmuch as it would deprive the security oftenure and right of equality conferred upon the civilservants under the constitutional scheme. It would benegating the so far accepted service jurisprudence. Weare of the firm view that the High Court was notjustified in observing that even without the amendmentof the Rules, Class II of the service can be treated asClass I only by way of notification. Following such acourse in effect amounts to amending the rules by agovernment order and ignoring the mandate of Article309 of the Constitution. "In the above decision, the Supreme Court put in clear terms that merecommunication of the recommending authority to consider the case of thedeputationists for absorption and for passing appropriate orders competent authority cannot give rise to legitimate expectation andpromissory estoppel. 19. The above proposition has been considered and approved a subsequent decision reported in Union of India v. V.Ramakrishnan(2005 (8) SCC 394). The following conclusion of Their Lordships paragraph No.32 is relevant," 32. Ordinarily, a deputationists hasno legal right to continue in the post. Adeputationists indisputably has no right to beabsorbed in the post to which he is deputed.However, there is no bar thereto as well. It maybe true that when deputation does not result inabsorption in the service to which an officer isdeputed, no recruitment in its true import andsignificance takes place as he is continued to bea member of the parent service. ..." https://hcservices.ecourts.gov.in/hcservices/ In G. Nagendra vs. State of Karnataka (1998 (9) SCC 439), theSupreme Court has held that rules framed under Article 309 of theConstitution can be given retrospective effect. 20. In the light of the Government Orders, Board'sProceedings, terms & conditions of deputation and the legal principlesenunciated by the Supreme Court, let us summarise our conclusions withregard to the position of the writ petitioners/TWAD Board Engineers,their right to claim absorption and whether mandamus compelling theGovernment to absorb the TWAD Board Engineers in the R.D. Departmentcan be issued,First of all, the petitioners/deputationists have no legalright vested in them so as to invoke the principles of 'legitimateexpectation', 'promissory estoppel', etc. and claim absorption as matter of right. Though the petitioners struggle to substantiate theircase by stating that initially there was a proposal for their permanentabsorption in the R.D. Department, such position would have definitelystood as a strong factor to take a decision in their favour had theimpugned Rule fell in such lines and brought them under its scope appointment. Apparently, there was a stipulation that the absorptionwould be subject to the framing of ad hoc rules, whereby, it was madeclear that their absorption would depend on the provisions inscribed the Rules to be framed. In other words, the provisional absorption wasconditional/contingent and not absolute. Surprisingly, the petitionersdid not question their absorption subject to the framing of ad hocrules. Similarly, when they were informed as early as on 02.07.1999that they cannot at all be absorbed in the R.D. Department, they didnot choose to challenge said order. That being so, at this point time, when Ad hoc rules have been framed, which do not provide forabsorption and make the orders issued on 25.05.1998 as null and void,they cannot at all, in the light of the settled legal position, claimfor the relief asked for by them. Further, the petitioners themselvesknow well that services on contract basis in accordance with Rule-11 the State and Subordinate Service Rules can be terminated by theGovernment as and when the need for such services ceases. Thepetitioners cannot take advantage of the order passed withoutjurisdiction by the Director, R.D. Department, inasmuch as, admittedly,the Government is the only authority to decide in the matter relatingto permanent absorption. It is the well known principle that if executive instruction is contrary to the statutory/service rules, therules will prevail and not the executive instructions. Further, TWADBoard is an undertaking of the Government of Tamil Nadu andappointments made by it are outside the purview of TNPSC, whereas, thepost of A.E. in the R.D. Department comes within the purview of theTNPSC, that being so, the deputationists, who were not recruitedthrough TNPSC and who rendered services in the R.D. Department 'oncontract basis' and retain their lien with TWAD Board, cannot claim forabsorption. As adverted to already, the concept of deputation https://hcservices.ecourts.gov.in/hcservices/ consensual and involves a voluntary decision of the employer to lendthe services of his employee and a corresponding acceptance of suchservices by the borrowing employer. It also involves the consent the employee to go on deputation or not. Here, the chain of consent broken and not complete amongst the TWAD Board, R.D.Department/Government and petitioners, in that, the TWAD Board declinedto give consent; R.D. Department withdrew its earlier proposal forabsorption; and the ad hoc rules expelled the petitioners from the zoneof consideration for absorption/appointment; hence, with the mereaspirations of the deputationists, nothing can be done, for, legitimateexpectation can be justified if its edifice is built with the sanctionof law. Another aspect of the matter is, by not getting permanentabsorption in the R.D. Department, they cannot complain prejudicebecause the doors of their parent department are not closed for them view of the continuance of their lien therewith, with all applicableallowances. Thus, in the absence of any statutory rule, regulation order, having the force of law, to trace the right and claim of thedeputationists for permanent absorption in the R.D. Department, we cannot close our eyes to the propounded principles established by the ApexCourt, which cover aptly the issue involved, and issue mandamuscompelling the Government to absorb the deputationists. 21. Attacking the validity of the impugned Rules framed G.O. Ms. No.15, R.D. Department, dated 25.01.2000, Mr.A.L.Somayaji,learned Senior Counsel, put forth the following contentions,(a) The ad hoc rules issued for the post of A.E. excluding thedeputationists from TWAD Board as one of the methods of appointment arbitrary, illegal and violative of Articles 14 and 16 of theConstitution of India.(b) The impugned rules operate viciously against thedeputationists who were appointed long before the issue of rules;hence, to the extent of non-inclusion, the Rule is bad in law.(c) The impugned rules, giving retrospective effect from26.09.1997, thereby affecting the acquired right to continue in theR.D. Department, are arbitrary and illegal. (d) denial of absorption in the R.D. Department under the guiseof ad hoc Rules affect their legitimate expectation.(e) A section of employees, viz., Union Overseers fromHighways Department were given the relief of absorption in G.O. Ms.No.102 and denial of the same relief to the deputationists from TWADBoard is illegal and offends Articles 14 and 16 of the Constitution India. In support of the above contentions, Mr.A.L.Somayaji relied the following decisions,(a) 1975 (4) SCC 754 (Superintendent and Remembrancer of Legal Affairs vs. G.K.Navalakha) (b) 1969 (II) LLJ 169 (cited supra)(c) 1996 Law Weekly Page 78 (Commissioner of Civil https://hcservices.ecourts.gov.in/hcservices/ Supplies, Madras, The v. P.Annamalai)(d) AIR 1987 SC 415 (T.R.Kapur v. State of Haryana)It is not in dispute that the petitioner in W.P. No.33503 of 2006 andothers are deputationists from TWAD Board and they are working in theR.D. Department. It is also true that initially an order of absorptionwas made by the R.D. Department. Subsequently, in view of the standtaken by the M.D., TWAD Board, the order absorbing them was cancelled.Thereafter, by way of G.O. Ms. No.15, ad hoc rules were framed. In theRules, the deputationists were not made eligible for appointment in theR.D. Department. Para No.3 of the Rules deals with the method of appointmentand it provides that the post of A.E. can be filled by (a) directrecruitment; (b) recruitment by transfer; and (c) the ratio forappointment to the post by Direct Recruitment and Recruitment Transfer shall be 1:1. The above provision makes it clear that theRules do not take in the deputationists under its method appointment. According to the petitioner, non-inclusion of thedeputationists in the method of appointment though they have beenworking for the development of the Engineering Wing in the R.D.Department violates Article-14 of the Constitution. Service Ruleshave overriding effect on G.O. Ms. No.102, R.D. Department, dated25.05.1998, which is only an executive Order. Further, it is broughtto our notice that the post of Assistant Engineer with same pay andallowance is readily available to the petitioner and others in the TWADBoard ie., their parent organisation. It is also brought to our noticethat the direct recruitment of A.E. in R.D. Department was commenced early as in September 1997 itself when the petitioner and others wereworking on contract basis. They do not have any service rights as perRule 11 of the State and Subordinate Service Rules. Admittedly, thepetitioner and others are not Government employees under the provisionscontained in Fundamental Rules. It is the specific stand of theGovernment as well as the TWAD Board that the petitioner and otherswere employed 'on contract basis' in accordance with the Rule-11 of theState and Subordinate Service Rules and can be terminated by theGovernment when the need for his services ceases. As observed by theSupreme Court in Kunal Nanda vs. Union of India (AIR 2000 SC 2076), thepetitioner and others being deputationists have no legal right to getabsorbed in the borrowing Department. Their absorption in the R.D.Department is not possible as per Service Rules. As rightly pointedout, if the plea of the petitioner and others is conceded, it willamount to inflicting gross injustice to the unemployed engineeringgraduates and who are waiting for recruitment through TNPSC. As statedearlier, the post of Assistant Engineer with the same Pay andAllowances is readily available to the petitioner and others in theirparent Organisation. https://hcservices.ecourts.gov.in/hcservices/ Though learned Senior Counsel appearing for the petitionerquestioned the validity of the ad hoc rules as tainted witharbitrariness and violative of Articles 14 and 16 of the Constitution;in view of the various factual aspects peculiar to the cases on hand,which we have adverted to in the course of the Judgment, and thesettled legal position that the Courts should not interfere with theexecutive/legislative decisions except to examine the action accordance with law and to determine as to whether the legislature executive has acted within the power and functions assigned under theconstitution; various points raised by him in this regard have to rejected in toto. To the executive decision for absorption subject framing of ad hoc rules, the petitioner and others subjectedthemselves, knowing well that they are bound by the outcome of the saidrules; hence, they cannot allege unconstitutionality or arbitrarinesswhen the Rules excluded them from the purview of consideration forappointment. The impugned Rules passed; sifting the non-governmentalemployees, whose parent department is an autonomous Board, after takinginto consideration various aspects including the initial reluctance the part of the Board in sparing their employees with the R.D.Department on the ground of dearth of hands and apprehension setbacks in their activities; cannot at all be said to be offendingArticles 14 and 16 of the Constitution. After all, whenever theirservices are required by the parent Department, they have to leave theborrowing department where they are posted on deputation/contract basisonly on public interest. Inasmuch as the Constitution clearlycircumscribes the areas of legislative power and judicial power, nonecan encroach or dominate upon the field occupied by the other. repeatedly pointed out, this Court has its own self-imposed limits andany deviation would amount to transgressing into the domain of theexecutive. 22. Insofar as the contention relating to discrimination anddifferent treatment for A.Es. from TWAD Board, it is true that some the personnel working in the Highways Department as deputationists the R.D. Department were regularised. It is not in dispute thatHighways Department is a wing of the Government and appointments arebeing made as per their Service Rules by following the procedure. other words, all appointments are being made by the TNPSC by callingfor a list of eligible persons from the Employment Exchange.Admittedly, such procedure is not in vogue in the appointment of AEs the TWAD Board. In such circumstances, merely because some of theEngineers in the Highways Department were regularised, it cannot cited as a precedent even in the case of TWAD Board Engineers. In thedecision reported in 1990 (2) SCC 707 (Mallikarjuna Rao and others vs.State of Andhra Pradesh and others), the Hon'ble Supreme Court has heldas follows:-" 11. ... It is neither legal nor proper forthe High Courts or the Administrative Tribunals toissue directions or advisory sermons to the executive https://hcservices.ecourts.gov.in/hcservices/ in respect of the sphere which is exclusively withinthe domain of the executive under theConstitution. .... 12. ....... 13. The Special Rules have been framedunder Article 309 of the Constitution of India. Thepower under Article 309 of the Constitution of India toframe rules is the legislative power. This power underthe Constitution has to be exercised by the Presidentor the Governor of a State as the case may be. TheHigh Courts or the Administrative Tribunals cannotissue a mandate to the State Government to legislateunder Article 309 of the Constitution of India. Thecourts cannot usurp the functions assigned to theexecutive under the Constitution and cannot evenindirectly require the executive to exercise its rulemaking power in any manner. The courts cannot assumeto itself a supervisory role over the rule making powerof the executive under Article 309 of the Constitutionof India. "In the decision reported in 2003 (2) SCC 632 (P.U.Joshi vs. AccountantGeneral), the following conclusions are relevant," 10. ... Questions relating to theconstitution, pattern, nomenclature of posts, cadres,categories, their creation/abolition, prescription ofqualifications and other conditions of serviceincluding avenues of promotions and criteria to befulfilled for such promotions pertain to the field ofpolicy is within the exclusive discretion andjurisdiction of the State, subject, of course, to thelimitations or restrictions envisaged in theConstitution of India and it is not for the statutorytribunals, at any rate, to direct the Government tohave a particular method of recruitment oreligibility criteria or avenues of promotion or imposeitself by substituting its views for that of theState. Similarly, it is well open and within thecompetency of the State to change the rules relatingto a service and alter or amend and vary byaddition/subtraction the qualifications, eligibilitycriteria and other conditions of service includingavenues of promotion, from time to time, as theadministrative exigencies may need or necessitate.Likewise, the State by appropriate rules is entitledto amalgamate departments or bifurcate departmentsinto more and constitute different categories of postsor cadres by undertaking further classification,bifurcation or amalgamation as well as reconstituteand restructure the pattern and cadres/categories of https://hcservices.ecourts.gov.in/hcservices/ service, as may be required from time to time byabolishing the existing cadres/posts and creating newcadres/posts. There is no right in any employee ofthe State to claim that rules governing conditions ofhis service should be forever the same as the one whenhe entered service for all purposes and except forensuring or safeguarding rights or benefits alreadyearned, acquired or accrued at a particular point oftime, a government servant has no right to challengethe authority of the State to amend, alter and bringinto force new rules relating to even an existingservice. "The above decisions of the Supreme Court make it clear that the prayerof the TWAD Board Engineers to amend the Rules in such a manner as include the deputationists as one of the methods of appointment cannotbe granted by this Court and no Court can interfere with the exclusivediscretionary jurisdiction of the State. Such being the position andin view of the fact that the personnel from the Highways Departmentstand on a different footing, the TWAD Board Engineers cannot pleaddiscrimination. 23. Though an argument was projected that the Rule cannot made applicable retrospectively, it is settled law that while framingthe Rules, the Government is free to fix the relevant date from whichthe same shall come into force. Though it was argued that the ad hocrules take away the vested rights of the Assistant Engineers, inasmuchas there is no specific Rule enabling the R.D. Department to absorb theAssistant Engineers from the TWAD Board, and even in the ad hoc Rulesframed, there is no provision for absorption, the contrary argument the learned counsel appearing for the petitioners is liable to rejected. Though absorption was made by the R.D. Department withinshort period, in view of the stand taken by the Parent Department,viz., TWAD Board, that their services are needed by the TWAD Board, theorder absorbing them in the R.D. Department was withdrawn by theDirector. As pointed out earlier, inasmuch as the petitioners have right to ask for absorption and in view of the fact that very same postwith same pay and allowances are available in their parent Departmentviz., TWAD Board, the challenge relating to validity of the Rules fornot providing a clause for appointing them in the R.D. Departmentcannot be countenanced at all. Further, as held by the Supreme Courtreported in 1998 (9) SCC 439 (cited supra), it is not correct to saythat the rules framed under Article 309 cannot be given retrospectiveeffect. Exclusion of the deputationists in view of their distinctidentity from the regular Government servants and retrospectiveoperation of the impugned rules framed under Article 309 of theConstitution cannot be assailed as violative of Articles 14 and 16 the Constitution. While considering the question as to whetherretrospective operation prescribed by the rules amounted contravention or infringement of the individuals' rights, the Court has https://hcservices.ecourts.gov.in/hcservices/ to take into account all the relevant and surrounding circumstances andin that connection, test of the length of time covered by theretrospective operation, by itself, cannot necessarily be a decisivetest. To find out whether the impugned rule with retrospectiveoperation is reasonable and not violative of any constitutionalprovisions, it becomes relevant to enquire as to how the retrospectiveeffect operates. First of all, the impugned Rules take in its spherethe individuals, who are exclusively government servants enteredservice through the TNPSC and governed by the relevant service rulesapplicable to the government servants. Secondly, the individualsrendering their services in a foreign department on contract basiscannot compete with the insiders of that Department. Thirdly, theparent Department of the deputationists is an autonomous body and theentry thereto was not through TNPSC. Inasmuch as no vested right any deputationist is taken away by the retrospective operation of theRules, the argument relating to alleged adverse impacts shall fall the ground. 24. In these circumstances, we find no merit in the WritPetitions filed by the deputationists from TWAD Board and they areliable to the dismissed. We hold that the ad hoc rules framed in G.O.Ms. No.15, R.D. (E1) Department, dated 25.01.2000, with retrospectiveeffect are constitutionally valid and in accordance with the statutoryprovisions. The Writ Petition challenging the vires of those Rules also liable to be dismissed. Insofar as the relief sought for by the Tamil Nadu RuralDevelopment Engineers' Association in W.P. No.31510 of 2004, in view our discussion particularly in respect of the personnel from HighwaysDepartment in Para No.22 and conclusion as seen from various paragraphsrelating to the absorption of the deputationists, it is for the R.D.Department to take decision and pass appropriate orders. 25. Net result, W.P. No.31510 of 2004 is disposed of with theabove direction and all other Writ Petitions are dismissed. No costs.Connected Miscellaneous Petitions are closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Secretary, Rural Development Department,Fort St. George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/

2. The Director of Rural Development Panagal Buildings, IV Floor,Saidapet, Chennai-15.3. The Managing Director, T.N. Water Supply and Drainage Board,Kamarajar Salai, Chennai 600 005. 4. The Secretary,Personnel and Administrative Reforms (P & AR) Department,Fort St. George,Chennai.5. The Secretary,Tamilnadu Public Service commission,Government Estate, Anna Salai, Chennai.6. The Director of Rural Development Chennai-15.10 ccs to M/s. Sudharavi Associates,Sr. 51031 cc to Government Pleader, sr. 52681 cc to Mr. Srinath Sridevan, Advocate, Sr. 53661 cc to M/s. Sudharshana Sundar, Advocate, sr. 54343 ccs to Mr.K. Rajkumar, Advocate, Sr. 5453 & 5454, 54555 ccs to Mrs. Hema Sampath, Advocate, sr. 55461 cc to Mr.R. Syed Mustafa, Advocate, Sr. 5641 Writ Petition Nos.19401 to 19410/04, 20676 to 20681/04, 22268 to 22277/04, 31510 & 31561/04, 26807/05 and 33503 of 2006.AKM (CO)kk 6/2Compared by Gs