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Judgment
S. Nagamuthu, J.
W.P. Nos. 2645 and 2646 of 2007:-
Since common issues are involved in these two writ petitions, they were heard together and they are disposed of by way of this common order.
Both the petitioners are Diploma holders in Civil Engineering. The petitioner in W.P. No. 2645 of 2007 joined service in the Highways
Department, Government of Tamil Nadu as an Assistant Draughtsman on 01.02.1990. Similarly, the petitioner in W.P. No. 2646 of 2007 joined
service in the Highways Department, Government of Tamil Nadu as an Assistant Draughtsman on 01.02.1989. As per the Service Rules,
governing the said Post in the Highways Department, the petitioners were eligible for promotion to the post of Overseer.
While so, the Government issued G.O.Ms. No. 102, Rural Development (E4) Department dated 25.05.1998, creating a separate Cadre of
officials in the Rural Development and Panchayat Raj Department. As per the said Government Order, option was given to the erstwhile Road
Inspectors and Assistant Draughtsman who were in the same scale of pay in the Highways Department for permanent absorption in the post of
Road Inspectors in Rural Development and Panchayat Raj Department. The said Government Order further directs that the said post namely Road
Inspector in the Panchayat Unions will be the feeder category for promotion as Overseers.
Exercising the said option, the petitioners gave consent to be absorbed as Road Inspectors in the Rural Development and Panchayat Raj
Department. Accordingly, on accepting the said option exercised by the petitioners, the second respondent appointed the petitioners as Road
Inspectors and allotted them to the Dharmapuri District by order dated 23.06.1999. The third respondent in turn, posted the petitioners as Road
Inspectors at Thali Panchayat Union and Uthangarai Panchayat Union respectively on 13.07.1999. Accordingly, the petitioners joined in the Rural
Development and Panchayat Raj Department as Road Inspectors. Thus, once for all, the petitioners were absorbed as employees of the Rural
Development and Panchayat Raj Department as Road Inspectors.
Admittedly, there was no Statutory Rule governing the Subordinate Service of the Rural Development and Panchayat Raj Department.
Therefore, the Government, in exercise of the power conferred under Article 309 of the Constitution of India, made Special Rules known as the
Special Rules for Tamil Nadu Panchayat Development Engineering Subordinate Service vide G.O.Ms. No. 70 Rural Development (E4)
Department dated 20.03.2000. As per the said Government Order, the said Rules shall take effect from 25.05.1998. According to the said
Special Rules, there were only two categories in the service namely Category No. 1 Overseer and Category No. 2 - Road Inspector. The
Government Order further directed that between direct promotees and direct recruits in the post of Overseers, there shall be a ratio of 1:3
maintained i.e., as against four vacancies, one will go to promotee and three will go to direct recruites. The essential qualification for promotion to
the post of Overseer from the post of Road Inspector was an I.T.I. Certificate in Civil Draughtsman ship from a Government recognized Institute.
Since, the said Rule was implemented with effect from 25.05.1998 and since, the petitioners were absorbed as Road Inspectors in the Rural
Development and Panchayat Raj Department on 23.06.1999, as per the Special Rules, they were holding the post of Road Inspector governed by
the said Service Rules.
It is significant to note that as per the said Rule, there was no Grade in the post of Road Inspector such as Road Inspector Grade-I and Road
Inspector Grade II. It is also significant to note that the next avenue of promotion for Road Inspector was to the post of Overseer. It is also
significant to note that as per the Service Rules, for promotion to the post of Overseer, there was no prescribed period of service required in the
post of Road Inspector.
But strangely, in G.O.Ms. No. 102 Rural Development (E4) Department dated 25.05.1998 it had been stated that if any employee had put in
15 years of service either as Assistant Draughtsman or as Road Inspector to put together, he will be eligible for promotion as Overseer. Thus,
according to the Rule, though there was no minimum prescribed period of service required for promotion to the post of Overseer, as per G.O.Ms.
No. 102 dated 25.05.1998, one should have put in 15 years of service either as Assistant Draughtsman or as Road Inspector.
Thereafter, G.O.Ms. No. 163 Rural Development (E4) Department dated 04.07.2001 came into effect. The said Government Order was also
issued in exercise of the power conferred under Article 309 of the Constitution of India. By this Government Order, the Government has amended
the Tamil Nadu Panchayat Development Engineering Service Rules (Introduced by G.O.Ms. No. 70 Rural Development (E4) Department dated
20.03.2000, referred to above). This amended Rule was brought into force retrospectively with effect from 25.05.1998. As per this amended
Rule, the post of Road Inspector was categorized as Road Inspector Grade-I and Road Inspector Grade-II. Road Inspector Grade-I was treated
as Category No. 2 and Road Inspector Grade II was treated as Category No. 3. As per the said amended Rule, the method of appointment to the
post of Road Inspector Grade-II is by means of direct recruitment. The qualification for the said post is I.T.I., Certificate in Civil Draughtsman
from a Government recognized Institute. Further, according to the said amended Rule, the method of appointment for the post of Road Inspector
Grade-I is by promotion from the post of Road Inspector Grade-II. The essential required qualification for such promotion is I.T.I., Certificate in
Civil Draughtsman from a Government recognized Institute and service as Road Inspector Grade-II for a period not less than five years. From
Road Inspector Grade I, the next avenue of promotion is to the post of Overseer. One of the qualifications for such promotion is a minimum
experience of 5 years in the post of Road Inspector Grade I.
So far as the petitioners are concerned, after the issuance of G.O.Ms. No. 163 dated 04.07.2001, they were treated as Road Inspector Grade-
II. But they were not given promotion as Road Inspector Grade-I because, according to the respondents, they did not possess five years of
experience in the post of Road Inspector Grade-II as required under the amended Rule.
According to the respondents, the period of service rendered by the petitioners in the post of Assistant Draughtsman in the Highways
Department cannot be taken into account at all for the purpose of promotion to the post of Road Inspector Grade I. It is further contended in the
counter filed by the respondents that though the pay scale and the other benefits for the post of Road Inspector and Assistant Draughtsman in the
Highways Department were same, still, in the Rural Development and Panchayat Raj Department, the service rendered by the petitioners as
Assistant Draughtsman in the Highways Department will not be taken into account. Thus, the respondents have dis-regarded the period of service
rendered by the petitioners in the Highways Department as Draughtsman. From 23.06.1999, the petitioners were working as Road Inspector
Grade-II however, they were promoted by the respondents as Road Inspector Grade I only in the year 2011.
In the mean while, the Government had to fill up the post of Overseer, in the Rural Development and Panchayat Raj Department. According to
the Government, since, there was no qualified employees available for promotion to the post of Overseer and since, some of the employees had
not put in the required period of service in the feeder category, the Government issued G.O.Ms. No. 609 Rural Development and Panchayat Raj
Department dated 19.10.2006 to fill up remaining 50% of vacancies in the post of Overseer by direct recruitment. Accordingly, all the posts in the
post of Overseer were filled up through employment exchange by direct recruitment in two phases.
The grievance of the petitioners is that their legitimate expectation to be treated as Overseer has been defeated by the respondents by
introducing the amended Rule by means of G.O.Ms. No. 163 Rural Development Department dated 04.07.2001, that too giving retrospective
effect from 25.05.1998. It is also their contention that by filling up all the 100% of vacancies by direct recruitment to the post of Overseer, the
chance of the petitioners for getting promoted as Overseer has been deprived. It is also the contention of the petitioners that such action of the
Government in filling up all the vacancies only by means of direct recruitment is directly conflict with the Tamil Nadu Panchayat Development
Engineering Subordinate Service Rules. Therefore, the petitioners have come up with these writ petitions challenging G.O.(D) No. 609 dated
19.10.2006 read with G.O.Ms. No. 739 dated 15.12.2006 issued by the first respondent herein and also for a direction to the respondents to
consider the claim of the petitioners for promotion as per seniority as on 2004 to the cadre of Overseer of Overseer Post lying unfilled therein by
drawing the annual panel list as on crucial dates specified viz., 1st April of each year from 2004-2006.
In the counter filed by the respondents, it is stated that as per the amended Rule introduced in G.O.Ms. No. 70 Rural Development (E4)
Department dated 20.03.2000, the petitioners were treated as Road Inspector Grade-II. They were not promoted as Road Inspector Grade-I
because, they were not put in 5 years of experience in the post of Road Inspector Grade-II from the date of their absorption in the Rural
Development and Panchayat Raj Department. It is their further contention that the service rendered by the petitioners as Assistant Draughtsman in
the Highways Department cannot be taken into account at all because, as per the Service Rule, the said period cannot be counted as a service
period for the purpose of promotion. It is also stated in the counter that G.O.Ms. No. 102 dated 25.05.1998 has become void on account of the
introduction of G.O.Ms. No. 70 dated 20.03.2000 and G.O.Ms. No. 163 dated 04.07.2001.
It is further stated in the counter affidavit that the petitioners were promoted as Road Inspectors Grade-I with effect from 28.02.2011,
because, on that date only, they were eligible for promotion as Road Inspector Grade-I. Thus, according to the counter affidavit, the relief sought
for by the petitioners cannot be granted.
I have considered the above submissions.
Admittedly, G.O.Ms. No. 102 dated 25.05.1998 was issued as there was no separate Service Rules for Tamil Nadu Panchayat Engineering
Subordinate Service. It was only by means of the said Government Order, separate services were created in the Rural Development and
Panchayat Raj Department. It is only as per this Government Order, option was called for from the employees who were already working in the
Highways Department which is the parent department for absorption in the newly created service.
Admittedly, the new service namely Tamil Nadu Panchayat Engineering Subordinate Service is the child of the Highways Department. Of
course, the Government was right in brining in the Special Rules for Tamil Nadu Panchayat Engineering Subordinate Service retrospectively with
effect from 25.05.1998 i.e., the date of issuance of G.O.Ms. No. 102. As per G.O.Ms. No. 102, the petitioners were made to believe that they
will be treated as Road Inspectors in the Rural Development and Panchayat Raj Department and their next avenue of promotion is to the post of
Overseer. Legitimately believing this assurance given by the Government, the petitioners have opted to be absorbed as Road Inspectors in the
Rural Development and Panchayat Raj Department.
Admittedly, the petitioners were absorbed as Road Inspectors with effect from 23.06.1999. As per the original Rule introduced by means of
G.O.Ms. No. 70 dated 20.03.2000, there were only two categories namely Category No. 1 was Overseer and Category No. 2 was Road
Inspector. There was no sub-categorisation of Road Inspectors. As per the said Rule, the next avenue of promotion for the post of Road
Inspector is to the post of Overseer. To put it otherwise, the post of Overseer can be filled up by means of promotion from the post of Road
Inspector. As per the said Rule, as I have already pointed out, there is no prescribed period of service required in the post of Road Inspector for
promotion to the post of Overseer. Therefore, from 23.06.1999 onwards, the petitioners were fully eligible for being promoted as Overseers.
Admittedly, G.O.Ms. No. 163 was issued on 04.07.2001. It is only by means of this Government Order, the Rule was amended and the post
of Road Inspector was further categorized as Road Inspector, Grade I (Category 2) and Road Inspector, Grade II (Category 3). The
qualifications for promotion to the post of Road Inspector Grade-I was an I.T.I., Certificate in Civil Draughtsman from a Government recognized
Institute and one should have rendered service as Road Inspector Grade-II for a period of not less than five years. It is the case of the respondents
that the petitioners were not eligible for the post of Road Inspector Grade-I as they had not put in 5 years of service as Road Inspector Grade-II
for five years from the date of their absorption in the Rural Development and Panchayat Raj Department. In my considered opinion, the
respondents ought to have treated the petitioners as Road Inspectors Grade-I from the date on which they were absorbed in the Rural
Development and Panchayat Raj Department. In my further view, it is illegal on the part of the respondents to have treated the petitioners as Road
Inspectors Grade-II. The contention of the learned Special Government Pleader in this regard is that this amended Rule was brought into force
retrospectively from 25.05.1998 and therefore, the petitioners would not have been treated as Road Inspector Grade-I at all because, according
to the amended Rule, Road Inspector Grade-I post can be filled up only by means of promotion from Category No. 3, i.e., from Road Inspector
Grade-II. This argument does not persuade me. If the service Rule is amended normally, the same shall have only prospective effect and the same
cannot have retrospective effect because, the same shall not take away the right enured in favour of the employees in any category. But
unfortunately, by applying the said amended Rule retrospectively, the respondents have denied the legitimate expectation of the petitioners for
promotion to the post of Overseer. As I have already pointed out, the petitioners should have been treated as Road Inspector Grade-I because,
they are fully qualified for the said post as on the date of their original absorption namely 23.06.1999. It cannot be denied that as on 23.06.1999,
they were not new recruits in the post of Road Inspectors Grade-II. Indisputably, they had put in number of years of service in the Highways
Department and they were absorbed as Road Inspectors in the Rural Development and Panchayat Raj Department as Road Inspectors on
23.06.1999. This absorption was as per G.O.Ms. No. 102 dated 25.05.1998. The contention of the respondents that the said Government Order
had become void on the introduction of the Service Rules retrospectively, is strange and shocking. The said Government Order was not at all
repealed. As per the said Government Order, they were in the feeder category for promotion to the post of Overseer. Therefore, after the Rules
were amended, they should have been retained in the feeder category for promotion to the post of Overseer if they should have been retained in
the category of Road Inspector Grade I and they should not have been pushed back to Road Inspector Grade II.
If the petitioners had been treated as Road Inspector Grade-I from 23.06.1999 onwards, on their completing 5 years of service in the said
post, they would have been treated as Overseer. But, unfortunately, by wrongly treating them as Road Inspector Grade-II, they have been denied
promotion to the post of Overseer. Apart from that, it is not as though when the petitioners had completed 5 years of service from 23.06.1999 as
Road Inspectors, there was no vacancy in the post of Overseer. Admittedly, there were number of vacancies in the post of Overseer and as a
matter of fact, the Government was struggling to fill up the same for want of qualified candidates. That is the reason why, the Government had
issued two Government Orders to fill up 100% of vacancies in the post of Overseer by direct recruitment. Therefore, in my considered opinion,
atleast from 23.06.2004, the petitioners should have been promoted as Overseer by treating them as Road Inspector Grade-I from 23.06.1999
onwards. As per G.O.Ms. No. 102, if 15 years of service in the post of Road Inspector is to be calculated for promotion to the post of Overseer,
their past service in the Highways Department should be counted. In that event also, they should have been promoted as Overseer around the year
2004. In such view of the matter, the petitioners are entitled for the relief.
G.O.Ms. No. 739 dated 15.12.2006 under which all the vacancies were filled up by means of direct recruitment for Overseer cannot be
appreciated. Though, the said Government Order is under challenge, I do not want to strike it down because, I am inclined to mold the relief by
ordering promotion to the petitioners to the post of Overseer from 23.06.2004 onwards. In the result, W.P. Nos. 2645 and 2646 of 2007 are
disposed of in the following terms:-
(i) The petitioners shall be treated as Road Inspector Grade-I from 23.06.1999 onwards as per the Tamil Nadu Panchayat Development
Engineering Subordinate Service Rules;
(ii) The petitioners shall be deemed to have been promoted as Overseer with effect from 23.06.2004 onwards;
(iii) Thereafter, the petitioners shall be considered for promotion to the post of Junior Engineer if they have required qualification and required
period of experience in the feeder category;
(iv) The respondents are directed to give all the service benefits to the petitioners for the post of Road Inspector Grade-I as well as Overseer from
the dates mentioned above with all backwages and other monetary benefits and
(v) The respondents are directed to pass the consequential order in this regard, within a period of four months from the date of receipt of a copy of
this order. No costs.
W.P. No. 11964 of 2011:-
In this writ petition, the petitioners have challenged the proceedings of the third respondent dated 28.02.2011 in Na. Ka. 44491/2010/K3 by
which they were promoted as Road Inspector Grade I.
In view of the directions issued in W.P. Nos. 2645 and 2646 of 2007 dated 17.07.2013, in my considered opinion, no further order is required
in this writ petition and therefore, this writ petition stands disposed of and the relief sought for in this writ petition shall be governed by the order
made in W.P. Nos. 2645 and 2646 of 2007 dated 17.07.2013. No costs. Consequently, connected miscellaneous petition is closed.