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Judgment
R. Subbiah, J.—This writ appeal is filed challenging the order passed by the learned single Judge in W.P. (MD) No. 985 of 2010, dated
13.07.2010.
Brief facts which are necessary to decide the appeal are as follows :
The Respondents 3 to 11 were joined the service as Technical Assistant in Public Works Department and thereafter, they were permitted to
continue B.E. Degree course and complete the same in November 1988. Thereafter, they were promoted as Junior Engineers in the year 1997 by
the Government taking into consideration the fact that the Petitioners obtained B.E. Degree course before promoting them as Junior Engineer. At
the time of filing of the writ petition, they were working as temporary Assistant Engineers.
It is the contention of the Respondents 3 to 11 in the writ petition that as per the service rules, the staff working in the Public Works Department
after completion of their degree, they have to re-designate as Assistant Engineers from the date of passing of the degree. When the Petitioners
made a request to the second Respondent for re-designation as Assistant Executive Engineers on completion of their B.E. Degree, the second
Respondent by his letters dated 19.05.2008 and 08.07.2008 recommended for re-designation of the Petitioners as Assistant Executive Engineers
from the next date of joining in the post of Junior Engineer.
The first Respondent after considering the entire records for such re-designation as Assistant Executive Engineers by his proceedings dated
29.09.2008 passed an order holding that the Respondents 3 to 11 should be re-designated as Assistant Executive Engineers from the next day of
joining the post of Junior Engineer. Though the said order was passed on 29.09.2008 by the first Respondent, the same was not implemented.
Hence, they filed a writ petition in W.P(MD) No. 985 of 2010, for a Writ of Mandamus, to direct the Respondents to implement the order
issued by the first Respondent by letter dated 29.09.2008 and consequently, directing the Respondents to include the Respondents 3 to 11 in the
promotional panel in the appropriate place on par with the promotion of his juniors and to effect the promotion as Assistant Executive Engineers
with all monetary and attendant benefits as per the orders of the first Respondent, dated 29.09.2008.
The said writ petition was allowed by the learned single Judge on 13.07.2010 after hearing the submission of the learned Counsel appearing for
the Petitioners as well as the learned Government Advocate for the official Respondents. Aggrieved over the same, the present appeal has been
filed by the Appellants who are working as Assistant Engineers selected by the Tamil Nadu Public Service Commission by direct recruitment for
the year 1998-1999 and joined the service as Assistant Engineers in Public Works Department during 1999-2000 respectively.
It is the contention of the learned Counsel appearing for the Appellants that the Appellants who are the direct recruitees, are necessary parties
who sought to have been impleaded as Respondents in the writ petition. According to the Appellants, since the order passed by the learned single
Judge without impleading the Appellants as necessary parties in the writ petition, it would affect their rights for consideration of promotion as
Assistant Executive Engineers and therefore, the same is liable to be set aside.
Learned Counsel for the Appellants further submitted that the method of recruitment for the post of Assistant Engineer under Rule 2 of Tamil
Nadu Engineering Service Rules, after amendment dated 11.09.1985 is by two modes i) direct recruitment through TNPSC and ii)recruitment by
transfer from Junior Engineers, Overseers, Head Draftsmen or Civil Draftsmen. Under Rule 5 of the Rules, the persons stipulated to be feeder
categories by recruitment by transfer shall acquire B.E Degree after entering service as Junior Engineers but the said general rules do not prescribe
for re-designation as one of the methods of recruitment for appointing Junior Engineers and Assistant Engineers on acquiring B.E. Degree
automatically. Rule provided for appointment of Junior Engineer who possess B.E. Degree as Assistant Engineers only by direct recruitment by
transfer shall be done only by preparing a panel as mandated under Rule 4(a) of the General Rules. According to the Appellants, the claim of
Respondents 3 to 11 seeking appointment to the post of Junior Engineers as Assistant Engineers from the date of joining as Junior Engineers is not
at all permissible under Rule.
Learned Counsel appearing for the Appellant further submitted that under Rule 36-A of the Tamil Nadu State and Subordinate Service Rules
envisages that appointment by recruitment by transfer to a class or category in a State Service from among the holders of posts in a Subordinate
service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are appropriately equal. Therefore,
the explanation that the acquisition of the B.E. Degree is adequate for automatic promotion to the post of Assistant Engineer from among the Junior
Engineers is misconception. Since the Respondents are re-designated as Assistant Engineers from the date mentioned in the order dated
29.09.2008, it would adversely affect the right of the direct recruitees. Therefore, by granting a leave, the order passed by the learned single Judge
has to be set aside.
Per contra, learned Counsel appearing for the Respondents 3 to 11 submitted that the Appellants are not at all aggrieved in lieu of the order
passed by the first Respondent as well as the order passed by the learned single Judge since the Respondents 3 to 11 had joined service as early
as in the year 1988, after having completed their B.E degree in the recognised colleges even before the Petitioners joined the service. The
Respondents 3 to 11 were promoted as Junior Engineers in the year 1997 itself whereas the Appellants had joined the service much later than the
service of the Respondents 3 to 11. Under such circumstances, it is incorrect to say that the order of the learned single Judge would affect the
rights of the Appellants for consideration of promotion of the Appellants.
Heard the learned Counsel for the respective parties and perused the materials available on record.
The main contention of the learned Counsel for the Appellants is that re-designation is not automatic on acquiring the B.E. Degree. On the
other hand, by drawing panel for promotion has to be done based on seniority and merit. Per contra, it is the submission of the learned Counsel for
the Respondents 3 to 11 that they acquired B.E degree even much earlier than the Appellants and joined the service. Under such circumstances,
the re-designation is not going to affect the Appellants in any way.
But in our opinion, had the re-designation taken place even before the Appellants joined the service, the Appellants might not have had any
grievance. But the re-designation was given effect to only based on the order dated 29.09.2008 i.e., much after the Petitioners joined in the
service. Under such circumstances, in our opinion, whether the re-designation is automatic on acquiring B.E.degree and whether the re-designation
would affect the rights of the Petitioners should be gone into. Under such circumstances, we are of the opinion, the Appellants are necessary
parties for adjudication to decide the issue involved in the writ petition. Hence, without expressing any opinion on the merits of the case, it would
be appropriate to set aside the order passed by the learned single Judge and remit the matter to the learned single Judge, so that the Appellants
could be impleaded as party Respondents in the writ petition and decide the issue.
Accordingly, the order of the learned single Judge is set aside and the Writ Appeal stands allowed. The Respondents 3 to 11 are ordered to
be impleaded the Appellants as party Respondents in the writ petition. In view of the urgency expressed by the learned Counsel for the Appellants
in the matter, we request the learned single Judge to dispose of the writ petition as expeditiously as possible preferably within one month. No costs.
Consequently, connected miscellaneous petition stands closed.