ORDER
N. Kannadasan, J.
1. The above writ petition is filed for the relief as stated therein.
2. During the pendency of the above writ petition, the first petitioner had died and the petitioners 4 to 6, who are legal heirs, are substituted as petitioners consequent to the death of the first petitioner. Since the third petitioner was promoted during the pendency of the writ petition, learned counsels for the petitioner submitted that he is not pressing the above writ petition in respect of the third petitioner. Hence, the present writ petition is being dealt with in respect of the claims of petitioners 1 and 2.
3. The petitioners were originally appointed as Town Planning Inspectors in the erstwhile Town Planning Department of Tirunelveli Corporation. After the upgradation of certain Municipalities as Corporations, the Government thought it fit to bring all the Corporations together and to notify a common Service Rules instead of creating a separate Service Rules for each Corporation and consequently, the Government has issued rules viz., Special Rules for Tamil Nadu Municipal Corporation Service Rules, 1996 which is notified in G.O.Ms.No.237 Municipal Administration and Water Supply (Elections) dated 26.9.1996 (hereinafter called as the ‘Rules’). As per the new rules, the Town Planning Department of Corporations were merged with the Engineering and Water Supply Department by incorporating necessary protection therein. The petitioners were redesignated as Assistant Engineers from the post of Town Planning Inspectors, considering the fact that they are possessing the Engineering graduation. Accordingly, the petitioners who were originally working as Town Planning Inspectors, were redesignated as Assistant Engineers with effect from 26.9.1996 consequent to G.O.Ms.No.237 Municipal administration and Water Supply (Elections) dated 26.9.1996 and their scale of pay was also revised. While so, the respondents 4 and 5 were promoted as Assistant Executive Engineers by proceedings dated 8.10.1997 of the third respondent. Aggrieved against the said proceedings, the petitioners have filed the above writ petition for the relief as stated therein.
4. Learned counsels for the petitioners contended that the order of promotion of respondents 4 and 5 is unsustainable in law inasmuch as they were employed only as Junior Engineers with a lesser scale of pay whereas the petitioners are redesignated as Assistant Engineers on and from 26.9.1996 with higher scale of pay. It is further contended that as per the seniority list dated 3.3.1997, the names of the petitioners alone found place and the names of the respondents 4 and 5 did not find place therein and as such, the impugned order is liable to be set aside. Learned counsels would further contend that as per the instructions issued by the Government as contained in Annexure-I to the above mentioned Government Order, if the seniority list is drawn, the petitioners alone will be placed as seniors whereas the respondents 4 and 5 will be placed as juniors than the petitioners. It is further contended that while drawing the inter se seniority list, the said list should be in the ratio of 3:1 in respect of Assistant Engineers as well as the Junior Engineers and since both the cadres are feeder category to the post of Assistant Executive Engineer, the respondents 4 and 5 will not be entitled for promotion overlooking the claims of the petitioners. It is further contended that the third respondent has failed to frame the inter se seniority list, but however, if such a list is drawn as per the directions contained in the instructions as set out in the Annexure to the rules, in the abovesaid Government Order, the respondents 4 and 5 will have to be placed only as juniors than the petitioners and accordingly, the impugned order is liable to be quashed. It is further contended that the abovesaid circular instructions has a binding force as against the third respondent and the same has to be given effect to. As per Rule-5 of the Rules, a ratio of 3:1 is contemplated in respect of Assistant Engineers as well as the Junior Engineers and the said ratio is violated by promoting the respondents 4 and 5 alone and hence, the impugned order is liable to be quashed.
5. Per contra, learned senior counsel appearing for the third respondent-Corporation would contend that the petitioners cannot be treated as seniors than the respondents 4 and 5, in view of the fact that they were originally employed only as Town Planning Inspectors in the Town Planning Department in a lesser scale of pay whereas the respondents 4 and 5 were employed as Junior Engineers as early as from the year 1983 onwards, who were drawing higher scale of pay. Learned senior counsel would further add that the third respondent while promoting the respondents 4 and 5 have considered the fact that they were employed in the feeder category for long number of years and the petitioners who became as Assistant Engineers consequent to G.O.Ms.No.237 Municipal administration and Water Supply (Elections) dated 26.9.1996 cannot claim any preferential right and as such, opposed their plea. Learned senior counsel also contended that during the pendency of the above writ petition, the order of promotion of respondents 4 and 5 was confirmed in G.O.(D) No.30 Municipal Administration and Water Supply (MCS) Department dated 27.1.2005 in exercise of the powers conferred upon the Government under Section 106 (2)(b) of the Coimbatore City Municipal Corporation Act, 1981 which provision is also applicable to the Tirunelveli Corporation.
6. Learned counsels appearing for respondents 4 and 5 contended that the contention of the petitioners to the effect that the ratio of 3:1 has to be followed while filling up the post of Assistant Engineers by promotion is not based on any legal provisions and the qualification for filling up the said posts by promotion is governed by Rule-4 of the Service Rules and the petitioners do not satisfy the said qualification prescribed thereunder and as such, their contention is liable to be rejected. It is further contended that the feeder category to the post of Assistant Executive Engineer consists of the posts of Assistant Engineers/Junior Engineers and both the posts shall constitute single category. If both the posts are treated as single cadre, the respondents 4 and 5, who were employed in the cadre of Junior Engineers even with effect from 1983, cannot be considered as juniors than the petitioners who are functioning as Assistant Engineers from the year 1996. It is further contended that inasmuch as the Rules are very clear, there is no necessity to avail the aid of instructions as contained in the annexure to the Government Order and even otherwise, the said instructions do not render any assistance to advance the case of the petitioners.
7. I have considered the rival contentions of the learned counsels appearing on either side.
8. It is not in dispute that the respondents 4 and 5 were employed originally as Junior Engineers on regular basis in Engineering and Water Supply Department of the third respondent Corporation from the year 1983 onwards. The respondents 4 and 5 were classified as class-II officers as per the Rules, whereas the petitioners were working in the Town Planning Department as Town Planning Inspectors, who were originally classified as class-IV category in the said Town Planning Service. It is also not in dispute that the scale of pay of the Junior Engineers is Rs.1,640-2,900 and the scale of pay to the Town Planning Inspectors is Rs.1,350-2,200. The petitioners who were employed as Town Planning Inspectors were drawing only a lesser scale of pay for several years till 26.9.1996 viz., the date of merger of the Town Planning Department to the regular Engineering Department of the Corporation. However, the respondents 4 and 5 were drawing higher scale of pay even from the year 1983 onwards and employed in the cadre of Junior Engineer. While the Town Planning Department was merged consequent to the abovesaid rules, the petitioners were placed as Assistant Engineers considering the fact that they possess Engineering decree qualification whereas the respondents 4 and 5 are Diploma Holders. While fixing the scale of pay to the cadre of Assistant Engineers, the rule itself provides a higher scale of pay viz., Rs.2,000-3,200/-. Merely because, the petitioners were absorbed in the regular department with effect from 26.9.1996 and they are redesignated as Assistant Engineers, and by considering their higher qualification higher scale of pay is fixed, it cannot be held that they should have a preferential claim in the matter of promotion to the higher post viz., Assistant Executive Engineer since both the posts of Assistant Engineer as well as Junior Engineer are treated as single category as per Rule 5 of the Service Rules. While considering the individual served in the said single cadre, the Corporation has to necessarily consider the more number of years of service in that single category while promoting them to the higher post viz., Assistant Executive Engineer. That apart, Rule 5 does not contemplate the ratio of 3:1 to be followed for the purpose of considering the names of Assistant Engineers as well as the Junior Engineers for the purpose of promotion to the post of Assistant Executive Engineers. As per Rule-5, the said ratio is prescribed only while filling up the post of Assistant Engineer by direct recruitment and filling up of the post of Junior Engineers by promotion from the post of Technical Assistant.
9. It is pertinent to note that without reference to the criteria of fixation of seniority in the feeder category for the purpose of promotion to the post of Assistant Executive Engineer, a separate qualification is prescribed in Rule-4 of the Service Rules which is set out as hereunder:-
“Must have worked as Assistant Engineer, Junior Engineer for not less than one year in the Engineering Department of the Corporation Main Office and for a period not less than three years in the Ward Office”.
Admittedly, the petitioners have not fulfilled the qualification as prescribed in Rule-4, whereas the respondents 4 and 5 have fulfilled the said qualification. Since the rule itself contemplates a specific qualification as referred to supra, it is not known as to how the petitioners can make their claim of promotion to the post of Assistant Executive Engineer in the absence of required qualifications. Even in para-9 of the affidavit filed in support of the above writ petition, a specific pleading is made by the petitioners that the eligibility criteria with regard to their experience should not be insisted upon for the existing employees when their names are considered for promotion for the first time. The pleadings as stated above, makes it clear that the petitioners have not fulfilled the eligibility criteria with regard to their experience in the feeder category. Though a contention is urged that when the names of the existing employees are being considered for first promotion, the new Service Rules need not be applied as per the instructions contained in the annexure to the rules, the question of dispensation of the eligibility criteria does not arise in the present case, since the qualified persons like the respondents 4 and 5 are very much available in the feeder category for the purpose of promotion to the higher category. In otherwords, since the eligible persons like respondents 4 and 5 are available in the feeder category, there is no necessity to dispense with the mandatory qualification as set out in Rule-4 of the Service Rules and to promote the petitioners as contended by them.
10. Even though the petitioners are trying to make out a case by placing much reliance upon the instructions as contained in the annexure to the abovesaid Government Order, the very same instructions makes it clear about the status of Town Planning Inspectors who are redesignated as Assistant Engineers which reads as follows:-
“Since the scale of pay of the Town Planning Inspectors is less than the scale of pay of the Junior Engineers, while fixing the inter se seniority, it is not fair to take the date of first appointment, the total services, etc. of the individuals. Further, these Town Planning Inspectors who are Engineering Graduates will be designated as Assistant Engineers and those who are Diploma holders as Junior Engineers.”
The above instructions proceed to the effect that while fixing the inter se seniority as between the Town Planning Inspectors and Junior Engineers, the date of first appointment in the cadre of Town Planning Inspectors cannot be compared with reference to the date of first appointment in the cadre of Junior Engineer since they were drawing a lesser scale of pay. Thus, even if this Court considers the circular instructions as contained in annexure to the above Rules, is having binding force, the said instructions do not come to the rescue of the petitioners in any manner. Further, inasmuch as the Rules are very clear, it is not necessary for this Court to draw any inference by reading the circular instructions which is nothing but the guidelines issued to the Commissioners for the purpose of implementation of the new Corporation Service Rules. Even the circular instructions as contained in annexure-I is titled as follows:-
“ANNEXURE-I
Instructions to be followed by the Commissioners of all Corporations except Chennai, while implementing the new Corporation Service Rules.”
The above title itself makes it clear that the said instructions are nothing but guidelines to the Commissioners of the Corporation for the purpose of implementation of the Service Rules. As referred to already, the rules are very clear in the matter of promotion to the post of Assistant Executive Engineers and there is no illegality or irregularity while promoting the respondents 4 and 5.
11. In this connection, it is useful to refer to the decision of the Apex Court in Sant Ram v. State of Rajasthan , wherein it is held that the Government cannot amend or supersede the statutory Rules by administrative instructions. Only if the Rules are silent on any particular point, the Government can fill up the gaps and supplement the rules provided the instructions not in consistent with the Rules already framed. In the case on hand, the rules are not silent while prescribing the qualifications to the post of Assistant Executive Engineers and as such, it is not necessary for this Court to draw any inference with the aid of the circular instructions as contended by the learned counsels for the petitioners.
12. Even though a contention is urged to the effect that the petitioners should be treated as senior most persons by considering the fact that as per the proceedings dated 3.3.1997, the said argument cannot be countenanced in view of the fact that the said seniority list is only in the cadre of Assistant Engineers consequent to the merger of the Town Planning Department subsequent to 26.9.1996. The said seniority list is not drawn by considering the claims of Junior Engineers also who were already served in the regular Department and in the absence of drawal of inter se seniority list, the petitioners cannot take advantage of the seniority list in particular cadre viz., in the cadre of Assistant Engineers alone. Further, the post of Assistant Executive Engineers is being filled up consequent to the directions of the Government in G.O.Ms.No.138 Municipal Administration and Water Supply Department dated 27.5.1997 which empowers the Corporations to send necessary proposals by placing matters before the respondents. In fact, in the light of the proposal, though the respondents 4 and 5 were initially promoted on temporary basis which is challenged in the above writ petition, the Government thought it fit to confirm the said order of promotion by G.O.(D) No.30 Municipal Administration and Water Supply (MCS) Department dated 27.1.2005 in exercise of powers conferred upon the Government under Section 106 (2)(b) of Coimbatore City Municipal Corporation Act, 1981.
13. Learned counsels for the petitioners have placed reliance upon the judgement of the Apex Court in State of Bihar v. Subhash Singh to contend that this Court is empowered to exercise judicial review in the matters of administrative actions and necessary relief should be granted to the parties concerned.
14. This Court is of the view that the above provision of law is a settled law, but as regards the facts on hand is concerned, no material is placed before this Court to exercise such a power to interfere with the order of promotion. Learned counsels for the petitioners also placed reliance upon the decision of the Apex Court in Shyama Charan Dash v. State of Orissa, 2003 SCC (L&S) 449 to contend that the difference in the scale of pay should not be considered for the purpose of determining the qualification to the higher cadre. As discussed already, in the instant case, the petitioners do not even satisfy the required qualification as envisaged under Rule 4 of the Service Rules and the respondents 4 and 5 are not claiming their promotions solely on the basis of difference in scale of pay in their cadre. Since the respondents 4 and 5 having acquired the necessary qualification as per Rule 4 of the Service Rules, the above decision is not applicable to the facts of the case on hand.
15. Learned counsels also placed reliance upon the decision of the Apex Court in Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni, and would contend that merely because the order of promotion of the respondents 4 and 5 was subsequently confirmed by the Government, their claim should not be rejected and the relief should be moulded. The above decision can be applied only if the petitioners make out a case to consider their names for the purpose of promotion. As discussed already, the petitioners cannot have any preferential claim over respondents 4 and 5 in the matter of promotion and asuch, the above decision is not applicable to the facts on hand.
16. For the reasons stated above, I do not see any reason to interfere with the impugned order of the third respondent dated 8.10.1997. Accordingly, the above writ petition is dismissed as devoid of merits. No costs.