IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:- 29.01.2007
Coram:-
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice S.MANIKUMAR
Writ Petition Nos.19401 to 19410/04, 20676
to 20681/04, 22268 to 22277/04, 31510 &
31561/04, 26807/05 and 33503 of 2006
and
WPMP Nos.23349/04, 40562 to 40571/04, 24891
to 24896/04, 38244/04, 2135 & 29253/05,
11920 to 11924/06 and WVMP No.2114 of 2005
W.P. No.19401 of 2004:-
P.M.Mari ... Petitioner
vs.
1. The State of Tamil Nadu,
rep. by the Secretary,
Rural Development Department,
Fort St. George, Chennai-9.
2. Director of Rural Development
Panagal Buildings, IV Floor,
Saidapet, Chennai-15.
3. S.Aruchamy, Assistant Engineer (RD),
Udumalapet Panchayat Union,
Coimbatore District.
4. The Managing Director,
T.N. Water Supply and Drainage Board,
Kamarajar Salai,
Chennai 600 005. (R-3 and R-4 impleaded
as per orders of the Court) ... Respondents
WP.19401/04:- Petition under Article 226 of the Constitution
of India for the issuance of a writ of mandamus as stated
therein.
For petitioners in WP
Nos.19402, 19406, 19407 : Mr.Sanjay Mohan, for
and 19408 of 2004 Mr.K.Rajkumar
For Petitioners in WP
Nos.19410, 20678, 22268 : Ms.R.Vaigai,
and 22273 of 2004 for Mr.G.Rajesh.
For Petitioner in WP
No.33503 of 2006 : Mr.AL.Somayaji, Senior
Counsel for Mr.K.Rajkumar
For Petitioner in WP
Nos.19404, 19405, 19409 : Mr.AL.Somayaji, Senior
and 19401/2004 Counsel for Mr.S.Govindaprasad
For Petitioner in WP
Nos.22269, 22272, 22274 : Mr.V.K.Muthusamy, Senior
and 22276 of 2004 Counsel for Mr.R.Muthukrishnan
For Petitioner in WP
Nos.20676 to 20681/04 : Mr.R.Syed Mustafa
For Petitioner in WP
No.31510 of 2004 : Mr.C.Selvaraju, Senior
Counsel for Mr.Srinath Sridevan
For Petitioner in WP
Nos.19403, 22270, 22271, : Mrs.Hema Sampath
22275, 22277 & 31561/04
For R-3 in WPs.19401 to
19410/04, 20676 to 20681/04: Mr.R.Thiyagarajan,
26807/05 and for petitioner Senior Counsel.
in WVMP 2114 of 2005
For TWAD Board : Mr.Sudharshana Sundhar
For State (in all matters): Mr.R.Viduthalai,
Advocate General, assisted by
Mr.P.Subrmanian, Govt. Advocate
COMMON JUDGMENT
(Judgment of the Court, delivered by P.SATHASIVAM, J.)
Petitioners, working in the Rural Development
Department on deputation from Tamil Nadu Water Supply and
Drainage Board (in short TWAD Board), pray to issue a writ
of mandamus, directing the respondents – Secretary, Rural
Development Department (in short R.D. Department), and the
Director, Rural Development, Chennai, to absorb them as
Assistant Engineers, R.D. Department, from the date of their
appointment pursuant to the directions in G.O.Ms. No.102,
dated 25.5.1998, issued by the Government of Tamil Nadu.
II. Some of the petitioners seek to quash the
letter of the TWAD Board, dated 27.12.2004, and pray for a
consequential direction to 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
his order dated 02.07.1999, cancelling absorption of A.Es.
of TWAD Board in R.D. Department, is void.
III. In one Writ Petition, viz., W.P. No.35303 of
2006, the petitioner 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 the Ad hoc Rules from 26.09.1997, as
void,
(b) non-inclusion of deputationists from TWAD
Board as one of the methods of appointment for recruitment
to the post of Assistant Engineer in Rule-3 of the ad hoc
Rules in G.O.Ms. No.15 as void.
Apart from the above relief, the petitioner also seeks for a
consequential direction to include the deputationists from
TWAD Board as one of the methods of appointment in Rule 3
and absorb him as Assistant Engineer in the R.D. Department
with all consequential benefits.
IV. In W.P. No.31510 of 2004, The Tamil Nadu Rural
Development Engineers’ Association through its General
Secretary P.Ravikumar, prays for the issuance of a writ of
mandamus, directing the Secretary to Government, R.D.
Department, and Director of R.D., Chennai-15, to repatriate
the Assistant Engineers/Assistant Executive Engineers of the
present Highways Department/Agricultural Engineering
Department and Dharmapuri District Development Corporation,
possessing a Bachelor’s Degree or its equivalent in
Mechanical and Agricultural Engineering, and all Junior
Engineers, Assistant Engineers/Assistant Executive Engineers
of various other Technical Departments, who are on
deputation/on contract basis and serving in the R.D.
Department beyond five years, to their respective parent
Departments forthwith and maintain the cadre strength
between Assistant Engineers/Junior Engineers of the R.D.
Department as stipulated in the Rules in force.
2. Since the reliefs sought for in all these Writ
Petitions are interconnected and the W.Ps. having been filed
by two sets of individuals; viz., deputationists from other
departments to R.D. Department on the one hand, seeking
absorption and promotion in the present Department; and the
insiders/in-service personnel of the R.D. Department on the
other hand, claiming repatriation of the deputationists to
their respective parent Departments; they are being disposed
of by the following common judgment.
3. As the Writ Petitions filed by the
deputationists contain common pleas, we cull out the facts
from some of the Writ Petitions:-
A. For convenience, at first, we shall refer the
case of P.M.Mari, petitioner in W.P. No.19401 of 2004.
He is an Engineer with B.E. in Civil Engineering.
He joined the TWAD Board on 10.06.1985 as Assistant
Engineer. In 1997, he was sent on deputation to the R.D.
Department when ‘Engineering Wing’ was started there. This
was under G.O. Ms. No.263, dated 27.12.1996, issued by the
Government – first respondent. Additional technical posts
sanctioned under the said Government Order were directed to
be filled up on deputation/by transfer of service basis for
a period of three years as temporary measure. At present,
he is working as Assistant Engineer in the R.D. Department.
The Director of R.D., Chennai-15, following the notification
dated 21.01.1997, requested the Collectors to issue orders
to individuals who had been selected from the willing
candidates from the Highways, Rural Works Department and
TWAD Board. Persons, who went on deputation, were found
eligible and suitable based on their qualifications. Along
with the petitioner, a number of persons from the TWAD Board
also came to the R.D. Department on deputation. In G.O. Ms.
No.102, R.D. Department, dated 25.05.1998, the Government
directed the Director to report about permanently absorbing
Assistant Engineers from other Technical Departments by
giving them weightage for the service put in by them in
their respective parent departments. Based on such
direction, ad hoc rules were 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 the
following,
(a) by direct recruitment;
(b) recruitment by transfer from
overseer in the RD Department;
(c) the ratio for appointment to the
post by direct recruitment and recruitment by
transfer shall be 1:1.
According to the petitioner, he comes within the category of
direct recruitment which contemplated only a degree in Civil
Engineering among other things. G.O.Ms. No.15, dated
25.01.2000, shall be deemed to have come into effect from
25.05.1998. Even on 17.3.1999, the Director had passed an
order for permanent absorption of 125 Assistant Engineers
working on deputation from various other departments into
the RD Department. But, on 2.7.1999, this order was
cancelled by him as the Managing Director of the TWAD Board
had refused to accept the proposal for absorption of persons
deputed from the Board by his letter dated 15.4.1999. After
sometime, the Director was informed by the Managing
Director, TWAD Board, on 22.07.1999, that the Board was
willing for the permanent absorption of the Assistant
Engineers on deputation by the R.D. Department. Willingness
was conveyed to the first respondent/Government also. In
spite of those proceedings, there was a lot of confusion in
the office of the Director, R.D., whereupon, the Director
issued proceedings dated 10.03.2004 to the District
Collectors asking them to give particulars about the
Assistant Engineers who have been recruited by the TNPSC to
enable him to promote them as Assistant Executive Engineers.
The petitioners and other similarly placed persons gave
representations to the respondents, requesting them to
include their names in the panel for promotion. So far,
they have not received any reply. They apprehend that
promotion would be made without including their names.
Hence, they filed several writ petitions, seeking for a
direction to the respondents to absorb them as Assistant
Engineers in the R.D. Department from the date of their
appointment pursuant to the direction in G.O. No.102 dated
25.05.1998 issued 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,
an Assistant Engineer directly recruited in TWAD Board, now
in the R.D. Department, it is stated that the Government of
Tamil Nadu, with a view to have a separate Engineering Wing
in the R.D. Department created certain posts. One such post
is Assistant Engineer or Additional Union Engineer. To meet
the immediate requirement and development of the Engineering
Wing, the Government directed to draw Assistant Engineers by
way of deputation from various Technical Departments
including TWAD Board as the same has been considered as one
of the Technical Departments. Accordingly, options were
called for by the Director of Rural Development through the
respective Collectors who in turn obtained the same from the
Superintending Engineers of the TWAD Board. The petitioner
expressed his willingness to go on deputation. Since
January 1997, he has been working continuously till this
date. The Government took a policy decision to absorb the
deputationists and issued 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 of absorbing all
the deputationists in the R.D. Department. Though the said
order was implemented initially, the same was cancelled on
02.07.1999 on the ground of not giving consent by the TWAD
Board. However, the said deficiency was made good by the
succeeding Managing Director of the TWAD Board by sending
two letters on 22.07.1999 and 12.10.1999, giving willingness
for permanent absorption of their staff in the R.D.
Department. On the basis of those letters, the petitioner
was allowed to continue beyond the period of deputation.
The petitioner and others were hoping that they would be
permanently absorbed and given all service benefits, but,
nothing has been done.
The Government framed ad hoc Rules for the post of
Assistant Engineers 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 from 26.09.1997. Paragraph
No.3 of the Rules deals with the method of appointment and
it provides that the post of Assistant Engineer can be
filled by (a) Direct Recruitment; (b) Recruitment by
transfer; and (c) Ratio of 1:1 provided for Direct
Recruitment and recruitment by transfer. However, the Rules
do not take in the deputationists under its method of
appointment and thereby the right of the petitioner to
continue in the Department is curtailed. Further, non-
inclusion of deputationists in the method of appointment
though they have been working 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 issue of ad hoc rules, that being so, the
retrospective effect of the rules from 26.09.1997 affects
his right very much, because, even before passing of orders,
an absorption order has been issued, subject to framing of
rules. Such being the case, the authorities ought to have
made a provision to include the deputationists as one of the
methods of appointment so as to give effect to the orders
already passed in favour of the petitioner and others.
Hence, the ad hoc rules are ultra vires the Constitution of
India.
3(a). Now, we shall briefly narrate the case of
the petitioner-association (in-service personnel of the R.D.
Department) in 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 executing development works out of the funds of
Panchayat and Panchayat Unions by employing technical
personnel of the erstwhile Highways & Rural Works
Departments on service lend basis upto 1996. Consequent to
the Constitutional 73rd Amendment, introducing new Tamil
Nadu Panchayats Act, 1994, and of the fact that several new
schemes to be implemented, it became inevitable on the part
of the Government to create a separate Engineering Wing for
the R.D. Department. By G.O.Ms. No.263, RD Department, dated
27.12.1996, the Government decided to set up a separate
Engineering Wing for the R.D. Department. By virtue of the
said Government Order, new posts were created in the R.D.
Department. However, no Service Rules were framed and
notified for appointment to those posts at the relevant time
(during 1996). Hence, the posts were initially filled up by
drawing personnel from other technical departments of
Government of Tamil Nadu like TWAD Board, Agricultural
Engineering Department, P.W.D, etc. including Highways
Department ‘on Deputation Basis’ as a temporary measure.
According to the petitioner, the above arrangement was very
unsatisfactory since the deputationists had no commitment or
motivation for executing the various time-bound schemes of
the R.D. Department. The Association of Tamil Nadu Highways
Engineers’ opposed the creation of a separate ‘Engineering
Wing’ under the R.D. Department, claiming that all the posts
created by virtue of G.O. Ms. No.263 be earmarked only for
Engineers of the erstwhile Highways and Rural Works
Department.
Certain personnel on deputation basis at various
points of time since 1996 opted for repatriation to their
parent Departments as various lending Departments could not
sponsor the required number of eligible Engineers willing to
serve in the R.D. Department. The Government decided to
fill up 200 posts of AE (RD) by Direct Recruitment through
TNPSC by notification dated 26.09.1997. The Government also
framed necessary Service Rules in G.O. Ms. No.15 dated
25.01.2000. The constitutional validity of both G.O. Ms.
Nos.102 and 15 were challenged before the Tamil Nadu State
Administrative Tribunal by a group of individuals and by the
Association of Tamil Nadu Engineering Graduates, however,
both the Government Orders were upheld by the Administrative
Tribunal. The personnel working in the R.D. Department were
not given proper promotions. On the other hand, the
deputationists / ‘on contract basis personnel’ are occupying
various posts of AE/AEEs without any specific and valid
order against the Rules in Force.
There are nearly 20 AEs/AEEs, who have been
deputed from Highways Department, Agricultural Engineering
Department and Dharmapuri District Development Corporation,
belonging to Government of Tamil Nadu, with Bachelors Degree
qualification (B.E./B.Tech) entrusted with the execution of
various Panchayat Union Works in the R.D. Department. They
are not fully competent enough to execute / supervise the
works as per specifications and exercise quality control
over the works. Moreover, the qualification possessed by
them is against the provisions contained in the Service
Rules framed by the Government of Tamil Nadu under Article
309 of the Constitution of India, hence, their continued
presence in the R.D. Department is illegal and against the
interests of the R.D. Department and general public. The
petitioner-association made several representations to
various authorities in the Government of Tamil Nadu and to
the Secretary, Tamil Nadu Public Service Commission,
complaining about the illegality being committed. Similar
persons, unqualified and not fit enough to continue, are
also continuing from TWAD Board and Tamil Nadu State
Construction Corporation and they are to be repatriated to
their respective parent Departments. There are 295
Engineers (AEs/JEs) from various other Engineering
Departments of Government of Tamil Nadu, working in the R.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 the R.D. Department. Such a large
number of ‘deputationists’ / ‘on contract personnel’ are
blocking the promotional avenues of the in-service personnel
in the R.D. Department. The continued presence of nearly a
large number of Engineers ‘on deputation’ / ‘on contract
basis’ beyond legally permissible period is leading to the
creation of vested interests being developed by such
‘deputationists’ / ‘on contract personnel’, thereby
jeopardise the very purpose of the creation of a separate
Engineering Wing in the R.D. Department for executing the
Panchayat Union time-bound schemes sponsored by Central /
State Governments and also completely block the promotional
opportunities 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 of ‘Engineering Wing’ exclusively
for the R.D. Department by referring to G.O. Ms. No.263 R.D.
Department dated 27.12.1996. Based on the same, several
Engineering personnel were drawn temporarily on deputation
basis from other departments like Highways Department,
Agricultural Engineering department, TWAD Board etc.
However, this arrangement led to lot of operation problems,
therefore, G.O. Ms. No.102, R.D. (E1) Department, dated
25.05.1998, was issued, whereby; clear instructions were
issued to the Chief Engineer (Highways) to stop posting his
personnel to the newly sanctioned posts. With regard to the
claim of the petitioner in W.P. No.33503 of 2006 that he was
recruited by the TWAD Board, it is pointed out that TWAD
Board is not a Government Department but it is an
independent body created under the Tamil Nadu Water Supply
and Drainage Board Act, 1970. The petitioner is not a
Government Servant. If he wants to join in a Government
Department, he should either be recruited afresh through the
Tamil Nadu Public Service Commission (TNPSC) or through
Employment exchange as specified in the Tamil Nadu State and
Subordinate Service Rules. There is no other way of
entering into the Government Service except through the said
two ways specified. The petitioner is employed on contract
basis in 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 and not TWAD Board personnel.
Even otherwise, the said Government Order directed the
Director, R.D., to explore the possibility or absorbing the
deputationists from the borrowing department, hence, the
question of absorbing the deputationists from other
departments is only a possibility and not finality. The
Director of R.D. absorbed Assistant Engineers of other
Departments provisionally by his proceedings dated 17.3.1999
without waiting for the Government’s clearance. The
absorption of personnel belonging to Highways Department and
TWAD Board was objected to by the respective Heads of
Departments. The Director of R.D., realising the
infirmities in the absorption order, cancelled the same by
proceedings dated 02.07.1999. The petitioner was taken to
the R.D. Department only on contract basis and he has
absolutely no right to challenge the statutory rule which
has been framed exclusively for the engineers of the R.D.
Department. The petitioner has not been appointed from a
Government Service; hence, his appointment is made on
‘contract basis’. The question of absorbing the
deputationists is only a possibility and not finality. Even
otherwise, the instructions issued in the Government Order
are only for the personnel working in Government Departments
and not for those in statutory Boards or Corporations.
Further, the Government had not decided to absorb all the
deputationists and had directed the Director of R.D. only to
explore the possibility of absorption. In the meanwhile, as
ad hoc rules were framed, the orders issued on 25.05.1998
had become null and void and ceased to have any effect.
Since the order of the Director, R.D., suffers from two
infirmities, the Director himself withdrew the same within a
period of four months. The Government have issued ad hoc
rules 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 two ways for entering into the
service, viz., (a) Direct Recruitment through TNPSC and (2)
recruitment by transfer from the category of Overseer in the
R.D. Department. There is no provision for absorbing
employees of other organisations. Service Rules have
overriding effects on G.O. Ms. No.102, R.D. Department,
dated 25.5.1998, which is only an executive order. The
petitioner is not a Government Employee under the provisions
contained in Fundamental Rules. He was employed on contract
basis in accordance with Rule 11 of the State and
Subordinate Service Rules and can be terminated by the
Government when the need for his services ceases. If the
plea of the petitioner is conceded to, it would amount to
inflicting gross injustice to the unemployed engineering
graduates and who are waiting for employment through the
TNPSC.
The ad hoc Rules issued for the post of Assistant
Engineer are not arbitrary and violative of Article 14 and
16 of the Constitution of India as contended. The
petitioner does not belong to R.D. Engineering Service;
hence, he has no locus standi to challenge the service rules
as contained in G.O. Ms. No.15, R.D. Department, dated
25.01.2000. The petitioner appointed on contract basis from
TWAD Board has therefore no legal right to get absorbed in
the borrowing Department.
5. The Managing Director, TWAD Board, has filed
counter affidavit in W.P. No.26807 of 2005, wherein, it is
stated that, as requested by the Director of R.D.
Department, certain Engineers of TWAD Board were deputed to
R.D. Department as per terms and conditions for appointment
of personnel from the Public Sector Undertakings/Boards in
Government Services. While the Assistant Engineers of TWAD
Board were working in the District Rural Development Agency
on deputation basis, the Director of R.D. issued orders in
his proceedings dated 17.3.1999 among other things,
absorbing 57 Assistant Engineers belonging to TWAD Board in
the R.D. Department, based on their exercise of option
subject to certain conditions, pending framing of ad hoc
rules for Tamil Nadu Rural Development Engineering Services.
However, the Managing Director, TWAD Board, in his letter,
dated 15.04.1999, informed to the R.D. Department that the
said exercise of option is not acceptable to the TWAD Board.
Since the services of Assistant Engineers are essentially
required for the current year work of the TWAD Board, the
Managing Director, TWAD Board, requested the Director, R.D.
Department, to revert back all the Assistant Engineers to
the TWAD Board immediately. In those circumstances, orders
issued for permanent absorption of the 57 Assistant
Engineers belonging to TWAD Board were cancelled 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 of its Assistant Engineers. Based on the same,
the Director, R.D., in his Circular dated 16.11.1999 ordered
that the A.Es. of the TWAD Board may be retained in the R.D.
Department till a final decision is taken by the Government.
Again, when the consent of the TWAD Board was sought for,
considering the financial position, a letter was sent to the
Director, R.D., in Managing Director’s proceedings dated
27.12.2004, informing that the Board is not in a position to
accept any permanent absorption of Board’s AEs/AEEs in the
R.D. Department. The TWAD Board denied the allegation that
the continuance of petitioners in the R.D. Department gives
them a right to the post of Additional Union Engineers.
The Assistant Engineers deputed from TWAD Board have been
working in the R.D. Department beyond the period of
deputation for three years and their continuance in the
said Department is subject to the decision to be taken by
the Director of R.D. / Government. Though originally the
M.D. consented for absorption, subsequently, taking note of
various aspects including dearth of hands in the TWAD Board,
he 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,
reiterating their earlier stand. All of them denied the
allegation of the R.D. Department and the TWAD Board that
their employment was on contract basis. According to them,
when the Government decided to absorb Union Overseers who
came on deputation from Highways and they were given
promotion as Assistant Engineers for 209 Blocks, it is
arbitrary and discriminatory to deny the same benefit to the
personnel from TWAD Board and the same would be violative of
Articles 14 and 16 of the Constitution of India.
7. Persons, working in the R.D. Department, who
are shown as respondents, filed a reply affidavit, wherein,
it is stated that TWAD Board is an undertaking of the
Government of Tamil Nadu and the mode of appointment
relating to it is outside the purview of the TNPSC. The
Government, in their letter dated 01.07.1997, and subsequent
letter, dated 15.2.2003, have clarified that the TWAD Board
Assistant Engineers are appointed on contract basis and are
not entitled for deputation pay and allowance. When TWAD
Board, which is the lending department, had not accepted for
absorption, and the borrowing R.D. Department had also not
agreed for absorption of AEs of TWAD Board, the petitioners
have no legal right to claim permanent absorption in the
R.D. Department. If the request of the writ petitioners
viz., deputationists from TWAD Board, is considered, persons
working in the R.D. Department and their promotional
opportunities would be vitally affected. When the service
rules framed under Article 309 of the Constitution of India
do not permit absorption from other Departments or Boards,
the writ petitions filed by the deputationists are not
maintainable. The Tamil Nadu Administrative Tribunal, in
various orders, directed the Department to promote the
Assistant Engineers recruited for the R.D. Department and to
stop deputation from other Departments contrary to statutory
rules. The said decision has become final and the same was
not challenged by anyone. Further, TWAD Board Engineers
have not passed the Departmental Tests for promotion as
Assistant Executive Engineers and they are still on 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 these deputationists or persons appointed on contract
basis to be absorbed as Assistant Executive Engineers in the
R.D. Department, they cannot claim promotion as Assistant
Executive Engineers. In any event, the Director of R.D. has
no jurisdiction to absorb an Assistant Engineer from TWAD
Board. For permanent absorption, the Government alone is
the competent authority that too after consent of the M.D.,
TWAD Board. As per the law laid down by the Supreme Court,
petitioners/deputationists have no vested right of
absorption in the R.D. Department. There is no provision
under the ad hoc Rules for appointment by transfer of
service from 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; appearing for writ petitioners;
Mr.C.Selvaraju, Mrs.Hema Sampath, learned Senior Counsels;
Mr.R.Thiyagarajan, learned Senior Counsel; for the
respondents; Mr.Sudharshana Sundhar, learned counsel
appearing for the TWAD Board; and Mr.R.Viduthalai, learned
Advocate General for the State.
9. Now, let us decide the cases on hand with
reference to four major issues, raised by the respective
sides, viz.,
(a) claim of the deputationists regarding their
position in the R.D. Department and substance in their
plea for issuing mandamus 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 the claim of the petitioner/Association in W.P.
No.31510 of 2004.
10. Relating to the first issue, main contentions
projected on behalf of the petitioners/deputationists are as
follows:-
(a) In view of the decision embodied in the
proceedings dated 17.03.1999 and the willingness expressed
by the TWAD Board by letters dated 22.07.1999 and
12.10.1999, it is obligatory on the part of the respondents
to treat the deputationists as employees of the R.D.
Department.
(b) TWAD Board, having made a decision in terms of
Regulation 13 of the TWAD Board Rules to the effect that the
petitioners may henceforth become employees of the R.D.
Department, can no longer go behind such decision.
(c) Equally, the R.D. Department, having acted upon the
decision of the 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 to absorb the
petitioners.
(d) The doctrine of legitimate expectation would come
into operation by the conduct of the TWAD Board and the R.D.
Department in regard to the absorption of the Petitioners
into the services of the R.D. Department.
(e) The reason given for non-absorption based upon non-
availability of Rules would not be available to the
respondents since Service Rules were framed much after the
Executive decision taken to absorb them.
(f) It would not lie in the respondents to now claim
that there is dearth of hands in the TWAD Board in the light
of TWAD Board’s letter dated 30.11.2004 to the effect that
absorption may be done.
(g) The TWAD Board and the R.D. Department are now
estopped from pleading that absorption cannot be made.
(h) The plea that absorption can be done only when
Rules are framed would not arise since prior to the framing
of the Rules Executive decision has the force of law.
11. Contentions by the respondents:-
(i) As per the Board’s proceedings, for continuing
deputation beyond 3 years, the matter should be placed
before the Board for concurrence.
(ii) Further proceedings show that the deputation
pay would be paid for a maximum period of 3 years and the
period of deputation would also be for a maximum period of 3
years. It was already made clear that the deputationists
can be recalled by the lending authority at any time at its
discretion. All the petitioners are aware that the
deputation period can only be for a maximum period of three
years and unless and until the M.D. gives concurrence,
absorption cannot be claimed by the TWAD Board Engineers.
(iii) As per G.O. Ms. No.263, R.D. Department,
dated 27.12.1996, the policy of the Government was only to
take Engineers on deputation from various Departments, and
the letter addressed to the TWAD Board makes it clear that
only Engineers were recruited ‘on deputation basis’ for the
newly formed Department.
(iv) Even in G.O. Ms. No.102, R.D. Department,
dated 25.05.1998, the Government directed the Director to
explore the possibility and report to it regarding permanent
absorption and had not delegated its powers to permanently
absorb Assistant Engineers by the Director 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 the condition of pending framing of ad
hoc rules / Service Rules of Tamil Nadu Rural Development,
therefore, it was a conditional absorption and the Director
had no jurisdiction to pass the order dated 17.03.1999
without the concurrence of the Managing Director, TWAD
Board.
(vi) Considering dearth of hands, a decision was
taken by the lending authority/TWAD Board, expressing its
unwillingness for absorption of its engineers in the R.D.
Department, hence, there cannot be a mandamus compelling the
Government to permanently absorb the TWAD Board Engineers in
the R.D. Department against the said policy decision.
(vii) Inasmuch as the Engineers in the TWAD Board
were not recruited through the TNPSC, they cannot claim
absorption in the R.D. Department since A.Es. in the R.D.
Department come within the purview of TNPSC.
(viii) When the statutory rule does not provide
for absorption as one of the methods of appointment, the
TWAD Board Engineers have no right to claim absorption;
therefore, all the Writ Petitions filed by the TWAD Board
Engineers are liable to be dismissed.
12. Perused all the relevant materials and
carefully considered the rival contentions.
13. At the foremost, let us consider the
proceedings of the TWAD Board, various orders passed by the
Government in respects of absorption, cancellation, etc.
B.P. Ms. No.71, dated 19.03.1990, speaks about
TWAD Board’s guidelines regarding absorption and powers of
the Managing Director. As per Clause-10, the M.D. is
empowered to sanction deputation of officers to other
organisations upto the level of Executive Engineers for a
period of three years. For continuance of deputation beyond
three years, the matter should be placed before the Board.
The M.D. is also delegated with powers to give concurrence
for the absorption of TWAD Board employees upto the level of
E.Es. in other organisations.
B.P. No.342, dated 06.11.1996, speaks about the
terms and conditions governing deputation of TWAD Board’s
employees. Clause-10 of the Board’s proceedings speaks about
the ‘period of Deputation’, as per which, the period of
deputation will, unless otherwise specifically stated, be
three years. It further states that the deputationists may,
however, be recalled by the lending authority at any time at
its discretion subject to certain conditions, viz., the
deputation will commence on the date on which the
deputationists hands over charge of his post in Board
service or under the previous Foreign Employer, as the case
may be, and on the date he assumes charge of a post in TWAD
Board.
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, in 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 Union
Engineer in the Panchayat Union and that the works taken up
per Panchayat Union exceed Rs.1.5 crores and this requires
close technical monitoring supervision and control to ensure
timely execution of works as well as implementation quality.
In those circumstances, for strengthening the technical wing
in the R.D. Department, the Director approved for a full
fledged office of a Divisional Engineer / Executive Engineer
in each District, a sub division headed by Assistant
Divisional Engineer / Assistant Executive Engineer in each
division and at least two Union Engineers for each block.
The proposals of the Director were considered by the Staff
Committee presided over by the Chief Secretary and the Staff
Committee recommended the creation of several posts. The
Government, after consideration, ordered the creation of
the following posts for a period three years or till the
need therefor ceases whichever is earlier:-
” (a) At the Panchayat Union
level, 384 posts of additional Union
Engineer in the rank of Assistant Engineer
at the rate of one additional Union
Engineer per Panchayat Union.
(b) At the Divisional level, 15
sub-divisions at the rate of one sub-
division to each of the development
division which do not have technical staff
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 technical posts sanctioned would be filled up on
deputation / by transfer of service basis for a period of
three years on temporary basis. It further says that the
staff for those posts would be drawn from various
Departments, viz., Highways and Rural Works, Public Works
Department, Agricultural Engineering, TWAD Board and other
allied Technical Departments. The Government Order also
makes it clear that since the existing staff particularly
technical personnel in the R.D. Department are insufficient
and inadequate, considering the need for execution of
various centrally sponsored schemes, it was decided to have
a separate wing, for which, several technical personnel are
needed. It further shows that in order to cope up with the
work and urgency, the Government authorised the R.D.
Department to borrow suitable personnel from various
departments including TWAD Board for a period of three years
on temporary basis. In other words, the deputation is for a
period three years and the same is on temporary basis.
The next Government Order very much relied on by
the petitioners is G.O. Ms. No.102, R.D. Department, dated
25.05.1998. It is stated therein that, considering various
aspects, 209 posts in the category of Block
Engineers/Assistant Engineers would be earmarked to be
filled up by promotion from the feeder categories of
Overseers and Junior Draughtsmen. It is further stated that
this route would be open to them only after they exercise
their option and are permanently absorbed in the R.D.
Department. The said Government Order further shows that
this number of 209 would be out of the 384 posts of Block
Engineers suggested in item -1 to be earmarked for Engineers
from Highways Department. In those circumstances, the
Government directed the Director, R.D., to explore the
possibility and report to the Government of permanently
absorbing A.Es. from other Technical Departments, giving
them 1:1 weightage for the service already put in by them in
their respective Departments. Thus, the above G.O. makes it
clear that the Director was asked to find out possibilities
of permanently absorbing the AEs from other technical
departments and also to submit his report regarding the
feasibility / acceptability. In other words, the Government
has not absorbed all those engineers from the technical
departments including the personnel from TWAD Board in the
R.D. Department.
No doubt, in the proceedings, dated 17.3.1999,
deputationists including the personnel from the TWAD Board,
working in the posts of Additional Union Engineer /
Assistant Engineers (RD) in R.D. Department, who opted for
permanent absorption in the R.D. Department were ordered to
be absorbed permanently subject to the condition of pending
framing of ad hoc / service rules or Tamil Nadu Rural
Development Engineering Service / Tamil Nadu Rural
Development Engineering Subordinate Service by Government in
R.D. Department. However, on receipt of the above
communication, TWAD Board conveyed their inability to accept
and, in their letter dated 15.04.1999, the Managing Director
informed the Director of R.D. Department, stating that the
proposal for the permanent absorption of A.Es deputed from
TWAD Board to R.D. Department based on their option is not
acceptable to the TWAD Board. In the same communication,
the M.D. reiterated that the services of the A.Es. are
essentially required for the current year works in the TWAD
Board and requested that the A.Es be reverted to TWAD Board
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 Departments working on deputation in
the R.D. Department in detail and finding that the Block
Engineers / Junior Engineers / Assistant Engineers from
Highways and Rural Works Department come under the purview
of TNPSC; cancelled the permanent absorption of all 204
Block Engineers / Junior Engineers / Assistant Engineers and
129 Assistant Engineers belonging to 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, (vide Notification-IV) under Article 309
of the Constitution of India. The said Rules came into
effect from 26.09.1997. We are concerned about Rule-3,
which speaks about ‘Appointment’,
” 3. APPOINTMENT (1) Appointment to
the post shall be made by
(a) direct recruitment
(b) recruitment by transfer from
Overseer in the Rural Development
Department
(c) The ratio for appointment to the
post by direct recruitment – and
recruitment by transfer shall be 1:1″
Admittedly, there is no provision for taking deputationists
for filling up the posts in the R.D. Department. Since the
said aspect is under challenge by way of W.P. No.33503 of
2006, we will consider it at a later point of time.
13-A. Inasmuch as the deputationists stoutly deny
their status of service with the R.D. Department ‘on
contract basis’, it is necessary to refer to the proceedings
of the Director of R.D., dated 28.12.2001, which refers to
G.O. Ms. No.263, R.D. Department, dated 27.12.1996, and
Annexure-II appended thereto, containing terms of deputation
by the Director of R.D.,
” Annexure-II
Terms and conditions for
appointment of personnel from the State
Public Sector Undertakings/Boards in
Government Services on contract basis under
General Rule 11 of the Tamil Nadu State and
Subordinate Service (Vide Govt. Lr.
No.1569/BPE/92-1 Finance (BPE) Dept., dt.
15.2.93 and Govt.Lr.No.2749/BPE/96-1 Finance
(BPE) Dept., dt.9.12.96)
i) The contract appointment will be
for a period of 3 years from the date of
relief from the Corporation/Board.
ii) While on Contract appointment,
he will draw pay and allowances as applicable
to the post held by him in his parent
Organisation, viz., Corporation/Board.
iii) The Government shall recover
every month the Employees Contributory
Provident Fund subscription from the pay of
the employees on Contract appointment at the
rate specified by his parent organisation and
remit it to that foreign body. It is only
that lending organisation, which has to make
an equal amount of employer’s contribution
and no contribution in this regard will be
made by the Government. “In respect of
employees of statutory Boards, where a
pension scheme is available, the pension
contribution shall be met by the statutory
Boards themselves in the event of appointing
such employees in Government Service on
contract basis under General Rule 11 of the
Tamil Nadu State and Subordinate Service”
(amended vide Govt. Letter No.2749/BPE/96-1,
Finance (BPE) Dept., dated 09.12.1996.
iv) The Government shall pay direct
to the employee concerned an amount as one
time compensatory allowance equivalent to the
bonus admissible at the rates as per the
payment of Bonus Act as and when paid by the
parent Organisation to its employees provided
that at the time of payment of bonus, the
employee continued to serve in Government on
contract basis. The expenditure on this will
be on service share basis for the accounting
year between the Government and the foreign
body concerned. In such cases, during the
contract period, the employee will not be
eligible for any other exgratia payment, if
any, allowed to the Government employees like
pongal gift.
v) Government also will not pay any
contribution towards gratuity. The gratuity
contribution shall be borne only by the
lending Corporation/Board concerned for the
period of contract service.
vi) The employee on contract basis
shall be deemed to be a member of the parent
organisation for the purpose of the
disciplinary rules, under the Service Rules
of the parent organisation concerned.
Notwithstanding the fact that his services
are placed at the disposal of the Government,
if he commits any act of omission or
commission which make him liable to the
penalty specified in the said rules, the
parent organisation under whom he is serving
at the time of omission or commission of such
act shall be competent to initiate the
disciplinary proceedings against him and to
impose on him such penalties specified in the
relevant rules and the Government under whom
he is serving at the time of institution of
such proceedings shall render all reasonable
facilities to the parent organisation for the
institution and conduct of such proceedings.
Vii) The Government shall give
leave salary contribution at the termination
of the contract period for the actual leave
earned during the contract service, after
deducting the actual Earned Leave availed
during the contract service period. If the
Earned Leave applied for in a year while on
contract service for exceeds the leave that
would accrue for the tenure period mentioned
in the contract appointment, then for such
excess days of Earned Leave, the foreign body
shall bear the liability by reimbursing the
amount to Government, first bearing entire
leave salary for the Earned Leave period by
the Government.
Viii) The employees shall be
allowed to surrender Earned Leave for a
maximum of 15 days for each year of contract
service, subject to the condition that he has
that many days of leave earned after
deducting the Earned Leave availed during the
contract service.
ix) Regarding reimbursement of
medical expenditure, it may be left to the
option of the employee on contract service to
get his medical expenditure reimbursed either
from Government or from the Corporation,
subject to the stipulation that the option
once exercised will be final for the entire
contract service.
Sd/-
For Director of Rural
Development.”
The above terms and conditions are rather self-speaking
about the status of the petitioners that their services with
the R.D. Department are only on ‘contract basis’.
14. According to Mr.Sanjay Mohan, Ms.Vaigai,
learned counsels; and Mr.V.K.Muthusamy, learned Senior
Counsel, in view of the fact that the petitioners came to
R.D. Department on deputation from TWAD 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
respondents are not justified in reversing their said
decision. According to them, on the principle of
‘Legitimate Expectation’, the respondents ought to have let
them to continue in the R.D. Department along with other
Engineers. They also contended that the respondents are
estopped from repatriating 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 factual details in the earlier
paragraphs, let us consider the issue involved with
reference to various decisions of this Court and the Supreme
Court.
14(1). Learned Counsels for the
petitioners/deputationists relied on a decision of the Apex
Court reported in AIR 2003 SC page 1713 (Chanchal Goyal Vs.
State of Rajasthan) in support of their argument on the
principle ‘legitimate expectation’. It is relevant to
extract paragraph Nos.16 to 18 in this regard,
” 16. The basic principles in
this branch relating to ‘legitimate
expectation’ were enunciated by Lord
Diplock in Council of Civil Service Unions
and Ors. v. Minister for the Civil Service
(1985 AC 374 (408-409) (Commonly known as
CCSU case). It was observed in that case
that for a legitimate expectation to arise,
the decisions of the administrative
authority must affect the person by
depriving him of some benefit or advantage
which either (i) he had in the past been
permitted by the decision-maker to enjoy
and which he can legitimately expect to be
permitted to continue to do until there has
been communicated to him some rational
grounds for withdrawing it on which he has
been given an opportunity to comment: or
(ii) he has received assurance from the
decision-maker that they will not be
withdrawn without giving him first an
opportunity of advancing reasons for
contending that they should not be
withdrawn. The procedural part of it
relates to a representation that a hearing
or other appropriate procedure will be
afforded before the decision is made. The
substantive part of the principle is that
if a representation is made that a benefit
of a substantive nature will be granted or
if the person is already in receipt of the
benefit that it will be continued and not
be substantially varied, then the same
could be enforced. In the above case, Lord
Fraser accepted that the civil servants had
a legitimate expectation that they would be
consulted before their trade union
membership was withdrawn because prior
consultation in the past was the standard
practice whenever conditions of service
were significantly altered. Lord Diplock
went a little further when he said that
they had a legitimate expectation that they
would continue to enjoy the benefits of the
trade union membership, the interest in
regard to which was protectable. An
expectation could be based on an express
promise or representation or by established
past action or settled conduct. The
representation must be clear and
unambiguous. It could be a representation
to the individual or generally to class or
persons.
17. The principle of a
substantive legitimate expectation, that
is, expectation of favourable decision of
one kind or another, has been accepted as
part of the English Law in several cases.
(De smith, Administrative Law, 5th Ed.)
(Para 13.030). (See also Wade,
Administrative Laws, 7th Ed.) (pp.418-419).
According to Wade, the doctrine of
substantive legitimate expectation has been
“rejected” by the High Court of Australia
in Attorney General for N.S.W. v. Quin
(1990) 93 ALL E.R. 1 (But see Teon’s case
referred to later) and that the principle
was also rejected in Canada in Reference Re
Canada Assistance Plan (1991) 83 DLR (4th
297, but favoured in Ireland: Canon v.
Minster for the Marine 1991 (1) I.R. 82.
The European Court goes further and permits
the Court to apply proportionately and go
into the balancing of legitimate
expectation and the Public Interest.
18. Even so, it has been held
under English law that the decision maker’s
freedom to change the policy in public
interest, cannot be fettered by the
application of the principle of substantive
legitimate expectation. ….”
We find that what was observed in the above decision was,
for legitimate expectation to arise, the decisions of the
administrative authority must affect the person by depriving
him of some benefit or advantage which either he had in the
past been permitted by the decision maker to enjoy and which
he can legitimately expect to be permitted to continue to do
until there has been communication to him, the same rational
grounds for withdrawing on which he has been given an
opportunity to comment or he has been given an assurance
that they will not be withdrawing without giving him first
an opportunity.
Coming to the case on hand, insofar as the TWAD Board
Engineers/deputationists are concerned, they cannot claim
legitimate expectation or applicability of the above Supreme
Court decision for the reason that their appointment order
itself was either ‘on contract basis’ or ‘deputation’ for a
specified period and they were well informed that their
absorption was subject to framing of ad hoc rules. When
they have no legal right to claim absorption, the principle
of legitimate expectation cannot be invoked by them;
therefore, the above case law is not applicable to the facts
and circumstances of the cases on hand.
14(2). Reliance is made on the decision reported
in AIR 1998 SC 2779 (National Buildings Construction
Corporation vs. S.Raghunathan and others), wherein, it was
held that the doctrine of ‘legitimate expectation’ has been
developed both in the context of reasonableness and in the
context of natural justice.
In the above decision, Their Lordships of the
Supreme Court have specifically pointed out that the
question whether the expectation and the claim are
reasonable or legitimate is a question of fact in each case.
Not stopping therewith, it was also observed that such
question has to be determined not according to the
claimants’ perception but in larger public interest.
Further, the point for consideration therein was as to
whether the deputationists were entitled to foreign
allowance on the original basic salary or on the salary as
revised on account of the recommendations of the IV Pay
Commission. On consideration, the Apex Court dismissed the
plea relating to foreign allowance.
In the case on hand, the deputationists, who were
informed that they were taken on deputation basis or
contract basis, were fully aware that 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 they cannot be
absorbed in the R.D. Department. Having not challenged the
said order for more than 6 years, the TWAD Board Engineers
now cannot be permitted to raise a plea of legitimate
expectation on the ground that the deputation allowance was
stopped to them. At best, they can only claim deputation
allowance for all these years and no other right over the
R.D. Department. Hence, the decision relied on is not
helpful to the petitioners.
14(3). In Union of India vs. Hindustan Development
Corporation (AIR 1994 SC page 988), Their Lordships of the
Supreme Court, quoted a passage explaining the scope of
‘legitimate expectation’ from Halsbury’s Laws of England,
which reads thus:-
” 81. Legitimate
expectations. A person may have a
legitimate expectation of being treated
in a certain way but an administrative
authority even though he has no legal
right in private law to receive such
treatment. The expectation may arise
either from a representation or promise
made by the authority, including an
implied representation, or from
consistent past practice.”
After discussing the fact regarding expectation, it was
observed,
” A pious hope even leading to a
moral obligation cannot amount to a
legitimate expectation. The legitimacy of
an expectation can be inferred only if it
is founded on the sanction of law or custom
or an established procedure followed in
regular and natural sequence. Such
expectation should be justifiably
legitimate and protectable. Every such
legitimate expectation does not by itself
fructify into a right and therefore it does
not amount to a right in the conventional
sense. ” …….
” It can be one of the grounds to
consider but the Court must lift the veil
and see whether the decision is violative
of these principles warranting
interference. It depends very much on the
facts and the recognised general principles
of administrative law applicable to such
facts and the concept of legitimate
expectation which is the latest recruit to
a long list of concepts fashioned by the
Courts for the review of administrative
action, must be restricted to the general
legal limitations applicable and binding
the manner of the future exercise of
administrative power in a particular case.
The court should restrain themselves and
restrict such claims duly to the legal
limitations. ”
Coming to the cases on hand, inasmuch as the TWAD Board
Engineers do not have legal right to claim absorption and
when the Government and the Managing Director of TWAD Board
have taken a decision not to entertain absorption,
legitimate expectation cannot be invoked to the facts of the
present case. To invoke the principle of legitimate
expectation, there should be a legal right. Thus, the
decision relied on 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 whether the deputationists should be
absorbed in service or not is a policy
matter, but at the same time, once the
policy is accepted and rules are framed for
such absorption, before rejecting the
application, there must be justifiable
reasons. Respondent No.1 cannot act
arbitrarily by picking and choosing the
deputationists for absorption. The power
of absorption, no doubt, is discretionary,
but is coupled with the duty not to act
arbitrarily, or at whim or caprice of any
individual. …”
On going through the above referred decision, we find that
it has been clearly held therein that an employee, who is on
deputation, has no 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 the contrary. If rules
provide for absorption of an employee on deputation then
such an employee has a right to be considered for absorption
in accordance with those Rules. It was further held that
whether the deputationists should be absorbed in service or
not is the policy matter, but, once the policy is accepted
and rules are framed for such absorption, there must be
justifiable reasons for rejecting an application.
As far as the present cases are concerned, the Service Rules
of R.D. Department do not provide for absorption of
employees, who are on deputation and, in fact, under the
method of appointment, there are only two modes, ie., one by
direct recruitment and 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 in AIR 2003 SC 43 (P.Tulsi Das vs. Govt. of A.P.),
wherein, it was observed that, in the absence of Rules under
Article 309 of the Constitution in respect of a particular
area, aspect or subject, it was permissible for the State to
make provisions in exercise of its executive powers under
Article 162 which is co-extensive with its legislative
powers laying conditions of service and rights accrued to or
acquired by a citizen would be as much rights acquired under
law and protected to that extent. The facts involved in the
above case law were regarding the validity of Andhra Pradesh
Educational Service Untrained Teachers (Regulation of
Services and Fixation of Pay) Act, 1991, and the Supreme
Court had upheld the right of those who were appointed as
SGBT teachers to be entitled to the pay scales of School
Assistants for the period prior to the said Act. The said
decision is in no way applicable to the facts of TWAD Board
Engineers since the impugned rules have retrospective effect
and there is no right accrued on the deputationists to claim
absorption.
14(6). Next decision, that was pressed into
service on the concept of deputation, is the one reported in
AIR 1999 SC 1948 = 1999 (4) SCC 659 (Umapati Choudhary vs.
State of Bihar). Before commenting upon the applicability of
this decision to the cases before us, it is relevant to
refer to the contents at para No.9 of the decision,
” 9. Deputation can be aptly
described as an assignment of an employee
(commonly referred to as the
deputationists) of one department or cadre
or even an organisation (commonly referred
to as the parent department or lending
authority) to another department or cadre
or organisation (commonly referred to as
the borrowing authority). The necessity
for sending on deputation arises in public
interest to meet the exigencies of public
service. The concept of deputation is
consensual and involves a voluntary
decision of the employer to lend the
services of his employee and a
corresponding acceptance of such services
by the borrowing employer. It also
involves the consent of the employee to go
on deputation or not. In the case at
hand, all the three conditions were
fulfilled.”
In the above case law referred, the University, which was
the parent department 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 his
permanent absorption in the establishment of the borrowing
Department. Therefore, this decision is in no way
supporting the case of the petitioners as in their cases,
neither the lending authority nor the borrowing authority
has given any consent/willingness for permanent absorption
of the deputationists.
14(7). In the decision reported in AIR 1979 SC 621
(Motilal Padampat Sugar Mill vs. State of Uttar Pradesh),
the Doctrine of Promissory Estoppel has been discussed and
it was held that the true principle of Promissory Estoppel
seems to be that where one party has by his words or conduct
made to the other a clear and unequivocal promise which is
intended to create legal relations or effect a legal
relationship to arise in the future, knowing or intending
that it would be acted upon by the other party to whom the
promise is made and it is in fact so acted upon by the other
party, the promise would be binding on 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 the
dealings which have taken place between the parties and this
would be so irrespective of whether there is any pre-
existing relationship between the parties or not.
In the present cases, the TWAD Board Engineers
were never given any promise that they would be absorbed
after 3 years of the deputation nor had they acted upon any
such promise. In fact, even on 17.3.1999, they were issued
with an absorption order by the Director of R.D. subject to
framing of the ad hoc rules and this order too was cancelled
within 4 months. Hence, the principle of promissory
estoppel cannot be applied to. Neither the Government nor
the M.D., TWAD Board, had given any assurance that the
petitioners would be absorbed in the R.D. Department. The
TWAD Board Engineers have not suffered any service rights in
their parent Department due to any such promise made and,
therefore, the principle laid down in the above decision is
not applicable to the facts of the present cases.
14(8). Coming to the decision relied on by the
petitioners reported in 1999 (8) SCC 99 (Nagpur Improvement
Trust vs. Yadao Rao Jagannath Kumbare and others), it is
seen that the point considered therein was, in the absence
of any statutory rule governing service conditions of the
employees, executive instructions or decisions taken
administratively 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 on hand for the simple reason that the Service
Rules have been framed in G.O. Ms. No.15, R.D. Department,
dated 25.01.2000, with effect from 1997 and as per the
Service Rules, deputationists cannot claim absorption.
Executive instructions issued in G.O.102, R.D. Department
dated 25.5.1998, have become null and void after framing of
the ad hoc rules.
14(9). Insofar as the decision in Ramasanjeevayya
vs. State of Mysore (1969 (2) LLJ 169) is concerned, it was
a case, where the petitioner therein relinquished his
promotion in the Secretariat and opted to remain in the
department of Civil Supplies foregoing his promotion. The
Division Bench held that the petitioner was permanently
transferred to Civil Supplies Department and therefore, the
Government could not repatriate him.
The facts of the above case are completely
different from that of the cases on hand as the
deputationists here had not relinquished any promotion in
their parent department. But, in fact, they were juniors in
TWAD Board, who were promoted and posted in the R.D.
Department. Now, the seniors to them in TWAD Board have
given willingness to be posted in the R.D. Department to
gain the same promotion. Due to these administrative
difficulties, the M.D., TWAD Board, had expressed that none
of the TWAD Board Engineers be absorbed in the R.D.
Department. Hence, this decision also cannot be applied to
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 decision of the Calcutta High Court
reported in 1985 (1) SLR 257 (West Bengal Industrial
Development Corporation vs. West Bengal Industrial
Development Corporation Employees Union), wherein the Bench
had dealt with a case where one Anil Chandra Chattopadhyay
was posted as Special Officer, Petro Chemical Projects, on
deputation from Home (P&AR) Department, Government of West
Bengal. He was further posted as Chief Administrative
Officer in addition to his duties as Special Officer, Petro
Chemicals.
We find that, in the above referred case, the
borrowing department, the lending Department, the
deputationists and the Chief Minister of the State had all
given consent for absorption of the said Anil Chandra.
Coming to the present cases, neither the M.D., TWAD Board,
agreed for absorption as on 27.12.2004 nor the Government /
R.D. Department agreed therefor and the service rules also
do not permit absorption of TWAD Board Engineers in the R.D.
Department. In such circumstances, the case law cited is
not useful to the petitioners.
For the same reasons, another Division Bench decision,
viz., 1995 (5) SLR 426 (Director of Administrative Training
v. S.C. Misra), relied on by Mr.V.K.Muthusamy, learned
Senior Counsel, cannot be made applicable to the cases on
hand.
16. Now, we shall consider various decisions and
submissions made by Mr.C.Selvaraju and Mr.R.Thiyagrajan,
learned Senior Counsels and Mr.R.Viduthalai, learned
Advocate General.
16-A. In the decision reported in 2001 (10) SCC
520 (Union of India vs. S.N.Panikar), the facts show that
the appellant was the Union of India and the appeal was
filed as against the order of the Central Administrative
Tribunal dated 24.04.1992 passed in O.A. No.1001 of 1991.
By the impugned order, the Tribunal directed the Union
Government to absorb the respondent in the post of Deputy
Director (Development) with effect from the date when the
last period of his deputation formally ended, ie., with
effect from 01.01.1990. It is further seen that the post
of Deputy Director could be filled up only by direct
recruitment under the relevant Recruitment Rules framed
under the Proviso to Article 309 of the Constitution of
India. Rule-6 confers powers of relaxation on the Central
Government and such relaxation has to be given for reasons
recorded in writing and in consultation with the Union
Public Service Commission. The respondent, who was serving
in the Department, was sent on deputation after due
consultation with UPSC. But, after the period of deputation
was over, when the Department requested UPSC for further
continuance of the respondent on deputation, UPSC refused
the request of the Union Government and informed the Union
Government that UPSC has not agreed to the extension of
period of deputation in the post of Deputy Director. The
respondent thereafter approached the Tribunal which came to
the conclusion that the deputation itself having been made
by the Union Government in consultation with the UPSC in
relaxation of the provisions of the Recruitment Rules
providing for direct recruitment, the applicant must be held
to have a right to hold the post according to the terms and
conditions of appointment and he was not an ad hoc appointee
and the respondents were not right in terming his
appointment as ad hoc. Disagreeing with the said
conclusion, the Hon’ble Supreme Court has observed as
follows:-
” …… This
conclusion of the Tribunal is contrary to
the service jurisprudence and to the
relevant rules under which the respondent
was sent on deputation to the post of
Deputy Director (Development). The
further conclusion of the Tribunal that
regardless of whether the formal order
states it or not the decision to fill up
the post by transfer on deputation should
be deemed to be a decision taken in
relaxation of the Recruitment Rules as
provided in Rule 6, is also erroneous.
The power of relaxation was exercised by
the Union Government in consultation with
UPSC for a limited purpose, namely, to
fill up the post by taking somebody on
deputation which otherwise required to be
filled up only by direct recruitment. In
that view of the matter, a deputationists
cannot claim either a right to the post in
question nor can he claim absorption on
permanent basis to the post in question.
….”
In the above decision, the Supreme Court had categorically
held that when the statutory rule does not provide
absorption as one of the methods of appointment, there can
be no right for the deputationists to claim for absorption
in the said post. The facts of the TWAD Board Engineers are
identical and, therefore, as per the principle laid down in
the Supreme Court decision, all the writ petitions filed to
claim absorption as a right are liable to be dismissed.
16-B. In U.P. Land Dev. Corpn. v. Amar Singh
(2003 (5) SCC 388, the Hon’ble Supreme Court has held that
when the work of the scheme had come to an end, the
respondents were not entitled to claim regularisation of
their services.
16-C. Heavy reliance was placed on the Division
Bench decision of this Court in Writ Appeal No.2682 of 2003
etc., dated 23.12.2003. The writ petitioners/appellants
approached this Court to issue a writ of mandamus, directing
the respondents to consider and absorb them in the Oil and
Natural Gas Corporation Limited. They were sent 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 years and in special circumstances, it would be for
four years. The question before the learned single Judge as
well as the Division Bench was as to whether the appellants
can claim as a matter of right to be in foreign department
and to be absorbed or are they be repatriated to their
parent department. After considering the rival submissions
and the decisions of the Apex Court, the Division Bench was
of the view that respondents-1 and 2 made it clear that the
appellants belonged to their service and they were sent only
on deputation to respondents-3 to 5 and the said position is
also not disputed. The Bench further observed that when the
parent Department, viz., respondents-1 and 2, wanted to
recall or repatriate them, the same cannot be questioned or
stalled by the appellants. It further observed that
repatriation of its employees by the parent department is a
rule and allowing them to continue in the foreign department
is only an exception. After finding that the appellants
cannot challenge the action of respondents-1 and 2 in
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 no right to a post or to a particular
status, though an authority under the Government acting
beyond its competence had purported to give that person a
status which it was not entitled to give, one will not in
law be deemed to have been validly appointed to the post or
given the particular status; that, no doubt, the Government
has used the expression ‘deconfirming’ in its notification
which may be susceptible of the meaning that it purported to
undo an act which was therefore valid; that the expression,
however, must be interpreted in the light of actual facts
which led up to the notification; that those facts clearly
show that the so-called confirmation by the Financial
commissioner of Pepsu was no confirmation at all and was
thus invalid; and that in view of this, the notification of
October 31, 1957, could be interpreted to mean that the
Government did not accept the validity of the confirmation
of the respondents and other persons who were confirmed as
Tahsildars by the Financial commissioner, Pepsu. Applying
the principle laid down in the above decision, it is clear
that no right or claim can be made by the deputationists
based on the order dated 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 Cadre and Recruitment Regulations recognised only
two modes of recruitment to the post of Senior Health
Inspectors, viz., promotion from the cadre of Junior Health
Inspectors and deputation from the State Directorate of
Health Services and one half of the cadre was to be drawn
from each of these two sources, it was observed that no
other mode of recruitment could be resorted to by the
Corporation under the Cadre and Recruitment Regulations. It
was concluded that it is difficult to see how in the face of
the said provision, which has admittedly statutory effect,
the posts of Senior Health Inspectors could be filled in by
absorption of deputationist Senior Health Inspectors from
the Karnataka State Civil Service.
Following the principles laid down in the above
decision, the claim for absorption has to be rejected
inasmuch as the ad hoc rules do not permit the
deputationists to be absorbed,.
16-F. In Ratilal B.Soni v. State of Gujarat (1990
(Supp) SCC 243), the Supreme Court has held that the
appellants being on deputation, they could be reverted to
their parent cadre at any time and 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 High Court, the
Apex Court dismissed the appeal.
In the above decision, the Supreme Court upheld
the decision of the Gujarat High Court which had held that
the deputationists had no legal right to be absorbed in
State Service unless the option is accepted by the
Government. The principles laid down in the above decision
are squarely applicable to the facts of the present cases
since the option of the TWAD Board Engineers was neither
accepted by the M.D., TWAD Board, nor by the Secretary to
Government, R.D. Department. Hence, as per the above
Supreme Court decision, the TWAD 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 has held as follows:-
” 5. It is settled law that an
employee on temporary promotion would
continue to hold the lien in his
substantive post until it is duly
terminated. He cannot hold two substantive
posts at the same time. Once it is
concluded that the appellant is a
deputationists working in the Directorate
of SEP, his name was rightly not shown in
the seniority list of that Department.
Therefore, he continued to hold his lien
and seniority as Junior Statistical
Supervisor in the parent Department. On
reversion, he came back to his post as a
Junior Statistical Supervisor and in his
own right he was promoted as SSA. Since
the fifth respondent happened to be a
permanent incumbent in the Directorate of
SEP, he was promoted as SSA. When further
vacancy in the higher ladder, viz., SRA,
had fallen vacant, he was considered and
promoted in that vacancy. Under those
circumstances, the High Court is well
justified in refusing to interfere with
the matter and we do not find any
justification warranting interference. ”
In the above decision, the Supreme Court found that the
appellant therein was only a deputationist and cannot claim
right to promotion in the Transport Department and can have
right only in the parent Department. Even though the
appellant continued to be on deputation in view of the
interim directions of the Court, the Supreme Court adverted
to that he continued to hold lien in his parent Department.
In the present case also, though the TWAD Board
Engineers, by an interim order, continued in the R.D.
Department since 2004, they continued to hold their lien
with their parent department which is TWAD Board, hence,
cannot claim absorption as a right.
16-H. Coming to the decision of the Apex Court in
State of 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 of deputation in para No.18 of
the said Judgment,
” 18. The concept of
‘deputation’ is well understood in service
law and has a recognised meaning.
‘Deputation’ has a different connotation
in service law and the dictionary meaning
of the word ‘deputation’ is of no help.
In simple words ‘deputation’ means service
outside the cadre or outside the parent
Department. Deputation is deputing or
transferring an employee to a post outside
his cadre, that is to say, to another
department on a temporary basis. After
the expiry period of deputation the
employee has to come back to his parent
department to occupy the same position
unless in the meanwhile he has earned
promotion in his parent department as per
the Recruitment Rules. …..”
In the above decision, the Supreme Court had not permitted
the claim of absorption where the respondents therein
continued in the posts for nearly 20 years and in fact,
directed to revert those who have completed 20 years of
qualifying service to their parent department. The
principle laid down in the above decision is applicable to
the facts of the present case. The TWAD Board Engineers
were sent on deputation to R.D. Department from 1997 for 3
years and were reverted back in 2004. They were continuing
on deputation in view of the interim order of this Court
and, as per the above Supreme Court decision, they cannot
claim absorption when the Rules do not permit their
absorption in the R.D. Department.
16-I. In the decision reported in 2000 (5) SCC 362
(Kunal Nanda vs. Union of India and another), the following
conclusion is relevant,
” 6. On the legal submissions
also made there are no merits whatsoever.
It is well settled that unless the claim
of the deputationists for a permanent
absorption in the department where he
works on deputation is based upon any
statutory rule, regulation or order having
the force of law, a deputationists cannot
assert and succeed in any such claim for
absorption. The basic principle underlying
deputation itself is that the person
concerned can always and at any time be
repatriated to his parent department to
serve in his substantive position therein
at the instance of either of the
departments and there is no vested right
in such a person to continue for long on
deputation or get absorbed in the
department to which he had gone on
deputation. ….”
In the above decision, the principle relating to the
position of deputationists was settled by the Supreme Court
by holding that there is no vested right for a deputationist
to claim absorption in the borrowing department. In view of
the principle laid down in the above Supreme Court decision,
there cannot be a mandamus compelling the Government to
absorb the deputationists in the R.D. Department when they
have no vested right to claim absorption.
16-J. In the decision reported in 2001 (10) SCC
655 (Mahesh Chand Bhargawa and others vs. Union of India and
others), the case before the Supreme Court was, the
appellants/deputationists claimed absorption in the
Commercial Department while retaining their lien with the
Loco Shed and drawing wages therefrom. The Supreme Court
held that the appellants did not acquire any right of
absorption in the Commercial Department.
The principle laid down in the above Supreme Court
decision is applicable to the facts of the present case as
the TWAD Board Engineers retained their lien in TWAD Board
and are only on deputation terms in the R.D. Department.
Hence, the writ petitioners did not acquire any right to be
absorbed in the R.D. Department.
16-K. In Mahesh Kumar K.Parmar & Others vs. S.I.G.
Of Police and others (2002 (9) SCC 485), the Apex Court has
held that no mandamus can be issued to the State Government
requiring them to permanently absorb the deputationists.
Hence, the position is made very clear by the above decision
regarding the plea for issuance of a mandamus in favour of
the petitioners.
16-L. In the decision reported in 2006 (4) SCC
page 1 (Secretary, State of Karnataka and others vs. Umadevi
and others), Constitution Bench of the Supreme Court has
held that the High Courts acting under Article 226 should
not, ordinarily, issue directions for absorption,
regularisation or permanent continuance unless the
recruitment itself was made regularly and in terms of the
constitutional scheme; and that merely because an employee
had continued under cover of an order of the court, under
“litigious employment”, he would not be entitled to any
right to be absorbed or 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 absorb the TWAD Board Engineers
who were not appointed through the TNPSC for the post of
Assistant Engineer. The respondents, who were recruited
through the TNPSC as Assistant Engineers, should not be
deprived of their promotions and other service rights by
entertaining the relief of TWAD Board Engineers, who were
not appointed in accordance with the Rules to hold the post
of Assistant Engineer in the R.D. Department.
17. Legitimate Expectation is an aspect of
promissory estoppel. In the absence of an unequivocal
promise by the competent authority, neither the doctrine of
promissory estoppel nor legitimate expectation can be
invoked. (vide, – 1998 (7) SCC 66 (cited supra); J.P.
Bansal vs. State of Rajasthan – 2003 (5) SCC 134 ; Union of
India vs. International Trading Co. – 2003 (5) SCC 437 ;
2006 (5) SCC 702 – Kuldeep 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 Apex Court has held that mere proposal of
absorption cannot be construed as an order of absorption.
In the decision reported in 2006 (6) SCC 430
(R.S.Garg v. State of U.P.), the Supreme Court has held that
members of the statutory corporation and those in government
service form different classes of employees. This is
primarily because of the mode of selection process adopted
in each case. Even if they are brought together to one
department temporarily on deputation, they cannot be treated
as a homogenous class as they trace their deputation to
independent sources. The AEs of TWAD Board are not
appointed by TNPSC. The other Departments do not include
statutory corporations like the TWAD Board.
18. Learned Advocate General, in support of his
contention that, in the absence of specific Rules,
deputationists from TWAD Board cannot compel anyone
including the Director, R.D. Department / Government to
regularise them in the R.D. Department itself, very much
relied on the following proposition in the decision reported
in 2001 (5) SCC 482 (cited supra),
” 7. The settled position of law
is that no government order, notification
or circular can be a substitute of the
statutory rules framed with the authority
of law. Following any other course would be
disastrous inasmuch as it would deprive the
security of tenure and right of equality
conferred upon the civil servants under the
constitutional scheme. It would be
negating the so far accepted service
jurisprudence. We are of the firm view
that the High Court was not justified in
observing that even without the amendment
of the Rules, Class II of the service can
be treated as Class I only by way of
notification. Following such a course in
effect amounts to amending the rules by a
government order and ignoring the mandate
of Article 309 of the Constitution. ”
In the above decision, the Supreme Court put in clear terms
that mere communication of the recommending authority to
consider the case of the deputationists for absorption and
for passing appropriate orders by competent authority cannot
give rise to legitimate expectation and promissory estoppel.
19. The above proposition has been considered and
approved in a subsequent decision reported in Union of India
v. V.Ramakrishnan (2005 (8) SCC 394). The following
conclusion of Their Lordships in paragraph No.32 is
relevant,
” 32. Ordinarily, a
deputationists has no legal right to
continue in the post. A
deputationists indisputably has no
right to be absorbed in the post to
which he is deputed. However, there
is no bar thereto as well. It may be
true that when deputation does not
result in absorption in the service
to which an officer is deputed, no
recruitment in its true import and
significance takes place as he is
continued to be a member of the
parent service. …”
In G. Nagendra vs. State of Karnataka (1998 (9)
SCC 439), the Supreme Court has held that rules framed under
Article 309 of the Constitution can be given retrospective
effect.
20. In the light of the Government Orders, Board’s
Proceedings, terms & conditions of deputation and the legal
principles enunciated by the Supreme Court, let us summarise
our conclusions with regard to the position of the writ
petitioners/TWAD Board Engineers, their right to claim
absorption and whether mandamus compelling the Government to
absorb the TWAD Board Engineers in the R.D. Department can
be issued,
First of all, the petitioners/deputationists have
no legal right vested in them so as to invoke the principles
of ‘legitimate expectation’, ‘promissory estoppel’, etc. and
claim absorption as a matter of right. Though the
petitioners struggle to substantiate their case by stating
that initially there was a proposal for their permanent
absorption in the R.D. Department, such position would have
definitely stood as a strong factor to take a decision in
their favour had the impugned Rule fell in such lines and
brought them under its scope of appointment. Apparently,
there was a stipulation that the absorption would be subject
to the framing of ad hoc rules, whereby, it was made clear
that their absorption would depend on the provisions
inscribed in the Rules to be framed. In other words, the
provisional absorption was conditional/contingent and not
absolute. Surprisingly, the petitioners did not question
their absorption subject to the framing of ad hoc rules.
Similarly, when they were informed as early as on 02.07.1999
that they cannot at all be absorbed in the R.D. Department,
they did not choose to challenge said order. That being so,
at this point of time, when Ad hoc rules have been framed,
which do not provide for absorption 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, claim for the
relief asked for by them. Further, the petitioners
themselves know well that services on contract basis in
accordance with Rule-11 of the State and Subordinate Service
Rules can be terminated by the Government as and when the
need for such services ceases. The petitioners cannot take
advantage of the order passed without jurisdiction by the
Director, R.D. Department, inasmuch as, admittedly, the
Government is the only authority to decide in the matter
relating to permanent absorption. It is the well known
principle that if an executive instruction is contrary to
the statutory/service rules, the rules will prevail and not
the executive instructions. Further, TWAD Board is an
undertaking of the Government of Tamil Nadu and appointments
made by it are outside the purview of TNPSC, whereas, the
post of A.E. in the R.D. Department comes within the purview
of the TNPSC, that being so, the deputationists, who were
not recruited through TNPSC and who rendered services in the
R.D. Department ‘on contract basis’ and retain their lien
with TWAD Board, cannot claim for absorption. As adverted
to already, the concept of deputation is consensual and
involves a voluntary decision of the employer to lend the
services of his employee and a corresponding acceptance of
such services by the borrowing employer. It also involves
the consent of the employee to go on deputation or not.
Here, the chain of consent is broken and not complete
amongst the TWAD Board, R.D. Department/Government and
petitioners, in that, the TWAD Board declined to give
consent; R.D. Department withdrew its earlier proposal for
absorption; and the ad hoc rules expelled the petitioners
from the zone of consideration for absorption/appointment;
hence, with the mere aspirations of the deputationists,
nothing can be done, for, legitimate expectation can be
justified if its edifice is built with the sanction of law.
Another aspect of the matter is, by not getting
permanent absorption in the R.D. Department, they cannot
complain prejudice because the doors of their parent
department are not closed for them in view of the
continuance of their lien therewith, with all applicable
allowances. Thus, in the absence of any statutory rule,
regulation or order, having the force of law, to trace the
right and claim of the deputationists for permanent
absorption in the R.D. Department, we can not close our eyes
to the propounded principles established by the Apex Court,
which cover aptly the issue involved, and issue mandamus
compelling the Government to absorb the deputationists.
21. Attacking the validity of the impugned Rules
framed in 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 the deputationists from TWAD Board as one of the
methods of appointment is arbitrary, illegal and violative
of Articles 14 and 16 of the Constitution of India.
(b) The impugned rules operate viciously against
the deputationists 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 from 26.09.1997, thereby affecting the acquired right
to continue in the R.D. Department, are arbitrary and
illegal.
(d) denial of absorption in the R.D. Department
under the guise of ad hoc Rules affect their legitimate
expectation.
(e) A section of employees, viz., Union Overseers
from Highways Department were given the relief of absorption
in G.O. Ms. No.102 and denial of the same relief to the
deputationists from TWAD Board is illegal and offends
Articles 14 and 16 of the Constitution of India.
In support of the above contentions, Mr.A.L.Somayaji
relied on 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
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 and others are deputationists from TWAD Board and they
are working in the R.D. Department. It is also true that
initially an order of absorption was made by the R.D.
Department. Subsequently, in view of the stand taken 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 the Rules, the deputationists were not made
eligible for appointment in the R.D. Department.
Para No.3 of the Rules deals with the method of
appointment and it provides that the post of A.E. can be
filled by (a) direct recruitment; (b) recruitment by
transfer; and (c) the ratio for appointment to the post by
Direct Recruitment and Recruitment by Transfer shall be 1:1.
The above provision makes it clear that the Rules do not
take in the deputationists under its method of appointment.
According to the petitioner, non-inclusion of the
deputationists in the method of appointment though they have
been working for the development of the Engineering Wing in
the R.D. Department violates Article-14 of the Constitution.
Service Rules have overriding effect on G.O. Ms. No.102,
R.D. Department, dated 25.05.1998, which is only an
executive Order. Further, it is brought to our notice that
the post of Assistant Engineer with same pay and allowance
is readily available to the petitioner and others in the
TWAD Board ie., their parent organisation. It is also
brought to our notice that the direct recruitment of A.E. in
R.D. Department was commenced as early as in September 1997
itself when the petitioner and others were working on
contract basis. They do not have any service rights as per
Rule 11 of the State and Subordinate Service Rules.
Admittedly, the petitioner and others are not Government
employees under the provisions contained in Fundamental
Rules. It is the specific stand of the Government as well
as the TWAD Board that the petitioner and others were
employed ‘on contract basis’ in accordance with the Rule-11
of the State and Subordinate Service Rules and can be
terminated by the Government when the need for his services
ceases. As observed by the Supreme Court in Kunal Nanda
vs. Union of India (AIR 2000 SC 2076), the petitioner and
others being deputationists have no legal right to get
absorbed in the borrowing Department. Their absorption in
the R.D. Department is not possible as per Service Rules.
As rightly pointed out, if the plea of the petitioner and
others is conceded, it will amount to inflicting gross
injustice to the unemployed engineering graduates and who
are waiting for recruitment through TNPSC. As stated
earlier, the post of Assistant Engineer with the same Pay
and Allowances is readily available to the petitioner and
others in their parent Organisation.
Though learned Senior Counsel appearing for the
petitioner questioned the validity of the ad hoc rules as
tainted with arbitrariness 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 the settled
legal position that the Courts should not interfere with
the executive/legislative decisions except to examine the
action in accordance with law and to determine as to whether
the legislature or executive has acted within the power and
functions assigned under the constitution; various points
raised by him in this regard have to be rejected in toto.
To the executive decision for absorption subject to framing
of ad hoc rules, the petitioner and others subjected
themselves, knowing well that they are bound by the outcome
of the said rules; hence, they cannot allege
unconstitutionality or arbitrariness when the Rules excluded
them from the purview of consideration for appointment. The
impugned Rules passed; sifting the non-governmental
employees, whose parent department is an autonomous Board,
after taking into consideration various aspects including
the initial reluctance on the part of the Board in sparing
their employees with the R.D. Department on the ground of
dearth of hands and apprehension of setbacks in their
activities; cannot at all be said to be offending Articles
14 and 16 of the Constitution. After all, whenever their
services are required by the parent Department, they have to
leave the borrowing department where they are posted on
deputation/contract basis only on public interest. Inasmuch
as the Constitution clearly circumscribes the areas of
legislative power and judicial power, none can encroach or
dominate upon the field occupied by the other. As
repeatedly pointed out, this Court has its own self-imposed
limits and any deviation would amount to transgressing into
the domain of the executive.
22. Insofar as the contention relating to
discrimination and different treatment for A.Es. from TWAD
Board, it is true that some of the personnel working in the
Highways Department as deputationists in the R.D. Department
were regularised. It is not in dispute that Highways
Department is a wing of the Government and appointments are
being made as per their Service Rules by following the
procedure. In other words, all appointments are being made
by the TNPSC by calling for a list of eligible persons from
the Employment Exchange. Admittedly, such procedure is not
in vogue in the appointment of AEs in the TWAD Board. In
such circumstances, merely because some of the Engineers in
the Highways Department were regularised, it cannot be cited
as a precedent even in the case of TWAD Board Engineers. In
the decision reported in 1990 (2) SCC 707 (Mallikarjuna Rao
and others vs. State of Andhra Pradesh and others), the
Hon’ble Supreme Court has held as follows:-
” 11. … It is neither legal
nor proper for the High Courts or the
Administrative Tribunals to issue
directions or advisory sermons to the
executive in respect of the sphere which is
exclusively within the domain of the
executive under the Constitution. ….
12. …….
13. The Special Rules have been
framed under Article 309 of the
Constitution of India. The power under
Article 309 of the Constitution of India to
frame rules is the legislative power. This
power under the Constitution has to be
exercised by the President or the Governor
of a State as the case may be. The High
Courts or the Administrative Tribunals
cannot issue a mandate to the State
Government to legislate under Article 309
of the Constitution of India. The courts
cannot usurp the functions assigned to the
executive under the Constitution and cannot
even indirectly require the executive to
exercise its rule making power in any
manner. The courts cannot assume to itself
a supervisory role over the rule making
power of the executive under Article 309 of
the Constitution of India. ”
In the decision reported in 2003 (2) SCC 632 (P.U.Joshi vs.
Accountant General), the following conclusions are relevant,
” 10. … Questions relating to
the constitution, pattern, nomenclature of
posts, cadres, categories, their
creation/abolition, prescription of
qualifications and other conditions of
service including avenues of promotions
and criteria to be fulfilled for such
promotions pertain to the field of policy
is within the exclusive discretion and
jurisdiction of the State, subject, of
course, to the limitations or restrictions
envisaged in the Constitution of India and
it is not for the statutory tribunals, at
any rate, to direct the Government to have
a particular method of recruitment or
eligibility criteria or avenues of
promotion or impose itself by substituting
its views for that of the State.
Similarly, it is well open and within the
competency of the State to change the
rules relating to a service and alter or
amend and vary by addition/subtraction the
qualifications, eligibility criteria and
other conditions of service including
avenues of promotion, from time to time,
as the administrative exigencies may need
or necessitate. Likewise, the State by
appropriate rules is entitled to
amalgamate departments or bifurcate
departments into more and constitute
different categories of posts or cadres by
undertaking further classification,
bifurcation or amalgamation as well as
reconstitute and restructure the pattern
and cadres/categories of service, as may
be required from time to time by
abolishing the existing cadres/posts and
creating new cadres/posts. There is no
right in any employee of the State to
claim that rules governing conditions of
his service should be forever the same as
the one when he entered service for all
purposes and except for ensuring or
safeguarding rights or benefits already
earned, acquired or accrued at a
particular point of time, a government
servant has no right to challenge the
authority of the State to amend, alter and
bring into force new rules relating to
even an existing service. ”
The above decisions of the Supreme Court make it clear that
the prayer of the TWAD Board Engineers to amend the Rules in
such a manner as to include the deputationists as one of the
methods of appointment cannot be granted by this Court and
no Court can interfere with the exclusive discretionary
jurisdiction of the State. Such being the position and in
view of the fact that the personnel from the Highways
Department stand on a different footing, the TWAD Board
Engineers cannot plead discrimination.
23. Though an argument was projected that the Rule
cannot be made applicable retrospectively, it is settled law
that while framing the Rules, the Government is free to fix
the relevant date from which the same shall come into force.
Though it was argued that the ad hoc rules take away the
vested rights of the Assistant Engineers, inasmuch as there
is no specific Rule enabling the R.D. Department to absorb
the Assistant Engineers from the TWAD Board, and even in the
ad hoc Rules framed, there is no provision for absorption,
the contrary argument of the learned counsel appearing for
the petitioners is liable to be rejected. Though absorption
was made by the R.D. Department within a short period, in
view of the stand taken by the Parent Department, viz., TWAD
Board, that their services are needed by the TWAD Board, the
order absorbing them in the R.D. Department was withdrawn by
the Director. As pointed out earlier, inasmuch as the
petitioners have no right to ask for absorption and in view
of the fact that very same post with same pay and allowances
are available in their parent Department viz., TWAD Board,
the challenge relating to validity of the Rules for not
providing a clause for appointing them in the R.D.
Department cannot be countenanced at all. Further, as held
by the Supreme Court reported in 1998 (9) SCC 439 (cited
supra), it is not correct to say that the rules framed under
Article 309 cannot be given retrospective effect.
Exclusion of the deputationists in view of their distinct
identity from the regular Government servants and
retrospective operation of the impugned rules framed under
Article 309 of the Constitution cannot be assailed as
violative of Articles 14 and 16 of the Constitution. While
considering the question as to whether retrospective
operation prescribed by the rules amounted to contravention
or infringement of the individuals’ rights, the Court has to
take into account all the relevant and surrounding
circumstances and in that connection, test of the length of
time covered by the retrospective operation, by itself,
cannot necessarily be a decisive test. To find out whether
the impugned rule with retrospective operation is reasonable
and not violative of any constitutional provisions, it
becomes relevant to enquire as to how the retrospective
effect operates. First of all, the impugned Rules take in
its sphere the individuals, who are exclusively government
servants entered service through the TNPSC and governed by
the relevant service rules applicable to the government
servants. Secondly, the individuals rendering their
services in a foreign department on contract basis cannot
compete with the insiders of that Department. Thirdly, the
parent Department of the deputationists is an autonomous
body and the entry thereto was not through TNPSC.
Inasmuch as no vested right of any deputationist is taken
away by the retrospective operation of the Rules, the
argument relating to alleged adverse impacts shall fall to
the ground.
24. In these circumstances, we find no merit in
the Writ Petitions filed by the deputationists from TWAD
Board and they are liable 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 retrospective effect are
constitutionally valid and in accordance with the statutory
provisions. The Writ Petition challenging the vires of
those Rules is also liable to be dismissed.
Insofar as the relief sought for by the Tamil Nadu
Rural Development Engineers’ Association in W.P. No.31510 of
2004, in view of our discussion particularly in respect of
the personnel from Highways Department in Para No.22 and
conclusion as seen from various paragraphs relating 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 the above direction and all other Writ Petitions are
dismissed. No costs. Connected Miscellaneous Petitions are
closed.
To
1. The Secretary, Rural Development Department,
Fort St. George, Chennai-9.
2. 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.
