{"id":3914,"date":"2007-01-29T00:00:00","date_gmt":"2007-01-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-m-mari-vs-the-state-of-tamil-nadu-on-29-january-2007"},"modified":"2017-07-09T00:54:29","modified_gmt":"2017-07-08T19:24:29","slug":"p-m-mari-vs-the-state-of-tamil-nadu-on-29-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-m-mari-vs-the-state-of-tamil-nadu-on-29-january-2007","title":{"rendered":"P.M.Mari vs The State Of Tamil Nadu on 29 January, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
P.M.Mari vs The State Of Tamil Nadu on 29 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n           IN THE HIGH COURT OF JUDICATURE AT MADRAS\n                              \n                    Dated:-   29.01.2007\n                              \n                           Coram:-\n                              \n            The Hon'ble Mr. Justice P.SATHASIVAM\n                             and\n             The Hon'ble Mr. Justice S.MANIKUMAR\n                              \n         Writ Petition Nos.19401 to 19410\/04, 20676\n           to 20681\/04, 22268 to 22277\/04, 31510 &\n            31561\/04, 26807\/05 and 33503 of 2006\n                             and\n         WPMP Nos.23349\/04, 40562 to 40571\/04, 24891\n           to 24896\/04, 38244\/04, 2135 & 29253\/05,\n         11920 to 11924\/06 and WVMP No.2114 of 2005\n\n\n\n\nW.P. No.19401 of 2004:-\n\nP.M.Mari                                ... Petitioner\n\n\t\t\t\tvs.\n\n1. The State of Tamil Nadu,\nrep. by the Secretary,\nRural Development Department,\nFort St. George, Chennai-9.\n\n2. Director of Rural Development\nPanagal Buildings, IV Floor,\nSaidapet, Chennai-15.\n\n3. S.Aruchamy, Assistant Engineer (RD),\nUdumalapet Panchayat Union,\nCoimbatore District.\n\n4. The Managing Director,\nT.N. Water Supply and Drainage Board,\nKamarajar Salai,\nChennai 600 005. (R-3 and R-4 impleaded\nas per orders of the Court)             ... Respondents<\/pre>\n
WP.19401\/04:- Petition under Article 226 of the Constitution<\/p>\n
of  India  for the issuance of a writ of mandamus as  stated<\/p>\n
therein.\n<\/p>\n<\/p>\n
     For petitioners in WP
\n     Nos.19402, 19406, 19407  : Mr.Sanjay Mohan, for
\n     and 19408 of 2004             Mr.K.Rajkumar<\/p>\n
     For Petitioners in WP
\n     Nos.19410, 20678, 22268  :    Ms.R.Vaigai,
\n     and 22273 of 2004             for Mr.G.Rajesh.\n<\/p>\n
     For Petitioner in WP
\n          No.33503 of 2006    :    Mr.AL.Somayaji, Senior
\n                              Counsel for Mr.K.Rajkumar<\/p>\n
     For Petitioner in WP
\n     Nos.19404, 19405, 19409  :    Mr.AL.Somayaji, Senior
\n     and 19401\/2004           Counsel for Mr.S.Govindaprasad<\/p>\n
     For Petitioner in WP
\n     Nos.22269, 22272, 22274  :    Mr.V.K.Muthusamy, Senior
\n     and 22276 of 2004        Counsel for Mr.R.Muthukrishnan<\/p>\n
     For Petitioner in WP
\n     Nos.20676 to 20681\/04    :    Mr.R.Syed Mustafa<\/p>\n
     For Petitioner in WP
\n     No.31510 of 2004         :    Mr.C.Selvaraju, Senior
\n                         Counsel for Mr.Srinath Sridevan<\/p>\n
     For Petitioner in WP
\n     Nos.19403, 22270, 22271, :    Mrs.Hema Sampath
\n     22275, 22277 & 31561\/04<\/p>\n
     For R-3 in WPs.19401 to
\n     19410\/04, 20676 to 20681\/04:  Mr.R.Thiyagarajan,
\n     26807\/05 and for petitioner   Senior Counsel.
\n     in WVMP 2114 of 2005
\n     For TWAD Board           :    Mr.Sudharshana Sundhar<\/p>\n
     For State (in all matters):   Mr.R.Viduthalai,
\n                            Advocate General, assisted by
\n                            Mr.P.Subrmanian, Govt. Advocate<\/p>\n
                       COMMON JUDGMENT<\/p>\n
   (Judgment of the Court, delivered by P.SATHASIVAM, J.)<\/p>\n
           Petitioners,  working  in the  Rural  Development<\/p>\n
Department  on deputation from Tamil Nadu Water  Supply  and<\/p>\n
Drainage Board (in short TWAD Board), pray to issue  a  writ<\/p>\n
of  mandamus,  directing the respondents – Secretary,  Rural<\/p>\n
Development Department (in short R.D. Department),  and  the<\/p>\n
Director,  Rural  Development, Chennai, to  absorb  them  as<\/p>\n
Assistant Engineers, R.D. Department, from the date of their<\/p>\n
appointment  pursuant to the directions in  G.O.Ms.  No.102,<\/p>\n
dated 25.5.1998, issued by the Government of Tamil Nadu.<\/p>\n
           II.  Some  of the petitioners seek to  quash  the<\/p>\n
letter of the TWAD Board, dated 27.12.2004, and pray  for  a<\/p>\n
consequential  direction to give  effect  to  the  order  of<\/p>\n
absorption  issued  by the Director  of  R.D.  made  in  his<\/p>\n
proceedings dated 17.03.1999.  They also pray to  hold  that<\/p>\n
his  order dated 02.07.1999, cancelling absorption of  A.Es.<\/p>\n
of TWAD Board in R.D. Department, is void.<\/p>\n
           III. In one Writ Petition, viz., W.P. No.35303 of<\/p>\n
2006,  the  petitioner has prayed for a writ of declaration,<\/p>\n
declaring,<\/p>\n
                (a)  para 2 of Notification IV of  G.O.  Ms.<\/p>\n
No.15,   R.D.  (E1)  Department,  dated  25.01.2000,  giving<\/p>\n
retrospective effect to the Ad hoc Rules from 26.09.1997, as<\/p>\n
void,<\/p>\n
               (b) non-inclusion of deputationists from TWAD<\/p>\n
Board  as  one of the methods of appointment for recruitment<\/p>\n
to  the  post of Assistant Engineer in Rule-3 of the ad  hoc<\/p>\n
Rules in G.O.Ms. No.15 as void.\n<\/p>\n
Apart from the above relief, the petitioner also seeks for a<\/p>\n
consequential  direction to include the deputationists  from<\/p>\n
TWAD  Board as one of the methods of appointment in  Rule  3<\/p>\n
and  absorb him as Assistant Engineer in the R.D. Department<\/p>\n
with all consequential benefits.\n<\/p>\n
          IV. In W.P. No.31510 of 2004, The Tamil Nadu Rural<\/p>\n
Development  Engineers’  Association  through  its   General<\/p>\n
Secretary P.Ravikumar, prays for the issuance of a  writ  of<\/p>\n
mandamus,  directing  the  Secretary  to  Government,   R.D.<\/p>\n
Department, and Director of R.D., Chennai-15, to  repatriate<\/p>\n
the Assistant Engineers\/Assistant Executive Engineers of the<\/p>\n
present    Highways   Department\/Agricultural    Engineering<\/p>\n
Department  and Dharmapuri District Development Corporation,<\/p>\n
possessing   a  Bachelor’s  Degree  or  its  equivalent   in<\/p>\n
Mechanical  and  Agricultural Engineering,  and  all  Junior<\/p>\n
Engineers, Assistant Engineers\/Assistant Executive Engineers<\/p>\n
of   various  other  Technical  Departments,  who   are   on<\/p>\n
deputation\/on  contract  basis  and  serving  in  the   R.D.<\/p>\n
Department  beyond  five years, to their  respective  parent<\/p>\n
Departments  forthwith  and  maintain  the  cadre   strength<\/p>\n
between  Assistant Engineers\/Junior Engineers  of  the  R.D.<\/p>\n
Department as stipulated in the Rules in force.<\/p>\n
           2. Since the reliefs sought for in all these Writ<\/p>\n
Petitions are interconnected and the W.Ps. having been filed<\/p>\n
by two sets of individuals;  viz., deputationists from other<\/p>\n
departments  to  R.D. Department on the  one  hand,  seeking<\/p>\n
absorption and promotion in the present Department; and  the<\/p>\n
insiders\/in-service personnel of the R.D. Department on  the<\/p>\n
other  hand, claiming repatriation of the deputationists  to<\/p>\n
their respective parent Departments; they are being disposed<\/p>\n
of by the following common judgment.\n<\/p>\n<\/p>\n
            3.   As   the  Writ  Petitions  filed   by   the<\/p>\n
deputationists contain common pleas, we cull out  the  facts<\/p>\n
from some of the Writ Petitions:-\n<\/p>\n
           A.  For convenience, at first, we shall refer the<\/p>\n
case of P.M.Mari, petitioner in W.P. No.19401 of 2004.<\/p>\n
           He is an Engineer with B.E. in Civil Engineering.<\/p>\n
He   joined  the  TWAD  Board  on  10.06.1985  as  Assistant<\/p>\n
Engineer.   In 1997, he was sent on deputation to  the  R.D.<\/p>\n
Department when ‘Engineering Wing’ was started there.   This<\/p>\n
was  under G.O. Ms. No.263, dated 27.12.1996, issued by  the<\/p>\n
Government  – first respondent.  Additional technical  posts<\/p>\n
sanctioned under the said Government Order were directed  to<\/p>\n
be  filled up on deputation\/by transfer of service basis for<\/p>\n
a  period  of three years as temporary measure.  At present,<\/p>\n
he  is working as Assistant Engineer in the R.D. Department.<\/p>\n
The Director of R.D., Chennai-15, following the notification<\/p>\n
dated  21.01.1997, requested the Collectors to issue  orders<\/p>\n
to  individuals  who  had  been selected  from  the  willing<\/p>\n
candidates  from  the Highways, Rural Works  Department  and<\/p>\n
TWAD  Board.   Persons, who went on deputation,  were  found<\/p>\n
eligible  and suitable based on their qualifications.  Along<\/p>\n
with the petitioner, a number of persons from the TWAD Board<\/p>\n
also came to the R.D. Department on deputation.  In G.O. Ms.<\/p>\n
No.102,  R.D.  Department, dated 25.05.1998, the  Government<\/p>\n
directed  the Director to report about permanently absorbing<\/p>\n
Assistant  Engineers  from  other Technical  Departments  by<\/p>\n
giving  them  weightage for the service put in  by  them  in<\/p>\n
their   respective  parent  departments.   Based   on   such<\/p>\n
direction,  ad  hoc rules were framed by the Government  for<\/p>\n
the persons holding temporary posts.  These rules were based<\/p>\n
on  the  earlier Government Orders in G.O. Ms.  Nos.263  and<\/p>\n
102.  The Rule relating to the appointment contemplated  the<\/p>\n
following,<\/p>\n
                 (a) by direct recruitment;\n<\/p>\n
                (b)   recruitment  by   transfer   from<\/p>\n
      overseer in the RD Department;\n<\/p>\n
                   (c) the ratio for appointment to the<\/p>\n
      post  by  direct  recruitment and recruitment  by<\/p>\n
      transfer shall be 1:1.\n<\/p>\n
According to the petitioner, he comes within the category of<\/p>\n
direct recruitment which contemplated only a degree in Civil<\/p>\n
Engineering  among  other  things.   G.O.Ms.  No.15,   dated<\/p>\n
25.01.2000,  shall be deemed to have come into  effect  from<\/p>\n
25.05.1998.  Even on 17.3.1999, the Director had  passed  an<\/p>\n
order  for  permanent absorption of 125 Assistant  Engineers<\/p>\n
working  on  deputation from various other departments  into<\/p>\n
the   RD  Department.  But,  on  2.7.1999,  this  order  was<\/p>\n
cancelled by him as the Managing Director of the TWAD  Board<\/p>\n
had refused to accept the proposal for absorption of persons<\/p>\n
deputed from the Board by his letter dated 15.4.1999.  After<\/p>\n
sometime,   the  Director  was  informed  by  the   Managing<\/p>\n
Director,  TWAD  Board, on 22.07.1999, that  the  Board  was<\/p>\n
willing  for  the  permanent  absorption  of  the  Assistant<\/p>\n
Engineers on deputation by the R.D. Department.  Willingness<\/p>\n
was  conveyed to the first respondent\/Government  also.   In<\/p>\n
spite of those proceedings, there was a lot of confusion  in<\/p>\n
the  office  of the Director, R.D., whereupon, the  Director<\/p>\n
issued   proceedings  dated  10.03.2004  to   the   District<\/p>\n
Collectors  asking  them  to  give  particulars  about   the<\/p>\n
Assistant Engineers who have been recruited by the TNPSC  to<\/p>\n
enable him to promote them as Assistant Executive Engineers.<\/p>\n
The  petitioners  and  other similarly placed  persons  gave<\/p>\n
representations  to  the  respondents,  requesting  them  to<\/p>\n
include  their  names in the panel for promotion.   So  far,<\/p>\n
they  have  not  received any reply.   They  apprehend  that<\/p>\n
promotion  would  be  made without  including  their  names.<\/p>\n
Hence,  they  filed several writ petitions,  seeking  for  a<\/p>\n
direction  to  the respondents to absorb them  as  Assistant<\/p>\n
Engineers  in  the R.D. Department from the  date  of  their<\/p>\n
appointment  pursuant to the direction in G.O. No.102  dated<\/p>\n
25.05.1998 issued by the first respondent.<\/p>\n
           B.  P.M.Mari and others joined together and filed<\/p>\n
W.P.  No.26807 of 2005 making similar contentions  to  those<\/p>\n
raised in W.P. No.19401 of 2004.\n<\/p>\n<\/p>\n
          C. In W.P. No.33503 of 2006, filed by T.Venkatesh,<\/p>\n
an  Assistant Engineer directly recruited in TWAD Board, now<\/p>\n
in  the R.D. Department, it is stated that the Government of<\/p>\n
Tamil Nadu, with a view to have a separate Engineering  Wing<\/p>\n
in the R.D. Department created certain posts.  One such post<\/p>\n
is Assistant Engineer or Additional Union Engineer.  To meet<\/p>\n
the immediate requirement and development of the Engineering<\/p>\n
Wing, the Government directed to draw Assistant Engineers by<\/p>\n
way   of   deputation  from  various  Technical  Departments<\/p>\n
including TWAD Board as the same has been considered as  one<\/p>\n
of  the  Technical  Departments. Accordingly,  options  were<\/p>\n
called for by the Director of Rural Development through  the<\/p>\n
respective Collectors who in turn obtained the same from the<\/p>\n
Superintending  Engineers of the TWAD Board. The  petitioner<\/p>\n
expressed  his  willingness  to  go  on  deputation.   Since<\/p>\n
January  1997,  he has been working continuously  till  this<\/p>\n
date.   The Government took a policy decision to absorb  the<\/p>\n
deputationists  and  issued  G.O.Ms.  No.102,   R.D.   (EIV)<\/p>\n
Department,  dated  25.05.1998,  wherein,  it  directed  the<\/p>\n
Director of R.D. to explore the possibility of absorbing all<\/p>\n
the  deputationists in the R.D. Department.  Though the said<\/p>\n
order  was implemented initially, the same was cancelled  on<\/p>\n
02.07.1999 on the ground of not giving consent by  the  TWAD<\/p>\n
Board.   However, the said deficiency was made good  by  the<\/p>\n
succeeding  Managing Director of the TWAD Board  by  sending<\/p>\n
two letters on 22.07.1999 and 12.10.1999, giving willingness<\/p>\n
for   permanent  absorption  of  their  staff  in  the  R.D.<\/p>\n
Department.   On the basis of those letters, the  petitioner<\/p>\n
was  allowed  to  continue beyond the period of  deputation.<\/p>\n
The  petitioner and others were hoping that  they  would  be<\/p>\n
permanently  absorbed and given all service  benefits,  but,<\/p>\n
nothing has been done.\n<\/p>\n
          The Government framed ad hoc Rules for the post of<\/p>\n
Assistant  Engineers in the R.D. Department  vide  G.O.  Ms.<\/p>\n
No.15,  Rural Development (E1) Department, dated 25.01.2000.<\/p>\n
The  Rules  had come into effect from 26.09.1997.  Paragraph<\/p>\n
No.3  of the Rules deals with the method of appointment  and<\/p>\n
it  provides  that  the post of Assistant  Engineer  can  be<\/p>\n
filled  by  (a)  Direct  Recruitment;  (b)  Recruitment   by<\/p>\n
transfer;   and  (c)  Ratio  of  1:1  provided  for   Direct<\/p>\n
Recruitment and recruitment by transfer.  However, the Rules<\/p>\n
do  not  take  in  the deputationists under  its  method  of<\/p>\n
appointment  and  thereby the right  of  the  petitioner  to<\/p>\n
continue  in  the  Department is curtailed.   Further,  non-<\/p>\n
inclusion  of  deputationists in the method  of  appointment<\/p>\n
though  they  have been working for the development  of  the<\/p>\n
Engineering Wing in the R.D. Department violates Article  14<\/p>\n
of the Constitution.\n<\/p>\n
           The  petitioner entered the R.D. Department  long<\/p>\n
before  the  issue  of  ad hoc rules,  that  being  so,  the<\/p>\n
retrospective  effect of the rules from  26.09.1997  affects<\/p>\n
his right very much, because, even before passing of orders,<\/p>\n
an  absorption order has been issued, subject to framing  of<\/p>\n
rules.   Such being the case, the authorities ought to  have<\/p>\n
made a provision to include the deputationists as one of the<\/p>\n
methods  of  appointment so as to give effect to the  orders<\/p>\n
already  passed  in  favour of the  petitioner  and  others.<\/p>\n
Hence, the ad hoc rules are ultra vires the Constitution  of<\/p>\n
India.\n<\/p>\n<\/p>\n
           3(a).  Now, we shall briefly narrate the case  of<\/p>\n
the petitioner-association (in-service personnel of the R.D.<\/p>\n
Department) in W.P. No.31510 of 2004.\n<\/p>\n
            According  to  the  General  Secretary  of   the<\/p>\n
petitioner-Association, R.D. Department has  been  executing<\/p>\n
several  State \/ Centrally sponsored Anti-Poverty Programmes<\/p>\n
besides  executing development works out  of  the  funds  of<\/p>\n
Panchayat   and  Panchayat  Unions  by  employing  technical<\/p>\n
personnel   of   the  erstwhile  Highways  &   Rural   Works<\/p>\n
Departments on service lend basis upto 1996.  Consequent  to<\/p>\n
the  Constitutional  73rd Amendment, introducing  new  Tamil<\/p>\n
Nadu Panchayats Act, 1994, and of the fact that several  new<\/p>\n
schemes to be implemented, it became inevitable on the  part<\/p>\n
of  the Government to create a separate Engineering Wing for<\/p>\n
the R.D. Department. By G.O.Ms. No.263, RD Department, dated<\/p>\n
27.12.1996,  the  Government decided to set  up  a  separate<\/p>\n
Engineering Wing for the R.D. Department.  By virtue of  the<\/p>\n
said  Government Order, new posts were created in  the  R.D.<\/p>\n
Department.   However,  no Service  Rules  were  framed  and<\/p>\n
notified for appointment to those posts at the relevant time<\/p>\n
(during 1996).  Hence, the posts were initially filled up by<\/p>\n
drawing  personnel  from  other  technical  departments   of<\/p>\n
Government  of  Tamil  Nadu  like TWAD  Board,  Agricultural<\/p>\n
Engineering  Department,  P.W.D,  etc.  including   Highways<\/p>\n
Department  ‘on  Deputation Basis’ as a  temporary  measure.<\/p>\n
According to the petitioner, the above arrangement was  very<\/p>\n
unsatisfactory since the deputationists had no commitment or<\/p>\n
motivation  for executing the various time-bound schemes  of<\/p>\n
the  R.D. Department. The Association of Tamil Nadu Highways<\/p>\n
Engineers’  opposed the creation of a separate  ‘Engineering<\/p>\n
Wing’ under the R.D. Department, claiming that all the posts<\/p>\n
created  by virtue of G.O. Ms. No.263 be earmarked only  for<\/p>\n
Engineers   of  the  erstwhile  Highways  and  Rural   Works<\/p>\n
Department.\n<\/p>\n
           Certain personnel on deputation basis at  various<\/p>\n
points  of time since 1996 opted for repatriation  to  their<\/p>\n
parent Departments as various lending Departments could  not<\/p>\n
sponsor the required number of eligible Engineers willing to<\/p>\n
serve  in  the R.D. Department.  The Government  decided  to<\/p>\n
fill  up  200 posts of AE (RD) by Direct Recruitment through<\/p>\n
TNPSC by notification dated 26.09.1997.  The Government also<\/p>\n
framed  necessary  Service Rules in  G.O.  Ms.  No.15  dated<\/p>\n
25.01.2000.   The constitutional validity of both  G.O.  Ms.<\/p>\n
Nos.102  and 15 were challenged before the Tamil Nadu  State<\/p>\n
Administrative Tribunal by a group of individuals and by the<\/p>\n
Association  of  Tamil Nadu Engineering Graduates,  however,<\/p>\n
both the Government Orders were upheld by the Administrative<\/p>\n
Tribunal.  The personnel working in the R.D. Department were<\/p>\n
not   given  proper  promotions.  On  the  other  hand,  the<\/p>\n
deputationists \/ ‘on contract basis personnel’ are occupying<\/p>\n
various  posts  of  AE\/AEEs without any specific  and  valid<\/p>\n
order against the Rules in Force.\n<\/p>\n
           There  are  nearly  20 AEs\/AEEs,  who  have  been<\/p>\n
deputed  from Highways Department, Agricultural  Engineering<\/p>\n
Department  and Dharmapuri District Development Corporation,<\/p>\n
belonging to Government of Tamil Nadu, with Bachelors Degree<\/p>\n
qualification (B.E.\/B.Tech) entrusted with the execution  of<\/p>\n
various Panchayat Union Works in the R.D. Department.   They<\/p>\n
are  not  fully competent enough to execute \/ supervise  the<\/p>\n
works  as  per  specifications and exercise quality  control<\/p>\n
over  the  works.  Moreover, the qualification possessed  by<\/p>\n
them  is  against the provisions contained  in  the  Service<\/p>\n
Rules  framed by the Government of Tamil Nadu under  Article<\/p>\n
309  of  the  Constitution of India, hence, their  continued<\/p>\n
presence  in the R.D. Department is illegal and against  the<\/p>\n
interests  of the R.D. Department and general public.    The<\/p>\n
petitioner-association  made  several   representations   to<\/p>\n
various authorities in the Government of Tamil Nadu  and  to<\/p>\n
the   Secretary,  Tamil  Nadu  Public  Service   Commission,<\/p>\n
complaining  about  the illegality being committed.  Similar<\/p>\n
persons,  unqualified and not fit enough  to  continue,  are<\/p>\n
also  continuing  from  TWAD  Board  and  Tamil  Nadu  State<\/p>\n
Construction  Corporation and they are to be repatriated  to<\/p>\n
their   respective  parent  Departments.    There  are   295<\/p>\n
Engineers   (AEs\/JEs)   from   various   other   Engineering<\/p>\n
Departments of Government of Tamil Nadu, working in the R.D.<\/p>\n
Department  ‘on  deputation’ \/ ‘on  contract’  basis  as  on<\/p>\n
18.08.2004,  which is about 35-40% of the  total  sanctioned<\/p>\n
posts  of  AEs\/JEs  in the R.D. Department.   Such  a  large<\/p>\n
number  of  ‘deputationists’ \/ ‘on contract  personnel’  are<\/p>\n
blocking the promotional avenues of the in-service personnel<\/p>\n
in the R.D. Department.  The continued presence of nearly  a<\/p>\n
large  number  of Engineers ‘on deputation’ \/  ‘on  contract<\/p>\n
basis’  beyond legally permissible period is leading to  the<\/p>\n
creation  of  vested  interests  being  developed  by   such<\/p>\n
‘deputationists’   \/   ‘on  contract   personnel’,   thereby<\/p>\n
jeopardise  the very purpose of the creation of  a  separate<\/p>\n
Engineering  Wing in the R.D. Department for  executing  the<\/p>\n
Panchayat  Union time-bound schemes sponsored by  Central  \/<\/p>\n
State  Governments and also completely block the promotional<\/p>\n
opportunities available to the in-service Engineers  of  the<\/p>\n
R.D.  Department  including the members of  the  petitioner-<\/p>\n
association.\n<\/p>\n<\/p>\n
           4. Though the State Government \/ first respondent<\/p>\n
(R.D. Department) has not filed counter affidavit in all the<\/p>\n
Writ  Petitions,  they  highlighted their  stand  by  filing<\/p>\n
counter  affidavit in W.P. No.33503 of 2006. They  explained<\/p>\n
the  reason  for formation of ‘Engineering Wing’ exclusively<\/p>\n
for the R.D. Department by referring to G.O. Ms. No.263 R.D.<\/p>\n
Department  dated  27.12.1996.  Based on the  same,  several<\/p>\n
Engineering  personnel were drawn temporarily on  deputation<\/p>\n
basis  from  other  departments  like  Highways  Department,<\/p>\n
Agricultural   Engineering  department,  TWAD   Board   etc.<\/p>\n
However,  this arrangement led to lot of operation problems,<\/p>\n
therefore,  G.O.  Ms.  No.102, R.D. (E1)  Department,  dated<\/p>\n
25.05.1998,  was  issued, whereby; clear  instructions  were<\/p>\n
issued to the Chief Engineer (Highways) to stop posting  his<\/p>\n
personnel to the newly sanctioned posts.  With regard to the<\/p>\n
claim of the petitioner in W.P. No.33503 of 2006 that he was<\/p>\n
recruited  by  the TWAD Board, it is pointed out  that  TWAD<\/p>\n
Board   is  not  a  Government  Department  but  it  is   an<\/p>\n
independent  body created under the Tamil Nadu Water  Supply<\/p>\n
and  Drainage Board Act, 1970.    The petitioner  is  not  a<\/p>\n
Government  Servant.  If he wants to join  in  a  Government<\/p>\n
Department, he should either be recruited afresh through the<\/p>\n
Tamil  Nadu  Public  Service Commission (TNPSC)  or  through<\/p>\n
Employment exchange as specified in the Tamil Nadu State and<\/p>\n
Subordinate  Service  Rules.   There  is  no  other  way  of<\/p>\n
entering into the Government Service except through the said<\/p>\n
two  ways specified.  The petitioner is employed on contract<\/p>\n
basis   in  accordance  with  Rule  11  of  the  State   and<\/p>\n
Subordinate Service Rules.\n<\/p>\n
           In  G.O. Ms. No.102, R.D. (E1) Department,  dated<\/p>\n
25.05.1998,  there  was  a  direction  to  absorb   Highways<\/p>\n
Department  personnel  only and not  TWAD  Board  personnel.<\/p>\n
Even  otherwise,  the  said Government  Order  directed  the<\/p>\n
Director, R.D., to explore the possibility or absorbing  the<\/p>\n
deputationists  from  the borrowing department,  hence,  the<\/p>\n
question   of  absorbing  the  deputationists   from   other<\/p>\n
departments  is  only a possibility and  not  finality.  The<\/p>\n
Director  of  R.D.  absorbed Assistant  Engineers  of  other<\/p>\n
Departments provisionally by his proceedings dated 17.3.1999<\/p>\n
without   waiting  for  the  Government’s  clearance.    The<\/p>\n
absorption of personnel belonging to Highways Department and<\/p>\n
TWAD  Board  was  objected  to by the  respective  Heads  of<\/p>\n
Departments.    The   Director  of   R.D.,   realising   the<\/p>\n
infirmities in the absorption order, cancelled the  same  by<\/p>\n
proceedings dated 02.07.1999.  The petitioner was  taken  to<\/p>\n
the  R.D.  Department  only on contract  basis  and  he  has<\/p>\n
absolutely  no right to challenge the statutory  rule  which<\/p>\n
has  been  framed exclusively for the engineers of the  R.D.<\/p>\n
Department.   The petitioner has not been appointed  from  a<\/p>\n
Government  Service;  hence,  his  appointment  is  made  on<\/p>\n
‘contract   basis’.    The   question   of   absorbing   the<\/p>\n
deputationists is only a possibility and not finality.  Even<\/p>\n
otherwise,  the instructions issued in the Government  Order<\/p>\n
are only for the personnel working in Government Departments<\/p>\n
and  not  for  those  in statutory Boards  or  Corporations.<\/p>\n
Further,  the Government had not decided to absorb  all  the<\/p>\n
deputationists and had directed the Director of R.D. only to<\/p>\n
explore the possibility of absorption.  In the meanwhile, as<\/p>\n
ad  hoc  rules were framed, the orders issued on  25.05.1998<\/p>\n
had  become  null  and void and ceased to have  any  effect.<\/p>\n
Since  the  order  of the Director, R.D., suffers  from  two<\/p>\n
infirmities, the Director himself withdrew the same within a<\/p>\n
period  of four months.  The Government have issued  ad  hoc<\/p>\n
rules  for R.D. Engineering Service in G.O. Ms. No.15,  R.D.<\/p>\n
Department,  dated  25.1.2000.   According  to  the  Service<\/p>\n
Rules,  there  are  only  two ways  for  entering  into  the<\/p>\n
service, viz., (a) Direct Recruitment through TNPSC and  (2)<\/p>\n
recruitment by transfer from the category of Overseer in the<\/p>\n
R.D.  Department.   There  is  no  provision  for  absorbing<\/p>\n
employees  of  other  organisations.   Service  Rules   have<\/p>\n
overriding  effects  on  G.O. Ms. No.102,  R.D.  Department,<\/p>\n
dated  25.5.1998,  which is only an  executive  order.   The<\/p>\n
petitioner is not a Government Employee under the provisions<\/p>\n
contained in Fundamental Rules.  He was employed on contract<\/p>\n
basis   in  accordance  with  Rule  11  of  the  State   and<\/p>\n
Subordinate  Service  Rules and can  be  terminated  by  the<\/p>\n
Government  when the need for his services ceases.   If  the<\/p>\n
plea  of  the petitioner is conceded to, it would amount  to<\/p>\n
inflicting  gross  injustice to the  unemployed  engineering<\/p>\n
graduates  and  who are waiting for employment  through  the<\/p>\n
TNPSC.\n<\/p>\n
           The ad hoc Rules issued for the post of Assistant<\/p>\n
Engineer are not arbitrary and violative of Article  14  and<\/p>\n
16   of  the  Constitution  of  India  as  contended.    The<\/p>\n
petitioner  does  not  belong to R.D.  Engineering  Service;<\/p>\n
hence, he has no locus standi to challenge the service rules<\/p>\n
as  contained  in  G.O.  Ms. No.15, R.D.  Department,  dated<\/p>\n
25.01.2000.  The petitioner appointed on contract basis from<\/p>\n
TWAD  Board has therefore no legal right to get absorbed  in<\/p>\n
the borrowing Department.\n<\/p>\n<\/p>\n
           5.  The Managing Director, TWAD Board, has  filed<\/p>\n
counter affidavit in W.P. No.26807 of 2005, wherein,  it  is<\/p>\n
stated   that,  as  requested  by  the  Director   of   R.D.<\/p>\n
Department, certain Engineers of TWAD Board were deputed  to<\/p>\n
R.D.  Department as per terms and conditions for appointment<\/p>\n
of  personnel from the Public Sector Undertakings\/Boards  in<\/p>\n
Government Services.  While the Assistant Engineers of  TWAD<\/p>\n
Board  were working in the District Rural Development Agency<\/p>\n
on  deputation basis, the Director of R.D. issued orders  in<\/p>\n
his   proceedings  dated  17.3.1999  among   other   things,<\/p>\n
absorbing 57 Assistant Engineers belonging to TWAD Board  in<\/p>\n
the  R.D.  Department,  based on their  exercise  of  option<\/p>\n
subject  to certain conditions, pending framing  of  ad  hoc<\/p>\n
rules for Tamil Nadu Rural Development Engineering Services.<\/p>\n
However,  the Managing Director, TWAD Board, in his  letter,<\/p>\n
dated  15.04.1999, informed to the R.D. Department that  the<\/p>\n
said exercise of option is not acceptable to the TWAD Board.<\/p>\n
Since  the  services of Assistant Engineers are  essentially<\/p>\n
required  for the current year work of the TWAD  Board,  the<\/p>\n
Managing Director, TWAD Board, requested the Director,  R.D.<\/p>\n
Department,  to revert back all the Assistant  Engineers  to<\/p>\n
the  TWAD Board immediately.  In those circumstances, orders<\/p>\n
issued   for  permanent  absorption  of  the  57   Assistant<\/p>\n
Engineers  belonging  to TWAD Board were  cancelled  by  the<\/p>\n
Director  of  R.D.  Subsequently, the Managing Director,  in<\/p>\n
his  letter dated 22.07.1999, informed the Director  of  the<\/p>\n
R.D. Department that TWAD Board is willing for the permanent<\/p>\n
absorption of its Assistant Engineers.  Based on  the  same,<\/p>\n
the Director, R.D., in his Circular dated 16.11.1999 ordered<\/p>\n
that the A.Es. of the TWAD Board may be retained in the R.D.<\/p>\n
Department till a final decision is taken by the Government.<\/p>\n
Again,  when  the consent of the TWAD Board was sought  for,<\/p>\n
considering the financial position, a letter was sent to the<\/p>\n
Director,  R.D.,  in Managing Director’s  proceedings  dated<\/p>\n
27.12.2004, informing that the Board is not in a position to<\/p>\n
accept  any permanent absorption of Board’s AEs\/AEEs in  the<\/p>\n
R.D.  Department.  The TWAD Board denied the allegation that<\/p>\n
the  continuance of petitioners in the R.D. Department gives<\/p>\n
them  a  right  to  the post of Additional Union  Engineers.<\/p>\n
The  Assistant Engineers deputed from TWAD Board  have  been<\/p>\n
working  in  the  R.D.  Department  beyond  the  period   of<\/p>\n
deputation  for  three years  and their continuance  in  the<\/p>\n
said  Department is subject to the decision to be  taken  by<\/p>\n
the  Director  of R.D. \/ Government.  Though originally  the<\/p>\n
M.D. consented for absorption, subsequently, taking note  of<\/p>\n
various aspects including dearth of hands in the TWAD Board,<\/p>\n
he  conveyed  his  decision  not  to  accept  any  permanent<\/p>\n
absorption of A.Es. in the R.D. Department.<\/p>\n
           6.  Some  of  the petitioners filed a  Rejoinder,<\/p>\n
reiterating  their earlier stand.  All of  them  denied  the<\/p>\n
allegation  of the R.D. Department and the TWAD  Board  that<\/p>\n
their  employment was on contract basis.  According to them,<\/p>\n
when  the  Government decided to absorb Union Overseers  who<\/p>\n
came  on  deputation  from  Highways  and  they  were  given<\/p>\n
promotion  as  Assistant Engineers for  209  Blocks,  it  is<\/p>\n
arbitrary and discriminatory to deny the same benefit to the<\/p>\n
personnel from TWAD Board and the same would be violative of<\/p>\n
Articles 14 and 16 of the Constitution of India.<\/p>\n
           7.  Persons, working in the R.D. Department,  who<\/p>\n
are  shown as respondents, filed a reply affidavit, wherein,<\/p>\n
it  is  stated  that  TWAD Board is an  undertaking  of  the<\/p>\n
Government  of  Tamil  Nadu  and  the  mode  of  appointment<\/p>\n
relating  to  it is outside the purview of the  TNPSC.   The<\/p>\n
Government, in their letter dated 01.07.1997, and subsequent<\/p>\n
letter, dated 15.2.2003, have clarified that the TWAD  Board<\/p>\n
Assistant Engineers are appointed on contract basis and  are<\/p>\n
not  entitled  for deputation pay and allowance.  When  TWAD<\/p>\n
Board, which is the lending department, had not accepted for<\/p>\n
absorption, and the borrowing R.D. Department had  also  not<\/p>\n
agreed  for absorption of AEs of TWAD Board, the petitioners<\/p>\n
have  no  legal right to claim permanent absorption  in  the<\/p>\n
R.D.  Department.   If the request of the  writ  petitioners<\/p>\n
viz., deputationists from TWAD Board, is considered, persons<\/p>\n
working   in  the  R.D.  Department  and  their  promotional<\/p>\n
opportunities would be vitally affected.   When the  service<\/p>\n
rules  framed under Article 309 of the Constitution of India<\/p>\n
do  not  permit absorption from other Departments or Boards,<\/p>\n
the  writ  petitions  filed by the  deputationists  are  not<\/p>\n
maintainable.   The Tamil Nadu Administrative  Tribunal,  in<\/p>\n
various  orders,  directed  the Department  to  promote  the<\/p>\n
Assistant Engineers recruited for the R.D. Department and to<\/p>\n
stop deputation from other Departments contrary to statutory<\/p>\n
rules.  The said decision has become final and the same  was<\/p>\n
not  challenged  by anyone.  Further, TWAD  Board  Engineers<\/p>\n
have  not  passed  the Departmental Tests for  promotion  as<\/p>\n
Assistant Executive Engineers and they are still on contract<\/p>\n
basis  in the R.D. Department.  In the statutory Rule, viz.,<\/p>\n
G.O.  Ms.  No.15, dated 25.01.2000, as there is no provision<\/p>\n
for  these  deputationists or persons appointed on  contract<\/p>\n
basis to be absorbed as Assistant Executive Engineers in the<\/p>\n
R.D.  Department, they cannot claim promotion  as  Assistant<\/p>\n
Executive Engineers.  In any event, the Director of R.D. has<\/p>\n
no  jurisdiction to absorb an Assistant Engineer  from  TWAD<\/p>\n
Board.   For permanent absorption, the Government  alone  is<\/p>\n
the  competent authority that too after consent of the M.D.,<\/p>\n
TWAD  Board.  As per the law laid down by the Supreme Court,<\/p>\n
petitioners\/deputationists   have   no   vested   right   of<\/p>\n
absorption  in the R.D. Department.  There is  no  provision<\/p>\n
under  the  ad  hoc  Rules for appointment  by  transfer  of<\/p>\n
service  from  the  TWAD Board or for absorbing  A.Es.  from<\/p>\n
other Departments.\n<\/p>\n<\/p>\n
           8.  With  the above pleadings, we heard Mr.Sanjay<\/p>\n
Mohan,   Ms.R.Vaigai,  learned  counsels;    Mr.AL.Somayaji,<\/p>\n
Mr.V.K.Muthusamy, learned Senior Counsels; Mr.Syed  Mustafa,<\/p>\n
learned    counsel;   appearing   for   writ    petitioners;<\/p>\n
Mr.C.Selvaraju,  Mrs.Hema Sampath, learned Senior  Counsels;<\/p>\n
Mr.R.Thiyagarajan,   learned   Senior   Counsel;   for   the<\/p>\n
respondents;   Mr.Sudharshana   Sundhar,   learned   counsel<\/p>\n
appearing  for the TWAD Board; and Mr.R.Viduthalai,  learned<\/p>\n
Advocate General for the State.\n<\/p>\n<\/p>\n
           9.  Now,  let  us decide the cases on  hand  with<\/p>\n
reference  to  four major issues, raised by  the  respective<\/p>\n
sides, viz.,<\/p>\n
          (a)  claim  of the deputationists regarding  their<\/p>\n
     position in the R.D. Department and substance in  their<\/p>\n
     plea for issuing mandamus as prayed for by them;<\/p>\n
          (b) Validity or otherwise of the impugned Rules;<\/p>\n<\/blockquote>\n
          (c) discrimination alleged; and<\/p>\n<\/blockquote>\n
          (d) retrospective operation of the Rules.<\/p>\n<\/blockquote>\n
Depending  upon  our decision on the above issues,  we  will<\/p>\n
determine  the claim of the petitioner\/Association  in  W.P.<\/p>\n
No.31510 of 2004.\n<\/p>\n<\/p>\n
           10. Relating to the first issue, main contentions<\/p>\n
projected on behalf of the petitioners\/deputationists are as<\/p>\n
follows:-\n<\/p>\n
       (a)   In  view  of  the  decision  embodied  in   the<\/p>\n
proceedings  dated 17.03.1999 and the willingness  expressed<\/p>\n
by   the   TWAD  Board  by  letters  dated  22.07.1999   and<\/p>\n
12.10.1999,  it is obligatory on the part of the respondents<\/p>\n
to  treat  the  deputationists  as  employees  of  the  R.D.<\/p>\n
Department.\n<\/p>\n
      (b)  TWAD  Board, having made a decision in  terms  of<\/p>\n
Regulation 13 of the TWAD Board Rules to the effect that the<\/p>\n
petitioners  may  henceforth become employees  of  the  R.D.<\/p>\n
Department, can no longer go behind such decision.<\/p>\n
     (c) Equally, the R.D. Department, having acted upon the<\/p>\n
decision  of  the  TWAD Board, can not  take  a  stand  that<\/p>\n
absorption  cannot  be done.  All that remain  is  only  the<\/p>\n
follow  up  action  by  the R.D. Department  to  absorb  the<\/p>\n
petitioners.\n<\/p>\n
      (d)  The doctrine of legitimate expectation would come<\/p>\n
into operation by the conduct of the TWAD Board and the R.D.<\/p>\n
Department  in  regard to the absorption of the  Petitioners<\/p>\n
into the services of the R.D. Department.<\/p>\n
     (e) The reason given for non-absorption based upon non-<\/p>\n
availability  of  Rules  would  not  be  available  to   the<\/p>\n
respondents since Service Rules were framed much  after  the<\/p>\n
Executive decision taken to absorb them.<\/p>\n
      (f)  It would not lie in the respondents to now  claim<\/p>\n
that there is dearth of hands in the TWAD Board in the light<\/p>\n
of  TWAD Board’s letter dated 30.11.2004 to the effect  that<\/p>\n
absorption may be done.\n<\/p>\n
      (g)  The  TWAD Board and the R.D. Department  are  now<\/p>\n
estopped from pleading that absorption cannot be made.<\/p>\n
      (h)  The  plea that absorption can be done  only  when<\/p>\n
Rules  are framed would not arise since prior to the framing<\/p>\n
of the Rules Executive decision has the force of law.<\/p>\n
          11. Contentions by the respondents:-\n<\/p>\n<\/p>\n
          (i) As per the Board’s proceedings, for continuing<\/p>\n
deputation  beyond  3  years, the matter  should  be  placed<\/p>\n
before the Board for concurrence.\n<\/p>\n
           (ii) Further proceedings show that the deputation<\/p>\n
pay  would be paid for a maximum period of 3 years  and  the<\/p>\n
period of deputation would also be for a maximum period of 3<\/p>\n
years.   It  was  already made clear that the deputationists<\/p>\n
can  be recalled by the lending authority at any time at its<\/p>\n
discretion.   All  the  petitioners  are  aware   that   the<\/p>\n
deputation period can only be for a maximum period of  three<\/p>\n
years  and  unless  and  until the M.D.  gives  concurrence,<\/p>\n
absorption cannot be claimed by the TWAD Board Engineers.<\/p>\n
           (iii)  As  per G.O. Ms. No.263, R.D.  Department,<\/p>\n
dated  27.12.1996, the policy of the Government was only  to<\/p>\n
take Engineers on deputation from various  Departments,  and<\/p>\n
the  letter addressed to the TWAD Board makes it clear  that<\/p>\n
only Engineers were recruited ‘on deputation basis’ for  the<\/p>\n
newly formed Department.\n<\/p>\n
           (iv)   Even  in G.O. Ms. No.102, R.D. Department,<\/p>\n
dated  25.05.1998, the Government directed the  Director  to<\/p>\n
explore the possibility and report to it regarding permanent<\/p>\n
absorption  and had not delegated its powers to  permanently<\/p>\n
absorb Assistant Engineers by the Director of R.D..<\/p>\n
           (v)  As  per  proceedings  dated  17.3.1999,  the<\/p>\n
Director of R.D. had passed an order absorbing 57 TWAD Board<\/p>\n
Engineers subject to the condition of pending framing of  ad<\/p>\n
hoc  rules  \/ Service Rules of Tamil Nadu Rural Development,<\/p>\n
therefore, it was a conditional absorption and the  Director<\/p>\n
had  no  jurisdiction  to  pass the order  dated  17.03.1999<\/p>\n
without  the  concurrence  of the  Managing  Director,  TWAD<\/p>\n
Board.\n<\/p>\n
           (vi) Considering dearth of hands, a decision  was<\/p>\n
taken  by  the lending authority\/TWAD Board, expressing  its<\/p>\n
unwillingness for absorption of its engineers  in  the  R.D.<\/p>\n
Department, hence, there cannot be a mandamus compelling the<\/p>\n
Government to permanently absorb the TWAD Board Engineers in<\/p>\n
the R.D. Department against the said policy decision.<\/p>\n
           (vii) Inasmuch as the Engineers in the TWAD Board<\/p>\n
were  not  recruited through the TNPSC,  they  cannot  claim<\/p>\n
absorption  in the R.D. Department since A.Es. in  the  R.D.<\/p>\n
Department come within the purview of TNPSC.<\/p>\n
           (viii)  When the statutory rule does not  provide<\/p>\n
for  absorption  as one of the methods of  appointment,  the<\/p>\n
TWAD  Board  Engineers  have no right to  claim  absorption;<\/p>\n
therefore,  all the Writ Petitions filed by the  TWAD  Board<\/p>\n
Engineers are liable to be dismissed.\n<\/p>\n<\/p>\n
            12.  Perused  all  the  relevant  materials  and<\/p>\n
carefully considered the rival contentions.<\/p>\n
            13.  At  the  foremost,  let  us  consider   the<\/p>\n
proceedings of the TWAD Board, various orders passed by  the<\/p>\n
Government in respects of absorption, cancellation, etc.<\/p>\n
           B.P.  Ms.  No.71, dated 19.03.1990, speaks  about<\/p>\n
TWAD  Board’s guidelines regarding absorption and powers  of<\/p>\n
the  Managing  Director.   As per  Clause-10,  the  M.D.  is<\/p>\n
empowered  to  sanction  deputation  of  officers  to  other<\/p>\n
organisations  upto the level of Executive Engineers  for  a<\/p>\n
period of three years.  For continuance of deputation beyond<\/p>\n
three  years, the matter should be placed before the  Board.<\/p>\n
The  M.D.  is also delegated with powers to give concurrence<\/p>\n
for the absorption of TWAD Board employees upto the level of<\/p>\n
E.Es. in other organisations.\n<\/p>\n
           B.P.  No.342, dated 06.11.1996, speaks about  the<\/p>\n
terms  and  conditions governing deputation of TWAD  Board’s<\/p>\n
employees. Clause-10 of the Board’s proceedings speaks about<\/p>\n
the  ‘period  of Deputation’, as per which,  the  period  of<\/p>\n
deputation  will, unless otherwise specifically  stated,  be<\/p>\n
three years.  It further states that the deputationists may,<\/p>\n
however, be recalled by the lending authority at any time at<\/p>\n
its  discretion  subject to certain  conditions,  viz.,  the<\/p>\n
deputation   will  commence  on  the  date  on   which   the<\/p>\n
deputationists  hands  over charge  of  his  post  in  Board<\/p>\n
service or under the previous Foreign Employer, as the  case<\/p>\n
may  be, and on the date he assumes charge of a post in TWAD<\/p>\n
Board.\n<\/p>\n
           The  order passed by the Government in  G.O.  Ms.<\/p>\n
No.263, R.D. Department, dated 27.12.1996, is very relevant.<\/p>\n
It  is  seen  that,  in  the letters  dated  31.07.1996  and<\/p>\n
12.09.1996, the Director of R.D. pointed out that  technical<\/p>\n
supervision   of  works  related  to  R.D.   Department   is<\/p>\n
inadequate  as  currently there is only one  post  of  Union<\/p>\n
Engineer in the Panchayat Union and that the works taken  up<\/p>\n
per  Panchayat Union exceed Rs.1.5 crores and this  requires<\/p>\n
close technical monitoring supervision and control to ensure<\/p>\n
timely execution of works as well as implementation quality.<\/p>\n
In those circumstances, for strengthening the technical wing<\/p>\n
in  the  R.D. Department, the Director approved for  a  full<\/p>\n
fledged office of a Divisional Engineer \/ Executive Engineer<\/p>\n
in  each  District,  a  sub  division  headed  by  Assistant<\/p>\n
Divisional Engineer \/ Assistant Executive Engineer  in  each<\/p>\n
division  and at least two Union Engineers for  each  block.<\/p>\n
The  proposals of the Director were considered by the  Staff<\/p>\n
Committee presided over by the Chief Secretary and the Staff<\/p>\n
Committee  recommended the creation of several  posts.   The<\/p>\n
Government,  after  consideration, ordered the  creation  of<\/p>\n
the  following posts for a period three years  or  till  the<\/p>\n
need therefor ceases whichever is earlier:-<\/p>\n
                     ”  (a)  At  the Panchayat  Union<\/p>\n
          level,   384  posts  of  additional   Union<\/p>\n
          Engineer  in the rank of Assistant Engineer<\/p>\n
          at   the  rate  of  one  additional   Union<\/p>\n
          Engineer per Panchayat Union.<\/p>\n<\/blockquote>\n
                      (b) At the Divisional level, 15<\/p>\n
          sub-divisions  at  the  rate  of  one  sub-<\/p>\n
          division   to   each  of  the   development<\/p>\n
          division which do not have technical  staff<\/p>\n
          at  present  (viz  Cuddalore,  Krishnagiri,<\/p>\n
          Lalgudi,  Palani,  Dharmapuri,  Perambalur,<\/p>\n
          Maduranthakam,   Tiruttani,  Uthamapalayam,<\/p>\n
          Tiruchengode,    Tiruvarur,     Kulithalai,<\/p>\n
          Paramakudi, Thenkasi & Udayarpalayam).  ”<\/p>\n<\/blockquote>\n
Clause-5  of  the  said  Order  makes  it  clear  that   the<\/p>\n
additional technical posts sanctioned would be filled up  on<\/p>\n
deputation  \/ by transfer of service basis for a  period  of<\/p>\n
three  years on temporary basis.  It further says  that  the<\/p>\n
staff   for   those  posts  would  be  drawn  from   various<\/p>\n
Departments,  viz.,  Highways and Rural Works, Public  Works<\/p>\n
Department, Agricultural Engineering, TWAD Board  and  other<\/p>\n
allied  Technical  Departments.  The Government  Order  also<\/p>\n
makes  it  clear that since the existing staff  particularly<\/p>\n
technical  personnel in the R.D. Department are insufficient<\/p>\n
and  inadequate,  considering  the  need  for  execution  of<\/p>\n
various centrally sponsored schemes, it was decided to  have<\/p>\n
a  separate wing, for which, several technical personnel are<\/p>\n
needed.  It further shows that in order to cope up with  the<\/p>\n
work   and  urgency,  the  Government  authorised  the  R.D.<\/p>\n
Department   to  borrow  suitable  personnel  from   various<\/p>\n
departments including TWAD Board for a period of three years<\/p>\n
on temporary basis. In other words, the deputation is for  a<\/p>\n
period three years and the same is on temporary basis.<\/p>\n
           The next Government Order very much relied on  by<\/p>\n
the  petitioners is G.O. Ms. No.102, R.D. Department,  dated<\/p>\n
25.05.1998.  It is stated therein that, considering  various<\/p>\n
aspects,    209   posts   in   the   category    of    Block<\/p>\n
Engineers\/Assistant  Engineers  would  be  earmarked  to  be<\/p>\n
filled  up  by  promotion  from  the  feeder  categories  of<\/p>\n
Overseers and Junior Draughtsmen.  It is further stated that<\/p>\n
this  route  would be open to them only after they  exercise<\/p>\n
their  option  and  are  permanently absorbed  in  the  R.D.<\/p>\n
Department.   The said Government Order further  shows  that<\/p>\n
this  number of 209 would be out of the 384 posts  of  Block<\/p>\n
Engineers suggested in item -1 to be earmarked for Engineers<\/p>\n
from  Highways  Department.   In  those  circumstances,  the<\/p>\n
Government  directed  the Director,  R.D.,  to  explore  the<\/p>\n
possibility  and  report  to the Government  of  permanently<\/p>\n
absorbing  A.Es.  from other Technical  Departments,  giving<\/p>\n
them 1:1 weightage for the service already put in by them in<\/p>\n
their respective Departments. Thus, the above G.O. makes  it<\/p>\n
clear  that the Director was asked to find out possibilities<\/p>\n
of  permanently  absorbing  the  AEs  from  other  technical<\/p>\n
departments  and  also  to submit his report  regarding  the<\/p>\n
feasibility \/ acceptability.  In other words, the Government<\/p>\n
has  not  absorbed  all those engineers from  the  technical<\/p>\n
departments including the personnel from TWAD Board  in  the<\/p>\n
R.D. Department.\n<\/p>\n
           No  doubt,  in the proceedings, dated  17.3.1999,<\/p>\n
deputationists including the personnel from the TWAD  Board,<\/p>\n
working  in  the  posts  of  Additional  Union  Engineer   \/<\/p>\n
Assistant  Engineers (RD) in R.D. Department, who opted  for<\/p>\n
permanent absorption in the R.D. Department  were ordered to<\/p>\n
be  absorbed permanently subject to the condition of pending<\/p>\n
framing  of  ad  hoc  \/ service rules or  Tamil  Nadu  Rural<\/p>\n
Development   Engineering  Service  \/   Tamil   Nadu   Rural<\/p>\n
Development Engineering Subordinate Service by Government in<\/p>\n
R.D.   Department.   However,  on  receipt  of   the   above<\/p>\n
communication, TWAD Board conveyed their inability to accept<\/p>\n
and, in their letter dated 15.04.1999, the Managing Director<\/p>\n
informed  the Director of R.D. Department, stating that  the<\/p>\n
proposal  for the permanent absorption of A.Es deputed  from<\/p>\n
TWAD  Board to R.D. Department based on their option is  not<\/p>\n
acceptable  to  the TWAD Board.  In the same  communication,<\/p>\n
the  M.D.  reiterated that the services  of  the  A.Es.  are<\/p>\n
essentially required for the current year works in the  TWAD<\/p>\n
Board  and requested that the A.Es be reverted to TWAD Board<\/p>\n
immediately.  Based on the above communication of  the  TWAD<\/p>\n
Board,  the  Director, R.D. Department, in  his  proceedings<\/p>\n
dated  02.07.1999,  after examining the issue  of  absorbing<\/p>\n
Engineers  from other Departments working on  deputation  in<\/p>\n
the  R.D.  Department in detail and finding that  the  Block<\/p>\n
Engineers  \/  Junior  Engineers \/ Assistant  Engineers  from<\/p>\n
Highways and Rural Works Department  come under the  purview<\/p>\n
of  TNPSC;  cancelled the permanent absorption  of  all  204<\/p>\n
Block Engineers \/ Junior Engineers \/ Assistant Engineers and<\/p>\n
129   Assistant  Engineers  belonging  to  other   Technical<\/p>\n
Departments.\n<\/p>\n
           On 25.01.2000, the Government, in G.O. Ms. No.15,<\/p>\n
R.D.  Department,  framed ad hoc  rules  for  the  posts  of<\/p>\n
Executive   Engineer,  Assistant  Executive   Engineer   and<\/p>\n
Assistant Engineer, (vide Notification-IV) under Article 309<\/p>\n
of  the  Constitution of India.  The said  Rules  came  into<\/p>\n
effect  from  26.09.1997.   We are concerned  about  Rule-3,<\/p>\n
which speaks about ‘Appointment’,<\/p>\n
               ”  3.  APPOINTMENT (1) Appointment  to<\/p>\n
         the post shall be made by<\/p>\n
              (a) direct recruitment<\/p>\n
                (b)   recruitment  by  transfer  from<\/p>\n
         Overseer    in    the   Rural    Development<\/p>\n
         Department<\/p>\n
               (c)  The ratio for appointment to  the<\/p>\n
         post    by   direct   recruitment   –    and<\/p>\n
         recruitment by transfer shall be 1:1″\n<\/p>\n
Admittedly,  there is no provision for taking deputationists<\/p>\n
for  filling up the posts in the R.D. Department. Since  the<\/p>\n
said  aspect  is under challenge by way of W.P. No.33503  of<\/p>\n
2006, we will consider it at a later point of time.<\/p>\n
           13-A. Inasmuch as the deputationists stoutly deny<\/p>\n
their  status  of  service  with  the  R.D.  Department  ‘on<\/p>\n
contract basis’, it is necessary to refer to the proceedings<\/p>\n
of  the Director of R.D., dated 28.12.2001, which refers  to<\/p>\n
G.O.  Ms.  No.263,  R.D. Department, dated  27.12.1996,  and<\/p>\n
Annexure-II appended thereto, containing terms of deputation<\/p>\n
by the Director of R.D.,<\/p>\n
                        ” Annexure-II<\/p>\n
                   Terms    and    conditions    for
\n      appointment  of  personnel  from   the   State
\n      Public    Sector    Undertakings\/Boards     in
\n      Government  Services on contract  basis  under
\n      General  Rule 11 of the Tamil Nadu  State  and
\n      Subordinate    Service   (Vide    Govt.    Lr.\n<\/p>\n
      No.1569\/BPE\/92-1  Finance  (BPE)  Dept.,   dt.
\n      15.2.93  and Govt.Lr.No.2749\/BPE\/96-1  Finance
\n      (BPE) Dept., dt.9.12.96)<\/p>\n
                 i) The contract appointment will be<\/p>\n
      for  a  period  of 3 years from  the  date  of<\/p>\n
      relief from the Corporation\/Board.\n<\/p>\n
                 ii)  While on Contract appointment,<\/p>\n
      he  will draw pay and allowances as applicable<\/p>\n
      to   the  post  held  by  him  in  his  parent<\/p>\n
      Organisation, viz., Corporation\/Board.<\/p>\n
                 iii)  The Government shall  recover<\/p>\n
      every   month   the   Employees   Contributory<\/p>\n
      Provident  Fund subscription from the  pay  of<\/p>\n
      the  employees on Contract appointment at  the<\/p>\n
      rate specified by his parent organisation  and<\/p>\n
      remit  it  to that foreign body.  It  is  only<\/p>\n
      that  lending organisation, which has to  make<\/p>\n
      an  equal  amount  of employer’s  contribution<\/p>\n
      and  no  contribution in this regard  will  be<\/p>\n
      made   by  the  Government.  “In  respect   of<\/p>\n
      employees   of  statutory  Boards,   where   a<\/p>\n
      pension   scheme  is  available,  the  pension<\/p>\n
      contribution  shall be met  by  the  statutory<\/p>\n
      Boards  themselves in the event of  appointing<\/p>\n
      such   employees  in  Government  Service   on<\/p>\n
      contract  basis under General Rule 11  of  the<\/p>\n
      Tamil  Nadu  State  and  Subordinate  Service”<\/p>\n
      (amended  vide  Govt. Letter No.2749\/BPE\/96-1,<\/p>\n
      Finance (BPE) Dept., dated 09.12.1996.<\/p>\n
                 iv) The Government shall pay direct<\/p>\n
      to  the  employee concerned an amount  as  one<\/p>\n
      time compensatory allowance equivalent to  the<\/p>\n
      bonus  admissible  at the  rates  as  per  the<\/p>\n
      payment of Bonus Act as and when paid  by  the<\/p>\n
      parent  Organisation to its employees provided<\/p>\n
      that  at  the  time of payment of  bonus,  the<\/p>\n
      employee  continued to serve in Government  on<\/p>\n
      contract basis.  The expenditure on this  will<\/p>\n
      be  on  service share basis for the accounting<\/p>\n
      year  between the Government and  the  foreign<\/p>\n
      body  concerned.   In such cases,  during  the<\/p>\n
      contract  period,  the employee  will  not  be<\/p>\n
      eligible  for any other exgratia  payment,  if<\/p>\n
      any,  allowed to the Government employees like<\/p>\n
      pongal gift.\n<\/p>\n
                 v) Government also will not pay any<\/p>\n
      contribution  towards gratuity.  The  gratuity<\/p>\n
      contribution  shall  be  borne  only  by   the<\/p>\n
      lending  Corporation\/Board concerned  for  the<\/p>\n
      period of contract service.\n<\/p>\n
                 vi)  The employee on contract basis<\/p>\n
      shall  be deemed to be a member of the  parent<\/p>\n
      organisation   for   the   purpose   of    the<\/p>\n
      disciplinary  rules, under the  Service  Rules<\/p>\n
      of    the   parent   organisation   concerned.\n<\/p>\n
      Notwithstanding  the fact  that  his  services<\/p>\n
      are  placed at the disposal of the Government,<\/p>\n
      if   he   commits  any  act  of  omission   or<\/p>\n
      commission  which  make  him  liable  to   the<\/p>\n
      penalty  specified  in  the  said  rules,  the<\/p>\n
      parent  organisation under whom he is  serving<\/p>\n
      at  the time of omission or commission of such<\/p>\n
      act   shall  be  competent  to  initiate   the<\/p>\n
      disciplinary proceedings against  him  and  to<\/p>\n
      impose on him such penalties specified in  the<\/p>\n
      relevant  rules and the Government under  whom<\/p>\n
      he  is  serving at the time of institution  of<\/p>\n
      such  proceedings shall render all  reasonable<\/p>\n
      facilities to the parent organisation for  the<\/p>\n
      institution and conduct of such proceedings.<\/p>\n
                  Vii)  The  Government  shall  give<\/p>\n
      leave  salary contribution at the  termination<\/p>\n
      of  the  contract period for the actual  leave<\/p>\n
      earned  during  the  contract  service,  after<\/p>\n
      deducting  the  actual  Earned  Leave  availed<\/p>\n
      during  the contract service period.   If  the<\/p>\n
      Earned  Leave applied for in a year  while  on<\/p>\n
      contract  service for exceeds the  leave  that<\/p>\n
      would  accrue for the tenure period  mentioned<\/p>\n
      in  the  contract appointment, then  for  such<\/p>\n
      excess days of Earned Leave, the foreign  body<\/p>\n
      shall  bear  the liability by reimbursing  the<\/p>\n
      amount  to  Government, first  bearing  entire<\/p>\n
      leave  salary for the Earned Leave  period  by<\/p>\n
      the Government.\n<\/p>\n
                  Viii)   The  employees  shall   be<\/p>\n
      allowed  to  surrender  Earned  Leave  for   a<\/p>\n
      maximum  of 15 days for each year of  contract<\/p>\n
      service, subject to the condition that he  has<\/p>\n
      that   many   days  of  leave   earned   after<\/p>\n
      deducting the Earned Leave availed during  the<\/p>\n
      contract service.\n<\/p>\n
                  ix)  Regarding  reimbursement   of<\/p>\n
      medical  expenditure, it may be  left  to  the<\/p>\n
      option of the employee on contract service  to<\/p>\n
      get  his medical expenditure reimbursed either<\/p>\n
      from   Government  or  from  the  Corporation,<\/p>\n
      subject  to  the stipulation that  the  option<\/p>\n
      once  exercised will be final for  the  entire<\/p>\n
      contract service.\n<\/p>\n
                                         Sd\/-\n<\/p>\n
                           For   Director  of  Rural
\n      Development.”\n<\/p>\n
The  above  terms  and  conditions are rather  self-speaking<\/p>\n
about the status of the petitioners that their services with<\/p>\n
the R.D. Department are only on ‘contract basis’.<\/p>\n
           14.  According  to  Mr.Sanjay Mohan,   Ms.Vaigai,<\/p>\n
learned  counsels;  and  Mr.V.K.Muthusamy,  learned   Senior<\/p>\n
Counsel,  in view of the fact that the petitioners  came  to<\/p>\n
R.D. Department on deputation from TWAD Board and that their<\/p>\n
request  for  regularisation  in  the  R.D.  Department  was<\/p>\n
accepted and proper orders were passed by the Director, R.D.<\/p>\n
Department,  with  the  consent  of  the  TWAD  Board,   the<\/p>\n
respondents  are  not  justified  in  reversing  their  said<\/p>\n
decision.    According  to  them,  on   the   principle   of<\/p>\n
‘Legitimate Expectation’, the respondents ought to have  let<\/p>\n
them  to  continue in the R.D. Department along  with  other<\/p>\n
Engineers.   They  also contended that the  respondents  are<\/p>\n
estopped  from repatriating all these petitioners  to  their<\/p>\n
parent Department, viz., TWAD Board, as they are entitled to<\/p>\n
permanent absorption in the R.D. Department.  Inasmuch as we<\/p>\n
have  already referred to the factual details in the earlier<\/p>\n
paragraphs,   let  us  consider  the  issue  involved   with<\/p>\n
reference to various decisions of this Court and the Supreme<\/p>\n
Court.\n<\/p>\n<\/p>\n
              14(1).     Learned    Counsels     for     the<\/p>\n
petitioners\/deputationists relied on a decision of the  Apex<\/p>\n
Court reported in AIR 2003 SC page 1713 (Chanchal Goyal  Vs.<\/p>\n
State  of  Rajasthan) in support of their  argument  on  the<\/p>\n
principle  ‘legitimate  expectation’.   It  is  relevant  to<\/p>\n
extract paragraph Nos.16 to 18 in this regard,<\/p>\n
                    ”  16.  The  basic principles  in<\/p>\n
         this    branch   relating   to   ‘legitimate<\/p>\n
         expectation’   were   enunciated   by   Lord<\/p>\n
         Diplock  in Council of Civil Service  Unions<\/p>\n
         and  Ors. v. Minister for the Civil  Service<\/p>\n
         (1985  AC  374 (408-409) (Commonly known  as<\/p>\n
         CCSU  case).  It was observed in  that  case<\/p>\n
         that  for a legitimate expectation to arise,<\/p>\n
         the    decisions   of   the   administrative<\/p>\n
         authority   must  affect   the   person   by<\/p>\n
         depriving  him of some benefit or  advantage<\/p>\n
         which  either  (i) he had in the  past  been<\/p>\n
         permitted  by  the decision-maker  to  enjoy<\/p>\n
         and  which he can legitimately expect to  be<\/p>\n
         permitted to continue to do until there  has<\/p>\n
         been   communicated  to  him  some  rational<\/p>\n
         grounds for withdrawing it on which  he  has<\/p>\n
         been  given  an opportunity to  comment:  or<\/p>\n
         (ii)  he  has  received assurance  from  the<\/p>\n
         decision-maker  that  they   will   not   be<\/p>\n
         withdrawn  without  giving  him   first   an<\/p>\n
         opportunity   of   advancing   reasons   for<\/p>\n
         contending   that   they   should   not   be<\/p>\n
         withdrawn.   The  procedural  part   of   it<\/p>\n
         relates  to a representation that a  hearing<\/p>\n
         or   other  appropriate  procedure  will  be<\/p>\n
         afforded  before the decision is made.   The<\/p>\n
         substantive  part of the principle  is  that<\/p>\n
         if  a  representation is made that a benefit<\/p>\n
         of  a substantive nature will be granted  or<\/p>\n
         if  the person is already in receipt of  the<\/p>\n
         benefit  that it will be continued  and  not<\/p>\n
         be   substantially  varied,  then  the  same<\/p>\n
         could be enforced.  In the above case,  Lord<\/p>\n
         Fraser accepted that the civil servants  had<\/p>\n
         a  legitimate expectation that they would be<\/p>\n
         consulted    before   their   trade    union<\/p>\n
         membership   was  withdrawn  because   prior<\/p>\n
         consultation  in the past was  the  standard<\/p>\n
         practice  whenever  conditions  of   service<\/p>\n
         were  significantly altered.   Lord  Diplock<\/p>\n
         went  a  little further when  he  said  that<\/p>\n
         they  had a legitimate expectation that they<\/p>\n
         would continue to enjoy the benefits of  the<\/p>\n
         trade  union  membership,  the  interest  in<\/p>\n
         regard   to   which  was  protectable.    An<\/p>\n
         expectation  could be based  on  an  express<\/p>\n
         promise  or representation or by established<\/p>\n
         past   action   or  settled  conduct.    The<\/p>\n
         representation    must    be    clear    and<\/p>\n
         unambiguous.   It could be a  representation<\/p>\n
         to  the individual or generally to class  or<\/p>\n
         persons.\n<\/p>\n
                      17.   The   principle   of    a<\/p>\n
         substantive  legitimate  expectation,   that<\/p>\n
         is,  expectation of favourable  decision  of<\/p>\n
         one  kind  or another, has been accepted  as<\/p>\n
         part  of  the English Law in several  cases.<\/p>\n
         (De  smith,  Administrative  Law,  5th  Ed.)<\/p>\n
         (Para     13.030).    (See    also     Wade,<\/p>\n
         Administrative Laws, 7th Ed.)  (pp.418-419).<\/p>\n
         According   to   Wade,   the   doctrine   of<\/p>\n
         substantive legitimate expectation has  been<\/p>\n
         “rejected”  by the High Court  of  Australia<\/p>\n
         in  Attorney  General  for  N.S.W.  v.  Quin<\/p>\n
         (1990)  93  ALL E.R. 1 (But see Teon’s  case<\/p>\n
         referred  to  later) and that the  principle<\/p>\n
         was also rejected in Canada in Reference  Re<\/p>\n
         Canada  Assistance Plan (1991) 83  DLR  (4th<\/p>\n
         297,  but  favoured  in  Ireland:  Canon  v.\n<\/p>\n
         Minster  for  the Marine 1991 (1)  I.R.  82.\n<\/p>\n
         The  European Court goes further and permits<\/p>\n
         the  Court to apply proportionately  and  go<\/p>\n
         into    the    balancing    of    legitimate<\/p>\n
         expectation and the Public Interest.\n<\/p>\n
                    18.  Even  so, it has  been  held<\/p>\n
         under  English law that the decision maker’s<\/p>\n
         freedom  to  change  the  policy  in  public<\/p>\n
         interest,   cannot  be   fettered   by   the<\/p>\n
         application  of the principle of substantive<\/p>\n
         legitimate expectation. ….”\n<\/p>\n
We  find  that what was observed in the above decision  was,<\/p>\n
for  legitimate expectation to arise, the decisions  of  the<\/p>\n
administrative authority must affect the person by depriving<\/p>\n
him  of some benefit or advantage which either he had in the<\/p>\n
past been permitted by the decision maker to enjoy and which<\/p>\n
he can legitimately expect to be permitted to continue to do<\/p>\n
until there has been communication to him, the same rational<\/p>\n
grounds  for  withdrawing on which  he  has  been  given  an<\/p>\n
opportunity  to  comment or he has been given  an  assurance<\/p>\n
that  they will not be withdrawing without giving him  first<\/p>\n
an opportunity.\n<\/p>\n
      Coming to the case on hand, insofar as the TWAD  Board<\/p>\n
Engineers\/deputationists are concerned,  they  cannot  claim<\/p>\n
legitimate expectation or applicability of the above Supreme<\/p>\n
Court  decision for the reason that their appointment  order<\/p>\n
itself was either ‘on contract basis’ or ‘deputation’ for  a<\/p>\n
specified  period  and they were well  informed  that  their<\/p>\n
absorption  was  subject to framing of ad hoc  rules.   When<\/p>\n
they  have no legal right to claim absorption, the principle<\/p>\n
of   legitimate  expectation  cannot  be  invoked  by  them;<\/p>\n
therefore, the above case law is not applicable to the facts<\/p>\n
and circumstances of the cases on hand.\n<\/p>\n<\/p>\n
           14(2).  Reliance is made on the decision reported<\/p>\n
in   AIR  1998  SC  2779  (National  Buildings  Construction<\/p>\n
Corporation vs. S.Raghunathan and others<\/a>),  wherein, it  was<\/p>\n
held  that the doctrine of ‘legitimate expectation’ has been<\/p>\n
developed both in the context of reasonableness and  in  the<\/p>\n
context of natural justice.\n<\/p>\n
           In  the  above decision, Their Lordships  of  the<\/p>\n
Supreme  Court  have  specifically  pointed  out  that   the<\/p>\n
question   whether  the  expectation  and  the   claim   are<\/p>\n
reasonable or legitimate is a question of fact in each case.<\/p>\n
Not  stopping  therewith,  it was also  observed  that  such<\/p>\n
question  has  to  be  determined  not  according   to   the<\/p>\n
claimants’   perception  but  in  larger  public   interest.<\/p>\n
Further,  the  point for consideration  therein  was  as  to<\/p>\n
whether   the  deputationists  were  entitled   to   foreign<\/p>\n
allowance  on the original basic salary or on the salary  as<\/p>\n
revised  on  account of the recommendations of  the  IV  Pay<\/p>\n
Commission.  On consideration, the Apex Court dismissed  the<\/p>\n
plea relating to foreign allowance.\n<\/p>\n
       In  the  case on hand, the deputationists,  who  were<\/p>\n
informed  that  they  were  taken  on  deputation  basis  or<\/p>\n
contract basis, were fully aware that their rights are  only<\/p>\n
with  the TWAD Board and not in the R.D. Department and they<\/p>\n
were informed as early as on 02.07.1999 that they cannot  be<\/p>\n
absorbed in the R.D. Department.  Having not challenged  the<\/p>\n
said  order for more than 6 years, the TWAD Board  Engineers<\/p>\n
now  cannot  be  permitted to raise  a  plea  of  legitimate<\/p>\n
expectation on the ground that the deputation allowance  was<\/p>\n
stopped  to  them.  At best, they can only claim  deputation<\/p>\n
allowance  for all these years and no other right  over  the<\/p>\n
R.D.  Department.  Hence,  the decision  relied  on  is  not<\/p>\n
helpful to the petitioners.\n<\/p>\n<\/p>\n
          14(3). In Union of India vs. Hindustan Development<\/p>\n
Corporation  (AIR<\/a> 1994 SC page 988), Their Lordships of  the<\/p>\n
Supreme  Court,  quoted a passage explaining  the  scope  of<\/p>\n
‘legitimate  expectation’ from Halsbury’s Laws  of  England,<\/p>\n
which reads thus:-\n<\/p>\n
                         ”      81.     Legitimate<\/p>\n
          expectations.   A  person  may  have   a<\/p>\n
          legitimate expectation of being  treated<\/p>\n
          in  a  certain way but an administrative<\/p>\n
          authority  even though he has  no  legal<\/p>\n
          right  in  private law to  receive  such<\/p>\n
          treatment.  The  expectation  may  arise<\/p>\n
          either  from a representation or promise<\/p>\n
          made  by  the  authority,  including  an<\/p>\n
          implied    representation,    or    from<\/p>\n
          consistent past practice.”\n<\/p><\/blockquote>\n
After  discussing  the fact regarding  expectation,  it  was<\/p>\n
observed,<\/p>\n
                    ” A pious hope even leading to a<\/p>\n
         moral   obligation  cannot  amount   to   a<\/p>\n
         legitimate expectation.  The legitimacy  of<\/p>\n
         an  expectation can be inferred only if  it<\/p>\n
         is founded on the sanction of law or custom<\/p>\n
         or  an  established procedure  followed  in<\/p>\n
         regular   and   natural   sequence.    Such<\/p>\n
         expectation     should    be    justifiably<\/p>\n
         legitimate  and  protectable.   Every  such<\/p>\n
         legitimate expectation does not  by  itself<\/p>\n
         fructify into a right and therefore it does<\/p>\n
         not  amount  to a right in the conventional<\/p>\n
         sense. ” …….\n<\/p>\n
                   ” It can be one of the grounds to<\/p>\n
         consider  but the Court must lift the  veil<\/p>\n
         and  see  whether the decision is violative<\/p>\n
         of      these     principles     warranting<\/p>\n
         interference.  It depends very much on  the<\/p>\n
         facts and the recognised general principles<\/p>\n
         of  administrative law applicable  to  such<\/p>\n
         facts   and   the  concept  of   legitimate<\/p>\n
         expectation which is the latest recruit  to<\/p>\n
         a  long  list of concepts fashioned by  the<\/p>\n
         Courts  for  the  review of  administrative<\/p>\n
         action,  must be restricted to the  general<\/p>\n
         legal  limitations applicable  and  binding<\/p>\n
         the  manner  of  the  future  exercise   of<\/p>\n
         administrative power in a particular  case.<\/p>\n
         The  court  should restrain themselves  and<\/p>\n
         restrict  such  claims duly  to  the  legal<\/p>\n
         limitations. ”\n<\/p>\n
Coming  to  the  cases on hand, inasmuch as the  TWAD  Board<\/p>\n
Engineers  do  not have legal right to claim absorption  and<\/p>\n
when  the Government and the Managing Director of TWAD Board<\/p>\n
have   taken   a  decision  not  to  entertain   absorption,<\/p>\n
legitimate expectation cannot be invoked to the facts of the<\/p>\n
present   case.   To  invoke  the  principle  of  legitimate<\/p>\n
expectation,  there  should be  a  legal  right.  Thus,  the<\/p>\n
decision relied on cannot be applied to the cases on hand.<\/p>\n
           14(4).  The  following  conclusion  in  Rameshwar<\/p>\n
Prasad  vs.  Managing  Director U.P.  Rajkiya  Nirman  Nigam<\/p>\n
Limited (AIR<\/a> 1999 SC 3443) was pressed into service,<\/p>\n
                    ”  17.  In our view, it is  true<\/p>\n
         that  whether the deputationists should  be<\/p>\n
         absorbed  in  service or not  is  a  policy<\/p>\n
         matter,  but  at  the same time,  once  the<\/p>\n
         policy is accepted and rules are framed for<\/p>\n
         such   absorption,  before  rejecting   the<\/p>\n
         application,  there  must  be   justifiable<\/p>\n
         reasons.    Respondent  No.1   cannot   act<\/p>\n
         arbitrarily  by  picking and  choosing  the<\/p>\n
         deputationists for absorption.   The  power<\/p>\n
         of  absorption, no doubt, is discretionary,<\/p>\n
         but  is  coupled with the duty not  to  act<\/p>\n
         arbitrarily, or at whim or caprice  of  any<\/p>\n
         individual. …”\n<\/p>\n
On  going through the above referred decision, we find  that<\/p>\n
it has been clearly held therein that an employee, who is on<\/p>\n
deputation, has no right to be absorbed in the service where<\/p>\n
he  is working on deputation, however, in some cases, it may<\/p>\n
depend  upon the statutory rules to the contrary.  If  rules<\/p>\n
provide  for  absorption of an employee on  deputation  then<\/p>\n
such an employee has a right to be considered for absorption<\/p>\n
in  accordance with those Rules.  It was further  held  that<\/p>\n
whether the deputationists should be absorbed in service  or<\/p>\n
not  is  the policy matter, but, once the policy is accepted<\/p>\n
and  rules  are  framed for such absorption, there  must  be<\/p>\n
justifiable    reasons   for   rejecting   an   application.<\/p>\n
As far as the present cases are concerned, the Service Rules<\/p>\n
of   R.D.  Department  do  not  provide  for  absorption  of<\/p>\n
employees,  who  are on deputation and, in fact,  under  the<\/p>\n
method of appointment, there are only two modes, ie., one by<\/p>\n
direct  recruitment and the other by transfer of service  of<\/p>\n
certain specific categories.  Therefore, this decision  also<\/p>\n
is not applicable to the cases on hand.\n<\/p>\n<\/p>\n
           14(5).  Reliance was also placed on the  decision<\/p>\n
reported in AIR 2003 SC 43 (P.Tulsi Das vs. Govt. of  A.P.),<\/p>\n
wherein, it was observed that, in the absence of Rules under<\/p>\n
Article  309 of the Constitution in respect of a  particular<\/p>\n
area, aspect or subject, it was permissible for the State to<\/p>\n
make  provisions in exercise of its executive  powers  under<\/p>\n
Article  162  which  is  co-extensive with  its  legislative<\/p>\n
powers laying conditions of service and rights accrued to or<\/p>\n
acquired by a citizen would be as much rights acquired under<\/p>\n
law  and protected to that extent. The facts involved in the<\/p>\n
above case law were regarding the validity of Andhra Pradesh<\/p>\n
Educational   Service  Untrained  Teachers  (Regulation   of<\/p>\n
Services  and  Fixation of Pay) Act, 1991, and  the  Supreme<\/p>\n
Court  had  upheld the right of those who were appointed  as<\/p>\n
SGBT  teachers  to be entitled to the pay scales  of  School<\/p>\n
Assistants for the period prior to the said Act.   The  said<\/p>\n
decision is in no way applicable to the facts of TWAD  Board<\/p>\n
Engineers since the impugned rules have retrospective effect<\/p>\n
and there is no right accrued on the deputationists to claim<\/p>\n
absorption.\n<\/p>\n<\/p>\n
           14(6).  Next  decision,  that  was  pressed  into<\/p>\n
service on the concept of deputation, is the one reported in<\/p>\n
AIR  1999 SC 1948  = 1999 (4) SCC 659 (Umapati Choudhary vs.<\/p>\n
State of Bihar). Before commenting upon the applicability of<\/p>\n
this  decision  to the cases before us, it  is  relevant  to<\/p>\n
refer to the contents at para No.9 of the decision,<\/p>\n
                     ”  9.  Deputation can be  aptly<\/p>\n
          described as an assignment of an  employee<\/p>\n
          (commonly    referred    to     as     the<\/p>\n
          deputationists) of one department or cadre<\/p>\n
          or even an organisation (commonly referred<\/p>\n
          to  as  the  parent department or  lending<\/p>\n
          authority) to another department or  cadre<\/p>\n
          or  organisation (commonly referred to  as<\/p>\n
          the  borrowing authority).  The  necessity<\/p>\n
          for sending on deputation arises in public<\/p>\n
          interest to meet the exigencies of  public<\/p>\n
          service.   The  concept of  deputation  is<\/p>\n
          consensual   and  involves   a   voluntary<\/p>\n
          decision  of  the  employer  to  lend  the<\/p>\n
          services   of   his   employee    and    a<\/p>\n
          corresponding acceptance of such  services<\/p>\n
          by   the  borrowing  employer.   It   also<\/p>\n
          involves the consent of the employee to go<\/p>\n
          on  deputation  or not.  In  the  case  at<\/p>\n
          hand,   all  the  three  conditions   were<\/p>\n
          fulfilled.”\n<\/p>\n
In  the  above case law referred, the University, which  was<\/p>\n
the  parent  department  or lending  department,  the  Bihar<\/p>\n
Sanskrit  Education Board, ie., the borrowing authority  and<\/p>\n
Umapati  Choudhary, the deputationist, had all  given  their<\/p>\n
consent  for  deputation  of  the  appellant  and  for   his<\/p>\n
permanent  absorption in the establishment of the  borrowing<\/p>\n
Department.   Therefore,  this  decision  is   in   no   way<\/p>\n
supporting  the case of the petitioners as in  their  cases,<\/p>\n
neither  the  lending authority nor the borrowing  authority<\/p>\n
has  given  any consent\/willingness for permanent absorption<\/p>\n
of the deputationists.\n<\/p>\n<\/p>\n
          14(7). In the decision reported in AIR 1979 SC 621<\/p>\n
(Motilal  Padampat Sugar Mill vs. State of  Uttar  Pradesh),<\/p>\n
the  Doctrine of Promissory Estoppel<\/a> has been discussed  and<\/p>\n
it  was  held that the true principle of Promissory Estoppel<\/p>\n
seems to be that where one party has by his words or conduct<\/p>\n
made  to the other a clear and unequivocal promise which  is<\/p>\n
intended  to  create  legal  relations  or  effect  a  legal<\/p>\n
relationship  to arise in the future, knowing  or  intending<\/p>\n
that  it would be acted upon by the other party to whom  the<\/p>\n
promise is made and it is in fact so acted upon by the other<\/p>\n
party,  the promise would be binding on the party making  it<\/p>\n
and he would not be entitled to go back upon it, if it would<\/p>\n
be  inequitable to allow him to do so having regard  to  the<\/p>\n
dealings which have taken place between the parties and this<\/p>\n
would  be  so  irrespective of whether  there  is  any  pre-<\/p>\n
existing relationship between the parties or not.<\/p>\n
           In  the  present cases, the TWAD Board  Engineers<\/p>\n
were  never  given any promise that they would  be  absorbed<\/p>\n
after 3 years of the deputation nor had they acted upon  any<\/p>\n
such  promise.  In fact, even on 17.3.1999, they were issued<\/p>\n
with an absorption order by the Director of R.D. subject  to<\/p>\n
framing of the ad hoc rules and this order too was cancelled<\/p>\n
within   4  months.   Hence,  the  principle  of  promissory<\/p>\n
estoppel  cannot be applied to.  Neither the Government  nor<\/p>\n
the  M.D.,  TWAD  Board, had given any  assurance  that  the<\/p>\n
petitioners  would be absorbed in the R.D. Department.   The<\/p>\n
TWAD Board Engineers have not suffered any service rights in<\/p>\n
their  parent Department due to any such promise  made  and,<\/p>\n
therefore, the principle laid down in the above decision  is<\/p>\n
not applicable to the facts of the present cases.<\/p>\n
           14(8).  Coming to the decision relied on  by  the<\/p>\n
petitioners  reported in 1999 (8) SCC 99 (Nagpur Improvement<\/p>\n
Trust  vs.  Yadao Rao Jagannath Kumbare and others<\/a>),  it  is<\/p>\n
seen  that the point considered therein was, in the  absence<\/p>\n
of  any  statutory rule governing service conditions of  the<\/p>\n
employees,   executive  instructions  or   decisions   taken<\/p>\n
administratively would operate in the field and appointments<\/p>\n
\/  promotions can be made in accordance with such  executive<\/p>\n
instructions.\n<\/p>\n
           The above said decision is also not applicable to<\/p>\n
the  cases  on hand for the simple reason that  the  Service<\/p>\n
Rules  have  been framed in G.O. Ms. No.15, R.D. Department,<\/p>\n
dated  25.01.2000,  with effect from 1997  and  as  per  the<\/p>\n
Service   Rules,  deputationists  cannot  claim  absorption.<\/p>\n
Executive  instructions issued in G.O.102,  R.D.  Department<\/p>\n
dated 25.5.1998, have become null and void after framing  of<\/p>\n
the ad hoc rules.\n<\/p>\n<\/p>\n
           14(9). Insofar as the decision in Ramasanjeevayya<\/p>\n
vs.  State of Mysore (1969 (2) LLJ 169) is concerned, it was<\/p>\n
a  case,  where  the  petitioner  therein  relinquished  his<\/p>\n
promotion  in  the Secretariat and opted to  remain  in  the<\/p>\n
department  of Civil Supplies foregoing his promotion.   The<\/p>\n
Division  Bench  held  that the petitioner  was  permanently<\/p>\n
transferred to Civil Supplies Department and therefore,  the<\/p>\n
Government could not repatriate him.\n<\/p>\n
           The  facts  of  the  above  case  are  completely<\/p>\n
different   from  that  of  the  cases  on   hand   as   the<\/p>\n
deputationists  here had not relinquished any  promotion  in<\/p>\n
their parent department. But, in fact, they were juniors  in<\/p>\n
TWAD  Board,  who  were  promoted and  posted  in  the  R.D.<\/p>\n
Department.   Now, the seniors to them in  TWAD  Board  have<\/p>\n
given  willingness  to be posted in the R.D.  Department  to<\/p>\n
gain  the  same  promotion.   Due  to  these  administrative<\/p>\n
difficulties, the M.D., TWAD Board, had expressed that  none<\/p>\n
of  the  TWAD  Board  Engineers  be  absorbed  in  the  R.D.<\/p>\n
Department.  Hence, this decision also cannot be applied  to<\/p>\n
the case of the petitioners.\n<\/p>\n<\/p>\n
            15.   In  addition  to  the  above  case   laws,<\/p>\n
Mr.V.K.Muthusamy, learned Senior Counsel, very  much  relied<\/p>\n
on  a  Division  Bench decision of the Calcutta  High  Court<\/p>\n
reported  in  1985  (1)  SLR  257  (West  Bengal  Industrial<\/p>\n
Development   Corporation   vs.   West   Bengal   Industrial<\/p>\n
Development Corporation Employees Union),<\/a> wherein the  Bench<\/p>\n
had  dealt  with a case where one Anil Chandra Chattopadhyay<\/p>\n
was  posted as Special Officer, Petro Chemical Projects,  on<\/p>\n
deputation from Home (P&AR) Department, Government  of  West<\/p>\n
Bengal.   He  was  further  posted as  Chief  Administrative<\/p>\n
Officer in addition to his duties as Special Officer,  Petro<\/p>\n
Chemicals.\n<\/p>\n
           We  find  that, in the above referred  case,  the<\/p>\n
borrowing   department,   the   lending   Department,    the<\/p>\n
deputationists and the Chief Minister of the State  had  all<\/p>\n
given  consent  for  absorption of the  said  Anil  Chandra.<\/p>\n
Coming  to the present cases, neither the M.D., TWAD  Board,<\/p>\n
agreed for absorption as on 27.12.2004 nor the Government  \/<\/p>\n
R.D.  Department agreed therefor and the service rules  also<\/p>\n
do not permit absorption of TWAD Board Engineers in the R.D.<\/p>\n
Department.   In such circumstances, the case law  cited  is<\/p>\n
not useful to the petitioners.\n<\/p>\n
      For the same reasons, another Division Bench decision,<\/p>\n
viz.,  1995 (5) SLR 426 (Director of Administrative Training<\/p>\n
v.  S.C.  Misra),  relied  on  by Mr.V.K.Muthusamy,  learned<\/p>\n
Senior  Counsel, cannot be made applicable to the  cases  on<\/p>\n
hand.\n<\/p>\n<\/p>\n
           16. Now, we shall consider various decisions  and<\/p>\n
submissions  made  by  Mr.C.Selvaraju and  Mr.R.Thiyagrajan,<\/p>\n
learned   Senior   Counsels  and  Mr.R.Viduthalai,   learned<\/p>\n
Advocate General.\n<\/p>\n<\/p>\n
           16-A.  In the decision reported in 2001 (10)  SCC<\/p>\n
520  (Union of India vs. S.N.Panikar), the<\/a> facts  show  that<\/p>\n
the  appellant  was the Union of India and  the  appeal  was<\/p>\n
filed  as  against  the order of the Central  Administrative<\/p>\n
Tribunal  dated 24.04.1992 passed in O.A. No.1001  of  1991.<\/p>\n
By  the  impugned  order, the Tribunal  directed  the  Union<\/p>\n
Government  to absorb the respondent in the post  of  Deputy<\/p>\n
Director  (Development) with effect from the date  when  the<\/p>\n
last  period  of  his deputation formally ended,  ie.,  with<\/p>\n
effect  from 01.01.1990.   It is further seen that the  post<\/p>\n
of  Deputy  Director  could  be filled  up  only  by  direct<\/p>\n
recruitment  under  the  relevant Recruitment  Rules  framed<\/p>\n
under  the  Proviso  to Article 309 of the  Constitution  of<\/p>\n
India.   Rule-6 confers powers of relaxation on the  Central<\/p>\n
Government  and such relaxation has to be given for  reasons<\/p>\n
recorded  in  writing  and in consultation  with  the  Union<\/p>\n
Public  Service Commission.  The respondent, who was serving<\/p>\n
in   the  Department,  was  sent  on  deputation  after  due<\/p>\n
consultation with UPSC.  But, after the period of deputation<\/p>\n
was  over,  when the Department requested UPSC  for  further<\/p>\n
continuance  of the respondent on deputation,  UPSC  refused<\/p>\n
the  request of the Union Government and informed the  Union<\/p>\n
Government  that  UPSC has not agreed to  the  extension  of<\/p>\n
period  of  deputation in the post of Deputy Director.   The<\/p>\n
respondent thereafter approached the Tribunal which came  to<\/p>\n
the  conclusion that the deputation itself having been  made<\/p>\n
by  the  Union Government in consultation with the  UPSC  in<\/p>\n
relaxation  of  the  provisions  of  the  Recruitment  Rules<\/p>\n
providing for direct recruitment, the applicant must be held<\/p>\n
to  have a right to hold the post according to the terms and<\/p>\n
conditions of appointment and he was not an ad hoc appointee<\/p>\n
and   the   respondents  were  not  right  in  terming   his<\/p>\n
appointment   as  ad  hoc.   Disagreeing   with   the   said<\/p>\n
conclusion,  the  Hon’ble  Supreme  Court  has  observed  as<\/p>\n
follows:-\n<\/p>\n<\/p>\n
                                   ”   ……   This<\/p>\n
         conclusion  of the Tribunal is contrary  to<\/p>\n
         the   service  jurisprudence  and  to   the<\/p>\n
         relevant  rules under which the  respondent<\/p>\n
         was  sent  on  deputation to  the  post  of<\/p>\n
         Deputy    Director   (Development).     The<\/p>\n
         further  conclusion of  the  Tribunal  that<\/p>\n
         regardless  of  whether  the  formal  order<\/p>\n
         states  it or not the decision to  fill  up<\/p>\n
         the  post by transfer on deputation  should<\/p>\n
         be   deemed  to  be  a  decision  taken  in<\/p>\n
         relaxation  of  the  Recruitment  Rules  as<\/p>\n
         provided  in  Rule  6, is  also  erroneous.<\/p>\n
         The  power  of relaxation was exercised  by<\/p>\n
         the  Union Government in consultation  with<\/p>\n
         UPSC  for  a  limited purpose,  namely,  to<\/p>\n
         fill  up  the  post by taking  somebody  on<\/p>\n
         deputation which otherwise required  to  be<\/p>\n
         filled  up only by direct recruitment.   In<\/p>\n
         that  view  of the matter, a deputationists<\/p>\n
         cannot claim either a right to the post  in<\/p>\n
         question  nor  can he claim  absorption  on<\/p>\n
         permanent  basis to the post  in  question.<\/p>\n
         ….”\n<\/p><\/blockquote>\n
In  the  above decision, the Supreme Court had categorically<\/p>\n
held   that  when  the  statutory  rule  does  not   provide<\/p>\n
absorption as one of the methods of appointment,  there  can<\/p>\n
be  no  right for the deputationists to claim for absorption<\/p>\n
in the said post.  The facts of the TWAD Board Engineers are<\/p>\n
identical and, therefore, as per the principle laid down  in<\/p>\n
the Supreme Court decision, all the writ petitions filed  to<\/p>\n
claim absorption as a right are liable to be dismissed.<\/p>\n
           16-B.   In  U.P. Land Dev. Corpn. v.  Amar  Singh<\/a><\/p>\n
(2003  (5) SCC 388, the Hon’ble Supreme Court has held  that<\/p>\n
when  the  work  of  the scheme had  come  to  an  end,  the<\/p>\n
respondents  were  not entitled to claim  regularisation  of<\/p>\n
their services.\n<\/p>\n<\/p>\n
           16-C.   Heavy reliance was placed on the Division<\/p>\n
Bench decision of this Court in Writ Appeal No.2682 of  2003<\/p>\n
etc.,  dated  23.12.2003.  The  writ  petitioners\/appellants<\/p>\n
approached this Court to issue a writ of mandamus, directing<\/p>\n
the  respondents to consider and absorb them in the Oil  and<\/p>\n
Natural   Gas  Corporation  Limited.   They  were  sent   on<\/p>\n
deputation with respondents-3 to 5.  As per G.O. Ms. No.741,<\/p>\n
dated  24.06.1978, the deputation would be for a  period  of<\/p>\n
three  years and in special circumstances, it would  be  for<\/p>\n
four years.  The question before the learned single Judge as<\/p>\n
well  as the Division Bench was as to whether the appellants<\/p>\n
can  claim  as a matter of right to be in foreign department<\/p>\n
and  to  be  absorbed  or are they be repatriated  to  their<\/p>\n
parent  department.  After considering the rival submissions<\/p>\n
and  the decisions of the Apex Court, the Division Bench was<\/p>\n
of  the view that respondents-1 and 2 made it clear that the<\/p>\n
appellants belonged to their service and they were sent only<\/p>\n
on deputation to respondents-3 to 5 and the said position is<\/p>\n
also not disputed.  The Bench further observed that when the<\/p>\n
parent   Department, viz., respondents-1 and  2,  wanted  to<\/p>\n
recall or repatriate them, the same cannot be questioned  or<\/p>\n
stalled  by  the  appellants.   It  further  observed   that<\/p>\n
repatriation of its employees by the parent department is  a<\/p>\n
rule and allowing them to continue in the foreign department<\/p>\n
is  only  an  exception.  After finding that the  appellants<\/p>\n
cannot  challenge  the  action of  respondents-1  and  2  in<\/p>\n
repatriating  the appellants, the Division  Bench  dismissed<\/p>\n
the  appeal. We are in agreement with the view expressed  by<\/p>\n
the Division Bench.\n<\/p>\n<\/p>\n
          16-D. In State of Punjab v. Jagdip Singh (AIR<\/a> 1964<\/p>\n
SC  521),  Their  Lordships  have  observed  that,  where  a<\/p>\n
Government Servant has no right to a post or to a particular<\/p>\n
status,  though  an  authority under the  Government  acting<\/p>\n
beyond  its competence had purported to give that  person  a<\/p>\n
status  which it was not entitled to give, one will  not  in<\/p>\n
law be deemed to have been validly appointed to the post  or<\/p>\n
given  the particular status; that, no doubt, the Government<\/p>\n
has  used  the expression ‘deconfirming’ in its notification<\/p>\n
which may be susceptible of the meaning that it purported to<\/p>\n
undo  an act which was therefore valid; that the expression,<\/p>\n
however,  must be interpreted in the light of  actual  facts<\/p>\n
which  led up to the notification; that  those facts clearly<\/p>\n
show  that  the  so-called  confirmation  by  the  Financial<\/p>\n
commissioner  of Pepsu was no confirmation at  all  and  was<\/p>\n
thus invalid; and that in view of this, the notification  of<\/p>\n
October  31,  1957, could be interpreted to  mean  that  the<\/p>\n
Government  did not accept the validity of the  confirmation<\/p>\n
of  the respondents and other persons who were confirmed  as<\/p>\n
Tahsildars  by  the Financial commissioner, Pepsu.  Applying<\/p>\n
the  principle laid down in the above decision, it is  clear<\/p>\n
that  no  right  or claim can be made by the  deputationists<\/p>\n
based  on the order dated 17.3.1999 which was passed without<\/p>\n
jurisdiction.\n<\/p>\n<\/p>\n
          16-E. In the decision reported in 1976 (4) SCC 543<\/p>\n
(G.Muniyappa  Naidu  v. State of Karnataka),  after  finding<\/p>\n
that  the Cadre and Recruitment Regulations recognised  only<\/p>\n
two  modes  of  recruitment to the  post  of  Senior  Health<\/p>\n
Inspectors, viz., promotion from the cadre of Junior  Health<\/p>\n
Inspectors  and  deputation from the  State  Directorate  of<\/p>\n
Health  Services and one half of the cadre was to  be  drawn<\/p>\n
from  each  of  these two sources, it was observed  that  no<\/p>\n
other  mode  of  recruitment could be  resorted  to  by  the<\/p>\n
Corporation under the Cadre and Recruitment Regulations.  It<\/p>\n
was concluded that it is difficult to see how in the face of<\/p>\n
the  said provision, which has admittedly statutory  effect,<\/p>\n
the posts of Senior Health Inspectors could be filled in  by<\/p>\n
absorption  of  deputationist Senior Health Inspectors  from<\/p>\n
the Karnataka State Civil Service.\n<\/p>\n
      Following  the  principles  laid  down  in  the  above<\/p>\n
decision,  the  claim  for absorption  has  to  be  rejected<\/p>\n
inasmuch   as   the  ad  hoc  rules  do   not   permit   the<\/p>\n
deputationists to be absorbed,.\n<\/p>\n<\/p>\n
          16-F.  In Ratilal B.Soni v. State of Gujarat<\/a> (1990<\/p>\n
(Supp)  SCC  243),  the  Supreme Court  has  held  that  the<\/p>\n
appellants  being on deputation, they could be  reverted  to<\/p>\n
their parent cadre at any time and they do not get any right<\/p>\n
to be absorbed on the deputation post.  After holding so and<\/p>\n
finding no infirmity in the Judgment of the High Court,  the<\/p>\n
Apex Court dismissed the appeal.\n<\/p>\n
           In  the above decision, the Supreme Court  upheld<\/p>\n
the  decision of the Gujarat High Court which had held  that<\/p>\n
the  deputationists had no legal right  to  be  absorbed  in<\/p>\n
State   Service  unless  the  option  is  accepted  by   the<\/p>\n
Government.  The principles laid down in the above  decision<\/p>\n
are  squarely  applicable to the facts of the present  cases<\/p>\n
since  the  option of the TWAD Board Engineers  was  neither<\/p>\n
accepted  by  the M.D., TWAD Board, nor by the Secretary  to<\/p>\n
Government,  R.D.  Department.   Hence,  as  per  the  above<\/p>\n
Supreme  Court  decision, the TWAD Board Engineers  have  no<\/p>\n
right to claim absorption in the R.D. Department.<\/p>\n
           16-G.   In the decision reported in 1996 (2)  SCC<\/p>\n
282  (Balakrishna Pandey vs. State of Bihar and others), the<\/p>\n
Apex Court has held as follows:-\n<\/p>\n
                     ”  5. It is settled law that an<\/p>\n
          employee  on  temporary  promotion   would<\/p>\n
          continue   to   hold  the  lien   in   his<\/p>\n
          substantive   post  until   it   is   duly<\/p>\n
          terminated. He cannot hold two substantive<\/p>\n
          posts  at  the  same  time.   Once  it  is<\/p>\n
          concluded   that   the  appellant   is   a<\/p>\n
          deputationists working in the  Directorate<\/p>\n
          of  SEP, his name was rightly not shown in<\/p>\n
          the  seniority  list of  that  Department.<\/p>\n
          Therefore, he continued to hold  his  lien<\/p>\n
          and   seniority   as  Junior   Statistical<\/p>\n
          Supervisor in the  parent Department.   On<\/p>\n
          reversion, he came back to his post  as  a<\/p>\n
          Junior  Statistical Supervisor and in  his<\/p>\n
          own  right he was promoted as SSA.   Since<\/p>\n
          the  fifth  respondent happened  to  be  a<\/p>\n
          permanent incumbent in the Directorate  of<\/p>\n
          SEP, he was promoted as SSA.  When further<\/p>\n
          vacancy  in the higher ladder, viz.,  SRA,<\/p>\n
          had  fallen vacant, he was considered  and<\/p>\n
          promoted  in  that vacancy.   Under  those<\/p>\n
          circumstances,  the  High  Court  is  well<\/p>\n
          justified  in  refusing to interfere  with<\/p>\n
          the   matter  and  we  do  not  find   any<\/p>\n
          justification warranting interference. ”<\/p>\n<\/blockquote>\n
In  the  above  decision, the Supreme Court found  that  the<\/p>\n
appellant therein was only a deputationist and cannot  claim<\/p>\n
right to promotion in the Transport Department and can  have<\/p>\n
right  only  in  the  parent Department.   Even  though  the<\/p>\n
appellant  continued  to be on deputation  in  view  of  the<\/p>\n
interim  directions of the Court, the Supreme Court adverted<\/p>\n
to that he continued to hold lien in his parent Department.<\/p>\n
            In  the present case also, though the TWAD Board<\/p>\n
Engineers,  by  an  interim order,  continued  in  the  R.D.<\/p>\n
Department  since 2004, they continued to  hold  their  lien<\/p>\n
with  their  parent department which is TWAD  Board,  hence,<\/p>\n
cannot claim absorption as a right.\n<\/p>\n<\/p>\n
          16-H.  Coming to the decision of the Apex Court in<\/p>\n
State  of Punjab and others vs. Inder Singh and Others<\/a> (1997<\/p>\n
(8) SCC page 372), it is relevant to refer to the conclusion<\/p>\n
with  regard to the concept of deputation in para  No.18  of<\/p>\n
the said Judgment,<\/p>\n
                       ”    18.   The   concept   of<\/p>\n
          ‘deputation’ is well understood in service<\/p>\n
          law   and   has   a  recognised   meaning.\n<\/p>\n
          ‘Deputation’  has a different  connotation<\/p>\n
          in  service law and the dictionary meaning<\/p>\n
          of  the  word ‘deputation’ is of no  help.\n<\/p>\n
          In simple words ‘deputation’ means service<\/p>\n
          outside  the cadre or outside  the  parent<\/p>\n
          Department.   Deputation  is  deputing  or<\/p>\n
          transferring an employee to a post outside<\/p>\n
          his  cadre,  that  is to say,  to  another<\/p>\n
          department  on a temporary  basis.   After<\/p>\n
          the   expiry  period  of  deputation   the<\/p>\n
          employee  has to come back to  his  parent<\/p>\n
          department  to  occupy the  same  position<\/p>\n
          unless  in  the  meanwhile he  has  earned<\/p>\n
          promotion in his parent department as  per<\/p>\n
          the Recruitment Rules. …..”\n<\/p>\n
In  the  above decision, the Supreme Court had not permitted<\/p>\n
the  claim  of  absorption  where  the  respondents  therein<\/p>\n
continued  in  the posts for nearly 20 years  and  in  fact,<\/p>\n
directed  to  revert those who have completed  20  years  of<\/p>\n
qualifying   service  to  their  parent   department.    The<\/p>\n
principle  laid down in the above decision is applicable  to<\/p>\n
the  facts  of  the present case.  The TWAD Board  Engineers<\/p>\n
were  sent on deputation to R.D. Department from 1997 for  3<\/p>\n
years  and were reverted back in 2004.  They were continuing<\/p>\n
on  deputation  in view of the interim order of  this  Court<\/p>\n
and,  as  per the above Supreme Court decision, they  cannot<\/p>\n
claim   absorption  when  the  Rules  do  not  permit  their<\/p>\n
absorption in the R.D. Department.\n<\/p>\n<\/p>\n
          16-I. In the decision reported in 2000 (5) SCC 362<\/p>\n
(Kunal  Nanda vs. Union of India and<\/a> another), the following<\/p>\n
conclusion is relevant,<\/p>\n
                     ”  6.  On  the legal submissions<\/p>\n
          also  made  there are no merits whatsoever.<\/p>\n
          It  is  well settled that unless the  claim<\/p>\n
          of   the  deputationists  for  a  permanent<\/p>\n
          absorption  in  the  department  where   he<\/p>\n
          works  on  deputation  is  based  upon  any<\/p>\n
          statutory rule, regulation or order  having<\/p>\n
          the  force of law, a deputationists  cannot<\/p>\n
          assert  and succeed in any such  claim  for<\/p>\n
          absorption. The basic principle  underlying<\/p>\n
          deputation   itself  is  that  the   person<\/p>\n
          concerned  can always and at  any  time  be<\/p>\n
          repatriated  to  his parent  department  to<\/p>\n
          serve  in his substantive position  therein<\/p>\n
          at   the   instance  of   either   of   the<\/p>\n
          departments  and there is no  vested  right<\/p>\n
          in  such  a person to continue for long  on<\/p>\n
          deputation   or   get   absorbed   in   the<\/p>\n
          department   to  which  he  had   gone   on<\/p>\n
          deputation.  ….”\n<\/p>\n
In  the  above  decision,  the  principle  relating  to  the<\/p>\n
position of deputationists was settled by the Supreme  Court<\/p>\n
by holding that there is no vested right for a deputationist<\/p>\n
to claim absorption in the borrowing department.  In view of<\/p>\n
the principle laid down in the above Supreme Court decision,<\/p>\n
there  cannot  be  a mandamus compelling the  Government  to<\/p>\n
absorb  the deputationists in the R.D. Department when  they<\/p>\n
have no vested right to claim absorption.<\/p>\n
           16-J.  In the decision reported in 2001 (10)  SCC<\/p>\n
655 (Mahesh Chand Bhargawa and others vs. Union of India and<\/p>\n
others<\/a>),  the  case  before  the  Supreme  Court  was,   the<\/p>\n
appellants\/deputationists   claimed   absorption   in    the<\/p>\n
Commercial  Department while retaining their lien  with  the<\/p>\n
Loco  Shed  and  drawing wages therefrom. The Supreme  Court<\/p>\n
held  that  the  appellants did not  acquire  any  right  of<\/p>\n
absorption in the Commercial Department.<\/p>\n
          The principle laid down in the above Supreme Court<\/p>\n
decision is applicable to the facts of the present  case  as<\/p>\n
the  TWAD Board Engineers retained their lien in TWAD  Board<\/p>\n
and  are  only  on deputation terms in the R.D.  Department.<\/p>\n
Hence, the writ petitioners did not acquire any right to  be<\/p>\n
absorbed in the R.D. Department.\n<\/p>\n<\/p>\n
          16-K. In Mahesh Kumar K.Parmar & Others vs. S.I.G.<\/p>\n
Of  Police and others<\/a> (2002 (9) SCC 485), the Apex Court has<\/p>\n
held  that no mandamus can be issued to the State Government<\/p>\n
requiring  them  to  permanently absorb the  deputationists.<\/p>\n
Hence, the position is made very clear by the above decision<\/p>\n
regarding  the plea for issuance of a mandamus in favour  of<\/p>\n
the petitioners.\n<\/p>\n<\/p>\n
           16-L.  In the decision reported in 2006  (4)  SCC<\/p>\n
page 1 (Secretary, State of Karnataka and others vs. Umadevi<\/p>\n
and  others<\/a>),  Constitution Bench of the Supreme  Court  has<\/p>\n
held  that  the High Courts acting under Article 226  should<\/p>\n
not,    ordinarily,   issue   directions   for   absorption,<\/p>\n
regularisation   or   permanent   continuance   unless   the<\/p>\n
recruitment  itself was made regularly and in terms  of  the<\/p>\n
constitutional scheme;  and that merely because an  employee<\/p>\n
had  continued under cover of an order of the  court,  under<\/p>\n
“litigious  employment”, he would not  be  entitled  to  any<\/p>\n
right to be absorbed or made permanent in the service.<\/p>\n
           As  per  the Constitution Bench Judgment  of  the<\/p>\n
Supreme   Court,  this  Court  may  not  issue  a  mandamus,<\/p>\n
directing  the Government to absorb the TWAD Board Engineers<\/p>\n
who  were  not appointed through the TNPSC for the  post  of<\/p>\n
Assistant  Engineer.  The respondents,  who  were  recruited<\/p>\n
through  the  TNPSC as Assistant Engineers,  should  not  be<\/p>\n
deprived  of  their promotions and other service  rights  by<\/p>\n
entertaining  the relief of TWAD Board Engineers,  who  were<\/p>\n
not  appointed in accordance with the Rules to hold the post<\/p>\n
of Assistant Engineer in the R.D. Department.<\/p>\n
            17.  Legitimate  Expectation  is  an  aspect  of<\/p>\n
promissory  estoppel.   In  the absence  of  an  unequivocal<\/p>\n
promise by the competent authority, neither the doctrine  of<\/p>\n
promissory  estoppel  nor  legitimate  expectation  can   be<\/p>\n
invoked.  (vide,   –  1998 (7) SCC 66 (cited  supra);   J.P.<\/p>\n
Bansal vs. State of Rajasthan – 2003 (5) SCC 134 ; Union  of<\/p>\n
India  vs.  International Trading Co.<\/a> – 2003 (5) SCC  437  ;<\/p>\n
2006 (5) SCC 702 – Kuldeep Singh vs. NCT Delhi).<\/p>\n
          In Dr. Rajinder Singh v. State of Punjab (2001 (5)<\/p>\n
SCC 482) and National Fertilisers vs. Somvir Singh<\/a> (2006 (5)<\/p>\n
SCC  493),  the  Apex Court has held that mere  proposal  of<\/p>\n
absorption cannot be construed as an order of absorption.<\/p>\n
           In  the  decision reported in 2006  (6)  SCC  430<\/p>\n
(R.S.Garg v. State of U.P.), the Supreme Court<\/a> has held that<\/p>\n
members of the statutory corporation and those in government<\/p>\n
service  form  different  classes  of  employees.   This  is<\/p>\n
primarily  because of the mode of selection process  adopted<\/p>\n
in  each  case.   Even if they are brought together  to  one<\/p>\n
department temporarily on deputation, they cannot be treated<\/p>\n
as  a  homogenous  class as they trace their  deputation  to<\/p>\n
independent  sources.   The  AEs  of  TWAD  Board  are   not<\/p>\n
appointed  by TNPSC.  The other Departments do  not  include<\/p>\n
statutory corporations like the TWAD Board.<\/p>\n
           18.  Learned Advocate General, in support of  his<\/p>\n
contention   that,  in  the  absence  of   specific   Rules,<\/p>\n
deputationists   from  TWAD  Board  cannot   compel   anyone<\/p>\n
including  the  Director, R.D. Department  \/  Government  to<\/p>\n
regularise  them  in the R.D. Department itself,  very  much<\/p>\n
relied on the following proposition in the decision reported<\/p>\n
in 2001 (5) SCC 482 (cited supra),<\/p>\n
                    ”  7. The settled position of law<\/p>\n
         is  that  no  government order, notification<\/p>\n
         or  circular  can  be a  substitute  of  the<\/p>\n
         statutory  rules framed with  the  authority<\/p>\n
         of  law. Following any other course would be<\/p>\n
         disastrous inasmuch as it would deprive  the<\/p>\n
         security  of  tenure and right  of  equality<\/p>\n
         conferred upon the civil servants under  the<\/p>\n
         constitutional   scheme.    It   would    be<\/p>\n
         negating   the   so  far  accepted   service<\/p>\n
         jurisprudence.   We are  of  the  firm  view<\/p>\n
         that  the  High Court was not  justified  in<\/p>\n
         observing  that even without  the  amendment<\/p>\n
         of  the  Rules, Class II of the service  can<\/p>\n
         be  treated  as  Class  I  only  by  way  of<\/p>\n
         notification.  Following such  a  course  in<\/p>\n
         effect  amounts to amending the rules  by  a<\/p>\n
         government  order and ignoring  the  mandate<\/p>\n
         of Article 309 of the Constitution. ”\n<\/p>\n
In  the above decision, the Supreme Court put in clear terms<\/p>\n
that  mere  communication of the recommending  authority  to<\/p>\n
consider  the case of the deputationists for absorption  and<\/p>\n
for passing appropriate orders by competent authority cannot<\/p>\n
give rise to legitimate expectation and promissory estoppel.<\/p>\n
           19. The above proposition has been considered and<\/p>\n
approved in a subsequent decision reported in Union of India<\/p>\n
v.   V.Ramakrishnan<\/a>  (2005  (8)  SCC  394).   The  following<\/p>\n
conclusion  of  Their  Lordships  in  paragraph   No.32   is<\/p>\n
relevant,<\/p>\n
                          ”   32.   Ordinarily,   a<\/p>\n
             deputationists has no legal  right  to<\/p>\n
             continue    in    the     post.      A<\/p>\n
             deputationists  indisputably  has   no<\/p>\n
             right  to be absorbed in the  post  to<\/p>\n
             which  he is deputed.  However,  there<\/p>\n
             is  no bar thereto as well.  It may be<\/p>\n
             true  that  when deputation  does  not<\/p>\n
             result  in  absorption in the  service<\/p>\n
             to  which  an  officer is deputed,  no<\/p>\n
             recruitment  in  its true  import  and<\/p>\n
             significance  takes  place  as  he  is<\/p>\n
             continued  to  be  a  member  of   the<\/p>\n
             parent service. …”\n<\/p>\n
           In  G. Nagendra vs. State of Karnataka<\/a> (1998  (9)<\/p>\n
SCC 439), the Supreme Court has held that rules framed under<\/p>\n
Article  309  of the Constitution can be given retrospective<\/p>\n
effect.\n<\/p>\n<\/p>\n
          20. In the light of the Government Orders, Board’s<\/p>\n
Proceedings, terms & conditions of deputation and the  legal<\/p>\n
principles enunciated by the Supreme Court, let us summarise<\/p>\n
our  conclusions  with regard to the position  of  the  writ<\/p>\n
petitioners\/TWAD  Board  Engineers,  their  right  to  claim<\/p>\n
absorption and whether mandamus compelling the Government to<\/p>\n
absorb  the TWAD Board Engineers in the R.D. Department  can<\/p>\n
be issued,<\/p>\n
           First of all, the petitioners\/deputationists have<\/p>\n
no legal right vested in them so as to invoke the principles<\/p>\n
of ‘legitimate expectation’, ‘promissory estoppel’, etc. and<\/p>\n
claim   absorption  as  a  matter  of  right.   Though   the<\/p>\n
petitioners struggle to substantiate their case  by  stating<\/p>\n
that  initially  there was a proposal  for  their  permanent<\/p>\n
absorption in the R.D. Department, such position would  have<\/p>\n
definitely  stood as a strong factor to take a  decision  in<\/p>\n
their  favour had the impugned Rule fell in such  lines  and<\/p>\n
brought  them  under its scope of appointment.   Apparently,<\/p>\n
there was a stipulation that the absorption would be subject<\/p>\n
to  the framing of ad hoc rules, whereby, it was made  clear<\/p>\n
that   their  absorption  would  depend  on  the  provisions<\/p>\n
inscribed  in the Rules to be framed.  In other  words,  the<\/p>\n
provisional  absorption was conditional\/contingent  and  not<\/p>\n
absolute.   Surprisingly, the petitioners did  not  question<\/p>\n
their  absorption subject to the framing of  ad  hoc  rules.<\/p>\n
Similarly, when they were informed as early as on 02.07.1999<\/p>\n
that  they cannot at all be absorbed in the R.D. Department,<\/p>\n
they did not choose to challenge said order. That being  so,<\/p>\n
at  this point of time, when  Ad hoc rules have been framed,<\/p>\n
which  do  not provide for  absorption and make  the  orders<\/p>\n
issued  on 25.05.1998 as null and void, they cannot at  all,<\/p>\n
in  the  light of the settled legal position, claim for  the<\/p>\n
relief   asked  for  by  them.   Further,  the   petitioners<\/p>\n
themselves  know  well that services on  contract  basis  in<\/p>\n
accordance with Rule-11 of the State and Subordinate Service<\/p>\n
Rules  can be terminated by the Government as and  when  the<\/p>\n
need  for such services ceases.  The petitioners cannot take<\/p>\n
advantage  of the order passed without jurisdiction  by  the<\/p>\n
Director,  R.D.  Department, inasmuch  as,  admittedly,  the<\/p>\n
Government  is  the only authority to decide in  the  matter<\/p>\n
relating  to  permanent absorption.   It is the  well  known<\/p>\n
principle  that if an executive instruction is  contrary  to<\/p>\n
the  statutory\/service rules, the rules will prevail and not<\/p>\n
the  executive  instructions.  Further,  TWAD  Board  is  an<\/p>\n
undertaking of the Government of Tamil Nadu and appointments<\/p>\n
made  by  it are outside the purview of TNPSC, whereas,  the<\/p>\n
post of A.E. in the R.D. Department comes within the purview<\/p>\n
of  the  TNPSC, that being so, the deputationists, who  were<\/p>\n
not recruited through TNPSC and who rendered services in the<\/p>\n
R.D.  Department ‘on contract basis’ and retain  their  lien<\/p>\n
with  TWAD Board, cannot claim for absorption.  As  adverted<\/p>\n
to  already,  the  concept of deputation is  consensual  and<\/p>\n
involves  a voluntary decision of the employer to  lend  the<\/p>\n
services  of his employee and a corresponding acceptance  of<\/p>\n
such  services by the borrowing employer.  It also  involves<\/p>\n
the  consent  of  the employee to go on deputation  or  not.<\/p>\n
Here,  the  chain  of  consent is broken  and  not  complete<\/p>\n
amongst  the  TWAD  Board,  R.D.  Department\/Government  and<\/p>\n
petitioners,  in  that,  the TWAD  Board  declined  to  give<\/p>\n
consent;  R.D. Department withdrew its earlier proposal  for<\/p>\n
absorption;  and  the ad hoc rules expelled the  petitioners<\/p>\n
from  the  zone of consideration for absorption\/appointment;<\/p>\n
hence,   with  the  mere aspirations of the  deputationists,<\/p>\n
nothing  can  be  done, for, legitimate expectation  can  be<\/p>\n
justified if its edifice is built with the sanction of law.<\/p>\n
      Another  aspect  of  the matter  is,  by  not  getting<\/p>\n
permanent  absorption  in the R.D. Department,  they  cannot<\/p>\n
complain  prejudice  because  the  doors  of  their   parent<\/p>\n
department  are  not  closed  for  them  in  view   of   the<\/p>\n
continuance  of  their lien therewith, with  all  applicable<\/p>\n
allowances.   Thus,  in the absence of any  statutory  rule,<\/p>\n
regulation or order, having the force of law, to  trace  the<\/p>\n
right   and   claim  of  the  deputationists  for  permanent<\/p>\n
absorption in the R.D. Department, we can not close our eyes<\/p>\n
to  the propounded principles established by the Apex Court,<\/p>\n
which  cover  aptly the issue involved, and  issue  mandamus<\/p>\n
compelling the Government to absorb the deputationists.<\/p>\n
           21.  Attacking the validity of the impugned Rules<\/p>\n
framed in G.O. Ms. No.15, R.D. Department, dated 25.01.2000,<\/p>\n
Mr.A.L.Somayaji,  learned  Senior  Counsel,  put  forth  the<\/p>\n
following contentions,<\/p>\n
           (a)  The ad hoc rules issued for the post of A.E.<\/p>\n
excluding the deputationists from TWAD Board as one  of  the<\/p>\n
methods  of appointment is arbitrary, illegal and  violative<\/p>\n
of Articles 14 and 16 of the Constitution of India.<\/p>\n
           (b)  The impugned rules operate viciously against<\/p>\n
the  deputationists who were appointed long before the issue<\/p>\n
of rules; hence, to the extent of non-inclusion, the Rule is<\/p>\n
bad in law.\n<\/p>\n
           (c)  The  impugned  rules,  giving  retrospective<\/p>\n
effect from 26.09.1997, thereby affecting the acquired right<\/p>\n
to  continue  in  the  R.D. Department,  are  arbitrary  and<\/p>\n
illegal.\n<\/p>\n
          (d)  denial  of absorption in the R.D.  Department<\/p>\n
under  the  guise  of ad hoc Rules affect  their  legitimate<\/p>\n
expectation.\n<\/p>\n
           (e) A section of employees, viz., Union Overseers<\/p>\n
from Highways Department were given the relief of absorption<\/p>\n
in  G.O.  Ms.  No.102 and denial of the same relief  to  the<\/p>\n
deputationists  from  TWAD  Board  is  illegal  and  offends<\/p>\n
Articles 14 and 16 of the Constitution of India.<\/p>\n
        In support of the above contentions, Mr.A.L.Somayaji<\/p>\n
relied on the following decisions,<\/p>\n
     (a) 1975 (4) SCC 754 (Superintendent and Remembrancer<\/p>\n
                    of Legal Affairs vs. G.K.Navalakha)<\/a><\/p>\n
     (b) 1969 (II) LLJ 169 (cited supra)<\/p>\n
     (c) 1996 Law Weekly Page 78 (Commissioner of Civil<\/p>\n
          Supplies, Madras, The v. P.Annamalai)<\/a><\/p>\n
     (d) AIR 1987 SC 415 (T.R.Kapur v. State of Haryana)<\/p>\n
It<\/a> is not in dispute that the petitioner in W.P. No.33503 of<\/p>\n
2006  and others are deputationists from TWAD Board and they<\/p>\n
are  working in the R.D. Department.  It is also  true  that<\/p>\n
initially  an  order  of absorption was  made  by  the  R.D.<\/p>\n
Department.  Subsequently, in view of the stand taken by the<\/p>\n
M.D.,  TWAD  Board, the order absorbing them was  cancelled.<\/p>\n
Thereafter,  by  way of G.O. Ms. No.15, ad  hoc  rules  were<\/p>\n
framed.   In  the Rules, the deputationists  were  not  made<\/p>\n
eligible for appointment in the R.D. Department.<\/p>\n
           Para  No.3 of the Rules deals with the method  of<\/p>\n
appointment  and it provides that the post of  A.E.  can  be<\/p>\n
filled  by  (a)  direct  recruitment;  (b)  recruitment   by<\/p>\n
transfer; and (c) the ratio for appointment to the  post  by<\/p>\n
Direct Recruitment and Recruitment by Transfer shall be 1:1.<\/p>\n
The  above  provision makes it clear that the Rules  do  not<\/p>\n
take  in the deputationists under its method of appointment.<\/p>\n
According   to   the   petitioner,  non-inclusion   of   the<\/p>\n
deputationists in the method of appointment though they have<\/p>\n
been working for the development of the Engineering Wing  in<\/p>\n
the R.D. Department violates Article-14 of the Constitution.<\/p>\n
Service  Rules  have overriding effect on G.O.  Ms.  No.102,<\/p>\n
R.D.   Department,  dated  25.05.1998,  which  is  only   an<\/p>\n
executive Order.  Further, it is brought to our notice  that<\/p>\n
the  post  of Assistant Engineer with same pay and allowance<\/p>\n
is  readily  available to the petitioner and others  in  the<\/p>\n
TWAD  Board  ie.,  their  parent organisation.  It  is  also<\/p>\n
brought to our notice that the direct recruitment of A.E. in<\/p>\n
R.D.  Department was commenced as early as in September 1997<\/p>\n
itself  when  the  petitioner and  others  were  working  on<\/p>\n
contract basis.  They do not have any service rights as  per<\/p>\n
Rule   11  of  the  State  and  Subordinate  Service  Rules.<\/p>\n
Admittedly,  the  petitioner and others are  not  Government<\/p>\n
employees  under  the  provisions contained  in  Fundamental<\/p>\n
Rules.   It is the specific stand of the Government as  well<\/p>\n
as  the  TWAD  Board  that the petitioner  and  others  were<\/p>\n
employed ‘on contract basis’ in accordance with the  Rule-11<\/p>\n
of  the  State  and  Subordinate Service Rules  and  can  be<\/p>\n
terminated by the Government when the need for his  services<\/p>\n
ceases.    As  observed by the Supreme Court in Kunal  Nanda<\/p>\n
vs.  Union  of India (AIR<\/a> 2000 SC 2076), the petitioner  and<\/p>\n
others  being  deputationists have no  legal  right  to  get<\/p>\n
absorbed  in the borrowing Department.  Their absorption  in<\/p>\n
the  R.D.  Department is not possible as per Service  Rules.<\/p>\n
As  rightly  pointed out, if the plea of the petitioner  and<\/p>\n
others  is  conceded,  it will amount  to  inflicting  gross<\/p>\n
injustice  to the unemployed engineering graduates  and  who<\/p>\n
are  waiting  for  recruitment  through  TNPSC.   As  stated<\/p>\n
earlier,  the post of Assistant Engineer with the  same  Pay<\/p>\n
and  Allowances  is readily available to the petitioner  and<\/p>\n
others in their parent Organisation.\n<\/p>\n
           Though  learned Senior Counsel appearing for  the<\/p>\n
petitioner  questioned the validity of the ad hoc  rules  as<\/p>\n
tainted with arbitrariness and violative of Articles 14  and<\/p>\n
16  of  the  Constitution; in view of  the  various  factual<\/p>\n
aspects  peculiar  to  the cases  on  hand,  which  we  have<\/p>\n
adverted  to in the course of the Judgment, and the  settled<\/p>\n
legal  position  that the Courts should not  interfere  with<\/p>\n
the  executive\/legislative decisions except to  examine  the<\/p>\n
action in accordance with law and to determine as to whether<\/p>\n
the  legislature or executive has acted within the power and<\/p>\n
functions  assigned under the constitution;  various  points<\/p>\n
raised  by him in this regard have to be rejected  in  toto.<\/p>\n
To  the executive decision for absorption subject to framing<\/p>\n
of  ad  hoc  rules,  the  petitioner  and  others  subjected<\/p>\n
themselves, knowing well that they are bound by the  outcome<\/p>\n
of    the    said   rules;   hence,   they   cannot   allege<\/p>\n
unconstitutionality or arbitrariness when the Rules excluded<\/p>\n
them from the purview of consideration for appointment.  The<\/p>\n
impugned   Rules   passed;  sifting   the   non-governmental<\/p>\n
employees,  whose parent department is an autonomous  Board,<\/p>\n
after  taking  into consideration various aspects  including<\/p>\n
the  initial reluctance on the part of the Board in  sparing<\/p>\n
their  employees with the R.D. Department on the  ground  of<\/p>\n
dearth  of  hands  and  apprehension of  setbacks  in  their<\/p>\n
activities;  cannot at all be said to be offending  Articles<\/p>\n
14  and  16 of the Constitution.  After all, whenever  their<\/p>\n
services are required by the parent Department, they have to<\/p>\n
leave  the  borrowing department where they  are  posted  on<\/p>\n
deputation\/contract basis only on public interest.  Inasmuch<\/p>\n
as  the  Constitution  clearly circumscribes  the  areas  of<\/p>\n
legislative  power and judicial power, none can encroach  or<\/p>\n
dominate   upon  the  field  occupied  by  the  other.    As<\/p>\n
repeatedly  pointed out, this Court has its own self-imposed<\/p>\n
limits and any deviation would amount to transgressing  into<\/p>\n
the domain of the executive.\n<\/p>\n<\/p>\n
            22.  Insofar  as  the  contention  relating   to<\/p>\n
discrimination and different treatment for A.Es.  from  TWAD<\/p>\n
Board, it is true that some of the personnel working in  the<\/p>\n
Highways Department as deputationists in the R.D. Department<\/p>\n
were  regularised.   It  is  not in  dispute  that  Highways<\/p>\n
Department is a wing of the Government and appointments  are<\/p>\n
being  made  as  per their Service Rules  by  following  the<\/p>\n
procedure.  In other words, all appointments are being  made<\/p>\n
by  the TNPSC by calling for a list of eligible persons from<\/p>\n
the  Employment Exchange. Admittedly, such procedure is  not<\/p>\n
in  vogue  in the appointment of AEs in the TWAD Board.   In<\/p>\n
such circumstances, merely because some of the Engineers  in<\/p>\n
the Highways Department were regularised, it cannot be cited<\/p>\n
as a precedent even in the case of TWAD Board Engineers.  In<\/p>\n
the  decision reported in 1990 (2) SCC 707 (Mallikarjuna Rao<\/p>\n
and  others  vs.  State of Andhra Pradesh and  others),  the<\/p>\n
Hon’ble Supreme Court has held as follows:-<\/p>\n
                    ”  11.  … It is neither  legal<\/p>\n
         nor  proper  for  the High  Courts  or  the<\/p>\n
         Administrative    Tribunals    to     issue<\/p>\n
         directions  or  advisory  sermons  to   the<\/p>\n
         executive in respect of the sphere which is<\/p>\n
         exclusively  within  the  domain   of   the<\/p>\n
         executive under the Constitution. ….<\/p>\n<\/blockquote>\n
                     12. …….<\/p><\/blockquote>\n
<\/blockquote>\n
                     13. The Special Rules have been<\/p>\n
         framed    under   Article   309   of    the<\/p>\n
         Constitution  of  India.  The  power  under<\/p>\n
         Article 309 of the Constitution of India to<\/p>\n
         frame rules is the legislative power.  This<\/p>\n
         power  under  the Constitution  has  to  be<\/p>\n
         exercised by the President or the  Governor<\/p>\n
         of  a  State as the case may be.  The  High<\/p>\n
         Courts   or  the  Administrative  Tribunals<\/p>\n
         cannot   issue  a  mandate  to  the   State<\/p>\n
         Government  to legislate under Article  309<\/p>\n
         of  the  Constitution of India.  The courts<\/p>\n
         cannot usurp the functions assigned to  the<\/p>\n
         executive under the Constitution and cannot<\/p>\n
         even  indirectly require the  executive  to<\/p>\n
         exercise  its  rule  making  power  in  any<\/p>\n
         manner.  The courts cannot assume to itself<\/p>\n
         a  supervisory  role over the  rule  making<\/p>\n
         power of the executive under Article 309 of<\/p>\n
         the Constitution of India. ”\n<\/p><\/blockquote>\n
In  the decision reported in 2003 (2) SCC 632 (P.U.Joshi vs.<\/p>\n
Accountant General), the<\/a> following conclusions are relevant,<\/p>\n
                     ” 10. … Questions relating to<\/p>\n
          the constitution, pattern, nomenclature of<\/p>\n
          posts,    cadres,    categories,     their<\/p>\n
          creation\/abolition,    prescription     of<\/p>\n
          qualifications  and  other  conditions  of<\/p>\n
          service  including avenues  of  promotions<\/p>\n
          and  criteria  to  be fulfilled  for  such<\/p>\n
          promotions pertain to the field of  policy<\/p>\n
          is  within  the  exclusive discretion  and<\/p>\n
          jurisdiction  of  the State,  subject,  of<\/p>\n
          course, to the limitations or restrictions<\/p>\n
          envisaged in the Constitution of India and<\/p>\n
          it  is not for the statutory tribunals, at<\/p>\n
          any rate, to direct the Government to have<\/p>\n
          a  particular  method of   recruitment  or<\/p>\n
          eligibility   criteria   or   avenues   of<\/p>\n
          promotion or impose itself by substituting<\/p>\n
          its   views   for  that  of   the   State.\n<\/p>\n
          Similarly, it is well open and within  the<\/p>\n
          competency  of  the State  to  change  the<\/p>\n
          rules  relating to a service and alter  or<\/p>\n
          amend and vary by addition\/subtraction the<\/p>\n
          qualifications, eligibility  criteria  and<\/p>\n
          other   conditions  of  service  including<\/p>\n
          avenues  of promotion, from time to  time,<\/p>\n
          as  the administrative exigencies may need<\/p>\n
          or  necessitate.  Likewise, the  State  by<\/p>\n
          appropriate    rules   is   entitled    to<\/p>\n
          amalgamate   departments   or    bifurcate<\/p>\n
          departments   into  more  and   constitute<\/p>\n
          different categories of posts or cadres by<\/p>\n
          undertaking     further    classification,<\/p>\n
          bifurcation  or amalgamation  as  well  as<\/p>\n
          reconstitute and restructure  the  pattern<\/p>\n
          and  cadres\/categories of service, as  may<\/p>\n
          be   required  from  time   to   time   by<\/p>\n
          abolishing  the existing cadres\/posts  and<\/p>\n
          creating  new cadres\/posts.  There  is  no<\/p>\n
          right  in  any  employee of the  State  to<\/p>\n
          claim  that rules governing conditions  of<\/p>\n
          his service should be forever the same  as<\/p>\n
          the  one  when he entered service for  all<\/p>\n
          purposes   and  except  for  ensuring   or<\/p>\n
          safeguarding  rights or  benefits  already<\/p>\n
          earned,   acquired   or   accrued   at   a<\/p>\n
          particular  point  of time,  a  government<\/p>\n
          servant  has  no  right to  challenge  the<\/p>\n
          authority of the State to amend, alter and<\/p>\n
          bring  into  force new rules  relating  to<\/p>\n
          even an existing service. ”\n<\/p>\n
The  above decisions of the Supreme Court make it clear that<\/p>\n
the prayer of the TWAD Board Engineers to amend the Rules in<\/p>\n
such a manner as to include the deputationists as one of the<\/p>\n
methods  of appointment cannot be granted by this Court  and<\/p>\n
no  Court  can  interfere  with the exclusive  discretionary<\/p>\n
jurisdiction of the State.  Such being the position  and  in<\/p>\n
view  of  the  fact  that the personnel  from  the  Highways<\/p>\n
Department  stand  on a different footing,  the  TWAD  Board<\/p>\n
Engineers cannot plead discrimination.<\/p>\n
          23. Though an argument was projected that the Rule<\/p>\n
cannot be made applicable retrospectively, it is settled law<\/p>\n
that while framing the Rules, the Government is free to  fix<\/p>\n
the relevant date from which the same shall come into force.<\/p>\n
Though  it  was argued that the ad hoc rules take  away  the<\/p>\n
vested rights of the Assistant Engineers, inasmuch as  there<\/p>\n
is  no  specific Rule enabling the R.D. Department to absorb<\/p>\n
the Assistant Engineers from the TWAD Board, and even in the<\/p>\n
ad  hoc  Rules framed, there is no provision for absorption,<\/p>\n
the  contrary argument of the learned counsel appearing  for<\/p>\n
the petitioners is liable to be rejected.  Though absorption<\/p>\n
was  made  by the R.D. Department within a short period,  in<\/p>\n
view of the stand taken by the Parent Department, viz., TWAD<\/p>\n
Board, that their services are needed by the TWAD Board, the<\/p>\n
order absorbing them in the R.D. Department was withdrawn by<\/p>\n
the  Director.  As  pointed  out earlier,  inasmuch  as  the<\/p>\n
petitioners have no right to ask for absorption and in  view<\/p>\n
of the fact that very same post with same pay and allowances<\/p>\n
are  available in their parent Department viz., TWAD  Board,<\/p>\n
the  challenge  relating to validity of the  Rules  for  not<\/p>\n
providing  a  clause  for  appointing  them  in   the   R.D.<\/p>\n
Department cannot be countenanced at all. Further,  as  held<\/p>\n
by  the  Supreme Court reported in 1998 (9) SCC  439  (cited<\/p>\n
supra), it is not correct to say that the rules framed under<\/p>\n
Article   309   cannot   be   given  retrospective   effect.<\/p>\n
Exclusion  of  the deputationists in view of their  distinct<\/p>\n
identity   from   the   regular  Government   servants   and<\/p>\n
retrospective operation of the impugned rules  framed  under<\/p>\n
Article  309  of  the  Constitution cannot  be  assailed  as<\/p>\n
violative of Articles 14 and 16 of the Constitution.   While<\/p>\n
considering   the  question  as  to  whether   retrospective<\/p>\n
operation  prescribed by the rules amounted to contravention<\/p>\n
or infringement of the individuals’ rights, the Court has to<\/p>\n
take   into   account  all  the  relevant  and   surrounding<\/p>\n
circumstances and in that connection, test of the length  of<\/p>\n
time  covered  by  the retrospective operation,  by  itself,<\/p>\n
cannot  necessarily be a decisive test. To find out  whether<\/p>\n
the impugned rule with retrospective operation is reasonable<\/p>\n
and  not  violative  of  any constitutional  provisions,  it<\/p>\n
becomes  relevant  to  enquire as to how  the  retrospective<\/p>\n
effect  operates.  First of all, the impugned Rules take  in<\/p>\n
its  sphere  the individuals, who are exclusively government<\/p>\n
servants  entered service through the TNPSC and governed  by<\/p>\n
the  relevant  service rules applicable  to  the  government<\/p>\n
servants.    Secondly,  the  individuals   rendering   their<\/p>\n
services  in  a foreign department on contract basis  cannot<\/p>\n
compete with the insiders of that Department.  Thirdly,  the<\/p>\n
parent  Department of the deputationists  is  an  autonomous<\/p>\n
body   and   the  entry  thereto  was  not  through   TNPSC.<\/p>\n
Inasmuch  as no vested right of any deputationist  is  taken<\/p>\n
away  by  the  retrospective operation  of  the  Rules,  the<\/p>\n
argument relating to alleged adverse impacts shall  fall  to<\/p>\n
the ground.\n<\/p>\n<\/p>\n
           24.  In these circumstances, we find no merit  in<\/p>\n
the  Writ  Petitions filed by the deputationists  from  TWAD<\/p>\n
Board  and  they are liable to the dismissed.  We hold  that<\/p>\n
the  ad  hoc  rules  framed in G.O.  Ms.  No.15,  R.D.  (E1)<\/p>\n
Department, dated 25.01.2000, with retrospective effect  are<\/p>\n
constitutionally valid and in accordance with the  statutory<\/p>\n
provisions.   The  Writ Petition challenging  the  vires  of<\/p>\n
those Rules is also liable to be dismissed.<\/p>\n
          Insofar as the relief sought for by the Tamil Nadu<\/p>\n
Rural Development Engineers’ Association in W.P. No.31510 of<\/p>\n
2004,  in view of our discussion particularly in respect  of<\/p>\n
the  personnel  from Highways Department in Para  No.22  and<\/p>\n
conclusion as seen from various paragraphs relating  to  the<\/p>\n
absorption  of  the  deputationists,  it  is  for  the  R.D.<\/p>\n
Department to take decision and pass appropriate orders.<\/p>\n
           25. Net result, W.P. No.31510 of 2004 is disposed<\/p>\n
of with the above direction and all other Writ Petitions are<\/p>\n
dismissed. No costs.  Connected Miscellaneous Petitions  are<\/p>\n
closed.\n<\/p>\n
\nTo<\/p>\n
1. The Secretary, Rural Development Department,
\nFort St. George, Chennai-9.\n<\/p>\n
2. Director of Rural Development Panagal Buildings, IV
\nFloor, Saidapet, Chennai-15.\n<\/p>\n
3. The Managing Director, T.N. Water Supply and Drainage
\nBoard, Kamarajar Salai, Chennai 600 005.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court P.M.Mari vs The State Of Tamil Nadu on 29 January, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-3914","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nP.M.Mari vs The State Of Tamil Nadu on 29 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-m-mari-vs-the-state-of-tamil-nadu-on-29-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.M.Mari vs The State Of Tamil Nadu on 29 January, 2007 - 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