1. Appointment of Technical Assistants as Assistant Engineers by transfer of service — Challenge to validity based on feeder category rules and executive orders. (Para 2 )
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2024 Supreme(SC) 338
SUPREME COURT OF INDIA
B.R. GAVAI, SANDEEP MEHTA, JJ.
Association of Engineers and Others – Appellants
Versus
The State of Tamil Nadu and Others – Respondents
Civil Appeal Nos. 4372, 4886-4888, 4889-4890, 4891-4892, 5747-5750 of 2023
Decided On : 16-04-2024
Important Points
IMPORTANT POINT
Appointment – Court cannot undo settled position after long lapse of time.
Appointment – Court cannot undo settled position after long lapse of time.
Subject
Service Law - Recruitment and Promotion
Act Referred
CONSTITUTION OF INDIA: Art.335, Art.14, Art.136
TAMIL NADU STATE AND SUBORDINATE SERVICES RULES: R.2(1), R.36(a), S.48
TAMIL NADU STATE AND SUBORDINATE SERVICES RULES: R.2(1), R.36(a), S.48
Headnote
Service Law – Appointment – As Assistant Engineers on transfer of service – State Government was required to take a decision to appoint Technical Assistants as Assistant Engineers on temporary basis as it was found that out of 122 vacancies apportioned to post of Assistant Engineer to be filled up by recruitment by transfer, only 29 vacancies had been filled so far – Attempt of appellant association is to grab all posts available even those apportioned for candidates promoted from subordinate services – Such attitude is totally inequitable – Continuation of appellants as Assistant Engineers would not amount to encroaching upon 75% posts apportioned for members of appellants’ association – In any case, any interference at this stage is likely to undo settled position which has been prevalent almost for a period of last 18 years – Equity demands no interference to be warranted in impugned judgment in facts and circumstances of the case. (Paras 25, 26 and 27)
Facts of the case:
Present set of appeals challenge judgment dated 3rd August 2022, passed by Division Bench of High Court of Judicature at Madras whereby writ appeals being W.A. Nos. 82 and 95 of 2015 and 5251 of 2022 filed by respondents herein were allowed and order dated 23rd December 2014 passed by Single Judge of Madras High Court in Writ Petition No. 11148 of 2017 was quashed and set aside.
Findings of Court:
Contention of appellants that services of Technical Assistants have not been regularized is contrary to record. In any case, State Government, in its affidavit dated 10th March 2023, has categorically reaffirmed this position.
Result : Appeals dismissed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Mrs. Madhavi Divan, Sr. Adv. Ms. Preetika Dwivedi, AOR Mr. Abhisek Mohanty, Adv. Mr. Naveen Kumar Murthy, Adv. Mr. N. Subramaniyan, Adv. Mr. Pranav Sachdeva, AOR Mr. Jatin Bhardwaj, Adv. Ms. Aakriti, Adv. Mr. Pranav Sachdeva, Adv. Ms. Neha Rathi, AOR Mr. Kamal Kishore, Adv. Ms. Kajal Giri, Adv.
For the Respondent(s): Mr. V. Prakash, Sr. Adv. Mr. Senthil Jagadeesan, Sr. Adv. Mr. K.K. Mani, AOR Mr. G. Veerapathiran, Adv. Ms. T. Archana, Adv. Mr. Rajeev Gupta, Adv. Mr. Sanjay R. Hegda, Sr. Adv. Mr. D. Kumanan, AOR Mr. Sheikh F Kalia, Adv. Mrs. Deepa. S, Adv. Ms. Beno Deswal, Adv. Mr. Senthil Jagadeesan, Sr. Adv. Ms. Sonakshi Malhan, AOR Mr. Sabarish Subramanian, AOR Mr. Pranav Sachdeva, Adv. Ms. Neha Rathi, AOR Mr. Kamal Kishore, Adv. Ms. Kajal Giri, Adv. Mr. P. Rajendran,Adv. Mr. S. Beno Bencigar,Adv. Mr. Parijat Kishore,Adv.
For the Appellant(s) : Mrs. Madhavi Divan, Sr. Adv. Ms. Preetika Dwivedi, AOR Mr. Abhisek Mohanty, Adv. Mr. Naveen Kumar Murthy, Adv. Mr. N. Subramaniyan, Adv. Mr. Pranav Sachdeva, AOR Mr. Jatin Bhardwaj, Adv. Ms. Aakriti, Adv. Mr. Pranav Sachdeva, Adv. Ms. Neha Rathi, AOR Mr. Kamal Kishore, Adv. Ms. Kajal Giri, Adv.
For the Respondent(s): Mr. V. Prakash, Sr. Adv. Mr. Senthil Jagadeesan, Sr. Adv. Mr. K.K. Mani, AOR Mr. G. Veerapathiran, Adv. Ms. T. Archana, Adv. Mr. Rajeev Gupta, Adv. Mr. Sanjay R. Hegda, Sr. Adv. Mr. D. Kumanan, AOR Mr. Sheikh F Kalia, Adv. Mrs. Deepa. S, Adv. Ms. Beno Deswal, Adv. Mr. Senthil Jagadeesan, Sr. Adv. Ms. Sonakshi Malhan, AOR Mr. Sabarish Subramanian, AOR Mr. Pranav Sachdeva, Adv. Ms. Neha Rathi, AOR Mr. Kamal Kishore, Adv. Ms. Kajal Giri, Adv. Mr. P. Rajendran,Adv. Mr. S. Beno Bencigar,Adv. Mr. Parijat Kishore,Adv.
Table of Contents
2. Validity of appointments via executive orders without statutory rule amendments — Allegations of backdoor entry and violation of equality and efficiency in administration. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 )
3. Executive instructions filling gaps until rules are framed are valid — No encroachment on direct recruit quotas — Regularization already occurred via government order. (Para 14 , 15 , 16 , 17 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 )
4. Executive instructions may be issued to fill gaps in service rules until formal rules are framed under Article 309 of the Constitution. (Para 16 )
5. Appeals challenging appointments dismissed; separate writ petitions remanded to High Court for fresh consideration. (Para 28 , 31 )
6. Can executive instructions be used to fill gaps in service rules?
Yes, executive instructions can be issued to fill gaps until necessary rules are framed under Article 309 of the Constitution of India. (Para 16 )
7. Does the appointment of a specific cadre by transfer affect the quota of direct recruits?
Not if the appointments are made against the quota specifically apportioned for recruitment by transfer and do not encroach upon the quota earmarked for direct recruits. (Para 21 )
8. When is interference under Article 136 of the Constitution warranted in service matters?
Article 136 is a discretionary power exercised sparingly to remedy extraordinary situations or gross failures of justice; it is not used to undo settled positions where equity demands no interference. (Para 26 , 27 )
JUDGMENT :
B.R. GAVAI, J.
Civil Appeal Nos. 4886 to 4889, 4892 and 5748 to 5750 of 2023
1. The present set of appeals challenge the judgment dated 3rd August 2022, passed by the Division Bench of the High Court of Judicature at Madras (‘Madras High Court’ for short), whereby the writ appeals being W.A. Nos. 82 and 95 of 2015 and 5251 of 2022 filed by the respondents herein were allowed and the order dated 23rd December 2014 passed by the learned Single Judge of the Madras High Court in Writ Petition No. 11148 of 2017 was quashed and set aside.
2. The facts giving rise to present appeals are as under:
2.1 The employees are governed by Tamil Nadu State and Subordinate Service Rules and also Special Rules to govern different services in the State. The engineering staff comes under the Tamil Nadu Engineering Service and Tamil Nadu Engineering Subordinate Service.
2.2 On 2nd January 1990, Public Works Department, Government of Tamil Nadu (hereinafter referred to as ‘PWD’) issued an order being G.O. Ms. No. 1 (hereinafter referred to as ‘G.O. No. 1’) accepting the recommendations of Chief Engineer, PWD (General) and the Tamil Nadu Public Service Commission (hereinafter referred to as ‘TNPSC’) and directed that from the date of this order, Junior Draughting Officers, Draughting Officers, Overseers and Technical Assistants, who have completed 5 years of service and acquired BE/AMIE qualification, will be entitled to be appointed as Assistant Engineers on transfer of service.
2.3 On 22nd January 1991, Government Order being G.O. Ms. No. 88 of 1991 (hereinafter referred to as “G.O. No. 88”) came to be issued wherein it was clarified that TNPSC need not be consulted for appointment of Junior Draughting Officers, Draughting Officers, Overseers and Technical Assistants, who have completed 5 years of service and acquired BE/AMIE qualification, as Assistant Engineers.
2.4 Writ Petition No. 3309 of 1991 came to be filed before the Madras High Court by Engineering Graduates challenging G.O. No. 1 on the ground that part-time B.E. Degrees were inferior to regular B.E. Degrees. The same were dismissed vide order dated 8th March 1991.
2.5 On 31st May 1994, an advertisement being No. 9/94 was issued by the TNPSC for direct recruitment of Assistant Engineers. This advertisement was challenged by several Junior Draughting Officers, Draughting Officers and Technical Assistants before the Tamil Nadu Administrative Tribunal, Chennai (hereinafter referred to as the ‘Tribunal) on the ground that their appointment should also be considered in the advertised posts in terms of abovementioned G.O. Nos. 1 and 88.
2.6 The Tribunal, vide order dated 17th April 1997, allowed the applications filed by Junior Draughting Officers and Draughting Officers, however, dismissed the applications filed by Technical Assistants. The Tribunal observed that the Technical Assistants are not part of feeder category from which recruitment by transfer can be made for the post of Assistant Engineers.
2.7 Thereafter, Association of Engineers, one of the appellants herein filed Writ Petition No. 7523 of 1997 before the Madras High Court challenging the above finding of the Tribunal qua the Junior Draughting Officers and Draughting Officers. The Technical Assistants never challenged the dismissal of their applications by the Tribunal. The High Court, vide order dated 6th November 2006, dismissed the said writ petition. In the year 2009, the said order of the High Court was challenged before this Court in Civil Appeal No. 995 of 2009. This Court, vide order dated 14th September 2017, dismissed the said appeal.
2.8 From 1999 till 2002, a total number of 491 vacancies in the post of Assistant Engineers were notified to be filled up. Out of the same, 369 vacancies were to be filled up by direct recruitment and the remaining 122 vacancies were to be filled up by recruitment by transfer. Out of the said 122 vacancies referable to the feeder categories for appointment by recruitment by transfer, 29 v
