Point of Law: Rule 10(a)(i) of the General Rules have to be ranked below TNPSC candidates irrespective of the date of appointment of such TNPSC candidates and special absorption rules candidates.

Judgment :-

(Prayer: Writ Appeal filed under Clause 15 of Letters Patent to set aside the order, dated 30.01.2020, passed in W.P.(MD) No.19959 of 2019, on the file of this Court.)

T.S. Sivagnanam, J.

1. The writ petitioner is the appellant, who is aggrieved by the dismissal of W.P.(MD) No.19959 of 2019 by order dated 30.01.2020.

2. The above said writ petition was filed challenging the proceedings of the second respondent dated 05.09.2019. By the said proceedings, the second respondent re-fixed the seniority in the post of Assistant Engineer (Civil) and placed the third respondent in Serial No.1 above the appellant.

3. We have elaborately heard Mr.B.Saravanan, learned counsel appearing for the appellant, Mr.K.P.Krishnadass, learned Special Government Pleader appearing for the respondents 1 and 2 and Mr.Raja Karthikeyan, learned counsel appearing for the third respondent and Mr.D.Sivaraman, learned counsel for the fourth respondent and carefully gone through the materials placed on record and also the written submissions, which has been submitted along with a typed set of papers by Mr.Raja Karthikeyan, learned counsel for the third respondent.

4. The following factual background is required to be noted before we test the correctness of the order impugned in this appeal.

4.1. The appellant is an Engineering Graduate and applied to the Tamil Nadu Public Service Commission (TNPSC) for appointment to the post of Assistant Engineer (Civil) in the Public Works Department (PWD) in the year 1993. On account of various litigations, the selection process was delayed and the selection list was published in the year 1998 and the appellant was placed in Serial No.1 and appointed as Assistant Engineer (Civil) in PWD on 30.12.1998.

4.2. The third respondent was appointed in the post of Assistant Engineer (Civil) in PWD on compassionate ground and he joined duty on 23.06.1998 and his probation was declared on 22.06.2000. A representation was given by the third respondent to re-fix his seniority in the post of Assistant Engineer (Civil) with reference to the date of his regular appointment in the said post.

4.3. The second respondent, by order dated 25.08.2008, rejected the said request. As against the said order, an appeal was preferred to the Government, which was also rejected. The third respondent challenged those orders by filing W.P.(MD) No.17856 of 2009 and the said writ petition is stated to be pending. The appellant has been subsequently promoted to the post of Assistant Executive Engineer (Civil) on 14.09.2009 and the panel for further promotion to the post of Executive Engineer has been published on 05.04.2014 and the appellant's name is found place in Serial No.322 and that of the third respondent in Serial No.550. On 31.07.2019, the appellant has been promoted as Executive Engineer. By order dated 05.09.2019, the inter se seniority has been altered and the third respondent has been placed above the appellant by referring to Section 40(2) of Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and the clarification issued by the Government, dated 15.05.2018.

5. The key factual issues, which have to be noted, are that the appellant was selected pursuant to a recruitment process conducted by TNPSC. The seniority of the appellant will be determined by the rank assigned by TNPSC. The third respondent's father was working as Teacher in a Primary School in Kozhaiyur Village Panchayat of Thittakudi Taluk and he died in harness on 05.02.1985. The third respondent appears to have made a representation stating that he should be appointed on compassionate ground in PWD as Assistant Engineer. Surprisingly, the Government considered the representation favourably as sought for by the third respondent and by G.O.Ms.No.272, Public Works Department, dated 12.05.1988, appointed the third respondent and he joined the post on 23.06.1988.

6. The short question, which involved in the instant case is whether the third respondent can have a march over the