P M MARI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) PETITIONERS, working in the Rural Development Departmente Board (in short TWAD Board), pray to issue a writ of mandamus, directing the respondents - Secretary, Rural Development Department (in short R. D. Department), and the Director, Rural Development, Chennai, to absorb them as Assistant Engineers, R. D. Department, from the date of their appointment pursuant to the directions in G. O. Ms. No. 102, dated 25. 5. 1998, issued by the Government of Tamil Nadu. II. Some of the petitioners seek to quash the letter of the TWAD Board, dated 27. 12. 2004, and pray for a consequential direction to give effect to the order of absorption issued by the Director of R. D. made in his proceedings dated 17. 03. 1999. They also pray to hold that his order dated 02. 07. 1999, cancelling absorption of A. Es. of TWAD Board in R. D. Department, is void. III. In one Writ Petition, viz. , W. P. No. 35303 of 2006, the petitioner has prayed for a writ of declaration, declaring, (a) para 2 of Notification IV of G. O. Ms. No. 15, R. D. (E1) Department, dated 25. 01. 2000, giving retrospective effect to the Ad hoc Rules from 26. 09. 1997, as void, (b) non-inclusion of deputationists from TWAD Board as one of the methods of appointment for recruitment to the post of Assistant Engineer in Rule-3 of the ad hoc Rules in G. O. Ms. No. 15 as void. Apart from the above relief, the petitioner also seeks for a consequential direction to include the deputationists from TWAD Board as one of the methods of appointment in Rule 3 and absorb him as Assistant Engineer in the R. D. Department with all consequential benefits. iv. In W. P. No. 31510 of 2004, The Tamil Nadu Rural Development Engineers' Association through its General Secretary P. Ravikumar, prays for the issuance of a writ of mandamus, directing the Secretary to Government, R. D. Department, and Director of R. D. , Chennai-15, to repatriate the Assistant Engineers/assistant Executive Engineers of the present Highways Department/agricultural Engineering Department and Dharmapuri District Development Corporation, possessing a Bachelor's Degree or its equivalent in Mechanical and Agricultural Engineering, and all Junior Engineers, Assistant Engineers/assistant Executive Engineers of various other Technical Departments, who are on deputation/on contract basis and serving in the R. D. Department beyond five years, to their respective parent Departments forthwith and maintain the cadre strength between Assistant Engineers/junior Engineers of the R. D. Department as stipulated in the Rules in force.

(2.) SINCE the reliefs sought for in all these Writ Petitions are interconnected and the W. Ps. having been filed by two sets of individuals; viz. , deputationists from other departments to R. D. Department on the one hand, seeking absorption and promotion in the present Department; and the insiders/in-service personnel of the R. D. Department on the other hand, claiming repatriation of the deputationists to their respective parent Departments; they are being disposed of by the following common judgment.

(3.) AS the Writ Petitions filed by the deputationists contain common pleas, we cull out the facts from some of the Writ Petitions:-A. For convenience, at first, we shall refer the case of P. M. Mari, petitioner in W. P. No. 19401 of 2004. He is an Engineer with B. E. in Civil Engineering. He joined the TWAD Board on 10. 06. 1985 as Assistant Engineer. In 1997, he was sent on deputation to the R. D. Department when 'engineering Wing' was started there. This was under G. O. Ms. No. 263, dated 27. 12. 1996, issued by the Government - first respondent. Additional technical posts sanctioned under the said Government Order were directed to be filled up on deputation/by transfer of service basis for a period of three years as temporary measure. At present, he is working as Assistant Engineer in the R. D. Department. The Director of R. D. , Chennai-15, following the notification dated 21. 01. 1997, requested the Collectors to issue orders to individuals who had been selected from the willing candidates from the Highways, Rural Works Department and TWAD Board. Persons, who went on deputation, were found eligible and suitable based on their qualifications. Along with the petitioner, a number of persons from the TWAD Board also came to the R. D. Department on deputation. In G. O. Ms. No. 102, R. D. Department, dated 25. 05. 1998, the Government directed the Director to report about permanently absorbing Assistant Engineers from other Technical Departments by giving them weightage for the service put in by them in their respective parent departments. Based on such direction, ad hoc rules were framed by the Government for the persons holding temporary posts. These rules were based on the earlier Government Orders in G. O. Ms. Nos. 263 and 102. The Rule relating to the appointment contemplated the following, (a) by direct recruitment; (b) recruitment by transfer from overseer in the RD Department; (c) the ratio for appointment to the post by direct recruitment and recruitment by transfer shall be 1:1. According to the petitioner, he comes within the category of direct recruitment which contemplated only a degree in Civil Engineering among other things. G. O. Ms. No. 15, dated 25. 01. 2000, shall be deemed to have come into effect from 25. 05. 1998. Even on 17. 3. 1999, the Director had passed an order for permanent absorption of 125 Assistant Engineers working on deputation from various other departments into the RD Department. But, on 2. 7. 1999, this order was cancelled by him as the Managing Director of the TWAD Board had refused to accept the proposal for absorption of persons deputed from the Board by his letter dated 15. 4. 1999. After sometime, the Director was informed by the Managing Director, TWAD Board, on 22. 07. 1999, that the Board was willing for the permanent absorption of the Assistant Engineers on deputation by the R. D. Department. Willingness was conveyed to the first respondent/government also. In spite of those proceedings, there was a lot of confusion in the office of the Director, R. D. , whereupon, the Director issued proceedings dated 10. 03. 2004 to the District Collectors asking them to give particulars about the Assistant Engineers who have been recruited by the TNPSC to enable him to promote them as Assistant Executive Engineers. The petitioners and other similarly placed persons gave representations to the respondents, requesting them to include their names in the panel for promotion. So far, they have not received any reply. They apprehend that promotion would be made without including their names. Hence, they filed several writ petitions, seeking for a direction to the respondents to absorb them as Assistant Engineers in the R. D. Department from the date of their appointment pursuant to the direction in G. O. No. 102 dated 25. 05. 1998 issued by the first respondent. B. P. M. Mari and others joined together and filed W. P. No. 26807 of 2005 making similar contentions to those raised in W. P. No. 19401 of 2004. C. In W. P. No. 33503 of 2006, filed by T. Venkatesh, an Assistant Engineer directly recruited in TWAD Board, now in the R. D. Department, it is stated that the Government of Tamil Nadu, with a view to have a separate Engineering Wing in the R. D. Department created certain posts. One such post is Assistant Engineer or Additional Union Engineer. To meet the immediate requirement and development of the Engineering Wing, the Government directed to draw Assistant Engineers by way of deputation from various Technical Departments including TWAD Board as the same has been considered as one of the Technical Departments. Accordingly, options were called for by the Director of Rural Development through the respective Collectors who in turn obtained the same from the Superintending Engineers of the TWAD Board. The petitioner expressed his willingness to go on deputation. Since January 1997, he has been working continuously till this date. The Government took a policy decision to absorb the deputationists and issued G. O. Ms. No. 102, R. D. (EIV) Department, dated 25. 05. 1998, wherein, it directed the Director of R. D. to explore the possibility of absorbing all the deputationists in the R. D. Department. Though the said order was implemented initially, the same was cancelled on 02. 07. 1999 on the ground of not giving consent by the TWAD Board. However, the said deficiency was made good by the succeeding Managing Director of the TWAD Board by sending two letters on 22. 07. 1999 and 12. 10. 1999, giving willingness for permanent absorption of their staff in the R. D. Department. On the basis of those letters, the petitioner was allowed to continue beyond the period of deputation. The petitioner and others were hoping that they would be permanently absorbed and given all service benefits, but, nothing has been done. The Government framed ad hoc Rules for the post of Assistant Engineers in the R. D. Department vide G. O. Ms. No. 15, Rural Development (E1) Department, dated 25. 01. 2000. The Rules had come into effect from 26. 09. 1997. Paragraph No. 3 of the Rules deals with the method of appointment and it provides that the post of Assistant Engineer can be filled by (a) Direct Recruitment; (b) Recruitment by transfer; and (c) Ratio of 1:1 provided for Direct Recruitment and recruitment by transfer. However, the Rules do not take in the deputationists under its method of appointment and thereby the right of the petitioner to continue in the Department is curtailed. Further, non-inclusion of deputationists in the method of appointment though they have been working for the development of the Engineering Wing in the R. D. Department violates Article 14 of the Constitution. The petitioner entered the R. D. Department long before the issue of ad hoc rules, that being so, the retrospective effect of the rules from 26. 09. 1997 affects his right very much, because, even before passing of orders, an absorption order has been issued, subject to framing of rules. Such being the case, the authorities ought to have made a provision to include the deputationists as one of the methods of appointment so as to give effect to the orders already passed in favour of the petitioner and others. Hence, the ad hoc rules are ultra vires the Constitution of India. 3 (a ). Now, we shall briefly narrate the case of the petitioner-association (in-service personnel of the R. D. Department) in W. P. No. 31510 of 2004. According to the General Secretary of the petitioner-Association, R. D. Department has been executing several State/centrally sponsored Anti-Poverty Programmes besides executing development works out of the funds of Panchayat and Panchayat Unions by employing technical personnel of the erstwhile Highways and Rural Works Departments on service lend basis upto 1996. Consequent to the Constitutional 73rd Amendment, introducing new Tamil Nadu Panchayats Act, 1994, and of the fact that several new schemes to be implemented, it became inevitable on the part of the Government to create a separate Engineering Wing for the R. D. Department. By G. O. Ms. No. 263, RD Department, dated 27. 12. 1996, the Government decided to set up a separate Engineering Wing for the R. D. Department. By virtue of the said Government Order, new posts were created in the R. D. Department. However, no Service Rules were framed and notified for appointment to those posts at the relevant time (during 1996 ). Hence, the posts were initially filled up by drawing personnel from other technical departments of Government of Tamil Nadu like TWAD Board, Agricultural Engineering Department, P. W. D, etc. including Highways Department 'on Deputation Basis' as a temporary measure. According to the petitioner, the above arrangement was very unsatisfactory since the deputationists had no commitment or motivation for executing the various time-bound schemes of the R. D. Department. The Association of Tamil Nadu Highways Engineers' opposed the creation of a separate 'engineering Wing' under the R. D. Department, claiming that all the posts created by virtue of G. O. Ms. No. 263 be earmarked only for Engineers of the erstwhile Highways and Rural Works Department. Certain personnel on deputation basis at various points of time since 1996 opted for repatriation to their parent Departments as various lending Departments could not sponsor the required number of eligible Engineers willing to serve in the R. D. Department. The Government decided to fill up 200 posts of AE (RD) by Direct Recruitment through TNPSC by notification dated 26. 09. 1997. The Government also framed necessary Service Rules in G. O. Ms. No. 15 dated 25. 01. 2000. The constitutional validity of both G. O. Ms. Nos. 102 and 15 were challenged before the Tamil Nadu State Administrative Tribunal by a group of individuals and by the Association of Tamil Nadu Engineering Graduates, however, both the Government Orders were upheld by the Administrative Tribunal. The personnel working in the R. D. Department were not given proper promotions. On the other hand, the deputationists/'on contract basis personnel' are occupying various posts of AE/aees without any specific and valid order against the Rules in Force. There are nearly 20 AEs/aees, who have been deputed from Highways Department, Agricultural Engineering Department and Dharmapuri District Development Corporation, belonging to Government of Tamil Nadu, with Bachelors Degree qualification (B. E. /b. Tech) entrusted with the execution of various Panchayat Union Works in the R. D. Department. They are not fully competent enough to execute/supervise the works as per specifications and exercise quality control over the works. Moreover, the qualification possessed by them is against the provisions contained in the Service Rules framed by the Government of Tamil Nadu under Article 309 of the Constitution of India, hence, their continued presence in the R. D. Department is illegal and against the interests of the R. D. Department and general public. The petitioner-association made several representations to various authorities in the Government of Tamil Nadu and to the Secretary, Tamil Nadu Public Service Commission, complaining about the illegality being committed. Similar persons, unqualified and not fit enough to continue, are also continuing from TWAD Board and Tamil Nadu State Construction Corporation and they are to be repatriated to their respective parent Departments. There are 295 Engineers (AEs/jes) from various other Engineering Departments of Government of Tamil Nadu, working in the R. D. Department 'on deputation'/'on contract' basis as on 18. 08. 2004, which is about 35-40% of the total sanctioned posts of AEs/jes in the R. D. Department. Such a large number of 'deputationists'/'on contract personnel' are blocking the promotional avenues of the in-service personnel in the R. D. Department. The continued presence of nearly a large number of Engineers 'on deputation'/'on contract basis' beyond legally permissible period is leading to the creation of vested interests being developed by such 'deputationists'/'on contract personnel', thereby jeopardise the very purpose of the creation of a separate Engineering Wing in the R. D. Department for executing the Panchayat Union time-bound schemes sponsored by Central/state Governments and also completely block the promotional opportunities available to the in-service Engineers of the R. D. Department including the members of the petitioner-association.