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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8758 OF 2013 (Arising out of SLP (C.) No. 20986 of 2007)

Tamil Nadu Rural Development Engineers Association                                       …Appellant  

VERSUS

The Secretary to Government Rural Development Department & Ors.                      …Respondents

WITH  

CIVIL APPEAL NO.8759 OF 2013 (Arising out of SLP (C.) No. 15918 of 2007)

Tamil Nadu Rural Development Engineers Association                                       …Appellant  

VERSUS

The Secretary to Government Rural Development Department & Ors.                      …Respondents

WITH  

CIVIL APPEAL NO.8762 OF 2013 (Arising out of SLP (C.) No. 15988 of 2007)

Tamil Nadu Rural Development Engineers Association                                         …Appellant  

VERSUS

The Secretary to Government Rural Development Department & Ors.                      …Respondents

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WITH  

CIVIL APPEAL NO.8763 OF 2013 (Arising out of SLP (C.) No. 16064 of 2007)

Tamil Nadu Rural Development Engineers Association                                        …Appellant  

VERSUS

The Secretary to Government Rural Development Department & Ors.                      …Respondents

WITH  

CIVIL APPEAL NO.8764 OF 2013 (Arising out of SLP (C.) No. 18310 of 2007)

Tamil Nadu Rural Development Engineers Association                                        …Appellant  

VERSUS

The Secretary to Government Rural Development Department & Ors.                      …Respondents

WITH  

CIVIL APPEAL NO.8765 OF 2013 (Arising out of SLP (C.) No. 20987 of 2007)

Tamil Nadu Rural Development Engineers Association                                        …Appellant  

VERSUS

The Secretary to Government Rural Development Department & Ors.                      …Respondents

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J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. Leave granted in all the Special Leave Petitions.

2. These appeals are directed against the common judgment  

and final order dated 29th January, 2007 passed by the High  

Court of Judicature at Madras in Writ Petition                 Nos.   

26990  and  26973  of  2005;  36096  of  2004,  Writ  Appeal  

No.500 of 2005, Writ Petition Nos. 31416 of 2004 and 9460  

of  2005. By this order,  the High Court  dismissed the Writ  

Petitions  and  the  Writ  Appeal  filed  by  the  Appellant-

Association.

3. Since the facts involved in the controversy in all the appeals  

are  common,  we  shall  make  a  reference  to  the  facts  as  

narrated by the High Court. This shall be supplemented by  

any additions made by the parties in this Court.

4. The facts noticed by the High Court are that the members of  

the Tamil Nadu Rural Development Engineers' Association  3

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(hereinafter  referred  to  as  'Appellants')  were  initially  

appointed as 'Overseers'  by the then Highways and Rural  

Works  Department  and  posted  exclusively  to  various  

Panchayat Unions for executing all the Civil  works / Rural  

works in the Panchayat Unions of Tamil Nadu. Since they  

were earlier under the administrative control of the erstwhile  

Highways and Rural Works Department, they had no proper  

avenues of  promotion  especially  for  the  post  of  Assistant  

Engineer (for short ‘AE’) and many of them were languishing  

in the same post, i.e., as Overseers, for nearly two decades.  

5. By  virtue  of  G.O.  Ms.  No.  263,  Rural  Development  

Department  (in  short  ‘RD  Department’),  dated  27th  

December, 1996, the Government of Tamil Nadu decided to  

set up a separate ‘Engineering Wing’ for the RD Department  

itself so as to exercise adequate control over various Central  

and State sponsored Schemes and accordingly several new  

posts such as Assistant Engineers (AE). Assistant Executive  

Engineers  (AEE),  Executive  Engineers  (EE)  and  

Superintending Engineers (SE), were created.  

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6. By virtue of G.O. Ms. No. 102, RD Department, dated   25 th  

May, 1998, the Government directed that the then Highways  

and Rural  Works Department  should  cease forthwith  from  

exercising control over the promotions and appointments in  

the RD Department. The Government Order also recognised  

the rights of the Overseers, whose entire service is only in  

the RD Department, for promotion to the posts of AEs and  

Junior  Engineers  (JEs).  Finally,  the  Government  framed  

Service  Rules  for  various  technical  posts  in  the  RD  

Department and notified the same in G.O. Ms. No. 15, dated  

25th January, 2000, by invoking the powers under proviso to  

Article 309 of  the Constitution of  India.  On 14th December,  

2001 G.O. M.S.       No. 295 (RD) Department was issued to  

amend the service rules with effect from  25th May, 1998

7. As soon as the Engineering Wing was created in the RD  

Department, the posts were filled up by drawing personnel  

from other technical  Departments of  Government of  Tamil  

Nadu  on  'deputation  basis'  as  an  interim  arrangement.  

However,  the  Tamil  Nadu Highway Engineers  Association  

opposed the creation of a separate Engineering Wing under  5

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the                  RD Department and filed Original Application  

in  O.A.  No.  253  of  1997  before  the  Tamil  Nadu  

Administrative Tribunal (in short 'Tribunal'). This Application  

was  dismissed  by  the  Tribunal  by  order  dated  12 th  

November, 1997. Aggrieved by the order of the Tribunal, the  

Association filed W.P. No. 6513 of 1998 before the Madras  

High Court. By order dated 2nd April, 2002, the Madras High  

Court upheld the order of the Tribunal.  

8. The  constitutional  Validity  of  G.O.  Ms.  No.  15,  

dated  25th January,  2000,  and  G.O.  Ms.  No.  102,  

dated 25th May, 1998, was challenged before the Tribunal by  

a group of individuals and by the Association of Tamil Nadu  

Engineering Graduates in O.A. Nos. 5338 and 7766 of 2000.  

Both the Government Orders were upheld by the Tribunal by  

order dated 3rd June, 2002.

9. A group of AE - Direct Recruits, on completion of five years  

of  service  in  the  RD Department,  filed  O.A.  Nos.1068  to  

1081  of  2004  before  the  Tribunal,  praying  that  they  be  

considered  for  promotion  to  the  post  of  AEE  in  the  RD  6

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Department  under  Rule  39  of  General  Rules  of  the  

Government of  Tamil  Nadu. The Tribunal,  by Order dated  

16th March, 2004, directed the Government and the Director,  

RD  Department,  to  consider  and  grant  promotion  to  the  

applicants under Rule 39 of the General Rules. It was also  

held that regular promotion and selection can be done after  

preparing  a  Panel.  This  order  was  challenged  by  the  

Appellants in Writ Petition Nos. 34029 and 34040 of 2004  

and 1174 of 2005.

10. Appellant-Association  made  representations  to  the  

respondent to fix a ratio of 1:1 among AE- direct recruits and  

AE- Promotees, for promotion to the post of AEE. The above  

ratio was requested to be fixed based on the cadres strength  

in  category  of  AEs,  between  AE-  direct  recruits  and  

AE- promotees, which is 1:1. The same ratio was sought to  

be maintained for the promotional post of AEE as well.

11. It is stated that without reference to the ratio envisaged in  

G.O.  Ms.  No.  15,  respondent  No.2  sought  to  make  a  

common Seniority List for direct recruits and promotees. The  7

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Appellant-Association challenged the common Seniority List  

in W.P.No.26276 of 2004. An interim stay was granted in the  

said W.P. on 2nd September, 2004. Later, the Writ Petition  

was withdrawn by the Appellant-Association with liberty to  

file a fresh Writ Petition.

12. Shortly thereafter respondent No.1 effected promotions of  

a  group  of  direct  recruits  who  had  completed  5  years  of  

service as AEE by issuing G.O.(2D) NO.116 on 29th October,  

2004.  This  was  followed  by  G.O.  (D)  No.  966  (RD)  (E1)  

dated 16th November, 2004 issuing posting orders of these  

promotees. Appellant-Association then filed W.P. No. 36096  

of 2004 challenging the promotions and posting of the direct  

recruits as AEE.

13. Appellant-Association also filed W.P. No. 31416 of 2004  

seeking a  writ  of  Mandamus directing  the  respondents  to  

effect  promotions  to  the  post  of  Assistant  Executive  

Engineers,  RD  Department,  from  the  post  of  Assistant  

Engineer  on  1:1  ratio  between  ‘Assistant  Engineer-Direct  

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Recruits’ and ‘Assistant Engineers -Promoted by transfer of  

service’ in the RD Department.

14. In the meantime, the High Court passed an order dated  

2nd December, 2004 in Writ Petition 35315 of 2004 directing  

the Government to implement the order of  the Tribunal in  

O.A.           No. 1799 of 2004 and to consider the case of the  

Promotees  who  had  been  absorbed  from  the  Highways  

Department, if there were no other impediments. Appellant-

Association filed Writ  Appeal No. 500 of  2005 against the  

order of the Single Judge.

15. The Government vide letter dated 29th December, 2004  

rejected the request of the Appellant-Association to fix a ratio  

of  1:1,  on  the  ground  that  the  promotions  of  both  the  

categories  have  to  be  made  on  the  basis  of  the  date  of  

joining  as  Assistant  Engineer,  irrespective  of  the  source.  

This led the Appellant-Association to file W.P. No. 9460 of  

2005 praying for quashing of the rejection letter issued by  

the Government                        on 29th December, 2004.  

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16. Appellant-Association also filed W.P. No. 26973 of 2005  

seeking  issuance  of  a  writ  of  Mandamus  directing  the  

respondents to  give retrospective  effect  to  the promotions  

given to Overseers as Assistant Engineers from 25 th May,  

1998, i.e.,  the date from which the Service Rules for ‘AE-

Promotees’  as  notified  in  G.O.  M.S.  No.295  Rural  

Development (E1) Department dated 14th December, 2001,  

came into effect.  

17. Aggrieved by the non-fixation of ratio for ‘AE - Promotees’  

inspite  of  various  representations,  the  members  of  the  

Appellant-Association,  filed  a  Writ  Petition  No.  26990  of  

2005  seeking  issuance  of  writ  declaring  Rule  3(2)  of  

Notification-III  of  G.O.  Ms.  No.  15,  RD Department,  dated  

25th January, 2000, as ultra vires in the absence of fixation of  

quota between                   AE- Direct  Recruits and  

Promotees to the post of AEE.

18. By  the  impugned  judgment,  the  Division  Bench  of  the  

High Court has held that Service of the Appellants in the RD  

Department  before  absorption  and  immediately  after  the  10

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absorption was in  a  lower  post,  i.e.,  Overseer.  Therefore,  

they could not be equated with the direct recruits who joined  

the  RD  Department  as  Assistant  Engineers.  The  post  of  

Overseer  was a feeder  post  for  promotion on the post  of  

Assistant Engineer. It was further noticed that admittedly, the  

Appellants had voluntarily given the option to be absorbed  

as Overseers. Hence, they cannot claim to be equated with  

the  Assistant  Engineers.  Further,  the  Appellants,  after  

absorption, were given benevolent treatment by way of being  

considered for promotion and, in fact, promoted as AEs. The  

High Court opined that  it  cannot lightly ignore the specific  

stand of the Government that the minimum qualifying service  

of 5 years in the post of AE for promotion to the post of AEE  

has  been  prescribed  for  the  reason  that  the  incumbents  

should  acquire  the  needed  practical  experience  before  

taking  up  'higher  responsibilities'  so  as  to  achieve  

administrative  efficiency  in  the  Engineering  services.  The  

Appellants cannot claim that the services rendered by them  

in the Highways Department as Overseers for 20 years be  

taken  into  account  for  promotion  in  the  RD  Department.  

They cannot make use of the currency that is extinct and not  11

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in  vogue.  Already,  they  were  rewarded  well  inasmuch  as  

their past services had been taken into account much prior  

to  their  absorption,  i.e.,  from 1997 onwards;  whereas,  the  

services of the direct recruits were counted from the date on  

which they entered Government Service; therefore, benefit in  

fact has been extended only to the Appellants and not to the  

direct recruits. In equity also, the claim of the Appellants was  

without  any  merit  as  after  being  absorbed  in  the  RD  

Department, they have been given promotion and made to  

stand on par with the direct recruits. Therefore, there is no  

justification at  all  in  asking for  further  classification  in  the  

integrated cadre and relaxation of five years experience for  

the purpose of promotion. It was made clear that once the  

direct  recruits  and promotees are  absorbed in  one cadre,  

they form one class and they cannot be further classified for  

the purpose of promotion. It is not the case of the Appellants  

that  the  requisite  experience  as  provided  in  the  Rules  is  

applied only in respect of their case and the direct recruits  

are let free to climb the ladder to reach the zenith. In fact,  

though the Appellants’  voice that  retrospective promotions  

should have been given to them, admittedly,  they are not  12

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qualified for promotion till date, in that, their absorption in the  

RD  Department  with  their  consent  as  overseers  was  on  

8th March,  1999;  their  promotion  as  AEs  was  on  2nd  

September, 2002; and they would be completing the 5 years  

of service as AEs. only on 2nd September, 2007. As on date,  

they are all juniors to the direct recruits, hence, they cannot  

unfairly  ask  for  a  relief  contrary  to  the  procedure  and  

statutory  provisions  so  as  to  destroy  the  right  accrued to  

their seniors/direct recruits. It is reiterated that rules having  

been  made  in  exercise  of  the  power  under  proviso  to  

Article 309 of  the  Constitution,  being  statutory,  cannot  be  

impeached for whimsical and flimsy reasons. In service law,  

it is settled principle that fixation of quota between various  

feeder  categories  is  prerogative  of  the employer/authority.  

No  valid  ground  was  raised  or  invincible  argument  made  

before the High Court to sustain the claim that the orders of  

the Tribunal  suffer  from infirmities  warranting interference.  

With  these  reasons,  the  High  Court  has  held  that  the  

impugned part of the Government Order does not in any way  

offend  Articles  14 and 16 of  the  Constitution  and  no  

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Mandamus can  be  issued as  prayed  for.  Resultantly,  the  

Writ Petitions and the Writ Appeal were dismissed.  

19. We  have  heard  the  learned  counsel  for  the  parties  at  

length.

20. The submissions made by the Appellants are as follows :

It is submitted that the State Government has proceeded  

arbitrarily in filling up the post of Assistant Engineer created in  

1996  by  initiating  the  process  of  direct  recruitment  in  1997  

when  the  Appellants  (Overseers)  being  more  qualified  and  

experienced  as  well  as  being  available  for  recruitment  by  

transfer in terms of G.O. Ms. No.15 dated 25th January, 2000. It  

is further submitted that the recruitment rules in respect of direct  

recruit  Assistant Engineers were notified with effect from 26 th  

September,  1997  retrospectively,  facilitating  the  en-masse  

promotion  of  direct  recruits  to  Assistant  Executive  Engineer.  

The Appellants further claimed that the provisions of G.O. Ms.  

No. 15 dated 25th January, 2000 have been wrongly interpreted  

to  impose  the  condition  that  even  the  Overseers  who  

possessed  the  degree  in  Civil  Engineering  need  to  

have  5  years  service  for  being  promoted  as  Assistant  14

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Engineers.  Imposing  such  a  condition  has  deprived  the  

members  of  the  Appellant-Association  and  their  previous  

service as Overseers over the last two decades. The Appellants  

also claimed that G.O. Ms. No.295 dated 14th December, 2001  

would not  be applicable to them, it  would result  in  depriving  

them  of  their  best  at  rights  retrospectively.  The  Appellants  

claimed that  they  are  entitled  to  be  transferred  as  Assistant  

Engineers with effect from 25th May, 1998 the date on which the  

service  rules  for  the  Assistant  Engineers  were  notified.  It  is  

further submitted that the ratio of 1:1 which is provided between  

the direct recruits and the Appellants for recruitment on the post  

of Assistant Engineer has also to be maintained for the next  

promotional post of Assistant Executive Engineers.

21. The respondents  on the other  hand submitted that  the  

Appellants  have  no  legal  cause  to  challenge  the  direct  

recruitment which was initiated in 1997. They were not even  

eligible for absorption in the RD Department till the issuance  

of G.O. Ms.No.102 dated 25th May, 1998. According to the  

respondents, various posts were filled under G.O. Ms. No.  

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263 dated 27th December, 1996 on deputation and transfer  

from  other  Departments.  But  this  was  a  temporary  

arrangement which was made for a period of 3 years. There  

was no scheme providing for the absorption and recruitment  

of the Engineering Personnel drawn from other Departments  

in the                       RD Department till the issuance of G.O.   

Ms. No. 102                 dated 25 th May, 1998. There was no  

impediment to the post being filled by the direct recruitment  

of  the  post  created  under  G.O.  Ms.  No.  263  dated  27 th  

December, 1996. It is further submitted that the Appellants  

are wrongly claiming that the direct recruits have been given  

any  undue  benefit  with  retrospective  effect  from  26th  

September,  1997.  The  aforesaid  date  was  given  only  for  

regularising the recruitment of the Assistant Engineer direct  

recruits. For all other purposes, the services rendered by the  

Assistant  Engineer  direct  recruit  have  been  taken  into  

account from 1998. The respondents claimed that in fact the  

Appellants have been given benefit of the service from the  

date much prior to their absorption, their services have been  

taken into account from 1997 onwards whereas they were  

not  absorbed  in  the  RD  Department  in  1998.  Learned  16

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counsel  for  the  respondents  then  submitted  that  the  

Appellants did not raise before the High Court the issue that  

G.O.  Ms.  No.15  dated  25th January,  2000  should  not  be  

interpreted  to  impose the  condition  of  5  years  service  as  

Overseers for the holders of degree in Civil Engineering for  

being  promoted  as  Assistant  Engineers.  The  only  

submission before the High Court was that the appointment  

on the post of Assistant Executive Engineer should also be  

made  in  the  ratio  of  1:1  and  not  in  the  ratio  of  6:2:1  as  

mentioned  in  notification  of  G.O.  Ms.  No.15  dated  25th  

January, 2000. It is also pointed out by the respondents that  

even otherwise G.O. Ms. No. 15 was amended by G.O. Ms.  

No.295  dated  14th December,  2001  which  amended  the  

qualification for  recruitment by transfers and provided that  

the  candidate  “must  possess  a  BE  degree  in  Civil  

Engineering”  or  “must  have  passed  AIME”  and  (ii)  “must  

have  rendered  service  as  Overseer  for  not  less  than  5  

years.”  G.O.  Ms.  No.  295  was  never  challenged  by  the  

Appellants.  

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22. Learned  counsel  for  the  respondents  further  submitted  

that the Appellants cannot claim any benefit on the basis  

of the previous service as Overseers for 20 years. They  

were  well  aware  that  their  services  in  the  Highways  

Department  would  not  be  counted  for  the  purpose  of  

seniority in the RD Department as early as on 8th March,  

1999 when they had given their consent to be absorbed  

as Overseers  in  the RD Department.  Having given the  

option,  they  cannot  now make  the  grievance  that  they  

have lost the benefit of 20 years service. With regard to  

the submission of the Appellants that G.O. Ms. No. 295  

dated 14th December, 2001 cannot affect the vested rights  

of the Appellants. It is submitted by the respondents that  

this submission of the petitioner is contrary to the prayer  

made by them in W.P. No. 26973 of 2005 wherein the  

Appellants had relied on the aforesaid notification. In the  

aforesaid  writ  petition,  the  Appellants  had  specifically  

prayed to be given retrospective promotion on the basis  

of G.O. Ms. No. 295. The respondents claimed that the  

submission of the Appellants that they are entitled to be  

transferred as Assistant  Engineers with effect  from 25th  18

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May, 1998 cannot be accepted as on that date they were  

working on the lower post of Overseer and further they  

were members of the Highways Department. It was only  

on the basis of their option that they were absorbed as  

Overseers in the RD Department in 1998.  On the other  

hand, Assistant Engineers direct recruit had entered into  

service in 1998 itself. The respondents further submitted  

that the claim of the Appellants with regard to maintaining  

the  ratio  1:1  for  the  promotional  post  of  Executive  

Engineer cannot be considered as it was given up by the  

Appellants before the High Court.

23. We  have  considered  the  submissions  made  by  the  

learned counsel for the parties.  

24. In essence, the grievance of the appellant is two fold:-

(i) They can not be deprived of their past service.

(ii) Their ought to be a ratio of 1:1 between Direct  

Recruits / Promotees for promotion on the post of  

A.E.E.

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25. In our opinion, the Appellants can not now claim that the  

past  service  in  the  Highways  Department  should  be  

recognised in  the RD Department.  It  has been noticed  

earlier  that  the  members  of  the  Appellant-Association  

were  initially  appointed  as  Overseers  by  the  then  

Highways  and  Rural  Works  Department  and  posted  

exclusively to various Panchayat Unions for executing all  

the Civil  works/Rural works in the Panchayat Unions of  

Tamil  Nadu.  Since  they  were  earlier  under  the  

administrative control of the erstwhile Highways and Rural  

Works  Department,  they  had  no  proper  avenues  of  

promotions especially for the post of A.E. Many of them  

were languishing in the same post i.e., as Overseers, for  

nearly  two  decades.  On  27th December,  1996,  the  

Government  set  up  a  separate  Engineering  Wing  

(GOMs.No.263;  RD  Department  dated           27 th  

December, 1996) for the RD Department itself. This was  

necessary to exercise adequate control over the various  

Central  and  State  sponsored  scheme.  384  posts  of  

Assistant  Engineers were created for  a period of  three  

years. These posts were filled up on a purely temporary  20

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basis on deputation/transfer of service basis by drawing  

engineering  personnel  from  other  Departments  like  

Highways  and Rural  Works,  Public  Works  Department,  

Agricultural  Engineering,  Tamil  Nadu Water Supply and  

Drainage Board etc.  The Appellants although belonging  

to the Highways Department were already discharging the  

functions  of  Overseers  in  the  Rural  Development  

Department for a number of years.               On 26 th  

September,  1997,  Tamil  Nadu  Public  Service  

Commission invited application for the posts of Assistant  

Engineers  in  the  RD  Department.  The  respondents-

Assistant  Engineers  were  directly  recruited  from  24 th  

November,  1998  to  November,  1999.  Drawing  of  

technical  staff  on  deputation  basis  from  different  

Departments  was  causing  administrative  difficulties  in  

implementing various pivotal schemes of the State as well  

as  the  Centre.  It  was  noticed  that  the  implementing  

authority  did  not  have  adequate  powers  to  exercise  

control  over the engineering staff  of  other departments.  

Therefore, it had become imperative need from a purely  

administrative point of view that RD Department should  21

Page 22

have  an  Engineering  Wing  of  its  own.  It  was  further  

noticed  that  as  a  first  step  GO  Ms.  No.263  RD  

Department dated 27th December, 1996 had been issued.  

Government  had created 384 additional  posts of  Union  

Engineers  i.e.  one  Assistant  Engineer  for  each  block,  

15 additional posts of Assistant Executive Engineers, and  

28 posts of Executive Engineers. The Engineers required  

for  these  posts  were  drawn  from Highways  and  Rural  

Works  Department,  Public  Works  Department,  

Agricultural  Engineering,  Tamil  Nadu Water Supply and  

Drainage  Board  and  other  technical  Departments.  On  

25th May, 1998, the State issued orders for absorption and  

recruitment  of  the  Engineering  Staff  through  GO  Ms.  

No.102 RD Department, which provided as follows :

“III. Although the posts of overseers are found only  in  the panchayat  unions,  the incumbents cannot  be promoted against a part of the posts of Block  Engineers/Assistant Engineers (RD) because they  are presently staff of Highways Departments. They  need  to  be  permanently  absorbed  into  RD  Department by getting individual options and only  thereafter can the question of their promotions be  taken up. …the Chief Engineer (H&RW) may be  requested  to  obtain  options  from  all  those  personnel and place them at the disposal of Rural  Development Department.

22

Page 23

IV.  209  posts  in  the  category  of  Block  Engineers/Assistant  Engineer  (RD)  will  be  earmarked to be filled up by promotion from the  feeder  categories  of  Overseers  and  Junior  Draughtsman.  But  this  route  would  be  open  to  them only after they exercise their option and are  permanently absorbed in RD Department……”    

26. It also deserves to be noted here that on 25th May, 1998,  

the Appellants were occupying the posts of Overseer in  

the Highways Department,  but  on temporary  service in  

the RD Department under the GO Ms. No.263 dated 27 th  

December,  1996.  The  Appellants  were  given  an  

opportunity  to  be  permanently  absorbed  in  the  RD  

Department, by seeking their  option as to whether they  

were willing to be absorbed. On the basis of the above  

exercise of option, the Appellants were absorbed in the  

RD  Department  on  8th March,  1999.  Thereafter,  the  

Government issued ad hoc rules for the Engineering Wing  

for  the  RD  Department  by  notification  GO  Ms.  No.15  

dated 25th January, 2000. The four notifications (I to IV) in  

the GO Ms.No.15 providing the qualification and mode of  

recruitment  on  the  post  of  Superintending  Engineer,  

Executive  Engineer,  Assistant  Executive  Engineer  and  

23

Page 24

Assistant Engineer respectively. The first three categories  

of  Superintending  Engineer,  Executive  Engineer  and  

Assistant Executive Engineer did not admit of any direct  

recruitment.  Therefore,  these  notifications  were  given  

effect  from  25th May,  1998,  the  date  on  which  the  

absorption  and  recruitment  of  engineering  personnel  

belonging to other Departments were notified. It was only  

under  Notification  IV  in  respect  of  Assistant  Engineers  

that provided for direct recruitment. Since the process of  

direct recruitment to the post of Assistant Engineer in RD  

Department  was  initiated  by  TNPSC  vide  notification  

dated 26th September, 1997, the rules under notification  

IV in respect of Assistant Engineer were declared to be  

deemed  to  have  come  into  force  on  26th September,  

1997. This was necessary to regularise the action taken  

to recruit Assistant Engineer for RD Department, directly  

through TNPSC on the basis of the executive order. It is,  

however  necessary  to  clarify  that  such  retrospective  

operation  of  the  rules  did  not  confer  any  benefit  

whatsoever on the direct recruits in the matter of seniority.  

The seniority of the respondents has been reckoned with  24

Page 25

reference to the date of appointment on the post. This is a  

well  recognised general  principle of  computing seniority  

and no exception can be taken to it. In fact, the service of  

the Appellants has been counted form 1997 i.e. from the  

time when they started serving as Overseers in the RD  

Department on deputation from the Highways Department  

under GO Ms. No. 263                        dated 27 th  

December,1996.              

27. The Appellants having voluntarily opted to be absorbed in  

the  RD  Department,  without  any  protection  of  their  

previous service,  can not  now be permitted to  make a  

grievance that they have not been treated at par with the  

Direct Recruits.  We have noticed above that the Direct  

Recruits  joined  on  the  post  of  AE.   Appellants,  even  

though some of them possessed the degree qualification,  

were  absorbed  on  the  post  of  Overseer.   They  were  

working  on  the  post  of  Overseer  in  the  Highways  

Department,  the  parent  Department,  even  though  they  

were  degree  holders.   As  noticed  earlier,  they  were  

stagnating  in  the  Highways  Department  without  any  25

Page 26

prospect of career advancement. They, therefore, willing  

gave the option to be absorbed in the RD Department as  

Overseers,  even  though  they  possessed  the  degree  

qualification. Having given the option to be absorbed in  

RD Department on the post of Overseer, their claim for  

absorption  as  AE  is  without  any  legal  or  factual  

justification.   

28. It would also be relevant to notice here that the Appellants  

were promoted as Assistant Engineers on 2nd September,  

2002,  having  been  given  the  benefit  of  service  as  

Overseers in the RD Department from the year 1997. The  

Appellants did not question their appointment as Assistant  

Engineers since they were well aware that they had been  

so  appointed  on  completion  of  five  years  service  as  

Overseers  in  the  RD Department  by  virtue  of  GO Ms.  

No.15 dated 25th January, 2000 as amended by GO Ms.  

No.295 dated 14th December, 2001. On the other hand,  

the  respondents-Assistant  Engineers  (Direct  Recruits)  

had  started  discharging  their  functions  as  Assistant  

Engineers in RD Department from 24th November, 1998 to  26

Page 27

November,  1999.  Therefore,  they  had  completed  five  

years  service  as  Assistant  Engineers  for  the  period  

between November, 2003 to November, 2004 under the  

relevant rules (Notification III in GO Ms. No.15 dated 25 th  

January, 2000) eligible under the rules to be promoted as  

Assistant Executive Engineers. Consequently, they were  

duly  promoted  as  Assistant  Executive  Engineer.  In  our  

opinion, the action taken by the State cannot be said to  

be either arbitrary or violative of Article 14 or 16 of the  

Constitution of India.

29. The claim of the Appellants that the promotion on the post  

of Assistant Executive Engineer ought to be made in the  

ratio  of  1:1  is  also  wholly  devoid  of  any  merit.  The  

Appellants claimed such ratio on the basis that the direct  

recruits-respondents  are  much  younger  in  age.  The  

Appellants  had  already  spent  over  20  years  in  the  

Highways Department before their absorption in the RD  

Department. Therefore, in case the promotions are to be  

based  purely  on  the  basis  of  seniority,  the  Appellants  

would never get a change to be promoted on the higher  27

Page 28

ranks.  They would have to retire as Assistant Engineer  

only as their promotional avenues to the post of AEE and  

above will  be completely  choked by AE-Direct  Recruits  

who are                      atleast 8 years younger than the  

Assistant Engineer Promotees. It is also the case of the  

Appellants  that  the  ratio  of  1:1  which  is  fixed  for  

appointment on the post of Assistant Engineer ought to  

be maintained for the next promotional post of Assistant  

Executive  Engineer.  It  cannot  be  disputed  that  for  

promotion  to  the  post  of  Assistant  Executive  Engineer  

(RD) Notification No. III  GO Ms. No.15, more than one  

mode  of  recruitment  i.e.  promotion  from  Assistant  

Engineer (RD) and recruitment by transfer from the feeder  

category  of  Junior  Engineer  and  Senior  Draughting  

Officer  have  been  recognised  and  stipulated.  Further  

more,  it  is  also a matter  of  record that  on the post  of  

Assistant Engineer (RD) there is more than one mode of  

recruitment  i.e.  direct  recruitment  and  recruitment  by  

transfer  from  the  feeder  category  of  Overseers  only.  

Therefore, the rules have provided a ratio on appointment  

to the post of Assistant Executive Engineer (RD) as 6:2:1  28

Page 29

(promotion  from  AE  (RD);  JE;  SDO).  The  Appellants,  

however, claimed that this ratio ought to be 1:1, on the  

ground that otherwise they would stagnate on the position  

of  Junior  Engineer.  We  are  unable  to  accept  the  

submissions  made  by  the  learned  counsel  for  the  

Appellants. Prior to the absorption of the Appellants in the  

RD Department admittedly they had no chance of being  

promoted on  the post  of  Assistant  Executive  Engineer,  

Executive Engineer or Superintending Engineer. It is only  

upon their  absorption that  they now enjoy a chance of  

being promoted on the higher posts.  We are unable to  

agree with the submissions of the learned counsel for the  

Appellants  that  the  aforesaid  ratio  is,  in  any  manner,  

violative of Article 14 or 16 of the Constitution of India.

30. Even  otherwise,  the  fixation  of  the  quota/ratio  is  the  

prerogative of  the executive.  It  is  not  disputed that  the  

ratio  of  6:2:1  has  been  fixed  in  the  service  rules  in  

exercise of the powers of the governor under proviso to  

Article 309 of the Constitution of India. In the absence of  

the Appellants placing on the record material to establish  29

Page 30

that fixation of such a ratio is patently arbitrary, the action  

of  the  Government  cannot  be  nullified.  Fixation  of  

rota/quota on the basis of qualification is well accepted in  

service jurisprudence. We, therefore, see no merit in the  

submissions of the Appellants that the ratio of 6:2:1 ought  

to be replaced with the ratio by 1:1.  

31. The Appellants, thereafter, submitted that the Overseers  

possessing the degree qualification ought to be exempted  

from rendering five years service in the RD Department  

for being considered for further promotion on the basis of  

Assistant  Executive Engineer.  We are unable to accept  

this submission, as the Appellants had willingly given the  

option  to  be  absorbed  as  Overseers.  In  case  the  

submission made by the Appellants is accepted, it would  

mean that the Appellants were actually absorbed on the  

post  of  Assistant  Engineer  which  would  be  factually  

incorrect. Under the rules, an Assistant Engineer can only  

be  considered  for  promotion  as  Assistant  Executive  

Engineer on completion of five years service in the RD  

Department. Therefore, it would not be possible to accept  30

Page 31

the  submission  of  the  Appellants  that  the  services  

rendered by the Appellants in the Highways Department  

ought to be substituted for the service to be rendered in  

the RD Department. In fact, the Appellants have already  

been given benefit of two years service in the Highways  

Department  on  the  basis  that  they  had  actually  been  

functioning in the RD Department since 1997. But such  

concession would not create a legal right in favour of the  

Appellants  to  claim  that  the  services  rendered  in  the  

Highways  Department  ought  to  be  treated  as  service  

rendered in the RD Department.  We, therefore,  see no  

merit in the submissions that the degree holder Overseers  

ought to be exempted from having  rendered five years  

service in the RD Department, before they can be eligible  

to  be  considered  for  promotion  as  Assistant  Executive  

Engineer. The Appellants had relied on the judgment of  

Sub-Inspector Rooplal and Another Vs.  Lt. Governor  

through Chief Secretary, Delhi and Others  1   in support  

of  the  submission  that  their  past  service  of  20  years  

cannot obliterated. The aforesaid submission cannot be  

1 2000 (1) SCC 644 31

Page 32

accepted for the simple reason that the Appellants were  

absorbed  in  the  RD  Department  as  Overseers.  Their  

previous service in Highways Department was also on the  

post  of  Overseers.  In  Rooplal’s  case (supra),  the  

Appellants  were  Sub-Inspectors  of  Boarder  Security  

Force  who  were  initially  taken  on  deputation  in  Delhi  

Police as Sub-Inspectors (Executive) and were later  on  

absorbed  in  Delhi  Police  in  the  same  capacity.  While  

fixing  their  seniority  in  Delhi  Police,  service  already  

rendered  by  them  as  Sub-Inspectors  in  BSF  was  not  

taken into consideration. This Court, therefore, held that  

there is no reason why the Appellants on being absorbed  

in  equivalent  cadre in the transferred post should not be  

permitted to count their service in the parent department.  

The Appellants herein claimed the benefit of the previous  

service on the lower post of Overseer for determining the  

seniority  on the higher post  of  Assistant  Engineer.  The  

aforesaid submission cannot be accepted for the simple  

reason that the Appellants had voluntarily accepted and  

given the option to be absorbed in the RD Department on  

the post of Overseer. No claim was made at that stage to  32

Page 33

be either absorbed or promoted as Assistant Engineer or  

to be given the benefit of the service already rendered by  

them in the Highways Department. Having considered the  

entire matter,  we see no reason to differ  with the view  

taken by the High Court.

32. The appeals are accordingly dismissed.

             ….….…………………..J.            [Surinder Singh Nijjar]

….…………………,……J.    [M.Y.Eqbal]

New Delhi; September 27, 2013.  

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