@JUDGMENTTAG-ORDER,
S. Nagamuthu, J.@mdashIn all these writ petitions, since common issues are involved, all of them have been heard together and disposed of by",
means of this Common Order. For the sake of convenience, to cull-out the facts and law in issue in these writ petitions, let me refer to the affidavits",
filed by the petitioners in W.P.(MD)No. 14372 of 2011 and W.P.(MD)No. 4191 of 2013.,
W.P.(MD)Nos. 14372/2011, 786, 4191 and 4915 of 2013",
2. Some of the petitioners in these writ petitions have been working as Electricians Grade-II and the others as Pipeline Fitters Grade-II. According,
to them, their next avenue of promotion is to the post of Draughtsman. The Director of Town Panchayats, Government of Tamil Nadu, by his",
proceedings in Na.Ka.No. 15108/2011 A2, dated 18.11.2011, has published a tentative Statewide seniority list of the ""Work Inspectors"",",
working in the Department, by treating the State as one Unit. In the said list of seniority, as many as 175 such Work Inspectors have been",
included. The said tentative seniority list has been published calling for objections, if any, from any candidate and also stating that after finalisation",
of the seniority list, it has been proposed to promote the Work Inspectors as Draftsman. The private respondents in these writ petitions and others",
included in the list are working as Work Inspectors and their names have been included in the panel. The petitioners are aggrieved by the above,
seniority list.,
3. According to the petitioners, they do possess the same qualification like that of all the private respondents and they have been working on",
regular basis from the year 2006; whereas, the private respondents, who are presently working as Work Inspectors, have been working only from",
the year 2008 onwards. Thus, according to the petitioners, though they have been working on regular basis from 2006 and though they are seniors",
to these Work Inspectors, who are private respondents in these writ petitions, the promotion to the post of Draughtsman is sought to be given only",
to the Work Inspectors and not to these petitioners who are working as Electricians Grade-II and Pipeline Fitters Grade-II. Therefore, the",
petitioners have come up with W.P.(MD)No. 14372 of 2011, challenging the said seniority list, dated 18.11.2011 and they have also sought for a",
direction to the official respondents to prepare fresh seniority list for promotion to the post of Draughtsman, by including their names also based on",
the Statewide Seniority.,
4. Subsequent to the above, the Government has issued G.O.Ms.No. 25, Municipal Administration and Water Supply (TP-I) Department, dated",
04.02.2013, wherein the Government, after careful consideration and examination of the proposal of the Director of Town Panchayats, have",
decided to create additional posts to the Engineering Wing of Town Panchayats Department and accordingly accorded sanction for creation of,
222 posts, as detailed in the order, for strengthening the engineering wing of the Town Panchayats, subject to the condition that the existing posts",
of Work Inspectors should be treated as vanishing category since the post of overseers are created now at the bottom of the administrative,
structure of engineering wing. The Government Order further states that the post of Work Inspectors should not be filled up whenever they fall,
vacant either by way of promotion of incumbents to higher category or retirement or for other reasons and consequently those posts will,
automatically lapse as a vanishing category and till such time, the post of Work Inspectors will exist. As per the said Government Order, as many",
as 10 Draftsman and 138 Overseer Posts were created. The said G.O. is under challenge in W.P.(MD)Nos. 4191 and 4915 of 2013. W.P.,
(MD)No. 4191 of 2013 has been filed by an individual and W.P.(MD)No. 4915 of 2013 is filed by an Association known as ''Town Panchayats,
Technical Employees Welfare Association''.,
5. In W.P.(MD)No. 786/2013, the very same Association has sought for a direction to the respondents 1 and 2 therein, namely the Government",
of Tamil Nadu and the Director of Town Panchayats, to fix the seniority and give promotion to the qualified persons those who are working under",
the category of Technical Assistant (Works) [Fitter, Plumber, Tap Inspector, Metre Reader and Work Inspector] and Technical Assistant",
(Electrical) [Street Light Electrician, Wireman, Lineman and Water Supply Electrical] in Town Panchayat Engineering Service to the post of Work",
Supervisor (Overseer) by applying the ratio of 1:2 as per the Tamil Nadu Town Panchayat Service Special Rules by considering the petitioner''s,
representation, dated 05.11.2012.",
6. As I have already pointed out, since the issues are common and common grounds have been raised, I have heard all the writ petitions together",
and dispose them by means of this common order.,
7. Before going into the disputed legal as well as factual questions involved, let us first look into the admitted facts. The petitioners were all,",
admittedly, engaged as Nominal Muster Roll (NMR) employees in various Town Panchayats. Considering the fact that they were all working as",
NMRs for several years, the Government took a policy decision to absorb them as permanent employees of Town Panchayats. Accordingly, as",
per G.O.Ms.No. 60, Rural Development and Panchayat Raj, dated 23.06.2006, they were all absorbed as Electrician Grade-II, on various dates,",
in the year 2006. The private respondents in all these writ petitions were also similarly working in various Town Panchayats as NMRs. Considering,
their plight, the Government issued G.O.Ms.No. 183, Municipal Administration and Water Supply (TP-1) Department, dated 19.09.2008,",
thereby bringing these respondents and similarly placed other persons who were all along working as NMRs as regular employees into time scale,
of pay. Accordingly, they were all absorbed as Work Inspectors subsequent to 19.09.2008. Thus, these private respondents have been working",
as Work Inspectors on regular time scale of pay from the year 2008. So far as the pay scale is concerned, the petitioners, namely, Electricians",
Grade-II are getting more than the pay scale of the Work Inspectors. So far as the nature of the work is also concerned, the work of Electrician",
Grade-II is different from the nature of the work of the Work Inspectors. To this extent, there is no dispute between the parties.",
8. Now, the Government has created additional posts in the Cadre of Draughtsman under G.O.Ms.No. 25, MA & WS Department, dated",
04.02.2013.,
The said post is sought to be filled up by means of promotion. According to the petitioners, there is no Service Rules governing the post of",
Draughtsman and therefore the Government should first of all frame the Rules governing the said post and then only the posts of Draughtsman,
could be filled-up. It is also their contention that since the petitioners have been working with the same qualification for a longer time than the,
private respondents in these writ petitions, namely Work Inspectors, they should be given preference over the Work Inspectors for promotion to",
TABLE,
1,2
Categories,By Promotion from
(1) Category 1 of Class I,Categories 1 and 2 of Class II
(2) Categories 2 and 3 of
Class I",Categories 3 and 4 of Class II
(3) Categories 1 and 2 of
Class II","Categories 1, 2 and 5 of Class IV
(4) Categories 3 and 4 of
Class II",Categories 3 and 4 of Class IV
(5) Categories 1, 2 and 5
of Class IV","Categories 3 of Class VII and Class
VIII-B
(6) Categories 3 and 4 of
Class IV",Category 4 of Class V
(7) Category 1 of Class V,Category 1 of Class VII
(8) Category 3 of Class V,Category 2 of Class VII
(9) Category 4 of Class V,Categories 1 and 2 of Class VII-A
(10) Category 1 of Class
VII",Category 1 of Class VIII
Inspectors and Tap Inspectors. In respect of the said submission, I find justification.",
14. Now, turning to the post of Electrician Grade-II, as I have already pointed out, it is Category 2 in Class VII-A. The next avenue of promotion",
for this category, as per Rule 3, is to the post of Category 4 in Class V, namely Electrician Grade-I. From Electrician Grade-I, the next avenue of",
promotion is to Category 3 and 4 in Class IV, i.e. Electrical Superintendent (Water Supply) Grade-II and Electrical Superintendent (Drainage)",
Grade-II. Thus, according to the Rules, the avenue of promotion for the petitioners is in different route to a different post. The petitioners are in no",
way in the feeder category for the post of Draughtsman and, therefore, in my considered opinion, going strictly by these Rules, they cannot be",
included in the seniority list of Work Inspectors for promotion to the post of Draughtsman.,
15. But, the learned counsel Mr. V. Selvaraj appearing for the petitioners would submit that this Rule, namely the Tamil Nadu Municipal",
Engineering Subordinate Service Rules, 1970, is not at all applicable to the Draughtsman, who are working in the Town Panchayats. This argument",
does not persuade me at all for more than one reason. Section 1(2)(iv) of the Tamil Nadu Panchayats Act, 1994 states that Tamil Nadu Act 1994",
is not applicable to the Municipalities, Town Panchayats and Industrial Townships constituted under the Tamil Nadu District Municipalities Act,",
1920. Therefore, the Service Rules governing the employees working in the Panchayats is not applicable to the employees working in Town",
Panchayats. Regarding this legal position also, the learned counsel appearing for the petitioners have got no controversy.",
16. Now, turning to the Tamil Nadu District Municipalities Act, 1920, admittedly, this Act governs the Town Panchayats. Section 3(29-A) defines",
Town Panchayat, thereby meaning an institution of self-government constituted for a transitional area as defined in clause (2) of Article 243-Q of",
the Constitution. Before this Court, it is not in dispute that the Tamil Nadu District Municipalities Act is applicable to the Town Panchayats in",
question. When that be so, the Tamil Nadu Municipal Engineering Subordinate Service Rules, 1970, which has been issued by the Government in",
exercise of the powers conferred by the Tamil Nadu District Municipalities Act, 1920, is certainly applicable to the petitioners as well as the",
private respondents. Therefore, the argument of the learned counsel Mr. V. Selvaraj that the Tamil Nadu Municipal Engineering Subordinate",
Service Rules, 1970 is not applicable to the petitioners as well as to the private respondents and there is no Special Rules so far framed governing",
the services of Draughtsman, Electrician Grade-II and Work Inspectors cannot be accepted.",
17. In order to substantiate his contention, the learned counsel Mr. V. Selvaraj would refer to the common order passed by a learned Single Judge",
of this Court in W.P.(MD)No. 10894 of 2010 etc. batch, dated 28.07.2010. Those writ petitions were filed challenging the proceedings of the",
Director of Municipal Administration, dated 13.05.2010, by which the private respondents therein were temporarily promoted from the post of",
Work Inspectors to the post of Draughtsman and deputed to the Directorate of Town Panchayats, on contract basis. When the said writ petitions",
were heard by the learned Single Judge, it was submitted to the learned Single Judge that there was no Service Rule put in place by the",
Government governing the post of Draughtsman, Work Inspectors, etc. The learned Single Judge had no occasion to consider as to whether the",
Tamil Nadu Municipal Engineering Subordinate Service Rules, 1970 is applicable or not. Going by the statement made before the Court by the",
learned Government Advocate, the learned Single Judge in Paragraph 17 of the order, has made the following observation:",
17. The excuse given by the respondents that draft service rules are pending approval with the Government and that therefore, the petitioners could",
not be appointed, is only a lame excuse. In the absence of special rules, the respondents are obliged to resort to the General Rules for Tamil Nadu",
State and Subordinate Services.,
In Paragraph 18, the learned Single Judge has made the following observation:",
18. Without even exploring the possibility of taking recourse to Rule 39(a)(i) of the General Rules, the respondents ought not to have chosen",
persons from the other Directorate. It must be remembered that the moment the draft service rules are approved, the petitioners would become",
persons occupying ""cadre posts"" and those from the Directorate of Municipal Administration would be ex-cadre and considered as persons having",
nothing to do with the said Directorate. Therefore, the respondents ought to have chosen persons occupying cadre posts for such",
appointments/promotions, rather than choosing strangers.",
18. Referring to the above observations made by the learned Single Judge, the learned counsel for the petitioners would submit that even after the",
above order of this Court, the Special Rules which was under the consideration of the Government has not been brought into force. Thus,",
according to the learned counsel Mr. V. Selvaraj, there is no Special Rules governing the posts of Draughtsman, Work Inspectors, etc. I regret to",
be persuaded by the said contention of the learned counsel, since I have already pointed out that the Tamil Nadu Municipal Engineering",
Subordinate Service Rules was not brought to the notice of the learned Single Judge.,
19. In my considered opinion, for the reason which I have referred to above, the Tamil Nadu Municipal Engineering Service Rules, 1970 is very",
much applicable and the post of Work Inspectors is a cadre post and it is the feeder category for promotion to the post of Draughtsman. Similarly,",
the post of Electrician Grade-II is also a cadre post for which the avenue of promotion is in a different line. Therefore, the said judgment of the",
learned Single Judge will not come to the rescue of the petitioners.,
20. Mr. V. Selvaraj, the learned counsel for the petitioners would further submit that these petitioners have been working with the same",
qualification on regular basis from 2006 onwards; whereas the private respondents, namely, the Work Inspectors, were brought into regular time",
scale of pay only in the year 2008 and when the qualification is one and the same and when the petitioners are seniors to the work inspectors,",
according to the learned counsel, they could be given promotion by including their names in the seniority list for promotion to the post of",
Draughtsman.,
21. It may be true that the petitioners were brought into regular time scale of pay few years before these Work Inspectors. But, the petitioners",
were all not appointed by following any procedure for appointment. They were all working as NMRs and considering the fact that they had been,
working for several years, the Government took a policy decision to absorb them as Electrician Grade-II. If the petitioners had any grievance",
regarding the same, they could have agitated the same at that point of time, thereby requesting the Government to absorb them by bringing them",
into regular time scale of pay in the post of Work Inspectors. If the petitioners had any grievance regarding the action of the Government in,
bringing the private respondents into time scale of pay in the post of Work Inspectors, they could have agitated the same on the ground that they",
were all juniors to them and they were also equally qualified. They did not do that also. These Work Inspectors have been discharging their,
functions of Work Inspectors from the year 2008 onwards. Because of the reason that for the post of Electrician Grade-II the time scale of pay is,
higher than the time scale of pay for the post of Work Inspectors, the petitioners would have been satisfied and that is why they did not raise their",
little finger against the absorption of those NMRs as Work Inspectors in 2008. Having not agitated at the appropriate stage, at this length of time, it",
is not open for the petitioners to say that they are seniors and they are equally qualified, thereby they should be given preference over the private",
respondents/Work Inspectors.,
22. I only say that having accepted the time scale of pay for the post of Electrician Grade-II in the year 2006 and having worked in the said post,
for more than seven years, it is appropriate for them to wait for the next avenue of promotion as Electrician Grade-I, by following the line of",
promotion. The Work Inspectors have been working from 2008. This is a separate category. The promotional avenue for this category is only to,
Draughtsman. That is the reason why the Director of Town Panchayats has prepared seniority list of Work Inspectors. Since the post of Electrician,
Grade-II is not a feeder category for the post of Draghtsman and since Electrician Grade-II and the post of Work Inspector are two different,
categories in two different classes of service, as per the Service Rules, there is no chance at all for ordering for a combined seniority list of",
Electrician Grade-II and Work Inspectors, so that these petitioners can have seniority over the private respondents. Electrician Grade-II, since",
forms a separate category in separate class, there can be a separate Seniority List for the post of Electrician Grade-II. Similarly, since the post of",
Work Inspector forms a separate category in a different class, there can be a Statewide Seniority list only in the post of Work Inspectors. There",
cannot be any interchange and there cannot be any clubbing also. Thus, in my considered opinion, the first respondent is right in preparing the",
impugned seniority list.,
23. The learned counsel Mr. V. Selvaraj would submit that assuming that the Tamil Nadu Municipal Engineering Service Rules are applicable, the",
private respondents, namely, the Work Inspectors, were not appointed as per the Rules. Assuming that the Work Inspectors were not appointed",
as per the method of appointment stipulated in the Service Rules, on that ground, the impugned seniority list cannot be quashed. In none of the writ",
petitions, the absorption of the private respondents as Work Inspectors and bringing them into regular time scale of pay in the said post is under",
challenge. Therefore, it is not available for the petitioners to contend before this Court that the appointment of these private respondents as Work",
Inspectors itself was not made in accordance with the Service Rules. At this juncture, interestingly, I have also to point out that the petitioners, who",
are working as Electrician Grade-II, also were not appointed by following the method of appointment provided for in the Rules. They were also",
brought into regular time scale of pay in the post of Electrician Grade-II on a policy decision taken by the Government as a one time measure.,
Therefore, so far as the entry into service is concerned, the petitioners do stand in no better position than the private respondents. Therefore, this",
argument is also rejected.,
24. Now, turning to the Government Order G.O.Ms.No. 25, MA & WS Department, dated 04.02.2013, which is impugned in some of the writ",
petitions, the learned counsel would contend that this Government Order is contrary to the Tamil Nadu Municipal Engineering Subordinate Service",
Rules, 1970. According to rules, the post of Work Inspector is a cadre post, but the Government order states that the said posts will not be filled-",
up and it will vanish in future. Referring to this, the learned counsel would submit that the G.O. runs contrary to the Service Rules. I find it very",
difficult to accept the said argument. A reading of the G.O. would clearly show that the Government has taken a policy decision not to fill-up the,
post of Work Inspectors in future because of the creation of Overseers Post at the bottom of the administrative structure of the Engineering Wing.,
He would further submit that there is no Overseer post in the Service Rule. In my considered opinion, on this score, the G.O. cannot be quashed.",
It is the policy decision of the Government to allow the post of Work Inspector to vanish in future, after the existing Work Inspectors either retire",
or get promotion and there will be no Work Inspectors. The Government may think of amending the Rules. Simply because there is a post,
governed by the Rules, there is no necessity that the Government should fill-up the same. Filling-up of the post is always need based. Here, in this",
case, since, according to the petitioners, Overseers are appointed to take care of work, there is no need for appointment of Work Inspectors.",
Whatever be the case, regarding the decision of the Government in not making any further appointment to the post of Work Inspectors, the",
petitioners cannot have any grievance.,
25. The learned Counsel Mr. V. Selvaraj would contend that the impugned seniority list has not been prepared properly by following the,
procedure established. According to him, as per Rule 5(2)(b), seniority list is to be prepared by following certain procedures, but the procedures",
contemplated in the said rule have not been followed. In my considered opinion, the said contention is not available for the petitioners to make",
before this Court, because they cannot claim that they are aggrieved by the method adopted by the Director of Town Panchayats in preparing the",
seniority list. If any Work Inspector is aggrieved by the method of preparation of seniority list, it is for him to raise objection. The petitioners are",
not at all in the cadre of Work Inspectors and therefore they cannot have grievance as to the method of preparation of seniority list of Work,
Inspectors.,
26. Nextly, Mr. M. Ajmal Khan, the learned Senior Counsel, appearing for the private respondents would submit that the seniority list impugned in",
W.P.(MD)No. 14372 of 2011 is only the tentative list and the same is not the final list and therefore it is highly pre-mature to challenge the same.,
Regarding this contention, I would state that whether it is tentative or final seniority list, the petitioners cannot have any grievance because they have",
got nothing to do with the seniority list of the Work Inspectors.,
27. Turning to W.P.(MD)Nos. 4915 and 786 of 2013, the learned Senior Counsel Mr. M. Ajmal Khan would raise an objection regarding",
maintainability of these writ petitions. According to him, as per the Division Bench Judgment of this Court in The Managing Director and The",
Executive Engineer, Tamil Nadu Water Supply and Drainage Board Vs. Tamil Nadu Kudineer Vadikal Variya Oozhiyar Sangam , in service",
matters, a writ petition, at the instance of an Association, is not maintainable. But, the learned counsel Mr. T.R. Venkatarama, learned counsel",
appearing for the petitioners/Association, would submit that the Division Bench Judgment in the above case is not a binding precedent, in view of",
the reported judgment of the Hon''ble Supreme Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General,
Secretary on behalf of the Association Vs. Union of India (UOI) and Others, . But, the learned Senior Counsel Mr. M. Ajmal Khan would submit",
that the Division Bench had followed yet another judgment of the Hon''ble Supreme Court in Mahinder Kumar Gupta and Others Vs. Union of,
India (UOI), Ministry of Petroleum and Natural Gas, , wherein the Hon''ble Supreme Court has held that writ petitions cannot be filed by",
Associations in service matters, as there is no fundamental right involved. The learned Senior Counsel would further submit that this Court has",
taken a similar view in Tamilaga Asiriyar Koottani Vs. The Government of Tamil Nadu and Others, .",
28. In respect of these rival contentions, I am of the view that in these cases, I need not go into the question as to whether writ petition filed by an",
Association is maintainable or not, since I am inclined to dismiss all these writ petitions, on merits, on the conclusion which I have arrived at herein",
before. Thus, I do not go into the maintainability of the writ petitions filed by the Association and therefore, I leave it open.",
29. The learned counsel Mr. T.R. Venkataramana would submit that though the petitioners have been working as Electrician Grade-II from the,
year 2006 onwards and prior to that they had been working as NMRs for several years, taking a sympathetic view, according to the learned",
counsel, the Government may consider their plight and give them promotion as Electrician Grade-I. In this submission, I find every justification. If",
there are sanctioned posts and if there are vacancies in the post of Electrician Grade-I, the Director of Town Panchayats shall consider the claim of",
Electrician Grade-II employees and ensure that the appointing authorities promote them as Electrician Grade-I, as against existing vacancies, by",
following the method of promotion set out in the Tamil Nadu Municipal Engineering Subordinate Service Rules, 1970, within a period of six",
months from the date of receipt of a copy of this order.,
30. In view of the foregoing discussions, I find no merit in these writ petitions. W.P.(MD)Nos. 14372/2011, 786, 4191 and 4915 of 2013 are,",
therefore, liable to be dismissed. In the result, all these writ petitions are dismissed. No costs. Interim stay already granted shall stand vacated.",
Connected miscellaneous petitions are closed.,
W.P.(MD)No. 3492 of 2013:,
31. In this writ petition, the petitioner has sought for a direction to the respondents to revise the seniority list published for promotion to the post of",
Draughtsman from the feeder category, namely Work Inspector, by the Director of Town Panchayats, by his proceedings in Na.Ka.No.",
15108/2011/A2, dated 18.11.2011, based on date of birth.",
32. The petitioner is working as Work Inspector. His grievance is that though he is entitled for being included in the seniority list, his name has not",
been included. In this regard, the learned Additional Government Pleader appearing for the respondents would submit that the case of the",
petitioner would be duly considered by the respondents while finalising the seniority list. The said statement is recorded.,
33. Accordingly, this writ petition is disposed of with a direction to the 2nd respondent to consider the objection raised by the petitioner, regarding",
non inclusion of his name in the seniority list and if he is found otherwise eligible, his name shall be included in the final list of seniority. No costs.",
W.P.(MD)No. 16249 of 2013:,
34. In this writ petition, according to the petitioner, he is working as Assistant Executive Engineer in the Engineering Wing of Rural Development",
and Panchayat Raj Department. By G.O.(Pa.)No. 484, Rural Development and Panchayat Raj Department, dated 21.08.2013, though he has",
been deputed to the Town Panchayats Department to work as Assistant Executive Engineer, he has not been allowed to join duty in the Town",
Panchayats Department. Therefore, he has come out with this writ petition seeking a direction to the respondent, namely the Director of Town",
Panchayats, to give him a posting as Assistant Executive Engineer in Town Panchayats Department.",
35. The learned counsel for the petitioner would submit that as per G.O.Ms.No. 414 Rural Development and Panchayat Raj Department, dated",
21.08.2013, the petitioner is entitled to be posted in the Town Panchayats Department but, no posting order has been given to him, in view of the",
stay order granted by this Court in the above batch of writ petitions. Since, today, all the of writ petitions are dismissed and the stay order is",
vacated, there will not be any impediment for the respondent to give posting order to the petitioner in the Town Panchayats Department, as",
Assistant Executive Engineer, pursuant to G.O.Ms.No. 414, Rural Development and Panchayat Raj Department, dated 21.08.2013. Accordingly,",
this writ petition stands disposed of. No costs. Connected M.P.(MD)No. 1 of 2013 is closed.,
