& Ors Vs. Government of Tamil Nadu & Ors  INSC 371 (12 March
K.Ramaswamy, K.Venkataswami K. (J)
JT 1996 (5) 506 1996 SCALE (3)289
APPEAL NOS.5162-72 OF 1996 (Arising out of SLP (C) Nos.6120-30 of 1994) O R D E
R Delay condoned.
have heard learned counsel for the parties.
facts are not in dispute. Consequent upon the abolition of the post of the
Village Officer in the year 1982, around 2000 Section Writers assisting the
village officers were sought to be taken into the Survey and Settlement
Department on their completion of three months training to be given to them and
then appointed as Surveyor- cum-Draftsman on contract basis Pursuant thereto,
the appellants were given training as Surveyors on a fixed pay.
completing the training of three months prescribed by the Government, they were
appointed as Surveyors. The appointment as Surveyors was to take effect from
the date they joined the duty in the new updating District Survey Unit to which
they were allotted. Consequently, they joined the duty and were discharging
duty either as Surveyor or Draftsman against regular pay-scales.
also not in dispute that pursuant to the recommendations made by the Assistant
Director of Survey in various orders, the Government had sought recruitment
through the Public Service Commission. The Public Service Commission had
granted relaxation. In furtherance thereof, the Government relaxed the age
qualification of some of them and appointed them in the Tamil Nadu Survey and
Settlement Subordinate Service with effect from the date on which the regular
pay scales were given to them in April 1987. It is also not in dispute that
many of the appellants have been subsequently promoted either as Field
Surveyors or Inspectors. The clarification thereafter has been sought by the
Assistant Directors as to how the combined seniority of the persons who were
working as Surveyor or Draftsmen in the respective units was to be determined.
The Government in their clarificatory letter dated August 29, 1990 stated that
the procedure of seeking their option and treating them as separate units and
regularizing the respective candidates in the units to which they opted would
create problems for the reason that the required number of posts may not be
available in the respective units and that, therefore, it would be better to
regularize their services either as Field Surveyor or Draftsman and keep them
with effect from the date of their respective promotions given subsequently.
furtherance of that clarification the regularization of the services of the
appellants came to be made by the Assistant Directors.
would appear that subsequently a representation was made by the contesting
respondents in these cases on the basis of which the clarification was sought
for. The Government in the impugned proceedings dated July 31, 1992 directed to regularize the services
of the respondents.
the appellants became junior-most. They challenged the orders in the Tribunal
in a number of matters and the Tribunal by its common order dated October 27, 1993 disposed of all the services in
alternative Vacancies. It would appear that the Government also had taken the
stand in the Tribunal to adopt alternative vacancies to the persons working in
the posts of Surveyor and the Draftsman depending upon the number of posts
available in each unit. The regularization was directed to be done accordingly.
Calling that order in question, these appeals by special leave have been filed.
S. Sivasubramaniam and Shri R. Mohan, learned senior counsel appearing for the
appellants, contended that the Government having regularized their service in
the Survey Department and directed to appoint them on regular basis w.e.f. the date
on which they were appointed after completing the training and the Public
Service Commission having agreed for regularization of the services of the
appellant and given promotion to the higher posts, the Government have rightly
regularized the services of the appellants. There is no illegality in the
process of regularization made by the Assistant Director, Salem.
order directing re-regularisation is without any basis. It is violative of the
principle of natural justice for the reason that no material has been placed on
the basis of which their services duly regularized could be set at naught nor
was any opportunity of representation before unsettling the regularization
Kumar, learned counsel appearing for the contesting respondents, argued that
the Government in the counter-affidavit filed in the Tribunal has stated that regularisation
of the persons in the alternative posts available in the District would be more
fair and equitable;
would be consistent with the legitimate expectations, that regularizing any of
the appellants in the Survey Department would cause undue hardship to the
contesting respondents and that, therefore, The Tribunal was right in giving
direction to regularize the services of the appellants in the alternative posts
available to the candidates. It is also sought to be contended that the same
principle was applied throughout the State except in Salem District and that,
therefore, it would create undue hardship to the contesting respondents.
A. Mariarputham, learned counsel appearing for the State has contended that in
view of the clarification given by the Government in the letter dated August
29, 1990, regularization of the services of the candidates in the manner
intended by the Government would be more equitable and would be not only
consistent. with the orders issued by the Government from time to time but also
keep the persons who had gained experience in the promotional posts to be
available to the State; rotational system may cause hardship to such of the
candidates who were appointed and gained promotion as they would be pushed down
to adopt rotational system.
given our anxious consideration to the respective contentions, the question
that arises for consideration is; whether the Government was justified in
directing re-regularisation of the services of the appellants? It is not the
case of the State that the Assistant Director, Salem has committed any illegality or violated the orders of the
regularization issued by the State Government in the respective Government
orders. We have been taken through all the Government orders which would
indicate that the Government was conscious of giving benefit to 2000 Section
Writers whose services were sought to be utilized in the Survey and Settlement
Department. They were appointed on regular basis by way of relaxation of the
statutory Rules of recruitment in the Department. It also indicates that they
would be appointed with effect from the date on which they were discharging
their duties. In other words, the principle adopted by the Government is fair
and consistent with Rules 10(a)(i) and 23 of the Tamil Nadu State &
Subordinate Service Rules, It would be given effect from the date the candidate
first discharged his duty on that post. Thus, it could be seen that the
regularization of the services is consistent with the General Rules, namely,
the Tamil Nadu State & Subordinate Service Rules.
question then is: whether the rotational system sought to be adopted is
consistent with the Rules? It is true that some of the candidates were working
in the respective fields, namely, as Draftsmen and Surveyors. It is seen that
each one is independent of the other. The Survey Department consists of
Surveyors, Field Surveyors, firka Surveyors, Subinspectors, Deputy Inspectors,
Inspectors and Assistant Directors. As far as the Draftsman Department is
concerned, the hierarchical posts of the Draftsman are Draftsman, Senior
Draftsman, Head Draftsman, Manager (Technical), Assistant Director (Maps) and
Assistant Directors (Drawings). It would thus be seen that each is a distinct
and separate service and one cannot be mingled with the other. When this
nomenclature and service conditions are made different, there is no scope for
intermingling the be seen that the regularization of the services of the
appellants is consistent with the General Rules and also with the Scheme in
Special Rules. The Direction, therefore, to regularize the services of the
persons in the rotational alternative vacancies would create hardship to the
senior persons who have come into service much earlier to the other sources and
who would be given seniority over the senior Surveyors. The doctrine of
legitimate expectation must be consistent with the operation of the statutory
rules, orders or Act. For instance, promotion on the basis of merit and ability
enables a more meritorious junior-most incumbent to steal a march over
senior-most person in the service. In such a case, legitimate expectation gets
back seat. In a converse case of promotion on the basis of seniority without
reference to merit would generate legitimate expectation.
the principle of merit is involved, the legitimate expectation dashes of its
hopes inculcating spirit of competence and zeal to improve excellence.
Regulation of legitimate expectation can not be indiscriminately projected but
requires consideration in the setting and scenario of factual backdrop. Though
a wrong principle of regularization by rotation generates expectation of
regularization, it cannot be said to be legitimate nor be put in operation
contrary to General and Special rules. In other words, the view taken by the
Tribunal is not consistent with the Scheme of the Special Rules and also of the
the orders are illegal.
appeals are accordingly allowed, but, in the circumstance, without costs.