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PETITIONER: A.MAHUDESWARAN & ORS.

       Vs.

RESPONDENT: GOVERNMENT OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       12/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATASWAMI K. (J)

CITATION:  JT 1996 (5)   506        1996 SCALE  (3)289

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CIVIL APPEAL NOS.5162-72 OF 1996         (Arising out of SLP (C) Nos.6120-30 of 1994)                          O R D E R      Delay condoned.      We have heard learned counsel for the parties.      Leave granted.      The 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. On 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.      It  is  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

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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.      In furtherance of that clarification the regularization of the  services of  the appellants  came to  be made by the Assistant Directors.      It 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. Consequently,  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.      Shri 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. Subsequent 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 given.      Shri Ambrish  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; it 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.      Shri 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

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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.      Having  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.      The 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. When 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

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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  General  Rules. Therefore, the orders are illegal.      The  appeals  are  accordingly  allowed,  but,  in  the circumstance, without costs.