TAMIL NADU RURAL DEVELOPMENT ENGINEERS ASSOCIATIONversusTHE SECRETARY TO GOVERNMENT RURAL DEVELOPMENT DEPARTMENT & ORS.

                       [2013] 9 S.C.R. 840


A     TAMIL NADU RURAL DEVELOPMENT ENGINEERS
                    ASSOCIATION
                                 v.
         THE SECRETARY TO GOVERNMENT RURAL
           DEVELOPMENT DEPARTMENT & ORS.
B           (Civil Appeal No. 8758 OF 2013 etc.)
                     SEPTEMBER 27, 2013
      [SURINDER SINGH NIJJAR AND M. Y. EQBAL, JJ.]

C       SERVICE LAW:

       Seniority between direct recruits and promotee Assistant
  Engineers - Held: Appellants were absorbed in RD
  Department as Overseers - Their previous service in
D Highways Department was also on the post of Overseers -
  Their claim for benefit of previous service on lower post of
  Overseer for determining seniority on higher post of Assistant
  Engineer cannot be accepted - Appellants were promoted
  as Assistant Engineers much later than respondents-
E Assistant Engineers (direct recruits) had started discharging
  their functions as Assistant Engineers in RD Department -
  Respondents had completed five years service as Assistant
  Engineers and under the relevant rules were eligible to be
  promoted as Assistant Executive Engineers - Consequently,
  they were duly promoted as Assistant Executive Engineer -
F Thus, the action taken by State Government cannot be said
  to be either arbitrary or violative of Art. 14 or 16 of the
  Constitution of India.

        Quota for promotion to post of Assistant Executive
G Engineer - Held: For promotion to the post of Assistant
  Executive Engineer (RD), 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
H                              840
TAMIL NADU RURAL DEVELOPMENT ENGINEERS ASSON. v. SEC. 841
              TO GOVT RURAL DEV. DEPT

stipulated - Further, on the post of Assistant Engineer (RD)         A
there is more than one mode of recruitment i.e. direct
recruitment and recruitment by transfer from the feeder
category of Overseers - Therefore, rules providing ratio of
6:2:~ cannot be said to be violative of Art. 14 or 16 of the
Constitution - Further, fixation of quota/ratio is the prerogative   B
of the executive and in the instant case, the ratio was fixed in
the service rules framed under Art. 309 of the Constitution -
Constitution of India, 1950 - Arts. 14, 16 and 309.

    The members of the appellant-Association
(appellants) were initially appointed as 'Overseers' in the          C
then Highways and Rural Works Department, where, even
after putting in 20 years service as such, they did not
have any promotional avenues. By G.O. Ms No. 263 Rural
Department dated 27.12.1996, the Government of Tamil
Nadu decided to set up a separate Engineering Wing for               D
the RD Department and the posts created, namely,
Assistant Engineers (AE), Assistant Executive Engineers
(AEE), Executive Engineers (EE) and Superintending
Engineers (SE), in the RD Department were filled up by
drawing personnel from other technical Departments of                E
the State Government on deputation basis as an interim
arrangement. On 25.5.1998, the date on which the
absorption and recruitment of engineering personnel
belonging to other Departments were notified, the
appellants were occupying the posts of Overseer in the               F
Highways Department. On 8.3.1999, the appellants gave
their consent to be absorbed as Overseers in the RD
Department. On 26.9.1997, the State Public Servicd'
Commission invited applications for the posts of
Assistant Engineers in the RD Department. The                        G
respondents-Assistant Engineers were directly recruited
from 24.11.1998 to November, 1999. The appellants were
promoted as Assistant Engineers on 2.9.2002, having
been given the benefit of service as Overseers in the RD
Department from the year 1997. The representations of                H
   842      SUPREME COURT REPORTS              [2013] 9 S.C.R.


A the appellants to effect promotions to the post of
  Assistant Executive Engineers (AEE), RD Department
  from the post of Assistant Engineer on 1 :1 ratio between
  Assistant Engineer-direct recruits and Assistant
  Engineers-promotees by transfer of service in the RD
B department, did not yield fruits. They filed a writ petition
  seeking issuance of a writ declaring Rule 3(2) of
  Notification-Ill of G.O.Ms. No. 15, RD Department dated
  25.1.2000, as ultra vires in the absence of fixation of quota
  between AE-direct recruits and promotees on the post of
c AEE. The High Court dismissed the writ petition.
      In the instant appeals, the grievance of the appellants
  was (i) that they could not be deprived of their past
  service; and (ii) there ought to be a ratio of 1:1 between
  direct recruits and promotees for promotion to the post
D of AEE.

         Dismissing the appeals, the Court

       HELD: 1.1. The Appellants having voluntarily opted
E to be absorbed in the RD Department, without any
  protection of their previous service in the Highways
  Department, cannot be permitted to make a grievance that
  they have not been treated at par with the direct recruits.
  The direct recruits joined on the post of AE. The appellants
F were working on the post of Overseer in the Highways
  Department, the parent Department, even though they
  were degree holders. 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. [Para 27] [857-G-H; 858-A-B, CJ
G
       1.2. On 25.5.1998, when the State Government issued
  orders for absorption and recruitment of the Engineering
  Staff through GO Ms. No.102 RD Department, the
  appellants were occupying the posts of Overseer in the
H Highways Department, but on temporary service in ,the
TAMIL NADU RURAL DEVELOPMENT ENGINEERSASSON. v. SEC. 843
              TO GOVT. RURAL DEV. DEPT

RD Department. On the basis of the exercise of option,         A
they appellants were absorbed in the RD Department on
8.3.1999. Thereafter, the Government issued Notifications
I to IV with ad hoc rules for the Engineering Wing for the
RD Department by notification GO Ms. No.15 dated
25.1.2000. These notifications were given effect from          B
25.5.1998, the date on which the absorption and
recruitment of engineering personnel belonging to other
Departments were notified. The seniority of the
respondents has been reckoned with reference to the
date of appointment on the post. This is a well                c
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
                                                               0
Department under GO Ms. No. 263 dated 27.12.1996. [Para
25-26) [856-B-C, F-H; 857-A, C, F-G]

    1.3. The appellants were promoted as Assistant
Engineers on 2.9.2002, having been given the benefit of
service as Overseers in the RD Department from the year        E
1997. They 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 25.1.2000 as amended by GO Ms.              F
No.295 dated 14.12.2001. On the other hand, the
respondents-Assistant Engineers (direct recruits) had
started discharging their functions as Assistant
Engineers in RD Department between 24-11-1998 to
November, 1999. They were duly promoted under the              G
rules as Assistant Executive Engineer after they had
completed five years service as Assistant Engineers.
Thus, the action taken by the State cannot be said to be
either arbitrary or violative of Art. 14 or 16 of the
Constitution of India. [Para 28] [858-D-G]                     H
    844   SUPREME COURT REPORTS             [2013] 9 S.C.R.

A      1.4. The appellants were absorbed in the RD
  Department as Overseers. Their previous service in
  Highways Department was also on the post of Overseers.
  The appellants claimed the benefit of the previous service
  on the lower post of Overseer for determining the
B seniority on the higher post of Assistant Engineer, which
  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 be either
c absorbed or promoted as Assistant Engineer or to be
  given the benefit of the service already rendered by them
  in the Highways Department. Further, their claim that the
  degree holder Overseers ought to be exempted from
  having rendered five years service in the RD Department,
D before they can be eligible to be considered for promotion
  as Assistant ~xecutive Engineer cannot be accepted.
  [Para 31] [860•H; 861-A-B, F-G]

      Sub-Inspector Roop/al and Another v. Lt. Governor
  through Chief Secretary, Delhi and Others 1999 (5)
E Suppl. SCR 310 - distinguished.

       2.1. It cannot be disputed that for promotion to the
  post of Assistant Executive Engineer (RD) Notification
  No. Ill GO Ms. No.15, more than one mode of recruitment
F 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, it is also a matter of
  record that on the post of Assistant Engineer (RD) there
G 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 (promotion from AE
  (RD); JE; SDO). Prior to the absorption of the appellants
H
TAMIL NADU RURAL DEVELOPMENT ENGINEERSASSON. v. SEC. 845
              TO GOVT: RURAL DEV. DEPT.

in the RD Department, they had no chance of being               A
promoted on the post of Assistant Executive Engineer,
Executive Engineer or Superintending Engineer. It is only
upon their absorption that they have got a chance of
being promoted on the higher posts. The ratio of 6:2:1
cannot, in any manner, be said to be violative of Art. 14       B
or 16 of the Constitution. [Para 29] [859-D-H; 860-A]

     2.2. Even otherwise, the fixation of the quota/ratio is
the prerogative of the executive. Further, the ratio of 6:2:1
has been fixed in the service rules in exercise of the
powers of the governor under proviso to Art. 309 of the         C
Constitution. In the absence of the appellants placing on
the record material to establish 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.        D
Therefore, it cannot be said that the ratio of 6:2:1 ought
to be replaced with the ratio by 1:1. [Para 30] [860-B-C]
                     Case Law Reference:
    1999 (5) Suppl. SCR 310 distinguished         para 31       E
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8758 of 2013.
    From the Judgment & Order dated 29.01.2007 of the High
Court of Judicature at Madras in Writ Petition No. 26990 of     F
2005.
                              WITH
    C.A. Nos. 8759, 8762, 8763, 8764, 8765 of 2013.
    P.S. Patwalia, lndu Malhotra, Nisha Bagchi, Vivek Jain,     G
Nishtha Kumar, Pooja Sharma, Vikas Mehta for the Appellant.
    Subramonium Prasad, AAG, 8. Balaji, K.V. Rathee, M.
Yogesh Kanna, A. Santha Kumaran, N. Shoba, Sri Ram J.
Thalapathy, V. Adhimoolam, S. Thananjayan for the
Respondents.                                                    H
    846      SUPREME COURT REPORTS                      [2013] 9 S.C.R.


A         The Judgment of the Court was delivered by

        SURINDER SINGH NIJJAR, J. 1.Leave granted in all the
    Special Leave Petitions.

       2. These appeals are directed against the common judgment
B 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
C 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.
D       4. The facts noticed by the High Court are that the members
  of the Tamil Nadu Rural Development Engineers' Association
  (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
E all the Civil works I 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
F 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
G 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.
H
TAMIL NADU RURAL DEVELOPMENT ENGINEERS ASSON. v. SEC. 84 7
  TO GOVT. RURAL DEV DEPT. [SURINDER SINGH NIJJAR, J.]

     6. By virtue of G.O. Ms. No. 102, RD Department, dated          A
25th 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     B
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              C
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         D
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 the RD
Department and filed Original Application in O.A. No. 253 of         E
1997 before the Tamil Nadu Administrative Tribunal (in short
'Tribunal'). This Application was dismissed by the Tribunal by
order dated 12th November, 1997. Aggrieved by the order of
the Tribunal, the Association filed W.P. No. 6513 of 1998
before the Ma.dras High Court. By order dated 2nd April, 2002,       F
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           G
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       H
    848     SUPREME COURT REPORTS                  [2013] 9 S.C.R.

A 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
  Department under Rule 39 of General Rules of the Government
  of Tamil Nadu. The Tribunal, by Order dated 16th March, 2004,
8 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
C 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
D 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
E common Seniority List for direct recruits and promotees. The
  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
F 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.0.(2D) N0.116 on 29th October,
G 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.
H
TAMIL NADU RURAL DEVELOPMENT ENGINEERSASSON. v. SEC. 849 ·
  TO GOVT. RURAL DEV DEPT [SURINDER SINGH NIJJAR, J.)

     13. Appellant-Association also filed W.P. No. 31416 of        A
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 Recruits' and
'Assistant Engineers -Promoted by transfer of service' in the      B
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         C
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.
                                                                   D
     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        E
for quashing of the rejection letter issued by the Government
on 29th December, 2004.
     16. Appellant-Association also filed W.P. No. 26973 of
2005 seeking issuance of a writ of Mandamus directing the          F
respondents to give retrospective effect to the promotions given
to Overseers as Assistant Engineers from 25th 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.
                                                                   G
     17. Aggrieved by the non-fi~ation 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-Ill of G.O. Ms. No. 15, RD Department, dated 25th     H
    850      SUPREME COURT REPORTS                   [2013) 9 S.C.R.


A   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
B   Department before absorption and immediately after the
    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.
C   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
D   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
E   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
F   cannot make use of the currency that is extinct and not 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
G   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
H   recruits. Therefore, there is no justification at all in asking for
TAMIL NADU RURAL DEVELOPMENT ENGINEERSASSON. v. SEC. 851
  TO GOVT. RURAL DEV DEPT [SURINDER SINGH NIJJAR, J.]

further classification in the integrated cadre and relaxation of      A
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           8
 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
qualified for promotion till date, in that, their absorption in the   C
 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   D
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     E
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 Co; rt has held that       F
the impugned part of the Government Order aoes not in any
way offend Articles 14 and 16 of the Constitution and no
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         G
length.
     20. The submissions made by the Appellants are as
follows:
     It is submitted that the State Government has proceeded          H
    852      SUPREME COURT REPORTS                   [2013] 9 S.C.R.

A   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.
8   It is further submitted that the recruitment rules in respect of
    direct recruit Assistant Engineers were notified with effect from
    26th 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.
C   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 Engineers.
    Imposing such a condition has deprived the members of the
    Appellant-Association and their previous service as Overseers
D   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
E   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
F   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
G of G.O. Ms.No.102 dated 25th May, 1998. According to the
  respondents, various posts were filled under G.O. Ms. No. 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
H
 TAMIL NADU RURAL DEVELOPMENT ENGINEERSASSON. v. SEC. 853
   TO GOVT. RURAL DEV. DEPT [SURINDER SINGH NIJJAR, J.]

providing for the absorption and recruitment of the Engineering     A
Personnel drawn from other Departments in the RD Department
till the issuance of G.O. Ms. No. 102 dated 25th 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
27th December, 1996. It is further submitted that the Appellants    8
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      C
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          D
Department in 1998. Learned 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          E
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          F
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.       G
Ms. No. 295 was never challenged by the Appellants.
      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     H
    854           SUPREME COURT REPORTS                (2013] 9 S.C,R.


A   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
B   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
c   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
D   25th 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
E   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.
F        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.
G          (ii)    Their ought to be a ratio of 1:1 between Direct
                   Recruits I Promotees for promotion on the post of
                   A.E.E.
        25. In our opinion, the Appellants can not now claim that
    the past service in the Highways Department should be
H   recognised in the RD Department. It has been noticed earlier
TAMIL NADU RURAL DEVELOPMENT ENGINEERSASSON. v. SEC. 855
  TO GOVf. RURAL DEV. DEPT. [SURINDER SINGH NIJJAR, J.)

that the members of the Appellant-Association were initially A
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 Union$ of Tamil Nadu. Since they were earlier under
the administrative control of the erstwhile Highways and Rural B
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 27th c
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 basis on deputation/ D
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 E
Development Department for a number of years. On 26th
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 24th November, 1998 to November, 1999. F
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 G
engineering staff of other departments. Therefore, it had
become imperative need from a purely administrative point of
view that RD Department should 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. H
    856      SUPREME COURT REPORTS                  [2013] 9 S.C.R.


A   Government had created 384 additional posts of Union
    Engineers i.e. one Assistant Engine.er 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,
B   Public Works Department, Agricultural Engineering, Tamil Nadu
    W'iter 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:
C         "Ill. 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             "
D         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.
E         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
F         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 27th December,
G 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.
H
TAMIL NADU RURAL DEVELOPMENT ENGINEERS ASSON. v. SEC. 85 7
  TO GOVf. RURAL DEV. DEPT. [SURINDER SINGH NIJJAR, J.]

Thereafter, the Government issued ad hoc rules for the                A
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                  B
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             c
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             D
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     E
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 reference to the date of appointment on the post. This is
a well recognised general principle of computing seniority and        F
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 27th December, 1996.                                    G
     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
                                                                      H
    858     SUPREME COURT REPORTS                 [2013) 9 S.C.R.


A 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.
B As noticed earlier, they were stagnating in the Highways
  Department without any 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
c 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
D   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 ii')
    the RD Department by virtue of GO Ms. No.15 dated 25th
E   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 November, 1999. Therefore, they had
F   completed five years _service as Assistant Engineers for the
    period between November, 2003 to November, 2004 under the
    relevant rules (Notification Ill in GO Ms. No.15 dated 25th
    January, 2000) eligible under the rules to be promoted as
    Assistant Executive Engineers: Consequently, they were duly
G   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
H ratio of 1: 1 is also wholly devoid of any merit. The Appellants
 TAMIL NADU RURAL DEVELOPMENT ENGINEERS ASSON. v. SEC. 859
: TO GOVT. RURAL DEV. DEPT. [SURINDER SINGH NIJJAR, J.]

claimed such ratio on the basis that (he direct recruits-          A
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           B
promoted on the higher 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     c
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. Ill GO Ms. No.15, more than one
                                                                   D
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           E
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
(promotion from AE (RD); JE; SDO). The Appellants, however,
claimed that this ratio ought to be 1:1, on the ground that        F
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               G
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   H
    860     SUPREME COURT REPORTS                   [2013] 9 S.C.R.

A   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
B Constitution of India. In the absence of tbe Appellants placing
  on the record material to establish 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
C 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
D   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 _
E   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
F   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
G   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
H   merit in the submissions that the degree holder Overseers
  TAMIL NADU RURAL DEVELOPMENT ENGINEERSASSON. v. SEC. 861
    TO GOVf. RURAL DEV. DEPT. [SURINDER SINGH NIJJAR, J.]

  ought to be exempted from having rendered five years service A
  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
  Roop/al and Another Vs. Lt. Governor through Chief
  Secretary, Delhi and Others1 in support of the submission that B
  their past service of 20 years cannot obliterated. The aforesaid
  submission cannot be 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 c
  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 D
  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 E
  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 be either absorbed or promoted as Assistant F
  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.
                                                                     G
        32. The appeals are accordingly dismissed.
 R.P.                                      Appeals dismissed.


 1.   2000 (1) sec 644.                                             H