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Judgment
F.M. Ibrahim Kalifulla, J
Six of the applicants before the Tamil Nadu Administrative Tribunal in O.A. Nos. 9546 of 1997, etc. batch are the petitioners in W.P. No.
41342 of 2002. The challenge in that Writ Petition is to the common order of the Tribunal dated 11.7.2002 passed in the said batch of Original
Applications. Some of the aggrieved persons in respect of the seniority list drawn by the State Government in its Special Memo No. Nirvagam
1(3)/197876/2004-1, dated 29.4.2004, culminating in the panel of Assistant Divisional Engineers, as approved in G.O.Ms. No. 169, Highways
Department, dated 19.8.2005, are the petitioners in W.P. No. 31101 of 2005.
The fate of W.P. No. 31101 of 2005 virtually depends upon the decision to be taken in W.P. No. 41342 of 2002. Therefore, W.P. No. 41342
of 2002 is considered in the first instance before going into the merits of the claim made in W.P. No. 31101 of 2005.
For the sake of convenience, the petitioners in W.P. No. 41342 of 2002 shall hereinafter be called as the applicants and the petitioners in W.P.
No. 31101 of 2005 shall hereinafter be referred to as they are arrayed therein and the other respondents are referred to as they are arrayed in
W.P. No. 41342 of 2002. The issue in both the Writ Petitions relate to the seniority of the applicants vis-a-vis the petitioners in W.P. No. 31101
of 2005. The applicants were all employed in the Tamil Nadu Highways Engineering Service. 15 persons filed the Original Applications
commencing from O.A. No. 9545 of 1997, etc. batch, challenging the determination of their seniority as per the proceedings of the Secretary to
Government, Public Works Department Chennai-9, dated 27.7.1995. To understand the controversy involved in both the Writ petitions, the
background as to how the services of certain categories of employees in the Tamil Nadu Highways Engineering Service came to be treated right
from the year 1972, is required to be briefly stated.
By G.O.Ms. No. 1745, Public Works Department, dated 10.10.1972, the Special Rules for the Tamil Nadu Engineering Subordinate Service
came to be amended to provide for appointment of Overseers, Head Draftsman or Civil Draftsman possessing Diploma in Engineering and
A.M.I.E. qualifications with a minimum service of three years as Junior Engineers (now Assistant Engineers). The said Special Rules applicable to
the Tamil Nadu Engineering Subordinate Service in the Public Works Department was adopted by the Highways Department for the Tamil Nadu
Highways Engineering Service. By virtue of the said Rule position, Draftsman who were in three different categories, namely Grade-I, II and III on
acquiring A.M.I.E. qualification, were eligible to be promoted as Junior Engineers (now Assistant Engineers). Such position prevailed till 2nd
August, 1980. The applicants were all working as Draftsman Grade-II and III who had acquired the requisite qualification between 1972 and
1980 and thereby, were fully eligible for being promoted as Junior Engineers (now Assistant Engineers). On 2.8.1980, by G.O.Ms. No. 1356.
Public Works Department, the position was altered, by which while directing the regularisation of such of those Draftsman who have acquired
Degree qualification in Engineering and who have so far been appointed as Junior Engineers (now Assistant Engineers) temporarily, be regularised
in that post. It was further ruled that henceforth, the Draftsman Grade-I alone who have put in three years of service, would be eligible for
appointment as Assistant Engineers on acquiring A.M.I.E. and B.E. Degree qualifications. On and from that date, namely 2.8.1980, the Draftsman
Grade-II and III and the Overseers were not eligible for such appointment and they have to take their chance along with the fresh candidates for
direct recruitment to the post of Assistant Engineers in the Tamil Nadu Engineering Service.
By virtue of the issuance of the above said Government Orders, the position was that the applicants and such of those Draftsman in Grade-II
and III who had acquired necessary qualifications, namely B.E/A.M.I.E. and who were appointed temporarily as Junior Engineers (now Assistant
Engineers), their services were regularised retrospectively from 10.10.1972. In effect, the applicants who were temporarily appointed as Junior
Engineers on acquisition of the required qualifications, namely B.E/A.M.I.E. on the respective dates of such temporary appointments in between
10.10.1972 and 2.8.1980, as such came to be regularised in the post of Junior Engineer (now Assistant Engineer).
By a subsequent Government Order in G.O.Ms. No. 574, Transport Department, dated 4.5.1982, the benefits as provided in G.O.Ms. No.
1356, Public Works, Department dated 2.8.1980, were ""mutatis mutandis"" extended to the persons working in the Tamil Nadu Highways and
Rural Works Department also retrospectively from 10.10.1972. By yet another G.O. in G.O.Ms. No. 478, Transport Department, dated
23.5.1988, the amendment to the Special Rules for the Tamil Nadu Highways Engineering Subordinate Service came to be made with effect from
10.10.1972 in exercise of the powers conferred on the Governor of Tamil Nadu by the proviso to Article 309 of the Constitution of India. By
virtue of the said amendment which was brought into force with effect from 10.10.1972, the purport intended in G.O.Ms. No. 1356, P.W.D.,
dated 2.8.1980 and G.O.Ms. No. 574, Transport Department, dated 4.5.1982, was brought into the statutory Rules.
The services of the applicants came to be regularised in the post of Assistant Engineers after the issuance of G.O.Ms. No. 478, Transport
Department, dated 23.5.1988. Thereafter, it is stated that the seniority list was drawn in the year 1993 based on the above referred to
Government Orders. One other factor was that the petitioners in W.P. No. 31101 of 2005 were all candidates who got selected and appointed by
way of direct recruitment to the post of Assistant Engineers. Though prior to such direct recruitment, they were working based on their
appointment under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules, their seniority was stated to have been determined based
on their direct recruitment, which came to be made in the year 1982.
In the above stated circumstances, the Secretary to Government, Public Works Department, came forward with a letter dated 27.7.1995,
which was impugned before the Tribunal by the applicants. By the said communication dated 27.7.1995, it was directed that the seniority of the
applicants whose services were regularised with retrospective effect under G.O.Ms. No. 478, Transport Department, dated 23.5.1988, should be
fixed below the last candidate selected by the TNPSC prior to 23.5.1988, which virtually referred to the petitioners in W.P. No. 31101 of 2005.
It was also directed therein that the anomalies in the fixation of seniority of Assistant Engineers as on 1.1.1993 be rectified. By the order impugned
in these Writ Petitions, the Tribunal held that such a direction issued by the Secretary to Government, P.W.D. in the impugned communication
dated 27.7.1995, was valid.
Assailing the said impugned order of the Tribunal, Mr. R. Muthukumarasamy, learned Senior Counsel appearing for the applicants (i.e. the
petitioners in W.P. No. 41342 of 2002) contended that the seniority of a member of a service should be regulated only by the Rules and cannot be
done by Executive instructions. The learned Senior Counsel also contended that the applicants were all in service right from their respective date of
their temporary promotion to the post of Junior Engineers (now Assistant Engineers) between 1972 and 1980, that when once such a service was
regularised by G.O.Ms. No. 574, Transport Department, dated 4.5.1982 retrospectively from the respective dates of their appointment and when
such appointment in the promoted post was also governed by the amended Rules in the Tamil Nadu Highways Engineering Subordinate Service in
G.O.Ms. No 473. Transport Department, dated 23.5.1988, it will have to be held that their entry into service in the post of Assistant Engineers
was earlier to the appointment of the petitioners in W.P. No. 31101 of 2005, who came to be appointed in the regular service by way of direct
recruitment only after 1982, and therefore, their seniority was rightly determined in the year 1993 over and above the petitioners in W.P. No.
31101 of 2005, which ought not to have been interfered with as directed by the Secretary to Government P.W.D., in the impugned communication
dated 27.7.1995. The learned Senior Counsel also contended that the consequential amendment to the Rules relating to the Tamil Nadu Highways
Engineering Subordinate Service when continued to remain in force, the first and second respondents were bound to follow the said Rules without
any deviation.
As against the above submissions, Mr. R. Selvakumar, learned Counsel appearing for the petitioners in W.P. No. 31101 of 2005 and Mr.
Yashod Vardhan, learned Senior Counsel appearing for the sixth respondent-Association of Tamil Nadu Highways Engineers in W.P. No. 31101
of 2005, contended that without Droving their respective date of appointments, the applicants (the petitioners in W.P. No. 41342 of 2002) cannot
claim their seniority overlooking the rightful claim of the petitioners in W.P. No. 31101 of 2005. Mr. Selvakumar, learned Counsel relied upon
Bhagwan Das and Others Vs. Indian Council of Agricultural Research and Others, in support of his submissions. He further contended that even
the retrospective operation of the Rules will not affect the persons who were already in service, as held by the Supreme Court in the decision
reported in Ram Chand and Others Vs. Union of India (UOI) and Others, . It was then contended by both the learned Counsel that the applicants
cannot be held to have been appointed in accordance with the Rules prior to 23.5.1988 and unless their appointments were in accordance with the
Rules, which is a condition precedent for determination of their seniority, they are not entitled to claim seniority over and above the petitioners in
W.P. No. 31101 of 2005. Reliance was also placed upon the decision reported in V. Sreenivasa Reddy and others Vs. Govt. of Andhara
Pradesh and others, . In support of the above said contentions. Our attention was also drawn to Rule 2(1) and Rule 35(aa) of the Tamil Nadu
State and Subordinate Service Rules. Mr. Yashod Vardhan, learned Senior Counsel also placed reliance upon the decision of the Supreme Court
reported in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, to contend that the appointment made under Rule 10(a)(i) of the
Tamil Nadu State and Subordinate Service Rules, cannot be the basis for determining the seniority.
Having heard the learned Counsel for the respective parties, one other Government Order which is required to be mentioned is G.O.Ms. No.
807, Public Works (HK) Department, dated 24.5.1993, by which the relevant amendment in pursuance of the earlier G.Os. including G.O.Ms.
No. 574, Transport Department, dated 4.5.1982 and G.O.Ms. No. 478, Transport Department, dated 23.5.1988, came to be notified. It was
notified with specific reference to the dates from which the amendment to the relevant Rules was brought into effect. It specifically provided that
the amendment which was brought into the Rule providing for the regularisation of Draftsman Grade-I, II and III will take effect from 10.10.1972.
The amended Rule 5 of the Special Rules for the Tamil Nadu Highways Engineering Service, relating to the category of Junior Engineers, which
post was to be filled by way of direct recruitment or recruitment by transfer, specifically recognises the entitlement of Draftsman Grade-I to III in
Category 4 (a) or 4 (b) of the Tamil Nadu Highways Engineering Subordinate Service as one of the source by which the post of Junior Engineer
can be filled up by way of recruitment by transfer. However in the amended Rule 5(d) after the third proviso, a further proviso was added which
made clear that after 2.8.1980, they were not eligible to be considered and that they can only aspire to become Assistant Engineers along with the
fresh candidates appointed by direct recruitment. The amended Rule 23 by way of ""saving"" clause reinforces the position that nothing contained in
those Rules shall adversely affect the appointments made from the category of Draftsman Grade I to III to the category of Junior Engineers from
10.10.1972 onwards till the date of issuance of those amendments.
A conjoint reading of G.O.Ms. No. 1356, Public Works Department, dated 2.8.1980, G.O.Ms. No. 574, Transport Department dated
4.5.1982, G.O.Ms. No. 478, Transport Department, dated 23.5.1988 and G.O.Ms. No. 807, Public Works (HK) Department, dated
24.5.1993, boils down to the position that the Draftsman Grade-1 to III having acquired the qualifications of B.E/A.M.I.E. between 10.10.1972
and 2.8.1980, became eligible for being promoted as Junior Engineers (now Assistant Engineers), that such of those Draftsman in these Grades
who were temporarily promoted between 10.10.1972 and 2.8.1980, were regularised from their respective date of such temporary appointments
and that such regularisation was protected by the relevant amended Rules, which was brought into the Rule books, though subsequently by giving
retrospective effect as from 10.10.1972.
To buttress the argument of the petitioners in W.P. No. 31101 of 2005 as well as the third respondent-Association of Engineers therein,
insofar as it related to the retrospectivity of the operation of the Rules and its validity, at the outset it will have to be stated that so far, neither the
petitioners in W.P. No. 31101 of 2005 nor the third respondent therein, have made any challenge to any of the above referred to G.Os. or the
amended Rules in the manner known to law. It will have to be kept in mind that the applicants were not appointees in the post of Junior Engineer
(now Assistant Engineer), directly by way of temporary appointment under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules.
They were all already in service as Draftsman in Grade-II and III. It is also not in dispute that they were all temporarily promoted is the post of
Junior Engineers (now Assistant Engineers) between 1972 and 1980 from the existing category of Draftsman-II and III, whereas the petitioners in
W.P. No. 31101 of 2005 were all stated to have been appointed in the post of Junior Engineers (now Assistant Engineers) under Rule 10(a)(i) of
the Tamil Nadu State and Subordinate Service Rules for the first time and who were all appointed directly through the TNPSC only in the year
1982. Therefore, when the Rules specifically deal with the case of the applicants providing for their regularisation from the respective dates of their
temporary promotions in the post of Junior Engineers (now Assistant Engineers) as early as on 4.5.1982 and when such regularisation was
confirmed by G.O.Ms. No. 478, Transport Department, dated 23.5.1988 and G.O.Ms. No. 807, Public Works (HK) Department, dated
24.5.1993, it will have to be held that such regularisation based on the conscious decision made by the State Government should also he validated
by bringing forth necessary amendment to the Rules, which will certainly stand on a higher footing over the claims of the petitioners in W.P. No.
31101 of 2005, who had entered into the service on a regular basis only as from the year 1982, i.e. long after the regularisation of the services of
the applicants in the post of Junior Engineers (now Assistant Engineers).
In the light of the said factual position as regards the service of the applicants (the petitioners in W.P. No. 41342 of 2002) vis-a-vis the
petitioners in W.P. No. 31101 of 2005, when the various decisions relied upon by the counsel for the petitioners in W.P. No. 31101 of 2005 are
examined, as far as the reliance placed upon 1985 (Supp) SCC 38 (cited supra) is concerned, in the said decision, the Supreme Court held that in
the absence of satisfactory proof of the date of appointment of the petitioners; in that case in the Grade as Assistants; they cannot successfully urge
as to the violation of Articles 14/16 of the Constitution of India. The said ratio as regards the proof of appointment cannot be applied to the facts
of this case, where the applicants were already in service as Draftsman Grade-II and III.
A reference to G.O.Ms. No. 574, Transport Department; dated 4.5.1982 (paragraph 6 of that G.O) makes it clear that the applicants were all
persons whose services came to be regularised between 1972 and 1980 from the respective dates when they were temporarily appointed as
Assistant Engineers. Such appointment of the applicants was never challenged by anyone much less by the petitioners in W.P. No. 31101 of 2005.
It is not the case of the petitioners in W.P. No. 31101 of 2005 that there was no such temporary appointment of those applicants in the post of
Assistant Engineers. In fact, the third respondent-Association of Tamil Nadu Highways Engineers who represented the petitioners in W.P. No.
31101 of 2005, did not raise any such contention as could be seen from the impugned order of the Tribunal, where there is no such contention
raised. Therefore, in our considered opinion, it is not now open for the petitioners in W.P. No. 31101 of 2005 for the first time to question or
dispute the factum of temporary appointment of the applicants in the post of Assistant Engineers between 1972 and 1980.
Reliance was also placed upon the decision of the Supreme Court reported in Ram Chand and Others Vs. Union of India (UOI) and Others,
for the proposition that the retrospective operation of a Rule in violation of any Constitutional right, cannot be made. We are unable to apply the
said decision to the facts of this case. In the said judgment of the Supreme Court, when we read the facts, we have found in paragraph 3 that the
Supreme Court has illustrated how the retrospectivity operation of a Rule causes hardship to the other group, which reads as under:
3...
...Yet when seniority list was published in 1988 the Junior Engineers appointed by transfer in 1988 were given their seniority by giving benefit both
under Notes (2) and (3). How did it work, can be explained by taking illustration of a Junior Engineer transferred in 1988. He has been placed at
serial No. 801 in the list. He acquired the degree qualification in July 1976. Since on notional working out the vacancy was found to exist in
December 1976 his seniority was pushed to 1976 the rule having come in force on that day and he being qualified was deemed to have been
appointed as an Assistant Engineer and thereafter he was given weightage of four years being one-third of the service he had rendered as Junior
Engineer. He thus came to be placed as Assistant Engineer from December 1972. Consequently a second claim petition was filed before the
Tribunal. It was dismissed as the Tribunal did not find any illegality in placement of the diploma holder as the weightage of four years was given
only from the date the rule is deemed to have come into force namely 1976.
As compared to the case on hand, first and foremost; while giving effect to G.O. Ms. No. 1356, Public Works Department dated 2.8.1980,
G.O.Ms. No. 574, Transport Department dated 4.5.1982, G.O.Ms. No. 478, Transport Department, dated 23.5.1988 and G.O.Ms. No. 807,
Public Works (HK) Department, dated 24.5.1993, none of the provisions contained either in these G.Os. or in the amended Rules, provided for
grant of any benefit of any notional promotion or deemed appointment. On the other hand, even if the Draftsman Grade-II and III had acquired the
qualifications of B.E/A.M.I.E. on a particular date, their status as Junior Engineers was ascertained from the actual date when they were
temporarily appointed as Junior Engineers (now Assistant Engineers). That apart, unlike the facts involved in the said decision of the Supreme
Court, the Rule did not provide for any weightage to the detriment of the petitioners in W.P. No. 31101 of 2005 in favour of the applicants for the
past services rendered as Draftsman Grade-II and III. In fact, in the light of the facts in that case, the Supreme Court has not held that
retrospective operation of a Rule can never be made. On the other hand, in the ruling of the Supreme Court the ratio is while the Rules operate
prospectively, the retrospectivity is an exception. In paragraph 7 of the said decision Ram Chand and Others Vs. Union of India (UOI) and
Others, , the Supreme Court has stated as under as to the retrospectivity of the Rule:
7...Rules operate prospectively.
Retrospectivity is an exception. Even where the statute permits framing of rule with retrospective effect the exercise of power must not operate
discriminately or in violation of any constitutional right so as to affect vested right the rule-making authority should not be permitted normally to act
in the past. The impugned rule made in 1985 permitting appointment by transfer and making it operative from 1976 subject to availability of
vacancy in effect results in appointing a Junior Engineer in 1986 with effect from 1976, Retrospectivity of the rules is a camouflage for appointment
of Junior Engineers from a back date. In our opinion the rule operates viciously against all those Assistant Engineers who were appointed between
1976 to 1985....
As seen earlier there is no nexus between framing a rule permitting appointment by transfer and making it retrospective with effect from 1976.
Appointing a person to a higher post in a different cadre in which he has never worked is violative of constitutional guarantee of those who are
working in the cadre. It is against basic principle of recruitment to any service....
In the case of hand, it is not as if the applicants'' service in the cadre of Draftsman Grade-II and II was deemed to have been rendered in the cadre
of Junior Engineer (now assistant Engineer) in order to state that the retrospective operation of the Rule in the case of hand had no nexus to the
appointment of the applicants to the post of Junior Engineers. On the other hand, taking into account the fact that the applicants who were in the
services of the State in the cadre of Draftsman Grade-II and III and who got temporarily promoted to the post of Junior Engineers on acquiring the
required qualifications, were functioning as such in the service and the regularisation of their appointments in that post was a justifiable one and
therefore, the Rule providing for such regularisation from the respective date of their functioning in that post cannot be held to be without any nexus
to the appointment so made. In our opinion, in the case on hand, it will fall under the exception category where the retrospective operation of a
Rule was inevitable to the applicants and therefore, the Rule providing for such retrospective operation can never be held to be unjustified.
Therefore, reliance placed upon the said decision on behalf of the petitioners in W.P. No. 31101 of 2005 cannot be accepted.
Reliance was also placed upon the decision of the Supreme Court reported in V. Sreenivasa Reddy and others Vs. Govt. of Andhara Pradesh
and others, . In paragraph 15, the Supreme Court has stated that the appointment in accordance with the Rules is a condition precedent to count
the seniority and that temporary or ad-hoc or fortuitous appointments etc., are not appointments in accordance with the Rules and the temporary
service cannot be counted towards the seniority. ''While relying upon the said decision, a reference was made to Rule 2(1) of the Tamil Nadu State
and Superannuate Service Rules, which states that a person is said to be ""appointed to a service'''' when in accordance with these Rules or in
accordance with the Rules applicable at the time, as the case may be, he discharges, for the first time the duties of a post borne on the cadre of
such service or commences the probation, instruction or training prescribed for members thereof. In the Explanation to the said Rule 2(1), it is
stated that the appointment of a person holding a post borne on the cadre of one service to hold additional charge of a higher post in the same
service or a post borne on the cadre of another service or to discharge the current duties thereof, does not amount to appointment to the latter
service.
Under Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, for determining the seniority of a person in service, it is stipulated
that it should be determined with reference to the date on which he is appointed to the services, class, category or grade.
Even a combined reading of Rule 2(1) along with Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, does not prohibit
creation of weightage by way of an amendment to provide for regularisation of a service of a person who was already appointed to a cadre and
who came to be temporarily promoted to a higher post. It is not the case of the petitioners in W.P. No. 31101 of 2005 that the applicants (the
petitioners in W.P. No. 41342 of 2002) were all continuing in the post of Draftsman Grade-II and II and were all temporarily attending the duties
of a higher post, namely Junior Engineer (now Assistant Engineer) in order to state that they were not appointed to the post of Junior Engineers.
When once the temporary appointment to the post of Junior Engineer came to be made on acquiring the requisite qualifications, the right of the
applicants in that post got crystallised by virtue of G.Os. issued in G.O.Ms. No. 1356, Public Works Department, dated 2.8.1980, G.O.Ms. No.
574, Transport Department, dated 4.5.1982, G.O.Ms. No. 478, Transport Department, dated 23.5.1988 and G.O.Ms. No. 807, Public Works
(HK) Department, dated 24.5.1993. Therefore, the counting of their service was from the date when they were functioning as Junior Engineers,
which functioning was temporary at the inception, which got regularised in the year 1982 itself, i.e. on 4.5.1982 and got further reinforced by
G.O.Ms. No. 478, Transport Department, dated 23.5.1988 and G.O.Ms. No. 807, Public Works (HK) Department dated 24.5.1993. Inasmuch
as the appointment of the applicants (the petitioners in W.P. No. 41342-of 2002) was in accordance with the Rules, the ratio of the Supreme
Court (in V. Sreenivasa Reddy and others Vs. Govt. of Andhara Pradesh and others, that in such cases, it is a pre-condition for counting the
seniority, is fully satisfied. For the very same reasoning, it will have to be held that the temporary appointment of the applicants once regularised
loses its temporary phenomenon and thereby, their right as regular Junior Engineers stood established by virtue of the issuance of the several
Government Orders referred to above and as per the amended Rules. The said decision therefore does not help the case of the petitioners in W.P.
No. 31101 of 2005.
As far as the decision reported in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, is concerned, the Supreme Court dealt
with a case of a Rule 10(a)(i) appointees under Tamil Nadu State and Subordinate Service Rules, whose services came to be subsequently
regularised retrospectively, based on which the seniority came to be determined as against the subsequent regular appointees. In the said decision,
it was an admitted position that the contesting respondents therein were admittedly appointed under Rule 10(a)(i) of the Rules. It is in the above
stated circumstances, it was held that the said appointment cannot be held to be the one covered by Rule 2(1) of the Rules and consequently, their
regularisation from the date of their initial appointment under Rule 10(a)(i) for the purpose of counting the seniority was not in accordance with the
Rules. In the light of the facts involved in the case on hand, we find that the case on hand is distinguishable and therefore, the said decision cannot
also be applied to the facts of this case. Moreover, when we read the judgment of the Supreme Court reported in Ram Chand and Others Vs.
Union of India (UOI) and Others, and the one reported in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, together, we find
that a statutory Rule providing for retrospective regularisation is not prohibited always and that in exceptional circumstances, it is permissible. The
Rule making authority should ensure that exercise of such power does not result in discriminatory treatment or in violation of any Constitutional
right. Therefore, when the creation of a Rule by way of Amendment takes note of such safeguards and was intended to confer certain benefits for
some deserving categories, no fault can be found with such actions. Moreover, the amended Rule providing for retrospective regularisation to the
applicants did not create any fictitious right but was only intended to legitimise the status of the applicants as temporary Assistant Engineers from
the factual date of their functioning, which can never be held as fictitious or not a real one.
For all the above stated reasons, we find that the Tribunal''s order impugned in W.P. No. 41342 of 2002 cannot be sustained. Unfortunately,
the Tribunal has not examined the application of the various Government Orders and the ultimate amendment to the Rules which created a legally
enforceable right and an entitlement for the petitioners in W.P. No. 41342 of 2002 to claim precedence over the petitioners in W.P. No. 31101 of
2005 in the matter of seniority. We therefore set aside the impugned order of the Tribunal in the batch of Original Applications as well as the
impugned communication dated 27.7.1995 before the Tribunal in the batch of the Original Applications, namely in Letter No. 614/HK1/95, Public
Works Department, dated 27.7.1995 and direct the first and second respondents in W.P. No. 41342 of 2002 to determine the seniority of the
petitioners in W.P. No. 41342 of 2002 accordingly.
In view of our order passed in W.P. No. 41342 of 2002, we do not find any scope to interfere with the proceedings challenged in W.P. No.
31101 of 2005, dated 29.4.2004, culminating in the panel of Assistant Divisional Engineers approved in G.O.Ms. No. 169, Highways
Department, dated 19.8.2005. Accordingly, W.P. No. 41342 of 2002 stands allowed and W.P. No. 31101 of 2005 stands dismissed with the
above observations. No costs.