A. MAHUDESWARAN AND ORS.versusGOVERNMENT OF TAMIL NADU AND ORS.

                                                                                          {


A                      A. MAHUDESWARAN AND ORS.
                                          v.
                GOVERNMENT OF TAMIL NADU AND ORS.

                                 MARCH 12, 1996

B             K. RAMASWAMY AND K. VENKATASWAMI, JJ.]

          Tamil Nadu State and Subordinate Service Rules: Rule lO(a)(i) and
    23.

c OfficeT"-Section
        Service Law-Regularisation-Seniority-Abolition of post of Village
                   writers assisting the Village Officei-Given Training and
    appoi11ted against regular pay scales as Surveyor-Cum-Draftman with effect
    from date of their joining duty-Subsequently Government relaxed the age
    qualification of some of them and appointed them in the Tamil Nadu Survey
    and Settlement Subordinate Seivice with effect from the date on which the
D   Regular pay scales were given to them-Some of them also
    promoted-Govemment clarification for their regularisation-Pursuant there-
    to their services regularised either as Field Surveyor or Draftsman from the
    date of their respective promotio1r-Representation made by respon-
    dents-Second clarification issued by Government to regularise the services
E   in altemative vacancies-Consequelltly appellants became junionnost--<:hal-
    lenge before Tribunal which directed regularisation of services in altemative
    vacancies-Appeal against order of Tribunal-Held principle of regularisation
    adopted by the Government was fair and consistent with Rules JO(a}(i) and
    23 of the Tamil Nadu State & Subordinate Service Rules-Subsequellt direc-
    tion to regularise the services of the persons in the rotational altemative
F   vacancies was not valid.

          Doctrine of legitimate expectatiol't--Must be consistent with operation
    of statutory mlc1'-Regulation of legitimate expectation cannot be indis-
    criminately projected but requires consideration in the setting and scenario of
G   factual backdrop.

          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5139-61
    ~~~~                                                                              0
          From the Judgment and Order dated 27.10.93 of the Tamil Nadu
H   State Administrative Tribunal, Madras in 0.A. Nos. 4051-54, 4025-29, 4031,
                                      312
                     A. MAHUDESWARANv. GOVT. OF T.N.                        313

     4032, 4034, 4355-56, 4040, 4035, 4037-38, 4046, 4048-50 and 4179 of 1992.     A
-·         S. Sivasubramaniam, R. Mohan, V.G. Pragasam and R. Nedumaran
     for the Appellants.

          A. Mariarputham, Ms. Aruna Mathur and Ambrish Kumar for the
     Respondents.                                                                  B
           The followings order of the Court was delivered :

           Delay condoned.

           We have heard learned counsel for the parties.                          c
           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    D
     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 fll<ed pay. On completing the training of three months prescribed by the
     Government, they. were appointed as Surveyors. The appointment as Sur-        E
     veyors was to take effect from the daie 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    F
     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    G
     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 Govern-        H
                                                                                    {
    314                  SUPREME COURT REPORTS                   [1996) 3 S.C.R.

A ment in their clarificatory letter dated August 29, 1990 stated that the
    procedure of seeking their option and treating them as separate units and
    regularising 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 regularise their services either as Field Surveyor or Draftsman
B   and keep them with effect from the date of their respective promotions
    given subsequently.

          In furtherance of that clarification the regularisation of the services
    of the appellants came to be made by the Assistant Directors.
c
           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 regularise the services of the respondents. Consequent-
D   ly, the appellants became junior-most. They challenged the orders in the
    Tribunal in a number of mattiC.s and the Tribunal by its common order
    dated October 27, 1993 disposed of all the cases directing regularisation of
    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
E   upon the number of posts available in each unit. The regularisation 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
F appearing for the appellants, contended that the Government having
  regularised their service in the Survey Department and directed to appcint
  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 regularisation of the services of the appellant and given promotion to
  the higher posts, the Government have rightly regularised the services of
G the appellants. There is no illegality in the process of regularisation made
  by the Assistant Director, Salem. Subsequent order directing re-regularisa-
  tion 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 regularised could be set at naught nor was any opportunity
H of representation before unsettling the regularisation given.
                 A. MAHUDESWARANv. GOVT. OFT.N.                           315

       Shri Ambrish Kumar, learned counsel appearing for the contesting A
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 regularising any of the
appellants in the Survey Department would cause undue hardship to the B
contesting respondents and that, therefore, the Tribunal was right in giving
direction to regularise 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 respon-
dents.                                                                          C
       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, regularisation of the services of the candidates
in the manner intended by the Government would be more equitable and             D
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 post 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.
                                                                                 E
        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 com-
 mitted any illegality or violated the orders of the regularisation issued by
the State Government in the respective Government orders. We have been           F
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 utilised in the Survey and Settlement Depart-
ment. They were appointed on regular basis by way of relaxation of the
statutory Rules of recruitment in the Department. It also indicates that they    G
would be appointed with effect from the date on which they were discharg-
ing their duties. In other words, the principle adopted by the Government
is fair and consistent with Rules lO(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 regularisation of the services is consistent with the General Rules,         H
    316                   SUPREME COURT REPORTS                    [1996] 3 S.C.R.

A 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 Draftsman and Surveyors.
  It is seen that each one is independent of the other. The Survey Depart-
B ment consists of Surveyors, Field Surveyors, Firka Surveyors, Sub-Inspec-
  tor, 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


c
  (Technical), Assistant Director (Maps) and Assistant Directors (Draw-
  ings). 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
  Surveyors with the Draftsmen. It would thus be seen that the regularisation
  of the Services of the appellants is consistent with the General Rules and
  also with the Scheme in Special Rules. The direction, therefore, to
D regularise 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 con-
    sistent with the operation of the statutory rules, orders or Act. For instance,
    promotion on the basis of merit and ability enables a more meritorious
E   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 sprit of
    competence and zeal to improve excellence. Regulation of legitimate ex-
F   pectation can not be indiscriminately projected but requires consideration
    in the setting and scenario of factual backdrop. Though a wrong principle
    of regularisation by rotation generates expectation of regularisation, 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
G   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, m the circumstances,
     without costs.

     T.N.A.                                                      Appeals allowed.