ASSOCIATION OF ENGINEERS AND OTHERS ETC.versusTHE STATE OF TAMIL NADU AND OTHERS ETC.

                 [2024] 5 S.C.R. 545 : 2024 INSC 306

             Association of Engineers and Others Etc.
                                v.
             The State of Tamil Nadu and Others Etc.
                   Civil Appeal No. 4886-4888 of 2023
            (Arising out of SLP (C) No. 17269-17271 of 2022)
                                16 April 2024
                  [B. R. Gavai* and Sandeep Mehta]

                           Issue for Consideration
       Validity of appointing Technical Assistants (forming part of state
       subordinate services) as Assistant Engineers on transfer -
       challenged.

                                  Headnotes
       Tamil Nadu State and Subordinate Service Rules – Civil
       Appeal Nos. 4886 to 4889, 4892 and 5748 to 5750 of 2023
       (‘Batch 1’) – A Government Order (‘GO’) was issued allowing
       appointment of Junior Draughting Officers, Draughting
       Officers, Overseers and Technical Assistants with 5 years
       of service and B.E./A.M.I.E degree, to the post of Assistant
       Engineers, on transfer basis – Challenge before High Court
       upheld – Several posts of Assistant Engineers, earmarked
       for filling on transfer basis remained vacant between 1991
       to 2002 – Therefore State Government appointed Technical
       Assistants to the said post, on temporary basis – This
       executive decision challenged in High Court – Ground – For
       being violative of an earlier order of State Administrative
       Tribunal (‘SAT’) (affirmed by High Court and Supreme
       Court on appeal), which upheld inclusion of Junior
       Draughting Officers and Draughting Officers (but not of
       Technical Assistants) in the direct recruitment process to
       the post of Assistant Engineers pursuant to a government
       advertisement – Single Judge upheld the challenge to the
       above executive decision and directed State Government to
       bring necessary amendments to the Rules – On appeal, the
       Division Bench set aside the decision of Single Judge by
       order dated 03.08.2022, hence the present appeal.

* Author
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       Held: Even if Technical Assistants did not challenge SAT’s order,
       the High Court upheld the validity of GO in totality and appeal
       against the said order of High Court stood dismissed by this
       Court. Judgment in B. Thirumal ((2014) 16 SCC 593) relied on
       by Appellants is distinguishable as Technical Assistants herein do
       not claim right over 75% quota reserved for direct recruitment of
       Assistant Engineer but only seek consideration within 25% quota
       reserved for subordinate services, as long as they possess the
       requisite qualification. Appellants contention to disregard Technical
       Assistants’ candidature for want of their regularisation stood
       negated in light of the GO dated 13.08.2015 which regularised
       them. State Government’s decision of temporarily appointing
       Technical Assistants as Assistant Engineers was a need-based
       decision as large number of posts reserved for recruitment by
       transfer remained unfilled – Appellants cannot be allowed to
       have a right over posts earmarked for recruitment by transfer
       of those belonging to subordinate services – Appeal dismissed.
       [Para 17-23, 25, 27].
       Practice and Procedure – Remand – Civil Appeal Nos. 4372,
       4890, 4891 and 5747 of 2023 (‘Batch 2’) – Individual appeals
       allowed and respective cases remanded to High Court for
       fresh consideration on specific facts of each case.
       Held: On the request of parties – Matter remanded for fresh
       consideration as High Court passed Impugned Orders without
       appreciating parties’ submissions – Impugned Orders set aside;
       Appeals allowed. [Para 30, 31]

                                Case Law Cited
       Narpat Singh and Others v. Jaipur Development Authority and
       Another [2002] 3 SCR 365 : (2002) 4 SCC 666 – relied upon.
       Association of Engineers v. Government of Tamil Nadu and Others
       [2017] 11 SCR 713 : 2017 INSC 906; B. Thirumal v. Ananda
       Sivakumar and Others [2013] 14 SCR 1076 : (2014) 16 SCC
       593 – referred to.

                                  List of Acts
       Constitution of India; Tamil Nadu State and Subordinate Service
       Rule.
[2024] 5 S.C.R.                                                          547

              Association of Engineers and Others Etc. v.
               The State of Tamil Nadu and Others Etc.

                            List of Keywords
     Technical Assistants; Feeder category; Subordinate service;
     Draughting Engineers; Direct recruitment; Appointment by transfer;
     Vacancy filled on temporary basis; Regularization; Executive
     instructions; Filling legislative gaps.

                           Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4886-4888 of
     2023
     From the Judgment and Order dated 03.08.2022 of the High Court
     of Judicature at Madras in WA No. 82 and 95 of 2015 and WP No.
     5251 of 2022
     With
     Civil Appeal No. 4372, 4891-4892, 4889-4890 and 5747-5750 of 2023
                        Appearances for Parties
     Mrs. Madhavi Divan, V. Prakash, Senthil Jagadeesan, Sanjay R.
     Hegde, Sr. Advs., Ms. Preetika Dwivedi, Abhisek Mohanty, Naveen
     Kumar Murthy, N. Subramaniyan, Pranav Sachdeva, Jatin Bhardwaj,
     Ms. Aakriti, Ms. Neha Rathi, Kamal Kishore, Ms. Kajal Giri, K.K.
     Mani, G. Veerapathiran, Ms. T. Archana, Rajeev Gupta, D. Kumanan,
     Sheikh F Kalia, Mrs. Deepa. S, Ms. Beno Deswal, Ms. Sonakshi
     Malhan, Sabarish Subramanian, P. Rajendran, S. Beno Bencigar,
     Parijat Kishore, Advs. for the appearing parties.
                Judgment / Order of the Supreme Court
                                Judgment
     B.R. Gavai, J.
     Civil Appeal Nos. 4886 to 4889, 4892 and 5748 to 5750 of 2023
1.   The present set of appeals challenge the judgment dated 3rd
     August 2022, passed by the Division Bench of the High Court of
     Judicature at Madras (‘Madras High Court’ for short), whereby
     the writ appeals being W.A. Nos. 82 and 95 of 2015 and 5251 of
     2022 filed by the respondents herein were allowed and the order
     dated 23rd December 2014 passed by the learned Single Judge
     of the Madras High Court in Writ Petition No. 11148 of 2017 was
     quashed and set aside.
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2.     The facts giving rise to present appeals are as under:
       2.1 The employees are governed by Tamil Nadu State and
           Subordinate Service Rules and also Special Rules to govern
           different services in the State. The engineering staff comes
           under the Tamil Nadu Engineering Service and Tamil Nadu
           Engineering Subordinate Service.
       2.2 On 2nd January 1990, Public Works Department, Government
           of Tamil Nadu (hereinafter referred to as ‘PWD’) issued an
           order being G.O. Ms. No. 1 (hereinafter referred to as ‘G.O.
           No. 1) accepting the recommendations of Chief Engineer, PWD
           (General) and the Tamil Nadu Public Service Commission
           (hereinafter referred to as ‘TNPSC’) and directed that from the
           date of this order, Junior Draughting Officers, Draughting Officers,
           Overseers and Technical Assistants, who have completed 5
           years of service and acquired B.E./A.M.I.E. qualification, will
           be entitled to be appointed as Assistant Engineers on transfer
           of service.
       2.3 On 22nd January 1991, Government Order being G.O. Ms. No.
           88 of 1991 (hereinafter referred to as “G.O. No. 88”) came
           to be issued wherein it was clarified that TNPSC need not
           be consulted for appointment of Junior Draughting Officers,
           Draughting Officers, Overseers and Technical Assistants, who
           have completed 5 years of service and acquired B.E./A.M.I.E.
           qualification, as Assistant Engineers.
       2.4 Writ Petition No. 3309 of 1991 came to be filed before the
           Madras High Court by Engineering Graduates challenging G.O.
           No.1 on the ground that part-time B.E. Degrees were inferior
           to regular B.E. Degrees. The same were dismissed vide order
           dated 8th March 1991.
       2.5 On 31st May 1994, an advertisement being No. 9/94 was issued
           by the TNPSC for direct recruitment of Assistant Engineers. This
           advertisement was challenged by several Junior Draughting
           Officers, Draughting Officers and Technical Assistants before
           the Tamil Nadu Administrative Tribunal, Chennai (hereinafter
           referred to as the ‘Tribunal) on the ground that their appointment
           should also be considered in the advertised posts in terms of
           abovementioned G.O. Nos. 1 and 88.
[2024] 5 S.C.R.                                                       549

              Association of Engineers and Others Etc. v.
               The State of Tamil Nadu and Others Etc.

     2.6 The Tribunal, vide order dated 17th April 1997, allowed the
         applications filed by Junior Draughting Officers and Draughting
         Officers, however, dismissed the applications filed by Technical
         Assistants. The Tribunal observed that the Technical Assistants
         are not part of feeder category from which recruitment by transfer
         can be made for the post of Assistant Engineers.
     2.7 Thereafter, Association of Engineers, one of the appellants
         herein filed Writ Petition No. 7523 of 1997 before the Madras
         High Court challenging the above finding of the Tribunal qua
         the Junior Draughting Officers and Draughting Officers. The
         Technical Assistants never challenged the dismissal of their
         applications by the Tribunal. The High Court, vide order dated
         6th November 2006, dismissed the said writ petition. In the year
         2009, the said order of the High Court was challenged before
         this Court in Civil Appeal No. 995 of 2009. This Court, vide
         order dated 14th September 2017, dismissed the said appeal.
     2.8 From 1999 till 2002, a total number of 491 vacancies in the
         post of Assistant Engineers were notified to be filled up. Out
         of the same, 369 vacancies were to be filled up by direct
         recruitment and the remaining 122 vacancies were to be filled
         up by recruitment by transfer. Out of the said 122 vacancies
         referable to the feeder categories for appointment by recruitment
         by transfer, 29 vacancies alone had been filled up so far.
     2.9 The State Government, due to dearth of eligible candidates to
         fill the remaining 93 vacancies by transfer, issued directions
         dated 24th February 2006 directing appointment of persons in the
         category of Technical Assistant, who possessed B.E./A.M.I.E.
         qualification in Civil Engineering and have rendered 5 years of
         service on temporary basis.
     2.10 Vide Proceedings No. S2(2)/29148/2004-24 dated 27th February
          2006, 21 Technical Assistants were appointed as Assistant
          Engineers on temporary basis.
     2.11 The Association of Engineers, one of the appellants herein, filed
          writ petition being WP No. 11148 of 2007 before the Madras
          High Court challenging the abovementioned appointment
          order dated 27th February 2006 on the ground that the same
          was violative of the order dated 17th April 1997 passed by the
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            Tribunal in O.A. No. 3348 of 1994 and also the order dated
            6th November 2006 passed by the Madras High Court in WP
            No. 7523 of 1997. Further, the appointments are against the
            statutory rules prescribed.
       2.12 Vide order dated 23rd December 2014, the learned Single
            Judge of the High Court allowed the said writ petition being
            WP No. 11148 of 2007 and restrained the official respondents
            from appointing Technical Assistants as Assistant Engineers by
            recruitment by transfer unless and until the statutory rules were
            amended making Technical Assistants as feeder category. The
            services of respondents herein were to be continued for a period
            of 3 months and in case the rules are amended by inclusion of
            Technical Assistants as feeder category within three months,
            they would not suffer reversion. However, if the rules are not
            amended, then they will be reverted to their original post.
       2.13 In 2016, the unemployed engineering graduates had filed a writ
            petition being WP No. 36614 of 2016 before the Madras High
            Court challenging the validity of G.O. No. 1. The matter is still
            pending adjudication.
       2.14 Being aggrieved by the order of the learned Single Judge dated
            23rd December 2014, writ appeals being W.A. Nos. 82 and 95
            of 2015 were filed before the learned Division Bench of the
            Madras High Court by the respondents herein. The learned
            Division Bench of the Madras High Court, vide impugned
            judgment dated 3rd August 2022, quashed and set aside the
            order of the learned Single Judge and allowed the writ appeals
            filed by the respondents herein.
       2.15 Aggrieved thereby, the present set of appeals came to be filed.
3.     We have heard Smt. Madhavi Divan, learned Senior Counsel, Shri N.
       Subramaniyan and Shri Pranav Sachdeva, learned counsel appearing
       on behalf of the appellants. We have also heard Shri V. Prakash
       and Shri Senthil Jagadeesan, learned Senior Counsel, and Shri P.
       Rajendran, learned counsel appearing on behalf of the respondents.
       We have also heard Shri Sanjay Hegde, learned Senior Counsel
       appearing on behalf of the State of Tamil Nadu.
4.     Smt. Madhavi Divan, learned Senior Counsel appearing on behalf
       of the appellants submitted that in the absence of amendment to
[2024] 5 S.C.R.                                                           551

              Association of Engineers and Others Etc. v.
               The State of Tamil Nadu and Others Etc.

     the Rules, Technical Assistants cannot be permitted to be in the
     feeder cadre for promotion to the post of Assistant Engineers. She
     submitted that, in spite of several chances, the State has failed to
     carry out amendment to the Rules and in the absence of Rules, they
     are not entitled to be promoted to the post of Assistant Engineers.
     Smt. Divan, relying on Section 10 of the Tamil Nadu Engineering
     Services submitted that the entry into the Assistant Engineers’ Cadre,
     is either by direct recruitment or recruitment by transfer from Junior
     Engineers, Overseers, Special Grade Draughting Officers or Civil
     Draughtsmen of Tamil Nadu Engineering Subordinate Service. It is
     submitted that the appointment to the post of Technical Assistants
     has been provided under G.O. MS. No. 1972 dated 18th November
     1985. The said G.O. provided that the general and special rules
     applicable to the holders of the permanent posts in the Tamil
     Nadu Engineering Subordinate Service shall apply to the holders
     of the temporary posts of Technical Assistants Civil, Electrical
     and Mechanical. However, that was subject to the modifications
     specified therein. The appointing authority to the said posts was
     the Superintending Engineer of PWD.
5.   Smt. Divan submitted that by G.O. MS. No. 1356 dated 2nd August
     1980, the State provided for appointment to the post of Junior
     Engineers (now Assistant Engineers) from the cadre of Draughtsman
     Grade III, Overseers and Technical Assistants, who, on acquiring
     degree qualification in Engineering have rendered 5 years of service
     as Draughtsmen, Overseers, Technical Assistants.
6.   Smt. Divan submitted that the appointment of Technical Assistants
     as Assistant Engineers is totally illegal, violative of Right to Equality
     under Article 14 of the Constitution of India and also violative of
     Article 335 of the Constitution of India which mandates efficiency in
     public administration. It is further submitted that the entry of Assistant
     Engineers is through competitive examination on the basis of merit
     whereas the entry of Technical Assistants is through a backdoor
     entry i.e. appointment by the Superintending Engineer. It is therefore
     submitted that, permitting the Technical Assistants to march ahead
     of the Assistant Engineers would, apart from being anti-meritian,
     would also promote the persons who have entered through backdoor.
7.   Smt. Divan further submitted that the temporary appointments
     of Technical Assistants have neither been regularized nor has
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       their probation commenced. It is therefore submitted that without
       regularization and declaration of probation in the category of Assistant
       Engineers as mandated by Rule 7 of Special Rules to Tamil Nadu
       Engineering Service, they cannot be made as Assistant Engineers.
8.     Reliance is placed on the judgment of this Court in the case of Direct
       Recruit Class II Engineering Officers’ Association v. State of
       Maharashtra and Others1 in support of the proposition that unless
       the appointment is in accordance with the rules, the same is not
       valid. Reliance is also placed on the judgment of this Court in the
       case of A.K. Bhatnagar and Others v. Union of India and Others2
       contending that this Court has categorically rejected the argument to
       consider the appointment of ad-hoc appointees without regularization.
9.     Shri N. Subramaniyan, learned counsel appearing on behalf of the
       appellants supplemented the arguments advanced by Smt. Divan.
       He submitted that sub-rule (1) of Rule 2 of Tamil Nadu State and
       Subordinate Services Rules postulates that a person is said to be
       ‘appointed to a service’ when in accordance with the said Rules or in
       accordance with the Rules applicable at the time, 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. It is submitted that the Technical Assistants neither
       commenced their duties on the posts borne on the cadre of such
       service nor commenced their probation. He further submitted that,
       in accordance with Rule 4 of the said Rules, all appointments to a
       service whether by direct recruitment or by recruitment by transfer
       or by promotion, can be made by the appointing authority from a
       list of approved candidates. It is submitted that, since the Technical
       Assistants are not approved candidates, they cannot be appointed
       to the post of Assistant Engineers. He further submitted that the
       temporary appointments in accordance with Rule 10 of the said
       Rules could be made only for a temporary period only when there
       is likelihood of delay in making the appointments in accordance with
       the said Rules. He further submitted that, in accordance with Rule
       36A of the said Rules, the appointments by recruitment by transfer
       can be made only on the ground of merit and ability, seniority being


1    [1990] 2 SCR 900 :(1990) 2 SCC 715 : 1990 INSC 169
2    [1990] Supp. 2 SCR 638 : (1991) 1 SCC 544 : 1990 INSC 344
[2024] 5 S.C.R.                                                       553

                   Association of Engineers and Others Etc. v.
                    The State of Tamil Nadu and Others Etc.

     considered only where merit and ability are approximately equal.
     He submitted that, amendment to Rule 4A specifically prohibits
     promotion or appointment on the basis of executive orders seeking
     to modify the Rules. He therefore submitted that, on several grounds,
     the appointments of Technical Assistants are liable to be set aside.
10. It is further submitted that the appointments so made are contrary
    to the judgment of this Court in the case of B. Thirumal v. Ananda
    Sivakumar and Others3.
11. Per contra, Shri V. Prakash, learned Senior Counsel appearing on
    behalf of the respondents submitted that a perusal of G.O. Ms. No.
    3037 dated 22nd December 1986 issued by the PWD would reveal
    that the pay-scales of Overseers and Technical Assistants are the
    same. It is submitted that the said G.O. Ms. No. 3037 specifically
    provides that 75% of the vacancies in the post of Junior Engineer
    (formerly Supervisor) shall be filled up by Engineering degree holders
    while remaining 25% vacancies shall be filled up by the candidates
    possessing Engineering Diploma or equivalent certificates. It further
    provides for promotion from Overseers, Head Draughtsman and Civil
    Draughtsman (Grad I, II and III). It is submitted that, though the pay-
    scales of the Overseers are same as that of Technical Assistants and
    that of Draughtsman Grade III, inadvertently, the cadre of Technical
    Assistants was not mentioned therein. It is submitted that, in order to
    rectify this omission, the G.O. No. 1 came to be issued. It provided
    that, Junior Draughting Officers, Draughting Officers, Overseers and
    Technical Assistants in PWD, who have put in five years service
    would be eligible to be appointed as Assistant Engineers on transfer
    of service on acquiring B.E./A.M.I.E. qualification. Shri Prakash
    submitted that challenge to the said G.O. No. 1 was negatived by
    the Madras High Court vide order dated 8th March 1991 in Writ
    Petition No. 3309 of 1991 in the case of R. Murali and Others v.
    The State of Tamil Nadu and Another4. The High Court held that
    the executive instructions can be issued to fill up the gap till rules
    are framed under Article 309 of the Constitution of India.
12. Shri Prakash further submitted that, out of 36 Technical Assistants
    promoted as Assistant Engineers in the years 2006 and 2008, only a


3   [2013] 14 SCR 1076 : (2014) 16 SCC 593 : 2013 INSC 787
4   Order dated 8th March 1991 in Writ Petition No. 3309 of 1991
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       few would be remaining in service as most of them have been retired
       or would be retiring in near future. He therefore submitted that this
       is a fit case wherein this Court should not exercise its jurisdiction
       under Article 136 of the Constitution of India.
13. Shri Senthil Jagadeesan, learned Senior Counsel appearing on behalf
    of the respondents, relying on the judgment of this Court in the case
    of Sant Ram Sharma v. State of Rajasthan and Others5, submitted
    that where the rules are silent, the said gap can be filled up by the
    executive instructions. He further relies on the order of the Division
    Bench of the Madras High Court dated 6th November 2006 in Writ
    Petition No. 7523 of 1997 in the case of Association of Engineers’
    v. The Tamil Nadu Administrative Tribunal and Others6.
14. We find that, on account of various facts as emerging from the
    record, it will not be necessary for us to go into the wider issues as
    canvassed by the parties.
15. G.O. No. 1 which includes Technical Assistants for being appointed
    as the Assistant Engineers on transfer of service on acquiring
    B.E./A.M.I.E. qualification, came to be challenged by Engineering
    Graduates who had obtained the degree by joining regular courses,
    before the High Court of Judicature at Madras. The same was
    negatived by the Madras High Court by order dated 8th March 1991.
    It is further pertinent to note that the Association of Engineers, who
    is one of the lead appellants herein, had filed a petition challenging
    the order dated 17th April 1997 passed by the Tribunal in O.A. No.
    3348 of 1994.
16. The said O.A No. 3348 of 1994 was filed challenging the Advertisement
    No.9/94 issued by the TNPSC for the post of Assistant Engineer
    and for consequentially considering the claim of Junior Draughting
    Officers, Draughting Officers and Technical Assistants for appointment
    as Assistant Engineers on the basis of G.O. Ms. Nos. 1 of 1990 and
    88 of 1991. The Tribunal, vide order dated 17th April 1997, allowed the
    applications filed by the Junior Draughting Officers and Draughting
    Officers, however, dismissed the applications filed by Technical
    Assistants. The Tribunal observed that the Technical Assistants



5   [1968] 1 SCR 111 : 1967 SCC OnLine SC 16 : 1967 INSC 167
6   Order dated 6th November 2006 in Writ Petition No. 7523 of 1997
[2024] 5 S.C.R.                                                          555

              Association of Engineers and Others Etc. v.
               The State of Tamil Nadu and Others Etc.

     are not part of feeder category from which recruitment by transfer
     can be made for the post of Assistant Engineers. The order of the
     learned Tribunal was challenged by the appellants herein by filing a
     writ petition being Writ Petition No. 7523 of 1997 titled Association
     of Engineers’ v. The Tamil Nadu Administrative Tribunal and
     Others (supra) before the Madras High Court. The Division Bench
     of the said High Court rejected the claim of the appellants herein
     and upheld the order of the Tribunal. It will be relevant to refer to
     para (13) of the said order, which reads thus:
           “13. It is also brought to our notice that the Special Rules
           were amended by G.O.Ms.No.1745 dated 10.10.1972,
           which were subsequently modified by G.O.Ms.No.1356
           dated 02.08.1980 and on the basis of representation, the
           Government reconsidered those executive orders and
           issued G.O.Ms.No.1 PWD dated 02.01.1990, stating
           that with effect from the date of the said order, Junior
           Drafting Officer, Drafting Officer, Overseers and
           Technical Assistants, who have put in five years of
           service will be eligible to be appointed as Assistant
           Engineers by transfer of service on acquiring B.E./
           A.M.E.E. degree qualification. We are satisfied that
           Rule 5 of the Special Rules in no way affects the
           implementation of the decision of the Tribunal in view
           of Rule 2(a)(5) of the Special Rules. As observed earlier,
           it is our duty to mention that in order to implement the
           orders passed in G.O.Ms.No.1 PWD dated 02.01.1990,
           the Government have conducted meeting with various
           Engineering Associations, including the petitioner
           Association on 10.12.1996 and 03.06.1997 and took
           a decision to maintain 3:1 ratio between the direct
           recruitment and recruitment by transfer. As rightly
           pointed out, members of the petitioner Association are
           being considered for the number of vacancies apportioned
           as per the ratio out of total estimated vacancies. We
           have already referred to the order of this Court dated
           08.03.1991 in W.P.No.3309 of 1991, upholding the
           G.O.Ms.No.1 PWD dated 02.01.1990. It is also not in
           dispute that executive instructions can be issued to fill
           up the gap till necessary Rules are framed under Article
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            309 of the Constitution. All these and other materials have
            been correctly considered by the Tribunal; and we are in
            agreement with the conclusion arrived at by it.”
17. It can thus clearly be seen that the Division Bench of the Madras
    High Court held that G.O. No. 1 provided that from the date of the
    said order, Junior Drafting Officer, Drafting Officer, Overseers and
    Technical Assistants, who have put in five years of service will be
    eligible to be appointed as Assistant Engineers by transfer of service
    on acquiring B.E./A.M.I.E. degree qualification.
18. It is sought to be urged that, before the Tribunal, the Technical
    Assistants had failed and that they had not challenged the said
    order of the Tribunal.
19. However, we find that the Division Bench of the Madras High Court
    clearly referred to G.O. No. 1 and approved it. It is further to be noted
    that the appeal challenging the aforesaid order of the Madras High
    Court dated 6th November 2006 has also been dismissed by this Court
    vide order dated 14th September 2017 in the case of Association
    of Engineers v. Government of Tamil Nadu and Others7.
20. Insofar as the issue in the case of B. Thirumal (supra) is concerned,
    the same would not be applicable to the facts of the present case.
    In the said case, the appellant was working as a Junior Engineer
    (Electrical). He was appointed to the said post by direct recruitment.
    Aggrieved by the prevalent practice of Assistant Engineers (Electrical)
    being empanelled for promotion to the post of Assistant Executive
    Engineer (Electrical) only against 25% quota apportioned for members
    of the Subordinate Engineering Service, he had filed a representation.
    The said representation came to be rejected. It was sought to be
    contended in the said case that an Assistant Engineer promoted from
    Junior Engineer cadre and having obtained a degree in engineering
    was also entitled to compete with the Assistant Engineers directly
    recruited for 75% of the quota earmarked for the direct recruits.
    The Court found that the degree holder Junior Engineers continue
    to be members of the Subordinate Engineering Service even after
    they are redesignated as Assistant Engineers upon getting a degree
    qualification. Upon their getting degree qualification, they could


7   [2017] 11 SCR 713 : 2017 INSC 906
[2024] 5 S.C.R.                                                          557

              Association of Engineers and Others Etc. v.
               The State of Tamil Nadu and Others Etc.

     be considered only against the 25% quota apportioned for the
     Subordinate Service and not against 75% apportioned for the State
     Service members directly recruited to that service or appointed by
     transfer in terms of the Rules.
21. Such is not the situation here. The Technical Assistants are not
    claiming against the 75% posts available for direct recruits. Their
    claim is only towards 25% posts which are required to be filled in
    from Junior Draughting Officers, Overseers and Technical Assistants
    who have put five years service and have acquired B.E./A.M.I.E.
    qualification. It is thus clear that the Technical Assistants are, in no
    way, encroaching upon the quota apportioned for directly recruited
    Assistant Engineers. Even if their contention is accepted that once
    they are brought in the cadre of Assistant Engineers, they would
    lose their birthmark, in view of the judgment of this Court in the
    case of B. Thirumal (supra), for the higher post, and there will be
    no competition amongst direct recruits and promotees. Whereas the
    direct recruits would be entitled to get promotional posts from 75%
    quota apportioned for them, the Technical Assistants along with other
    placed amongst them would be entitled to promotional posts only
    from 25% posts apportioned for them.
22. It is further to be noted that the contention of the appellants that,
    the services of the Technical Assistants are not regularized, is also
    contrary to record. It will be relevant to refer to Clause 4 of G.O.
    Ms. No. 155 dated 13th August 2015, issued by the Government of
    Tamil Nadu, which reads thus:
           “4. In accordance with the powers delegated under the
           general rule 48 of the Tamil Nadu State and Subordinate
           Services Rules Volume II, the Governor of Tamil Nadu
           orders relaxing the rule 2(a) and rule (5) of the Tamil Nadu
           Engineering Service (Category-1, Public Works) the so as
           to regularize the 72 Assistant Engineers (Civil) as per the
           Annexure of this order who were appointed retrospectively
           from the category of Junior Engineers and promoted from
           the category of Technical Assistants who acquired B.E.,
           Civil Degree before promotion as Junior Engineers so
           as to enable them for regularization of the services in
           the category of Assistant Engineers (Civil). Further, the
           Government also order exempting them from the purview
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          of the G.O.(Ms).No. 1, Public Works Department dated
          02.01.1990 for regularization of the personnel stated in
          the Annexure to this order.”
23. It is thus clear that the contention of the appellants that the services
    of the Technical Assistants have not been regularized is contrary
    to record. In any case, the State Government, in its affidavit dated
    10th March 2023, has categorically reaffirmed this position.
24. It is further relevant to note the relevant extract from the Proceedings
    No. S2(2)/2918/2004-24 dated 27th February 2006 conducted before
    the Engineer-in-Chief, W.R.D and Chief Engineer (General), PWD,
    which reads thus:
          “During the year from 1999-2000 to 2001-2002 the number
          of 369 vacancies have been apportioned to the post of
          Assistant Engineer to be filled up by direct recruitment
          and the number of 122 vacancies have been apportioned
          to the post Asst. Engineer to be filled up by recruitment
          by transfer.
          Out of 122 vacancies apportioned to the post of Assistant
          Engineer to be filled up by recruitment by transfer, only
          29 vacancies have been filled up so far, from the Junior
          Draughting Officers, Draughting Officers and Overseers.
          The remaining number of 93 vacancies are still vacant
          due to dearth of eligible candidates.
          Under these circumstances and also pursuant to the
          directions of the Government, PWD issued in the letter
          fourth cited the personnels in the category of Technical
          Assistant, who possessed B.E/A.M.I.E qualification in civil
          Engineering and rendered 5 years of service, furnished to
          this proceedings are appointed as Asst. Engineer(civil) in
          the time scale of pay of Rs.65-00-200-11, 100 on temporary
          basis under rule 10(a)(i) of the General Rules for the
          Tamil Nadu State and Subordinate Service, subject to the
          outcome of W.P.No.7523/97 pending in the High Court of
          Madras in this matter.”
25. It can thus clearly be seen that the State Government was required
    to take a decision to appoint Technical Assistants as Assistant
[2024] 5 S.C.R.                                                          559

                  Association of Engineers and Others Etc. v.
                   The State of Tamil Nadu and Others Etc.

     Engineers on temporary basis as it was found that out of 122
     vacancies apportioned to the post of Assistant Engineer to be filled
     up by recruitment by transfer, only 29 vacancies had been filled so
     far. It appears that the attempt of the appellant association is to grab
     all the posts available even those apportioned for the candidates
     promoted from subordinate services. In our view, the said attitude
     is totally unequitable.
26. In any case, any interference at this stage is likely to undo the settled
    position which has been prevalent almost for a period of last 18 years.
    As already held hereinabove, the continuation of the appellants as
    Assistant Engineers would not amount to encroaching upon the 75%
    posts apportioned for the members of the appellants’ association.
    We may gainfully refer to the following observations of this Court
    in the case of Narpat Singh and Others v. Jaipur Development
    Authority and Another8:
            “10. ….The exercise of jurisdiction conferred by Article
            136 of the Constitution on this Court is discretionary. It
            does not confer a right to appeal on a party to litigation;
            it only confers a discretionary power of widest amplitude
            on this Court to be exercised for satisfying the demands
            of justice. On one hand, it is an exceptional power to be
            exercised sparingly, with caution and care and to remedy
            extraordinary situations or situations occasioning gross
            failure of justice; on the other hand, it is an overriding
            power whereunder the Court may generously step in
            to impart justice and remedy injustice. The facts and
            circumstances of this case as have already been set out
            do not inspire the conscience of this Court to act in the
            aid of the appellants. …..”
27. Following the aforesaid, we find that equity demands no interference to
    be warranted in the impugned judgment in the facts and circumstances
    of the case.
28. In the result, the appeals are dismissed.
29. Pending application(s), if any, shall stand disposed of.



8   [2002] 3 SCR 365 : (2002) 4 SCC 666 : 2002 INSC 222
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       Civil Appeal Nos. 4372, 4890, 4891 and 5747 of 2023
30. Learned counsel for the parties agree that the writ petitions being
    WP No. 3617 of 2017 and 35161 of 2019 filed before the Madras
    High Court were decided by it without even adverting to the facts
    and the rival submissions and they therefore made a request for
    remanding the matter to the High Court for consideration afresh.
31. In the result, the appeals are allowed. The impugned orders dated 3rd
    August 2022 in WP No. 3617 of 2017 and dated 17th March 2022 in
    WP No. 35161 of 2019 are quashed and set aside and the matters
    are remanded back to the Madras High Court for consideration afresh
    in accordance with law.
32. Pending application(s), if any, shall stand disposed of. No costs.



       Headnotes prepared by:                                     Result of the case:
       Niti Richhariya,                        Civil Appeal Nos. 4886 to 4889, 4892
       Hony. Associate Editor                  and 5748 to 5750 of 2023 dismissed.
       (Verified by: Balbir Singh, Sr. Adv.)     Civil Appeal Nos. 4372, 4890, 4891
                                                          and 5747 of 2023 allowed.