(Prayers: W.P. No.39530 of 2024 filed under Article 226 of the Constitution of India praying this Court to issue a writ of certiorarified mandamus calling for the records relating to the order in G.O. Ms. No.204 dated 14.11.2024 of the 1st respondent, Memo No.PT3/18910/2024 dated 13.12.2024 of the 2nd respondent and Memo No.PT3/10319/2024 dated 13.12.2024 of the 2nd respondent herein, quash the same and consequently direct the respondents 1 to 3 herein to promote the petitioners to the post of Assistant Engineers by drawing an inter se seniority list including the category of surveyors for promotion to the post of Assistant Engineers/Junior Engineers.

W.P. Nos.960, 966 & 2709 of 2025 filed under Article 226 of the Constitution of India praying this Court to issue a writ of certiorarified mandamus calling for the records pertaining to the provisional seniority list in Memo No.PT3/18910/2024 dated 27.12.2024 on the file of the 2nd respondent and quash the same and consequently direct the 2nd respondent to include the petitioners in the provisional seniority list for the position of Assistant Engineer/Junior Engineer under ‘other categories’ as existed prior to the date of amendment.)

Common Order

1. Aggrieved by the retrospectivity given to the amendment made to the Tamil Nadu Housing Board Service Regulations, more particularly in the State Housing Board Engineering Officer’s Service vide G.O. (Ms.) No.204, Housing & Urban Development (HBI (1)) Dept., dated 14.11.2024, in and by which the feeder category of Surveyors were excluded from being considered for the next higher post of Assistant Engineer/Junior Engineer and the consequential provisional list having been prepared excluding the Surveyors from being considered for promotion to the next higher post of Assistant Engineer/Junior Engineer, the present petitions have been filed by the petitioners.

2. W.M.P. Nos.42811/2024 and 3053/2025 have been filed to permit the petitioners therein to join together and file a single writ petition. Considering the averments and also the reasons adduced to file a single writ petition and being satisfied with the same, the aforesaid petitions are allowed subject to the petitioners paying separate court fee, if not already paid. However, if the petitioners fail to pay separate court fee, the order passed hereunder would enure only to the benefit of the first petitioner.

3. It is the case of the petitioners that they are employed as Surveyors under the 2nd respondent. As per the Tamil Nadu Housing Board Regulations (for short ‘the Regulation’), which stood then, the next avenue of promotion to the petitioners is as Assistant Engineer/Junior Engineer and the Regulation provides for two modes of selection, viz., (i) direct recruitment and (ii) by way of promotion/transfer of service. As far as Assistant Engineer is concerned, the recruitment is by way of promotion, wherein the Regulation states “promotion from other categories of service with the qualification prescribed for direct recruitment”. For direct recruitment, the requisite qualification is possession of degree in Engineering of any University recognized by the State Government for the purpose of any other equivalent qualification. It is the averment of the petitioners that a combined reading of the aforesaid provisions would make it clear that those who have a degree in engineering are eligible/entitled for consideration for promotion to the post of Assistant Engineer/Junior Engineer by way of transfer of service.

4. It is the further averment of the petitioners that the Tamil Nadu Housing Board/2nd respondent (for short ‘the Board’) issued a provisional seniority list of surveyors for the panel year 2022-2023 for promotion to the post of Head Surveyor vide proceedings dated 23.12.2022. The petitioners, who were qualified for consideration to the higher feeder post of Assistant Engineer/Junior Engineer, filed their objections pointing out their eligibility for consideration to the higher promotional post of Assistant Engineer/Junior Engineer as per the Regulations and also expressed their willingness for the said post.

5. It is the further averment of the petitioners that without considering the said objections, the Board issued a final list for the post of Head Surveyor, more particularly pointing out that no objections had been received. It is the further averment of the petitioners that the Board while withdrew the earlier list published on 18.3.2022, published a fresh list excluding the surveyors from consideration for promotion to the post of Assistant Engineer/Junior Engineer and considered only the Technical Assistants.

6. It is the further averment of the petitioners that the exclusion of surveyors from promotion is arbitrary, discriminatory and a clear violation of the Regulations and the Conditions of Service Act, 2016. It is the further averment of the petitioners that the post of surveyor carries a higher pay than that of the Junior Draughting Officer and Technical Assistant and for the purpose of recruitment as surveyor, a separate exam has to be undergone and persons who were selected as Junior Draughting Officer and Technical Assistant did not meet the minimum cut-off marks required for the position of surveyor.

7. It is the further averment of the petitioners that Tamil Nadu Slum Clearance Board, which also comes under the Housing and Urban Development Department, considers Surveyors for promotion to the post of Assistant Engineer/Junior Engineer, but there is exclusion of surveyors by the Board, which act is arbitrary and perverse and against the established and settled legal principles.

8. It is the further averment of the petitioners that inspite of the representation given by them, the same was not considered by the Board. It is their further averment that they are not opposing the consideration of the Junior Draughting Officers and Technical Assistants for the post of Assistant Engineer/Junior Engineer but only seek inclusion of surveyors in the light of the Regulations, which stood then.

9. It is the further averment of the petitioners that any amendment to the Rules/Regulations would operate only prospectively and it cannot have any retrospective operation. Such being the admitted legal position and the ratio laid down by the Courts relating to amendment to the Rules/Regulations, the amendment made vide the impugned Government Order cannot have retrospective operation and, therefore, the said amendment would not disentitle the petitioners to be considered for the post of Assistant Engineer/Junior Engineer.

10. It is the further averment of the petitioners that the impugned amendment was notified in the official gazette on 14.11.2024 and in the light of the said amendment, the 2nd respondent prepared roster list of persons eligible for promotion as Head Surveyors vide memo dated 13.12.2024 in which there is a categorical specification that surveyors will not be considered for promotion to the post of Assistant Engineer/Junior Engineer in view of the said amendment. Further, on the very same day, the provisional seniority list of Technical Assistant for creation of panel for the year 2024-2025 to the post of Assistant Engineer/Junior Engineer has been prepared thus denying the right of the petitioners to be promoted to the post of Assistant Engineer/Junior Engineer inspite of the objections raised by the petitioners. Therefore, left with no other alternative, the present writ petitions have been filed.

11. Learned counsel appearing for the respective petitioners submits that the impugned order passed is highly arbitrary and discriminatory and it is in clear violation of principles of natural justice.

12. It is the further submission of the learned counsel that when the Regulations provide for promotion of the petitioners as Assistant Engineer/Junior Engineer from the feeder post of Surveyor, more particularly on the date when the list was drawn, in the absence of any Regulations to the contra, the petitioners are entitled for being considered for promotion and inclusion of their names in the provisional list. However, the names of the petitioners have not been considered for inclusion in the provisional seniority list, but only the persons holding the post of Junior Draughting Officer and Technical Assistants have been considered and they have been included in the provisional seniority list.

13. It is the further submission of the learned counsel that the petitioners, who hold the post of Surveyor, are in a higher pay band and receiving higher emoluments and they, along with persons holding the post of Junior Draughting Officer and Technical Assistants are entitled for being considered for the post of Assistant Engineer/Junior Engineer. However, to the detriment of the petitioners, who are in the post of surveyors, they have not been considered while only the persons holding the post of Junior Draughting Officers and Technical Assistants have been considered which is arbitrary and perverse in the absence of any Regulations.

14. It is the further submission of the learned counsel that any amendment made to the Regulations would only have prospective effect and retrospective effect cannot be given to any amendment to the Regulations as it would be against the ratio laid down by the Courts in a catena of decisions, as it would affect the service conditions of persons, who are aspiring for promotion. The rejection for inclusion of the petitioners’ name in the provisional selection list on the ground that they hold the post of surveyor is prior to the present amendment, which amendment cannot be pressed into service in the case of the petitioners as the said amendment would only operate prospectively and the petitioners having been eligible, but their case has not been included in the provisional selection list is against the Regulation that was in operation on the crucial date and, therefore, the impugned Government order and the consequential orders deserve to be set aside.

15. Per contra, learned Addl. Advocate General appearing for the Board submitted that panel for the year 2021-2022 was drawn on 18.3.2022, however, the said provisional seniority list of Surveyor, Technical Assistant and Junior Draughting Officer issued on 18.3.2022 was withdrawn by the competent authority on 20.01.2023 and based on the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, the Board had prepared fresh provisional seniority list for promotion from the post of Technical Assistant to Assistant Engineer for the panel year 2022-2023 vide Memo No.PT3/1010/2023 dated 20.02.2023.

16. It is the further submission of the learned Addl. Advocate General that the aforesaid provisional seniority list dated 20.02.2023 was challenged before this Court and based on the directions issued by this Court, amendment of educational qualification and method of recruitment for the post of Assistant Engineer was sought for and, accordingly, the impugned G.O. (Ms.) No.204, Housing & Urban Development Department dated 14.11.2024 was issued amending the qualification for the post of Assistant Engineer.

17. It is the further submission of the learned Addl. Advocate General that based on the amendment, Technical Assistant alone were shown as feeder category for promotion to the post of Assistant Engineer/Junior Engineer and the Surveyor were entitled for promotion only to the post of Head Surveyor for the year 2024-2025 and based on the same, the relevant provisional seniority list for both the posts were drawn.

18. It is the further submission of the learned Addl. Advocate General that vide the amendment dated 14.11.2024, the educational qualification for the post of Assistant Engineer with further stipulation that Technical Assistants alone are the feeder category for promotion to the post of Assistant Engineer/Junior Engineer.

19. It is the further submission of the learned Addl. Advocate General that only to harness the experience and expertise gained by the surveyors in their respective fields due to their exposure gained over a period of time, separate career promotional opportunities for surveyor and Technical Assistants were provided resulting in the issuance of the aforesaid impugned Government Order and, therefore, the said Government Order cannot be termed to be perverse or unreasonable.

20. It is the further submission of the learned Addl. Advocate General that the enabling provision in the earlier Regulation is only to meet the contingent situation and when only Technical Assistant are feeder category and their avenue of promotion is only as Assistant Engineer, eating into the promotional avenue of the Technical Assistant by surveyors and Junior Draughting Officers is grossly erroneous and is not good for the growth of the organisation, as giving the said benefit to the petitioners would severely impact the survey work of the Board. Therefore, only to overcome the same, the Regulations were amended and, therefore, the petitioners cannot claim the avenue as a matter of right and granting any relief to the petitioner would only tantamount to granting a backdoor entry for the petitioners, which cannot be permitted by this Court and, therefore, prays for dismissal of the writ petitions.

21. Similar and identical counter affidavit has been filed on behalf of the 1st respondent and the submissions advanced by the learned Addl. Advocate General on behalf of respondents 2 and 3 has been adopted by the learned Addl. Government Pleader appearing for the 1st respondent.

22. This Court gave its careful consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record.

23. It has been the consistent view of the Courts that no amendment can have retrospective effect, if it impinges on the right of the citizen, which right has already accrued prior to the amendment coming into force. The aforesaid proposition has been reiterated by the Apex Court in Director General of Foreign Trade and Ors. vs. Kanak Exports and Ors. (2016 (2) SCC 226), wherein the Apex Court held that “a delegated or subordinate legislation can only be prospective and not retrospective, unless rule making authority has been vested with power under a statute to make rules with retrospective effect”.

24. In the present case, the amendment has been made vide the impugned G.O. (Ms.) No.204, Housing & Urban Development Department dated 14.11.2024. By the said Government Order, amendment has been made to Rule 9 (a) that Technical Assistant alone would be entitled for promotion to the post of Assistant Engineer/Junior Engineer.

25. Even at the inception, it could very safely be held that it is not the case of the respondents that the Government, as the rule making authority has been vested with power under the statute to make rules so as to enable it operate retrospectively and such being the admitted case, it stands concluded that the said amendment cannot have retrospective operation.

26. According to the petitioners, prior to the aforesaid Government Order, the said rule included ‘other categories’, which also were feeder categories for promotion to the post of Assistant Engineer/Junior Engineer and surveyors and Junior Draughting Officers also fell within the ambit of ‘other caterogies’ and were entitled for consideration for promotion to the post of Assistant Engineer/Junior Engineer. It is to be pointed out that the said fact is not disputed by the respondents, though it is feebly submitted by the respondents that it is only an enabling provision to meet the contingencies and it cannot be invoked perpetually at the cost of Technical Assistants. However, such argument, in the light of a perusal of Regulation 9, as it stood prior to amendment, pales into insignificance, as the Regulations then provided for promotion of persons from ‘other categories’ with no embargo attached, meaning thereby, that it is not as if it is a gratis given to the Surveyors and Junior Draughting Officers by the appointing authority; rather it is a conferment of a benefit through a statute to which the surveyors and Junior Draughting Officers would be entitled, if they satisfy the conditions stipulated therein.

27. In the above scenario, the earlier litigation before this Court in W.P. No.6224 & 6750 of 2023, which was disposed of by this Court on 21.7.2023, clearly shows that this Court has held that the persons holding the post of Surveyors and Junior Draughting Officers would be entitled for being considered for the post of Assistant Engineer/Junior Engineer, which portion has also been captured in the counter filed by the respondents, which has a crucial bearing on this case and for better appreciation the said portion is quoted hereunder :-

                     “8. Admittedly, all along the panel has been prepared from all the three categories, namely, Surveyor, Junior Drafting Officers, Technical Assistants and combined Seniority has been maintained. These facts have not been disputed. Now a different stand has been taken by the respondents to the effect that since from the surveyor post, there is promotion avenue to head surveyor, surveyors would not be included in the panel for the promotion to the Assistant Engineer. When the Rule is specific about two modes of appointment either by direct recruitment and by promotion from other category of service with qualification prescribed for direct recruitment, the persons, who are in otherwise is qualified as direct recruit, also entitled to be considered. The respondent cannot by pass the rule and take a stand contrary to the Rule, without there being any amendment brought in the Rule.

                     9. A perusal of the above rule makes it very clear that promotion from other categories is not limited to any particular category. The persons who are in other category, who possess requisite degree in Engineering of any University, also entitled to be considered for promotion as Assistant Engineer as per the Rule position. The submissions of the learned Advocate General to the effect that since there is promotion avenue for Surveyors to Head Surveyors, Surveyors, panel need not be prepared, cannot be countenanced. It is relevant to note that the minimum qualification of Surveyor is only IIT Diploma and other categories also diploma and the next avenue of promotion is head Surveyor. Further, there is no promotion from Head Surveyor. Be that as it may.

                     10. If the persons holding only minimum qualification required for the post of surveyor and they are appointed as surveyor, then those persons certainly cannot compete with the engineering graduates for the post of Assistant Engineer. Their promotion freezes with Head Surveyor. When the Service Rules stipulates a person who possess requisite Engineering degree from a recognized University, who are in the category of Surveyor is also entitled for promotion and they cannot be denied unless Rule has been specifically amended. The challenge has been made only with regard to the provisional preparation of panel among Technical Assistants. Though the same cannot be challenged by the person from other categories, this Court is of the view that unless the Rule is amended, the petitioner cannot be denied promotion merely on the ground that they are holding the post of Surveyor. In Such view of the matter, this Court is of the view that respondent is at liberty to amend the Rule, if they really want to exclude any other category and proceed further.”

                     (Emphasis Supplied)

28. On the date when the provisional seniority list was prepared on 18.3.2022 with respect to the panel for the year 2021-2022, all the three categories, viz., Surveyors, Junior Draughting Officers and Technical Assistants were taken into consideration and a common provisional seniority list was prepared, though for reasons best known, the said provisional seniority list was withdrawn later. Thereafter, no panel was prepared in respect of the posts, which were vacant and which required to be filled up. Thereafter, on 20.02.2023, a fresh panel of Technical Assistant for promotion to the post of Assistant Engineer was prepared, wherein, the other categories, viz., Surveyors and Junior Draughting Officers conspicuously excluded, though the Regulations permitted consideration of Surveyors and Junior Draughting Officers for being considered for promotion to the post of Assistant Engineer/Junior Engineer. On the crucial date of preparation of the aforesaid panel on 20.02.2023, the Regulation prescribed that ‘other categories’ would be entitled for consideration, meaning thereby that Surveyors, Technical Assistants and Junior Draughting Officers all would be entitled for being considered for promotion to the next higher post of Assistant Engineer/Junior Engineer.

29. Regulation 9 had been amended only on 14.11.2024 by issuing the impugned G.O. (Ms.) No.204, which is consequent to the preparation of panel in the year 2023 by considering only the Technical Assistants for promotion as Assistant Engineers. On the said date, though all the three cadres being eligible for consideration, there is clear omission to consider the surveyors and Junior Draughting Officers for promotion to the post of Assistant Engineers, which is against the Regulation and, therefore, there is unreasonableness, arbitrariness and perversity writ large on the said drawal of panel. To this end, even in the earlier round of litigation, there is a clear finding recorded by this Court in W.P. Nos.6224 and 6750 of 2023 that the petitioners cannot be denied promotion merely on the ground that they are holding the post of surveyor and that they have a promotional avenue to the post of Head Surveyor.

30. When on 18.3.2022, panel was drawn including all the three cadres, viz., Surveyor, Technical Assistant and Junior Draughting Officer, all the three cadres were very much eligible. There was no change in the Regulation till 14.11.2024, when the panel was redrawn on 20.02.2023, however, curiously, the Surveyors and Junior Draughting Officers were not taken into consideration despite the fact that the Regulation prescribed consideration of ‘other categories’ for being considered for promotion to the post of Assistant Engineer/Junior Engineer. When there is a clear prescription in the Regulation on the date of drawal of panel, no reason has been attributed by the respondents for nonconsideration of Surveyors and Junior Draughting Officers for being included in the said panel for promotion to the post of Assistant Engineer/Junior Engineer.

31. It is not as if that Technical Assistants have not been given promotion. All along, from the year 1969 till the amendment in November, 2014 through the impugned Government Order, consideration of ‘other categories’, which included Surveyors and Junior Draughting Officers along with Technical Assistant were under consideration for promotion to the post of Assistant Engineer/Junior Engineer. Even in the year 2022, when the panel was prepared, Surveyors and Junior Draughting Officers were taken into consideration only for abrupt withdrawal of the provisional selection panel. Further, as stated above, when the panel for promotion to the post of Assistant Engineer/Junior Engineer was drawn on 20.02.2023, only Technical Assistants were taken into consideration inspite of the fact that the Regulation, as stood on that date included consideration of Surveyors and Junior Draughting Officers. Therefore, necessarily, the petitioners and other persons similarly placed, who were either working as Surveyors or Junior Draughting Officers ought to have been considered for promotion to the post of Assistant Engineer/Junior Engineer when the panel was drawn on 20.02.2023.

32. Further, one other aspect, which also weighs in favour of the petitioners is that the post of Surveyors carried a higher pay scale than that of Technical Assistant and Junior Draughting Officers. Though it is the stand of the respondents that separate promotional avenue is available for Surveyors, however, as could be evidenced from the counter affidavit as also the Regulations, except for the next promotional post of Head Surveyor, there is no further promotional avenue for Surveyors, whereas in the post of Assistant Engineer/Junior Engineer, further promotional avenues are open and, therefore, the claim of the petitioners, who hold the post of Surveyor/Junior Draughting Officer cannot be said to be unreasonable, moreso, when on the date of drawal of the panel for the year 2022-2023, consideration of Surveyors and Junior Draughting Officers were very much in the zone of consideration on the basis of the Regulation, which was amended only on 14.11.2024.

33. As already held above, the amendment to the Regulation would be operational only prospectively from 14.11.2024 and not retrospectively and that being the admitted and legal position, as held by the Courts, the candidature of the petitioners for promotion to the post of Assistant Engineers/Junior Engineers ought to have been considered and they ought to have been included in the panel drawn for the year 2022-2023. The negation of consideration of the names of the petitioners for promotion to the next higher post of Assistant Engineer/Junior Engineer on the basis of the Regulation, as stood then, while drawing the panel for the year 2022-2023 definitely requires interference at the hands of this Court as the said negation and subsequent drawal is illegal, arbitrary, perverse, unreasonable and unsustainable and the same deserves interfered with by this Court.

34. For the reasons aforesaid, the writ petitions are allowed with the following directions :-

i) G.O. (Ms.) No.204, Housing and Urban Development (HB-I(1)) Dept., dated 14.11.2024 would operate only prospectively and not retrospectively;

ii) The consequential Memo No.PT3/18910/2024 dated 13.12.2024 and Memo No.PT3/10319/2024 dated 13.12.2024 of the 2nd respondent are quashed;

iii) The 2nd respondent is directed to consider the names of the petitioners and other persons similarly placed like the petitioners for inclusion in the panel for the year 2022-2023 along with the Technical Assistants for promotion to the post of Assistant Engineer/Junior Engineer and upon their satisfying the Regulations, which stood prior to the amendment, redraw the panel for the year 2022-2023 and grant retrospective promotion to the petitioners and other persons similarly placed like the petitioners, if otherwise entitled, in line with their seniority along with all monetary and consequential benefits;

iv) Registry is directed to verify the payment of separate court fee by the individual petitioners before drafting and issuing order copy to the petitioners;

v) Consequently, other connected miscellaneous petitions are closed. There shall be no order as to costs.