High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 22..11..2007Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. Nos. 23081, 23083 and 31714 of 2007andM.P. Nos. 1 and 2 of 2007 in respective W.Ps. T.Tamilarasi.. Petitioner in W.P. No.23081 of 2007M.Shanthi.. Petitioner in W.P. No.23083 of 2007R.Muthukrishnan.. Petitioner in W.P. No.31714 of 2007vs.1.The Government of Tamil NaduRep. by its SecretaryLabour and Employment DepartmentFort St. George, Chennai2.The Commissioner of Labour D.M.S.Teynampet, Chennai – 6.. Respondents in all W.Ps.W.P. Nos. 23081 and 23083 of 2007 filed under Article 226 ofthe Constitution of India seeking for issue of writ of Mandamusdirecting the respondents to consider the case of the petitionersfor promotion as Assistant Commissioners of Labour for the year2007-2008 by relaxing rule 2 of the Special Rules for the TamilNadu Labour Service and upon being found fit otherwise, promotethem as Assistant Commissioner of Labour with all consequentialbenefits.W.P. No. 31714 of 2007 filed under Article 226 of theConstitution of India seeking for issue of writ of CertiorarifiedMandamus calling for the records of the first respondent in LetterNo. 19958/E1/07-4 dated 22.8.2007, quash the same and consequentlydirect the respondents to consider the case of the petitioner forpromotion as Assistant Commissioner of Labour for the year 2007 –2008 by relaxing rule 2 of the Special Rules for the Tamil NaduLabour Service and upon being found fit otherwise, promote him asAssistant Commissioner of Labour with all consequential benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Vijay Narayan, SC in W.P. Nos. 23081 & for Mr.Karthick23083 of 2007For Petitioner : Mr.R.Syed Mustafain W.P. No. 31714 of 2007 For Respondents : Mr.G.Sankaran, Spl. GP Assisted by Mrs.Bhavani Subbarayan, AGPCOMMON ORDERI have heard the arguments of Mr.Vijay Narayan, learned SeniorCounsel leading Mr.Karthick, learned counsel appearing for thepetitioners in W.P. Nos. 23081 and 23083 of 2007, Mr.R.SyedMustafa, learned counsel appearing for the petitioner in W.P. No.31714 of 2007 and Mr.G.Sankaran, learned Special GovernmentPleader, assisted by Mrs. Bhavani Subbarayan, learned AssistantGovernment Pleader, representing the respondents and have perusedthe records.2.The three petitioners herein are working as theInspectors of Labour in the Tamil Nadu Labour Service, which isformed by the Special Rules framed under Article 309 of theConstitution of India. They are all aspirants for the post ofAssistant Commissioner of Labour, which is the next higher post inthe hierarchy of the Labour Department. The Special Rules forthe Assistant Commissioner of Labour describes the followingqualifications for being promoted to the said post.“AssistantPromotion from (i) Must possess theCommissioner among the holders minimum general of Labourof the post of Labour educationalOfficer or Inspector qualification.of Plantations or (ii) Must have passed Inspectors of Labour Department tests ofor Administrative Labour and Factories Officers or Public Part – A and Part – B.Relations Officer in Headquarters (iii) Must be an approved Probationer. (iv) Must have experience in the posts as noted below excluding the period spent on leave in the respective posts:- https://hcservices.ecourts.gov.in/hcservices/ (1)in the post of Labour Officer or Administrative Officer or Public Relations Officer for a period of not less than 12 calender months. (2) in the post of Inspector of Plantations for a period of not less than 12 calender months; and (3) in the post of Inspector of Labour for a period of not less than 12 calender months.Provided that for a period of two yearsfrom the date of issue of thisAmendment a person who has not servedeither Labour Officer or AdministrativeOfficer or Public Relations Officer fora period of not less than 12 calendermonths, in the post of Inspector ofPlantations for not less than 12calender months, and in the post ofInspector of Labour, for not less than12 calender months, or in anyequivalent posts on deputation or onforeign service, shall also be eligiblefor promotion to the post of AssistantCommissioner of Labour, if he isotherwise eligible for promotion to thesaid post.”3.It is an admitted fact that the petitioners are alleligible to be considered for the post of Assistant Commissioner ofLabour and they possess the educational qualification and they areapproved probationers in the present post of Inspector of Labour.The only controversy is with reference to the experience that isrequired as prescribed in the Special Rules. The Rules contemplatethat the person, who aspires to get promoted to the post ofAssistant Commissioner should have the experience in all the threewings of the Department, viz., 12 months service in the post ofLabour Officer, 12 months service in the post of Inspector ofPlantations and 12 months service in the post of Inspector ofLabour. 4.It is contended by the petitioners that while it is idealfor an officer, who was selected to the post of Labour Officer, toget posted either as a Labour Officer or as an Inspector ofPlantations or as an Inspector of Labour, but, however, insofar asthe posting and transfers are concerned, it is not within theirjurisdiction and it is completely left to the controlling https://hcservices.ecourts.gov.in/hcservices/ authority. It may happen at many times that due to exigenciesof service or by fortuitous circumstances, a person may get postedto different categories. But there is no right on the part of theserving Officer to seek for a posting in a particular place.But, however, if any person, who refuses the posting to aparticular place, whatever may be the reason, then such a conductmay be put against them to deny promotion and also be told thatthey do not have the minimum experience required to hold the nexthigher post. In fact, it is only with this view, the Governmentof Tamil Nadu, Personnel and Administrative Reforms Department senta circular dated 11.01.2000 to all the Secretaries to Governmentand Heads of Departments and the relevant passage is extractedbelow:“I am directed to state that in certain departmentsof the Government, training or working experience ina particular wing is a requirement for promotion /appointment to higher post as per Special Rules forsuch posts. However, due to some reasons or theother, the officers are not allowed to acquire thetraining or experience by posting them to such wingas required in the Special Rules. As a result, itultimately affects the individual's career and alsorequires relaxation of relevant service rules. Itis not the responsibility of the individual to besent for training or posted in a particular wing inwhich working experience is required for promotion /appointment to higher post under special rules, etc.but it is the responsibility of the Departmentconcerned to send him for training or to post him toa particular wing for a specific period required forhis promotion / appointment to gain experience.2.In this connection, the followingobservations of Tamil Nadu Administrative Tribunal inO.A. No. 3068 of 1997.“It is for the respondents to post thepersons in different units to gainexperience as required by the rules to makethem eligible for promotion / appointmentand it is not necessary for the applicant toask for it. It is the responsibility ofthe department to send persons to otherCorporations in such a manner that everyonehas equal chance of acquiring a kind ofexperience insisted upon by the rules unlessfor a valid reason is denied an opportunityof acquiring experience. This is a partof job of cadre management in a rationalmanner. This responsibility cannot beshifted to the shoulders of the applicant. https://hcservices.ecourts.gov.in/hcservices/ Therefore, there is no force in thecontention of the respondents that theapplicant has not asked for such a postingin a Corporation.”3.In view of the circumstances mentioned inpara 1 and 2 above, the Departments of Secretariat /and the Head of Department are therefore requested topost the officers to the particular training / wingin which working experience is required for promotion/ appointment to higher post under special rules atthe earliest, strictly on the basis of seniority, andif any official does not join the training or post inthe particular wing when given, be may be informedabout the adverse effect of avoiding the posting anda declaration as specified in the Annexure to theletter may be obtained from him and added to hisService Register and Personal File.”Along with the said circular, the annexure contains a declarationto be obtained from the individual, who resists the posting todifferent places.5.It is not the case of the respondents that any of thethree petitioners have granted any such declaration when they wereposted to man a particular post. The first respondent hasthoroughly misunderstood the spirit behind the letter issued by theGovernment referred to above. On the contrary, theCommissioner of Labour, without reference to the Government Order,issued a circular memorandum dated 18.10.2005 and the relevantpassage found therein is extracted below:“It is noted that inspite of postings in the placesas per the requirement the officers are not willingto be served in these posts. Even some of theofficers have not brought to the notice of theadministration that they may be given postings in thefield for qualifying themselves as per the G.O.cited. Therefore it is made clear that it is theresponsibility of the officers concerned to representto the administration to serve in the specific postsprescribed for promotion to the next higher category.It is also made clear that no exemption shall beconsidered at a later date if they do not qualify forpromotion to the next higher category for want ofprescribed norms as stated above.”[Emphasis added]6.It is a complete misreading of the Government letter andit shifts the onus on the individual to seek for a particularposting, which is neither legally permissible nor practicablyfeasible. Even if such requests are made for a particularposting, there is no obligation on the part of the cadre https://hcservices.ecourts.gov.in/hcservices/ controlling authority to give a posting to such officers so as toenable them to complete the minimum eligible service for the nextpost. Therefore, when the panel for the post of AssistantCommissioner of Labour for the year 2007-2008 was prepared, thedetails regarding the various officers were sought for by thesecond respondent Commissioner of Labour, vide Memorandum dated10.4.2007. In that letter, the name of Tamilarasi, petitioner inW.P.No. 23081 of 2007 is found as serial No. 9 and M.Santhi,petitioner in W.P. No. 23083 of 2007 is found as serial No. 10 andR.Muthukrishnan, petitioner in W.P. No. 31714 of 2007 is found asserial No. 16. However, by a further Memorandum dated25.5.2007, the following particulars were given in respect of thethree petitioners. Sl.No.Name and Designation of theOfficerPost in which not worked1T.TamilarasiInspectress of LabourOffice of the JointCommissioner of LabourChennaiWorked as Inspector ofPlantations for 10 months outof 12 months. Working asInspectress of Labour since22.02.2007.2M.SanthiInspectress of LabourThiruvallurWorking as Inspectress ofLabour since 30.6.2006.Inspector of Plantations, 12months.3R.MuthukrishnanInspector of LabourKarurWorking as Inspector ofLabour since 05.4.2007. 7.Therefore, in the case of Tamilarasi, the petitioner inW.P. No. 23081 of 2007, it was stated that she had lacked twomonths of experience in the post of Inspector of Plantations andthat as an Inspector of Labour, she had worked only for threemonths on the date of Memorandum. In the case of M.Shanthi,petitioner in W.P. No.23083 of 2007, it is stated that she hadworked as Inspector of Labour since 30.6.2006 which means she lacksone month experience and as an Inspector of Plantations, she hadnot worked for 12 months. In the case of R.Muthukrishnan,petitioner in W.P. No. 31714 of 2007, it is stated that he isworking as Inspector of Labour since 05.4.2007, which means he hadonly one month experience as Inspector of Labour. This clearlyshows that as many as 30 officers are ineligible to be consideredfor the post of Assistant Commissioner of Labour. They wereinstructed to qualify on or before thecrucial date of preparation of panel. It is this communication,which has prompted the petitioners to come forward with these writpetitions seeking for a relaxation in their favour from theeligibility rule of experience. https://hcservices.ecourts.gov.in/hcservices/

8.Mr. Vijay Narayan, learned Senior Counsel leadingMr.Karthick, learned counsel appearing for the petitioners in W.P.Nos. 23081 and 23083 of 2007, submitted that apart from the Rulebeing inelastic, the second respondent's interpretation to theGovernment's letter dated 11.01.2000 is contrary to the spirit ofthe said letter and that it was as if the Government neverexercises the power of relaxation whenever exigency arose. Infact, they were able to get certain information by invoking theRight to Information Act. Learned Senior Counsel produced twoorders one relating to one U.Umadevi, who belongs to the sameservice and who was given relaxation for including her name in thepanel of Assistant Commissioner for the year 2005-2006. A copyof the G.O. (2D) No. 1 Labour and Employment (E1) Department dated09.01.2007 is furnished in the typed set. In the same way, inrespect of one Alagesan, who is posted as the Joint Commissioner,he was given necessary relaxation for holding the post of DeputyCommissioner of Labour and he was promoted for the said post forthe year 2003 – 2004. In these cases, the relaxation proposalswere sent to the Secretary to Government by the second respondentand the same was permitted by the first respondent by office notedated 15.12.2005. Therefore, the learned Senior Counsel arguedthat the benefit granted in respect of Ms.Umadevi and Mr. Alagesanmust also be extended in the case of the petitioners.9.Mr. G. Sankaran, learned Special Government Pleaderrepresenting the respondents, by placing reliance upon the counteraffidavit filed, submitted that the Rules will have to bescrupulously followed and there are juniors to the petitioners, whohave completed the experience requirements made under the SpecialRules. He also submitted that the relaxation is only anexception. Therefore, there cannot be universal application forrelaxation of rule. 10.A rejoinder has also been filed by the petitionersstating that it was not due to their fault that they did not getposting at the relevant place and in the case of R.Muthukrishnan,the petitioner in W.P. No. 31714 of 2007, despite his request for aposting, he was not given the same.11.Mr. Vijay Narayan, learned Senior Counsel, by placingreliance upon the judgment of the Supreme Court reported in 1996(8) SCC 762 [State Bank of India and others v. Kashinath Kherand others], contended that when there is no scope for thepetitioners to demand a posting, they should not be deniedpromotion only on the ground of want of experience in the otherpost. He also stated that in respect of Inspector of Plantations,only 12 posts are available in the Department and it is difficultto get a posting if all the persons holding post of Labour Officerseek for the same. The learned Senior Counsel relied on thefollowing passage found in paragraphs 12 and 17 of the judgment of https://hcservices.ecourts.gov.in/hcservices/ the State Bank of India case (cited supra).Para 12:“.... But it must be remembered that in consideringwhether the candidate has completed the line ofassignment or rural/semi-urban service for therequired period, a clear demarcation be drawn betweenthe officers who either due to volitional refusal toserve and those on account of inaction or deliberateomission on the part of the controlling authority didnot have an opportunity as the case may be, to getthe required service qualifications. Therefore, anexercise requires to be done by the appellant toidentify this grouping and consider all thosecandidates who have otherwise become eligible but didnot get opportunity, for no fault of theirs, tosecure the service qualification but should be deniedto those who volunteered not to go for lineassignment or rural or semi-urban service as the casemay be, and then to consider according to thecriteria prescribed under the rules or the circularsissued from time to time.” 12.Mr. G. Sankaran, learned Additional Government Pleader,representing the respondents, contended that in that decision, theSupreme Court did not grant an exemption to all the persons, whodid not have rural posting. But, however, the counsel failed tonote the following passage found paragraph 10 of the judgment,which reads as follows:Para 10:“.... It is true that the criteria being conditionsof service cannot be relaxed. Service conditionsbeing essential conditions cannot be relaxed and itis not the case of the appellant-Bank that they havedone that exercise. What the Board has done is givingan opportunity to the officers, who are otherwiseeligible, to complete the required service conditionsand then they would be given promotion, on completionof requisite conditions thereof. In view of the factthat they did not have the opportunity to serve andcomplete the qualifying service, with a view to seethat those who had the advantage of completing theservice would not steal a march over the seniors,they equally adopted an equitable principle ofputting the officers in List B and giving themseniority after promotion below his immediate seniorin MMGS-II so that injustice will not be meted out tosuch officers for no fault of theirs. The procedureadopted by the Bank is just, fair and reasonable.” https://hcservices.ecourts.gov.in/hcservices/

13.Therefore, in that case, the State Bank of Indiaprotected the seniority of persons, who did not get rural posting.In the present case, the respondents did not have any suchsafeguard for being overruled on the ground that they did not havethe experience as found in the service. Even in the Memorandumdated 25.5.2007, they were merely asked to complete the otherpostings so that in the future years, their names will beconsidered. There is no guarantee for any seniority. Underthese circumstances, the case pleaded by the learned Senior Counselfor the petitioners is well-founded. Even in the State Bank ofIndia case (cited supra), there was no evidence on any particularperson being given exemption by the Department whereas in thepresent case, the exemption granted in favour of Umadevi andAlagesan is a clear case where the respondents are having a pickand choose approach and had not treated everybody fairly in thesame way. The circumstances that are available to Umadevi andAlagesan must also be made available to the petitioners and thereis no reason why the respondents cannot grant such an exemption infavour of the petitioners also. In fact, in the case of one ofthe petitioners, the experience wanting is only two months. 14.In the result, all the writ petitions will stand allowed.The respondents are directed to include the names of thepetitioners in the panel for the post of Assistant Commissioner ofLabour and if necessary, to give relaxation from the Special Rules.No cost. Connected Miscellaneous Petitions are closed. griSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government Government of Tamil NaduLabour and Employment DepartmentFort St. GeorgeChennai https://hcservices.ecourts.gov.in/hcservices/

2.The Commissioner of Labour D.M.S.TeynampetChennai – 6+ 2 ccs to Mr. Karthik, Advocate SR No. 69590+ 1 cc to Mr. R. Syed Mosthafa, Advocate SR no. 69613+ 3 ccs to the Government Pleader SR Nos.69465, 69466 and 69468GG(CO)SR/30.11.2007 Common order in W.P. Nos. 23081, 23083 and 31714 of 2007