High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.07.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMWrit Petition No.44972 of 2006and WPMP.No.1 of 20061. Union of India, rep. by Government of Pondicherry through the Secretary, Government of Pondicherry for Labour, Chief Secretariat, Pondicherry.2. The Commissioner, Labour Department, Pondicherry. ..Petitioners..vs..1. Central Administrative Tribunal, rep.by its Registrar, Chennai.2. R.Murugesan ..RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, for issuance of a Writ of Certiorari, calling for the recordsrelating to the order of the 1st respondent in O.A.No.1142/2003 dated24.2.2005 and quash the same.For Petitioners : Mr.Syed Mustafa for Govt.Pleader, PondicherryFor Respondents : Mr.V.Ajaykumar for R2 R1-TribunalORDER(Order of the Court was made by ELIPE DHARMA RAO, J.,)The writ petition is preferred against the order dated24.02.2005 passed by the 1st respondent Tribunal in O.A.No.1142 of2003 filed by the 2nd respondent herein. https://hcservices.ecourts.gov.in/hcservices/

2. It is the case of the 2nd respondent before the Tribunal thathe joined service in Government I.T.I., Karaikal and now he isworking as Workshop Attendant. As per the Recruitment Rules, theWorkshop Attendant was entitled to get promotion to the post of CraftInstructor. The Recruitment Rules for the post of Workshop Attendantwas amended in November, 1987 and it was provided that the method ofrecruitment is by promotion 50% and by direct recruitment 50%.Promotion to the post of Store Attendant of Labour Department wasprovided from the post of Workshop Attendant, with 3 years ofcontinuous service in that grade. Subsequently, another amendment waseffected on 18.08.1999 requiring for a pass in the National TradeCertificate or equivalent and also Craft Instructor Certificate of aCentral Training Institute. Since the incumbents in the post ofWorkshop Attendants were not in a position to acquire the CraftInstructor Certificate, the matter was taken up with the authoritiesand then, some candidates were allowed for training and aftertraining, they were given promotion. Some other candidates approachedthe Tribunal claiming promotion without the Craft InstructorCertificate and the same was also allowed. It is the further case ofthe 2nd respondent that he has completed the course and obtained acertificate in 2001. In the meantime, his juniors were givenpromotional orders on 01.07.2003 and on 02.07.2003. The appellantshave issued another order stating that the post of Craft Instructorhas been re-designated as Vocational Instructor, which post carriesthe pay scale of Rs.5500-9000 as against the old scale of Rs.5000-8000. The method of recruitment has been changed by which the post isfilled up 15% by promotion and 85% by direct recruitment and theexperience of service candidates required for the post has beenincreased to eighteen years. Hence, the 2nd respondent filed theoriginal application before the Tribunal to quash the column Nos.11and 12 which have taken away the promotional avenue of the WorkshopAttendants by increasing the experience qualification from threeyears to eighteen years of continuous service and consequently, toconsider the 2nd respondent for promotion to the post of VocationalInstructor.3. The appellants filed a counter stating that the DirectorGeneral of Employment and Training, Government of India, Ministry ofLabour, New Delhi, in his letter dated 24.07.1996 addressed to allthe Labour Secretaries to State Governments and Union TerritoryAdministrations, has issued directions to initiate necessary actionto amend the Recruitment Rules in respect of Craft Instructors(Engineering Trades) working in the I.T.Is. so as to have twoseparate streams of Vocational Instructors and further instructed theappellant department to ensure that the pay scale of the VocationalInstructors be enhanced from Rs.1400-2600 to 1640-2900 and alsofurther directed that the recruitment of Vocational Instructorsshould be done only in accordance with the revised qualificationswith effect from 01.08.1997, failing which, the Institutes concernedwould be liable to be de-affiliated. As per the guidelines of the https://hcservices.ecourts.gov.in/hcservices/ Government of India, the minimum residency period required forpromotion from the post of Workshop Attendant to the post ofVocational Instructor (Practical/Theory) with their respective payscales of Rs.3050-4590 and 5500-9000 is fixed as 18 years. The payscales of the feeder post and the promotional post are levelled byfour stages. In other words, promotion from the post of WorkshopAttendant to the post of Craft Instructor amounts to multi-level jumpof pay scales. Hence, the amendment in the Recruitment Rules inrespect of column at 12 was made fixing the period of experience as18 years, keeping the minimum residency period required for one payscale to another at 3 to 5 years. Consequently, the percentage inthe method of recruitment was amended, that is, by direct recruitment85% and by promotion 15%. It is further stated that these are thematters which are exclusively within the domain of the executive andit is not for the 2nd respondent to sit in judgment over it orchallenge the same. As per the final seniority list issued by theappellants department in the grade of Workshop Attendant/StoreAttendant vide Memorandum dated 24.07.2003, the 2nd respondent is atNo.21 and he is far junior in the cadre and as such, his right is inno way affected immediately by the said Recruitment Rules. Hence, theoriginal application is liable to be dismissed. 4. After hearing both sides, the Tribunal set aside theprovisions under column Nos.11 and 12 of the Recruitment Rules andobserved that after finaliation of the Recruitment Rules, thepromotion would be considered. Against which, the present writpetition is filed by the department.5. Heard the learned counsel for both sides and perused thematerials before us.6. Learned counsel for the appellants contended that the 1strespondent Tribunal has failed to consider the fact that theamendment to the Recruitment Rules is fully approved by theGovernment, cleared by the U.P.S.C. and duly notified in the Gazettepublished by the Government of Pondicherry and therefore, it islegally valid in all respects. Further, since the 2nd respondent,being a junior in the post of Workshop Attendant, his claim forpromotion by challenging the amendment in the Recruitment Rules ispremature and suffers for want of legal premises. Hence, the impugnedorder is liable to be set aside.7. On the other hand, the learned counsel appearing for the 2ndrespondent would submit that the Tribunal has considered all thefacts and circumstances of the case in their proper perspective andhas allowed the original application filed by the employee, whichneeds no interference by this Court and has prayed to dismiss thiswrit petition. https://hcservices.ecourts.gov.in/hcservices/

8. After going through the records, we are satisfied with theorder passed by the Tribunal. The Tribunal has elaborately consideredthe germane issue involved in the matter, namely, promotion,prescription of qualification and other conditions of service. Aperusal of amendment to Recruitment Rules dated 18.08.1999 shows thatthe post of Craft Instructor was to be filled up by promotion fromthe grade of Workshop Attendant/Store Attendant with 3 years ofservice. Subsequently, the same was amended and column No.11 of theRecruitment Rules shows that the method of recruitment is 15% bypromotion and 85% by direct recruitment and column No.12 shows thatpromotion shall be given to Workshop Attendant, Store Attendant,Skilled Worker, Workshop Attendant of the department with 18 years ofregular service. The amendment as to experience from 3 years to 18years for considering the post of Workshop Attendant/Store Attendantfor promotion, in our view, is arbitrary and illegal and nosatisfactory explanation has been offered for doing so, except theone that there are four intervening levels of pay scales between thefeeder post and the promotional post. As far as this department isconcerned, namely, I.T.Is., there are no such posts carrying theseintermediate pay scales. Whenever the department takes a decision toupgrade any post, they have to take into consideration therecruitment rules with reference to eligibility criteria viz.,qualification and experience. There is no change in the feedercategory as such and it is also not the case of the appellants thatany new categories have been brought among the feeder posts.Hence, all other parameters remaining the same, the only positionthat is changed is the higher pay scale for the promotion post whichhas been enhanced from Rs.5000-8000 to Rs.5500-9000. 9. Further, according to Sl.No.14 of the Annexure to theOfficial Memorandum, the qualifying service prescribed from thescale of pay of Rs.5000-8000 to Rs.5500-9000 is only three years.Therefore, we are of the view that if the appellants wanted toenhance the period of service due to revision of scale, they shouldhave limited this to a further period of three years. 10. With regard to the promotion and prescription ofqualifications, it has been observed by the Tribunal that by virtueof the amendment, the promotional prospects of the 2nd respondent'scategory has been deeply affected; the ground furnished by theappellants for reducing the quota to 15% for promotion is that thenumber of feeder cadre is 13 as against the number of promotionalposts 110, which does not appear to be correct as the seniority listfurnished by the appellants themselves at Annexure-8 of their countershows that there were 32 Workshop Attendants working as on 24.07.2002and besides the Store Attendants of Labour Department who are alsoeligible under the rules for promotion, some other categories ofskilled workers and Workshop Attendants are also reflected in therecruitment rules. https://hcservices.ecourts.gov.in/hcservices/

11. In view of the above, the cadre strength should be assessedin totality. However, we find, even the 50% promotion wasinterchangeable with direct recruitment if sufficient qualifiedcandidates were not available. Therefore, we are of the view that thechanges made in columns No.11 and 12 of the Recruitment Rules arearbitrary and illegal. The Tribunal has properly considered all thefacts and circumstances of the case and has allowed the applicationfiled by the employee. There is no valid ground to interfere with theorder passed by the Tribunal.Consequently, the writ petition fails and is dismissed. Nocosts. Connected WPMP.is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarglTo The Registrar, Central Administrative Tribunal, Chennai.+ 1 c.c. to Senior Government Pleader -cum-Senior Public Prosecutor for Pondicherry. S.R.No.29951.Order in Writ Petition No.44972 of 2006KGK (CO)GSK 27.07.2009.