High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 24..3..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 14949 of 2002The Tamil Nadu Diploma Engineers AssociationDepartment of Employment and TrainingRep. by its General SecretaryMr.T.Janakiraman.... Petitioner -vs-1.The Government of Tamil Nadu Rep. by Commissioner and SecretaryEmployment Service Department Chennai - 92.The Director of Employment and TrainingMadras3.The Tamil Nadu Industrial TrainingOfficials AssociationMadras Rep. by its General Secretary4.The RegistrarTamil Nadu Administrative TribunalChennai 5.G. Mani 6.P. Balakrishnan7.K. Deivasubramanian8.S. Sabapathy9.E.S. Mani10.P.C. Karthikeyan11.R. Sivasankaran Pillai12.R. Rajendran13.A.M. Subramanian14.G. Sivasubramanian.. Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition under Article 226 of the Constitution of India prayingto issue a writ of Certiorarified Mandamus to call for the records ofthe fourth respondent pertaining to his order in T.A. No. 930 of 1989darted 01.02.2002 and quash the same and consequently declare theamendments issued by the first respondent in G.O. Ms. No. 49Employment services dated 26.9.1983 to Category I sub clause (ii) ofClause I in Sub rule [a] of Rule 2 and to category I in Annexure toin sub-rule (b) of Rule 5 of the Special Rules for Tamil NaduEmployment and Training Subordinate Service 1972 introducing for thefirst time a ratio system of 1:1:1 between Degree and Diploma holdersin Engineering put together (2) SSlC with a Trade certificate and (3)8th Standard with a trade certificate and reducing the academic andtechnical qualifications from (1) a degree in Engineering (2) adiploma in Engineering and two years experience as supervisoryinstructor / Assistant training officers to 8th standard or SSLC withtrade certificate to the post of Foreman Instructors / Trainingofficers in Tamil Nadu Employment and training subordinate service isnull and void and direct the respondents to forthwith theappointments of Foreman Instructor / Training Officer in the saidservice according to original Special Rules of said service.For Petitioner : Mr. R. RameshFor Respondents 1-3: Mr. M. Dhandapani, Spl. GP.Respondents 1 to 3.ORDERK. CHANDRU, J.Heard the arguments of Mr. R. Ramesh, learned counsel appearingfor the petitioner and Mr. M. Dhandapani, learned Special GovernmentPleader representing the respondents 1 to 3 and have perused therecords.2.The petitioner is an unregistered association of DiplomaEngineers working under the second respondent. After obtaining leavefrom this Court vide order dated 25.4.2002 granted in W.P.M.P. 19151of 2002, the present writ petition has been filed.3.Some Diploma Engineers, who were working under the secondrespondent in their individual capacity, filed a writ petition beforethis Court being W.P. No. 11364 of 1983 seeking for a directiondeclaring the amendments made by the first respondent State to theSpecial Rules relating to Tamil Nadu Employment and Training Serviceissued vide G.O. Ms. No.49 Employment Service Department dated26.9.1983 and by the introduction of ratio of 1:1:1 among the Degreeand Diploma holders in Engineering, S.S.L.C. with Trade Certificateholders and 8th Standard with Trade Certificate for the purpose ofrecruiting to the post of Foreman Instructor / Training Officer asunconstitutional. On the constitution of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Administrative Tribunal, during December 1988, the said writ petitionwas transferred to the Tribunal by virtue of the AdministrativeTribunal's Act, 1985 and was taken on file as T.A. No. 930 of 1989.4.A reply affidavit was filed on behalf of the firstrespondent stating that the policy decision was taken in the NationalCouncil for Training in Vocational Trade so as to promote TradeCertificate holders also to the level of Group Instructors, which wasafterwards, redesignated as Training Officers. The Association ofthe Certificate holders also was making persistent demand forgranting promotional avenues. In fact, the said Association gotitself impleaded as the third respondent. It was further stated bythe official respondents before the Tribunal that it was well withinthe competence of the Government being the appointing authority toprescribe appropriate qualifications including for promotionalavenues taking into account the interest of various categories ofstaff. It was stated that lowering of the qualifications for thepromotional post can be done without affecting the Training programmeand it was done to help many of the employees who may not get anypromotion during their entire tenure. 5.It was also stated that the promotion to the post ofTraining Officer is a selection post as per the Special Rules andthere was no hostile discrimination made against the Degree orDiploma holders in Engineering and only with a view to give a fairshare of the promotional post, the ratio of 1:1:1 was fixed. Itwas also contended that the petitioners before the Tribunal cannotdeprive the promotional avenues given to the Trade Certificateholders. 6.The matter was dealt with by the Tribunal and the Tribunalheard the matter along with T.A. No. 930 of 1989 and passed a commonorder dated 01.02.2002. The Tribunal held that there was nothingillegal or improper in fixing the ratio between various feedercategories for the promotion and it does not offend anyconstitutional provisions. None of the petitioners before theTribunal had come before this Court against the said order. On thecontrary, an unregistered association claiming to represent theirinterest, after taking leave from this Court, has filed the presentwrit petition. The maintainability of the writ petition at theirinstance is highly doubtful in the light of the decisions rendered bythis Court including a Full Bench (See: AIR 1989 MADRAS 224 FB). 7.In any event, the main contention of the petitionerAssociation placing reliance upon the earlier order dated 26.8.1983passed by this Court in W.P. Nos. 3610 and 5240 of 1982 [K.Jawaharlal and 17 others v. Government of Tamil Nadu and others]may not have relevance. In that case, the order issued by theGovernment in G.O. Ms. No. 2102 (Labour and Employment Department)dated 22.9.1981 came to be challenged. It was stated that since https://hcservices.ecourts.gov.in/hcservices/ Special Rules were framed under Article 309 of the Constitution, theGovernment cannot amend the same by an executive order and it wasclearly impermissible. So saying, in the operative portion of theorder, learned single Judge had observed as follows:".... In the circumstances, so long as thequalifications for appointment as Foreman Instructorprescribed under the Special Rules stand unamended itwill certainly not be open to the Government to modifythe rules by the impugned G.O. The learned GovernmentAdvocate was not in a position to cite any bindingprecedent before me or any provision of law which wouldjustify the action of the Government in modifying therules framed under Art.309 of the Constitution ofIndia, by an executive order."8.In fact, there is no quarrel over the proposition laid inthat case. It is only taking note of the said judgment, the SpecialRules have been amended to include an additional feeder category. Inorder to have an equitable distribution, a ratio was also fixed amongthe various feeder categories. It was these statutory amendmentsmade under Art. 309 of the Constitution which have been challengedonce again. 9.It has been held by the Courts that mere reduction in thechances of promotion for a category will not be hit by Art. 14 of theConstitution. It has also been further held that the Rules framedunder Art. 309 of the Constitution cannot be dealt with like anexecutive order as it is legislative in character. It has alsobeen made clear by the Supreme Court in Bandlal v. Union of IndiaAIR 1993 SC 978 that the Rule made in exercise of the power underProviso to the Article 309 of the Constitution of India, constitute alaw within the meaning of the Article 235 of the Constitution, forthe same reasons the Rule may be struck down only on such grounds asmay be invalidated or legislative measure, e.g., violation ofArticles 14 and 16 of the Constitution of India and not because theCourt consider it unreasonable. 10.It has also been held by the Supreme Court in J. Rangasamyv. Government of Andhra Pradesh AIR 1990 SC 535 : (1990) 1 SCC 288 :1990-I-LLJ-526 that it is for the competent authority to prescriberelevant qualifications for the appointment to the post provided theyare not unconstitutional. It is not for the Court to consider andassess and it is for persons aggrieved to move the appropriateauthority.11.In the light of the above, we have no hesitation indismissing the writ petition filed by the petitioner and affirming https://hcservices.ecourts.gov.in/hcservices/ the order passed by the Tribunal. Accordingly, the writ petitionwill stand dismissed. However, there will be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTo1.The Government of Tamil Nadu Rep. by Commissioner and SecretaryEmployment Service Department Chennai - 92.The Director of Employment and TrainingMadras3. The General Secretary,Tamil Nadu Industrial Training Officials Association,Madras. W. P. No. 14949 of 2002ksk[co]gp/31.3.