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Judgment
K. Chandru, J.—I have heard the arguments of Mr. Vijay Narayan, learned Senior Counsel leading Mr. Karthick, learned Counsel
appearing for the petitioners in W.P. Nos. 23081 and 23083 of 2007, Mr. R. Syed Mustafa, learned Counsel appearing for the petitioner in W.P.
No. 31714 of 2007 and Mr. G. Sankaran, learned Special Government Pleader, assisted by Mrs. Bhavani Subbarayan, learned Assistant
Government Pleader, representing the respondents and have perused the records.
The three petitioners herein are working as the Inspectors of Labour in the Tamil Nadu Labour Service, which is formed by the Special Rules
framed under Article 309 of the Constitution of India. They are all aspirants for the post of Assistant Commissioner of Labour, which is the next
higher post in the hierarchy of the Labour Department. The Special Rules for the Assistant Commissioner of Labour describes the following
qualifications for being promoted to the said post.
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Assistant Promotion from (i) Must possess the
Commissioner among the holders minimum general
of Labour of the post of Labour educational
Officer or Inspector qualification.
of Plantations or
Inspectors of Labour (ii) Must have passed
or Administrative Department tests
Officers or Public of Labour and Factories
Relations Officer Part - A and Part - B.
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:
(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 years from
the date of issue of
this Amendment a person
who has not served
either Labour Officer or
Administrative Officer
or Public Relations
Officer for a period of
not less than 12
calender months, in the
post of Inspector of
Plantations for not less
than 12 calender months,
and in the post of
Inspector of Labour, for
not less than 12
calender months, or in
any equivalent posts on
deputation or on foreign
service, shall also be
eligible for promotion
to the post of Assistant
Commissioner of Labour,
if he is otherwise
eligible for promotion
to the said post.
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It is an admitted fact that the petitioners are all eligible to be considered for the post of Assistant Commissioner of Labour and they possess the
educational qualification and they are approved probationers in the present post of Inspector of Labour. The only controversy is with reference to
the experience that is required as prescribed in the Special Rules. The Rules contemplate that the person, who aspires to get promoted to the post
of Assistant Commissioner should have the experience in all the three wings of the Department, viz., 12 months service in the post of Labour
Officer, 12 months service in the post of Inspector of Plantations and 12 months service in the post of Inspector of Labour.
It is contended by the petitioners that while it is ideal for an officer, who was selected to the post of Labour Officer, to get posted either as a
Labour Officer or as an Inspector of Plantations or as an Inspector of Labour, but, however, insofar as the posting and transfers are concerned, it
is not within their jurisdiction and it is completely left to the controlling authority. It may happen at many times that due to exigencies of service or
by fortuitous circumstances, a person may get posted to different categories. But there is no right on the part of the serving Officer to seek for a
posting in a particular place. But, however, if any person, who refuses the posting to a particular place, whatever may be the reason, then such a
conduct may be put against them to deny promotion and also be told that they do not have the minimum experience required to hold the next
higher post. In fact, it is only with this view, the Government of Tamil Nadu, Personnel and Administrative Reforms Department sent a circular
dated 11.01.2000 to all the Secretaries to Government and Heads of Departments and the relevant passage is extracted below:
I am directed to state that in certain departments of the Government, training or working experience in a particular wing is a requirement for
promotion/appointment to higher post as per Special Rules for such posts. However, due to some reasons or the other, the officers are not
allowed to acquire the training or experience by posting them to such wing as required in the Special Rules. As a result, it ultimately affects the
individual''s career and also requires relaxation of relevant service rules. It is not the responsibility of the individual to be sent for training or posted
in a particular wing in which working experience is required for promotion/appointment to higher post under special rules, etc. but it is the
responsibility of the Department concerned to send him for training or to post him to a particular wing for a specific period required for his
promotion/appointment to gain experience.
In this connection, the following observations of Tamil Nadu Administrative Tribunal in O.A. No. 3068 of 1997.
It is for the respondents to post the persons in different units to gain experience as required by the rules to make them eligible for
promotion/appointment and it is not necessary for the applicant to ask for it. It is the responsibility of the department to send persons to other
Corporations in such a manner that everyone has equal chance of acquiring a kind of experience insisted upon by the rules unless for a valid reason
is denied an opportunity of acquiring experience. This is a part of job of cadre management in a rational manner. This responsibility cannot be
shifted to the shoulders of the applicant. Therefore, there is no force in the contention of the respondents that the applicant has not asked for such a
posting in a Corporation.
In view of the circumstances mentioned in para 1 and 2 above, the Departments of Secretariat/and the Head of Department are therefore
requested to post the officers to the particular training/wing in which working experience is required for promotion/appointment to higher post
under special rules at the earliest, strictly on the basis of seniority, and if any official does not join the training or post in the particular wing when
given, be may be informed about the adverse effect of avoiding the posting and a declaration as specified in the Annexure to the letter may be
obtained from him and added to his Service Register and Personal File.
Along with the said circular, the annexure contains a declaration to be obtained from the individual, who resists the posting to different places.
It is not the case of the respondents that any of the three petitioners have granted any such declaration when they were posted to man a
particular post. The first respondent has thoroughly misunderstood the spirit behind the letter issued by the Government referred to above. On the
contrary, the Commissioner of Labour, without reference to the Government Order, issued a circular memorandum dated 18.10.2005 and the
relevant passage found therein is extracted below:
It is noted that inspite of postings in the places as per the requirement the officers are not willing to be served in these posts. Even some of the
officers have not brought to the notice of the administration that they may be given postings in the field for qualifying themselves as per the G.O.
cited. Therefore it is made clear that it is the responsibility of the officers concerned to represent to the administration to serve in the specific posts
prescribed for promotion to the next higher category. It is also made clear that no exemption shall be considered at a later date if they do not
qualify for promotion to the next higher category for want of prescribed norms as stated above.
It is a complete misreading of the Government letter and it shifts the onus on the individual to seek for a particular posting, which is neither legally
permissible nor practicably feasible. Even if such requests are made for a particular posting, there is no obligation on the part of the cadre
controlling authority to give a posting to such officers so as to enable them to complete the minimum eligible service for the next post. Therefore,
when the panel for the post of Assistant Commissioner of Labour for the year 2007-2008 was prepared, the details regarding the various officers
were sought for by the second respondent Commissioner of Labour, vide Memorandum dated 10.4.2007. In that letter, the name of Tamilarasi,
petitioner in W.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 and
R. Muthukrishnan, petitioner in W.P. No. 31714 of 2007 is found as serial No. 16. However, by a further Memorandum dated 25.5.2007, the
following particulars were given in respect of the three petitioners.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Sl. Name and Designation Post in which not worked
No. of the Officer
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
1 T.Tamilarasi Worked as Inspector of
Inspectress of Labour Plantations for 10 months
Office of the Joint out of 12 months.
Commissioner of Labour Working as Inspectress of
Chennai Labour since 22.02.2007.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
2 M. Santhi Working as Inspectress of
Inspectress of Labour Labour since 30.6.2006.
Thiruvallur Inspector of Plantations,
12 months.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
3 R. Muthukrishnan Working as Inspector of
Inspector of Labour Labour since 05.4.2007.
Karur
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Therefore, in the case of Tamilarasi, the petitioner in W.P. No. 23081 of 2007, it was stated that she had lacked two months of experience in
the post of Inspector of Plantations and that as an Inspector of Labour, she had worked only for three months on the date of Memorandum. In the
case of M. Shanthi, petitioner in W.P. No. 23083 of 2007, it is stated that she had worked as Inspector of Labour since 30.6.2006 which means
she lacks one month experience and as an Inspector of Plantations, she had not worked for 12 months. In the case of R.Muthukrishnan, petitioner
in W.P. No. 31714 of 2007, it is stated that he is working as Inspector of Labour since 05.4.2007, which means he had only one month
experience as Inspector of Labour. This clearly shows that as many as 30 officers are ineligible to be considered for the post of Assistant
Commissioner of Labour. They were instructed to qualify on or before the crucial date of preparation of panel. It is this communication, which has
prompted the petitioners to come forward with these writ petitions seeking for a relaxation in their favour from the eligibility rule of experience.
Mr. Vijay Narayan, learned Senior Counsel leading Mr. Karthick, learned Counsel appearing for the petitioners in W.P. Nos. 23081 and
23083 of 2007, submitted that apart from the Rule being inelastic, the second respondent''s interpretation to the Government''s letter dated
11.01.2000 is contrary to the spirit of the said letter and that it was as if the Government never exercises the power of relaxation whenever
exigency arose. In fact, they were able to get certain information by invoking the Right to Information Act. Learned Senior Counsel produced two
orders one relating to one U. Umadevi, who belongs to the same service and who was given relaxation for including her name in the panel of
Assistant Commissioner for the year 2005-2006. A copy of the G.O. (2D) No. 1 Labour and Employment (E1) Department dated 09.01.2007 is
furnished in the typed set. In the same way, in respect of one Alagesan, who is posted as the Joint Commissioner, he was given necessary
relaxation for holding the post of Deputy Commissioner of Labour and he was promoted for the said post for the year 2003 - 2004. In these
cases, the relaxation proposals were sent to the Secretary to Government by the second respondent and the same was permitted by the first
respondent by office note dated 15.12.2005. Therefore, the learned Senior Counsel argued that the benefit granted in respect of Ms. Umadevi and
Mr. Alagesan must also be extended in the case of the petitioners.
Mr. G. Sankaran, learned Special Government Pleader representing the respondents, by placing reliance upon the counter affidavit filed,
submitted that the Rules will have to be scrupulously followed and there are juniors to the petitioners, who have completed the experience
requirements made under the Special Rules. He also submitted that the relaxation is only an exception. Therefore, there cannot be universal
application for relaxation of rule.
A rejoinder has also been filed by the petitioners stating that it was not due to their fault that they did not get posting at the relevant place and in
the case of R. Muthukrishnan, the petitioner in W.P. No. 31714 of 2007, despite his request for a posting, he was not given the same.
Mr. Vijay Narayan, learned Senior Counsel, by placing reliance upon the judgment of the Supreme Court reported in State Bank of India etc.,
Vs. Kashinath Kher and others, etc.,, , contended that when there is no scope for the petitioners to demand a posting, they should not be denied
promotion only on the ground of want of experience in the other post. He also stated that in respect of Inspector of Plantations, only 12 posts are
available in the Department and it is difficult to get a posting if all the persons holding post of Labour Officer seek for the same. The learned Senior
Counsel relied on the following passage found in paragraphs 12 and 17 of the judgment of the State Bank of India case (cited supra).
Para 12: ...But it must be remembered that in considering whether the candidate has completed the line of assignment or rural/semi-urban service
for the required period, a clear demarcation be drawn between the officers who either due to volitional refusal to serve and those on account of
inaction or deliberate omission on the part of the controlling authority did not have an opportunity as the case may be, to get the required service
qualifications. Therefore, an exercise requires to be done by the appellant to identify this grouping and consider all those candidates who have
otherwise become eligible but did not get opportunity, for no fault of theirs, to secure the service qualification but should be denied to those who
volunteered not to go for line assignment or rural or semi-urban service as the case may be, and then to consider according to the criteria
prescribed under the rules or the circulars issued from time to time.
Mr. G. Sankaran, learned Additional Government Pleader, representing the respondents, contended that in that decision, the Supreme Court
did not grant an exemption to all the persons, who did not have rural posting. But, however, the counsel failed to note the following passage found
paragraph 10 of the judgment, which reads as follows:
Para 10: ...It is true that the criteria being conditions of service cannot be relaxed. Service conditions being essential conditions cannot be relaxed
and it is not the case of the appellant-Bank that they have done that exercise. What the Board has done is giving an opportunity to the officers,
who are otherwise eligible, to complete the required service conditions and then they would be given promotion, on completion of requisite
conditions thereof. In view of the fact that they did not have the opportunity to serve and complete the qualifying service, with a view to see that
those who had the advantage of completing the service would not steal a march over the seniors, they equally adopted an equitable principle of
putting the officers in List B and giving them seniority after promotion below his immediate senior in MMGS-II so that injustice will not be meted
out to such officers for no fault of theirs. The procedure adopted by the Bank is just, fair and reasonable.
Therefore, in that case, the State Bank of India protected the seniority of persons, who did not get rural posting. In the present case, the
respondents did not have any such safeguard for being overruled on the ground that they did not have the experience as found in the service. Even
in the Memorandum dated 25.5.2007, they were merely asked to complete the other postings so that in the future years, their names will be
considered. There is no guarantee for any seniority. Under these circumstances, the case pleaded by the learned Senior Counsel for the petitioners
is well-founded. Even in the State Bank of India case (cited supra), there was no evidence on any particular person being given exemption by the
Department whereas in the present case, the exemption granted in favour of Umadevi and Alagesan is a clear case where the respondents are
having a pick and choose approach and had not treated everybody fairly in the same way. The circumstances that are available to Umadevi and
Alagesan must also be available to the petitioners and there is no reason why the respondents cannot grant such an exemption in favour of the
petitioners also. In fact, in the case of one of the petitioners, the experience wanting is only two months.
In the result, all the writ petitions will stand allowed. The respondents are directed to include the names of the petitioners in the panel for the
post of Assistant Commissioner of Labour and if necessary, to give relaxation from the Special Rules. No cost. Connected Miscellaneous Petitions
are closed.