IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2011 CORAM: THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. Nos. 25418 of 2008 & 8570 of 2009 ....... WP No.25418/2008:- D. Balu .. Petitioner Vs. 1. The Chairman and Managing Director, M/s. Tamil Nadu Magnesite Ltd., No.5/53, Omalur Main Road, Jagir Ammapalayam, Salem 636 302. 2. D. Rajakumar (Impleaded as per order dated 30.9.2011 in MPNo.1/2009) ... Respondents WP No. 8570 of 2009 Salem Mavatta Magnesite Pattali Labour Union , rep. By its General Secretary, Arabic College Buildings, Vellakkalpatty, Salem 636 012. .. Petitioner Vs. 1.The Chairman and Managing Director, M/s. Tamil Nadu Magnesite Ltd., No.5/53, Omalur Main Road, Jagir Ammapalayam, Salem 636 302. https://hcservices.ecourts.gov.in/hcservices/ 2. The Director of Mines Safety, Ministry of Labour, Govt. Of India, Chennai Region, Old No.46, New No.5 2nd Street, Block – 'AA' Anna Nagar, Chennai.40. 3. D. Rajakumar, Mines Agent/ Manager (Mines), M/s. Tamil Nadu Magnesite Ltd., No.5/53, Omalur Main Road, Jagir Ammapalayam, Salem 636 302. ... Respondents Prayer: Petition in WP N. 25418 of 2008 is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus forbearing the respondent herein from appointing any candidate from outside as Mines Agent cum Manager (Mines) and consequently direct the respondent herein to promote the petitioner as Manager (Mines) in Tamil Nadu Magnesite Ltd., who is holding the requisite First Class Mines Manager Competency Certificate. Petition in WP N. 8570 of 2009 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records of the first respondent herein pertaining to his proceedings No.1(2)/P&A/05401/2008-2009, dated 10/11.10.2008 appointing the third respondent as Mines Agent/Manager (Mines) and quash the same. For Petitioner in both Wps. : Mr. G. Purushothaman For Respondent in WP No.25418/2008 : Mr. M.R. Raghavan For Respondents in WP No.8570/2009 : Mr. M.R. Raghavan – R1 Ms. R. Meenakshi – R2 Mr. G. Jeremiah - R3 COMMON ORDER The first writ petition is filed by one D. Balu, seeking for a direction to the respondent/ Tamil Nadu Magnesite Limited, Salem forbearing from appointing any candidate from outside as Mines Agent cum Manager (mines) and for consequential direction to promote the petitioner as Manager (mines) in Tamil Nadu Magnesite Limited, as he is https://hcservices.ecourts.gov.in/hcservices/ holding first Class Mines Manager Competency Certificate. 2. That writ petition was admitted on 24.10.2008 and the interim injunction was granted restraining the respondent/ Tamil Nadu Magnesite Limited, from appointing or posting any person to the post of Mines Agent-cum-Manager (Mines) until further orders. Subsequently, on the respondent filing counter affidavit and on hearing both sides, by order dated 6.1.2009, the interim order is vacated and one D.Rajkumar was allowed to operate in the said post. It was also made clear that the appointment of the said Rajkumar was subject to the result of the writ petition. 3. During the pendency of the said writ petition, the petitioner has also filed an application in M.P.No. 1 of 2009 to implead the said Rajakumar as party/R2 in the writ petition and no order is passed. 4. Even while the said writ petition is pending, trade union by name Salem Mavatta Magnesite Pattali Labour Union represented by its General Secretary filed the second writ petition challenging the order dated 11.10.2008 appointing D. Rajakumar as Mines Agent/ Manager (Mines). That writ petition was admitted on 30.4.2009. Pending that writ petition, in the application for interim injunction, only notice was ordered. On notice from this Court, all the three respondents have filed counter affidavit in the second writ petition. 5. Heard the arguments of Mr. G. Purushothaman, learned counsel for the petitioner in both writ petitions and Mr.R. Raghavan, learned counsel appearing for the Tamil Nadu Magnesite Limited, Ms. R. Meenakshi, learned counsel appearing for the Director of Mines Safety, Ministry of Labour, Government of India and Mr. G. Jeremiah, learned counsel appearing for Rajkumar, who is appointed as Mines Agent-cum Mines Manager. 6. In view of the identical issues raised in both the writ petitions, the matters are heard together and the common order is passed. 7. The grievance projected by the petitioner was that the petitioner in WP No. 25418 of 2008 though was qualified to be appointed as Manager (Mines), the Tamil Nadu Magnesite Limited, which is the one and only State Government company decided to amalgamate the post of Mines Manager with that of the Manager (Mines). It is the stand of the petitioner that neither the Mines Act 1952 nor the Metaliferous Mines Regulations 1961 provides for merger of the post of Mines Agents and Manager (Mines). Therefore, the attempt to amalgamate the said two posts was contrary to the Rules. Further, it was the stand of the first writ petitioner that what was informed for appointment was the https://hcservices.ecourts.gov.in/hcservices/ post of Mines Agents and without considering the candidates, who were already in service and who were qualified, there is no question of merging the two posts. 8. Refuting the contentions of the petitioners, it was contended that the first writ petitioner D. Balu was only holding the post of Assistant Manager Gr.II and he was not qualified even to seek the post of Manager (Mines). The feeder category for the post of Manager (Mines) should be Deputy Manager with eight years experience. The proposal for fixation of cadre strength was approved by the Board in its 150th meeting held on 6.9.2006. The post of Mines Agents/ Manager (Mines) was kept in the cadre of the Manager and the qualification prescribed for the said post is Diploma or B.E. (Mining Engineering) with 1st Class Mines Managers Certificate of Competency. Since the post of Mines Agent/ Manager (Mines), which is of the Manager Cadre was kept vacant, and no employee, who was in service, is having the said qualifications to hold the post, it was decided to advertise for the said post. Accordingly, the proposal for filling up the post of Mines Agent, who will also hold the post of Manager-Mines was placed before the Board in its 152nd meeting held on 1.2.2007 and it was also approved by the Board. Since no eligible candidates within the factory was available, it was directed to call for the candidates from outside. It was at this stage, one D. Rajakumar, the impleaded respondent, who had the necessary experience in Magnesite Mines was appointed on the basis of the recommendation of the selection committee. The said Rajakumar had also agreed to join the post on 12.11.2008. At this stage, the first writ petition came to be filed. Hence, the matter got postponed until this Court vacated the interim order. 9. The contention raised by the petitioner that the post of Mines Agents cannot be clubbed with Manager(Mines) cannot be accepted as it is open to the respondent/ Management to restructure the cadre and if necessary to merge any two posts and also to fix the appropriate qualification for holding the post. As per the existing Rules of promotion, the first writ petitioner is not even eligible to be appointed as Manager Mines. Therefore, the first writ petition is purely academic and if allowed it will be contrary to the recruitment Rules, which provides for feeder posts. The petitioner was only holding the post of Assistant Manager Gr.II, which is not a feeder category. 10. It is also stated that initially, the post was reserved for S.C. Candidates and since no candidate was available, despite request being made, the post was re-reserved and thereafter, the applications were called for and the said D.Rajakumar, the second respondent in the first writ petition, who was also the third respondent in the second writ petition, was appointed as fully qualified person to hold the post of Mines Agents as well as Mines https://hcservices.ecourts.gov.in/hcservices/ Manager. 11. In the counter affidavit filed by the Director of Mines (safety), it was contended that there was no provision prohibiting the agent for working as Manager of the same mine if he possesses the requisite qualification as prescribed in Regulation 34 of the Matalliferous Mines Regulations, 1961. 12. In the counter affidavit filed by the Tamil Nadu Magnesite Limited, it was stated that since no one was qualified in the feeder category, the Management addressed the District Employment Office and requested to sponsor eligible candidates and even the Employment Exchange informed that no suitable candidates were available and in order to advise the management to advertise the post, No objection certificate was given and on the basis of the advertisement made on 7.5.2008, eight candidates applied for the said post. Out of which, four were called for interview and the selection committee short listed the third respondent in the second writ petition as a suitable candidate and based upon the selection committee recommendations, the company appointed the said person. 13. The contention raised by the petitioner that annual roaster was not followed was also rejected by stating that the roster is maintained by the District Employment Office. Since no suitable candidates were available, they gave no objection certificate for advertisement. In the counter affidavit filed by the successful candidate, it was stated that he himself belonged to Adi Dravidar community and pursuant to the advertisement in the daily news paper, he made an application. He is qualified to hold the post. He obtained a Diploma in Mining Engineering from School of Mines, Kolar Gold Fields, Karnataka. He also got II class mines manager certificate of compentency from Directorate General of Mines Safety, Dhanbad, Jharkhand State. He also obtained I class Mines Manager Certificate of Competency from Directorate General of Mines Safety, Dhanbad. He further qualified in the Section B examination in Mining Engineering Branch from Institution of Engineers (India), Kolkata and the same was recognized by the Government of India as equal to that of the Bachelor Degree in Engineering. He also served in different organisation from 1983. He was working previously in M/s. Dalmia Magnesite Corporation, Salem as Assistant Mines Manager and promoted as Mines Manager. 14. In the light of these factual background and in the absence of there being any legal enforceable right on the part of the https://hcservices.ecourts.gov.in/hcservices/ petitioner, this Court is not inclined to consider the case of the petitioner in both the writ petitions. These two writ petition fail and the same are dismissed. Consequently, connected miscellaneous petitions are dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To 1.The Chairman and Managing Director, M/s. Tamil Nadu Magnesite Ltd., No.5/53, Omalur Main Road, Jagir Ammapalayam, Salem 636 302. 2. The Director of Mines Safety, Ministry of Labour, Govt. Of India, Chennai Region, Old No.46, New No.5 2nd Street, Block – 'AA' Anna Nagar, Chennai.40. +1cc to Mr.M.R.Raghavan, Advocate Sr 61935 +1cc to M/s. G.Jeremiah, Advocate Sr 61776 +1cc to MR.G.Purushothaman, Advocate Sr 61509 +1cc to MR.R.Meenakshi, Advocate Sr 61391 SS(CO) km/4.11. WP Nos.25418/2008 & 8570 of 2009 https://hcservices.ecourts.gov.in/hcservices/