IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 6.4.2010 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL W.P.No.33661 of 2002 The Southern Regional Mineral Labours Association, Itamozhi Road, Mahadevankulam Post, Tirunelveli District, rep by its President R.Balakrishnan Petitioner vs. 1. The Chairman, Board of Mining Examination, Director General of Mines Safety, Dhanabad 826 001. 2. Director General of Mines Safety, Ooragum Region, Ooragum, K.G.F. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondents to permit the members of the petitioner Association to sit for the examination in Mine Foreman and Mining Mate to be held in September 2002 or any other subsequent dates without insisting on production of experience certificate in blasting and to declare the result of the examination. For petitioner : Mr.C.Selvaraju, Senior Counsel for Mr.G.Sankaran For respondents: Mr.J.Ravindran, Central Government Standing Counsel https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner Association consists of Workers in Beach Mineral Mines like Garnet, Ilmenite, Rutile etc. Unlike Underground mining and Open Cast Mining, Placer Mining or Beach Mineral Mining involves scooping of placer deposits by using spades and baskets. The post of Mine Foreman and Mining Mate are governed by Metalliferous Mines Regulations 1961 (hereinafter called "the Regulations). The members of the petitioner Association sought for exemption from possessing blasting experience certificates to appear for Mine Foreman/Mining Mate Examination. But, the same was returned by the first respondent on the ground that exemption cannot be granted in terms of Mining Regulations. 2. The petitioner Association would contend that the members of the petitioner Association have got general qualification and they have also got practical experience in Metalliferous Mine as adumbrated in Regulation 18. The members of the petitioner Association have no occasion to use any machinery or explosive while carrying out placer mining or Beach Mineral Mining Operation. The Regulations would indicate that practical experience in mining is sufficient to appear for the examination either for Mine Foreman or for Mining Mate. The Placer Mining does not involve any blasting as removal of Beach Placer is the operation involved in Beach Mineral Mining. It is submitted that the petitioner Association has been languishing in mines for several years as labourers though they are entitled to be appointed either as Mine Foreman or as Mining Mate through the examination conducted by the first respondent Board. 3. The respondents filed counter stating that under Regulation 13(4) of the Regulations, the Board of Mining Examination has been given the power to make bye laws as to the conduct of the examinations as well as the standard of knowledge required for grant of certificates of any particular class. Practical experience is required for the examination of the Mate and Blasting services as laid down by Regulation 18 and also by the bye laws framed by the Board in that regard. Regulation 18(3) of the Regulations also gives power to the Board to specify the nature of practical experience required from the candidates appearing for Mate and Blasting Examinations. Only after considering the risk and responsibilities involved in the duties of Mining Mate and Mine Foreman in the background of the Regulations and Bye laws governing the conduct of examinations, the representation made by the members of the petitioner Association was returned stating that the exemption of that kind could not be granted. It is further contended that under Regulation 160, blasting is to be done by a competent person viz., Blaster or a Mate or a Foreman. A Mate has a dual responsibility of not only supervising in general https://hcservices.ecourts.gov.in/hcservices/ but also conducting and supervising blasting operation. Though Beach Mineral Mining does not require blasting and the members of the petitioner Association are not engaged in blasting operations while doing Beach Mineral Mining operation, the members of the petitioner association cannot escape the mandatory provision of law by seeking exemption from practical experience in blasting operation, it is contended. 4. There are three types of mining operations. As far as Underground Mining is concerned, minerals like coal and gold are excavated by forming a tunnel under the ground without disturbing the surface of the land. In Open Cast Mining, top of the soil is removed and heaped in a separate place and minerals are quarried by using machinery and explosives. As far as Placer Mining or Beach Mineral Mining is concerned, the minerals which are deposited in the shoreline due to the violent action of the sea waves and shore currents are scooped by using spades and baskets. There is no dispute to the fact that the members of the petitioner Association are involved only in Placer Mining or Beach Mineral Mining which does not require either excavation or blasting by using explosives. 5. The respondents have categorically admitted in para 8 of the counter that Beach Mineral Mining does not require blasting and that the members of the petitioner Association are also not engaged in blasting operations while blasting the mines. 6. The Government of India by exercising its power under section 57 of the Mines Act, 1952 framed Metalliferous Mines Regulations, 1961 categorising several posts in the field of mining. The qualifications for those posts also have been prescribed thereunder. 7. The first respondent conducts the examination for issuance of certificate to those who qualify for appointment to the post of Mine Foreman and Mining Mate. 8. Regulation 15 specifies the age and general qualification of candidates who opt for the examination held by the Board for the position of Managers, Surveyors, Foremans, Mates and Blasters. Regulation 16 prescribes practical experience for Manager Examinations. Regulation 17 prescribes the practical experience required for Surveyor Examination. Regulation 18(1) prescribes practical experience for Mate Certificate Examination. It is to be noted that Regulation 18(1) which prescribes practical experience for Mate Certificate Examination does not require any experience in blasting. Regulation 18(2) prescribes practical experience for blaster certificate. The said practical experience necessarily involves experience in blasting. https://hcservices.ecourts.gov.in/hcservices/ 9. Regulation 18(3) would read that the nature of practical experience required of candidates for the Mates and Blasters Examination shall have experience of such a type as may be approved by the Board. 10. Learned Senior Counsel appearing for the petitioner would vehemently submit that the bye-laws for conduct of examinations for Mining Mates Certificate have been framed by the respondent Board quite against the ambit of Regulation 18(1). He also drew the attention of this court to the unreported judgment of this court in THE BISHOP/PRESIDENT, TAMIL EVANGELICAL LUTHERAN CHURCH AND ANOTHER v. S.D. MOHAN DAS GANDHI AND 9 OTHERS (O.S.A.Nos.388, 389, 397, 398 to 406 of 2007 and 25 of 2008 dated 4.3.2008) wherein it has been held as follows:- "A reading of the above sub-section, which has now been omitted by Act No.19 of 2000, makes it clear that the legislture which in its wisdom originally incorporated the said provision creating a restriction in the holding of office as a member of a committee continuously beyond two terms and that there should have been a break of at least one term in order to enable such member to get re-elected again to the office of a member of a committee thought it fit that even the said restriction was no longer required. Therefore, the contention of the appellants merits acceptance. When the statute does not create an embargo for an existing Church Council Member to contest for the election and get re-elected for any number of terms, the Rule which has lesser force when compared to the statutory provisions cannot be permitted to operate and the said rule is liable to be ignored when it conflicts with the statutory provision." 11. In the background of the above ratio, the learned Senior Counsel appearing for the petitioner would submit that a different prescription of experience mandated by the Board in the bye law framed by it against the spirit of the Regulations will not have any legal force. 12. The learned Central Government Standing Counsel appearing for the respondents would submit that the bye laws have been framed to specify the nature of experience of candidates for Mates and Blasters Examination as empowered under Regulation 13(1) and Regulation 18(3) of the Regulations. Regulation 18 prescribes the general practical experience required for Mates and Blasters Examinations. Practical experience and training in a Metalliferous Mine for a specific period has been prescribed for Mates Certificate under Rule 18(1). A separate practical experience in https://hcservices.ecourts.gov.in/hcservices/ Metalliferous Mine with experience and training in Shot Firing has been prescribed for Examination for Blasters Certificate under Rule 18(2). 13. As rightly pointed out by the learned Central Government Standing Counsel appearing for the respondents, Regulation 13 gives ample power to the Board to conduct examinations and issue certificates of competency to successful candidates in such form as may be prescribed by it. Regulation 18(3) gives enormous power to the Board to prescribe the nature of practical experience required of candidates for Mates and Blasters Examinations. 14. Regulations 18(1) and (2) prescribe only general experience of candidates for Mates and Blasters Examinations. Though it prescribes that one should have got training and experience in Metalliferous Mine and operation, it is only the bye law that prescribes the actual nature of experience required in Metalliferous Mining activity. The nature of experience prescribed by the Board in the bye law does not have a remarkable departure from the Regulations prescribing general experience of candidates for Mining Mates Certificates and Blasters Certificates. The bye laws framed by the first respondent is only in consonance with the directions found in the Regulations and not in contravention thereof. 15. In the instant case, the members of the petitioner Association are admittedly involved in Placer Mining or Beach Mineral Mining which does not require blasting operation or underground mining operation. Bye law 1(a) prescribes practical experience and training for the grant of Mining Mates (Unrestricted) Certificate. Experience/Training in blasting has been prescribed thereunder as one of the required qualification for the grant of Mining Mates (Unrestricted) Certificate. For the grant of Mining Mates certificate restricted for mines having open cast workings, a candidate shall have experience/training in blasting for atleast 12 months as prescribed in bye law 1(6). In other words, the blasting experience has been prescribed for Mining Mates (Unrestricted) Certificates as well as for Mining Mates Certificate restricted for mining having open cast workings. 16. A person having Mining Mate (Unrestricted) Certificate can be employed in Underground Mining, Open Cast Mining and Placer Mining. A person having Mining Mates Certificate restricted for mines having Open Cast workings only cannot serve in Underground Mining operation. He can serve only in Open Cast Mining operation. 17. Quite unfortunately, the first respondent has not thought it fit to prescribe separate experience/training for the Mining Mates restricted for mines having Placer Mining or Beach Mineral https://hcservices.ecourts.gov.in/hcservices/ Mining operations. It is brought to the notice of this court that the members of the petitioners have been languishing in the Placer Mining or Beach Mineral Mining Operation, which does not require blasting, for several years as labourers. Therefore, their ambition to become Mine Foreman or Mining Mate has become a day dream as the prescription of experience/training under the Bye law has completely ignored their interest. I feel that it is not out of context to refer to the observations by the Supreme Court, of course in a different context, as the same has some contextual relevance in the case on hand. It has been observed by the Supreme Court in RAGHUNATH PRASAD SINGH v. SECRETARY, HOME (POLICE) DEPARTMENT, GOVERNMENT OF BIHAR AND OTHERS (AIR 1988 SC 1033) as follows:- "Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. We would, therefore, direct the State of Bihar to provide at least two promotional opportunities to the officers of the State Police in the wireless organisation within six months from today by appropriate amendments of Rules." 18. The rules and regulations cannot be permitted to knock away the promotional avenues of an employee. The bye law framed by the first respondent has virtually taken away the promotional opportunities of the members of the petitioner Association who have been in the mining operation for a long time. If the bye law framed by the first respondent is not amended to provide opportunity for those employees serving in Placer Mining or Beach Mineral Mining which does not require blasting, degeneration and stagnation would set in which would definitely annihilate their desire to serve with devotion. 19. As rightly pointed out by the learned Senior Counsel appearing for the petitioner, the employees working in Placer Mining or Beach Mineral Mining Operation who just scoop the placer deposits found in the shoreline using spades and baskets without engaging in blasting, have been completely marginalised and thereby they have been discriminated in the matter of promotion to the cadre of Mining Mate and Mine Foreman. 20. Further, the bye law which requires blasting experience/training for the Mate Certificate to be issued to the employees engaged in Placer Mining or Beach Mineral Mining operation which does not involve blasting stands not to reason. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the unreasonable, unjustifiable and discriminatory provision of the bye law framed by the first respondent will have to be modified to suit the needs of the workers involved in Placer Mining or Beach Mineral Mining operation so that they can serve better in the Mining operation. 21. The learned Central Government Standing Counsel would submit that the petitioner Association, indeed, espouses the cause of the individual employees and not the common issue of the Association. Denial of the opportunity to sit for the examination of the members of the Association, though was individualistic at the very inception, has now snowballed into a potential threatening issue of the entire members of the Association. Therefore, the court cannot, while exercising its jurisdiction under Article 226 of the Constitution of India, force every individual who is affected by this bye law to come to the court to redress his grievance. The Association has rightly espoused the cause of its members. Therefore, the writ petition is quite maintainable. 22. It is further submitted by the learned Central Government Standing Counsel that rejection of the application praying for exemption from the prescription of experience/training in blasting operation or the material provisions of bye law were not under challenge. 23. Though the validity of the bye law has not been focussed in the writ petition, the discrimination practised by prescription of experience for the employees involved in Placer Mining has been focussed in this writ petition. The petitioner Association can very well ignore the rejection of the plea for exemption sought for by an individual employee and focus its attention to the general cause of its employees and seek for the relief couched in the writ petition. At any rate, the writ petitioner cannot be shown the doors on the technical ground that neither the bye law nor the order of rejection was under challenge before this court. 24. In view of the above facts and circumstances, the first respondent is directed to seriously consider the introduction of amendment to the bye law prescribing necessary experience/training of the candidates for the examination of Mine Foreman and Mining Mate restricted to Placer Mining or Beach Mineral Mining operations only. The respondents are also directed to permit the members of the petitioner Association to sit for the examination in Mine Foreman and Mining Mate to be held in future without insisting upon any experience/training in blasting or shot firing and issue certificates to the successful Mine Foreman and Mining Mate restricted to Placer Mining or Beach Mineral Mining Operations only. https://hcservices.ecourts.gov.in/hcservices/ 25. With the above directions, the writ petition stands allowed. There is no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ssk. To 1. The Chairman, Board of Mining Examination, Director General of Mines Safety, Dhanabad 826 001. 2. The Director General of Mines Safety, Ooragum Region, Ooragum, K.G.F. 1 cc to Mr.G. Sankaran, Advocate, Sr. 22774 1 cc to Mr.J. Ravindran, Advocate, SR. 22892 W.P.No.33661 of 2002 KA (CO) kk 16/4 https://hcservices.ecourts.gov.in/hcservices/