IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.07.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM Writ Petition No.44972 of 2006 and WPMP.No.1 of 2006 1. 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 ..Respondents Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, calling for the records relating to the order of the 1st respondent in O.A.No.1142/2003 dated 24.2.2005 and quash the same. For Petitioners : Mr.Syed Mustafa for Govt.Pleader, Pondicherry For Respondents : Mr.V.Ajaykumar for R2 R1-Tribunal ORDER (Order of the Court was made by ELIPE DHARMA RAO, J.,) The writ petition is preferred against the order dated 24.02.2005 passed by the 1st respondent Tribunal in O.A.No.1142 of 2003 filed by the 2nd respondent herein. https://hcservices.ecourts.gov.in/hcservices/ 2. It is the case of the 2nd respondent before the Tribunal that he joined service in Government I.T.I., Karaikal and now he is working as Workshop Attendant. As per the Recruitment Rules, the Workshop Attendant was entitled to get promotion to the post of Craft Instructor. The Recruitment Rules for the post of Workshop Attendant was amended in November, 1987 and it was provided that the method of recruitment is by promotion 50% and by direct recruitment 50%. Promotion to the post of Store Attendant of Labour Department was provided from the post of Workshop Attendant, with 3 years of continuous service in that grade. Subsequently, another amendment was effected on 18.08.1999 requiring for a pass in the National Trade Certificate or equivalent and also Craft Instructor Certificate of a Central Training Institute. Since the incumbents in the post of Workshop Attendants were not in a position to acquire the Craft Instructor Certificate, the matter was taken up with the authorities and then, some candidates were allowed for training and after training, they were given promotion. Some other candidates approached the Tribunal claiming promotion without the Craft Instructor Certificate and the same was also allowed. It is the further case of the 2nd respondent that he has completed the course and obtained a certificate in 2001. In the meantime, his juniors were given promotional orders on 01.07.2003 and on 02.07.2003. The appellants have issued another order stating that the post of Craft Instructor has been re-designated as Vocational Instructor, which post carries the 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 is filled up 15% by promotion and 85% by direct recruitment and the experience of service candidates required for the post has been increased to eighteen years. Hence, the 2nd respondent filed the original application before the Tribunal to quash the column Nos.11 and 12 which have taken away the promotional avenue of the Workshop Attendants by increasing the experience qualification from three years to eighteen years of continuous service and consequently, to consider the 2nd respondent for promotion to the post of Vocational Instructor. 3. The appellants filed a counter stating that the Director General of Employment and Training, Government of India, Ministry of Labour, New Delhi, in his letter dated 24.07.1996 addressed to all the Labour Secretaries to State Governments and Union Territory Administrations, has issued directions to initiate necessary action to amend the Recruitment Rules in respect of Craft Instructors (Engineering Trades) working in the I.T.Is. so as to have two separate streams of Vocational Instructors and further instructed the appellant department to ensure that the pay scale of the Vocational Instructors be enhanced from Rs.1400-2600 to 1640-2900 and also further directed that the recruitment of Vocational Instructors should be done only in accordance with the revised qualifications with effect from 01.08.1997, failing which, the Institutes concerned would 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 for promotion from the post of Workshop Attendant to the post of Vocational Instructor (Practical/Theory) with their respective pay scales of Rs.3050-4590 and 5500-9000 is fixed as 18 years. The pay scales of the feeder post and the promotional post are levelled by four stages. In other words, promotion from the post of Workshop Attendant to the post of Craft Instructor amounts to multi-level jump of pay scales. Hence, the amendment in the Recruitment Rules in respect of column at 12 was made fixing the period of experience as 18 years, keeping the minimum residency period required for one pay scale to another at 3 to 5 years. Consequently, the percentage in the method of recruitment was amended, that is, by direct recruitment 85% and by promotion 15%. It is further stated that these are the matters which are exclusively within the domain of the executive and it is not for the 2nd respondent to sit in judgment over it or challenge the same. As per the final seniority list issued by the appellants department in the grade of Workshop Attendant/Store Attendant vide Memorandum dated 24.07.2003, the 2nd respondent is at No.21 and he is far junior in the cadre and as such, his right is in no way affected immediately by the said Recruitment Rules. Hence, the original application is liable to be dismissed. 4. After hearing both sides, the Tribunal set aside the provisions under column Nos.11 and 12 of the Recruitment Rules and observed that after finaliation of the Recruitment Rules, the promotion would be considered. Against which, the present writ petition is filed by the department. 5. Heard the learned counsel for both sides and perused the materials before us. 6. Learned counsel for the appellants contended that the 1st respondent Tribunal has failed to consider the fact that the amendment to the Recruitment Rules is fully approved by the Government, cleared by the U.P.S.C. and duly notified in the Gazette published by the Government of Pondicherry and therefore, it is legally valid in all respects. Further, since the 2nd respondent, being a junior in the post of Workshop Attendant, his claim for promotion by challenging the amendment in the Recruitment Rules is premature and suffers for want of legal premises. Hence, the impugned order is liable to be set aside. 7. On the other hand, the learned counsel appearing for the 2nd respondent would submit that the Tribunal has considered all the facts and circumstances of the case in their proper perspective and has allowed the original application filed by the employee, which needs no interference by this Court and has prayed to dismiss this writ petition. https://hcservices.ecourts.gov.in/hcservices/ 8. After going through the records, we are satisfied with the order passed by the Tribunal. The Tribunal has elaborately considered the germane issue involved in the matter, namely, promotion, prescription of qualification and other conditions of service. A perusal of amendment to Recruitment Rules dated 18.08.1999 shows that the post of Craft Instructor was to be filled up by promotion from the grade of Workshop Attendant/Store Attendant with 3 years of service. Subsequently, the same was amended and column No.11 of the Recruitment Rules shows that the method of recruitment is 15% by promotion and 85% by direct recruitment and column No.12 shows that promotion shall be given to Workshop Attendant, Store Attendant, Skilled Worker, Workshop Attendant of the department with 18 years of regular service. The amendment as to experience from 3 years to 18 years for considering the post of Workshop Attendant/Store Attendant for promotion, in our view, is arbitrary and illegal and no satisfactory explanation has been offered for doing so, except the one that there are four intervening levels of pay scales between the feeder post and the promotional post. As far as this department is concerned, namely, I.T.Is., there are no such posts carrying these intermediate pay scales. Whenever the department takes a decision to upgrade any post, they have to take into consideration the recruitment rules with reference to eligibility criteria viz., qualification and experience. There is no change in the feeder category as such and it is also not the case of the appellants that any new categories have been brought among the feeder posts. Hence, all other parameters remaining the same, the only position that is changed is the higher pay scale for the promotion post which has been enhanced from Rs.5000-8000 to Rs.5500-9000. 9. Further, according to Sl.No.14 of the Annexure to the Official Memorandum, the qualifying service prescribed from the scale 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 to enhance the period of service due to revision of scale, they should have limited this to a further period of three years. 10. With regard to the promotion and prescription of qualifications, it has been observed by the Tribunal that by virtue of the amendment, the promotional prospects of the 2nd respondent's category has been deeply affected; the ground furnished by the appellants for reducing the quota to 15% for promotion is that the number of feeder cadre is 13 as against the number of promotional posts 110, which does not appear to be correct as the seniority list furnished by the appellants themselves at Annexure-8 of their counter shows that there were 32 Workshop Attendants working as on 24.07.2002 and besides the Store Attendants of Labour Department who are also eligible under the rules for promotion, some other categories of skilled workers and Workshop Attendants are also reflected in the recruitment rules. https://hcservices.ecourts.gov.in/hcservices/ 11. In view of the above, the cadre strength should be assessed in totality. However, we find, even the 50% promotion was interchangeable with direct recruitment if sufficient qualified candidates were not available. Therefore, we are of the view that the changes made in columns No.11 and 12 of the Recruitment Rules are arbitrary and illegal. The Tribunal has properly considered all the facts and circumstances of the case and has allowed the application filed by the employee. There is no valid ground to interfere with the order passed by the Tribunal. Consequently, the writ petition fails and is dismissed. No costs. Connected WPMP.is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar gl To 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 2006 KGK (CO) GSK 27.07.2009. https://hcservices.ecourts.gov.in/hcservices/