IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.08.2008 C O R A M THE HONOURABLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA W.P.Nos.29577 & 29878 of 2002 and W.P.M.P.No.48424 of 2002 and W.V.M.P.Nos.1348 of 2002 and 2510 of 2005 W.P.No.29577 of 2002 1. R.Thambusamy 2. G.Govindasamy 3. K.Muruganandam 4. S.Mannagetti 5. S.Kalivaradhan 6. R.Venkatachalam 7. M.Ramakrishnan .. Petitioners -Vs- 1. The Union Territory of Pondicherry, Represented by its Registrar, Co-operative Societies, Pondicherry. 2. Managing Director, Pondicherry Co-operative Sugar Mills Ltd., Lingerreddypalayam, Pondicherry. 3. The Administrative Officer, Pondicherry Co-operative Sugar Mills Ltd., Pondicherry. 4. I.Thirumurugan. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari, calling for the records of the 2nd respondent relating to his proceedings No.PCSM/Estt/5-471/2002/2557, dated 25.07.2002 and quash the same. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.No.29878 of 2002 1. T.Kathavarayan 2. R.Kalaiarasan 3. S.Kandasamy 4. A.Jayabalan 5. A.Shanmugam .. Petitioners https://hcservices.ecourts.gov.in/hcservices/ -Vs- 1. Pondicherry Co-operative Sugar Mills Ltd., Rep. by its Managing Director, Lingareddypalayam, Pondicherry. 2. Thirumurugan 3. T.Sarathy 4. V.Dhakshinamoorthy 5. D.Soundarajan (R2 to R5 impleaded as per order dt.07.03.2006 in W.P.M.P.No.40476/05) .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, to quash the order No.PCSM/ESTT/5-471/2002/2557, dated 25.07.2002, issued by the 1st respondent after calling for the concerned records from it and consequently direct the 1st respondent to continue the petitioners as Cane Assistants with all attendant benefits. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For Petitioners in W.P.No.29577/02 : Mr.K.Alagirisamy, Senior Counsel for Mr.R.Kannan. For Petitioners in W.P.No.29878/02 : Ms.R.Vaigai For Respondents R2 & R3 in W.P.No.29577/02 and R1 in W.P.No.29878/02 : Mr.T.R.Rajaraman. For Respondent 1 W.P.No.29577/02 : Mr.T.Murugesan Government Pleader (Pondy) For Respondents R2 to R5 in W.P.No.29878/02 and for R4 in W.P.No.29577/02 : Mr.R.Mahadevan https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R In both these writ petitions, the challenge is to the order of the second respondent dated 25.07.2002, in and by which, the promotion granted to the petitioners as Cane Assistant in the order dated 27.12.2000, came to be rescinded. 2. The brief facts which are required to be stated are that the petitioners were all working in the Pondicherry Cooperative Sugar Mills Limited and by virtue of the post held and qualification possessed by them in the year 1991/92, they were all eligible to be considered for promotion to the post of Cane Assistant. It is stated that the strength of the post of Cane Assistant was 25 in that year and the same was increased to 35 by May 1991. A circular was issued on 04.08.1992, for filling up the post of Cane Assistant. The candidates who were eligible were called for interview for the 16 vacancies and from among them, the petitioners who were 12 in number were selected. 3. The selection of the petitioners were challenged by the contesting respondents viz., respondents 2 to 5 in W.P.Nos.6691, 7458 and 7490 of 1993 and by an order dated 08.09.2000, the writ petitions were allowed and the selection of the petitioners were set aside on the sole ground that the Selection Committee which included an expert member was not a validly constituted Committee. While setting aside the selection, the learned Judge directed that the petitioners should be allowed to continue for three months within which period a fresh selection to be made by constituting a fresh Committee as per the recruitment rules. Thereafter, the Committee was constituted afresh which made the selection from amongst all the eligible candidates including the petitioners. There was a written test and an interview. The petitioners who came out successful in the written test came to be selected and were issued with separate orders of appointment dated 27.12.2000, as per the recruitment rules relating to the post of Cane Assistant. 4. The Recruitment Committee consisted of Managing Director, Chief Cane Officer, Controller of Finance, Administrative Officer and the Administrator in the place of two non-official Directors. Since the Board of Directors were not available as on the date of selection, it was the Administrator who was to represent the non- official Directors. It is stated that the Recruitment Committee held an interview on 01.12.2000, and on that date the Administrator was not present. It is stated that the Administrator specifically informed the Committee that since he was obliged to attend some important assignment on 01.12.2000, at the Head Quarters at New Delhi, the other members of the Recruitment Committee could proceed with the selection as the call notices were already issued to the candidates. The Committee therefore proceeded with the selection and https://hcservices.ecourts.gov.in/hcservices/ in that selection, the petitioners came out successful and were issued with the orders of appointment as Cane Assistants dated 27.12.2000. 5. In the above stated background, the contesting respondents filed Contempt Petition Nos.738, 765 and 766 of 2001 alleging violation of the orders of this Court dated 08.09.2000 and 23.11.2000 passed in W.P.Nos.7458, 7490 & 6691 of 1993 respectively. When the contempt petitions were pending, an affidavit came to be filed by the second respondent, based on the observations of this Court, that the selection proceedings dated 01.12.2000, were in violation of its orders; by taking the stand that they have decided to rescind the Selection Proceedings dated 01.12.2000. Recording the said statement found in the affidavit, the contempt proceedings was closed on 26.07.2002. It is in the above stated background, the impugned order dated 25.07.2002, came to be issued rescinding the order of promotion issued to the petitioners. 6. Assailing the impugned order, Mr.K.Alagirisamy, learned senior counsel representing the learned counsel for the petitioners in W.P.No.29577 of 2002 and Ms.R.Vaigai, learned counsel for the petitioners in W.P.No.29878 of 2002 contended that cancellation of their promotion, by the order impugned was wholly illegal, in as much as, there was no violation either in the constitution of the Committee or in the manner of selection made by the said Committee. According to the learned senior counsel, when the selection and appointment was given by a validly constituted Committee and by following the procedure prescribed under the relevant rules, merely because the second and the third respondent made certain wrong statements in the Contempt proceedings in order to get rid of the said proceedings without application of mind, the petitioners cannot be deprived of their valid right to retain the promotion accorded to them. In support of their submissions they placed reliance upon the decisions of the Hon'ble Supreme Court reported in 1972 3 SCC 383 and 1981 (Supp) SCC 36. 7. Per contra Mr.Mahadevan learned counsel appearing for the respondents 2 to 5 in W.P.No.29878 of 2002 relied heavily upon the orders passed in the contempt proceedings and contended that the respondents 2 and 3 have tacitly admitted the invalidity of the selection proceedings and on that very score, the impugned order should be upheld. In other words, the learned counsel contended that when the appointing authority himself having admitted the flaw in the issuance of the order of promotion, there is nothing more to be considered to sustain the impugned orders. 8. Having heard the learned counsel for the petitioners as well as the learned counsel for the respondents and on perusing the materials placed before the Court, I find that the impugned order of the second respondent is not legally sustainable. In order to https://hcservices.ecourts.gov.in/hcservices/ examine the correctness of the impugned order what all required to be seen is the constitution of the Committee which went into the selection for promotion of the various candidates including the petitioners. 9. According to the rules, the Managing Director, Chief Cane Officer, Controller of Finance, Administrative Officer and two non- official Directors were to hold the selection. It is not in dispute that in the absence of the Board of Directors, the Administrator can validly represent them, who will automatically get inducted into the Selection Committee. Thus in the present case, the Selection Committee consisted of the Managing Director, Chief Cane Officer, Controller of Finance, Administrative Officer as well as the Administrator. It is not in dispute that the petitioners were all eligible candidates as per the recruitment rules and that their selection to the post of Cane Assistant (Regular) based on their qualification and their performance in the selection process is not in dispute. The impugned order came to be issued solely because in the contempt proceedings, this Court observed that the Selection Committee did not validly function on the date of selection viz., 01.12.2000. On the date of selection, the Administrator did not participate since he had to go to Delhi on some important official assignment. 10. In the earlier order dated 08.09.2000, when W.P.Nos.6691, 7458 and 7490 of 1993 were allowed and the earlier selection was set aside, this Court only directed the second and third respondent to hold a fresh selection by constituting an appropriate Committee in as much as in the earlier Selection Committee, an expert member came to be inducted whose induction was not in accordance with the recruitment rules. Apart from directing the second and third respondent to hold a fresh selection by constituting a Committee in accordance with the rules and complete the selection within three months, there was no other direction to the said respondents. Therefore, it runs beyond ones comprehension as to whether there was any scope at all to find fault with the selection made on 01.12.2000, on the ground that the Administrator did not participate in the Committee proceedings on the date of selection. Therefore, the rescinding of the order of promotion issued to the petitioners by voluntarily submitting to such a consequence fearing contempt action cannot be a ground to sustain the order impugned in these writ petitions. In this context it will be worthwhile to refer to the decision of this Court reported in AIR 1970 MDS 14 (Abdul Razack Sahib Vs. Mrs.Azizunnissa Begum and Ors). In the said decision, it has been stated as under in paragraph 3: "3. In Ramalingam V. Mahalinga Nadar (AIR 1966 Mad 21), we formulated the principle of contempt jurisdiction thus-- https://hcservices.ecourts.gov.in/hcservices/ "Essentially contempt of Court is a matter which concerns the administration of justice and the dignity and authority of judicial tribunals; a party can bring to the notice of Court, facts constituting what may appear to amount to contempt of Court, for such action as the Court deems it expedient to adopt. But, essentially, jurisdiction in contempt is not a right of a party, to be invoked for the redressal of his grievances; nor is it a mode by which the rights of a party, adjudicated upon by a tribunal, can be enforced against another party." If we may use what may be considered an irrelevant expression, having regard to the high function of a Court of Justice, proceedings by way of contempt of Court should not be used as a 'legal thumbscrew' by a party against his opponent for enforcement of his claim. But that is what the petitioners have attempted in this case." 11. Therefore, in my considered view, the correctness or otherwise of the impugned order will have to be examined independently irrespective of what transpired in the contempt proceedings. Once I steer clear of the said position, the only other relevant point to be considered is whether the selection held by the present Committee on 01.12.2000, based on which the promotion order came to be issued could have been rescinded on any other ground. In this context, what is to be seen is whether the non-participation of the Administrator in the Committee proceedings on 01.12.2000, could have in any way affected the manner of selection of the petitioners for being promoted to the post of Cane Assistant (Regular). In that respect, the decision relied upon by the learned senior counsel for the petitioners reported in 1972 3 SCC 383 and 1981 (Supp) SCC 36 would fully support their stand. 12. In the decision reported in 1972 3 SCC 383 (Shri Ishwar Chandra Vs. Shri Satyanarain Sinha & Others) the Hon'ble Supreme Court has held in para 10 as follows: “10..... It is also not denied that the meeting held by two of the three members on April 4, 1970, was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid.” (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ Similarly, in the decision reported in 1981 (Supp) SCC 36 (J.Kumar Vs. Union of India and Others) the Hon'ble Supreme Court has held as under : “The main grouse of the petitioner whom we have heard in person is that Respondents 4 and 5, against whom the appeal is mainly directed, are members of the Selection Board which is meeting tomorrow and which is to interview him. We are told by learned Counsel for the Union of India that no minimum number of members is required to form the Board and that even if a couple of members out of the strength of present nine stay the proceedings of the Board would not be invalidated. In the circumstances we direct that Respondents 4 and 5 shall not take part in the proceedings of the Board at its meeting to be held tomorrow and the day after insofar as selection for promotions to the posts of Group Captains are concerned. Except for this no relief is granted to the petitioner. The order made by this Court on October 28, 1980 shall remain valid and binding.” Going by the ratio laid down in the above referred to decisions of the Hon'ble Supreme Court, when the case on hand is examined, in the relevant rules except stating that the selection committee should consist of the Managing Director, Chief Cane Officer, Controller of Finance, Administrative Officer and two non-official Directors, there is no other stipulations in the rules to the effect that in order to make the selection valid, there should be any quorum from amongst the committee members. If that be so, the mere non-attendance of the Administrator in the place of two non-official Directors by itself would not invalidate the selection proceedings held on 01.12.2000 and consequently the promotion orders issued to the petitioners based on the selection process held by the committee on 01.12.2000, could not have been rescinded. Therefore, the impugned order of the second respondent dated 25.07.2002 in having rescinding the selection proceedings dated 01.12.2000, merely on the ground that it gave an assurance in the contempt proceedings to rescind it cannot be sustained. Consequently, the order of appointment issued to the petitioner dated 27.12.2000, shall stand confirmed. 13. While entertaining these writ petitions interim orders were granted on 12.08.2002 and thereby the petitioners continue to function as Cane Assistants which post they were holding right from the year 1992. The interim injunction thus granted was continued by an order dated 20.08.2002 and was also subsequently made absolute by an order dated 22.09.2003. https://hcservices.ecourts.gov.in/hcservices/ 14. In the light of my above conclusion, the writ petitions are allowed and the impugned orders are set aside and there will be no order as to costs. All the Miscellaneous Petitions are closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kk To 1. The Registrar, Co-operative Societies, Union Territory of Pondicherry. 2. Managing Director, Pondicherry Co-operative Sugar Mills Ltd., Lingerreddypalayam, Pondicherry. 3. The Administrative Officer, Pondicherry Co-operative Sugar Mills Ltd., Pondicherry. +1 cc To Mr.T.R.Rajaraman., Advocate, SR.43195 1 cc To The Government Pleader,Pondy, SR.42972 +1 cc To Mr.R.Kannan , Advocate, SR.43020 +1 cc To Mr.R.Vaigai, Advocate, SR.43319 +2 ccs To Mr.R.Mahadevan , Advocate, SR.43097,43098 W.P.Nos.29577 & 29878 of 2002 and W.P.M.P.No.48424 of 2002 and W.V.M.P.Nos.1348 of 2002 & 2510 of 2005 ck [co] gkg/14.8 https://hcservices.ecourts.gov.in/hcservices/