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Judgment
S.R. Singharavelu, J.,
1 Since all the petitioners belong to the same category and they have all filed contempt petitions against the same order of this Court, a following
common order is passed.
These contempt applications arise out of the alleged breach of the directions made in the judgment dated 23.01.2004 of Division Bench of this
Court in W.P.No.41427, 41434, 41442 and 41481 of 2002, in which the order dated 02.11.2001 passed by the Tamil Nadu Administrative
Tribunal in O.A.No.685, 2469 and 2470 of 1991 and 6083 of 1994 was confirmed to the effect that these petitioners, who were recruited as
Assistant Inspectors of Labour in Tamil Nadu Labour Subordinate Service by direct recruitment through Tamil Nadu Public Service Commission,
Chennai, are entitled for seniority, following the quota rules from the date of their joining and that they must be given appropriate placement as per
the above decision.
The respondents, herein namely, Principal Secretary to Government, Labour and Employment Department and Commissioner of Labour were
directed to take up the task of preparing the revised seniority list and that exercise was directed to be completed within a period of three months
from the date of receipt of the copy of that order.
The order of this Court in the above writ petitions was said to have been received in the office of the Commissioner of Labour on 06.02.2004.
In Memo No.E4/7564/2004 dated 16.04.2004 of the Commissioner of Labour, the inter se seniority in the cadre of Assistant Inspector of Labour
was said to have been refixed from the year 1973 following quota rota from the date of joining.
Although the direction was to refix seniority from the date of joining of these petitioners, which is of the year 1980, in order to set right the whole
issue in a full-fledged manner and according to the statue, the refixation was made by the respondents officials from the year 1973. There was also
statutory requirement of the same and in the process of such necessity to oblige the provisions of the statute, the directions of the High Court in the
above mentioned writ petitions was also found to have been manifestly obliged. This is the stand of the respondents. In this connection, mention is
necessarily to be made at the outset that direction of the High Court gets included in the statutory obligation and without treating them as distinct
and different, the fulfilling of the provisions which include the compliance of the directions may have to be appreciated, in case factually it is found
proper.
So far as the facts of the case are concerned, the petitioner in Contempt Petition No.651 of 2005 was appointed as Assistant Inspector of
Labour by direct recruitment through Tamil Nadu Public Service Commission, Chennai along with 37 others, of whom only 32 have joined and
were permanent members in the category of Assistant Inspector of Labour belonging to Establishment of Labour Department.
There was no seniority list except that was made in 1987 and that too as on 01.04.1984. These direct recruitees of the year 1978-79 were
shown in the seniority list in bunch serial No.426 to 457.
Proviso to Rule 3(a) of the Tamil Nadu Labour Subordinate Service stipulates the ratio in the appointment between direct recruitees and
transferees. The said proviso reads as follows:-
Provided that for out of every five vacancies, the first vacancy shall be filled or reserved to be filled by direct recruitment and the next four
vacancies shall be filled or reserved to be filled by the Personal of the Labour Department including Assistant Section Officers in Secretariat in the
Government of Tamil Nadu.
As and when vacancies arise, had the post been filled up in accordance with the quota rule, the allegation and discontentment of these
petitioners would not have arisen. In fact, according to General Rule 4(a) of Tamil Nadu State and Subordinate Services, the estimate of vacancies
shall be prepared taking into account the total number of permanent post, the number of temporary post in existence, the anticipated sanction of
new post in the next year, the recruitment post of leave reserves, the anticipated vacancies due to retirement and promotion etc., in the course of
the year.
As a matter of fact, during the year 1973-79, the number of Assistant Inspectors of Labour recruited by direct and by transfer were as follows:
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Sl.No. Year No.of persons who were No.of persons who were actually
recruited by direct by TNPSC recruited by transfer
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1 2 3 4
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1 1973-74 17 84
2 1974-75 17 5
3 1975-76 4 11
4 1976-77 3 27
5 1977-78 3 29
6 1978-79 38 33
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The Tamil Nadu Public Service Commission allotted 38 candidates which were notified for appointment to the post of Assistant Inspectors of
Labour by direct recruitment for the year 1978-79. Only 32 candidates joined duty, out of whom 10 were absorbed in the vacancies and
remaining 24 were absorbed in the vacancies caused by reverting 24 promotee Assistant Inspectors of Labour as Assistants.
Thus, the filling up of posts by transfer from promotees instead of direct recruitment, the quota rule was not properly adopted and therefore,
there was derangement of individual seniority of the direct recruitees of the year 1978-79, namely, the petitioners. According to them, had the
quota rules be applied without filling up the vacancies by transfer from promotees, their seniority would be much more favourable to them and this
procedural lapse on the part of the respondents damaged their seniority position.
Therefore, all these petitioners applied to the second respondent for refixation of their seniority in the cadre of Assistant Inspector of Labour
with reference to quota rota rule. In the Office Memo No.E4/99426/88 dated 05.11.1990, they were informed that their seniority in the cadre of
Assistant Inspector of Labour had been fixed in accordance with rule 35(aa) of General Rules for Tamil Nadu State and Subordinate Service.
Against which, the applicants had preferred an application before the Tamil Nadu Administrative Tribunal in O.A.685, 2469 and 2470 of
1991 and 6083 of 1994, wherein they have prayed that their seniority may be fixed as per rota and quota.
According to General Rule 35(aa) of Tamil Nadu State and Subordinate Services, ""the seniority of a person in a service, class, category or
grade shall where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the
individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the service,
class, category or grade"".
Proviso to Rule 3(a) of Tamil Nadu Labour and Subordinate Service stipulates only the ratio of appointment between the direct recruits and
transferees. The contention of the applicant saying that Rule 3 not only stipulates the quota fixed but also a rotation of vacancies has also been set
out for the purpose of seniority in the category of Assistant Inspector of Labour is not correct and is unsustainable.
The Tribunal, after going through the records and hearing arguments on both sides, passed orders on 02.11.2001 in O.As.685, 2469 and
2470 of 1991 and 6083 of 1994, which is as follows:
The applicants are entitled to get their seniority from the date of their appointment as Assistant Inspector of Labour following the Quota Rule fixed
in the Special Rules. This does not mean that the applicants have to be given seniority from the date when they were not in service. They are
entitled for seniority, following the quota rules from the date of their joining. Therefore, the applicants are entitled for fixation of revised seniority.
The impugned seniority lists have to be revised to give appropriate placement to the applicants as per the above decision. The original applications
are allowed to this extent. The applicants are entitled to get the resultant consequential benefits.
Aggrieved over the common order of the Tamil Nadu Administrative Tribunal dated 02.11.2001 in the above Original Applications, the
Government had preferred Writ of Certiorari on appeal before this Court on the ground that
(i) the impugned order of the Tribunal suffers from errors of law and fact and in violation of rule 35(aa) of the General Rules;
(ii) what is to be applied was Rule 35(aa) and not Rule 3(a) of the Tamil Nadu Labour Subordinate Services;
(iii) The Tribunal ought to have seen that the ratio for appointment by recruitment by transfer quota and direct recruitment quota from the years
1973 to 1979 which are furnished year-wise as follows:
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Year Direct Recruitment Transferee
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1973-74 2 4
26.12.74 to 126.02.77 1 4
17.02.77 to 1978 1 21
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There were three issues framed in the above writ petitions No. 41427, 41434, 41442 and 41481 of 2002.
(i) Whether Special Rule 3(a) only prescribes the quota for the direct recruits and the promotees and whether inter se seniority has to be guided by
the quota rule ? Whether the Special Rule 3(a) would prevail over the General Rule 35(aa)?
(ii) Whether between 1973-74 ane 1978-79, the quota rule had broken down
(iii) Whether the order of the Tribunal calls for any interference
The first issue was decided as follows:
...The above being the legal position, we do not find any substance in the contention of the writ petitioners that the relevant rule applicable is only
Rule 35(aa) of the General Rules and not Special Rule 3(a). That being so, we answer the first question in favour of the respondents herein.
For the second issue, namely, the quota rule had been broken down between 1973-74 and 1978-79, the following finding was given.
In fine, we come to the conclusion that it cannot be said that during the relevant period 1973-74 and 1978-79, the quota rule had broken down.
Regarding the last issue, namely, whether the order dated 02.11.2001 of the Tribunal calling for any interference, the following was the finding
in the writ petitions.
The Tribunal is perfectly right in holding that the respondents are entitled for seniority following the quota rule from the date of their joining and that
they must be given appropriate placement as per the above decision. The petitioners shall immediately take up the task of preparing the revised
seniority list and that exercise should be completed within a period of three months from the date of receipt of a copy of this order.
To arrive at this conclusion, the following observations was relied upon.
...since the promotees have been continuously officiating on the posts they are entitled to be put back to the date from which they have been
continuously officiating on the ground that the rule of quota has broken down. We find no force in the contention. From the judgment of the
Constitution Bench of this Court in Direct Recruit Class II Engineering Officers'' Association ..v.. State of Maharashtra, it is now settled law that
merely because temporary appointment or promotion came to be made, seniority cannot be counted from the date of officiation except when the
appointment was made in accordance with rules. Though appointment is temporary, if it was made in accordance with rules and to a substantive
vacancy, seniority will be counted from the date of temporary promotion. Necessarily, the quota and rota require to be maintained so as to give
effect to the object envisaged under the rules. Mere inaction cannot be made the ground to contend that the quota rule was broken down. It is not
in dispute that appointments have been made in officiating capacity against the vacancies reserved for direct recruitment though no recruitment had
taken place. They are not according to the Rules and within the quota. The Division Bench, therefore, has rightly held that the direct recruit is to be
treated from the date on which he actually joined the service, though vacancies did exist prior to that. As a consequence, the promotees are also
required to be fitted into the service from the date when they are entitled to fitment in accordance with quota and rota prescribed under the Rules.
The grievance of the petitioners is that even though there was a direction given to the respondents by the order dated 23.01.2004 in
W.P.41427 of 2002 etc., that they shall immediately take up the task of preparing the revised seniority list and that the exercise should be
completed within a period of three months from the date of receipt of a copy of that order, nothing substantial was made in order to comply with
the said order.
The petitioners in their affidavits also culled out para 12 and 13 of the order dated 02.11.2001 of the Tribunal, which is as follows:
This Hon''ble Court concluded as follows:-
The Tribunal is perfectly right in holding that the respondents are entitled for seniority following the quota rule from the date of their joining and
that they must be given appropriate placement as per the above decision. The petitioners shall immediately take up the task of preparing the
revised seniority list and that exercise should be completed within a period of three months from the date of receipt of a copy of this order.
Consequently, we dismiss the writ petitions with a costs of Rs.5,000/- (one set). Connected miscellaneous petitions stand closed.
The petitioners herein made a representation to the respondents on 10.03.2004 for the implementation of the above order of this Honourable
Court. He made a further representation on 10.04.2004.
The learned counsel for the petitioners vehemently projected that due to the lapse on the part of the respondents in the following concerned
Rules of Tamil Nadu State and Subordinate Service Rules, there was appointment by transfer from promotees instead of direct recruits and in such
kind of fallacious process, the seniority of the petitioners recruited directly in the year 1978-79 got affected and while it was requested to refix in
accordance with law, even the refixation done by the respondents in Memo No.E4/99426/88 dated 05.11.1990, there was further damage done
and even after the Tribunal''s order dated 02.11.2001, rectification in accordance with law regarding seniority has not been achieved and thus each
one claimed to demonstrate how their seniority was affected and how further they were affected in the admitted process of the respondents to
rectify the same. It is, therefore, these applications were filed for contempt.
Before proceeding with the contempt, the person alleging contempt shall put forth exactly the directions that was breached by the contemner.
True it is that the High Court in its order dated 23.01.2004 in W.Ps.41427, 41434, 41442 and 41481 of 2002 declared the entitlement of these
petitioners for seniority, following the quota rule from the date of their joining and that they must be given appropriate placement as per the said
decision. There was also a direction made to the respondents to prepare to take up the task of preparing the revised seniority list and that exercise
should be completed within a period of three months from the date of receipt of a copy of that order, which is dated 06.02.2004. In Memo
No.E4/7564/2004 dated 16.04.2004 of the Commissioner of Labour, inter se seniority in the cadre of Assistant Inspector of Labour has been
refixed in the year 1973, following quota rule from the date of joining. Incorrectness in the said process, is now alleged as breach.
It may amount to contempt if only a particular device or programme is either arranged by the Court or that arrangement submitted by the
petitioners was acknowledged by the said Court and that the same was breached. Neither in the order of the tribunal nor in W.P.41427 of 2004
etc., no such actuality of seniority of individuals were spelled out; it is only the policy and methodology that was declared regarding the entitlement
of refixation of seniority of petitioners; the actuality of the seniority of individual petitioners has not been dealt with by those forums nor was there a
submission of the resultant seniority of each individual in pursuance of the application of the concerned rule to the factual date of individual
appointment. Had there been any such occasion and if there is a deviation now made by the respondents, that would certainly be called as a
breach. In so far as that specific act of pondering in implementing the said policy declared in the above judgments was left in the hands of the
respondents and if in that attempt the respondents erred in any particular manner, that will only yield to a new cause of action for judicial review of
the fresh list prepared at the hands of the respondents and that may not by itself amount to a contempt.
In this connection, Mr.Somayajee, learned Additional Advocate General appearing for the respondents relied upon a case law in J. Parihar Vs.
Ganpat Duggar and others, , wherein the question that arose was whether seniority list was open to review in the contempt proceedings to find out,
whether it is in conformity with the directions issued by the earlier Benches. It was held in that case that the preparation of the seniority list may be
wrong or may be right, or may not be in conformity with the directions; but that would be a fresh cause of action for the aggrieved party to avail of
the opportunity of judicial review. It was further held that it cannot be considered to be the wilful violation of the order.
In fact, the following similar view was taken in a subsequent case reported in Indian Airports Employees Union v. Ranjan Chatterjee and Anr.
(1999) 2 L.L.N. 83. That was a case where the workmen originally filed an application for regularising their services by way of absorbing them as
employees of the Corporation, which was dismissed in March 1996; against which, the workmen union filed an appeal, wherein certain directions
were given, following the judgment in Air India Statutory Corporation v. United Labour Union (1997) 1 L.L.N. 75 and that direction is contained
in the case reported in 1997 3 LLN 78. Besides that, another direction to regularise the workers with effect from 27.03.1996 was also made
therein. Civil contempt was mooted with a claim that such benefit given to them by the Supreme Court in the judgment above mentioned was not
granted to the workmen, who were sweepers in the car parking area of the Bombay International Airport at the time the notification abolishing
contract labour came into effect on 09.12.1996. On their behalf, it was contended that there was clear contempt of the orders of Supreme Court
dated 11.04.1997 in 1997 3 LLN 78 and it was pointed out that names of these six employees were shown in the annexures to W.P.2362 of
1990 filed in the High Court by the workers.
In that case, it was argued that any bona fide action on the part of the respondents based on interpretation of the notification and judgment of
the Supreme Court, will not amount to breach of orders. It was held as follows:
It is well settled that disobedience of orders of Court, in order to amount to ""civil contempt"" under S. 2(b) of the Contempt of Courts Act, 1971,
must be ""wilful"" and proof of mere disobedience is not sufficient. S.S. Roy Vs. State of Orissa and Others, . Where there is no deliberate flouting
of the orders of the Court but a mere misinterpretation of the executive instructions, it would not be a case of civil contempt. Ashok Kumar Singh
and others Vs. State of Bihar and others, .
...
In our view, these rival contentions involve an interpretation of the order of this Court, the notification and other relevant documents. We are not
deciding in this contempt case whether the interpretation put forward by the respondents or the petitioners is correct. That question has to be
decided in appropriate proceedings. For the purpose of this contempt case, it is sufficient to say that the non-absorption of these six sweepers was
bona fide and was based on an interpretation of the above orders and notification etc., and cannot be said to amount to ""wilful disobedience"" of the
orders of this Court.
It was further pointed out that in a case law State of J & K v. Sayeed Zaffar Mehdi, (1997) 9 SCC 640 , it was held that in that contempt
application it was not open to the Court to enlarge the scope of the original petition and that care should be taken to see that the scope of the
original petition is not enlarged while making orders in the contempt matters.
Therefore, the remedy is to bring the matter for judicial review upon the new cause of action created by the refixation of seniority by the
respondents, which is alleged by petitioners, as incorrect.
For the reasons stated above, all the Contempt Petitions fail and are dismissed.