AI Structured Summary
Not yet generated for this judgment
Judgment
S. Tamilvanan, J.—Aggrieved by the order, dated 04.07.2006 made in O.A. No. 218 of 2005 by the Central Administrative Tribunal,
Madras Bench, the petitioners herein have preferred W.P. No. 44921 of 2006. As per the impugned order, the Tribunal has set aside the order,
dated 15.03.2005 passed by the petitioners herein and directed them to post the second respondent herein as Joint Chief Inspector of Factories
(JCIF) within a period of two weeks from the date of receipt of a copy of the order.
W.P. No. 44922 of 2006 has been preferred by the petitioners herein against the order, dated 04.07.2006 made in O.A. No. 814 of 2005 on
the file of the Central Administrative Tribunal, Madras Bench. The Central Administrative Tribunal for the reasons stated in the impugned order,
has allowed the Original Application and the recruitment rule made by G.O.Ms. No. 6, dated 08.03.2005, equating the post of Principal Group
''A'' (Senior Scale) with the post of JCIF was also set aside with the liberty to initiate the process of formulating recruitment rules in accordance
with law.
It is not in dispute that the second respondent / applicant initially joined the service in the Government of Pondicherry as a Craft Instructor in the
Labour Department on 03.11.1975 and was appointed as Group Instructor on regular basis, subsequently, promoted as Inspector of Factories on
27.09.1982 and as Principal, Group ''A'' (Junior Scale) on regular basis with effect from 25.08.1989. On 26.07.2001, he was promoted as Joint
Chief Inspector of Factories (in short JCIF) on regular basis as per procedure. Aggrieve by the said promotion of the second respondent /
applicant, the third respondent in W.P. No. 44921 of 2006, Sri. P.S. Krishnamurthy, who was promoted as Principal, Group ''A'' (Junior Scale)
subsequent to the promotion of the second respondent / applicant, submitted a representation before the competent authority, based on which, the
Government initiated steps to convene a review DPC, but the same was rejected by the UPSC. Then the second respondent / applicant was
issued promotion order as JCIF and joined duty in the said post on 26.07.2001. The said promotion was challenged by Sri. P.S. Krishnamurthy in
O.A. No. 795 of 2001, but the same was dismissed by the Tribunal on 29.07.2001. According to the petitioners, the Government of Pondicherry
has also sent a proposal to UPSC for amendment of the recruitment rules equating the post of Principal, ITI held by Sri. P.S. Krishnamurthy, the
third respondent, with that of JCIF.
Pursuant to the draft recruitment rules equating the posts, the second respondent / applicant herein was transferred from JCIF and posted as
Principal, Group ''A'' (Senior Scale), on 30.09.2003. The said order was challenged by the second respondent / applicant in O.A. No. 869 of
2003, which was allowed by the Tribunal on 06.01.2004. Though the Government filed W.P. No. 427 of 2004 and also obtained stay of the
order of the Tribunal, ultimately, the writ petition was dismissed on 16.02.2005. The notification in G.O.Ms. No. 6, dated 08.03.2005, to amend
the recruitment rules, relating to the post of JCIF / Chief Principal, Group ''A'' (Senior Scale) was published on 15.03.2005. On the said date, the
second respondent / applicant was transferred and posted as Principal, Group ''A'' (Senior Scale) to the Government ITI, T.R. Pattinam, Karaikal,
from the post of JCIF, Pondicherry. Challenging the said order, the second respondent / applicant filed O.A. No. 218 of 2005, before the Central
Administrative Tribunal.
In the aforesaid Original Application, filed against the order of the petitioners, the following relief had been sought for by the petitioners therein.
to set aside the impugned order passed in No. 3550/Lab/Estt./A1/2005, dated 15.03.2005 by the Government of Pondicherry, Labour
Department ; and
to direct the petitioners to post the second respondent herein as Joint Chief Inspector of Factories, Pondicherry, as per the direction of the
Tribunal, which was upheld by the High Court of Madras, at Chennai.
The Tribunal has allowed the O.A. No. 218 of 2005 and set aside the order, dated 15.03.2005 passed by the petitioners herein and also
directed them to post the second respondent herein as JCIF, within the specified time limit. Aggrieved by which, the petitioners have preferred the
writ petition in W.P. No. 44921 of 2006.
In O.A. No. 814 of 2005, relating to W.P. No. 44922 of 2006, the petitioners herein have challenged the revised recruitment rules introduced
by G.O.Ms. No. 6, dated 08.03.2005, equating the two posts, namely, Joint Chief Inspector of Factories (JCIF) and Principal, Group ''A''
(Senior Scale) and also to set aside the impugned Recruitment Rules issued in G.O.Ms. No. 6, dated 08.03.2005 equating the post of Principal
Group ''A'' (Senior Scale) with that of the post of Joint Chief Inspector of Factories.
The Administrative Tribunal, has held that the amended rules are arbitrary and violative of Articles 14 and 16 of the Constitution of India.
According to the Tribunal, the purpose for bringing the amended rules was not germane, but was directed only to achieve a different purpose and
accordingly, allowed the Original Application and set aside the recruitment rules made in G.O.Ms. No. 6, dated 08.03.2005, which was
introduced for the purpose of equating the post of Principal, Group ''A'' (Senior Scale) with the post of JCIF. Aggrieved by which, W.P. No.
44922 of 2006 has been preferred by the petitioners herein.
It is seen that the second respondent herein has raised two grounds for consideration of the Original Application before the Tribunal:
The order of transfer is made on malafide grounds and therefore is liable to be set aside.
The post of JCIF and Principal, Group ''A'' (Senior Scale) cannot be equated and that the second respondent has challenged the recruitment
rules and that the same was also allowed in his favour.
It is not in dispute that the second respondent herein was promoted and posted as Principal, Group ''A'' on 25.08.1989 itself and
subsequently, he was promoted to the post of JCIF, by an order, dated 26.07.2001. While, the second respondent was holding the post of JCIF,
the third respondent was only promoted as Principal, Group ''A'' (Junior Scale), admittedly, not an equivalent cadre to that of JCIF, but was only a
feeder category.
Mr. K.K. Sasidharan, learned Government Pleader (Pondicherry) appearing for the petitioners contended that as per G.O.Ms. No. 26, dated
17.09.2001, the department has created the post of Principal, Group ''A'' (Senior Scale), in order to facilitate the filling up of the said post, for
which draft recruitment rules have been prepared. Though the post of Principal, ITI, Karaikal was originally Principal, Group ''A'' (Junior Scale)
shown as feeder cadre to the post of JCIF, subsequently, it was made as Principal, Group ''A'' (Senior Scale). According to him, in order to
create more promotional avenues in the department and also keeping in mind, the guidelines issued by the Central Vigilance Commissioner, the
post of Principal, Group ''A'' (Senior Scale) was created with the same pay scale of JCIF and hence, it was only a transfer and that the second
respondent cannot question the order of transfer.
Per contra, Mr. Karthik Mukundan, learned Counsel appearing for the second respondent contended that Mr. Krishnamurthy, the third
respondent herein was posted as JCIF, even without undergoing any DPC selection process, but solely based on the draft recruitment rules,
though, he was only in the feeder category as Principal, Group ''A'' (Junior Scale). By amending the rules, Mr. Krishnamurthy, who had been in the
feeder cadre of Principal, Group ''A'' was posted as JCIF and the second respondent, who was already promoted from the cadre of Principal,
Group ''A'' and holding the post of JCIF was again posted as Principal, Group ''A'', merely on the ground of the amendment to the rule and also
fixed equal pay scale, which is violative of Articles 14 and 16 of the Constitution of India, as ruled in various decisions rendered by the Hon''ble
Apex Court.
According to the learned Counsel for the second respondent, the pay scale alone cannot be the sole criteria to equate the post of JCIF and
Principal, Group ''A'' (Senior Scale), but without considering the four vital factors set out by the Hon''ble Supreme Court for the purpose of
equation of posts, the impugned Government Order has been passed. According to him, JCIF is an isolated post, next below the rank of Chief
Inspector of Factories, whereas the post of Principal Group ''A'' is an excadre post, to an institution of Industrial Training and the post of JCIF is
attached with the duties and responsibilities of greater importance, especially involving the Enforcement of Factories Act, Boilers Act and Indian
Boilers Regulation of the Government of India, whereas the post of Principal, Group ''A'' (Senior Scale) is attached with the duties and
responsibilities of a limited sphere and control over an institution, as such the powers are confined only as a Head of the Institute. While the post of
JCIF requires a minimum qualification of Degree in Mechanical / Industrial / Chemical Engineering, the post of Principal Group ''A'' requires either
Degree or Diploma in Engineering. The post of JCIF is governed by the Recruitment Rules from 1984 onwards, whereas there is no Recruitment
Rules governing the post of Principal, Group ''A'' (Senior Scale). It is further contended that the rule was brought into existence for extraneous
reasons, with ulterior motive to set at naught the decision of the Court and to bring back the third respondent herein from the post of Principal,
Group ''A'' to the post of JCIF and send back the second respondent to the said post, which was already held by him, prior to his promotion as
JCIF, violating the law laid down by the Hon''ble Apex Court.
The following decisions were cited to decide the question of law involved in these writ petitions.
Ishwar Dutt Vs. Land Acquisition Collector and Another,
Ramadhar Shrivas Vs. Bhagwandas,
Pondicherry Khadi and Village Industries Board Vs. P. Kulothangan and Another, .
S.I. Rooplal and Another Vs. Lt. Governor Through Chief Secretary, Delhi and Others, .
P.U. Joshi and Others Vs. The Accountant General, Ahmedabad and Others, .
A.P. Cooperative Oil Seeds Growers Federation Ltd. Hyderabad, Andhra Pradesh Vs. D. Achyuta Rao and Others, .
In the decision A.P. Cooperative Oil Seeds Growers Federation Ltd. Hyderabad, Andhra Pradesh Vs. D. Achyuta Rao and Others, , the
Hon''ble Supreme Court has held as follows:
The management acted in exercise of its authority to grant promotions. The action of the Management in granting promotions must be determined
on the touchstone of Articles 14 and 16 of the Constitution of India. If the grant of promotions is found to be arbitrary or unreasonable, it must be
held that such promotions will not affect the right of seniority of the persons concerned, since the promotions were granted neither in accordance
with any rule nor by following norms consistent with principles incorporated in Articles 14 and 16 of the Constitution of India. The High Court has
very critically analysed the facts of the case. It has found as a fact that there was no clear cut promotion policy either in the Federation or in the
Unions.
In the above decision, the Hon''ble Apex Court has categorically held that even in the matter of promotion, the management should not violate the
mandate under Articles 14 and 16 of the Constitution of India.
In the decision Ishwar Dutt Vs. Land Acquisition Collector and Another, , the Hon''ble Supreme Court has held that ""the principle of res
judicata is a species of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res
judicata shall fully apply. Cause of action for estoppel arises, where the cause of action in the later proceedings is identical to that of the earlier
proceedings between the same parties and having involved the very same subject matter. In such a case, the bar is absolute in relation to all the
points, which was decided, unless fraud or collusion is alleged, such as to justify in setting aside the earlier judgment.
It is not in dispute that O.A. No. 869 of 2003 was filed by the second respondent herein, challenging the order of transfer to the post of
Principal, Group ''A'', since he was promoted from the said post and holding the higher post and his junior was posted as JCIF in the guise of
transfer as JCIF. It is seen that the Administrative Tribunal has allowed the application and set aside the order passed by the petitioners herein.
Aggrieved by which, the petitioners herein filed the writ petition in W.P. No. 427 of 2004, and this Court by order, dated 16.02.2005, has
accepted the contentions raised by the second respondent herein. Admittedly, the second respondent was promoted to the post of JCIF from the
feeder category of Principal, Group ''A'' and again he was posted as Principal, Group ''A'', by an order styled as an order of transfer. According to
the learned Counsel for the second respondent, virtually the effect of such order amounts to demotion.
It has been admitted that the promotion of the second respondent herein, as JCIF was unsuccessfully challenged by Mr. P.S. Krishnamurthy,
the third respondent, but he could not get the promotion as JCIF in the normal course. After the passing of the impugned G.O, equating the two
posts, by way of transfer, the third respondent had been managed to be posted in the said cadre of JCIF and the person, who was already
promoted on regular basis, as per procedure and also holding the post was again sent back to the erstwhile feeder category, in the name of
transfer, by way of amending the rules, thereby equating the post of JCIF with that of Principal, Group ''A'' (Senior Scale). It has been contended
by the second respondent that though the Principal Group ''A'' (Senior Scale) may have the same scale of pay, the post initially being a feeder
category for the promotion of JCIF, must be construed only an inferior post to JCIF. This Court by order, dated 16.02.2005 made in W.P. No.
427 of 2004 has held as follows:
The facts and circumstances of the case clearly indicate that the present Respondent No. 2 was being sent as Principal, Group ''A'' Senior Scale in
a leave vacancy. There is no dispute that the person in whose leave vacancy the present Respondent No. 2 was sought to be posted was much
junior, not yet entitled to Principal, Group ''A'' Senior Scale. Even assuming that such post was made similar by the Government, nothing has been
indicated as to why the present Respondent No. 2, who was regularly promoted to the post of JCIF was posted to the leave vacancy, instead of
sending the present Respondent No. 3, who was still continuing in the Principal, Group ''A'' Junior Scale. The Tribunal has rightly observed that
what could not be directly achieved was ought to be achieved by the present process.
With the above observation, the writ petition filed by the petitioners herein was dismissed, confirming the order passed by the Tribunal, in favour of
the second respondent.
We are of the considered view that the decisions rendered by the Hon''ble Apex Court in Ishwar Dutt Vs. Land Acquisition Collector and
Another, and Pondicherry Khadi and Village Industries Board Vs. P. Kulothangan and Another, referred to above are squarely applicable in the
facts and circumstances of this case.
In S.I. Rooplal and Another Vs. Lt. Governor Through Chief Secretary, Delhi and Others, , the Hon''ble Supreme Court referring the decision,
Union of India (UOI) and Another Vs. P.K. Roy and Others, , has held that equation of post has to be determined by taking into account the
following factors'' (i) nature and duties of post; (ii) responsibilities and powers exercised by officer holding a post; extent of territorial or other
charge held or responsibilities discharged; (iii) minimum qualifications, if any, prescribed for recruitment to the post; and (iv) salary of the post. As
per this judgment, it has been made clear that the salary of post is only the last criteria for the purpose of finding equivalence of posts, but not the
sole criteria.
It has been clearly admitted that Principal, Group ''A'' was only a feeder category to JCIF. When the second respondent was promoted as
JCIF, there is no change in the nature and duties of the said posts. The responsibilities and powers exercised by officers holding the post of JCIF
and Principal, Group ''A'' (Senior Scale) have got no change even after the impugned G.O. The minimum qualification prescribed for the
recruitment of the aforesaid post are also different, as discussed earlier in this order. In fact, the petitioners herein have not disputed the aforesaid
contentions of the second respondent, in their reply statement filed before the Tribunal, with regard to the said four factors. Therefore, it is quite
clear that the post of Principal, Group ''A'' which was originally a feeder category for JCIF has been equated by the petitioners, without
considering responsibilities, nature and duties of the said posts and the difference in the minimum required qualification already prescribed for both
the posts and hence, it would be violative of mandate under Articles 14 and 16 of the Constitution of India.
It is an admitted fact that JCIF is next to the Chief Inspector of Factories, as held in the impugned orders. The Tribunal has clearly extracted
the duties and functions of JCIF and Principal, Group ''A'' (Senior Scale). But, without making any change in the nature of duties, powers,
responsibilities and the minimum qualification prescribed for the aforesaid two posts, the petitioners herein, merely considering the equal pay drawn
by the said officers, has equated the posts and pursuant to the same, transferred the second respondent, who was holding comparatively superior
post of JCIF to the post of Principal, Group ''A'', which was already held by him prior to his promotion and the third respondent, who was an
unsuccessful candidate in getting JCIF has been posted as JCIF, under the guise of equating the posts and on the ground of transfer.
It is not in dispute that the post of Principal, Group ''A'' was originally a feeder category to JCIF and the second respondent was promoted
from the said post to JCIF, as per the procedure known to law. Mr. P.S. Krishnamurthy, the third respondent, who was unsuccessful in getting
promotion as JCIF, has been posted as JCIF and the second respondent has been reposted as Principal, Group ''A'', by an indirect way, under
the guise of transfer by passing the impugned Government Order, equating JCIF and Principal, Group ''A'', but without making any change
regarding the nature of duties, powers and responsibilities, which are primarily required for equating the posts, in the light of the ruling of the
Hon''ble Apex Court referred to above.
In the facts and circumstances, we are of the considered view that the alleged transfer is violative of Articles 14 and 16 of the Constitution of
India, as it would deprive virtually the status and importance of the second respondent, a senior officer and providing the same to the third
respondent, a junior officer, who was in the feeder category, by way of back door entry, by adopting illegal procedures, in order to circumvent the
earlier directions of this Court and the Tribunal. At this juncture, we feel it appropriate to cite a judgment of the Hon''ble Apex Court in State of
Haryana and Ors. v. Ram Kumar and Ors., (2002) 9 SCC 703, , wherein it has been held that ""the administrative orders cannot overturn a judicial
order"".
Therefore, we are of the considered view that there is no error or infirmity in the order passed by the Central Administrative Tribunal in
allowing the aforesaid two Original Applications and the writ petitions in W.P. No. 44921 and 44922 of 2006 accordingly fail and are liable to be
dismissed.
In the result, both the writ petitions are dismissed with costs. The petitioners herein are directed to pay a sum of Rs. 10,000/- to the second
respondent towards the cost of the writ petitions. The petitioners are further directed to comply with the orders of the Central Administrative
Tribunal, within a period of six weeks from the date of receipt of the copy of this order.