BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/03/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition (MD).No.1177 of 2009 & M.P.(MD).Nos.1 of 2009 & 1 of 2010 P.Geetha .. Petitioner Vs. M/s.Arasu Rubber Corporation Ltd., Rep. by its Managing Director, Vadasery, Nagercoil, Kanyakumari District. .. Respondent Prayer Writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus calling for the records relating to the order passed by the respondent in his proceedings Ref.E2/13606/05 dated 03.02.2009 and quash the same as illegal and consequentially to direct the respondent to consider the petitioner for promotion to the post of Superintendent in the respondent corporation in confirmity with Rule 23 r/w Annexure II (14) of Arasu Rubber Corporation Service Rules. !For Petitioner ...Mr.M.Ajmal Khan ^For Respondents...Mr.K.Balasubramanian Additional Government Pleader :ORDER
The writ petition is filed against the order of the respondent dated
03.02.2009 by which the respondent has directed the petitioner and other six
persons, who are holding the post of Assistants in the respondent department, to
attend for a written test and interview at Nagercoil to assess their merit and
ability for the post of Superintendent.
2. On the admitted fact, the petitioner is working as Assistant and
eligible for promotion to the post of superintendent. The notice impugned is
challenged on the ground that for the purpose of promotion to the post of
superintendent from the post of assistant by way of written test and interview
is not permitted as per the Rule. It is also not in dispute that the petitioner
as on date stands second in the panel of assistants and he is holding the post
of superintendent incharge in the respondent corporation. It is the case of the
petitioner that the person who stands first in the panel of assistants is now
facing disciplinary proceedings and he may not be eligible for consideration for
promotion.
3. The Rules which are governing the petitioner and other similarly
situated persons in this case is Arasu Rubber Corporation Service Rules. While
considering the case of promotion, Rule 23 stipulates that for the promotion to
the next post a person will be eligible for consideration at the first instance
only he/she is an approved probationer and qualified for the higher post and
such promotion is on the ground of merit and ability, seniority being considered
where merit and ability are approximately equal. The said Rule is as follows;
“23. An employee shall be eligible for promotion only if he/she had been
declared an approved probationer in the post to which he/she was first appointed
to the service and fully qualified for the higher post. Promotion to all
categories shall be made on grounds of merit and ability, seniority being
considered where merits and ability are approximately equal.”
4. In Rule 10 of the Arasu Rubber Corporation Service Rules while dealing
with the promotion stipulates that the promotion has to be effected after
assessing the suitability of the candidate on the basis of qualification, past
performance and confidential records. The said Rule is as follows;
“10. i) All cases of promotion shall be made by the appointing authority
after assessing their suitability with reference to their qualification, past
performance and confidential records.
ii) The appointing authority also shall be competent to co-opt
administrative/technical experts from outside to assist them in assessing the
merits and suitability of the candidates for promotion.”
5. In the light of the said admitted Rules which are governing the
respondent corporation in respect of the appointment of its employees, the
question to be considered is as to whether the respondent corporation could
resort to the present method of assessing the suitability for promotion to the
next post of superintendent by way of written test and interview. It is also not
in dispute that in these years, the respondent corporation has been following
the said Rules scrupulously and promotions were made based on the qualification,
past performance and confidential reports regarding the service conditions of
the employees. It is only for the first time as per the impugned notice, the
respondent has revealed its intention to follow different procedure of
conducting written test and interview for assessing the suitability of the
person for promotion. It is no doubt that it is for the employer to decide about
the suitability conditions for effecting promotions and for that purpose any
tangible methods, which is acceptable could be always followed and one such
method is certainly conducting of written examinations which cannot be said to
be a method unknown in service jurisprudence. Such method can be resorted to
only if the same is permissible in a case where the employer is bound by the
Rules framed for the running of the corporation itself. When the Rule which
governs the administration of the respondent corporation contemplates a
specified method for the purpose of assessing suitability for the purpose of
promotion to the next level, certainly that Rule has to be followed unless in an
exigent circumstances where the method contemplated under the Rules are
practicably not possible to be implemented. It is not even the case of the
respondent corporation that rules stipulated therein for the promotion to the
next post is impossible of being performed.
6. The contention of the learned counsel for the respondent that Rule (7)
of the Arasu Rubber Corporation Service Rules contemplates a method of written
test and interview is relevant to be considered. The said Rules is as follows;
“Method of Recruitment;-
Vacancies of posts in the Arasu Rubber Corporation shall normally be
filled up by following any one of the methods stated below;
a) By selection of candidates by interview/tests of both conducted by the
Selection Committee constituted by the Board for the concerned categories of
posts.
b) By promotion from among the Corporation employees by selection
c) By utilising the services from the Employment Exchange.
d) By advertising the vacancies vacancies in the newspapers, recruitment
from open market or through other service agencies as approved by the Board.
e) By drafting personnel from Government or other public undertakings on
deputation basis.
f) For any reason if it is considered expedient to resort to recruitment
to any category by any other method, it can be done with the approval of the
Board and the Government.”
7. At the first instance, the Rule applies for the recruitment process and
not for promotion. It is true that the said Rule contemplates for the purpose of
initial recruitment by way of written test or interview or both conducted by the
selection committee and thereafter, the another clause makes it very clear that
the process of selection is by vide publication utilising the services from the
employment exchange sponsored candidates and drafting personnel from Government
or other public undertakings on deputation basis.
8. Initially to select a better person for the post, the concept of
interview and test is made to be conducted by the selection committee whereas in
respect of promotion there is no committee constituted and for the promotion
concept, the right is given only to the appointing authority by assessing the
suitability of the candidate based on the qualification, past performance and
confidential records. Inasmuch as the said recruitment Rule which is applicable
for the purpose of initial recruitment cannot be said to be applicable for the
purpose of promotion, the stand taken by the respondent in the counter affidavit
as well as the contention raised by the learned counsel for the respondents that
there is a method of written test which is permissible, at least in one rule
with regard to the selection process for initial appointment is not tenable.
Therefore the impugned order calling upon the eligible candidates to appear for
written test and interview for the purpose of promotion is set aside since the
same is not in accordance with the Rules governing the respondent corporation
itself. In these circumstances, the impugned order stands set aside and the writ
petition is allowed. However, the respondent corporation is entitled to proceed
with the promotion from the cadre of assistant to superintendent in accordance
with Rules stated above. Consequently, the connected miscellaneous petitions are
closed. No costs.
JIKR
To
M/s.Arasu Rubber Corporation Ltd.,
Rep. by its Managing Director,
Vadasery,
Nagercoil,
Kanyakumari District.