{"id":133121,"date":"2003-02-25T00:00:00","date_gmt":"2003-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-chithra-vs-the-secretary-to-government-on-25-february-2003"},"modified":"2016-02-05T15:32:57","modified_gmt":"2016-02-05T10:02:57","slug":"v-chithra-vs-the-secretary-to-government-on-25-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-chithra-vs-the-secretary-to-government-on-25-february-2003","title":{"rendered":"V. Chithra vs The Secretary To Government on 25 February, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">V. Chithra vs The Secretary To Government on 25 February, 2003<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN  THE  HIGH  COURT  OF  JUDICATURE  AT  MADRAS\n\nDated: 25\/02\/2003\n\nCoram\n\nThe Honourable Mr. Justice V.S. SIRPURKAR\nand\nThe Honourable Mr. Justice F.M. IBRAHIM KALIFULLA\n\nW.P. No.18488 of 1999\n\nV. Chithra\nInspectress of Labour\nCoimbatore 600 018                              ...            Petitioner\n\n-Vs-\n\n1.  The Secretary to Government\n    Government of Tamil Nadu\n    Labour and Employment Department\n    Chennai  9\n\n2.  The Commissioner of Labour\n    Chennai 600 006                     ...            Respondents\n\n\n        Petition under Art.226 of the Constitution of India\npraying for a Writ of Certiorarified Mandamus\nas stated in the petition\n\nFor Petitioner         ::  Mrs.  Lita Srinivasan\n\nFor Respondents ::  Mr.  P.  Chandrasekaran\n                        Spl.G.P.\n\n:ORDER\n<\/pre>\n<p>(Order of the Court was made by V.S.  SIRPURKAR, J.)<\/p>\n<p>                This is an extremely unusual case and  a  classic  example  of<br \/>\napathy  on  the part of the Government to comply with the orders passed by the<br \/>\nTamil Nadu State Administrative Tribunal  (in  short  the  Tribunal).    For<br \/>\nunderstanding the controversy, few facts would be necessary.\n<\/p>\n<p>                2.   Petitioner  was  selected  for the post of Inspectress of<br \/>\nFactories in the Tamil Nadu Factories Services.  She  was  directly  recruited<br \/>\nand joined  her service on 18-10-1977.  She kept on serving there, without any<br \/>\nblemish.  Thereafter, by G.O.   Ms.    No.17  (Labour  and  Employment)  dated<br \/>\n9-2-1993,  the  post of Inspectress of Factories was transferred to the Labour<br \/>\nDepartment as it was felt that the post of Inspectress  of  Factories  in  the<br \/>\nFactories Department  would be of no consequence.  She was to be re-designated<br \/>\nas Inspectress of Labour and was to be treated as in addition to the  category<br \/>\nof Labour  Officer  in  the  Tamil Nadu Labour Service.  For that purpose, the<br \/>\nrelevant rules were also to be amended.  At least that is the wording  of  the<br \/>\nsaid transfer  order dated 9-2-1993.  The following paragraph in that order is<br \/>\nworth-noting:\n<\/p>\n<p>The Chief Inspector of Factories has also represented that she has put in  11<br \/>\nyears of  services  in the Department and she has no chances of promotion.  As<br \/>\nshe  also  possesses  the  same  qualification  prescribed  for  the  post  of<br \/>\nInspectress  of Labour in Labour Department, she has requested that she may be<br \/>\ntransferred to the Labour Department.<\/p>\n<p>                3.  The case of the petitioner is that she has never requested<br \/>\nfor any kind of transfer.  Learned Special Government  Pleader  also  supports<br \/>\nthe statement of the petitioner and says that there is no request for transfer<br \/>\nfrom the  petitioner.  Be that as it may, the post was thus transferred to the<br \/>\nLabour Department.  The petitioner then waited for the department to amend the<br \/>\nrules so that her seniority could be fixed in the combined category of  Labour<br \/>\nOfficers.   However,  finding  that several persons junior to her had a marc h<br \/>\nover her in the matter of promotion, she filed the original application  (O.A.<br \/>\nNo.2628  of  19  94)  before  the Tribunal wherein she claimed the fixation of<br \/>\nseniority as  also  the  consequent  promotions.    The  Tribunal  passed  the<br \/>\nfollowing order in the nature of directions on 18-5-1994:<br \/>\nWe  have emphasised in several cases that order issued requiring an amendment<br \/>\nto service rules should be followed up promptly for  issue  of  the  necessary<br \/>\namendment.  Normally  3  months  should  be  the  outer limit.  Administrative<br \/>\naction for preparation of seniority list in the combined category should  have<br \/>\nbeen  taken  immediately  after  issue  of orders and pending amendment to the<br \/>\nrules.  Temporary promotion should have been made only with reference to  such<br \/>\nseniority.   The  respondents  are  directed  to  take  action accordingly and<br \/>\nconsider the claim of the  applicant  for  promotion  with  reference  to  her<br \/>\nseniority in the category of Labour Officer immediately.<br \/>\nIn  spite of this direction, the respondents tightly sat over the same and did<br \/>\nnot pass any orders.\n<\/p>\n<p>                4.  In the mean time, the petitioner  sent  several  reminders<br \/>\ndated  1 0-8-1994, 1-6-1995, 9-10-1996, 23-6-1997, 3-6-1998, 15-2-1999 and 1-3\n<\/p>\n<p>-1999 requesting the respondents to implement the order dated 18-5-19 94.   It<br \/>\nis  a  great  pity  that  the petitioner did not file the contempt application<br \/>\nagainst the respondents because this was a blatant contempt of  the  Tribunal.<br \/>\nInstead,  the petitioner filed the present writ petition, which was registered<br \/>\nas W.P.  No.18488 of 1999.  In this writ petition also the  petitioner  prayed<br \/>\nthat  since  the  Tribunal  had  not  given  her the complete relief of deemed<br \/>\npromotion, to which she was entitled, as also  the  benefit  of  seniority  to<br \/>\nwhich  also  she  was entitled, the order of the Tribunal should be quashed to<br \/>\nthat extent and to grant her the necessary promotions and other benefits.\n<\/p>\n<p>                5.  Ordinarily the matters should not have been very difficult<br \/>\nbut for the orders passed by the Government  vide  G.O.    Ms.    No.86  dated<br \/>\n8-10-2002.   The  said  Government  Order has obviously been passed during the<br \/>\npendency of the present writ pet this  Government  Order,  the  order  of  the<br \/>\nTribunal is  fully  quoted.    However,  in paragraph 4, it is stated that the<br \/>\nproposal for issuing amendments to the Special Rules  for  Tamil  Nadu  Labour<br \/>\nService incorporating the post of Inspectress of Labour, Madras as an addition<br \/>\nto  the  category  of  Labour  Officer  in  Tamil Nadu Labour Service is under<br \/>\nconsideration of the Government.  Therefore, it is obvious that no rules  have<br \/>\nbeen framed so far though the period of over eight years has elapsed after the<br \/>\ndirection of the  Tribunal.  Paragraph 5 makes a more interesting reading.  It<br \/>\nreads as under:\n<\/p>\n<p>Regarding fixation of seniority the Commissioner of Labour  has  stated  that<br \/>\nthe  seniority  of  the  individual has to be determined with reference to the<br \/>\ndate of joining in Labour Department (i.e.) from  5-3-199  3.    As  per  Rule<br \/>\n35(aa)  and  35(b)  of  Tamil  Nadu  State  and Subordinate Service Rules, the<br \/>\nseniority of Tmt.  V.  Chitra, Inspectress of Labour has to be determined with<br \/>\neffect from 5-3-1993, the date on which she joined as Inspectress of Labour in<br \/>\nLabour Department.<br \/>\nFurther paragraphs suggest that her seniority  had  to  be  fixed  immediately<br \/>\nbelow  the  direct  recruits who were recruited and joined the services in the<br \/>\nyear 1993.  Noting that the last recruit Thiru A.  Gnanasekaran was given  the<br \/>\nseniority at Sr.    No.249,  her seniority has been fixed at Sr.No.249A.  By a<br \/>\nseparate application, the learned counsel seeks to challenge this order  also.<br \/>\nFor that purpose, an amendment application has been made before us.\n<\/p>\n<p>                6.   It  is  obvious that great injustice has been done to the<br \/>\npetitioner.  It has to be remembered in this case that  the  petitioner  never<br \/>\nsought an order  of  transfer.    That is the admitted position.  The post was<br \/>\ntransferred from the Factories Department to the Labour Department because the<br \/>\nGovernment  felt  that  the  post  of  Inspectress  of  Factories  was  of  no<br \/>\nconsequence  in  the  Factories  Department  and,  therefore,  the  Government<br \/>\neffected the transfer of that post from the Factories Department to the Labour<br \/>\nDepartment.  This was obviously the act on the part of the Government.    This<br \/>\naction was  not  sought  by  the  petitioner.    Under such circumstances, the<br \/>\nGovernment should have taken immediate action in framing the rules and  adding<br \/>\nthat  additional  post to the category of the post of Labour Officers but, for<br \/>\nthe reasons not known and which are beyond comprehension, the  Government  did<br \/>\nnot do  it.    There was a specific direction issued by the Tribunal to do the<br \/>\nneedful.   However,  even  those  directions  have  not  been  complied  with.<br \/>\nInstead,  during  the  pendency  of  the  writ  petition,  probably,  when the<br \/>\nGovernment came to realise that it had slept for over eight to  ten  years,  a<br \/>\nfresh  order  came to be passed on 8-10-2002, fixing her seniority with effect<br \/>\nfrom the date of her entry in to the Labour Department, i.e.  1993, completely<br \/>\nignoring the fact that she was entitled to  the  seniority  with  effect  from<br \/>\n1977, when  she entered the Government service as Inspectress of Factories.  A<br \/>\nvery peculiar observation has been made in relation to Sec.35(aa) and 35(b) of<br \/>\nthe Tamil Nadu State and Subordinate Service Rules  (in  short  the  Rules).<br \/>\nRule 35( aa) reads thus:\n<\/p>\n<p>(aa)  The  seniority  of a person in service, class, category or grade shall,<br \/>\nwhere the normal method of recruitment to that  service,  class,  category  or<br \/>\ngrade  is  by  more  than one method of recruitment, unless the individual has<br \/>\nbeen reduced to a lower rank as a punishment, be determined with reference  to<br \/>\nthe date on which he is appointed to the services, class, category or grade.<br \/>\n&#8230;  &#8230;  &#8230;<br \/>\nIn sharp contradistinction to this rule, Rule 35(b) reads thus:<br \/>\n(b)  The  transfer  of  a  person  from one class or category of a service to<br \/>\nanother class or category carrying the same pay or scale of pay shall  not  be<br \/>\ntreated  as  first  appointment to the latter for the purpose of seniority and<br \/>\nthe seniority of a person so transferred shall be determined with reference to<br \/>\nthe rank in the class or category from which he  was  transferred;  where  any<br \/>\ndifficulty  or  doubt  arises  in  applying  this  sub-rule seniority shall be<br \/>\ndetermined by the appointing authority.<\/p>\n<p>                7.  A cursory glance at Rule 35(aa) would show that  the  said<br \/>\nrule is  not applicable to this case at all.  We are not considering the inter<br \/>\nse seniority of the petitioner with the other Labour Officers.  That  was  not<br \/>\nthe problem.   Rule 35(aa) is a general rule merely suggesting that the person<br \/>\nwould start earning his seniority on  and  from  the  date  he\/she  joins  the<br \/>\nservice.   Rule  35(aa) is not meant for the eventuality which has happened in<br \/>\nthe present case.  The proper rule was Rule 35(b) which speaks of the transfer<br \/>\nof a person from one class or category of a service to the  another  class  or<br \/>\ncategory carrying  the  same  pay  or scale of pay.  Here was a person who was<br \/>\nholding the post of Inspectress of Factories which was one class  or  category<br \/>\nof  the  service  and  she was transferred to another class or category of the<br \/>\nservice, viz.  Inspectress of Labour, which was commensurate with the post  of<br \/>\nLabour  Officer  and  it is an admitted position that both these posts carried<br \/>\nthe same pay scale.  If this transfer took place not by the  volition  of  the<br \/>\npetitioner  but  because of the order of the Government, it is innate that her<br \/>\nseniority should have been considered with effect from the date when  she  was<br \/>\nappointed as  the  Inspectress  of  Factories.   However, that is not done and<br \/>\ninstead she has been deprived of her seniority between 1977 and 1993.   It  is<br \/>\nreported  by the learned counsel for the petitioner before us that the persons<br \/>\njunior to the petitioner have become  conferred  I.A.S.    officers  and  have<br \/>\nearned  two  or three promotions at least whereas the petitioner is kept where<br \/>\nshe was.\n<\/p>\n<p>                8.  We are in full agreement with  the  learned  counsel  that<br \/>\nthere  is  patent injustice done and the learned Special Government Pleader is<br \/>\nalso not able to show any reason as to why a proper action has not been  taken<br \/>\nso far by amending the rules and also by fixing the proper seniority.  Learned<br \/>\nSpecial  Government  Pleader  tried  to  contend that since this was her first<br \/>\nentry into the Labour Department, the seniority will  be  reckoned  from  that<br \/>\ndate.  We do not agree.\n<\/p>\n<p>                9.   However,  it  will  not  be  possible for us to grant any<br \/>\nrelief in this writ petition for the simple reason that the  question  of  her<br \/>\nseniority has been decided for the first time by G.O.Ms.No.86 dated 8-10 -2002<br \/>\nand  the  proper  forum  for  the petitioner would be to approach the Tribunal<br \/>\nbecause the petitioner is admittedly in  State  Government  service  and  this<br \/>\nquestion refers  to  her  service.  The seniority is undoubtedly a part of the<br \/>\nservice jurisprudence.  Therefore, it would be for the petitioner to  approach<br \/>\nthe Tribunal.\n<\/p>\n<p>                9.   We,  accordingly,  direct  a remand and would request the<br \/>\nTribunal to pass orders within two months.  In the mean time,  the  petitioner<br \/>\nwould  also  be at liberty to amend her original application and challenge the<br \/>\norder dated 18-10-2002.  The amendment application, if made, shall be  allowed<br \/>\nby the  Tribunal.    This we say because the emergence of the Government Order<br \/>\ndated  8-10-2002  would  be  a  subsequent  event  after  the   the   original<br \/>\napplication,  which  can  always  be  challenged  or  met  with  the amendment<br \/>\napplication.  We accordingly give the liberty to the petitioner to  amend  her<br \/>\noriginal application.    That shall be done within two weeks from the date the<br \/>\nrecords reach the Tribunal.  We request the Tribunal to dispose of this matter<br \/>\nin the light of the observations made by us and to fix the  seniority  of  the<br \/>\npetitioner.   It  would  be  for  the Tribunal to consider the question of her<br \/>\nfurther promotions and\/or the benefits of the  seniorit  y  flowing  from  her<br \/>\nfresh fixation of her seniority.\n<\/p>\n<p>                10.   We  accordingly  dispose  of  the  petition  with  these<br \/>\nobservations.  In view of the orders passed, it  shall  not  be  necessary  to<br \/>\nconsider the other  petitions  for amendment (W.P.M.P.  Sr.  No.17090 of 2003)<br \/>\nand direction (W.P.S.R.  No.17089 of 2003) made before us.  They  are  closed.<br \/>\nThe writ  petition  succeeds  to  the extent that we have indicated above.  No<br \/>\ncosts.\n<\/p>\n<p>Index:Yes<br \/>\nWebsite:Yes<\/p>\n<p>Jai<\/p>\n<p>To:\n<\/p>\n<p>1.  The Secretary to Government<br \/>\nGovernment of Tamil Nadu<br \/>\nLabour and Employment Department<br \/>\nChennai  9<\/p>\n<p>2.  The Commissioner of Labour<br \/>\nChennai 600 006<\/p>\n<p>3.  The Registrar<br \/>\nTamil Nadu state Administrative Tribunal<br \/>\nChennai<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court V. Chithra vs The Secretary To Government on 25 February, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25\/02\/2003 Coram The Honourable Mr. Justice V.S. SIRPURKAR and The Honourable Mr. Justice F.M. IBRAHIM KALIFULLA W.P. No.18488 of 1999 V. Chithra Inspectress of Labour Coimbatore 600 018 &#8230; Petitioner -Vs- 1. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-133121","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>V. 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