Madras High Court
M. Madhanraj And Ors. vs The Managing Director, Metropolitan ... on 24 February, 2004
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. The petitioners except in W.P. Nos. 18992 of 2001 and 6491 of 2002 seek for Writ of Mandamus to direct the respondents to regularise the service of the petitioners in the post of Electronic Data Processing Operators from the date of their initial engagement as Electronic Data Operators, based on clause 11 of the settlement dated 28.09.1989 entered between the management of the respective respondent transport Corporations and the workmen of the trade unions under Section 12(3) of the Industrial Disputes Act, 1947 (in brevity "the I.D. Act") 2.1. The facts of the case of the petitioners in nutshell are as follows:-
The petitioners were initially appointed as Conductors in the respective respondent transport Corporations. When Electronic Data Entry Operators-cum-processors Section was introduced, the respective respondent transport corporations conducted a test for the conductors, who were eligible and qualified for the said post and selected the qualified persons. They were appointed in the vacancies as Electronic Data Entry Operators-cum-Processors in E.D.P. Section, of course, on temporary basis, initially, and thereafter, by one of the proceedings dated 27.03.1997, Pallavan Transport Corporation and similar proceedings of the other Transport Corporations, posted the Conductors in EDP Section permanently. That apart, as in the case of Thiruvallur Transport Corporation vide their proceedings dated 03.05.1996, some of the respondent Transport Corporations redesignated the cadre of selected conductors, working in E.D.P Section as Data Entry Operators.
2.2. While the services of the petitioners as conductors were thus availed as Data Entry Operators cum Processors in E.D.P. Section, the respective respondent Transport Corporations instead of stitching and laundry allowances, paid a special pay of Rs. 40/-, which was subsequently increased to Rs. 50/- per month.
2.3. In the meanwhile, the respondent transport corporations also started recruiting fresh candidates for the post of Data Entry Operators from the open market, some of them were less qualified or having less experience, when compared to that of the petitioners. Some of the respondent transport corporations proposed to retain fresh candidates, who were recruited as Data Entry Operators from open market and transferred the petitioners to the post of Conductors on the grounds that (i) they should continue to hold the posts of conductors permanently; (ii) their services as Data Entry Operators are no more required; and (iii) no regular appointment order was issued to them in their favour, appointing them as Data Entry Operators on transfer from the post of Conductors to claim any right to the post of Data Entry Operators in EDP Section.
2.4. Some of the conductors, who were selected and posted as Data Entry Operators-cum-Processors came before this Court by way of writ petitions in W.P. No. 15260 of 1993 and W.P. No. 9817 of 1994. This Court, by an order dated 27.01.1995 in W.P. No. 15260 of 1993 as well as the order dated 03.04.1995 in W.P. No. 9817 of 1994 rejected the contention that repatriation of the conductors from E.D.P. Section to their original position does not amount to either reversion or demotion; and held that such action would not attract Section 9(A) of the I.D. Act, and therefore, the petitioners could not insist that they should not be transferred as Conductors and that they could be kept only as Data Entry Operators.
2.5. Following the said orders dated 27.01.1995 and 03.04.1995, this Court again by an order dated 25.04.2001 in W.P. No. 20162 of 2000 etc., refused to regularise the services of the petitioners therein, who were appointed as conductors and whose services were subsequently availed by the transport corporations as Data Entry Operators in EDP Section in the respective respondent transport corporations.
2.6. Following the above said orders, another writ petition in W.P.No.19579 of 2000 was also disposed of by an order dated 17.07.2001, rejecting the request of the petitioner, to give a direction to forbear the respondents from reverting the petitioner from the post of Data Entry Operator / Computer Operator to one as Conductor on line Duty. When an appeal was preferred against the said order of learned single Judge dated 17.07.2001 in W.A.No.1371 of 2001, a Division Bench of this Court confirmed the order of the learned single Judge by judgment dated 08.08.2001.
2.7. On review, in Review Application Nos.80 and 81 of 2001, a Division Bench of this Court, by judgment dated 09.11.2001 permitted the petitioners to prosecute further by filing fresh writ petitions on the same cause of action. Hence, the present writ petitions.
2.8. In the meanwhile, the respondent transport corporations by circulars proposed to engage the Data Entry Operators-cum-Processors on contract basis to run the EDP Section. The same was also challenged by the petitioners in W.P.Nos.18992 of 2001 and 6491 of 2002 on the ground that the said proposal is in violation to Section 9(A) of the I.D. Act, inasmuch as the proposal amounts to change of service conditions without applying the procedure contemplated under Section 9(A) of the I.D. Act.
3. The core contentions made on behalf of the petitioners are that
(i) Even though the petitioners were initially appointed as Conductors, they got themselves qualified to be posted as Data Entry Operators in EDP Section only after conducting test, they were selected to be posted as Data Entry Operators cum Processors;
(ii) In consequence, the respondent Transport Corporations stopped stitching and laundry allowances to the petitioners as the same is meant only to the conductors, and instead of the same, they were initially paid special pay of Rs.40/-, which was subsequently, increased to Rs.50/- per month;
(iii) Some of the Transport Corporations, having satisfied with their work, redesignated them as Data Entry Operators instead of Conductors;
(iv) Since the respondent transport corporations proposed to engage Data Entry Operators to run the EDP Section, the fact remains that the workload of these Data Entry Operators-cum-Processors still exists and continues with the respective transport corporations and therefore, the petitioners are entitled to be regularised in the post of Data Entry Operators-cum-Processors, instead of proposing to engage the fresh candidates on contract basis from the open market. It is therefore contended that the petitioners should be regularised in the post of Data Entry Operators-cum-Processors before regularising the services of new entrants; and
(v) The refusal of such regularisation is arbitrary, unreasonable, irrational and violates not only Section 9(A) of the I.D. Act., but also Articles 14 and 19(1)(g) of the Constitution of India.
4.1. The learned counsel for the respondents Transport Corporations, even though initially objected as to the maintainability of the writ petitions, as the issues raised on behalf of the petitioners and the relief sought for in these writ petitions have already been once rejected by this Court, vide orders dated 27.01.1995, 03.04.1995, 17.07.2001 and 08.08.2001, fairly concedes that a Division Bench of this Court, by judgment dated 09.11.2001 made in Review Application Nos.80 and 81 of 2001, permitted the petitioners to prosecute to file fresh writ petition on the same cause of action.
4.2. It is further contended that the withdrawal of appointment of the petitioners as Data Entry Operators or stopping stitching and laundry allowances would not by itself amount to either a reversion or demotion, as the same is nothing but temporary and stop gap arrangement and therefore, they are liable to be sent back to their original position as conductors.
4.3. According to respondents / corporations, they are within their jurisdiction to take appropriate decision to confirm the persons selected through direct recruitment in the post of Data Entry Operators or to engage suitable persons in E.D.P. Section on contract basis, and therefore, the contention made on behalf of the learned counsel for the petitioners that the proposal is in violation of Articles 14 and 19(1)(g) of the Constitution of India is not sustainable in law.
5. I have given my careful consideration to the submissions made on behalf of the petitioners and the respondents.
6.1. In view of the order of the Division Bench of this Court dated 09.11.2001 in Review Application Nos.80 and 81 of 2001, there is no serious dispute regarding the maintainability of the writ petitions and therefore, it is not necessary to deal with the said issue.
6.2. There is no dispute as to the facts that the petitioners are qualified for the post of Data Entry Operators, and the respondents Transport Corporations availed the services of the petitioners only after holding a test. That part, stoppage of stitching and laundry allowances which are meant only for conductors and payment of special pay viz., Rs. 40/-, which was subsequently increased to Rs. 50/- per month, as well as the re-designation of some of the conductors as EDP Operators would go to show that the appointment of conductors as EDP Operators was intended to be permanent.
6.3. My attention was also invited to Clause 11 of the settlement dated 28.09.1989 entered between the management of the respective respondent transport Corporations and the workmen of the trade unions under Section 12(3) of the Act, which reads as under:-
"11. Conductors on other duty:-
The regularisation of employment of such of those who have been recruited as Conductors but have been performing other duties continuously for long periods of five years or more may be done in the same manner as was done in Cheran and Jeeva Transport Corporations subject to the same terms and conditions, in other Corporations, or as may be settled by direct discussions with the concerned unions in such Corporation".
6.4. The petitioners are therefore obviously entitled to the benefit of clause 11 of the settlement dated 28.09.1989 and to continue as EDP Operators since they were working for more than five years.
6.5. In view of the above undisputed facts, I am unable to appreciate the contention made on behalf of the respondents that no regular order of appointment, appointing the conductors as Data Entry Operators was issued, transferring the conductors from the existing posts of EDP Section.
6.6. Therefore, the proposal to send back the conductors on line duty as rightly contended on behalf of the petitioners is arbitrary, unreasonable and violates Articles 14 and 19(1)(g) of the Constitution of India. Similarly, the proposal to recruit persons as E.D.P., operators either directly from the open market or on contract basis in the place of the petitioners would amount to change of conditions of service of the petitioners which is permissible only by following the procedure contemplated under Section 9(A) of the Act.
7. For all the reasons, these writ petitions are allowed as prayed for. No costs.