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citation codes
Case Number
Attorney(S)
  • V.T.Gopalan
  • N.R.Chandran
  • N.G.R.Prasad
  • G.Venkatarman
Judges
  • Chief Justice Mr. K. A. Swami
  • Mr. Justice Somasundaram
Acts
  • Sub-rule (2) of Rule 3 of Dock Workers (Regulation of Employment) Rules 1962, the Central Government
  • Rule 3(2) of the Dock Workers (Regulation of Employment) Rules, 1962, the Central Government
  • Rule 3(2) of the Dock Workers (Regulation of Employment) Rules, 1962
  • Rule 3 (2) of the Rules. 6. Rule 3 of the Rules
  • Sub-rule (2) of Rule 3 of the Rules
  • Rule 3(2) of the Rules,
  • Sub-rule (2) of Rule 3,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • V.T.Gopalan
  • N.R.Chandran
  • N.G.R.Prasad
  • G.Venkatarman
Judges
  • Chief Justice Mr. K. A. Swami
  • Mr. Justice Somasundaram
Acts
  • Sub-rule (2) of Rule 3 of Dock Workers (Regulation of Employment) Rules 1962, the Central Government
  • Rule 3(2) of the Dock Workers (Regulation of Employment) Rules, 1962, the Central Government
  • Rule 3(2) of the Dock Workers (Regulation of Employment) Rules, 1962
  • Rule 3 (2) of the Rules. 6. Rule 3 of the Rules
  • Sub-rule (2) of Rule 3 of the Rules
  • Rule 3(2) of the Rules,
  • Sub-rule (2) of Rule 3,
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Four writ appeals were preferred against the order dated 30 August 1994 passed by the learned Single Judge in W.P. No. 10192 of 1994. The writ appeals are:

  • Writ Appeal No. 1335 of 1994 filed by the 1st respondent in the writ petition;
  • Writ Appeal No. 1384 of 1994 filed by the 2nd respondent (Madras Dock Labour Board);
  • Writ Appeal No. 1385 of 1994 filed by the 3rd respondent in the writ petition;
  • Writ Appeal No. 1390 of 1994 filed by the petitioner in the writ petition.

The Single Judge's order had two dimensions that produced cross-grievances: the Single Judge held that the appointment of the 3rd respondent as Deputy Chairman of the Mormagao Dock Labour Board was not on deputation but by selection; and the Single Judge directed respondents 1 and 2 that they could not transfer the 3rd respondent as Deputy Chairman of the Madras Dock Labour Board, directing that the post of Deputy Chairman at Madras should be filled by calling for applications from eligible candidates and that until such regular appointment is made the Central Government could appoint any person to be in charge of the post.

The central factual dispute relevant to the appeals was whether the 3rd respondent was appointed to Mormagao on deputation or on regular appointment under Sub-rule (2) of Rule 3 of the Dock Workers (Regulation of Employment) Rules, 1962, and whether the Central Government may appoint a Deputy Chairman of one Dock Labour Board to another Dock Labour Board by way of transfer.

Legal Issues Presented

  1. Whether it is open to the Central Government to make appointment to the post of Deputy Chairman, Madras Dock Labour Board, Madras by way of transfer of a Deputy Chairman of another Dock Labour Board?

Arguments of the Parties

Petitioner's Arguments

  • Historically, vacancies for the post of Deputy Chairman in Mormagao and Madras had been filled by calling for applications from eligible candidates and making appointments on selection; the same practice should be followed when the vacancy arose on 1 September 1994.
  • The 3rd respondent was junior to the petitioner in the Class I Officers' cadre; appointing the 3rd respondent as Deputy Chairman of Madras would result in a junior being placed above the petitioner.
  • The 3rd respondent had been sent on deputation to Mormagao Dock Labour Board, and if transferred back to Madras he should revert to his original post held prior to deputation.
  • Each Dock Labour Board is an independent entity; therefore, an official of one Dock Labour Board cannot be transferred to another Dock Labour Board.

Respondents' Arguments

  • Under Sub-rule (2) of Rule 3 of the Dock Workers (Regulation of Employment) Rules, 1962, the Central Government is the Appointing Authority for the post of Deputy Chairman.
  • The appointment can be made by direct recruitment (selection) or by transfer; appointment by transfer to an equivalent post is a recognised method.
  • Deputy Chairman posts across the Dock Labour Boards are equivalent in cadre, so the Central Government can transfer a Deputy Chairman from any Dock Labour Board to fill a vacancy in another Board.
  • The 3rd respondent was not sent on deputation to Mormagao but was appointed on selection; the option he exercised for pay (to draw pay scale or deputation allowance) relates only to salary fixation and does not change the nature of his appointment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
D.M. Bharati v. L.N. Sud (as cited in the opinion) Proposition that a person sent on deputation must, on reversion, come back to the post from which he was deputed. The court acknowledged the proposition but found it inapplicable because the 3rd respondent was held not to have been sent on deputation but was appointed under Sub-rule (2) of Rule 3. Thus D.M. Bharati did not prevent transfer in this case.
General Officer, Commanding-in-Chief and Anr. v. Dr. Subash Chandra Yadav and Anr. (1988-II-LLJ-345) Principle that employees of autonomous statutory bodies (e.g., Cantonment Boards) cannot be transferred from one autonomous body to another where services are not centralized; a rule providing such transfers may be invalid if the Act does not provide for it. The court held the precedent inapplicable to the present facts because Rule 3(2) expressly empowers the Central Government to make appointments to Deputy Chairman posts for specified ports; the Deputy Chairman post is centralized under the Central Government, so the autonomy argument and the Cantonment-boards reasoning did not apply.

Court's Reasoning and Analysis

The court's analysis proceeded by interpreting Rule 3 of the Dock Workers (Regulation of Employment) Rules, 1962 and by examining the nature of the 3rd respondent's appointment.

  1. Statutory construction: The court reproduced and considered Rule 3 and observed that Sub-rule (2) makes the Central Government the Appointing Authority for the post of Deputy Chairman in the ports of Bombay, Calcutta, Madras and Mormagao. The amended sub-rule also covers Mormagao and Calcutta explicitly.
  2. On methods of appointment: The court accepted that historically appointments were usually made by calling for applications and selection, but noted an instance (Vizhag) where a Deputy Chairman had been transferred to fill a vacancy, indicating transfer had occurred earlier.
  3. Equivalence of posts: The court reasoned that the Deputy Chairman posts across the specified Dock Labour Boards are of the same cadre. Given the Central Government is the appointing authority for those posts, there is no legal obstacle to transferring a person holding the post in one Board to another Board.
  4. On the specific nature of the 3rd respondent's appointment: The court examined the order of appointment reproduced in the Single Judge's order, which stated that the Central Government appointed the 3rd respondent under Sub-rule (2) of Rule 3 as Deputy Chairman, Mormagao Dock Labour Board with effect from 24 January 1992 until further orders. The court also relied on the counter-affidavit (paragraph 10) filed by the 1st respondent which stated the appointment was on a regular basis made pursuant to selection among applicants and that the pay option (deputation/duty allowance) did not alter the nature of the appointment.
  5. Application of deputation precedent: While the petitioner relied on the D.M. Bharati authority to argue that a person sent on deputation must revert to his original post, the court concluded that principle only applies where there was an actual deputation; since the 3rd respondent's appointment was on selection under Rule 3(2), the deputation principle did not apply.
  6. Seniority and cadre arguments: The court rejected the petitioner's contention that transferring the 3rd respondent would improperly place a junior above the petitioner. The court explained that once the 3rd respondent was selected to the higher post, he belonged to the higher category and ceased to be comparable with the petitioner's lower category; the petitioner had also contested for the post but was not selected.
  7. Applicability of cantonment-board precedent: The court considered the General Officer, Commanding-in-Chief v. Dr. Subash Chandra Yadav decision (about transfers between autonomous bodies) but found it inapplicable because that case concerned autonomous bodies where the appointing authority was the local board and there was no centralization. By contrast, Rule 3(2) centralizes appointment of Deputy Chairmen in the Central Government here.
  8. Additional administrative point: The court noted the affidavit from the Desk Officer of the Ministry of Surface Transport which averred that once selected and appointed as Deputy Chairman, a person becomes an officer of the Central Government, with disciplinary control residing in the Central Government; this supported the view that appointment to these posts is centralized and an independent Dock Labour Board lacks control over such officers.
  9. Conclusion of analysis: Because Rule 3(2) authorizes the Central Government to make appointments and because appointment by transfer to an equivalent cadre is a recognised method that does not permanently deprive eligible persons of the opportunity to be selected in future vacancies, a direction (mandamus) that the post at Madras must only be filled by calling applications could not be sustained.

Holding and Implications

Core Holding: The appeals filed by respondents 1 to 3 (Writ Appeals Nos. 1335, 1384 and 1385 of 1994) are allowed; the order dated 30 August 1994 in W.P. No. 10192 of 1994 is set aside and the writ petition is dismissed. The writ appeal filed by the petitioner (W.A. 1390 of 1994) is dismissed. Civil miscellaneous petitions (C.M.Ps) are disposed of. No order as to costs.

Implications:

  • The Central Government, as Appointing Authority under Sub-rule (2) of Rule 3 of the Dock Workers (Regulation of Employment) Rules, 1962, is entitled to appoint to the post of Deputy Chairman of the Dock Labour Boards either by selection or by transfer of a Deputy Chairman of any of the Dock Labour Boards specified.
  • The court determined that the 3rd respondent's appointment to Mormagao was a regular appointment under Sub-rule (2) and not a deputation; therefore the rule that a deputationary appointee must revert to his originating post did not apply.
  • The decision directly affects the parties by permitting the Central Government's proposed transfer/appointment action and by rejecting the petitioner's challenge; the opinion does not purport to lay down a novel general principle beyond interpreting and applying Rule 3(2) to the facts before the court.

This summary is based exclusively on the content of the provided opinion and does not add, infer, or rely on information outside that text.

Show full summary ...

    The Union Of India Uoi v. P. Sethuraman, Chairman, M.D.L.B. And Ors.

    1. These four writ appeals are preferred against the order dated 30th August 1994 passed by the learned single Judge in W.P. 10192 of 1994. Writ Appeal 1335 of 1994 is filed by the 1st respondent in the writ petition, whereas writ appeal 1384 of 1994 is filed by the 2nd respondent in the writ petition, viz., Madras Dock Labour 1 Board. Writ Appeal 1385 of 1994 is filed by the 3rd respondent in the writ petition and Writ Appeal 1390 of 1994 is filed by the petitioner in the Writ Petition.

    2. The petitioner is aggrieved with the order of the learned single Judge in so far as it holds that the appointment of the 3rd respondent in the writ petition as Deputy Chairman of Mormagao Dock Labour Board was not on deputation, but it was an appointment on selection, whereas the respondents are aggrieved by the order in so far as it directs respondents 1 and 2 that they could not transfer the 3rd respondent as Deputy Chairman of the Madras Dock Labour Board and that the post of Deputy Chairman should be filled up in a regular manner by calling for application from all eligible candidates, that till such regular appointment is made, it is open to the Central Government to appoint any person to be in: charge of the post.

    3. In the light of the contentions urged on both sides, the following point arises for considera tion:-

    Whether it is open to the Central Government to make appointment to the post of Deputy Chairman, Madras Dock Labour Board, Madras by way of transfer of a Deputy Chairman of another Dock Labour Board?

    4. It is the case of the petitioner that as and when the vacancy had arisen in the post of Deputy Chairman, Dock Labour Board either in Mormagao or in Madras, the said vacancy has been filled up by calling for applications from the eligible candidates and making an appointment on selection. The previous incumbent of the Office of Deputy Chairman, Dock Labour Board, Madras, was also appointed in the same manner, therefore this time when the vacancy has arisen on September 1, 1994, the post should be filled up as per the practice that was followed in the past and not by transferring the 3rd respondent and appointing him as the Deputy Chairman of Madras Dock Labour Board. It is also contended that the 3rd respondent was a junior to the petitioner in the cadre of Class I Officers, that in the event he is appointed as Deputy Chairman of the Madras Dock Labour Board, it would result in making a junior of the petitioner senior to him and appointing him to a higher post; that as the 3rd respondent was sent on deputation to Mormagao Dock Labour Board, if he were to be transferred to Madras Dock Labour Board, it should be to the original post held by him at the time when he was sent on deputation to Mormagao Dock Labour Board, that each Dock Labour Board is an independent entity, therefore an official of one Dock Labour Board cannot be transferred to another Dock Labour Board, therefore from any point of view, the 3rd respondent cannot be appointed as the Deputy Chairman of the Madras Dock Labour Board.

    5. On the contrary, it is the contention of the respondents that as per Rule 3(2) of the Dock Workers (Regulation of Employment) Rules, 1962, the Central Government is the Appointing Authority, that the appointment can be made either by way of direct recruitment or by way of transfer, that appointment by transfer is also well known method, that as the Central Government is the Appointing Authority whether it be of the Deputy Chairman of the Madras Dock Labour Board and as the post of Deputy Chairman of each Dock Labour Board is an equivalent post, it is open to the Central Government as the Appointing Authority to transfer any one of the Deputy Chairman of any one of the Dock Labour Boards to the vacancy caused in any other Dock Labour Board, that the 3rd respondent was not sent on deputation to Mormagao Dock Labour Board, but he was appointed on selection that it was only with regard to payment of salary and other allowances he was given the option to claim as per the pay scale attached to the post or as per the deputation rules, therefore, it is the case of the respondents that the proposed appointment of the 3rd respondent as Deputy Chairman, Madras Dock Labour Board by transfer is in accordance with Rule 3 (2) of the Rules.

    6. Rule 3 of the Rules reads thus:-

    "3. Constitution of the Board:- (1) Each Board shall consist of not less than 9 members and shall include an equal number of members representing:-

    (i) the Central Government

    (ii) the Dock Workers, and

    (iii) the employers of dock workers and shipping companies

    (iv) The Chairman of the Board shall be nominated by the Central Government from among the members representing the Government and there shall be a whole-time Dep uty Chairman appointed by the Central Government in the Ports of Bombay and Cal cutta on such terms and conditions as the Central Government may determine.

    (v) The persons representing respectively the dock workers and the employers shall be appointed after consulting such Association of persons as appear to the Central Government to be representative of such workers and such employers."

    From Sub-rule (2) of Rule 3, it is clear that the Central Government is the Appointing: Authority for the post of Deputy Chairman in the Ports of Bombay, Calcutta, Madras and Mormagao. Amended Sub-rule (2) of Rule 3 also covers Mormagao and Calcutta Ports. It is true that in the past, except once, the post of Deputy Chairman of Dock Labour Board had been filled up by calling for applications from the eligible persons and making selection among the applicants. However, once a vacancy in the post of Deputy Chairman, Vizhag, was filled up by transferring a Deputy Chairman from another Dock Labour Board.

    6.1. The question for consideration is as to whether in law it is permissible for the Central Government to make appointment to the post of Deputy Chairman, Dock Labour Board by transfer. It may be pointed out that the post of Deputy Chairman of a Dock Labour Board is of the same cadre, whether it be of the Deputy Chairman of the Dock Labour Board, Bombay, Madras, Calcutta or Mormagao- Appointing Authority for the post is the Central Government. When once a person is selected and appointed as the Deputy Chairman of the Dock Labour Board, we see no reason or no obstacle in law for the Central Government to appoint that person to another Dock Labour Board by way of transfer. Ultimately, a vacancy will arise in one Dock Labour Board or the other, which has to be filled up by selection and in that event, all the officers who are eligible for appointment as Deputy Chairman-whether they be in the Madras Dock Labour Board or Bombay Dock Labour Board or Calcutta Dock Labour Board or Mormagao Dock Labour Board, are entitled to apply, therefore, the appointment by transfer does not in the ultimate analysis result in depriving any of the eligible persons to seek appointment. It may be pointed out here that appointment by transfer to the equivalent cadre post is one of the well known methods of appointment. Hence, we are of the opinion that the Central Government under Sub-rule (2) of Rule 3 of the Rules is entitled to make appointment to the post of Deputy Chairman, Dock Labour Board either by selection or by transfer of a Deputy Chairman of any of the Dock Labour Boards.

    7. However, Shri Prasad, learned counsel appearing for the petitioner has placed reliance on the decisions of the Supreme Court in D.M. Bharati V.L.N Sud and General Officer, Commanding-ln-Chiefand Anr. v.Dr.Subash Chandra Yadav and Anr., (1988-II-LLJ-345). The decision in D.M. Bharati's case was relied upon in support of the contention that a person sent on deputation must on reversion come back to the post from which he was deputed. There cannot be any quarrel with the proposition, provided the 3rd respondent was deputed to Mormagao Port. In this case, it is not in dispute that when the post of Deputy Chairman, Mormagao Dock Labour Board fell vacant, applications were called for from the eligible persons. The petitioner was also one of the persons who made the application. Similarly, the 3rd respondent was also one of the persons, who made the application for appointment as Deputy Chairman, Mormagao Dock Labour Board. However, the 3rd respondent was selected and was appointed as Deputy Chairman, Mormagao Dock Labour Board. The order of appointment of the 3rd respondent has been reproduced by the learned single Judge in the course of his order, which reads thus:-

    "In exercise of the powers conferred by Sub-rule (2) of Rule 3 of Dock Workers (Regulation of Employment) Rules 1962, the Central Government hereby appoints Shri.D.Aru-mugham, Secretary, Madras Dock Labour Board as Deputy Chairman, Mormagao Dock Labour Board with effect from the forenoon of January 24, 1992 until further orders."

    Thus, it is clear that the 3rd respondent was appointed as the Deputy Chairman of Dock Labour Board, Mormagao, under Sub-rule (2) of Rule 3 of the Rules. That he was not sent on deputation, is also clear from the counter-affidavit filed on behalf of the 1st respondent. The relevant portion of the counter-affidavit is paragraph No. 10, which is as follows:-

    "As regards the averments made in paras 10, 11 and 12 of the Petition, it is also respectfully submitted that for all legal purposes, the appointment of Respondent No. 3 to the post of Deputy Chairman, Mormagao Dock Labour Board, was an appointment on regular basis pursuant to his selection after considering all eligible candidates including the petitioner, who had applied for the said post, for which a circular was circulated to all Dock Labour Boards/Port Trusts and other Departments inviting applications.

    As regards fixation of pay in the post of Deputy Chairman, he was given an option to draw his salary either in the pay scale attached to the post or claim Deputation (Duty) Allowance for a maximum period of four years. In our respectful submission, the fact that the Respondent No. 3 had opted to draw salary in the post of Deputy Chairman claiming deputation (duty) allowance, has absolutely no bearing on the nature of his appointment to the post of Deputy Chairman in as much as the same was on regular basis made in exercise of the powers conferred under Rule 3(2) of the Dock Workers (Regulation of Employment) Rules, 1962 and duly gazetted in the Government of India Gazette."

    That being so, it is not possible to hold that the 3rd respondent was on deputation to Mormagao Dock Labour Board. Learned single Judge has negatived the contention of the petitioner in this regard.

    8. The other contention that in the event the 3rd respondent is brought back to Madras Dock Labour Board as Deputy Chairman of the Board, it would result in posting the junior to the petitioner to the higher post, has also no substance. In putting forward this contention, the petitioner forgets the fact that the 3rd respondent on being selected as the Deputy Chairman of the Dock Labour Board, went to the higher post and as such, there is no comparison between the petitioner and the 3rd respondent. The post held by the petitioner as Deputy Chairman is superior to the one held by the petitioner. As such, both do not belong to the same class or category of post. It is also relevant to notice in this context that in fact, the petitioner was also one of the contestants for the post, but he was not selected. When a person on selection is appointed to higher post and thereby he goes to the higher category or class of post and ceases to be a member of lower category or class from which he is selected to the higher post; he cannot thereafter be treated in par with those who belong to the class or category from which he was selected. Hence, we find it difficult to accept the contention of Shri Prasad, learned counsel for the petitioner that the transfer of the 3rd respondent as Deputy Chairman of the Dock Labour Board, Madras, would result in posting the junior to the petitioner to a higher post

    9. The decision in General Officer, Commanding'in-chief and Anr. v. Dr. Subash Chandra Yadav and Anr. (supra) was relied upon in support of the contention that each Dock Labour Board is an independent entity, as such officers and officials of one Dock Labour Board cannot be transferred or appointed to another Dock Labour Board, unless there is a common cadre introduced in the service. No doubt, in the aforesaid decision, it has been held that the Cantonment Boards are autonomous statutory bodies and transfer of employees of one autonomous body to another where the services of the employees are not centralized, cannot be effected. It may be pointed out here that in that decision, the Cantonment Board was the Appointing Authority under the Act, whereas in the Rules framed thereunder, it was provided for transfer of an employee of one Cantonment Board to another. The Supreme Court held that such a rule was not valid, in asmuchas the Act itself did not provide for it. It was also further observed that an employee of an independent Board cannot be transferred to another Board, unless there is a centralized service. Such a situation does not arise in the case on hand. We have already pointed out that Rule 3(2) specifically empowers the Central Government to make appointment to the post of Deputy Chairman of Dock Labour Boards at Madras, Calcutta, Bombay and Mormagao. That being so, it is open to the Central Government to make an appointment by transfer of Deputy Chairman of one Board to another Board. Hence, we are of the view that the decision in General Officer, Commanding-ln-Chief and Anr. v.Dr. Subsash Chandra Yadav and Anr. (supra) cannot be applied to the facts of the present case.

    10. In the additional affidavit filed by the Desk Officer of the Ministry of Surface Transport, it has been averred that once a person is selected and appointed as Deputy Chairman, he becomes an officer of the Central Government and neither the Port nor the Dock in which such a person was previously working or the Port or Dock to which he has been appointed as Deputy Chairman, has any control over him. The Central Government is the Disciplinary Authority in respect of the Deputy Chairman and not the Dock Labour Board. Therefore the appointment of Deputy Chairman of the Dock Labour Board is centralized in respect of which an independent Dock Labour Board has no say. This is also clear from Rule 3(2) of the Rules, which we have reproduced. As it is open to the Central Government to make appointment by transfer, a mandamus of the nature issued by the learned single judge, directing that the appointment to the post of Deputy Chairman, Dock Labour Board Madras should be only by calling for applications from the eligible candidates, cannot be approved.

    11. We, accordingly, allow the appeal filed by respondents 1 to 3 viz., W.As 1335, 1384 and 1385 of 1994 and set aside the order dated 30th August, 1994 passed in W.P 10192 of 1994 and dismiss the writ petition. The writ appeal filed by the petitioner, viz., W.A.1390 of 1994 is dismissed The C.M.Ps are disposed of. No order as to costs.

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    Comments

    The Union Of India Uoi v. P. Sethuraman, Chairman, M.D.L.B. And Ors.
    (Jan 24, 1995)