ORDER
1. The petitioner seeks a writ of declaration to declare Note 3 of Division VII-C I relating to appointment of several classes, divisions and categories specified thereunder of the Tamil Nadu Electricity Board Service Regulations and the qualification for the respective posts framed under Regulation 92 of the Tamil Nadu Electricity Board Service Regulations as ultra vires, offending Articles 14 and 16 of the Constitution of India and
consequently to hold the internal selection visualised under letter No. 00614/R/II/92-3 dated 29.12.1992 as illegal and void.
2. The brief facts of the case are:
A substantial number of members of the petitioner-union are working as Helpers in the establishment of the respondent- Electricity Board, particularly as workers holding Industrial Training Institute Certificates (in short ITI Certificate) with technical qualification of National Trade Certificate and National Apprenticeship certificate (in brief NT & NA Certificate). The respondent Board was appointing thousands of temporary casual labourers till 1987 and thereafter the Board started recruiting helpers by among the eligible candidates who possessed ITI Certificate with the minimum educational qualification of S.S.L.C. or Matriculation or equivalent qualification.
3. The respondent Electricity Board in exercise of powers conferred under Section 79(c) of the Electricity (Supply) Act, 1948 (Central Act 54 of 1948) framed regulations viz. the Tamil Nadu Electricity Board Service Regulations relating to the classification of the service of the employees (hereinafter referred to as the Service Regulations of the Board).
4. Regulation 92 of the Service Regulations of the Board provides for appointment to several classes, divisions and categories specified in colum (1) of Annexure I. Regulation 92 of the Service Regulations of the Board reads as follows:
“92. APPOINTMENT:
(a) Appointment to the several classes, divisions and categories specified in column (1) of Annexure I shall be made as specified in the corresponding entry in column (2) thereof.
(b) A member of the Madras Local Authorities Electrical Engineers Service shall not be eligible for appointment as Executive Electrical Engineer in Category 3, Division III of Class I or as Assistant Executive Engineer (Electrical) in Category I, Division II of Class II, unless he has relin-quished in writing his right for appointment as Member, Madras Local Authorities Electrical Engineers service in I Grade declared fit for holding Divisional charge in category 4, Divisional III of Class I, or as Member, Madras Local. Authorities Electrical Engineers Service in I Grade (other than those in category 4, Division III of class I) and li Grade, in Category 2. Division II of Class II, as the case may be.
Note: The relinquishment of right by a member of the Madras Local Authorities Electrical Engineers Service shall be made within two months from the receipt of the Communication from the Chief Engineer in this behalf.
(c) Such relinquishment of right made by a person as required above, shall be final and irrevocable and shall render him ineligible for appointment to Category 4 in Division in of Class I or to Category 2 in Division II of class n, as the case may be.
(d) Such number of temporary vacancies in the categories of Assistant Executive Engineer (Electrical), Assistant Executive Engineer (Civil), Accounts Officer and Assistant Accounts Officer, as the Board may from time to time determine, shall be filled or reserved to be filled by direct recruitment.
(e) The principle of reservation of appointments for Scheduled Castes,
Scheduled Tribes and Backward Classes, shall apply to appointments by
transfer/appointments by direct recruitment or both
to all categories of the posts except Office Helper in Tamil Nadu Electricity Board.”
5. Regulation 93 of the Service Regulations of the Board prescribes the appointing authorities for the categories and posts specified in Annexure II. Regulation 94 read with Annexure III of the Regulation of the Board prescribes the requisite qualifications for the respective posts mentioned therein as well as the mode of recruitment. Regulations 93 and 94 of the Service Regulations of the Board read as follows:
93. APPOINTING AUTHORITY:
The appointing authorities for the categories and posts specified in column (1) of Annexure II shall be the authorities specified in the corresponding entry in column (2) thereof.
94 QUALIFICATIONS:
(a) No person shall be eligible for appointment to the post and by the method mentioned in Annexure III, unless he possesses the qualification specified therein.
Note-1:
In cases where the Regulations prescribe a degree or diploma as a qualification, then a degree or diploma granted by any of the Universities or Institutions recognised by the University Grants Commission for purpose of its grants or any of the Universities recognised by the Government of Tamil Nadu, shall be recognised as the qualification.
Note-2:
In cases where the Regulations prescribe a Diploma in a particular subject as a qualification, then a Degree in that subject should be deemed to be a higher qualification, and where a lower qualification or its equivalent is prescribed for appointment to any category, a person possessing a higher qualification will be eligible for appointment.
(Clause (b) provides for special provisions relating to certain degrees)
6. Division VIi-C of the Service Regulations of the qualification prescribed for the respective categories and the method of recruitment to be followed while filling up the vacancies in the accounts cadre in the offices of Circles and the Board, which reads as follows:
DIVISION VII-C (ACCOUNTS CADRE IN OFFICES OF CIRCLES AND BOARD OFFICE ACCOUNTS BRANCH)
Category-I Accounts Supervisors
Promotion from Assistants in Category 2 of this Division.
Category-2 Assistants
Promotion from Junior Assistants in Category 3 of this Division and Typists including steno-Typists in category 4 of this -Division. The Board may also resort to Direct recruitment for 25% of vacancies.
Category-3 Junior Assistants Direct recruitment or appointment by internal selection from Record Clerks, Officer Helpers, and regular Work Establishment. Category-4 Typists including Steno-typists Direct recruitment or appointment by Internal selection from Record Clerks, Office Helpers and Regular Work Establishment. Note 1:
A Junior Assistant shall be eligible for appointment as Typists or a Steno-Typist and a Typist or Steno-typist shall be eligible for appointment as Junior Assistant, if he has satisfactorily completed his period of probation as Junior Assistant or as Typist or Steno-Typist, as the case may be. The seniority of a person in the category of Junior Assistant appointed from category of typist or steno-typist shall be determined by the date of his regular appointment as Junior Assistant. Similarly, the seniority of a person in the category of typist or steno- typist appointed from the category of Junior Assistant shall be determined by the date of his regular appointment as typist or steno-typist, as the case may be.
Assessors who possess the qualification prescribed for the post of Typist or Steno-typist shall be eligible for appointment as typist/ Steno-typist subject to the conditions that they should relinquish their rights in the category of Assessors and agree to take the last rank in the cadre of Typist/Steno-typist in the offices of Circles of Board Office Branches or Offices of the Chief Engineers concerned and that they should undergo probation afresh in the category of Typist/Steno-typist in the offices of Circles or Board Office Branches of Offices of the Chief Engineers concerned and that .they should undergo probation afresh in the category of Typist/Steno-typist.
Note-2.
For recruitment from among employees in Class IV Service, an employee must possess the minimum general educational qualification or an equivalent qualification and must have rendered satisfactory service for not less than 5 years. The approval of the Board should be obtained whenever recruitment is made.
Note 3:
National Trade Certificate/National Apprenticeship Certificate candidates recruited as Helpers shall not be eligible for internal selection to the post of Junior Assistants and Typists including Steno-typists.
7. Annexure III read with Regulation 94 of the Service Regulations of the Board, prescribes the required qualification for the post of Helper as follows:
Helper – Must possess National Trade Certificate/National Apprenticeship Certificate awarded by the National Council for Training and Vocational Trade
in any one of the following-Trade:
1. Fitter
2. Turner
3. Machinist
4. Welder
5. Wireman
6. Building Constructor
7. Blacksmith
8. Carpenter
9. Plumber
10.Electrician
11. Draughtsman (Civil)
13. Surveyor
provided that the Chairman shall have the power to order the selections from any of the Trades referred to above and to such number as may be decided by him.”
8. A reading of the above categorization of service in accounts cadre and the qualification prescribed for each category shows that office helpers are eligible to be prompted either as Junior Assistants or Typists, including Steno-typists, by way of internal selection. However, the candidates who are recruited as Helpers with National Trade Certificate and National Apprenticeship certificate shall not be eligible for internal selection for the post of Junior Assistants, Typists including Steno-typists as per Note 3 to Division VII-C of the Service Regulation of the Board, which reads as follows:
Note 3:
National Trade Certificate/National Apprenticeship Certificate candidates recruited as Helpers shall not be eligible for internal selection to the post of Junior Assistants and Typists including Steno-typists.”
9. A reading of the Annexures I, II arid III along with Regulations 92,
93 and 94 of the Regulations of the Board do not spell out any
sub-categorization as technical or non-technical on the basis of the
qualifications referred to above.
10. By Memo No. 12487-R-ll/cd/90-l dated 8.3.1990 the second respondent herein in the light of the above reference and respective annexures ordered that the Industrial Training Institute certificate holders with technical qualification of National Trade and National Apprenticeship Certificate appointed to the post of Regular Work Establishments Helpers (RWE Helpers) are not eligible for the post of Junior Assistants.
11. Aggrieved by the said memo dated 8.3.1990. REW Helpers/Office Helpers who possess minimum educational qualification of S.S.L.C. or Metric or equivalent qualification with the technical qualifications of ITI Certificate or NT & NA certificate, challenged the said memo dated 8.3.1990 in W.P.Nos. 4043 and 5865 of 1990 before this Court oh the ground that they being I.T.I. certificate-holders with technical qualification in National Trade Certificate and National Apprenticeship Certificate and minimum educational qualification and having been appointed as Regular Work Establishment Helpers or Office Helper are eligible for promotion as Junior Assistants and Typists including Steno- typist; and any denial to consider them to the said promotional post would amount to non-compliance of Section 9(A) of the Industrial Disputes Act read with Rule 57 of the Industrial Dispute Rules. This Court by an order dated 5.4.1990 in Writ Petition No. 4043 of 1990 and by an order dated 19.3.1996 in Writ Petition No. 5865 of 1990 dismissed the above writ petitions on the ground that the petitioners therein could not invoke Art. 226 of the Constitution of India to decide whether the action of the respondents amounts to a change in their service conditions, attracting Section 9(A) of the I.D. Act, read with Rule 57 of the I.D. Rules or amounts to an unfair labour practice.
12. The second respondent again issued the letter No. 006I4/R/II/92-3 dated 2912.1992, which is impugned in the above writ petition, stating that the Industrial Training Institute certificate-holders with technical qualifications of National Trade and National Apprenticeship Certificates initially appointed as Regular Work Establishment Helper are not eligible for the post of Junior Assistants (Administration/Accounts) and Assessors. Hence the above writ petition.
13. Mr. K. Chahdru, learned Senior Counsel for the petitioner contends that the earlier by order dated 5.4.1990 and 19.3.1996 in W.P. Nos.4043 and 5865 of 1990 respectively cannot be a bar for the petitioner herein to seek a declaration that Note 3 to Division VII-C of Annexure I framed under Regulation 92 of the Service Regulations of the Board as ultra vires and violative of Arts. 14, 16 and 19(1)(g) of the Constitution of India, as the same cannot be decided by the Labour Court.
14. Mr. Chandru also brought to my notice the decision of the Apex Court in Bhavathi Prasad v, Delhi State Mineral Development Corporation 1990 (1) L.L.J. 320 which was relied upon by Justice Khalid commission relating to the absorption of contract workers who were working in the Tamil Nadu Electricity Board and contends that since the members of the petitioner-Union were allowed to work for a considerable length of time, it would be hard and harsh to deny them the further promotional opportunity
even though they posses more qualification than other internal candidates, who do not possess ITI Certificate with National Trade and National Apprenticeship Certificate with minimum required qualification of SSLC or metric or equivalent qualifications.
15. Per contra, Mr.A.N. Sivaprakasam, learned counsel for the respondents contends that since the relief sought for in the above writ petition is identical to the relief sought for in the earlier, writ petitions viz W.P. Nos. 4043 and 5865 of 1990, the petitioners are not entitled to maintain above writ petition once again in view of the order dated 5.4.1990 and 19.3.1996 in W.P.NOS. 4043 and 5865 of 1990 respectively and, therefore, the Helpers/Office Helpers were reasonably classified on the basis of the technical qualification, viz., National Apprenticeship/National Trade Certificates; the technically qualified Helpers/Office Helpers, with ITI certificates have better promotional opportunities than the Helpers/Office ‘Helpers, who do not possess such technical qualification; and therefore Note 3 cannot be complained as discriminatory, unreasonable and arbitrary and violative of Articles 14, 16 and 19(1)(g) of the Constitution of India.
16. I have given my careful consideration to the submission of both sides.
17. The following issues arise for my consideration in the above writ petition:
I. Whether the petitioner is entitled to challenge Note 3 to Division VII-C of Annexure II framed under Regulations 92 of the Service Regulations of the Board in spite of the orders of this Court dated 5.4.1990 and 19.3.1996 in W.P.Nos.4043 and 5865 of 1990 respectively?
II. Whether Note3 to Division VII-C of Annexure II framed under Regulation 92 of the Service Regulations of the Board is valid in-law?
ISSUE No. I:
Whether the petitioner is entitled to challenge Note 3 to Division VII-C of Annexure II framed under Regulation 92 of the Service Regulations of the Board in spite of the order of this Court dated 5.4.1990 and 19.3.1996 in W.RNos. 4043 and 5865 of 1990 respectively?
18. No doubt, Note 3 to Division VII-C of Annexure D framed under Regulation 92 of the Service Regulations of the Board was in exercise even at the time of appointment of members of the petitioner-Union. It cannot be disputed that some members of the petitioner-Union are more qualified, possessing I.T.I. Certificate with N.T. & N.A. Certificate with the minimum educational qualification of S.S.L.C. or Matriculation or equivalent qualification than other Helpers who possess only the minimum qualification. When the Helpers who possess the minimum educational qualification viz. S.S.L.C. o Matriculation or equivalent qualification are entitled to be promoted as Junior Assistants and Typists including Steno-typists and any denial of such promotion to the more qualified persons would certainly be unreasonable and arbitrary and amounts to discrimination, attracting Art. 14 of the Constitution of India. Merely because Note 3 to Division VII-C of
Annexure II framed under Regulation 92 of the Service Regulations of the Board was in existence in the Regulations of the Board at the time of their appointment, there cannot be any bar for the petitioner to challenge the same as unconstitutional as there cannot be any waiver of Fundamental Rights. Hence, the petitioner is entitled to challenge Note 3 to Division VII-C of Annexure II framed under Regulation 92 of the Regulations of the Board. The ratio laid down by the Apex Court in Dhirendra Chamoli and another v. State of U.P,. 1986 (I) LLJ 134 squarely applies to facts and circumstances of the case on hand and I am obliged to refer to the relevant portion, which runs thus:
“…It is peculiar on the part of the Central Government to urge that these persons took up employment with the Nehru Yuvak Kendras knowing fully well that they will be paid only daily wages and therefore they cannot claim more. This argument lies ill in the mouth of the Central Government for it is an all too familiar argument with the exploiting class and a Welfare State committed to a Socialist pattern of society cannot be permitted to advance such an argument. It must be remembered that in this argument. It must be remembered that in this country where there is so much unemployment, the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Art. 14 of the Constitution. This Article declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work of equal value.”
19. By the memo dated 8.3.1990, challenged in W.P.Nos. 4043 and
5865 of 1990, the respondent Board notified that the Helpers, who possess
I.T.I. Certificate and N.T. & N.A. Certificate are not eligible for promotion to
the post of the Junior Assistants, Typists, including Steno-typists since the
petitioners therein contended that the said’ memo amounts to unfair labour
practice and attracts Section 9(A) of the I.D. Act read with Rule 75 of the I.D.
Rules, this Court dismissed those writ petitions, viz. W.P.Nos. 4043 and 5865
of 1990, by order dated 5.4.1990 and 19.3.1996 respectively, on the ground of
availability of alternative remedy, permitting the petitioner to work out their
remedy under the I.D. Act. But in the present writ Petition, the petitioner has
challenged Note 3 of Division VII-C of Annexure I framed under Regulation
92 of the Service Regulations of the Board itself on the ground that the same
is discriminatory and violates the Fundamental Rights and, therefore, the
petitioner could not challenge the vires of the impugned Note 3 only by
invoking Art. 226 of the Constitution of India. The Apex Court in Kantian v,
E.S.I.C., 1968 G) LLJ 770 held.
“…But the contention is that these regulations which came into force in 1959 effected a change in their conditions of service and therefore cannot taken effect unless the prescribed notice under S. 9(A) of the Industrial Disputes Act was given. The contention thus put appear plausible but on a closer examination it will be seen that it has to be rejected. Though the, Employees State Insurance Act, 1948, was passed in 1948, there, was inordinate delay in
framing the regulations relating to the service conditions of the employees of the Employees State Insurance Corporation. Though the draft regulations were ready in September 1949 and published early in January 1950 and after consideration of the objections in May 1950, the approved draft regulations were sent to the Government in July 1950, they were received back only in April 1959, finally notified in december 1959. Between 1948 and 1959 there were no regulations regulating the service conditions of the employees. The regulations for the first time came into force in 1959. The employees were taken into the service of the Corporation on the undertaking that they would abide by the regulations that might be framed in the circumstances. It cannot be said that there was any change in the conditions of service, for the regulations regulating the conditions of service came into force for the first time in 1959. The prohibition under S. 9(A) of the Industrial Disputes Act is as regards the change in the conditions of service applicable to any workman. The object seems to be that the conditions of service in force at the time when a workman entered service should not be changed to his prejudice without giving notice to the workman entered service should not be changed to his prejudice without giving notice to the workman. The prohibition in S. 9(A) does not appear to be applicable to the regulations regulating the conditions of service which are brought into force for the first time, unless it could be shown that since the employee entered the service, the conditions of service are changed by the regulations which are brought into force for the first time.”
20. That apart, the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, has held that the mere availability of alternative remedy cannot be by itself a bar to invoke Art. 226 of Constitution when the petitioner seeks for the enforcement of his Fundamental Rights. The Apex Court held as follows:
“…Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in atleast three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged…..”
Applying the above ratio laid down by the Apex Court, I am of the considered opinion that the petitioner is entitled to maintain the above writ petition in spite of the order of dismissal dated 5.4.1990 and 19.3.1996 made in W.P.Nos. 4043 and 5865 of 1990 respectively.
21. Issue No. I is answered accordingly.
ISSUE No.II:
Whether Note 3 to Division VII-C of Annexure II framed under Regulation 92 of the Service Regulations of the Board is valid in law?
22. Under the Service Regulations, I do not see any classification among the Helpers/Office Helpers as Technical and Non-technical. Therefore, the Helpers who possess minimum qualification of S.S.L.C. or Matric or
equivalent qualification who are holding I.T.I. Certificate with N.T. & N.A. Certificate are treated as a single class and, therefore, are eligible for promotion both for Technical or Non-technical posts. Any denial of promotion to those Helpers who possess technical qualification as referred to above, in my considered opinion, is irrational, arbitrary, discriminatory and attracts Arts 14, 16 and 19(1)(g) of the Constitution of Mr.K. Chandru, learned senior counsel for the petitioner that the impugned Note 3 Division VII-C of Annexure I framed under Regulation 92 of the Regulations of the Board is discriminatory, unreasonable and arbitrary and violative of Arts. 14, 16 and 19(1)(g) of the Constitution of India and, hence, the consequential Circular dated 29.12.1992 barring the promotion to those Helpers who are possessing I.T.I. Certificate with N.T. & N.A. Certificate are not entitled to apply for the internal selection for the posts is also held as irrational, illegal and violative of Arts. 14, 16 and 19(1)(g) of the Constitution of India.
23. That apart, the impugned Note 3 is also contrary to the spirit and substance of report of Justice Khalid Commission, wherein it is recommended to confirm all the workers who had worked for a considerable length of time, taking into consideration their rich experience without reference to the educational qualifications if they are entitled for promotion as Junior Assistants and Typists, including Steno-typists; any denial of such promotional opportunities to the more qualified persons, viz. who are holding I.T.I. Certificate with N.T. & N.A. Certificate, would certainly amount to a discrimination, violating Arts. 14, 16 and 19(1)(g) of the Constitution of India. In fact, the Apex Court in Bhavathi Prasad v. Delhi State Mineral Development Corporation, 1990 (I) LLJ 320 held as follows:
“Practical experience would always aid the person to effectively discharge the duties and in sure guide to assess the suitability. The initial minimum education qualification prescribed for the different posts is undoubtedly a fact to reckoned with but it is at the time of the initial entry into the servile. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation”…
Therefore, I am satisfied that Note 3 of Division VII-C of Annexure I framed under Regulation 92 of the Service Regulations of the Board, impugned in the above writ petition, is held ultra vires and violative of Arts 14, 16 and 19(1)(g) of the Constitution of India. Issue No. 3 is answered accordingly.
24. Issue No. II is answered accordingly.
25. In the result, the writ petition is allowed. However, there will be no order as to costs.