In the High Court of Judicature at Madras
Dated: 18/01/2005
CORAM
The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA
Writ Petition No.34556 of 2004
and
WPMP Nos.41680 and 41681 of 2004
Bharathiya Electricity Employees
Federation, Regn.No.990/SLM,
rep. by its General Secretary,
No.5/38-V, Arumugam Nagar,
New Fairlands, Salem-636016. .. Petitioner
-Vs-
1. Tamilnadu Electricity Board,
rep. by its Chairman,
No.800, Anna Salai,
Chennai-600002.
2. The Chief Engineer (Personnel),
Tamil Nadu Electricity Board,
No.800, Anna Salai,
Chennai-600002. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of writ of certiorarified mandamus calling for the records in
connection with employment Notice Letter No.81288/875/G.56/G.561/2004-1 dated
16.10.2004 issued by the 2nd respondent on behalf of the 1st respondent and
quash the same in so far as it excludes the duly qualified Assessors and
direct the respondent Board to include the duly qualified Assessors also for
consideration for appointment to the post of Junior Auditors.
!For Petitioner : Mr.V.Prakash, SC
for Mr.P.Chandrasekaran
For Respondents: Mr.V.Radhakrishnan,
Standing Counsel TNEB
:O R D E R
The petitioner, who claim to represent the Assessors in the first
respondent Board, has come forward with the writ petition challenging the
employment notice letter No.81288/875/G.56/G.561/2004-1 dated 16.1 0.2004
issued by the second respondent on behalf of the first respondent. While
seeking to quash the said proceedings, the petitioner also seeks for a
direction to the first respondent Board to include the duly qualified
Assessors also for consideration for appointment to the post of Junior
Auditors.
2. As per the impugned letter dated 16.10.2004, the second respondent
has circulated the said letter to all the Superintending Engineers to call for
applications from the willing employees in the categories of Junior
Assistant/Administration and Junior Assistant/Accounts who possess the
requisite qualification viz., B.A., B.Sc., and B.Com., for appointment to the
post of Junior Auditors by transfer method. The said letter also makes it
clear that there will be a selection from amongst the applicants and that such
selection will not be available to those who failed to apply. It also
prescribed 10.11.2004 as the cut off date for making the applications.
3. Mr.V.Prakash, learned senior counsel appearing for the petitioner,
while drawing my attention to Regulation 92 of the Tamil Nadu Electricity
Board Service Regulations as well as Annexure III of the said Regulations, in
particular the clause relating to the recruitment to the post of Junior
Auditors, contended that the method of recruitment in Column 2 of Annexure III
in regard to the post of Junior Auditors specifically mentions that it can be
either by way of direct recruitment or appointment from Junior Assistant in
the Board Office, Administrative Branch, Accounts Branch, Technical Branch and
other Subordinate offices or appointment from Typists including Steno-Typists
or appointment from Assessors in Circle Offices and therefore, the impugned
letter of the second respondent restricting the zone of consideration to the
categories of Junior Assistants/Administration and Accounts alone is not
valid.
4. Per contra, Mr.V.Radhakrishnan, learned standing counsel for the
Tamilnadu Electricity Board, would contend that in the Annexures I to III of
the Regulations for different categories of post, in the column relating to
the method of recruitment different expressions have been used, such as
“internal selection or direct recruitment or appointment or direct recruitment
or appointment by internal selection or direct recruitment or by promotion and
so on” and therefore, when in relation to the post of Junior Auditors, the
expression used is direct recruitment or appointment from certain categories,
it cannot be held that appointment from certain categories would also be by
means of selection. According to the learned standing counsel, in so far as
the post of Junior Auditors is concerned, when the Board prefers to the other
method of appointment, other than direct recruitment, it is merely by way of
transfer from any of the other categories to the post of Junior Auditors and
the Board can always restrict such transfer of appointment to one particular
category and need not go in for a selection from all the prescribed
categories. Learned standing counsel further contended that even assuming
that such appointment by transfer should also be by way of a selection
process, then again the Board is entitled to prefer any one particular
category from among the different categories provided in the Regulations and
need not necessarily throw upon the post for all the categories. Lastly, it
was contended that in the light of the fact that more number of Assessor posts
are vacant in different circles, the Board thought it fit not to resort to any
appointment by way of transfer from the category of Assessors.
5. Having heard the learned counsel for the respective parties, I am
of the view that the contention of the petitioner is forceful and merits
acceptance. The relevant clause as mentioned in Annexure III can be extracted
for better appreciation, which is to the following effect:
Annexure-III
———————————————————-
Post Method of Recruitment Qualification
———————————————————-
Junior Auditors Direct Recruitment or Must hold the
appointment from Junior B.A. or B.Sc.
Assistant in the Board or B.Com.
Office Administrative degree of the
Branch, Accounts Branch, Chennai or
Technical Branch and Annamalai
other Subordinate Offices University.
or appointment from
Typists including Steno-
Typists or appointment
from Assessors in Circle
Offices.
6. A reading of the above said clause shows that for filling up the
post of Junior Auditors, the Board can either resort to direct recruitment or
appointment from the various categories provided therein subject to the
concerned individuals possessing the prescribed qualification. In fact, when
the above said Regulations is read along with paragraph 2 of the impugned
letter, it can be easily visualised that any such appointment even from among
the existing staff within the specified categories can only be by way of
selection. Paragraph 2 of the impugned letter can be usefully referred to
which reads as under:
“Those who are qualified and passed the above said degree and those
who are willing, should submit their applications, in the prescribed format (a
specimen of which is enclosed) to their head of Office on or before 10.11.2004
and those who do not apply, will not be considered for selection”. (emphasis
added)
7. Even the second respondent has understood the scope of appointment
as provided in the above said Regulations to the effect that it can only be by
way of selection. Even otherwise, it is common knowledge that whenever any
appointment is resorted to from among the existing staff in the service of the
Board for specified number of posts, when more number of candidates apply for
less number of posts, selection will be inevitable or otherwise it will result
in arbitrariness and would provide scope for pick and choose by the employer.
Such a method of arbitrary appointment can never be approved. Therefore,
while interpreting the rule relating to appointment even from among the
existing staff of the respondent Board, merely because in respect of certain
other posts the specific expression ‘internal selection’ has been mentioned,
which expression does not find a place in regard to Junior Auditor, it cannot
be taken to mean that in the case of Junior Auditors, in the absence of such a
specific expression, the respondent Board is entitled to make any appointment
according to its whims and fancies. Such a stand of the respondent Board
cannot therefore be countenanced. Therefore, I am convinced that the
contention of the petitioner that whenever the respondent board seeks to fill
up the post of Junior Auditors by way of appointment from among the existing
categories of employees, such appointment can only be by way of selection,
which would necessarily involve consideration of merits.
8. As far as the other contention that even while making such
selection, the respondent Board is entitled to restrict the scope of such
selection to certain categories alone, it will have to be held that a reading
of the above said Regulations disclose that appointment to the post of Junior
Auditors can be from different categories such as Junior Assistants, Typists,
Steno-typists and Assessors. In other words, all the above four categories of
employees in the service of the Board are entitled to aspire for the post of
Junior Auditors as and when any vacancy arises and any appointment is resorted
to. When that be the case, it will not be open to the respondent Board to
confine such appointment to a particular category of Junior Assistants alone
merely on the footing that the said category came to be mentioned in column
No.2 in the first instance and the category of Assessors came to be mentioned
as a last one. Such a contention of the respondent Board cannot also be
accepted as that would provide for an arbitrary way of dealing with different
categories when it comes to the question of making a selection to a particular
post. If really such a preference could be made by the respondent Board, it
would have been spelt out in such specific terms in the Regulations itself.
Therefore, in the absence of any such specific stipulation contained in the
Regulations, it cannot be inferred merely based on the order in which
different categories are mentioned in the Regulations that the respondent
Board would be entitled to prefer one category, which is mentioned in the
beginning to that of the other category which is mentioned at the end.
Therefore, the said contention also does not merit acceptance.
9. As far as the last contention that there are more number of
vacancies in the post of Assessors and in view of the ban imposed by the State
Government, the respondent Board wanted to restrict the scope of selection to
the post of Junior Auditors from among the Junior Assistants is not a valid
contention. The ban imposed by the State Government cannot invalidate or
deprive the right of Assessors to become Junior Auditors in the event of the
Assessors being entitled to demonstrate their excellence and secure the post
of Junior Auditors in the process of selection. The denial on such a ground
would be wholly unreasonable and unjustified and therefore, on that ground
also, the stand of the respondent Board cannot be countenanced. Looked at
from any angle, the approach of the respondent Board in restricting the scope
of appointment to the post of Junior Auditors from among the category of
Junior Assistants alone cannot be justified and therefore, I am obliged to
interfere with the same. Accordingly, the writ petition stands allowed and
the impugned order is set aside. It is open to the respondent Board to resort
to selection of Junior Auditors by extending opportunity to all the
categories, which are provided in the Service Regulations as referred to
above. No costs. Consequently, WPMP.Nos.41680 and 41681 of 2004 are closed.
18.01.2005.
Index : No
Internet: Yes
ATR
To
1. The Chairman,
Tamilnadu Electricity Board,
No.800, Anna Salai,
Chennai-600002.
2. The Chief Engineer (Personnel),
Tamil Nadu Electricity Board,
No.800, Anna Salai,
Chennai-600002.