IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.2.2009
C o r a m :
The Honourable Mr.Justice P.K.MISRA
and
The Honourable Mr.Justice K.CHANDRU
W.P.Nos.4076 of 2006 and 40078 of 2005
and
W.P.M.P.Nos.4366 of 2006, 42972 and 42973
of 2005
1.M.Sellamuthu
2.G.Jayaraman
3.G.Sivakumar
4.P.Selvaraj
5.V.Sellamuthu
6.R.Gopal
7.R.Sellamuthu
8.A.Ramesh
9.M.Uthaya Kumar
10.M.Murugesan
11.P.Jayabalan
12.M.Janakiraman
13.A.Monna Mohamed
14.K.Soundararajan
15.S.Janakiraman
16.K.Venkatasubramanian
17.P.Sivakumar
18.S.Duraisamy
19.T.Sivagnanam
20.P.Subramanian
21.S.Anaigoundan
22.K.Marimuthu
23.T.Prabhakaran
24.T.Perumal
25.M.Mathesan
26.V.Ayyanthurai
27.A.Suresh
28.R.Sasikumar
29.K.Arivalagan
30.V.Kumar
31.K.G.Ammasi
32.K.Kumaran
33.K.R.Sivakumar
34.A.Venkatachalam
35.K.Pugalendhi
36.D.Venkatesan
37.K.Jagadeesh
38.V.Palanimuthu
39.A.Muthuraj
40.K.Sathiyamurthy
41.V.Ramajeyam
42.A.Palanisamy ... Petitioners in W.P.
No.4076 of 2006
1.K.Paramasivam
2.T.Tamilarasan
3.R.Saravanan
4.P.Neelakandan
5.K.Senthil Kumar
6.K.Allimuthu
7.K.Dhanapal
8.M.Ramachandran
9.P.Nagarajan
10.S.Lakshmanan
11.G.Madhu
12.S.Radha
13.K.Mathappan
14.P.Chandru
15.P.Saravanan
16.S.Murugesan
17.C.Srinivasan
18.P.C.Mathialagan
19.C.K.Sankaran ... Petitioners in
WP.40078/2005
vs.
1.The State of Tamil Nadu, rep.by
its Secretary to Government,
Labour & Employment
Department, Fort St.George,
Chennai-600 009. ... R1 in W.P.No.
4076 of 2006
2.The Tamil Nadu Electricity Board,
rep.by its Chairman,
800, Anna Salai, Chennai-600 002.
3.The Chief Engineer (Personnel),
Tamil Nadu Electricity Board,
800, Anna Salai, Chennai-600 002. ... R2 & R3 in WP.
Nos.4076 / 2006
40078 of 2005
PRAYER : Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records relating to (per.)B.P.(Ch) No.73 (Sectt. Branch) dated 26.3.2002 on the file of the first respondent and the consequential order in Lr.No.028527/G.57/G.572/2004-1, dated 21.4.2004 on the file of the second respondent with respect to the petitioners and quash the same and direct the respondents to consider the names of the petitioners in a preferential manner in any temporary appointments or on permanent basis according to their qualifications.
For Petitioners : Mr.L.Chandrakumar
For Respondents : Mr.M.Vaidyanathan
*****
O R D E R
K. CHANDRU, J.
Heard Mr.L.Chandrakumar, learned counsel representing Mr.S.Doraisamy for the petitioners and Mr.M.Vaidyanathan, learned standing counsel for the respondent Electricity Board and perused the records.
2. W.P.No.40078 of 2005 was filed by one K.Paramasivam and 18 others seeking to challenge the Board Proceedings in B.P.No.73, Secretarial Branch, dated 26.32002 and the consequential order in letter dated 21.4.2004 issued by the Chief Engineer (Personnel) (third respondent) and for a direction to consider the names of the petitioners in a preferential manner in any temporary appointments on permanent basis in accordance with their qualifications. Notice was ordered in the writ petition on 16.12.2005.
3. W.P.No.4076 of 2006 was filed by one M.Sellamuthu and 41 others challenging the letter dated 03.1.2006 issued by the Chief Engineer (Personnel) wherein and by which it was stated that Ex-Apprentices having Wireman trade and Electrician trade and who have completed one year of Apprenticeship Training upto 31.3.1995 in the Electricity Board will be called for interviews in terms of Civil Appeal No.5285-5328/ 96 filed by the Electricity Board. Therefore, a fresh notification was given in the English and Tamil Dailies directing the Ex-Apprentices who have completed apprentice training upto 31.3.1995 and who have not completed maximum age as on 01.7.2005 should register their names with the respective Distribution Circles of the Electricity Board.
4. Pending the writ petition in both the cases, this Court did not grant any interim relief.
5. In so far as the prayer in W.P.No.40078 of 2005 claiming preference for the trained apprentice in the employment of the Electricity Board is concerned, the matter is squarely covered by the decision of the Supreme Court in Tamil Nadu Electricity Board -vs- P.Arul and others in Civil Appeal Nos.5285-5325 of 1996 dated 03.10.1996. In the said judgment with reference to the claim for preference, it was observed as follows:-
”This Court has, therefore, clearly laid down that Apprentices/Trainees shall have to go through the process of selection provided under the Service Regulations/Rules. Keeping in view the fact that the Apprentices acquire training under the same management, they are not required to sit in the written test but in a selection where viva-voce test is also provided. It would be necessary for the Apprentices to go through the process of viva-voce. This Court has specifically laid down that a trained apprentice should be given preference other things being equal over direct recruits. In a given case an Engineering graduate may be preferred to a diploma holder apprentice. It depends on the Selection Committee and also the regulations /Rules governing the selection.
We are of the view that this Court has clearly laid down that the Apprentice-Trainees have no right to be appointed in preference to other applicants.”
(Emphasis Added)
6. After allowing the appeal filed by the respondent Electricity Board, the Supreme Court gave the following direction in the aforesaid judgment, which is as follows:-
”Mr.Parekh, learned counsel for the Board, has informed us that the interviews in this case were held in September 1994. It is thus obvious that the interviews were held before this court delivered the judgment in U.P.State Road Transport’s case. Even otherwise, it would not be appropriate to make appointments based on an interview, which was held more than two years back. We, therefore, direct the Board to re-advertise the posts. The fresh applicants along with the old applicants including the apprentices shall be considered afresh by following the selection procedure envisaged under the Regulations. The Board shall complete the process of selection within four months.”
(Emphasis Added)
7. In the light of the pronouncement of the Supreme Court in respect of the very same respondent, W.P.No.40078 of 2005 will have to be dismissed and accordingly it will stand dismissed.
8. In the writ petition, viz., W.P.No.4076 of 2006, it is the case of the petitioners that they are also trained apprentices and they are not having ITI certificate in the two trades, namely, Wireman trade and Electrician trade and, therefore, the respondent authorising its officers to call for applications only from those apprentices will be in conflict with the direction issued by the Supreme Court in P.Arul’s case (cited supra). Even during the pendency of these two writ petitions, a batch of cases came to be filed before this Court in W.P.No.6048 of 2006 etc. batch filed by the similarly placed persons. Those writ petitions came to be disposed of by a common order dated 31.10.2007 by one of us (K.Chandru, J.).
9. Though the claim of preference was rejected but with reference to the upper age fixed by the Electricity Board, this Court referred to the Board Proceedings in B.P (FB) No.25, Administrative Branch dated 28.1.2006 and observed in paragraph No.14 as follows:-
” 14. This brings to the last question with reference to the age bar. It is to the advantage of the petitioners, the State Government itself has come up with a new order in G.O.ms.No.98, Personnel and Administrative Reforms (S) Department, dated 17.7.2006 wherein the State Government has now granted concession of 5 years relaxation in the upper age limit for entering into the government service. This was made as a special case, since there was a ban on recruitment for several years. The respondent Electricity Board also in (Per.) B.P.F.B.No.25 (Administrative Branch) dated 28.10.2006, have adopted the said Government Order. Therefore, the majority of the petitioners will now be benefited by this order. In the light of this relaxation, the candidates belonging to SC/ST communities have the upper age limit of 40 years; for MBCs upto 37 years; for BCs upto 37 years and the open categories upto 35 years.”
10. The petitioners insisted on the final hearing of these two writ petitions only after noticing an advertisement given by the respondent Board in various newspapers including ‘Dinamalar’ dated 08.10.2008 wherein they have called for trained apprentices trained only in the Wireman and Electrician trades. Therefore, Mr.L.Chandrakumar, learned counsel for the petitioners after referring to P.Arul’s case contended that the petitioners are also trained apprentices, though may not have trained in Wireman and Electrician trade but they are capable of discharging any work if it is entrusted to them as they are also trained apprentices.
11. Countering the submission made by the counsel for the petitioners, Mr.M.Vaidyanathan, learned standing counsel for TNEB stated that the present recruitment as found in the advertisement pertained to distribution circles and the Electricity Board requires trained persons from those two trades. The petitioners after relying upon a stray observation made by the Supreme Court cannot claim as a matter of right that they also should be invited for the employment notwithstanding the fact that they were not trained in those two trades.
12. In this context, it is necessary to refer to the judgment of the Supreme Court in Union of India and others -vs- S.Vinod Kumar and others reported in 2007 AIR SCW 5989. There, the Supreme Court was concerned with the power of the employer in fixing cut off marks for recruitment. In that context, the following passages found in paragraphs 10 and 11 are relevant and may be usefully reproduced below:-
”10. … We are, therefore, unable to accept the submission of the learned counsel that the cut-off marks fixed was wholly arbitrary so as to offend the principles of equality enshrined under Article 14 of the Constitution of India. The power of the employer to fix the cut-off marks is neither denied nor disputed. If the cut-off mark was fixed on a rational basis, no exception thereto can be taken.”
11. … Once it is held that the appellants had the requisite jurisdiction to fix the cut-off marks, the necessary corollary thereof would be that it could not be directed to lower the same. It is trite that it is for the employer or the expert body to determine the cut-off marks. The Court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the Court, in this behalf, is limited. The cut-off marks fixed will depend upon the importance of the subject for the post in question. It is permissible to fix different cut-off marks for different categories of candidates (see Banking Service Recruitment Board, Madras -vs- V.Ramalingam and others (1998) 8 SCC 523).”
13. Even a reference to the Supreme Court judgment will show that it is only in case of a recruitment, the question of considering the case of trained apprentices will arise along with other applicants. In the present case, if the respondent TNEB is wanting candidates only in a two particular trades that cannot be said to be arbitrary or in violation of the earlier order of the Supreme Court. The Supreme Court did not give any employment guarantee to the trained apprentices, but on the contrary, it only observed that in case of direct recruitment for any post, the trained apprentices will also be considered along with them and if everything is found equal then the trade apprentices will be preferred. That does not mean that for each and every post for which an advertisement is made, the petitioners irrespective of the trade certificate possessed by them can make a claim for consideration. Though it is contended that the recruitment is for the post of Helper, which is the entry level post, it is open to the respondent TNEB to advertise even to such posts of Helpers, call for particular trade apprenticeship especially when recruitments are made for distribution circles and there is need for persons trained in particular trades namely Electrician and Wireman. There is no illegality or infirmity in the order passed by the respondent Board.
14. In the light of the above, both the writ petitions will stand dismissed. Consequently, the connected miscellaneous petitions will also stand dismissed. No costs.
js
To
1. The Secretary to Government,
Labour & Employment
Department, Fort St.George,
Chennai-600 009.
2. The Chairman,
Tamil Nadu Electricity Board,
800, Anna Salai, Chennai-600 002.
3. The Chief Engineer (Personnel),
Tamil Nadu Electricity Board,
800, Anna Salai,
Chennai 600 002