IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07/04/2005
C O R A M
The Hon'ble Mr. MARKANDEY KATJU, Chief Justice
and
The Hon'ble Mrs. Justice PRABHA SRIDEVAN
Writ Appeal No.520 of 2005
and
W.A.M.P.No.964 of 2005
1. The Tamilnadu Electricity
Board, rep. by its
Chairman,
Anna Salai,
Chennai-2.
2. The Chief Engineer (Personnel),
Tamilnadu Electricity Board,
Anna Salai,
Chennai-2. ... Appellants
-Vs-
Bharathiya Electricity Employees
Federation, Regn.No.990/SLM,
rep. by its General Secretary,
No.5/38-V, Arumugam Nagar,
New Fairlands,
Salem-16. ... Respondent
Prayer : Writ Appeal under Clause 15 of the Letters Patent as against
the order dated 18.01.2005 passed in Writ Petition No.34556 of 2004.
- - - - -
!For Appellants : Mr. V. Radhakrishnan
^For Respondent : Mr. V. Prakash,
Senior Counsel for
Mr. P. Chandrasekaran
:J U D G M E N T
PRABHA SRIDEVAN, J.
The respondent-writ petitioner, is the Federation of the Employees of
the Tamil Nadu Electricity Board. On 16.10.2004, the second appellant, by
Letter No.81288/875/G.56/G.561/2004-1, called for applications from willing
employees in the categories of Junior Assistant/ Administration and Junior
Assistant/Accounts for appointment by transfer to the post of Junior Auditor.
The requisite qualification was possession of a Bachelor’s Degree viz.,
B.A./B.Sc./B.Com.
2. The method of recruitment to the post of Junior Auditor is
governed by Regulation No.94 of the Tamil Nadu Electricity Board Service
Regulations. It is as follows :-
a) By direct recruitment;
b) Appointment from –
i)Junior Assistants in the Board Office Administration Branch, Accounts
Branch, Technical Branch, and other Subordinate Offices (or)
ii) Appointments from Typists including Steno-Typists (or)
iii) Appointments from Assessors in Circle Offices.
According to the respondent, the appellants have violated Articles 14 and 16
of the Constitution of India by drawing candidates for selection to the post
of Junior Auditors, from one category alone, viz. Junior Assistant
(Administration) and (Accounts) and excluding Typists and Assessors.
3. The learned single Judge by his judgment dated 18.01.2005
rejected the contention that the Board was entitled to prefer one category of
employees out of the four categories from which persons could be appointed by
transfer. Learned single Judge also rejected the contention that the
appellants were entitled to restrict the scope of appointment to one category
alone since there were a number of vacancies in the post of Assessors and
Typists. Above all, it was held that when the appointment to the post of
Junior Auditors is made by selection, it was necessarily on consideration of
merits and therefore, there cannot be discrimination amongst the three
categories mentioned in Clause (b) of Regulation 94. Against this order, the
present writ appeal has been preferred.
4. The learned counsel for the parties submitted their written
submissions and also advanced oral arguments.
5. Before dealing with these submissions we would like to quote
paragraphs 8 and 9 of the counter affidavit in the writ petition which state:-
“Para-8: While considering the appointment from other categories it
was found that in the category of Typists including Steno-Typists, there are
more than 250 vacancies exist. Hence, the incumbents in this category could
not be transferred. Equally appointment from Assessors from Circle Office was
also considered to be not possible because there are 170 vacancies in the post
of Assessors. In the event of transfer, Typists, Steno-Typists, and Assessors
vacancies cannot be filled up as there is a ban in the recruitment of initial
level categories besides there are vacancies in these two categories.
Therefore, it was found that transfers from these two categories was
absolutely not feasible in the interest of administration. In so far as
Junior Assistants/Administration, some of the posts have been suppressed and
it was found possible that some eligible and willing Junior Assistants/
Administration and Accounts could be transferred to fill up the post of Junior
Auditors. At this stage, it is relevant to point out that the scale of pay
for the posts of Junior Auditor and Junior Assistants and Assessors are one
and the same.
Para:9 In those circumstances, the 2nd respondent issued the impugned
Call Letter dated 16.10.2004 calling upon the Superintending Engineers of all
Circles to furnish the list of willing Junior Assistants/ Administration and
Accounts, who possess the requisite degree qualification for appointment to
the post of Junior Auditor by transfer method. The respondents respectfully
submit that the propsoed action of the respondents is only filling up of the
posts by transfer method and not recruitment by internal selection, as
contended by the petitioner. The petitioner Union on a misconception of the
facts had assumed that it is under recruitment and thereby the impugned letter
excludes the Assessors for being selected to the post of Junior Auditors. By
the impugned process of filling the post of Junior Auditors by transfer, the
promotional prospects of any employee is not deprived of and only the willing,
and qualified Junior Assistants/Administration and Accounts have been given an
option to relinquish his/her right for promotion in the present post held in
the event of appointment as Junior Auditors.”
6. According to the learned counsel for the appellants, the posts
of Junior Auditors, Junior Assistants, Typists and Assessors, all carry an
equal pay scale of Rs.3370-100-5770. Since a ban was imposed on direct
recruitment, the appellants had to necessarily resort to the alternative
method provided for in Clause (b) of Regulation 94 of the Service Regulations.
Learned counsel contended that the action proposed by the appellants was only
to make appointments by transfer and not by promotion or internal selection.
Hence, there was no question of discrimination. It is specifically stated in
paragraph – 9 of the counter affidavit in the writ petition that there is no
promotion or appointment by internal selection made in this method of
recruitment by transfer to the post of Junior Auditor. Learned counsel for
the appellants also submitted that when administrative exigencies require the
exclusion of two categories for the purpose of appointment, the Court should
not interfere. As alleged in paragraph 8 of the counter affidavit (quoted
above), more than 250 vacancies exist in the category of Typists and
Steno-typists and 170 vacancies in the category of Assessors. Therefore, the
administration would suffer if persons are transferred from these two
categories to the post of Junior Auditors. Equally, because of surplus staff
on the post of Junior Assistants, some of the posts had to be suppressed
(abolished) and therefore, eligible and willing Junior Assistants could be
easily transferred to fill up the post of Junior Auditors. It is stated by
the appellants in their counter affidavit that by this process of filling up
the post of Junior Assistants by transfer, ‘promotional prospects of any
employee are not deprived, and only the willing and qualified Junior
Assistants/Administration and Accounts have been given an option to relinquish
his/her right for promotion in the present post held in the event of their
appointment as Junior Auditors’.
7. Regulation 94 of the Tamil Nadu Electricity Board Service
Regulations provides that 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. We have already seen that appointment to the
post of Junior Auditors could be either by direct recruitment or appointment
from the three categories mentioned therein. The Note to Regulation 94 reads
thus :-
“Note : The seniority of a person in the category of Junior Auditor
appointed from the category of typist or steno-typist shall be determined from
the date of his regular appointment as Junior Auditor. In the case of persons
directly recruited or transferred from other branches of the Board Office, the
seniority shall be determined, unless otherwise specifically ordered from the
date of joining duty”.
It is also seen from the same that for the post of Auditors, appointment could
be by way of promotion from Junior Auditors or direct recruitment or promotion
from Assistants in the office of the Administrative Branch or Technical Branch
or promotion from Typists or Stenotypists.
8. In (2003) 2 SCC 632 (P.U. Joshi v. Accountant General), the
Supreme Court had an occasion to consider the scope of judicial review with
regard to the determination of conditions of service, constitution,
classification or abolition of posts, etc., wherein it was held as follows :-
“We have carefully considered the submissions made on behalf of both
parties. Questions relating to the constitution, pattern, nomenclature of
posts, cadres, categories, their creation, abolition, prescription of
qualifications and other conditions of service including avenues of promotions
and criteria to be fulfilled for such promotions pertaining to the field of
policy are within the exclusive discretion and jurisdiction of the State,
subject, of course, to the limitations or restrictions envisaged in the
Constitution of India and it is not for the statutory tribunals, at any rate,
to direct the Government to have a particular method of recruitment or
eligibility criteria or avenues of promotion or impose itself by substituting
its views for that of the State. Similarly, it is well open and within the
competency of the State to change the rules relating to a service and alter or
amend and vary by addition/subtraction the qualifications, eligibility
criteria and other conditions of service including avenues of promotion, from
time to time, as administrative exigencies may need or necessitate. Likewise,
the State by appropriate rules is entitled to amalgamate departments or
bifurcate departments into more and constitute different categories of posts
or cadres by undertaking further classification, bifurcation or amalgamation
as well as reconstitute and restructure the pattern and cadres/categories of
service, as may be required from time to time by abolishing the existing
cadres/posts, and creating new cadres/posts. There is no right in any
employee of the State to claim that rules governing conditions of his service
should forever be the same as the one when he entered service for all purposes
and except for ensuring or safeguarding rights or benefits already earned,
acquired or accrued at a particular point of time, a government servant has no
right to challenge the authority of the State to amend, alter and bring into
force new rules relating to even an existing service.”
9. In the present case, the appellants have categorically stated
that the promotional prospects of the employees are not deprived, and
qualified Junior Assistants/Administration and Accounts who have been given an
option to relinquish their right for promotion to the present post are
appointed as Junior Auditors in the three categories from which persons are
appointed by transfer as Junior Auditors and the post of Junior Auditors all
carry the same scale of pay. The appellants have also stated that the
administration would suffer if Junior Auditors are recruited from the category
of Typists or Assessors since there are already vacancies in those posts and
these vacancies cannot be filled up since there is a ban on the recruitment at
the initial level in these two categories. Therefore, in the interest of
administration, it was found that transfers from those categories were not
advisable and feasible. In addition, some Junior Assistants were in excess to
the posts and some of the posts had to be abolished and therefore, the
administration felt that some of the eligible and willing Junior Assistants
could be transferred. The sanctioned strength of the Junior Assistants is 31
and there are 23 vacancies.
10. On a review of the internal audit and internal control system
in the Board Audit Branch, it was pointed out that the Audit Branch of the
Board had to be strengthened by filling up the posts of Auditors, Junior
Assistants and Typists. The posts of Junior Assistants could not be filled up
by direct recruitment because of the ban. The appellants, therefore, had no
option but to fill up the vacancies by transfer. In addition, the three
categories from which the posts of Junior Auditors are filled up are connected
by the word ‘or’ which, in the normal course of understanding, must be held to
be disjunctive – vide AIR 1980 SC 360 (Delhi Municipality vs. Tekchand), AIR
1980 SC 21 81 (L.I.C. of India vs. D.J. Bahadur) and AIR 1992 SC 2188
(State of Punjab vs. Ram Singh). Therefore, it was open to the appellants to
choose persons from one category or the other.
11. Before dealing with the question whether it was open to the
appellants to have decided to appoint Junior Auditors by transfer only from
the posts of Junior Assistants and not from the posts of Typists and
Assessors, it is necessary to first deal with the legal position regarding
judicial review of administrative decisions.
12. In Tata Cellular Vs. Union of India, AIR 1996 SC 11 the Supreme
Court dealt with this question in great detail and held:-
(1) The modern trend points to judicial restraint in administrative
action;
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made;
(3)The Court does not have the expertise to correct the administrative
decision. If a review of the administrative decision is permitted it will be
substituting its own decision, without the necessary expertise which itself
may be fallible.
The above principles have been laid down by the Supreme Court in Tata Cellular
Case (supra) after an exhaustive consideration of the case law and the other
authorities on the subject. This decision has been followed in Delhi
Development Authority Vs. M/s.UEE Electrical Engg. (P) Ltd., AIR 2004 SC
2100 (vide paragraphs 11 to 15).
13. In G.B.Mahajan and Others Vs. The Jalgaon Municipal Council and Others,
AIR 1991 SC 1153 (vide paragraph – 14) the Supreme Court quoted the following
remarks of Sir Gerard Brennan in “Judicial Review of Administrative Action in
the 1980s”:-
“The Courts are kept out of the lush field of administrative policy, except
when the policy is inconsistent with the express or implied provisions of a
statute….or when a decision made in purported exercise of a power is such
that a repository of the power, acting reasonably and in good faith, could not
have made it. In the latter case, ‘ something overwhelming’ must appear
before the Court will intervene ( emphasis supplied)”.
14. In Premium Granites and Another Vs. State of Tamil Nadu and
others, AIR 1994 SC 2233 (vide paragraph – 52)the Supreme Court observed:-
“It is not the domain of the Court to embark upon unchartered
ocean of public policy in an exercise to consider as to whether a particular
public policy is wise or a better public policy can be evolved. Such exercise
must be left to the discretion of the executive and legislative authorities as
the case may be. The Court is called upon to consider the validity of a
public policy only when a challenge is made that such policy decision
infringes fundamental rights guaranteed by the Constitution of India or any
other statutory right.”
15. As regards the claim of the writ petitioners that the policy of
the appellant-Board violates the legitimate expectation of the Assessors and
Typists, this contention is negatived by the decision of the Supreme Court in
Union of India Vs. International Trading Company, JT 2003 (4) SC 549 (vide
paragraphs – 20 and 21), wherein it was observed that the change in policy can
defeat a substantive legitimate expectation if it can be justified on
“Wednesbury reasonableness”. The decision maker has the choice in the
balancing of the pros and cons relevant to the change in policy. Therefore,
it is clear that the choice of policy is for the decision maker and not the
Court. The legitimate substantive expectation merely permits the Court to
find out if the change of policy which is the cause for defeating the
legitimate expectation is irrational or perverse or one which no reasonable
person could have made. In the present case, in our opinion, the policy laid
down by the letter dated 16.10.2004 was not so irrational or perverse that no
reasonable person could have made it. Hence, in our opinion, the said policy
is not arbitrary or illegal as per the standards laid down by the aforesaid
decision of the Supreme Court.
16. In Federation of Railway Officers’ Association and Others Vs.
Union of India, (2003) 4 SCC 289 the Supreme Court observed that the Court
should not interfere with the matters affecting policy, but should leave such
matters for decision to those qualified to address the issues. A policy or
action of the Government, unless inconsistent with the Constitution and the
laws or arbitrary or irrational or abuse of power, was not subject to judicial
review.
17. In State of Punjab and Others Vs. Ram Lubhaya Bagga and Others,
(1998) 4 SCC 117 the Supreme Court observed that the State had a right to
change its policy from time to time under the changing circumstances. The
wisdom of the policy cannot be judicially scrutinised though the Court can
consider whether the policy is arbitrary or violative of law. In our opinion,
the policy laid down by the latter of the appellant-Board dated 16.10.2004
cannot be said to be arbitrary or illegal for the reasons mentioned above.
18. In the present case, evidently a policy decision has been taken
by the appellant-Board that the post of Junior Auditor will be filled in by
transfer only from the Junior Assistants and not from the Typists and
Assessors. The reason for this policy decision was that there were already
250 vacancies in the posts of Typists and 170 vacancies in the post of
Assessors. Hence, the transfer from these posts to the post of Junior Auditor
would mean further depletion of the already depleted strength of Typists and
Assessors. We cannot say that this is an arbitrary or unreasonable decision.
After all it is for the appellant-Board to manage the administration, and as
long as they do not act in a totally arbitrary manner, it is not proper for
this Court to interfere. As observed by a Division Bench of this Court in
Rama Muthuramalingam Vs. Deputy Superintendent of Police, Mannargudi, AIR 200
5 Madras 1, this Court must exercise judicial restraint,and not ordinarily
interfere with legislative or executive decisions. The decision taken by the
appellant-Board was an administrative decision, and it is ordinarily not
proper for this Court to interfere in administrative decisions except on
Wednesbury principles.(See Associated Provincial Picture Houses Ltd. Vs.
Wednesbury Corporation, 1948 1 K.B. 223 and Union of India Vs. G.Ganayutham,
AIR 1997 SC 3387 vide paragraphs 1 0 and 28). In our opinion, the Wednesbury
principle does not apply in the present case, for the reasons mentioned above.
Moreover, when some Junior Assistants are in excess of the required strength,
and some posts of Junior Assistants have to be abolished, there was nothing
arbitrary in the administrative decision of the appellant-Board to shift some
of them to the post of Junior Auditor. These are all administrative and
policy matters and as pointed out by the Supreme Court in Tata Cellular Case
(supra) the modern trend is towards judicial restraint in administrative
matters. In the present case, the appellantBoard has taken an administrative
decision to fill the post of Junior Auditor only from the Junior Assistants.
That was a policy decision taken on a relevant consideration, already
mentioned above, namely, that there were vacancies on the posts of Typists and
Assessors, and there was excess strength of Junior Assistants. This Court
cannot sit in appeal over such an administrative decision.
19. We may mention that it is well settled that the Court should not
interfere with an administrative or policy decision merely because it is of
the view that a better decision could have been taken by the
executive. As observed by the Supreme Court in Haryana Financial Corporation
Vs. M/s.Jagadamba Oil Mills, AIR 2002 SC 834 (vide paragraph – 10)
“In the matter of administrative action, it is well known that
more than one choice is available to the administrative authorities. They
have a certain amount of discretion available to them. They have ‘a right to
choose between more than one possible course of action upon which there is
room for reasonable people to hold differing opinions as to which is to be
preferred’. (per Lord Diplock in Secretary of State for Education and Science
Vs. Metropolitan Borough Council of Tameside, 1977 AC 1014). The Court
cannot substitute its judgment for the judgment of administrative authorities
in such cases. Only when the action of the administrative authority is so
unfair or unreasonable that no reasonable person would have taken that action,
the Court can intervene.”
20. Thus, the Court should not interfere with the policy or
administrative decision merely because it is of the view that a better view
could been taken by the executive. It is only where the decision is
shockingly arbitrary in the sense that no reasonable person could possibly
have taken such a decision, then the Court can interfere. Within the
parameters of the law the administration has a large number of options and
choices, and as long as the law is not broken and the decision is not
shockingly arbitrary, the Court should not interfere with the decision taken
by the executive.
21. In the present case, it may be that the appellant could have
taken some other decision which the Court feels would have been a better
decision, but on that ground the Court cannot over turn the decision as it
cannot be said to be so absurd that no sensible person could possibly have
taken such a decision.
22. We may further mention that even assuming that the promotional
aspects of the Typists and Assessors will be affected that alone cannot be a
ground for our interference with the policy decision of the appellants which
has been taken, as mentioned above, on relevant considerations. It often
happens that policy or administrative decisions cause hardship to some people,
but on that ground the said decision cannot be set aside, otherwise, almost
all administrative and policy decisions will have to be set aside. The Court
must exercise restraint and give some elbow room and free play to the
administration, otherwise, it may well nigh become difficult to run the
administration.
23. In these circumstances, the decision of the appellants cannot
be interfered with. Hence, the impugned order of the learned single Judge
cannot be sustained and is therefore set aside. The writ appeal is allowed.
Consequently, connected W.A.M.P. is closed. No costs.
gs.
To
1. The Chairman,
Tamilnadu Electricity Board,
Anna Salai,
Chennai-2.
2. The Chief Engineer (Personnel),
Tamilnadu Electricity Board,
Anna Salai,
Chennai-2.
