Madras High Court
K.Murugesan vs The Tamil Nadu Electricity Board on 21 December, 2023
W.P.No.20358, 20362 to 20366 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13.07.2023
PRONOUNCED ON : 21.12.2023
CORAM :
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
W.P.No.20358, 20362 to 20366 of 2010
W.P.No.20358 of 2010:-
1.K.Murugesan
2.K.Perumal
3.C.Murugesan
4.P.Nagarajan
5.M.Kulandaivelu : Petitioners
-vs-
1.The Tamil Nadu Electricity Board,
Rep. By its Chairman,
800, Anna Salai,
Chennai – 2.
2.The Chief Engineer,
(Personnel)
Tamil Nadu Electricity Board,
144, Anna Salai, Chennai – 2.
3.The Superintending Engineer,
Mettur Electricity Distribution Circle,
Tamil Nadu Electricity Board,
1/19
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W.P.No.20358, 20362 to 20366 of 2010
Mettur Dam, Mettur – 1.
4.K.Velumani,
Assessor,
Office of the Assistant Engineer (O& M),
Tamil Nadu Electricity Board,
Mechari West Section,
Mettur Electricity Distribution Circle,
Salem District.
5.K.Veerappan,
Assessor,
Office of the Assistant Engineer (O& M),
Tamil Nadu Electricity Board,
Konganapuram Section,
Mettur Electricity Distribution Circle,
Edavapadi Taluk, Salem District.
6.N.Nachi Gowndan,
Assessor,
Office of the Assistant Engineer (O& M),
Tamil Nadu Electricity Board,
Sampalli Section,
Mettur Electricity Distribution Circle,
Salem District.
7.A.Murugesan,
Assessor,
Office of the Assistant Engineer (O& M),
Tamil Nadu Electricity Board,
Mettur Rural Section,
Mettur Electricity Distribution Circle,
Salem District.
8.K.Selvakumar,
Assessor,
Office of the Assistant Engineer (O& M),
Tamil Nadu Electricity Board,
2/19
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W.P.No.20358, 20362 to 20366 of 2010
Vaikundam Section,
Mettur Electricity Distribution Circle,
Sangagiri Taluk,
Salem District. : Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus, calling for the records
relating to the proceedings of the first respondent made in (Per)
B.P.(F.B.)No.7 dated 21.08.2010 quash the same and direct the respondents
1 and 2 to prepare the panel of Assessors for promotion to the post of
Inspector of Assessment by including the petitioners other the Assessors who
possess the Special Qualification junior grade Accountancy certificate.
For Petitioners : Mr.S.N.Ravichandran
For Respondents : Mr.K.Rajkumar (R1 to R3)
Standing Counsel
No appearance (R4 to R8)
COMMON ORDER
As the prayer in all the cases is one and the same, these writ
petitions have been heard together and disposed of through this common
order.
2. In all these writ petitions, the prayer is for issuance of writ of
declaration, declaring the impugned board proceedings in impugned
(Per)B.P.(FB)No.07 dated 21.08.2010 as unconstitutional, insofar as the
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W.P.No.20358, 20362 to 20366 of 2010
petitioners are concerned and for a further direction to the respondents to
promote the petitioners as Inspector of Assessment.
3. All the petitioners joined as Assessors on various dates in the
Tamil Nadu Electricity Board (in short 'Board') and are working in the office
of the Assistant Engineers. All of them have passed the Departmental Junior
Grade Accountancy test during August, 2009 and the respondents also
sanctioned one incentive increment with effect from 10.08.2009 by order
dated 22.04.2010.
4. The Board, based on 12(3) settlement issued an order in
B.P.Ms.(FB)No.74, Secretariat Branch dated 25.08.1987. Clause 18 of the
above order prescribes passing of special test and sub clause (i) states that,
Assessor appointed after the date of settlement should pass Accountancy
(Lower Grade) test for considering their case for promotion to the post of
Inspector of Assessment and they will be given an advance increment from
the date of passing the test. For the post of Inspector of Assessment,
possessing Accountancy Junior Grade qualification is vital and essential,
both in the interest of Board's administration and consumer welfare.
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W.P.No.20358, 20362 to 20366 of 2010
5. According to the petitioners, the service conditions are
regulated by the Tamil Nadu Electricity Board Service Regulations. In
Regulation 96(2), the method of promotion and the respective qualifications
both technical and educational are stipulated. The next avenue of promotion
is to the post of Inspector of Assessment, for which a pass in Accountancy
Junior Grade test is a special qualification to consider the names of the
Assessor for promotion to the post of Inspector of Assessment as per order
in B.P.(FB).No.48 dated 19.11.2007 by way of amending the service
regulations in Amendment No.5 of 2007.
6. For the past 20 years, promotions were made only on the basis
of the aforesaid qualification method. Now, the Board succumbed to the
pressure of certain vested interested inefficient (in service) group and deleted
this qualification for promotion to the post of Inspector of Assessment. The
Board passed and order in (Per).B.P.(FB)No.7 (Administrative Branch)
dated 21.08.2010, decided to amend the regulation so as to dispense with
this qualification of passing of the Accountancy (Junior Grade) test for the
purpose of promotion to the post of Inspector of Assessment.
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7. The common case of the petitioners is that the qualification
prescribed for the post of Inspector of Assessment on the date of vacancy
alone is relevant and those who are qualified on that date are entitled for
consideration and promotion if they are not disqualified otherwise. The
vacancy of 1641 Inspector of Assessments fell as on date throughout the
State.
8. The petitioners have further pleaded that there is a chequered
history of making similar amendment by the respondents in the Accounts
Branch and the same was negatived and set at naught by the judicial orders
passed by this Court in W.P.No.10055 of 2006 dated 19.12.2007, as against
which, the Board preferred an appeal in W.A.No.1613 of 2007 before this
Court, in which the Division Bench of this Court directed the Board to
implement their proposal as made at Clause (a), (b) and (c). Insofar as rest
of the Accounts Supervisors are concerned, who have not been empaneled,
the respondents were directed to take a decision in regard to their
upgradation, taking into consideration the settlement reached under Section
12(3) of the Industrial Disputes Act, 1947 and pass appropriate orders after
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W.P.No.20358, 20362 to 20366 of 2010
negotiating the matter with all concerned interested Unions (Associations,
Federations, Sangams, etc.,).
9. Pursuant to the above order, the Board attempted to promote
the unqualified hands. One Srishankar filed a writ petition in WP.No.23106
of 2009 and by order dated 14.07.2010, this Court directed the Board to
promote 800 qualified hands as on 30.06.2010 out of 915 vacancies and
remaining vacancy to be filled with unqualified hands after negotiation with
the Board by the respective Unions. This clearly discloses the intention of
the Board is to promote the unqualified in every field.
10. The common ground agitated by the petitioners challenging
the Board proceedings in impugned (per) B.P.(FB)No.07 dated 21.08.2010
(in short 'impugned proceedings') is that by passing of the proceedings, it is
an attempt to promote the unqualified assessors for the post of Inspector of
Assessment in dispensing the passing of required Junior Grade Accountancy
Test as per the Tamil Nadu Electricity Board Service Regulation - 96(1)(b).
A reliance is placed upon by the petitioners in B.P.Ms.(Ch)No.212, Secretary
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W.P.No.20358, 20362 to 20366 of 2010
Branch, dated 12.06.1987 and the relevant portion is extracted hereunder:-
“It is noticed that panels of officials suitable for
promotion to higher posts are prepared on the basis of
requirements assessed as and when necessity arises rather
than on a scientific basis. It is considered desirable that
panels are prepared well in advance to meet the
requirements of one year so that appointments can be made
from the panel when necessity arises therefore, without any
delay, thereby eliminating the need for keeping a post
vacant. After careful consideration, it has been decided that
a crucial date be fixed for preparation of panel for each
category and a programme of action also determined so as
to ensure that the panel is prepared well in advance, The
validity of the panel will be for one year from the date of
approval of panel.”
11. On the factual situation, the petitioners stated that on the date
of impugned Board proceedings, there were nearly 1641 vacancies for the
post of Inspector of Assessment. They relied upon the judgment of Hon'ble
Supreme Court for the earlier attempt made by the very same respondents in
Civil Appeals No.6961-6966 of 1983 dated 23.02.1995 and the relevant
portion is extracted hereunder:-
“It was rightly held that Section 79 of the
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W.P.No.20358, 20362 to 20366 of 2010
Electricity Supply Act 1748 did not permit the delegate to
make subordinate legislation with retrospective effect. So
far as the validity of the above Regulations on the avail of
Article 14 and 16 was concerned it was held that granting
exemption from passing the test to persons who have failed
in the examination for three times would be arbitrary on the
fact of it. We agree with the High Court that by permitting
thrice failed candidate to be considered for promotion of
exempting the test would amount to give premium to
inefficiency. We see no ground to interfere with the
impugned judgment of the High Court. We agree with the
reasoning and the conclusion- reached therein. The Civil
Appeals are dismissed. No costs."
12. Thus, the learned counsel appearing for all the petitioners
would state that the qualified Assessors are available for the promotion to
the post of Inspector of Assessment and any promotion to the unqualified
employees from the post of Assessors is ultravires and the Regulation
98(i)(b) and 96(i)(b) are liable to be struck down. The impugned
proceedings of the second respondent in dispensing with technical
qualification of pass in Accountancy Junior Grade test for the Assessors for
the promotion to the post of Inspector of Assessment is passed on
21.08.2010. However, as on date, there are many persons like the
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W.P.No.20358, 20362 to 20366 of 2010
petitioners, qualified and eligible for promotion prior to the impugned
proceedings and hence, the petitioners are to be promoted as Inspector of
Assessment. A reliance is placed on the judgment of the Hon'ble Apex Court
in Y.V.Rangaiah and Others vs. J.Sreenivasa Rao and Others reported in
1983 (3) SC 284.
13. The second respondent filed counter in all petitions and the
petitions filed for vacating stay are also adopted as counters in the main writ
petitions. In the counter dated 24.09.2010, it is averred that through the
proceedings in +B.P. Ms. (FB) No.74, dated 25.08.1987, orders were issued
to implement the bi-monthly system of card billing of energy charges and
collection as per the settlement reached with the unions under section 12(3)
of I.D. Act, 1947. The above settlement came into effect from 01.10.1987.
In the aforesaid proceedings, it has been ordered that passing of
Accountancy (Junior Grade) Test by Assessors, who were appointed as
Assessors in the Board on or after the date of settlement (i.e.) 01.10.1987, is
a must for considering them for promotion to the post of Inspector of
Assessment. Accordingly the Board has issued amendment to the Tamil
Nadu Electricity Board Service Regulations vide the proceedings in Per. B.P.
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W.P.No.20358, 20362 to 20366 of 2010
(FB) No.48/Sectt. Branch/dated 19.11.2007.
14. A three members committee was constituted in (Rt) B.P. (Ch)
No.4 (Adm.Br.) dated 17.07.2010, comprising of (1) Superintending
Engineer/Chennai EDC/North (2) Financial Controller/Revenue and (3)
Executive Engineer/O&M/Anna Salai Division to study the requirement or
otherwise of the Accountancy (Junior Grade) Test for the Assessors, for their
promotion to the post of Inspector of Assessment considering their nature of
job in the present context of computerization of LT Billing under Project
Best and make suitable recommendations. The finding of the committee was
accepted and consequently, qualification prescribed in the aforesaid board
proceedings was dispensed with, which resulted in passing of the impugned
proceedings.
15. The learned counsel appearing for the official respondents
stated that it is always permissible for the Board to do away with the
qualification once he finds that such a qualification is outdated or
unnecessary and also stated that majority of the unqualified assessors have
already completed 23 years of service and they are at the verge of the
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W.P.No.20358, 20362 to 20366 of 2010
retirement and hence, in order to provide a small promotion before
retirement, the Board proceedings appears to have been passed.
16. When the matter was posed for final disposal after hearing the
rival submissions on either side, it appears that all the petitioners have filed
an undertaking affidavit stating that they are willing to forego backwages in
the claim for promotion notionally with effect from 02.11.2010.
Accordingly, at para 2 of the undertaking affidavit, they have stated as
follows:-
“......I am willing to forego the backwages for promotion to the
post of Inspector of Assessment with effect from 02.11.2010 to 19.04.2012
and to keep seniority in appropriate place in the seniority list of the Inspector
of Assessment with all attendant benefits......”
17. The learned counsel appearing for the petitioners stated that
based upon the undertaking affidavit, orders may be passed.
18. Heard the learned counsel appearing for the petitioners and
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W.P.No.20358, 20362 to 20366 of 2010
the learned standing counsel for the respondents.
19. The writ petitions have been filed challenging the impugned
board proceedings dated 21.08.2010, whereby the passing of the
Accountancy Junior Grade test for promotion to the post of Inspector of
Assessment was dispensed with. The docket orders passed by this Court
reveal the fact that by order dated 03.09.2010 in the miscellaneous petitions,
this Court has granted interim stay of the implementation of the impugned
Board proceedings with retrospective effect.
20. By order dated 02.11.2010, the above said interim order was
modified as under:-
“......Hence, the stay granted already stands vacated reserving the
right of the 11 petitioners alone in the seven writ petitions, insofar as the
right of the petitioners is concerned and directed the Board to keep 11 posts
vacant till the disposal of the writ petitions and all other vacancies can be
filled up......”
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W.P.No.20358, 20362 to 20366 of 2010
21. From the counter filed by the Board, it is stated that on the
date of modification order, ie., 02.11.2010, 1169 qualified assessors have
been promoted as Inspector of Assessment, who are at the verge of
retirement. However, the petitioners are eligible for promotion to the post of
Inspector of Assessment as on 02.11.2010, however, promoted only on
31.04.2012. Some of the persons have been promoted on 19.04.2012.
22. After perusing of the order of modification dated 02.11.2010,
the respondent Board was directed to keep 11 posts vacant, which are still
vacant. On the facts and circumstances of the case, I find from the decision
of the Hon'ble Apex Court in Y.V.Rangaiah and Others vs. J.Sreenivasa
Rao and Others reported in 1983 (3) SC 284 that the vacancies that are
occurred prior to the amendment Rules, could be covered by the old Rules
and not by the amended Rules.
23. The factual matrix of these cases is squarely applicable under
the ratio laid down by Y.V.Rangaiah case referred to supra. In Union of
India and Another vs. The Central Administrative Tribunal, Chennai and
Others reported in 2009 Writ L.R.82, the Division Bench of this Court has
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proved the said decision and also held as follows:-
“.....It is equally well-settled that any rule which
affects the right of a person to be considered for promotion
is a condition of service although mere chances of
promotion may not be. It may further be stated that an
authority.....
The rules defining qualifications and suitability
for promotion are conditions of service and they can be
changed retrospectively. This rule is however subject to a
ell-recognised principle that the benefits acquired under the
existing rules cannot be taken away by an amendment with
retrospective effect, that is to say, there is no power to make
such a rule under the proviso to Article 309 which affects or
impairs vested rights.
......
By a catena of decisions of this Court, it is now
well-settled that by an executive order the statutory rules
cannot be whittled down nor can any retrospective effect be
given to such executive order so as to destroy any right
which became crystallised.
.......
Undoubtedly, the Government has got the power
under proviso to Article 309 of the Constitution to make
rules and amend the rules giving retrospective effect.
Nevertheless, such retrospective amendments cannot take
away the vested rights and the amendments must be
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reasonable, not arbitrary or discriminatory violating
Articles 14 and 16 of the Constitution....
.......
At any rate, law is well settled that the Executive
Instructions cannot be issued retrospectively affecting any
right.”
24. Considering the above, I am inclined to accept the contention
of the learned counsel appearing for the petitioners, since the facts and
circumstances are similarly covered in Y.V.Rangaiah case referred to supra.
25. In view of the affidavit of undertaking filed by the petitioners,
these writ petitions are partly allowed to the limited extent that (i) the relief
of declaration of declaring the impugned proceedings dated 21.08.2010 is
unconstitutional is only in respect of these petitioners alone; (ii) by virtue of
the affidavit of undertaking, the petitioners are not entitled for the
backwages for the promotion to the post of Inspector of Assessment with
effect from 02.11.2010 to 19.04.2012; (iii) The petitioners are entitled to
notional promotion as Inspector of Assessment without backwages till 2012
and the seniority in the appropriate place in the seniority list of Inspector of
Assessment with all attendant benefits is hereby granted. No costs.
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21.12.2023
Index: Yes / No
Internet: Yes / No
NCC : Yes/No
sm
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W.P.No.20358, 20362 to 20366 of 2010
TO:-
1.The Tamil Nadu Electricity Board,
Rep. By its Chairman,
No.800, Anna Salai,
Chennai – 2.
2.The Chief Engineer,
Tamil Nadu Electricity Board,
No.800, Anna Salai,
Chennai – 2.
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W.P.No.20358, 20362 to 20366 of 2010
RMT. TEEKAA RAMAN, J.
sm
Pre-Delivery Common Order made in
W.P.No.20358, 20362 to 20366 of 2010
Dated:
20.12.2023
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