Tamil Nadu Electricity Board Thozhilalar Iykkiya Sangam vs Tamil Nadu Electricity Board and another

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.

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.

The respondent Electricity Board in exercise of powers conferred u/s 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).

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:

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.

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:

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)

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 Promotion from Assistants in Category 2 of this Division.

Accounts

Supervisors

Category-2 Promotion from Junior Assistants in Category 3 of this Division and Typists including

Assistants steno-Typists in category 4 of this -Division. The Board may also resort to Direct

recruitment for 25% of vacancies.

Category-3 Direct recruitment or appointment by internal selection from Record Clerks, Officer

Junior Assistants Helpers, and regular Work Establishment.

Category-4 Direct recruitment or appointment by Internal selection from Record Clerks, Office

Typists including Helpers and Regular Work Establishment.

Steno-typists

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.

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:

Fitter

Turner

Machinist

Welder

Wireman

Building Constructor

Blacksmith

Carpenter

Plumber

10.Electrician

Draughtsman (Civil)

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.

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.

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.

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.

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.

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.

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.

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.

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.

I have given my careful consideration to the submission of both sides.

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?

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.

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.

That apart, the Apex Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, 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.

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?

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.

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.

Issue No. II is answered accordingly.

In the result, the writ petition is allowed. However, there will be no order as to costs.