0071. The Tamil Nadu Electricity Board v. Anna Salai, Chennai – 2.3. A.L.Suresh Babu4. G.Mohan5. Tamil Nadu Minkalazhaka Thozhilalar

W.A. No. 179 of 20081. Tamil Nadu Electricity Employees Congress rep. by its General Secretary S.Solomon, 20/7-B, Crescent Castle Kamarajar 1st Cross Street, Gandhi Nagar Saligramam, Chennai – 93... Appellant- Vs -1. The Tamil Nadu Electricity Board rep. by its Chairman 800, Anna Salai, Chennai 600 002.2. The Chief Engineer (Personnel) Tamil Nadu Electricity Board 800, Anna Salai, Chennai 600 002.3. The Tamil Nadu Electricity Board Accounts & Executive Staff Union rep. by its General Secretary S.V.Angappan No.29, Meeran Sahib Street Anna Salai, Chennai – 2.4. Tamil Nadu Electricity Workers Federation rep. by its General Secretary, V.Ramachandran New. No.92, (Old No.49) Guruvappa Chetty Street Chintadripet, Chennai 600 002... RespondentsWrit Appeals filed against the order dated 19th Dec., 2007, passed bylearned single Judge in W.P. No.10055 of 2006 and 37443 of 2005. Writ Petitions under Article 226 of the constitution of India toissue (1) Writ of Mandamus, directing the respondent to consider andpromote the qualified Assistants (Accounts) to the post of AccountSupervisor who possess the passing of Special Test as specified in Rule96(i)(b) of the Tamil Nadu Electricity Board Service Regulation bypreparing a penel within the specified time s envisaged in B.P.Ms.(Ch)No.212 dated 12.6.1987. (WP 10055/2006).(2) Writ of Mandamus, for bearing the respondents from filling upthe post of (existing as well as that may be sanctioned) AssistantAccounts Officer, Accounts Supervisor and Assistants by giving promotionor by upgradation of the employees who do not possess the qualificationof passing the special test as specified in Regulation 96(i) (b) of TNEBService Regulations. (WP 37443/2005) https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr. V.Radhakrishnan, SC, for Mr. M.Vaidyanathan in WA 1613/07 Mr. V.Prakash, SC, for Mr. S.N.Ravichandran in WA 179/08For Respondents: Mr. V.Prakash, SC, for Mr. S.N.Ravichandran for R-1 in WA 1613/07 Ms. Hema Sampath, SC, for Ms.Meenal for R-2 in WA 1613/07 & R-3 in WA 179/08 Mr. K.S.Narayanan for R-4 in WA 1613/07 Mr. Balan Haridoss for RR-3 & R-5 in WA 1613/07 Mr. V.Radhakrishnan, SC, for Mr. M.Vaidyanathan for RR-1 & 2 in WA 179/08 Mr. N.G.R.Prasad for R-4 in WA 179/08COMMON JUDGMENTS.J.MUKHOPADHAYA, J.As both these appeals have been preferred against common order dated19th Dec., 2007, passed in different writ petitions, they were heardtogether and disposed of by this common judgment.2. In fact, the case was heard in detail on different dates, but,ultimately, in view of suggestions made by the parties, a proposal wasfinally made by the Tamil Nadu Electricity Board (hereinafter referred toas 'Electricity Board') and as majority of the offer given by theelectricity board has been accepted by the parties, it is not necessaryto discuss all the facts except the relevant ones.3. The electricity board reached a settlement with a number ofemployees Unions/Federations/Associations/Sangam u/s 12 (3) of theIndustrial Disputes Act, 1947, in regard to revision of wages, workallocation and staffing pattern, vide proceeding No.B.2/70538/05 dated15th Oct., 2005, for a period of five years with effect from 1st Dec.,2002, till 30th Nov., 2007, or till such time a new settlement is reachedon the said subjects, whichever is later. No new settlement having yetreached, the aforesaid settlement is still in vogue.As per the aforesaid settlement dated 15th Oct., 2005, workallocation and staff pattern for accounting staff in Revenue Branch ofDivision Office in Distribution Circles were reflected at Part-II, asquoted hereunder :- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.ExistingRevised1)One Revenue Branch for eachO&M DivisionOne Revenue Branch for each O&MDivision2)Norms for one AccountsAssistant – 2200 effectiveservicesNorms for one Accounts Supervisor –4400 effective services3)For supervising work therewill be one AccountsSupervisor for each twoAccounts Assistant------4)Effective services mentionedabove will be computed asfollows :-From the total number ofservices in Revenue Brancha) Services remainingdisconnected for a periodexceeding six months will beexcluded, andb) Services free ofelectricity charges will becompletely excludedEffective services mentioned abovewill be computed as follows:-Effective services remainingdisconnected for a period exceedingsix months will be excluded and eachAgricultural service and each Hutservice will be reckoned as onefourth of a service.5)One General section forpreparing Cash book, CostStatement, BankReconciliation, renderingAccounts with the followingstaff :-Accounts Supervisor – 1Assistant - 2Junior Assistant - 3The General Section for preparingCash book, Cost statement, BankReconciliation, rendering Accountswith the following staff:-Accounts Supervisor – 1Assistant - 2Junior Assistant - 2 https://hcservices.ecourts.gov.in/hcservices/ 6)Revenue Accounting work suchas Consumer Ledger posting,Statistical return and Alliedworks are attended by AccountsAssistantRevenue Accounting work will beattended by Accounts Supervisor.The Accounts Supervisor in theRevenue Branch shall verify thecorrectness, specify Electricity Taxand shall post the credit entries inthe Modified Meter Card Register (Tobe introduced).After posting of credit withreference to Assessor's Remittancechallan, IA/PCB the AccountsSupervisor in the Revenue Branchshall arrive at the balance amountof the respective serviceconnections in the Modified MeterCard Register. The AccountsSupervisor in the Revenue Branchshall verify the Meter reading,assessment detail in the ModifiedMeter Card Register and thediscrepancies or shortfall if anyshall be recorded in the relevantcolumns in Modified Meter CardRegister in order to include suchshortfall by the Assessment staff inthe next assessment. Thecalculation of Electricity Taxshould be worked out and shown inthe relevant column in the ModifiedMeter Card Register by the AccountsSupervisor in the Revenue Branch andbe journalized for making payment tothe Chief Electrical Inspector toGovernment. Apart from the abovework, the Accounts Supervisor in theRevenue Branch will maintain aRegister of Abstract of ModifiedMeter Card Register in which, pagewise assessment, collection, balance(Division wise) will be entered fromthe Modified Meter Card Register andtotal assessment, collection,balance of the respectiveDistributions arrived at andreconciliation for each month doneand recorded in the said Register ofAbstract. The accounting and alliedwork norms hither to attended by theAssistant in the Revenue Branch willbe attended by the AccountsSupervisor. Any other related worksassigned by Assistant AccountsOfficer/Executive Engineer has to beattended by the Accounts Supervisor. https://hcservices.ecourts.gov.in/hcservices/

4. After the settlement, the Chief Engineer (Personnel) ofElectricity Board, vide letter No.019774/127/G29/G292/2006-1 dated 14thMarch, 2006, called for names from amongst "qualified/unqualifiedAccounts Assistants ", who have passed accountancy – lower gradeexamination or its equivalent for preparation of panel for promotion tothe post of Accounts Supervisors. After few days, vide another letterNo.019774/127/G29/G292/2006-2 dated 20th March, 2006, the Chief Engineerkept the said order in abeyance. Subsequently, names were called foronly from qualified persons, who have passed requisite departmentalexamination.The electricity board has its own Service Regulations. UnderRegulation 96 (1) (a), special test and other qualification prescribedfor appointment/promotion to one or other post. Under clause (1) (b) ofRegulation 96, at S. No.2, the requisite test prescribed forappointment/promotion to accounts cadre in the office of circle andaccounts branch. Therein, at S. No. (ii), for the post of AccountsSupervisors, passing of accountancy – lower grade examination has beenprescribed. As per the said qualification prescribed under theregulations, name of eligible persons were called for and a panel wasprepared for promotion to the post of Accounts Supervisors vide memoNo.019774/127/G29/G292/2006-8 dated 26th Dec., 2006, showing list of 1677persons at Annexure – A as fit and selected for promotion. A separatelist of Accounts Assistants 'not selected' and another list of AccountsAssistants whose case had been 'deferred' have also been shown atAnnexure – B & C respectively of the said letter.5. In the meantime, the Tamil Nadu Electricity Employees Congress,who is 1st respondent in W.A. No.1613/07, preferred a writ petition, W.P.No.10055/06 for issuance of a mandamus for direction on the respondent-Electricity Board and its officials to promote only the qualifiedAccounts Assistants to the post of Accounts Supervisors, who have passedthe special test as specified under Regulation 96 (1) (b).Another writ petition, W.P. No.37443/05 was also preferred by thesame petitioner, 1st respondent in W.A. No.1613/07, for issuance of a writof mandamus to forbear the respondents – Electricity Board and itsofficials from filling up the post of (existing as well as that may besanctioned) Assistant Accounts Officer, Accounts Supervisors andAssistant by giving promotion or by upgradation of the employees, who donot possess the qualification of passing the special test as specifiedunder Regulation 96 (1) (b).There were other writ petitions, which were also preferred by one orother Association, but we are not concerned with those cases.6. During the pendency of the case, on 3rd Jan., 2007, about 1000Accounts Assistants were promoted to the higher post of Accounts https://hcservices.ecourts.gov.in/hcservices/ Supervisors out of the existing panel. In the counter affidavitoriginally filed, the Electricity Board took plea that the Board isconsidering the demand of the Unions to dispense with the prescribedqualification of passing Accountancy – Lower Grade examination. At para-10, it was stated that steps have been taken for computerisation ofAssessment and Collection and at para-11 the following vacancy positionwas shown :-"11. Consequent on the present revision of workallocation and staff pattern in revenue accounting staffin Revenue Branch the particulars with regard to thetotal number of effective services also with staffstrength utilised have been called for. Pending receiptof these particulars, the requirement of AccountsSupervisors based on new norms are worked outapproximately and furnished below :-Total No. Of Service (excluding Hut &Agricultural Service)(3670 x 4400 = 1,61,48,000):1,77,00,000Norms per Accounts Supervisor:4400 ServicesNo. of Accounts Supervisor to lookafter the services:3670Already Utilised:1724Balance Required:1946So far as those who have not passed the requisite examination,referring the settlement made between the parties, the followingstatement was made :-"12. ........ There are large numbers of vacancies inAccounts Cadre in Revenue Branch and the Accountssupervisor in the Revenue Branch have to exercise thesame work as that of the Billing Assistant (Accounts).The unqualified persons have long years of service andhave more experience and many of them are on the verge ofretirement. At this stage, it is relevant to point outthat in the Administrative cadre, normally promotion isgiven to Administrative Assistant in or about 12 yearsand no special qualification test are prescribed.However, in the Accounts cadre, even after 14 years,large number of Assistants are stagnated withoutpromotion on the ground of not passing of the prescribedspecial test. https://hcservices.ecourts.gov.in/hcservices/

13. In so far as the averments contained in paragraph 3of the affidavit under reply, it is submitted that thequestion of dispensing with special test provided underRegulation 96 (1) (b) has to be considered as a one-timemeasure in the context of settlement entered into betweenthe Board and the recognized unions under Section 12 (3)of the I.D. Act, 1947. As per the settlement now enteredinto by the Board with the unions on 15.10.2005, thenature of work already attended by the Assistant(Accounts) is now attached to the promotional post ofAccounts Supervisor and the practical experience wouldmake them fit for promotion to post of AccountsSupervisor. In view of the circumstances stated aboveand also considering the stagnation in the cadre, thespecial test is proposed to be dispensed with.*******15. In view of the pendency of the above writ petitionNo.37443/05, and in view of the direction of theirHonourable Court permitting the promotion of candidateswho possess requisite qualification only, the respondenthas not made suitable amendment for dispensing with thespecial test required for promotion to the post ofAccounts Supervisor."In the said counter affidavit, the Electricity Board also assuredthat the remaining persons in the panel will be promoted, as mentioned atpara-16 and quoted hereunder :-"16. In respectfully submit that there has been aconsiderable change in the workload after the settlemententered into on 15.10.2005. The revised workingarrangement necessitates for the promotion of a morenumber of Accounts Supervisors. As directed by theHonourable High Court, Madras, panel for promotion of1678 qualified Assistant (Accounts) to the post ofAccounts Supervisor were approved. Out of 1678employees, 1000 Assistant (Accounts) were promoted on3.1.2007 and the remaining 678 will be promoted shortly.Of the 2223 vacancies, there are remaining 545 vacanciesto be filled up. Since persons who do not pass theAccountancy (Junior Grade) are only available, exigenciesnecessitate the promotion of such persons also asAccounts Supervisors in the vacancies aforesaid. Thequality of work will not suffer in view of the longexperience they have rendered."7. Subsequently, an additional counter affidavit was filed.Therein, while giving reference to implementation of computerisation ofAssessment and Collection, which was under progress, it is informed that https://hcservices.ecourts.gov.in/hcservices/ the Accounts Supervisors shall carry out the work in the computerisedenvironment assigned by superiors without confining to norms. At para-9it was stated that in view of introduction of computers as envisagedunder the settlement dated 15th Oct., 2005, need for employment ofprescribed number of Accounts Supervisors as per settlement dated 15thOct., 2005, will cease to exist. Prayer was made to dismiss the writpetition.8. Learned single Judge, by impugned common order dated 19th Dec.,2007, taking into consideration that the validity of panel is uptoDecember, 2007, and that the settlement is binding on parties, includingElectricity Board, while held that Electricity Board cannot be compelledto create vacancies, in view of the vacancy position shown, directed theElectricity Board to fill up the rest of the vacancies by givingpromotion to the rest of the 677 persons in the panel. So far as thewrit petition, W.P. No.37443/05 is concerned, taking into considerationthat only the eligible candidate has been empanelled for promotion to thepost of Accounts Supervisors, learned single Judge declared the saidpetition as infructuous.9. When the appeals were heard, Mr.Radhakrishnan, learned seniorcounsel for the Electricity Board argued the case in length, and made thefollowing submissions :-a) In view of computerisation, first phase of which has already beencompleted in October, 2007, and second phase of which may be completedwithin few months in this year (2008), a fresh assessment to be made withregard to need of post of Accounts Supervisors, which may be less. Moreworkload may be given on the Accounts Supervisors, who are provided with4400 effective service per head pursuant to the present settlement.b) No person has a right for promotion and mere existence of name ina panel cannot be a ground to claim promotion to the higher post.10. From the counter affidavit, we notice that the Chief Engineer(Personnel) wanted to promote unqualified persons, i.e., those who hadnot passed the requisite departmental examination, though qualifiedpersons were available. Somehow or the other, the said requisitioncalling for names of unqualified persons was kept in abeyance and panelof qualified successful candidates was prepared and approved on 20th Dec.,2006. Though there were large number of vacancies, as shown in thecounter affidavit, but only 1000 persons were promoted on 3rd Jan., 2007and with regard to the rest, assurance was given that they will bepromoted immediately. Suddenly, by filing an additional counteraffidavit, the officers of the Electricity Board changed their stand andit was highlighted that computerisation was going on and, therefore, afresh settlement u/s 12 may have to be reached. However, it was acceptedthat no subsequent settlement has been made and the settlement dated 15thOct., 2005 is still in vogue. https://hcservices.ecourts.gov.in/hcservices/

11. We have heard the parties and noticed the rival contentions.It is true that no person has a right to claim promotion merely onthe ground that his name is appearing in the panel; it is also open tothe employer to decide how many posts are to be filled up on the basis oftheir need/administrative exigency. Similarly, bona fide decision takenby employer not to make appointment ought not to be interfered with.Recruitment process could be suspended if certain irregularities orillegalities is found in the matter of promotion. In this connection,one may also refer to Supreme Court decision in Jitendra Kumar – Vs –State of Haryana – 2008 (2) SCC 161. However, in the present case, a specific undertaking was givenbefore this Court that all the posts will be filled up from the existingpanel, but without any basis, the Chief Engineer, by filing an additionalaffidavit, suddenly changed his stand; the Court wanted to know thegrounds; as the Electricity Board could not explain the grounds, theCourt had to call for and go through the original records. On perusal ofthe original records, while it appears that some H.O.D.s, after filing ofthe writ petition, made certain observations relating to on-goingcomputerisation, the Chief Engineer, while proposing a note, made certainchange in his stand. There is nothing on the record to suggest that anyreassessment relating to working strength was made by the ElectricityBoard nor there is anything on the record to suggest that the ElectricityBoard, consisting of its Chairman and other members, took any decisionnot to act on the panel after promotion of certain candidates. It is inthis background that different suggestions were made; at the instance ofthe Board the matter was adjourned and the Electricity Board filed anaffidavit giving a fresh offer showing the manner in which the Board nowintends to fill-up the posts of Accounts Supervisors, as quoted hereunder:-"2. I state that the appellants have filed a WritAppeal against the common order of the learned Judgedated 19.12.2007 passed in W.P. 10055/2006 directing theappellants herein to promote 677 Accounts Assistants tothe post of Accounts Supervisor before 25.12.2007.3. I state that during the hearing of the above WritAppeal and connected appeals, certain suggestions weremade. The competent authority carefully considered thesuggestions proposed and accordingly had taken a decisionto implement the following, pending settlement talks tobe completed shortly.a) The appellants will promote 500 qualifiedAccounts Assistants to the post of AccountsSupervisor from the panel dated 26.12.2006 publishedby the Chief Engineer (Personnel) in his MemoNo.019774/67/G29/G292/2006-8 within a period of 15days. On such promotion, consequential individual https://hcservices.ecourts.gov.in/hcservices/ orders of posting will be issued separately. Theemployees so promoted should work at places wherevertheir services are required and orders of postingissued.b) With regard to remaining 177 Assistant Accountsin the panel published on 26.12.2006, the appellantswill decide actual need of Accounts Supervisors as on1.12.2007 taking into consideration thecomputerisation as made by 1.12.2007.c) On such determination, if there is further needof Accounts Supervisors, those posts will be filledup from the remaining 177 eligible employees whosenames are appearing in the panel published on26.12.2006.d) After exhausting the panel dated 26.12.2006 andafter taking into consideration the computerisation,if further need exist as on 1.12.2007 thesubsequently qualified Accounts Assistants will beconsidered for promotion as Accounts Supervisors. Ifthe appellant Board finds that further post ofAccounts Supervisors required to be filled up on thebasis of such need and strength, the same would bedetermined and the Accounts Assistants who arehitherto performing similar duties might be upgradedas Accounts Supervisors as per such need on the basisof seniority-cum-fitness/service records.4. In the above circumstances, the appellantsrespectfully pray that this Hon'ble Court may be pleasedto set aside the common order passed in W.P.No.10055/2006 and etc., under appeal and pass orderssuitably as this Hon'ble Court may deem fit and proper inthe circumstances of the case and thus render justice."12. The aforesaid offer as made on behalf of the Electricity Boardhas been accepted in its totality by Mr. V.Prakash, learned seniorcounsel appearing on behalf of 1st respondent in W.A. No.1613/07, TamilNadu Electricity Employees Congress.Mr. N.G.R.Prasad, learned counsel appeared on behalf of Tamil NaduElectricity Workers Federation, 4th respondent, in W.A. No.179/08 andMr.Balan Haridoss, learned counsel appeared for 3rdrespondent, A.L.SureshBabu and 5th respondent, Tamil Nadu Minkalazhaka Thozhilalar MunnetraSangam, in W.A. No.1613/07. Both of them, while made no objection inregard to offer given by Electricity Board at clause (a), (b) and (c),quoted above, raised objection against clause (d), which stipulatesupgradation of Accounts Assistants as per need on the basis of seniority-cum-fitness/service record only after the promotion of rest AccountsAssistants, who have passed Accountancy – Lower Grade Examination. Itwas submitted that after the promotion of those, who have been found fit https://hcservices.ecourts.gov.in/hcservices/ and empanelled, no classification can be made between the rest of theAccounts Assistants, who have not been empanelled, even on the basis oftheir respective qualification. They placed reliance on settlement dated15th Oct., 2005, (S.No.2, Part-II), wherein it was agreed upon that thework of Accounts Assistants will be performed by Accounts Supervisorswith higher norms of 4400 effective service per head. It was submittedthat in view of such stipulation, for upgradation of rest of the AccountsAssistants, the qualification of passing any examination does not ariseas no such criteria prescribed for upgradation of post with incumbent asAccounts Supervisor. The eligibility criteria as prescribed underRegulation 96 relates to direct recruitment and promotion and notapplicable for upgradation of post of Accounts Assistant with incumbentas Accounts Supervisor. As appointment could be made from differentsources for which separate criteria has been laid down, the eligibilitycriteria fixed for appointment through a particular source cannot be madeapplicable for appointment through another source, in absence of any ruleor guideline issued to such effect. For example, no criteria to pass any requisite departmentalexamination has been prescribed for direct recruitment to the post ofAccounts Supervisor, but such criteria has been laid down under Rule 96(1) (b) for promotion to same very post. Similarly, no criteria havinglaid down for upgradation to the post of Accounts Assistant withincumbent to the higher post of Accounts Supervisor, such criteria ofupgradation is now being laid down in settlement dated 15th Oct., 2005,the Electricity Board cannot differentiate amongst the rest of theAccounts Assistants on the ground that one has passed certain test andanother has not passed such test.13. Mr. Radhakrishnan, learned senior counsel for the ElectricityBoard submitted that if certain Associations/Federations/Unions are notagreeable to clause (d) of proposal, it will not give effect to the same.The matter relating to upgradation of Accounts Assistants as AccountsSupervisor could be decided after discussion with the Executive CommitteeMembers of such Associations/Federations/Unions taking intoconsideration the need of Accounts Supervisors and in view ofcomputerisation.Such suggestion was accepted by Mr.N.G.R.Prasad, Mr.Balan Haridoss,who appeared on behalf of one or other Union/Association as referred toabove as also by Ms.Hema Sampath, learned senior counsel, who appeared onbehalf of the Tamil Nadu Electricity Board Accounts and Executive StaffUnion, 2nd respondent in W.A. No.1613/07.14. Ms.Hema Sampath, learned senior counsel on behalf of the StaffUnion aforesaid, raised objection to part of the proposal made at clause3 (a), wherein it is stipulated that the employees promoted has to workat the place wherever their services are required. But we are notinclined to interfere with such proposal as it is open to the employer to https://hcservices.ecourts.gov.in/hcservices/ post its employee at any place within the cadre, transfer being one ofthe conditions of service.15. In view of the suggestion made by the Electricity Board andmajor portion of such proposal having accepted by all the respondents, wedirect the Electricity Board to implement their proposal as made atclause (a), (b) and (c) and quoted at para-11 above, within the period asshown therein. So far as the rest of the Accounts Supervisors areconcerned, who have not been empanelled, the respondents are directed totake a decision in regard to their upgradation, taking into considerationthe settlement reached u/s 12 (3) of the ID Act and need of the Board,after negotiating the matter with all concerned interested Unions(Associations, Federations, Sangams, etc.) and may pass appropriateorders as required for implementation of such decision.16. The impugned order dated 19th Dec., 2007, passed by learnedsingle Judge in W.P. No. 10055/06 stands modified to the extent above.Accordingly, W.A. No.1613/07 stands disposed of accordingly. So far asW.A. No.179/08 is concerned, in view of the offer given by theElectricity Board and as accepted by the concerned respondents-Unions, weare not inclined to interfere with the order passed by learned singleJudge, the connected writ petition, W.P. No.37443/05 having becomeinfructuous. Consequently, connected miscellaneous petitions are closed.But there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarGLN https://hcservices.ecourts.gov.in/hcservices/ To1. The Chairman Tamil Nadu Electricity Board 800, Anna Salai, Chennai 600 002.2. The Chief Engineer (Personnel) Tamil Nadu Electricity Board 800, Anna Salai, Chennai 600 002.3.The Section Officer,ER Section, High Court, Madras (For being put up in WP 37443/2005)+2ccs to Mr.S.N.Ravi Chandran, AdvocateSr 11631+2ccs to Ms.R.Meenal, Advocate Sr 11635+1CC to M/s. Row & Reddy,Advocate Sr 12010+1cc to Mr.Balan Haridas,Advocate Sr 11954+4ccs to Mr.M.Vaidyanathan, Advocate Sr 11650VSV (CO)km/7.3. W.A. NOS. 1613/07 & 179/08